# Ram Briksh v. State Of U.P

- **Citation:** (2016) 5 ILRA 1103
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-20
- **Bench:** Shashi Kant Gupta, Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-briksh-v-state-of-u-p-43736
- **Pages:** 18

## Headnote

A.G.A

Criminal trial - Conviction - Sole eyewitness - Credibility - Effect of material contradictions
and non-examination of independent witnesses.
Where the prosecution case rests mainly on the testimony of a solitary eyewitness whose presence at the
place of occurrence is doubtful and whose statements suffer from material contradictions touching the genesis
of the occurrence, manner of assault and his conduct before and after the incident, such evidence cannot be
held to be wholly reliable. Non-examination of natural and independent witnesses named in the first
information report, coupled with unexplained delay and suspicious circumstances attending the lodging of the
FIR, creates serious doubt about the prosecution version.

Criminal law - Ocular evidence and medical evidence - Inconsistency - Absence of motive and
corroboration.

When the medical evidence regarding the nature of injuries, absence of blackening or charring and the
probable time of death does not lend support to the prosecution story of close-range firing in broad daylight,
the ocular evidence loses its evidentiary value. In a case resting on such infirm evidence, absence of proof of
motive, non-recovery of the alleged weapon of offence and lack of forensic corroboration further weaken the
prosecution case and entitle the accused to benefit of doubt.

Criminal appeal - Appeal against acquittal - Scope of interference.

In an appeal against acquittal, if the view taken by the trial court is a possible and reasonable view based on
proper appreciation of evidence, the appellate court should not interfere merely because another view is
possible. Unless the findings recorded by the trial court are shown to be perverse, manifestly illegal or based
on misreading of evidence, the judgment of acquittal does not call for interference.
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
IN RESULT- Conviction under Section 302 IPC cannot be sustained where the prosecution story is
unnatural, unsupported by motive, inconsistent with medical evidence, and based on unreliable eyewitness
testimony.

Appeal Allowed.

List of Cases cited:

M.S. Narayana Menon @ Mani v. State of Kerala and another, (2006) 6 SCC 39.
Chandrappa v. State of Karnataka, (2007) 4 SCC 415.
State of Goa v. Sanjay Thakran and another, (2007) 3 SCC 755.
State of Uttar Pradesh v. Ram Veer Singh and others, AIR 2007 SCW 5553.
Girja Prasad (Dead) by L.Rs. v. State of Madhya Pradesh, AIR 2007 SCW 5589.
Luna Ram v. Bhupat Singh and others, (2009) 3 SCC 749.
Mookkiah and another v. State, represented by the Inspector of Police, Tamil Nadu, AIR 2013 SC

## Text

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5 All. Ram Briksh Vs State Of U.P.

1103
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.05.2016

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE KAUSHAL JAYENDRA THAKER, J.

Criminal Appeal No.- 1319 Of 1981
&
Government Appeal No.- 1916 Of 1981

Ram Briksh ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
P.P. Srivastava

Counsel for the Respondent:
A.G.A

Criminal trial - Conviction - Sole eyewitness - Credibility - Effect of material contradictions
and non-examination of independent witnesses.
Where the prosecution case rests mainly on the testimony of a solitary eyewitness whose presence at the
place of occurrence is doubtful and whose statements suffer from material contradictions touching the genesis
of the occurrence, manner of assault and his conduct before and after the incident, such evidence cannot be
held to be wholly reliable. Non-examination of natural and independent witnesses named in the first
information report, coupled with unexplained delay and suspicious circumstances attending the lodging of the
FIR, creates serious doubt about the prosecution version.

Criminal law - Ocular evidence and medical evidence - Inconsistency - Absence of motive and
corroboration.

When the medical evidence regarding the nature of injuries, absence of blackening or charring and the
probable time of death does not lend support to the prosecution story of close-range firing in broad daylight,
the ocular evidence loses its evidentiary value. In a case resting on such infirm evidence, absence of proof of
motive, non-recovery of the alleged weapon of offence and lack of forensic corroboration further weaken the
prosecution case and entitle the accused to benefit of doubt.

Criminal appeal - Appeal against acquittal - Scope of interference.

In an appeal against acquittal, if the view taken by the trial court is a possible and reasonable view based on
proper appreciation of evidence, the appellate court should not interfere merely because another view is
possible. Unless the findings recorded by the trial court are shown to be perverse, manifestly illegal or based
on misreading of evidence, the judgment of acquittal does not call for interference.
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
IN RESULT- Conviction under Section 302 IPC cannot be sustained where the prosecution story is
unnatural, unsupported by motive, inconsistent with medical evidence, and based on unreliable eyewitness
testimony.

Appeal Allowed.

