# Ram Chander & Ors. (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 33
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-17
- **Case number:** Criminal Appeal No. 474 of 2002
- **Bench:** B. Amit Sthalekar, Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-chander-ors-in-jail-v-state-of-u-p-45060
- **Pages:** 24

## Headnote

A. Indian Penal Code, 1860 - Section 34 -
object
of
common
intention-joint
liability-As a general principle in a case of
criminal
liability
it
is
the
primary
responsibility of the person who actually
commits the offence and only that person
who has committed the crime can be held
to guilty. By introducing Section 34 in the
penal code the Legislature laid down the
principle of joint liability in doing a
criminal act. The essence of that liability
is to be found in the existence of a
common
intention
connecting
the
accused leading to the doing of a criminal
act in furtherance of such intention. Thus,
if the act is the result of a common
intention then every person who did the
criminal act with that common intention
would be responsible for the offence
committed irrespective of the share
which he had in its perpetration. Section
34 IPC embodies the principles of joint
liability in doing the criminal act based on
a common intention. Common intention
essentially being a state of mind it is very
difficult to procure direct evidence to
prove such intention. Therefore, in most
cases it has to be inferred from the act
like, the conduct of the accused or other
relevant circumstances of the case. The
inference can be gathered by the manner
in which the accused arrived at the scene,
mounted the attack, determination and
34 INDIAN LAW REPORTS ALLAHABAD SERIES
concert with which the attack was made,
from the nature of injury caused by one
or some of them. (Para 49)

B. Code of Criminal Procedure, 1973 -
Section 374(2), Indian Penal Code, 1860
- Sections 147, 148, 302/149 - challenge
to- life imprisonment passed by trial
court-high court upheld the conviction of
the accused. (Para 60, 61 & 62)

Deceased had received the lease land in Gaon
Sabha land-accused was claiming in the lease
land-village head had decided the matter in the
evening of the past night of the incident that
deceased will leave three and half bigha land in
favour of accused-next day accused called the
deceased for measurement and on that place
five persons
- accused
taking different
weapons reached with common intention and
murdered the deceased. (Para 3)

Criminal appeal dismissed. (E-6)

List of cases cited: -

## Text

_Characters 0–39,921 of 81,612. This is a partial read: ask again with offset=39921 for what follows._

1 All. Ram Chander & Ors. Vs. State of U.P.
33
(informant) in all material particulars with
regard to identity of the accused, time of
occurrence, nature of weapons, taking the
deceased from the scene of crime to the
Police Station and lodging of the first
information report. Thus, evidence of PW4 Bitoli cannot be rejected only on the
ground that she being mother of the
deceased is an interested witness.

28. No other point was argued by
learned counsel for the appellant.

29. In view of above, we find no
cogent reason to take a view other than the
view taken by the Trial Court, thus, no
interference in the impugned judgment and
order is required, same is hereby affirmed.

30. The appeal is dismissed.

31. Appellant no. 3 - Shiv Shanker is
on bail pursuant to the order of this Court.
His bail bonds are cancelled and surety is
discharged. He is directed to surrender
before the trial Court within month from
the date of this order. The learned trial
Court shall remand him to jail for serving
out the remainder part of the sentences. On
failure of appellant no. 3 - Shiv Shanker to
appear before the trial Court within the
stipulated period, the learned trial Court
shall take appropriate steps against the
appellant no. 3 - Shiv Shanker, in
accordance with law.

32. Office is directed to transmit the
lower Court record to the concerned Court
forthwith.
----------
(2020)1ILR A33

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.12.2019
BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE ALI ZAMIN, J.

Criminal Appeal No. 474 of 2002

Ram Chander & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Apul Mishra, Sri Rahul Saxena, Sri
Raghuvansh Misra, Sri Sushil Kumar
Pandey

Counsel for the Respondent:
A.G.A.

A. Indian Penal Code, 1860 - Section 34 -
object
of
common
intention-joint
liability-As a general principle in a case of
criminal
liability
it
is
the
primary
responsibility of the person who actually
commits the offence and only that person
who has committed the crime can be held
to guilty. By introducing Section 34 in the
penal code the Legislature laid down the
principle of joint liability in doing a
criminal act. The essence of that liability
is to be found in the existence of a
common
intention
connecting
the
accused leading to the doing of a criminal
act in furtherance of such intention. Thus,
if the act is the result of a common
intention then every person who did the
criminal act with that common intention
would be responsible for the offence
committed irrespective of the share
which he had in its perpetration. Section
34 IPC embodies the principles of joint
liability in doing the criminal act based on
a common intention. Common intention
essentially being a state of mind it is very
difficult to procure direct evidence to
prove such intention. Therefore, in most
cases it has to be inferred from the act
like, the conduct of the accused or other
relevant circumstances of the case. The
inference can be gathered by the manner
in which the accused arrived at the scene,
mounted the attack, determination and
34 INDIAN LAW REPORTS ALLAHABAD SERIES
concert with which the attack was made,
from the nature of injury caused by one
or some of them. (Para 49)

