# Ram Autar & Ors v. State of U.P. Opp. Party

- **Citation:** (2022) 4 ILRA 534
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-19
- **Bench:** Manoj Misra, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-autar-ors-v-state-of-u-p-opp-party-48260
- **Pages:** 12

## Headnote

Criminal Law- Indian Evidence Act 1872-
Section
3-
Inimical,
Interested
and
Chance Witnesses-The informant's side
and the accused side were inimical to each
other and were embroiled in litigation,
both civil and criminal, for long-The ocular
account is flowing from highly inimical
and
interested
witnesses-The
two
witnesses who have stood up to support
the
prosecution
case
are
chance
witnesses-The incident is in broad day
light on a busy street and in the presence
of shop keepers as well as passersby yet,
there is no effort to intervene. This raises
a serious doubt with regard to the
presence of PW-2 and PW-3 on the spot as
also with regard to the incident occurring
in the manner alleged.

Where
the
witnesses
are
apparently
inimical,
interested
and
are
chance
witnesses and their testimony fails to
inspire the confidence of the court, then it
is not safe to place reliance on the
testimony of such witnesses.
Evidence Law - Indian Evidence Act 1872-
Section 3 -Simple narration of assault by
rod and lathi-The fracture of right parietal
and frontal bone of the skull, sternum and
ribs of the deceased, as a result of
compression, find no explanation in the
ocular account-The doctors have accepted
that the nature of injuries found on the
deceased as well as the injured could be a
result of an accident.

Where the ocular account is untrustworthy and
the same is contradicted by the medical
evidence, then reliance may not be placed by
the court on the testimony of the prosecution
witnesses. (Para 18, 19, 22)

Criminal Appeal allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

_Characters 0–39,990 of 41,538. This is a partial read: ask again with offset=39990 for what follows._

534 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)04ILR A534
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.04.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 879 OF 1986

Ram Autar & Ors. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri R.B. Sahai, Sri Rizwan Ali Akhtar, Sri Sadaful
Islam Jafri, Sri S.I. Jafri, Sri Anurag Shukla, Sri
G.S. Chaturvedi (Senior Adv.)

Counsel for the Opp. Party:
A.G.A., Sri Ashok Kumar Singh, Sri D.S.M.
Tripathi, Sri Kailash Nath, Sri Manish Shukla,
Pratibha Singh, Sri S.S. Rathore, Sri Prem
Prakash Yadav, Sri Kailash Nath

Criminal Law- Indian Evidence Act 1872-
Section
3-
Inimical,
Interested
and
Chance Witnesses-The informant's side
and the accused side were inimical to each
other and were embroiled in litigation,
both civil and criminal, for long-The ocular
account is flowing from highly inimical
and
interested
witnesses-The
two
witnesses who have stood up to support
the
prosecution
case
are
chance
witnesses-The incident is in broad day
light on a busy street and in the presence
of shop keepers as well as passersby yet,
there is no effort to intervene. This raises
a serious doubt with regard to the
presence of PW-2 and PW-3 on the spot as
also with regard to the incident occurring
in the manner alleged.

Where
the
witnesses
are
apparently
inimical,
interested
and
are
chance
witnesses and their testimony fails to
inspire the confidence of the court, then it
is not safe to place reliance on the
testimony of such witnesses.
Evidence Law - Indian Evidence Act 1872-
Section 3 -Simple narration of assault by
rod and lathi-The fracture of right parietal
and frontal bone of the skull, sternum and
ribs of the deceased, as a result of
compression, find no explanation in the
ocular account-The doctors have accepted
that the nature of injuries found on the
deceased as well as the injured could be a
result of an accident.

Where the ocular account is untrustworthy and
the same is contradicted by the medical
evidence, then reliance may not be placed by
the court on the testimony of the prosecution
witnesses. (Para 18, 19, 22)

Criminal Appeal allowed. (E-3)

Judgements/ Case law relied upon:-

1. Lakshman Prasad Vs St. of Bih., 1981 (Supp)
SCC 22

(Delivered by Hon'ble Manoj Misra, J. &
Hon'ble Shamim Ahmed, J.)

1. This appeal has been preferred
against the judgment and order dated
14.03.1986 passed by the Special Sessions
Judge, Jaunpur in Sessions Trial No. 29 of
1982, convicting the appellants Ram Autar,
Ram Pal, Panna Lal and Ram Chandra alias
Bishun Chand under Sections 302/34 and
323/34 I.P.C. and sentencing them to
imprisonment for life under Section 302/34
I.P.C. and one year rigorous imprisonment
under Section 323/34 I.P.C. It be noted that
the appeal of appellant no.2 (Ram Pal),
consequent to his death, was abated vide
order dated 30.09.2019.