List of Cases cited:

M.S. Narayana Menon @ Mani v. State of Kerala and another, (2006) 6 SCC 39.
Chandrappa v. State of Karnataka, (2007) 4 SCC 415.
State of Goa v. Sanjay Thakran and another, (2007) 3 SCC 755.
State of Uttar Pradesh v. Ram Veer Singh and others, AIR 2007 SCW 5553.
Girja Prasad (Dead) by L.Rs. v. State of Madhya Pradesh, AIR 2007 SCW 5589.
Luna Ram v. Bhupat Singh and others, (2009) 3 SCC 749.
Mookkiah and another v. State, represented by the Inspector of Police, Tamil Nadu, AIR 2013 SC
321.

(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. These two appeals have been preferred against the judgement and order dated 26.5.1981
passed by Sri T. N.Saxena, II Addl. Sessions Judge, Gorakhpur in S.T. No. 112 of 1980, whereby
the accused appellant Ram Briksha, who has filed the present Criminal appeal (No.1319 of 1981,
Ram Briksha Vs.State), was convicted under section 302 I.P.C. and the other two accused
appellants namely, Ram Sewak and Bideshi were acquitted of the charges under sections 302/34
I.P.C. against whom, the present Govt Appeal No. 1916 of 1981, State Vs. Ram Sewak and another
has been filed by the State Government .

2. The present appeals were filed in the year 1981 against the impugned judgement
dated 26.5.1981 and it has come up for hearing before us after the lapse of a period of about
35 years.

3. Since during the pendency of the present Govt. Appeal , the accused opposite party no. 1
Ram Sewak died, the Govt. Appeal No.1916 of 1981 stood dismissed as abated against him.

4. Both the appeals have been filed against a common judgement and order passed by the
trial court and the facts and evidence in both the appeals are the same, hence they are being
disposed of by a common judgement.

5. The prosecution case in a nut shell as unfolded by a perusal of the record is that the
accused Ram Briksha and Ram Sewak as well as the complainant Mangroo were all residents of
village Chakla Awwal within the police circle of Police Station Rajgaht, District Gorakhpur. In
terms of the F.I.R., the accused Bideshi was the resident of Mohalla Basantpur, City Gorakhpur.
Deceased Shyama was the son of the complainant Mangroo. On 20.10.1979 at about 12 O'clock, in
the noon, all the three accused came to the house of the complainant and asked the deceased
Shyama to accompany them for a stroll upto Kharwania. Whereafter, all four proceeded to
5 All. Ram Briksh Vs State Of U.P.

1105
Kharwania and returned at about 2.00 p.m. When they were close to the house of the complainant,
the accused Bideshi and Ram Sewak allegedly caught hold of Shyama and the accused Ram
Briksha fired with his 'Katta' at Shyama causing injuries on the chest. As a result of which, Shyam
fell on the ground. The complainant Mangru raised an alarm. On hearing cries, the alleged
witnesses, namely, Ram Prasad, Bhagirathi,Gablu, the complainant's daughter Shanti and others
arrived at the spot. These witnesses also saw the occurrence. They tried to catch hold of the
accused, but the accused managed to run away towards the north. While the complainant Mangru
was taking his injured son Shyama on a cot to the hospital, Shyama succumbed to the injuries. The
complainant then placed the dead body of Shyama near the Gumti of Prahlad. He got scribed a
written F.I.R. ( Ext.Ka-1) and lodged it at the police station Rajghat on the same date at 15.15
hours. The distance of the police station Rajghat from the place of occurrence was 4 kms. Head
Moharrir Chhedi Prasad Upadhya prepared the chick report Ext. Ka- 4 and entered the case in G.D.
No. 22 dated 20.10.1979 (Ext. Ka 5).

6. The investigating Officer Sri Rameshwar Singh, S.I. P.S. Rajghat was entrusted with the
investigation of the case . He proceeded to the place of occurrence. When he reached near the shop
of Prahlad, he found the dead body of Shyama on a cot. The complainant and the witnesses were
also present there. He prepared the inquest report Ext. Ka 8. The inquest proceedings started at
16.00 hours and ended at 17.30 hours. He also prepared a Challan Nash Ext. Ka 9 and Photo Nash
Ext. Ka 10. The dead body in a sealed condition was handed over to constables Prakash Chandra
Srivastava and Moharrir Ishhaq for being taken to mortuary. He also handed over a letter in printed
form Ext. Ka 11 and a report (Ext. Ka- 12 requesting for the post-mortem examination.

7. The Investigating Officer then proceeded to the place of occurrence in village Chakla
Anwal. He recorded the statements of the complainant Mangru, Ram Prasad, Bhagirathi, Gabbu,
Smt. Shanti and other witnesses on the same date 20.10.1979. He prepared a site-plan Ext. Ka 14
on the same date, showing the Jhopri of the complainant and the place of occurrence. He also took
into possession blood-stained and plain earth in the presence of witnesses and prepared a recovery
memo (Ext. Ka 15). They were kept separately in sealed containers.

