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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     434     OF     2006   

Shyam Babu                    .... Appellant(s)

Versus

State of U.P.                   .... Respondent(s)

J     U     D     G     M     E     N     T   

P.Sathasivam,J.

1) This appeal has been preferred against the final  

judgment and order dated 13.01.2006 passed by the High  

Court of Judicature at Allahabad in Government Appeal No.  

159 of 1981 whereby the Division Bench of the High Court  

allowed the appeal filed by the State and set aside the order of  

acquittal of accused persons dated 08.09.1980 passed by the  

First Additional Sessions Judge, Etawah in Sessions Trial No.  

77 of 1979.  

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2) The facts and circumstances giving rise to this appeal are  

as under:

(a) Moolu Singh and Kunji were real brothers.  Prayag Singh,  

Pahunchi Lal and Lalta Prasad were sons of Moolu Singh.  

Badan Singh and Gaya Prasad were sons of Kunji.  Ratan  

Singh is the son of Prayag Singh and Nathu Ram and  

Rajendra Singh were sons of Pahunchi Lal.  Jaswant Singh  

was the son of Badan Singh and Ujagar Singh was the son of  

Gaya Prasad.   

(b) On 21.12.1978, at about 9.00 a.m. one Nathu Ram-the  

Complainant and his father Pahunchi Lal were ploughing their  

field situated at Har Balapur P.S. Bharthana.  At that time,  

the Complainant’s uncle - Gaya Prasad along with his son  

Ujagar Singh were sowing their field which was nearer to the  

field of the Complainant.  At some distance, his uncle - Prayag  

Singh along with his son Ratan Singh were also ploughing  

their field.   

(c) There was a water channel passing towards north of their  

fields and Mahipal Singh-the accused was irrigating his field  

through that channel. Since water was overflowing in the  

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channel and entering into the sowed field of the Complainant’s  

uncle-Gaya Prasad, he asked Mahipal Singh to repair the  

same.  On this issue, an altercation took place between  

Mahipal Singh and Gaya Prasad.  The accused Mahipal Singh  

left the place saying that he would see him.   

(d) In the meanwhile, Lalta Prasad, first cousin of Gaya  

Prasad and his nephew Jaswant Singh also reached there.  At  

about 11.00 a.m., Nathu Ram and his father Pahunchi Lal  

resumed ploughing their field.  At that time, accused Mahipal  

Singh and his brothers Shyam Babu and Tej Ram armed with  

guns, Indal having rifle and Bhabhooti with lathi along with  

their father Ramjit with spear and Babu Ram –  son of  

Bhabhooti with countrymade pistol reached there.  Mahipal  

Singh, standing near Gaya Prasad, told his associates that he  

was behaving in an arrogant manner and asked them to make  

an assault on him.  Thereupon, Shyam Babu and Mahipal  

Singh fired at Gaya Prasad with their respective guns thereby  

causing injuries to him.  On seeing this, Ujagar Singh– son of  

Gaya Prasad, rushed to save his father and he also sustained  

pellet injuries by Tej Ram.  At that time, Prayag Singh,  

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Pahunchi Lal, Lalta Prasad and Jaswant Singh rushed to the  

scene of occurrence.  Then Ramjit and Bhabhooti shouted that  

they should also be killed and immediately Indal fired at  

Jaswant Singh and Prayag Singh using rifle and Babu Ram  

and Mahipal Singh fired at Pahunchi Lal and Lalta Prasad  

with country made pistol and gun respectively.  All of them fell  

down in the field of Badan Singh except Prayag Singh, who  

received injuries.  On hearing the hue and cry, Rajendra Singh  

brother of Nathu Ram and several other persons rushed to the  

spot and challenged the accused persons.  On seeing them, all  

the accused persons fled away.  Due to fatal injuries, Ujagar  

Singh, Jaswant Singh, Gaya Prasad, Pahunchi Lal and Lalta  

Prasad died on the spot and Prayag Singh received grievous  

injuries.   

(e) On the same day, i.e., on 21.12.1978, an FIR was lodged  

by the Complainant - Nathu Ram, son of Pahunchi Lal, at P.S.  

Bharthana, Etawah against the above-mentioned 7 persons  

under Sections 147, 148, 149, 307 and 302 of the Indian  

Penal Code, 1860 (in short ‘the IPC’).   

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(f) On 06.03.1979, after filing of charge sheet, the case was  

committed to the Court of Sessions and numbered as Sessions  

Trial No. 77 of 1979.  The First Additional Sessions Judge,  

Etawah, by judgment dated 08.09.1980, acquitted all the 7  

accused persons holding that the prosecution has failed to  

prove beyond reasonable doubt the guilt of the accused  

persons in the case against them.  