INTRODUCTORY FACTS

2. The prosecution case in brief, as
per the allegations in the written report
(FIR) (Ex. Ka-1), lodged by the Babu
Nandan (PW-1), brother of the deceased
4 All. Ram Autar & Ors. Vs. State of U.P.
535
Ram Harakh, is that the the accused Ram
Autar alias Bishun Dayal, Ram Pal, Panna
Lal and Ram Chandra, who are residents of
informant's village, are in litigation with the
informant
and,
therefore,
inimically
disposed. On account of this enmity, two
days prior to the incident i.e. 03.01.1980
informant's brother Ram Harakh (the
deceased) was assaulted with a Gandasi
resulting in an injury on his left arm which
had to be stitched and of which a case was
registered at Jafarabad. After narrating the
above background, it is alleged that on
05.01.1980
when
Ram
Harakh
(the
deceased) was with his son Banwari @
Gungey and had gone to fetch medicine
from Sadar Hospital, Jaunpur, at about 9.30
a.m., near Line Bazar, as soon as they
reached in front of the shop of a fodder
seller, from a truck (i.e. No. U.S.F.-904),
which was loaded with fodder, the accusedapellants and the truck cleaner, who can be
recognised if produced, alighted and
attacked the deceased and his son (nephew
of the informant), with iron rod and lathi.
As a result of that assault, both of them
received injuries. At the spot, informant's
brother Raja Ram (P.W.2) and Rajendra
(P.W.3), who were returning after selling
milk, were present and they witnessed the
incident. It is alleged that the deceased and
his son were taken to the Sadar Hospital,
Jaunpur by Raja Ram where he was
declared dead whereas his son (Banwari @
Gungey) was admitted in the hospital after
medical examination. The written report,
scribed by Ram Adhar (not examined), was
registered as an FIR at 11.00 a.m. on
05.01.1980 at Police Station Kotwali,
District Jaunpur, giving rise to Case Crime
No. 11/1980 of which Chik Report (Ex.
Ka-5) and G.D. Entry (Ex. Ka-6) was made
by Trilokinath Singh (not examined),
whose signatures were proved by PW-6.
Inquest was conducted at Sadar Hospital,
Jaunpur by about 3.30 p.m. of which
inquest report (Ex. Ka-9) was prepared.
After completing the investigation, chargesheet (Ex Ka 14) was submitted against
four accused, namely, the appellants herein.
After taking cognisance on the chargesheet, the matter was committed to the
court of session. On 13.09.1982, all the
four accused i.e. accused appellants were
charged with offences punishable under
Sections 302 /34 I.P.C. and 323 /34 I.P.C.
The accused pleaded not guilty and claimed
to be tried.

PROSECUTION EVIDENCE

3. During the course of trial, the
prosecution examined six witnesses, their
testimony, in brief, is as follows:-

4. PW-1- Babu Nandan (the informant).
He proved the enmity between the informant
and the accused party and claimed that he
received information about the incident when
he was near Line Bazar crossing. Upon receipt
of the information, he had arrived at the spot.
He noticed blood on the spot and there, he
came to know that people have taken Ram
Harakh (the deceased) to the hospital. After
receiving the said information, he and Bhaiya
Lal (not examined) reached the hospital. At the
hospital Buddhoo (not examined), Raja Ram
(PW-2) and Rajendra (PW-3) were there. Raja
Ram (PW-2) had requested him to lodge the
report. He stated that on the information
received from Raja Ram he got the report
scribed by Ram Adhar (not examined) at the
Hospital and, thereafter, he lodged the report.
He proved the written report, which was
exhibited as Ex. Ka-1. He stated that by the
time he reached the hospital, Ram Harakh had
died.

In his cross-examination, he stated
that his house is about half a Kos
536 INDIAN LAW REPORTS ALLAHABAD SERIES
(equivalent to one mile) towards south of
the spot. He stated that on that day he had
gone to Husainabad to select a cow. He
denied the suggestion that he got the
information at his house. He also denied
the suggestion that the deceased was not
killed by the accused, but they have been
falsely implicated. He also denied the
suggestion that the First Information Report
was lodged on the suggestion of the police
and was not dictated in the hospital. In his
cross-examination, he admitted that he was
employed in Deewani Kutchery but is not
working for the last two years.