8. Dr.N.S. Shukla, Medical Officer, District Hospital, Gorakhpur, conducted the postmortem examination on 21.10.1979 at 11.30 a.m. The age of the deceased was about 35 years.
Rigor mortis was present on both the limbs. He found only one injury, namely, a gun shot wound 1
1/2"x 1 1/2 "x body cavity deep on the lower end in front of neck in suprasternal notch. Fracture
was found on both the medial end of clavicle with hematoma. On the internal examination, it was
found that the trachea was punctured with wound through and through. The large blood vessels
were found ruptured above the heart. He also found wadding pieces alongwith numerous pellets
around the wound. In the stomach semi digested food i.e. rice and pulse were also found. The small
intestine was full while the large intestine was empty. In the opinion of the Medical Officer, the
duration of death found by the Doctor was about half day and that the death was caused due to
shock and hemorrhage.
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Thereafter, the aforesaid Investigating Officer was transferred and the investigation was
taken up by Sri Jagdish Misra, S.I. He started the investigation from 31.12.1979. After completing
the investigation, the Investigating Officer submitted the charge-sheet against the accused persons.

10. A charge under section 302 I.P.C. read with section 34 I.P.C. was framed in the Court
of Sessions against the accused Ram Sewak and Bideshi. As against the accused Ram Briksha, the
simpliciter charge under section 302 I.P.C. was framed in the Court of Sessions.

11. The prosecution examined Mangru complainant, P.W. 1, Gabbu an eyewitness, P.W. 2
Constable Prakash Chandra, P.W. 3, I.O. Sri Jagdish Misra, P.W. 4 Head Moharrir Chhedi Prasad
Upadhya, P.W. 5, Dr. N.S. Shukla, P.W. 6, Head Constable Durga Prasad of Police Lines,
Gorakhpur, P.W. 7 and other other Investigating Officer Sri Rameshwar Singh, P.W. 8.

12. The accused Ram Briksha, while giving his statement under section 313 Cr.P.C. in the
Court of Sessions, denied the entire prosecution case and stated that he has been falsely implicated
on account of his enmity with the police. The accused Ram Sewak also denied the entire evidence
and pleaded that he was also implicated on account of enmity with the police. He further stated that
P.W. 2 Gabbu is the Samdhi of the complainant.The accused Bideshi also gave a similar version as
stated by other accused. He further stated that since he left cleansing utensils of Darogha Ji, the
latter became angry. The accused persons had produced one witness in his defence, namely, Ram
Prasad D.W. 1.

13. P.W.1, Mangru in his testimony has stated that th e deceased and the accused persons
were friends and on the fateful day the accused persons came to his home at around 12 O' clock in
the noon and took his son along with them on a stroll to Khirwaniya which was around 3 Km. away
from his house. All the aforesaid three accused persons along with the deceased returned at 2.00
P.M. When they were passing through the house of the deceased, accused Videshi and Ram Sewak
caught hold of the hands of the deceased and Ram Briksha shot at his chest, as a result of which, he
fell down. On hearing his cries, witnesses Gabbu,Bhagirathi and Prasad also arrived at the spot
after which, accused persons fled away. While the complainant and others were taking his son on
the cot to the hospital, by the time they reached the pucca road,his son, succumbed to injuries. He
dictated the F.I.R. to one Lakshman and took the dead body near the shop of one Prahlad. He
further stated that he along with Shyam Sundar went to the police station for lodging F.I.R.;at the
time of occurrence he was sitting in his house;he first sighted the accused persons when they were
catching hold of his son and a shot was fired from a point blank range. Both the accused Ram
Sewak and Videshi were catching hold of his son when the shot was fired at him. On witnessing the
incident, P.W. 1 tried to chase them. He ran from his house and the rest of the people ran from the
orchard. Thereafter, he deposed that at first sight he saw the accused persons at a distance of 10
paces from the spot running away from the place of occurrence.They tried to chase the accused
persons but they managed to escape. His son died near the shop of Prahlad. He stayed there for
about half an hour. The dead body of the deceased was taken away by the police for post mortem in
the late hours of the day. However, the sun had not set till then. He did not accompany the dead
body but he went to lodge the report. According to him, the distance between the place of
5 All. Ram Briksh Vs State Of U.P.

1107
occurrence and shop of Prahlad was one mile and denied the suggestion that the F.I.R. had been
lodged after consultation or it was ante timed. The dead body of the deceased was taken to the
mortuary by rickshaw.

14. P.W. 2, Gabbu in his testimony has also supported the prosecution story. He has
deposed that he has a house inside the orchard owned by Jagdish who is the son of his brother in
law. Inside the said orchard he was given an accommodation for residence by its owner Jagdish as
such he was living inside the orchard for the last 16 years. He has admitted that neither he had any
agricultural land nor any orchard in the village. He has also admitted that he is a permanent resident
of village Chakla Abbal Tenuari, District Gorakhpur. Documentary evidence has been filed by the
defence side to show that he owned agricultural land in village Tenuari, District Gorakhpur of
which he was a permanent resident.