(g) Being aggrieved, the State filed Government Appeal No.  

159 of 1981 before the High Court.  Pending appeal in the  

High Court, 4 accused persons, viz., Ramjit, Mahipal Singh,  

Indal and Bhabhooti died due to natural death and the case  

against them stood abated.  

(h) On 13.01.2006, the High Court allowed the appeal filed  

by the State and convicted the remaining 3 accused persons,  

viz., Shyam Babu, Babu Ram and Tej Ram under Sections  

148, 307 and 302 read with Section 149 of IPC and sentenced  

them to undergo rigorous imprisonment under various heads  

mentioned above including life sentence and all the sentences  

were to run concurrently.   

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(i) Being aggrieved by the judgment of the High Court, the  

remaining 3 accused persons preferred an appeal before this  

Court under Section 379 of the Code of Criminal Procedure,  

1973 (in short ‘the Code’). During the pendency of the appeal,  

2 accused persons, viz., Tej Ram and Babu Ram died and  

appeal against them stood abated and only one accused,  

Shyam Babu is before this Court facing conviction and  

sentence.        

3) Heard Mr. V.K. Shukla, learned counsel for the  

appellant-accused and Mr. Ardhendumauli Kumar Prasad,  

learned counsel for the respondent-State.

Discussion

4) The incident relates to death of 5 persons and causing  

injury to 1 person.  According to the prosecution, all the 5  

persons were shot dead and one person sustained injuries due  

to firing by the accused persons.  It is revealed from the post  

mortem reports and the evidence of the Doctor, who conducted  

autopsy on the dead bodies that death was caused due to  

shock and hemorrhage as a result of ante mortem injuries  

about one day ago.

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5) On receipt of the complaint, the Investigating Officer  

rushed to the spot and collected the blood stained clothes of  

all the 5 deceased and also collected the samples of blood  

stained earth near the place where dead bodies of all the 5  

were lying and the same were sent to Forensic Science  

Laboratory (FSL) for opinion which opined that the samples  

were found to be containing human blood.

6) After filing of charge-sheet against all the accused, the  

prosecution examined several witnesses.  Among them, Nathu  

Ram (PW-1), Prayag Singh, injured witness (PW-3) and Mukut  

Singh (PW-6) were the persons who actually witnessed the  

occurrence.  In other words, PWs-1, 3 and 6 are eye-witnesses  

to the occurrence.  The trial Judge, after noting certain  

discrepancies and their relationship with the deceased  

persons, disbelieved their version and, ultimately, acquitted all  

the accused persons.  On the other hand, the High Court,  

being the appellate Court, analysed all the materials, more  

particularly, the evidence of eye witnesses, medical evidence,  

FSL Report etc.,  and arrived at a categorical conclusion that  

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the prosecution has established the case against all the  

accused persons.   

7) Inasmuch as 4 accused died during the pendency of the  

appeal before the High Court, the High Court convicted the  

remaining 3 accused, namely, Shyam Babu, Tej Ram and  

Babu Ram.  Even during the pendency of the present appeal,  

2 accused persons died, namely, Tej Ram and Babu Ram and  

as on date, we are concerned with only one accused, namely,  

Shyam Babu – the present appellant.   

Power of the High Court in an appeal against acquittal :

8) Mr. V.K. Shukla, learned counsel for the appellant,  

submitted that in view of the acquittal of the accused persons  

by the trial Court, the High Court was not justified in  

interfering with the decision of the trial Court and modifying  

the acquittal into conviction.   

9) It is true that it would not be possible for the appellate  

Court to interfere with the order of acquittal passed by the  

trial Court without rendering specific finding, namely, that the  

decision of the trial Court is perverse or unreasonable  

resulting in miscarriage of justice.  At the same time, it cannot  

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be denied that the appellate Court while entertaining an  

appeal against the judgment of acquittal by the trial Court is  

entitled to re-appreciate the evidence and come to an  

independent conclusion.  We are conscious of the fact that in  

doing so, the appellate Court should consider every material  

on record and the reasons given by the trial Court in support  

of its order of acquittal and should interfere only on being  

satisfied that the view taken by the trial Court is perverse and  

unreasonable resulting in miscarriage of justice.  We also  

reiterate that if two views are possible on a set of evidence,  

then the appellate Court need not substitute its own view in  

preference to the view of the trial Court which has recorded an  

order of acquittal.   