5. PW-2 -Raja Ram. He described
the relationship between the accused
persons and the informant side by stating
that Jai Karan had three sons, namely,
Bharosh, Jivbodh and Panchoo. Bharosh
had four sons, namely, Babu Nandan
(informant), Ram Harakh (the deceased),
Raja Ram (PW-2) and Ballabh. Babu
Nandan had two sons, namely, Ram Raj
and Ram Aadhar. Ram Harakh (the
deceased) had three sons, namely, Bajrangi,
Radhe and Banwari @ Gungey (the
injured). Jivbodh had four sons, namely,
Ramnandan, Subhkaran, Shivnath and
Kishun. Accused persons, namely, Ram
Awtar @ Bishunpal, Ram Pal, Panna Lal
and Ram Chandra are sons of Shiv Nath.
After describing the spot as a busy place
with several shops, in respect of the
incident, PW-2 stated that on the date of
incident at about 9.30 a.m. while he was
returning from Olandganj, after selling
milk, along with Rajendra (PW-3), on
reaching near Ram Prasad's shop, they
noticed a truck parked there. He noticed
that Ram Harakh (the deceased) and his son
Gungey were travelling from Line Bazar
towards T.D. College to go to the hospital
for medicine. Then he noticed accused
Rampal, Panna Lal, Ram Chandra (PW-3)
and Ram Autar, who were sitting in that
truck alighting therefrom and assaulting
Ram Harakh and Gungey. Along with
them, truck cleaner was also there. Ram Pal
held an iron rod, whereas rest had lathi.
Ram Harakh was inflicted blow on the head
by Ram Pal with the aid of iron rod,
whereas the rest of the accused assaulted
Gungey with lathi. Upon suggestion by the
government counsel, PW-2 clarified that
first Ram Pal assaulted Ram Harakh with
iron rod, thereafter the rest of the accused
persons assaulted him with lathi. Gungey
was, however, assaulted by Ram Pal, Ram
Chandra and Ram Autar with lathi. On a
specific question as to whether any of the
accused were exhorting the other, PW-2
stated that Ram Pal exhorted by saying
"finish off the victims". He stated that at
the
time
when
the
appellants
were
assaulting he was at a distance of 10-15
paces from the spot and with him there
were Rajendra and Buddhoo, who also
witnessed the incident. He stated that as
they were terrified, they did not intervene.
He stated that Ram Harakh, after assault,
fell on the northern Patri (pavement) of the
road, where blood also fell. He stated that
after Ram Harakh fell, the accused escaped.
Thereafter, Ram Harakh and Gungey were
brought to the hospital by him on rickshaw.
The doctor, however, after examining Ram
Harakh, declared him dead. Gungey was
not only medically examined but also
admitted in the hospital. He stated that after
about half an hour Babu Nandan (the
informant) arrived at the hospital and then
he informed Babu Nandan about the
incident. In paragraph 9 of his statement he
stated that the accused and the informant
side were in litigation, both civil and
criminal, for last about a year and a half.
PW-2 stated that two days before the
incident, Ram Harakh was assaulted by
Ram Pal, Panna, Ram Chandra and
4 All. Ram Autar & Ors. Vs. State of U.P.
537
Shivnath, which caused him injury on his
left arm and that incident was also reported.
He stated that they had won the civil
proceedings in court.

In his cross-examination, he stated
that he has no knowledge about his brother
Ballabh being a witness of the inquest
proceeding. He was questioned with regard
to the route that he took but nothing much
could come out of it, though, he admitted
that in between the spot and the hospital, on
way, police chowki Olandganj falls. In
paragraph 20 of his statement, during
cross-examination, he stated that after half
an hour of their arrival at the hospital,
Ram Raj arrived at the hospital and by that
time, the doctor had already declared Ram
Harakh dead and had admitted Gungey in
the hospital. In paragraph 21 of his
statement, PW-2 stated that when they
returned back to the spot from the hospital,
then he noticed Ram Prasad, the Fodder
seller i.e. shop keeper, washing the spot
where blood had scattered. He stated that
the blood had scattered on the metalled
portion of the road, about 7-8 paces north
of the shop of Ram Prasad, and not on the
Patri.

In respect of the incident, during
cross-examination, PW-2 stated that all
five accused had assaulted Ram Harakh
and Banwari. First Ram Pal attacked Ram
Harakh with iron rod and when Ram
Harakh fell the rest assaulted him with
"danda". Immediately, thereafter, he stated
"fxjus ds ckn jkeiky us jkegj[k ds Åij dksbZ okj
ugha fd;k" After that he stated that the
accused started assaulting Gungey. He
stated that Ram Pal did not inflict any blow
on Gungey, but the rest of the accused
assaulted Gungey. He, thereafter, reiterated
that only four of the five accused had
assaulted Banwari @ Gungey. He stated
that each of the four accused inflicted one
or two lathi blows on Gungey and when
04-06 lathi blows were inflicted upon him,
he fell. In paragraph 25 of his statement
during cross-examination he stated that he
watched the entire incident from a distance
of about 50 paces and several people
including shop keepers over there also
witnessed the incident and at least 10-5
persons were standing there. He denied the
suggestion that no such incident, as alleged
by him, occurred. He also denied the
suggestion that the two victims were found
injured and upon receipt of information,
accused were falsely implicated on account
of enmity.