15. He further deposed that the occurrence took place at the eastern part of the guava
orchard owned by Jagdish. The mango orchard where the occurrence took place extends upto 3
kms. and it extends upto river on the eastern side. When he heard the hue and cry, he ran towards
the place of occurrence shouting " Pakro-Pakro" and the accused persons were running towards
the north. They tried to chase the appellants but they managed to escape. He further deposed that
the dead body of Shyama remained lying at the shop of Prahlad upto 6 O' clock in the evening and
thereafter the dead body was taken by rickshaw to the mortuary.

16. P.W. 3, Prakash Chandra Srivastava, who was posted as a constable at the time of
incident at police station Rajghat, has deposed that he had taken the dead body to the mortuary by
rickshaw and has categorically stated that he reached the mortuary within an hour from the place
where the dead body was handed over to him i.e. the shop of Prahlad.

17. P.W. 4, Jagdish Misra, who was posted as S.S.I. At the police station Rajghat at the
relevant time, deposed that after transfer of erstwhile I.O. Mr. Rameshwar Singh, S.I., he started the
investigation and recorded the statement of accused Ramsewak. After completing the remaining
investigation, he submitted the charge sheet against the accused persons Ext. Ka-3. He further
admitted that he had not gone to the place of occurrence to verify the site plan.

18. P.W. 5, Chhedi Prasad Upadhyay, who was posted as Head Moharrir at the police
station Rajghat,deposed that he had prepared the chik report ( Ext Ka-4) and on its basis an entry
was made in the G.D. (ext Ka-5).

19. P.W.6, Dr.N.S.Shukla, Medical Officer , Sadar Hospital , Gorakhpur had conducted
the post mortem of the deceased. We have already discussed about his testimony in the earlier part
of this judgement, hence it need not be repeated in detail. However, it may be noted that the time of
death has been stated to be about a half day at the time of the post mortem examination. According
to him, the death could have occurred at around 9 O' clock of the previous night. Rigor Mortis was
present in the upper limb and lower limb of the deceased. Neither in the post mortem report nor in
the deposition of the Doctor, blackening or charring was reported around the firearm wounds.
1108 INDIAN LAW REPORTS ALLAHABAD SERIES

20. P.W. 7, Durga Prasad, who was then posted as head constable at the concerned police
lines, deposed that the entry with regard to receipt of the dead body of Shyama was made by him in
Rapat No. 52 of the G.D. At 21.30 in his own hand writing Ext. Ka-7. He further denied the
suggestion that the general diary was lying blank till morning and the said entry in the G.D. was
ante timed.

21. Lastly, the P.W. 8, Rajeshwar Singh ,who was posted as S. I. at the police station,
deposed that the place of occurrence was near the hut of the informant Magru which was
surrounded by the guava trees.The said orchard extended to few miles in length and was situated in
a remote area. He further deposed that he prepared the site plan of the incident. (Ext Ka-14) and
collected blood stains from the spot which were sealed. He further recollected that the witness
Gabbu had stated in his statement, recorded under section 161 Cr.P.C.; that he, after hearing the
shout of Mangaroo, also tried to chase the assailants. The witness admitted that that he has not
shown/mentioned the house of Gabbu in the site plan. He further deposed that at around 5.30 P.M.
He had handed over the dead body to the constable Prakash Chandra and Mohd Ishaq and after
completing the proceedings of Panchayatnama, he had left the place and does not know by which
mode the constables took the dead body to the mortuary; Rickshaws were available at the T-point (
Tiraha) 300 paces away from the place where the inquest memo was prepared.

22. From the defence side one Ram Prasad was produced who gave altogether a different
version than what had been alleged by prosecution. According to him, incident occurred on the
Diwali day. On that day, he had met the deceased in the orchard, late evening and they both
decided to go out to watch fire works on Diwali. Thereafter, both of them went to Urad Bazar to
enjoy the festivities and after an hour, they started back for home. The DW 1 was walking behind
the deceased Shyama and all of a sudden he heard the sound of firing causing injuries to Shyama,
who fell down on the ground and before he could get his bearings, the assailant fled away. Since it
was dark, he could not identify the assailants. He immediately rushed to the house of the informant
and informed him about the incident and thereafter Mangru and 2-4 others reached the spot and
took the injured to the road in front of the shop of Prahlad. In the meantime, he succumbed to his
injury. Thereafter Shyam Sundar went to the police station for giving information to the police.
One police constable came to the shop of Prahlad and stayed there throughout the night. During the
early hours of the next day, the Sub Inspector arrived there and the dead body after being sealed
was sent to the mortuary. The incident had occurred between 8.30 and 8.45 P.M. The place where
deceased was shot was around 1 Km. From his house.