Reasoning on merits

10) Keeping the above principles in mind, let us consider the  

evidence led by the prosecution and the ultimate decision of  

the High Court.  We have already mentioned that Nathu Ram  

(PW-1), Prayag Singh (PW-3) and Mukut Singh (PW-6) have  

appeared as eye-witnesses to the occurrence.  PW-1, son of  

deceased Pahunchi Lal, has categorically narrated all the facts  

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of the occurrence.  According to him, at about 9 or 9.30 a.m.,  

on the fateful day, he and his father were ploughing the field of  

Badan Singh which they had taken on ‘batai’  and his uncle  

Gaya Prasad and his son Ujagar Singh were sowing crop in  

their field. He further deposed that his uncle Prayag Singh and  

his son Ratan Singh were ploughing their field situated at a  

distance of 40-50 footsteps from the field in which they were  

working.  Mahipal Singh was irrigating his field through water  

channel abutting the field of Gaya Prasad and since the water  

was overflowing and entering into the filed of Gaya Prasad, he  

asked Mahipal Singh to repair the same which resulted in an  

altercation between them and, thereafter, Mahipal Singh went  

away saying that he would teach him a lesson.  By that time,  

Lalta Prasad and Jaswant Singh also reached there and all of  

them were sitting in the field of Badan Singh.  He further  

narrated that at about 11 a.m., when he and his father  

resumed ploughing their field, at that time, Shyam Babu  

(present appellant-accused) and Tej Ram with guns, Indal with  

rifle and Bhabhooti with lathi along with their father Ramjit  

with spear (ballam) and Babu Ram-son of Bhabhooti with  

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country made pistol reached there.  Mahipal Singh pointing at  

Gaya Prasad started shouting that he was speaking much and  

should be killed and, immediately thereafter, Shyam Babu and  

Mahipal Singh fired at Gaya Prasad using guns.  When Ujagar  

Singh rushed towards his father to rescue him, he also  

received pellet injuries by Tej Ram.  He further stated that  

immediately Pahunchi Lal, Prayag Singh, Lalta Prasad and  

Jaswant Singh also rushed to the scene of occurrence and  

then Ramjit and Bhabhooti shouted that they should also be  

killed.  Thereafter, Indal and Babu Ram fired at Jaswant Singh  

and Pahunchi Lal with their respective weapons.  The accused  

persons also fired at Lalta Prasad and Prayag Singh with their  

weapons.  Ramjit and Bhabhooti also gave blows to the injured  

with their respective weapons.  On sustaining fatal injuries,  

Pahunchi Lal, Ujagar Singh, Lalta Prasad, Gaya Prasad and  

Jaswant Singh died on the spot and Prayag Singh received  

firearm injuries at his back.  He also stated that thereafter at  

about 12.00 noon he went to the police station Bharthana,  

Etawah situated at a distance of 8 miles from his village and  

made a written complaint about the occurrence.   

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11) The other eye-witnesses relied on by the prosecution and  

accepted by the High Court were Prayag Singh (PW-3) - injured  

person and Mukut Singh (PW-6), who corroborated the entire  

statement of Nathu Ram (PW-1) in all material aspects.

12) A perusal of the cross-examination of these three eye-

witnesses clearly shows that all of them were subjected to  

lengthy cross-examination but as rightly observed by the High  

Court, nothing tangible could be brought on record to impair  

their credibility.  We were also taken through their evidence.  

We fully concur with the conclusion arrived at by the High  

Court and hold that the trial Judge committed an error in  

discarding the testimony of all the three eye-witnesses  

doubting their presence at the scene of occurrence.   

Evidentiary value of related witnesses :

13) Mr. V.K. Shukla, learned counsel for the appellant  

submitted that since most of the prosecution witnesses are  

related to the deceased persons, the same cannot be relied on.  

We are unable to accept the said contention.   

14) This Court has repeatedly held that the version of an eye-

witness cannot be discarded by the Court merely on the  

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ground that such eye-witness happened to be a relative or  

friend of the deceased.  It is also stated that where the  

presence of the eye-witnesses is proved to be natural and their  

statements are nothing but truthful disclosure of actual facts  

leading to the occurrence, it will not be permissible for the  

Court to discard the statement of such related or friendly  

witnesses.  To put it clear, there is no bar in law on examining  

family members or any other person as witnesses.  In fact, in  

cases involving family members of both sides, it is a member  

of the family or a friend who comes to rescue the injured.  If  

the statement of witnesses, who are relatives or known to the  

parties affected is credible, reliable, trustworthy and  

corroborated by other witnesses, there would hardly be any  

reason for the court to reject such evidence merely on the  

ground that the witness was a family member or an interested  

witness or a person known to the affected party or friend etc.  