6. PW-3 Rajendra- He also stated
that while he was returning after selling
milk and Raja Ram was with him, near the
fodder seller shop, they noticed a truck
parked. The accused came from behind the
truck, and assaulted Ram Harakh and
Gungey while they were on their way. At
that time Ram Pal held an iron rod and the
rest had lathi. He stated that Ram Harakh
was assaulted by Ram Pal with the aid of
iron rod, whereas the remaining four
accused assaulted Gungey with lathi. He
stated that accused were shouting to finish
off Ram Harakh and despite intervention,
they did not listen. He stated that PW-2 and
he took Ram Harakh and Gungey to the
hospital, where Ram Harakh was declared
dead.

During cross-examination, he stated
that his sister Kamla is married to
Hanshraj. Hanshraj and Vanshraj are real
brothers. Vanshraj is married to informant's
daughter. In paragraph 13 he stated that
when he arrived at the spot already 50-60
people had gathered there. They were shop
keepers and passersby. He denied the
suggestion that the incident did not occur in
538 INDIAN LAW REPORTS ALLAHABAD SERIES
the manner alleged and that he is telling
lies because of his relationship.

7. PW-4 (Dr. Suresh Chandra
Srivastava) is the doctor, who conducted
autopsy. He stated that on 06.01.1980 at
about 10.30 a.m. the body of the deceased
was received. He conducted the autopsy of
the body. According to him death could
have occurred a day before and it was
possible that it could have occurred on or
about 9.30 a.m. on 05.01.1980. He proved
the injuries noticed and mentioned by him
in the Autopsy Report, which was exhibited
as Ex. Ka-2. The injuries noticed by him on
the body were stated to be as follows:

(i) lacerated wound 2.0 cm x 1.0 cm x
0.5cm, 3.0 cm above the left eye brow on
the head;

(ii) abrasion 1.5 cm x 1.5 cm on the
left knee;

(iii) abrasion 0.5 cm x 0.5 cm on right
ankle inner side;

(iv) abrasion 1 cm x 0.5 cm on left
scapula

(v) stitched wound 0.5 cm x 0.5 cm on
the outer aspect of left arm

In
respect
of
the
internal
examination PW-4 noticed-

Head- (i) clotted blood beneath the
skin of the head; (ii) fissured fracture
measuring 12.0 cm x 0.5 cm on right
parietal bone of skull; (iii) fissured fracture
on the right frontal bone of the skull
measuring 6.0 x 0.5 cm in a diagonal
direction with membranes congested; and
on the left side margin of brain there was
contusion measuring 4.0 cm x 4.0 cm

Chest- second to sixth ribs on left side
and second and third ribs right side from
front including sternum were fractured and
had punctured the heart.

In paragraph 3 of his statement PW-4
stated that death was due to haemorrhage
and injuries on the head and chest. He
stated that the ribs might have been
fractured on account of the external
pressure.

In respect of the injury no. 1, in
paragraph 4, he stated that this could be
caused by rod or lathi and on its own injury
no.1 as well as injury on the chest, were
sufficient to cause death. He accepted the
possibility of death having occurred at 9.30
a.m. on 05.01.1980.

During
cross-examination,
he
specifically stated that the abrasion found
on the body could be due to friction against
hard object but they could not be a
consequence of an impact of lathi or rod.
He stated that there was no corresponding
external injury to the internal injury
noticed on the chest. He stated that in
ordinary course, if a lathi blow had been
inflicted then external injury would have
been noticed. In respect of the injury no.1,
he accepted the possibility that it could be
a result of collision with a hard object and
could also be a result of an accident with a
truck. In paragraph 6, he stated that injury
nos. 1, 2, 4 and 5 were all on the left side
though injury no.3 was on the right side.
He stated that the compression injury
noticed could also be a result of being
crushed by a truck tyre. He also stated that,
if a truck tyre goes over the body, the ribs
can get fractured. In paragraph 7 he stated
that if a truck collides in slow speed and its
tyre hits the body then also ribs can get
fractured.

8. PW-5 Dr. K.N. Yadav. He stated
that on 05.01.1980, while he posted at
District Hospital, Jaunpur, at 10.30 a.m., he
examined Banwari @ Gungey for his
4 All. Ram Autar & Ors. Vs. State of U.P.
539
injuries, who was brought by his cousin
brother Ram Raj. He had noticed the
following
injuries
at
the
time
of
examination, namely:

i) lacerated wound 6.0 cm x 1.0 cm,
skin deep on left side of head, 10.0 cm
above left ear, which was bleeding and was
kept under observation with advice for Xray;

(ii) contusion 10.0 cm x 2.0 cm on
right side back, 5.0 cm below right scapula
(oblique red)

(iii) abrasion 2.0 cm x 1.0 cm on back
of left hand, 04 cm below to the wrist.
(oozing)

(iv) lacerated wound 3.5 cm x 1cm x
skin deep on front and inner aspect of left
leg, 7 cm above knee joint, bleeding and
paining.