23. Learned counsel appearing on behalf of the accused persons castigated the impugned
judgement and order and submitted that the F.I.R. is ante timed and was prepared after consultation
with the police. He further submitted that the prosecution story is inconsistent with the medical
evidence. Learned counsel for the appellant submitted that no motive for committing the murder of
Shyama has been assigned to the accused persons rather the P.W. 1 (father of the deceased) has
very categorically stated in para 9 of his statement that " ..Kabhi Larai Jhagra in Sabon Se wa
Mere Larke Men Nahi Tha". Thus, the testimonies of the complainant Mangru, P.W. 1 or any
5 All. Ram Briksh Vs State Of U.P.

1109
other witness does not reveal that there was enmity between the deceased and the accused persons
in as much as there has not been any suggestion in this regard in any of their testimonies.

24. It was further submitted that though the investigating officer is alleged to have
collected the blood stained earth from the place of the incident but there is no forensic report on
record to prove that the sample of the said blood stained earth related to a human being. During
investigation no weapon or any country made pistol alleged to have been used in the commission of
the alleged offence, was recovered from the possession of the accused appellant Ram Briksh or any
other accused at any point of time.

25. It was further submitted that it seems unlikely that the accused would murder the
deceased in front of his house that too in front of his father. Had they wanted to murder Shyama
they would have murdered him when they had gone for stroll Khirbaniya which was around 2 km.
away from the house of the deceased

26. It was further submitted on behalf of the accused persons that in the F.I.R. or before the
Investigating Officer this fact was not mentioned that the accused Bideshi was the original
inhabitant of District Basti. The complainant did not know the accused Bideshi at all and his name
was mentioned in the F.I.R. with some ulterior motive.

27. It was further submitted by them that there is a great variance in the evidence regarding
the place of occurrence. Gabbu P.W. 2 has stated that the occurrence had taken place at a distance
of about 25 paces towards south-east of the house of Mangru, whereas, in the site plan the place of
occurrence is shown towards north-east of the house.

28. It was further submitted that in the Challan Nash Ext Ka-9 an endorsement was made
for having received the papers on 21.10.1979 at 7.50 A.M. and the post mortem was conducted on
21.10.1979 at 11.30 A.M. Hence, the incident must have occurreed at night that is why the papers
along with the dead body were brought at 7.50 A.M. The distance of the mortuary from the shop of
Prahlad , where the dead body was found kept on a cot and from where it was handed over to the
police is about two miles only. Besides, there are certain circumstances and evidences including the
testimony of the concerned Doctor, also depicting that the deceased was murdered at night contrary
to the prosecution story that it was committed during day time. The statement of the Doctor, who
conducted the post mortem of the deceased also shows that the duration of death was about half a
day. Meaning thereby, the incident would have taken around 11.30 P.M. of 20.10.79.

29. Relying upon the testimony of defence witness Ram Prasad (D.W.1), who has stated
that, it was a Diwali day and he had gone along with the deceased for watching fire works in the
night and while both of them were returning at night, some one fired at Shyama in the Guava grove
and fled away from the spot and no body could witness the assailants. It was further submitted that
the incident appears to have taken place at night hours and no one was present on the spot when the
incident took place and the assailant after committing murder of the deceased ran away. Later on,
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
the complainant and other persons reached the spot. Accused persons have been falsely implicated
only on the basis of doubt and suspicion.

30. It was further submitted that in the F.I.R. the names of four witnesses have been
mentioned but the prosecution chose to examine only one witness namely Gabbu who is not a
resident of the village of the informant and he happens to be a close relative (Samdhi) of the first
informant, as such he is an interested and chance witness, therefore ,no reliance is liable to be
placed upon his testimony.

31. He further submitted that the first informant Mangru, who claims himself to be an eye
witness , was examined as P.W. 1 before the trial court and in para 13 of his statement he has very
categorically stated that "when he saw the assailants for the first time, they were running at ten
paces" . From perusal of this testimony, it is crystal clear that P.W.1 had not seen the assailants
while committing murder of the deceased.

32. He further submitted that the trial court failed to appreciate the evidence in right
perspective while awarding the punishment against the appellant Ram Briksh. The order of
conviction and sentence passed by the trial court against the appellant Ram Briksh suffers from
gross illegality and infirmity and is not sustainable and is liable to be set aside and the appellant
Ram Briksh is liable to be acquitted of the charges leveled against the appellant Ram Briksh and
the Govt. appeal ( no. 1916/81) is also liable to be dismissed accordingly.