These principles have been reiterated in Mano Dutt and  

Another vs. State of Uttar Pradesh, (2012) 4 SCC 79 and  

Dayal Singh and Others vs. State of Uttaranchal, 2012 (7)  

Scale 165.

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15) In the case on hand, Nathu Ram (PW-1) is closely related  

to all the deceased as he is the son of the deceased Pahunchi  

Lal and nephew of deceased Lalta Prasad.  It is also true that  

Prayag Singh (PW-3), the injured witness, is the real brother of  

the deceased Pahunchi Lal and Lalta Prasad.  Mukut Singh  

(PW-6) has also admitted in his cross-examination that he has  

some land in joint khata with the victims but their testimony  

cannot be discarded on the ground of relationship alone as  

they appeared to be honest and truthful witnesses and their  

testimony has not been impaired in their cross-examination.  

We have already referred to the lengthy cross-examination of  

all these persons and nothing has come out to impair their  

credibility.  We have also observed that among these three eye-

witnesses, PW-3 is an injured witness and his evidence stands  

on higher pedestal.  There is no reason to either disbelieve his  

version or his presence at the place of occurrence.  On the  

other hand, we agree with their statement and hold that the  

High Court was justified on relying upon their evidence.   

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Only surviving accused – effect :

16) Finally, Mr. V.K. Shukla pointed out that inasmuch as  

the present appellant alone is the remaining accused since out  

of 7, other 6 accused persons died due to natural death, he  

may be exonerated from the conviction and sentence.  In view  

of the clinching evidence led by the prosecution, we are unable  

to accept his submission.  We should not forget that due to  

gruesome incident, 5 persons lost their lives and one person  

sustained injuries.  It is also brought in evidence that Shyam  

Babu, appellant herein and Tej Ram used guns and the third  

one Babu Ram used country made pistol for the said  

diabolical act of shooting.  It is undisputed fact that 5 persons  

died and 1 person sustained injuries by use of such weapons.  

Even otherwise, the present appellant along with others was  

convicted by the High Court under Sections 148, 307 & 302  

read with Section 149 IPC, hence he cannot be exonerated.  

Taking note of all these aspects and considering the gruesome  

murders, there is no reason to exonerate the present sole  

appellant-accused merely because the other co-accused died  

due to natural death.   

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Delay in disposal of appeal

17) It was argued by the learned counsel for the appellant  

that considering the fact that though the appeal was filed  

before the High Court at Allahabad in the year 1981, the same  

was disposed of by the High Court only on 13.01.2006, i.e.,  

after a gap of 25 years and, the sole appellant be discharged  

from the commission of offence on the ground of delay.  We  

are unable to accept the said contention.  This Court, in a  

series of decisions, held that the Limitation Act, 1963 does not  

apply to criminal proceedings unless there is express and  

specific provision to that effect.  It is also settled law that a  

criminal offence is considered as a wrong against the State  

and the Society even though it is committed against an  

individual.  After considering various decisions including the  

decision of the Constitution Bench of this Court in Abdul  

Rehman Antulay vs. R.S. Nayak, (1992) 1 SCC 225 and  

Kartar Singh vs. State of Punjab (1994) 3 SCC 569 and  a  

decision rendered by seven learned Judges of this Court in P.  

Ramachandra Rao vs. State of Karnataka (2002) 4 SCC  

578, recently on 17.08.2012, a Bench of two Judges of this  

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Court in Ranjan Dwivedi etc. vs. C.B.I., Through the  

Director General (Writ Petition (Crl.) No. 200 of 2001)  

rejected similar argument based on delay either at the stage of  

trial or thereafter.   

18) In the case on hand, merely because the High Court had  

taken nearly 25 years to dispose of the appeal, the present  

appellant cannot be exonerated on the ground of delay.  As  

stated earlier, it is not a case of single murder but due to firing  

and gunshot, five persons died and one injured.  Accordingly,  

we reject the said contention.

19) In the light of the above discussion, we are unable to  

accept the reasoning of the trial Court and submissions made  

by the learned counsel for the appellant.  On the other hand,  

we fully agree with the conclusion arrived at by the High  

Court.  Consequently, the appeal fails and the same is  

dismissed.

………….…………………………J.                  (P. SATHASIVAM)                                  

       ………….…………………………J.                 (DR. B.S.CHAUHAN)  

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NEW DELHI; SEPTEMBER 7, 2012.

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