He stated that all injuries, except
injury no.1, were simple. Injury no. 1 was
kept under observation and X-ray was
advised. He stated that all the injuries
noticed could have been caused by hard
and blunt object, such as lathi and were
fresh and could have been caused between
9.00 and 9.30 a.m. on 05.01.1980. The
injury report prepared by him, noticing the
above injuries, was exhibited as Ex. Ka-4.

In
his
cross-examination,
he
admitted the possibility of the injuries
noticed by him being caused on account of
a push from a truck. He accepted the
possibility of those injuries being sustained
between 5 and 6 a.m. of that day.

9.

PW-6
Hausla
BahadurInvestigating Officer of the case. He
proved the registration of the FIR by Head
Moharrir, Triloki Nath Singh as also the
G.D. entry thereof. He also proved the
various stages of the investigation. He
stated that at the spot he did not notice any
blood, as that was washed away; and that
aspect was therefore specifically mentioned
in the Site Plan (Ex. Ka-7), which he
prepared after inspection. He proved the
inquest proceedings as also the preparation
of Challan Nash, Photo Nash, letter to the
C.M.O. etc., prepared in connection with
autopsy. He stated that he had taken
custody of the truck in which the accused
were allegedly hiding and the custody was
given back to its owner of which Custody
Memo was prepared, which was exhibited
as Ex. Ka-13 on his statement. He proved
submission of charge-sheet under his
signature, which was exhibited as Ex. Ka14.

In his cross-examination, he stated
that he did not record the statement of Ram
Prasad in front of whose shop the incident
occurred. He stated that at the spot he could
not get a witness of the incident. He stated
that he had arrived at the spot with the
witnesses as well as the informant at about
11.00 a.m. and when he had arrived Ram
Prasad was washing off the blood spot. He
stated that the witness Raja Ram (PW-2)
did not accompany him to the spot and that
PW-6 could not gather any information
about the truck cleaner. He stated that he
made efforts to ascertain the identity of the
truck cleaner but did not get information
about him from the truck owner. He stated
that he did not notice any blood stains on
the truck. He denied the suggestion that an
accident from that truck has been given
colour of an offence of murder in collusion
with the informant and the witnesses.

10. The incriminating circumstances
appearing in the prosecution evidence were
put to the accused while recording their
statements under Section 313 Cr.P.C. They
denied their involvement in the crime and
540 INDIAN LAW REPORTS ALLAHABAD SERIES
claimed that they have been falsely
implicated on account of enmity and past
litigation. The accused, however, did not
examine any witness in defence.

TRIAL COURT FINDINGS

11. The trial Court accepted the
ocular account rendered by PW-2 and PW3 and, upon finding that there existed
strong enmity and underlying motive for
the crime, convicted the accused-appellants
for the offences specified above.

12.

We
have
heard
Sri
G.S.Chaturvedi, learned Senior Counsel
assisted by Sri Anurag Shukla for the
surviving appellants; Sri Ashok Kumar
Singh, Sri Prem Prakash Yadav and Sri
Kailash Nath for the informant; Sri Pankaj
Saxena and Sri J. K. Upadhyay, learned
A.G.A. for the State; and have perused the
record.

SUBMISSIONS ON BEHALF OF THE
APPELLANTS

13. Sri Chaturvedi, learned senior
counsel,
appearing
for
the
surviving
appellants, submitted that the autopsy
report of the deceased suggests that the
injuries were sustained in an accident. In
this regard, attention of the court was
invited to the autopsy report to highlight
that there was no underlying fracture
beneath the lacerated wound (injury no.1).
Rather, the fissured fracture was on the
right side parietal bone of the skull, which
means that when the body fell, head banged
on the hard surface, or may be compressed
by pressure of a tyre going over, the
parietal bone got fissured. Had there been a
blow on the head with an iron rod as
alleged, then the underlying bone would
have been fractured but here the fracture is
on the other side. He also pointed out that
all the injuries except injury no.3 were on
the left side whereas the injury no.3 is on
right ankle, which is suggestive of the fact
that the body collided from the left side and
fell on the right side, injuring the knee and
banging the head on the floor or hard
surface, resulting in fissured fracture on the
right parietal bone and when the tyre went
over or pressed the body by compression
the ribs got fractured. He submitted that the
ocular account does not describe infliction
of any such blows, which may result in
fracture of the ribs as well as sternum and
puncturing of the heart by those fractured
ribs. Notably, there is no ocular account of
any person sitting over, or pressing, the
deceased. Rather, the ocular account is in
respect of infliction of blow with an iron
road on head by Ram Pal and lathi blows
by others but the doctor had specifically
stated that if there had been a lathi blow, it
would have left an external injury mark,
which was conspicuous by its absence
despite there being an underlying fracture
of the ribs and the sternum. This is
suggestive of the fact that the internal chest
injury
was
caused
on
account
of
compression, either on account of the tyre
crushing the body or some heavy weight
falling over the body, but as this is not
there in the ocular account, and the ocular
account does not at all explain these
injuries, the ocular account is unworthy of
acceptance. He further pointed out that both
PW-2 and PW-3 are chance witnesses. The
incident took place on the road side, which
was a busy road and, admittedly, a large
number of people had collected there, as is
clear from the statement of PW-3 therefore,
it is unbelievable that the accused would
assault a person in front of the public. More
over, the presence of PW-2 and PW-3 is
falsified from the circumstance that the
injured Gungey was brought to the hospital
4 All. Ram Autar & Ors. Vs. State of U.P.
541
not by PW-2 or PW-3, as stated by them,
but by Ram Raj, as per the statement of
PW-5, which is corroborated by the injury
report (Ex. Ka-4). It has been submitted
that admittedly the informant's side and the
accused side were embroiled in litigation,
both civil and criminal, they had thus
strong reason to falsely implicate and,
therefore, it appears to be a case where an
accident has been taken as an opportunity
to settle a score by falsely implicating the
accused-appellants.