33. Per contra, Mr. Rajiv Gupta, learned Addl. Government Advocate, appearing on
behalf of the State,while supporting the impugned judgement and order of conviction submitted
that the prosecution witnesses proved the case to the hilt and no dent could be caused by the
defence in the prosecution case. It was further submitted that it was a brutal murder by the close
friends of the deceased. It was further submitted that the evidence adduced by the prosecution does
not suffer from any inconsistency and infirmity and there is nothing on record to show that the eye
witnesses were not present on the spot at the time of occurrence. It was further submitted that the
medical evidence also corroborates the testimonies of the witnesses.

34. It was further submitted that the medical evidence does not completely rule out the
possibilities of incident having taken place in the evening of 20.7.79, as such there is no reason to
disbelieve the statements of the prosecution witnesses in this regard. He further submitted that the
oral account of the occurrence stands fully corroborated by the medical evidence inasmuch as the
concerned Doctor has stated that atleast 79 pellets and carbading were extracted from inside the
body. The firing by country made pistol is perfectly proved. The minor contradictions in the
testimonies of the prosecution witnesses does not make any difference so far as the merit of the
case is concerned as it does not go to discredit their testimonies, particularly when there are such
rustic witnesses, such minor contradictions are bound to occur.

35. It was further submitted that rigor mortis was present on both the limbs at the time of
post mortem examination. According to medical jurisprudence, it would not be improper to make
5 All. Ram Briksh Vs State Of U.P.

1111
an inference on that basis that the death would have occurred sometimes at about 2.00 P.M. on
20.10.79. Moreover, the opinion of a Medical Officer is only that of an expert and it is not to be
treated as the gospel truth. It can not be treated as conclusive and decisive .

36. It was further submitted that it is not always possible to introduce evidence or to impute
motive, and lack of motive, does not falsify the implication of the accused. Absence of motive
would not give any benefit to the accused.

37. We have heard learned counsel for the appellant and Mr. Rajiv Gupta, learned A.G.A.
for the State and perused the record.

38. Having heard the submissions, we have carefully examined the evidence available on
record.The F.I.R. was lodged at the instance of one Mangru (P.W.1), the father of the deceased
Shyama under section 302 I.P.C. against the appellant Ram Briksha, who has filed the present
Criminal appeal (No. 1319 of 1981) and two other accused persons namely Ram Sewak and
Bideshi against whom the present Govt. Appeal (No.1916 of 1981) have been filed challening the
impugned judgement dated 5.12.1983 whereby the appellant Ram Briksha was convicted under
section 302 I.P.C.and the accused respondents Ram Sewak and Bedeshi were acquitted of the
charges framed there under.

39. During the pendency of the present Govt. Appeal, the accused opposite party no. 1 Ram
Sewak had died, therefore, the Govt. Appeal No. 1916 of 1981 stood dismissed as abated as against
him.

40. Since the detailed facts of the case have already been setforth in the preceding
pargraphs of the judgement, they need not be reiterated.

41. According to the prosecution story, on 20.10.1979 at about 12 O'clock, in the noon,
three accused persons namely Ram Briksha,Ram Sewak and Bideshi came to the house of the
complainant and asked the deceased Shyama to accompany them for a stroll upto Khirwania and
from there, they returned to the village at about 2.00 p.m. While they were close to the house of the
complainant, the accused Bideshi and Ram Sewak allegedly caught hold of Shyama and the
accused Ram Briksha opened fire with his 'Katta' at Shyama causing fire arm injury on his chest, as
a result of which, Shyam fell down. The complainant Mangru raised an alarm. On hearing the cries,
the alleged witnesses of F.I.R.namely, Ram Prasad, Bhagirathi, Gabbu, the complainant's daughter
Shanti and others arrived at the spot. These witnesses had witnessed the alleged occurrence. They
tried to chase the accused, but the accused managed to run away towards the north. When the
complainant Mangru was taking his injured son Shyama on a cot to the hospital, he succumbed to
the injuries.

42. During trial the prosecution produced only two witnesses of facts namely Mangru
(P.W.), father of the deceased and Gabbu ( P.W. 2), the alleged neighbour of P.W. 1, whereas in the
F.I.R. several others were named who witnessed the incident in question.
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
43. A perusal of the record shows that the prosecution has failed to prove any enmity or
motive for causing the death of the deceased by the accused persons. The testimonies of the
complainant Mangru, P.W. 1 or any other witnesses also do not reveal that there was any enmity
between the deceased and the accused persons because the complainant Mangru or any other
prosecution witnesses have not at all stated any where suggesting any motive as to why the accused
persons committed this crime. It seems unlikely that the accused would murder the deceased so
close to informant's house in front of him and other alleged witnesses. If they had any intention to
commit murder of Shyama, they would have very conveniently murdered him when they had gone
for stroll to Khirbaniya,about 3 km. away from the house of the deceased and remained together
alone for two hours between 12-2 P.M. They had ample time and opportunity to kill the deceased
on the way to Khirbaniya. This part of the prosecution story appears to be concocted and doubtful
because it is highly unnatural that the accused would kill the victim so close to his house in front of
his father and other witness so as to create evidence against themselves.