14. Sri Chaturvedi also submitted that
in so far as the charge of an offence
punishable under Section 302 read with 34
I.P.C. is concerned, that is not made out
against the surviving appellants Ram Autar,
Panna Lal and Ram Chandra alias Bishun
Chand, inasmuch as, the allegation in the
ocular account is of infliction of iron rod
blow on the head of the deceased by Ram
Pal (the appellant, who died during the
pendency of appeal) whereas there is no
specific allegation that the deceased was
assaulted
by
the
surviving
accusedappellants. Even assuming that at one place
infliction of lathi blows on the deceased is
alleged but no corresponding external
injury has been noticed. The abrasions
noticed by the autopsy doctor, from the
testimony of PW-4, are ruled out to be an
outcome of lathi blows. It has thus been
submitted that the appellants 1, 3 and 4
have not caused any injury to the deceased
hence their conviction under Section 302
I.P.C. with the aid of Section 34 I.P.C. is
not at all justified.

15. Lastly, it was contended that it is a
case where no independent witness has
been examined, despite the fact that it was
a road side occurrence, in front of a shop
and the shop keeper Ram Prasad was very
much available, but, even during the course
of investigation, his statement was not
recorded by the Investigating Officer
therefore the prosecution has suppressed
best evidence, as a result whereof, an
adverse inference be drawn against the
prosecution. In this regard it was submitted
that even though Banwari @ Gungey might
be dumb and deaf but he could have been
examined with the aid of sign language
interpreter as is permissible under Section
119 of the Evidence Act and, therefore,
non-examination of Gungey is also a
reason to draw an adverse inference against
the prosecution.

SUBMISSIONS ON BEHALF OF
THE
STATE
AND
OPPOSITE
PARTIES

16. Per contra, the learned counsel for
the State as well as the informant submitted
that this is a case where a prompt FIR was
lodged. It is a day light occurrence. There
is no suggestion to the eye-witnesses to
dispute the spot and, therefore, washing off
the blood spot, would not make a
difference. Assuming that the witnesses
were interested, it is not the law that an
interested witness testimony cannot be
accepted,
particularly,
when
it
is
corroborated by medical evidence on
material aspects. It has been submitted that
the injury sustained by Banwari @ Gungey
appeared to be on account of an assault on
him by lathis and those injuries cannot be a
result of an accident. Further, it cannot be a
mere coincidence that the deceased as well
as the injured suffered injuries on or about
the same time and, therefore, it can be
assumed that the incident occurred in the
manner alleged. Non-examination of the
independent
witnesses
and
nonexamination of a deaf and dumb injured
witness would not be fatal to the
prosecution case in the given facts of the
542 INDIAN LAW REPORTS ALLAHABAD SERIES
case. It has also been submitted that the
medical
opinion
expresses
only
a
possibility, but where the ocular account is
clear and cogent, unless it is totally ruled
out by the medical opinion, the ocular
account is to be accepted and cannot be
rejected only because the possibility of
injury occurring in some other manner than
suggested by the ocular account is there. It
has been submitted that since the ocular
account is largely corroborated and not
ruled out by the medical evidence and there
is a prompt First Information Report, the
conviction recorded by the trial court does
not call for interference.

17. In respect of the surviving
accused-appellants not sharing common
intention with Ram Pal, learned A.G.A.
submitted that lathi blows are alleged to
have been inflicted upon the deceased by
other remaining accused, therefore, it can
be accepted that all had participated with
common intention to finish off the
deceased.