44. The prosecution has not offered any explanation or reason as to why the accused chose
to kill the deceased in the close vicinity of the house of the first informant. This fact itself creates a
serious dent in the prosecution story and makes the entire prosecution story doubtful. The P.W. 1
himself has admitted that there was no previous enmity between the accused persons and the
deceased, as such there was no reason for the accused to have killed the deceased. Notably, none of
the accused had any criminal history . Had there been any premeditation or any design on the part
of the accused persons to commit murder of the deceased, they would have definitely killed him on
the way to Khirbaniya. Since the accused appellant Ram Briksha was not a person of criminal
background, he was not expected to carry fire arm while going for a stroll.

45. It has also been contended on behalf of the accused persons that P.W. 2, Gabbu has
been set up by the prosecution merely to make up the deficiencies of the other witnesses of the
prosecution. In fact,he was not the resident of the locality where the incident is alleged to have
taken place. The dwelling house of Gabbu was not shown in the site plan, although, According to
the I.O., the site plan was prepared with the help of P.W.1 and P.W.2 Gabbu. Non depiction of the
dwelling house of P.W. 2 Gabbu in the site plan creates doubt and suspicion about the presence of
P.W. 2 on the spot. According to the P.W. 2, he was living inside the guava grove owned by the
son of his brother in law. Admittedly, he was neither the owner of the guava grove nor it has been
said that he was managing the said grove. On the contrary, P.W. 2 himself has admitted that he was
the permanent resident of another village Abbal Tenuari District Gorakhpur and neither he had any
agricultural land nor any grove or any landed property in the village where the incident had
occurred but he owned landed property in some other village, regarding which the the defence side
had produced the documentary evidence . Thus, it becomes very difficult to accept that he was
staying inside the guava grove owned by his relative, particularly when the P.W. 2 himself has
admitted that neither he owns any landed property or any grove in Chakla nor he was managing the
affairs of the guava grove where the incident has occurred. The evidence of P.W. 2 Gabbu when
read as a whole, is full of discrepancies and does not inspire confidence at all.
5 All. Ram Briksh Vs State Of U.P.

1113
46. Perusal of the testimony of P.W. 1 shows that at the time of the incident he was sitting
at his house and he first sighted the accused persons when they were catching hold of his son and a
shot was fired from a point blank range by the accused appellant Ram Briksha. Thereafter, in the
same breath he deposed that he first sighted the accused persons at a distance of 10 paces from the
spot running away from the place of occurrence. They tried to chase the accused persons but they
managed to escape. As such, the testimony of P.W. 1 itself is contradictory. On one hand, he has
stated that he first sighted the accused persons when they were catching hold of his son and a shot
was fired from a point blank range and, later on, he stated that he first sighted the accused persons
at a distance of 10 paces from the spot running away from the place of occurrence in the north
direction. Such contradictory statements made by the P.W.1 show that he was neither present on
the spot nor had he witnessed the alleged incident. For ready reference, para 13 of the statement of
P.W. 1 is extracted below:

"(13) मै ं घटना के समय अपने घर पर बैठा था। मुलजिमान जिदेशी ि सेिक िो मेरे लड़को को पकड़ ंे
थे तब मेरी उस पर पहली दफा जनगाह पड़ी। रास्ते के जकनारे ये दोनो मुलजिमान मेरे लड़को को पकड़ ंे हुये थे। िह रास्ता
िही है। िो मेरे घर के पूरब, उत्तर-दखिन िाता है। गोली गले मे ं सटा कर मारी गयी और एक इन्च की दूरी नही था। दोनो
मुलजिमान पकड़ ंे हुये थे िब मेरे लड़के को गोली मारी गयी। िब गोली मारी तब हम चार पां च आदजमयो ं ने मुलजिमान
को दौड़ाया। मै ं अपने घर से अकेला दौड़ा बजकया लोग बागीचो ं से दौड़ ंे। गोली मारने की आिाि हुई थी और उस
आिाि को सुनकर हम अपने घर से दौड़ ंे। मै ं तुरन्त अपने घर से दौड़ा। िब मेरी पजहली पहल जनगाह पड़ी तो मुलजिमान
दस कदम पर भाग रहे। हम लोगो ने एक जिघे तक मुलजिमान का पीछा जकया। मुलजिमान रास्ता पर मे ं होते हुए भागे।
मुलजिमान बाग के बीच से होकर भागे। मुलजिमान उत्तर की तरफ भाग रहे थे। हम लोग मुलजिमान को पकड़ नही पाये।
और यह समझा जक लड़के को देिे बच िाय तो उसी को बचा ले। हम लोगो ने एक बीघा तक पीछा जकया जफर लौट आये।
उस िक्त के तक मेरे लड़के के पास बहुत से लोग िुट गये थे। एक जमनट मे ं ही चारपाई लाकर लड़के को जलटाकर
अस्पताल ले चले। आधे घण्टे मे ं हम लोग पक्की सड़क पर पह ंु
चे। प्रहलाद के दुकान के पास देिा जक मेरा लड़का मर
गया है। हम लोग आधे घण्टे तक प्रहलाद के दुकान के पास ही लड़के को जलये पड़ ंे रहे ि रोते रहे। जदन अजधक जगर िाने के
बाद प्रहलाद के दुकान के पास मे ं लाश गई। उस समय सूरि डूबा नही था घण्टा दो घण्टा जदन रही िब लाश रिाना हुई। मै ं
 लाश के साथ नही गया। जसपाही लाश को ले गया। मै ं रपट जलिाने चला गया। मै ं अगले जदन चीरघर गया था। 2 बिे
जदन मे ं मुझे लाश जमली। 1 घण्टा जदन चढ़ गया था िब मैने चीरघर मे ं लाश देिी।"

47. It has come on record that the dead body was sent for post mortem to the mortuary on
20.10. 1979 at 5.30 P.M. on a rickshaw . However, it was received in mortuary at around 7.50 A.M.
on the next morning i.e. 21.10.1979 and the post mortem was conducted at 11.30 A. M. The
prosecution failed to explain as to why the dead body, which was admittedly taken by the constable
at around 5.30 P.M. on 20.10.1979 reached the morturary the next morning ie.. 21.10. 1979 at 7.50
A.M. These glaring discrepancies in the prosecution story supports the case of the appellant that , in
fact, the incident had not occurred at 2.00 P.M. on 20.10.1979. At this stage, it would also be useful
to discuss the testimony of D.W.1 Ram Prasad who gave altogether a different version than that of
the prosecution.

48. According to the testimony of the defence witness Ram Prasad (D.W.1), the incident
had occurred on the Diwali day. On that day, he met the deceased in the grove, late in the evening
and they both decided to go out to watch the fire works on Diwali. Thereafter, both of them went to
Urad Bazar to enjoy the festivities and after an hour, they started back for home. As the pathway
was quite narrow, DW 1 was walking behind the deceased Shyama, when all of a sudden, he heard
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
the gun shot that injured the deceased, who fell down on the ground while the assailant fled away.
Since it was dark, he could not identify the assailants. He immediately rushed to the house of the
informant and informed him about the incident and thereafter Mangru and 2-4 others reached the
spot and while they were taking the injured to the road in front of the shop of Prahlad, he
succumbed to his injury. Thereafter Shyam Sundar went to the police station for giving information
to the police. One police constable came to the shop of Prahlad and stayed there throughout the
night,on the next day morning, the Sub Inspector arrived there and the dead body after being sealed
was sent to the mortuary; incident had occurred between 8.30 and 8.45 P.M. The place where
deceased was shot was around 1 Km. From his house.

49. There does not seem to be any glaring discrepancy or contradictions in the testimony of
D.W.1 who has very categorically described the incident to have occurred at around 9 O' clock. In
this regard it may also be stated that P.W. 1 in para-13 of his testimony, inter alia, has stated that he
had taken the dead body to the shop of Prahlad and it was kept there till the body was taken away
for the purpose of post mortem. The dead body was taken by the constable. He did not accompany
the dead body. He went to the police station for lodging the F.I.R. This fact shows that after the
dead body was removed from there by the constable for the purpose of post mortem, he proceeded
to police station for lodging the F.I.R. only after the dead body was taken by the constable for post
mortem to the mortuary. Therefore, the case of the prosecution that the F.I.R. was lodged at 2.00
P.M. on the date of the incident stands belied and the version of the defence that the incident had
occurred at 9 O' clock appears to be reliable and inspiring.

50. There is another important aspect of the matter which requires consideration.
According to the Doctor, who conducted the post mortem on 21.10.1979 at 11.30 A.M. i.e. next
morning of the incident, the duration of death found by the Doctor was about half a day, as such ,
according to him, the death might have occurred at around 11.30 P.M. on 20.10.1979. The post
mortem report further indicates that in the stomach semi digested food i.e. rice and pulse were also
found. The small intestine was full while the large intestine was empty.

51. The prosecution in order to substantiate the argument that the incident had occurred in
the afternoon, referred to the testimony of Durga Prasad ( P.W. 7), head constable who has stated
that he made the entry in Rapat no. 52 of the G.D. at 21.30 on 20.10.1979 indicating that the dead
body of the deceased was brought by the constables Mohd. Ishhaq and Sri Prakash Chandra
Srivastava. On the basis of said deposition, learned A.G.A. stated that the G.D. entry in the police
line shows that the incident had occurred in the afternoon. In this regard, learned counsel for the
accused submitted that , in fact , the F.I.R. is ante timed and the G.D.