ANALYSIS

18. Having considered the rival
submissions
and
having
noticed
the
prosecution evidence, before we proceed to
test the testimony of the eyewitnesses PW2 and PW-3, we may put on record that it is
clear from the evidence brought on record
that the informant's side and the accused
side were inimical to each other and were
embroiled in litigation, both civil and
criminal, for long. PW-2 is the brother of
the deceased as well as of the informant
and PW-3 is also related to the victim
family as could be noticed from his
testimony. It is, therefore, a case where the
ocular account is flowing from interested
witnesses. We notice from paragraph 7 of
PW-1's deposition that he had worked in
the Kutchery. In these circumstances, it is
probable that he would be aware of the
nuances of litigation and might not like to
miss an opportunity to out manoeuvre the
other side. In Lakshman Prasad V. State
of Bihar, 1981 (Supp) SCC 22, in
paragraph 3, the Supreme Court had
observed
that
mere
congruity
and
consistency are not the sole test of truth. It
was
observed
that
sometimes
even
falsehood is given an adroit appearance of
truth, so that truth disappears and
falsehood comes on the surface. Thus,
keeping in mind that the prosecution
version is flowing from highly inimical and
interested witnesses, we would have to be
circumspect in accepting the ocular account
without putting it to stringent tests.

19. What we notice here is that the
ocular account not only flows from
interested witnesses but the two witnesses
who have stood up to support the
prosecution case are chance witnesses.
Notably, the informant (PW-1) is not the
eye witness of the incident. PW-2 and PW3, the alleged eyewitnesses, according to
them, had gone to sell milk and were
returning after having sold the milk, when,
on way return, they witnessed the incident
on a busy public street with shops around.
According to their ocular account, they
witnessed the incident from a short distance
across the road. They also stated that there
were several persons in the area, when they
arrived. Yet, they do not make an attempt
to save the victim or to intervene even
though it is not the prosecution case that
the accused were armed with deadly
weapons such as cutting instruments or
firearms. From PW-3's testimony it appears
50-60 people had collected there when he
arrived. With 50-60 men around and there
being just four or five assailants with hard
blunt objects, easily people could have
4 All. Ram Autar & Ors. Vs. State of U.P.
543
intervened and stopped the occurrence. But,
here, there is no statement of any of the
witnesses in respect of any effort in that
regard. In a night occurrence, on a secluded
street, non interference by bystanders may
not raise a doubt. But here the incident is in
broad day light on a busy street and in the
presence of shop keepers as well as
passersby yet, there is no effort to
intervene. This raises a serious doubt with
regard to the presence of PW-2 and PW-3
on the spot as also with regard to the
incident occurring in the manner alleged.

20. Our doubt noticed above gets
amplifies from the following circumstance
- PW-2 states that Gungey was taken to
hospital by him whereas, Ram Raj (not
examined) arrived at the hospital about
fifteen minutes to half an hour later, after
Gungey had been admitted in the hospital.
But, when we see the record (Ex. Ka-4) and
notice the statement of PW-5, we find that
Gungey was brought to the hospital by
Ram Raj (i.e. son of the informant who has
not been examined). PW-1 says that he
rushed to the spot on receiving information.
But
how
and
from
whom he
got
information PW-1 does not disclose. This
clearly suggests that informant got the
information ahead of PW-2 and PW-3
about the incident and, on receipt of
information, the informant rushed to the
spot and his son Ram Raj took the injured
to the hospital and admitted him there.
Notably, Ram Raj has not been examined
by the prosecution. Had Ram Raj been
examined, he could have cleared our doubts
as to in what circumstances could he
accompany the injured to the hospital.
Name of Ram Raj in medical paper, on its
own, might not be of significance as, out of
many present there, the doctor while
admitting the patient may record the name
of any one of them in the admission
register. But, here, PW-2 states that Ram
Raj arrived 15 minutes to half an hour after
Gungey was admitted. This circumstance
definitely dents the credibility of PW-2's
deposition that he was present at the spot
and had rushed the injured and the
deceased to the hospital. As PW-2 and PW3 were allegedly together, credibility of
PW-3's statement gets equally dented more
so, because, during cross-examination, he
stated that when he reached the spot
already 50-60 persons had gathered, which
suggests that the incident had already
occurred.

21. Another aspect of the case is that
the shop keeper Ram Prasad, in front of
whose shop the incident occurred, has not
been examined. Another striking feature of
the case is that the Investigating Officer
(PW-6) noticed the shop keeper washing
off the blood stains from in front of his
shop, but he took no steps to stop that and
to collect the blood to confirm the spot.
When we notice the site plan (Ex. Ka-7),
spot A is the place where the deceased was
assaulted and where the blood was washed
off by Ram Prasad. Noticeably, spot A is
located across the road/ street, if one views
it from the shop of Ram Prasad. No doubt,
the Truck is allegedly shown parked in
front of the shop of Ram Prasad at point X
but since spot A is across the road, why
would Ram Prasad wash off the blood-stain
there. All of this creates a serious doubt
with regard to the spot where the deceased
was allegedly assaulted, that is, whether it
was on Patri of the road or in the middle of
the road. Notably, the Investigating Officer
did not record the statement of Ram Prasad
to verify whether the allegations made
before
him
were
truthful.
Another
important feature in this regard is that as
per the Site Plan (Ex. Ka-7) the blood was
washed off from the Patri whereas in the
544 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of PW-2 it has come that the
blood was not on the Patri but on the
metalled surface of the road 7-8 paces in
front of the shop of Ram Prasad. All of this
raises a strong suspicion that the incident
occurred in the middle of the road and
might be a case of a road accident which
has been deftly given the colour of a
heinous crime. In ordinary circumstances
such a doubt may not arise but here the
parties had been litigating with each other
for few years and, therefore, well versed
with nuances of law and well equipped to
grab an opportunity of the kind offered by
the incident to out manoeuvre their
opponent.

22. When we notice the autopsy
report, we find that there is no underlying
fracture to the injury no.1. The fissured
fracture noticed by the autopsy surgeon is
on the right side parietal bone of the skull
and on the right side of the frontal bone of
the skull, whereas the lacerated wound is
found on the left side which suggests that
the fracture was caused not on account of
infliction of iron rod blow, but on account
of falling on the hard surface, after being
hit on the left side of the head. Another
important aspect noticeable in the autopsy
report as well as in the testimony of the
autopsy surgeon (PW-4) is that fracture of
the ribs and sternum had no corresponding
external injury. A specific suggestion was
put to the doctor in respect of such injury
being caused by a lathi blow to which he
responded by saying that if it had been so,
it would have left an external injury mark.
PW-4, rather, accepted the possibility of
that kind of injury as a consequence of
compression. But the ocular account of
PW-2
and
PW-3
details
no
such
circumstance on the basis of which we may
be in a position to infer that, that kind of
compression was a result of any specified
overt act of the accused. Notably, it is not
the case of the prosecution that the accused
were kicking the deceased or were sitting
over him, or pressing him. It is a simple
narration of assault by rod and lathi. In fact,
at one place, the witness stated that there
was solitary assault by iron rod on the head
though, later, it was added that lathi blows
were also inflicted. But at no stage there is
an allegation of pressing the deceased or
kicking him or beating him with fists or of
sitting over him. In these circumstances,
the fracture of right parietal and frontal
bone of the skull, sternum and ribs of the
deceased, as a result of compression, find
no explanation in the ocular account
thereby making our suspicion stronger that
those injuries were a consequence of an
accident. Admittedly, there was a truck
parked on the spot. The ownership of that
truck has not come out in the prosecution
evidence, though it has come in the
statement of the Investigating Officer that
that truck was seized and custody of that
truck was passed on to its owner. This
means that there was an involvement of a
truck. PW-2 states that the accused were
sitting on the truck and they alighted from
that truck to launch an assault. PW-3 states
that the accused came out from behind the
truck. Both state that the truck was parked
in front of the shop of Ram Prasad. Ram
Prasad has not been examined. The cleaner,
who also allegedly participated, has not
been identified. Notably, it is not the
prosecution case that the accused were
lying in ambush to launch an assault on the
victims as that spot was frequently visited
by the victims at a specified time. For all
the reasons detailed above, we do not find
conviction in the prosecution story and the
testimony of the eyewitnesses does not
inspire our confidence. There appears a
cloak
of
suspicion
shrouding
the
prosecution case giving us a strong feeling
4 All. Arun Chand Vs. State of U.P.
545
that the informant party has grabbed the
opportunity of an occurrence, perhaps an
accident, to spin a story against its rivals.
More so, because both PW-4 and PW-5 i.e.
the doctors have accepted that the nature of
injuries found on the deceased as well as
the injured Gungey could be a result of an
accident. Our doubts could have been
dispelled by independent witnesses had
they been examined by the prosecution,
particularly because the incident occurred
on a busy public street and in the presence
of 50 odd bystanders including shop
keepers who had their shops there, but,
unfortunately,
the
shop
keeper
who
allegedly washed off the blood from the
spot was not even interrogated. Not only
that, even the spot of occurrence could not
be confirmed by lifting of blood-stained
earth therefrom. Once that is the position,
and the prosecution case flows from highly
interested witnesses, who are witnesses by
chance, and their presence at the spot is not
confirmed by medical paper of the injured,
which shows that the injured was brought
by some other person to the hospital, we
have no hesitation to extend the benefit of
doubt to the accused-appellants.

23. As we have already doubted the
ocular account of PW-2 and PW-3, we do not
propose to examine the alternative argument
on behalf of the surviving appellants that in
the facts of the case they could not have been
fastened liability for the charge of murder
with the aid of section 34 IPC.

24. For the reasons above, the appeal is
allowed. The judgment and order of
conviction and sentence recorded by the trial
court qua the surviving appellants, namely,
appellants 1 (Ram Autar), 3 (Panna Lal) and
4 (Ram Chandra @ Bishun Chand, is set
aside.