B. Code of Criminal Procedure, 1973 -
Section 374(2), Indian Penal Code, 1860
- Sections 147, 148, 302/149 - challenge
to- life imprisonment passed by trial
court-high court upheld the conviction of
the accused. (Para 60, 61 & 62)

Deceased had received the lease land in Gaon
Sabha land-accused was claiming in the lease
land-village head had decided the matter in the
evening of the past night of the incident that
deceased will leave three and half bigha land in
favour of accused-next day accused called the
deceased for measurement and on that place
five persons
- accused
taking different
weapons reached with common intention and
murdered the deceased. (Para 3)

Criminal appeal dismissed. (E-6)

List of cases cited: -

1. Prabhu Dayal Vs. St. of Raj. (2018) 3 SCC
(Cr.) 518

2. St. of Karnataka Vs. Suvarnamma (2015) 1
SCC (Crl.) 663

3. Vijai Pal Vs. St. (Govt. of NCT Delhi) (2015)
2 SCC (Cr.) 733

4. St. of U.P. Vs. Krishna Master and ors.
(2010) 12 SCC (324)

5. St. of Karn. Vs. Suvarnamma & anr., 2015
(1) SCC 323

6. Pal Singh Vs. St. of U.P. (1979) 4 SCC 345

7. St. of U.P. Vs. M.K. Anthony, (1985) 1 SCC 505

8. Waman & Ors. Vs. St. of Mah., (2011)
Criminal Law Journal 4827

9. Sadayappan @ Ganesan Vs. St., represented by
Inspector of Police, 2019 SCC 610

10. Ramesh Singh @ Photti Vs. St. of A.P.
(2004) 11 SCC 305
11. Asif Khan Vs. St. of Mah. & Anr. (2019) 5
SCC 210

12. Balwantbhai B. Patel Vs. St. of Gujarat & Anr.

13. Bishu Sarkar & Ors Vs. St. of W. B., AIR
2017 SC 1729

14. Gaya Yadav & Ors. Vs. St. of Bih. & Ors.,
AIR 2003 SC 1759

15. D.V. Shanmugham & Anr. Vs. St. of A.P.,
AIR 1997 SC 2583

16. Sushil Vs. St. of U.P., 1994 Law Suit
Supreme Court 995

(Delivered by Hon'ble Ali Zamin, J.)

1. Heard Sri Apul Mishra alongwith
Sri Rahul Mishra and Sri Raghuvansh
Misra, learned counsel for the appellants
and Sri Ajit Ray, learned A.G.A. for the
respondent and perused the material on
record.

2. This appeal has been filed against
the judgement and order dated 29.01.2002
passed in Session Trial No.568 of 1996
(State vs. Ram Bahadur and 3 others),
Police Station Beesalpur, District Pilibhit
by which learned Additional Session
Judge,
Pilibhit
has
convicted
the
appellants-accused Ram Chander, Ram
Shankar, Ram Bharosey and Ram Bahadur
and sentenced appellant Ram Chander to
undergo two years rigorous imprisonment
under
Section
148,
appellants
Ram
Shankar, Ram Bharosey and Ram Bahadur
have been sentenced to undergo one year
rigorous imprisonment under Section 147
I.P.C. and all the appellants have been
sentenced to undergo life imprisonment
and fine of Rs.2000 under Section 302
read with Section 149 I.P.C. in default of
fine to undergo further a period of 6
months additional imprisonment.
1 All. Ram Chander & Ors. Vs. State of U.P.
35

3. In brief facts of the prosecution
case are that Gaon Sabha land was allotted
on lease to the deceased Beni Ram, brother
of the informant in which one Sunder Lal
(since died during trial) was claiming his
land. Munendra Pal Singh village head
(Pradhan) resident of village Bharuwa
settled the dispute between them a day
before the incident and it was decided that
Beni Ram will leave three and half bigha
land in favour of Sunder Lal. On
22.11.1991 at 11:00 A.M. Ram Bahadur,
Sunder Lal of the village came to the
house of deceased Beni Ram having spade
in hand and asked for measurement as
decided yesterday, on which Beni Ram
(deceased), Shyam Bihari (informant) and
Smt. Ram Rati wife of Beni Ram
proceeded for measurement taking gattha
of wood (log) and rope. When they
reached at 1:00 p.m. on the field, Ram
Chander having a spear in hand, Ram
Shankar and Rama Bharosey met there.
Sunder Lal, Ram Bahadur, Ram Chander,
Ram Shankar and Ram Bharosey tied both
legs of Beni Ram with towel. Ram
Bahadur pressed legs of Beni Ram, Ram
Bharosey, Ram Shankar caught hold his
both hands, Sunder Lal by spade and Ram
Chander by spear started jabbing to Beni
Ram stating to kill him, Sunder Lal cut the
neck of Beni Ram, Ram Chander gave
spear blow on the stomach. Informant and
Smt. Ram Rati wife of Beni Ram alarmed.
On their alarm Subedar Khan resident of
the same village and Ram Singh of village
Bharuwa arrived. All of them tried to save
Beni Ram but accused threatened to them
of dire consequences. After killing Beni
Ram, assailants went away towards village
through the bank of river.

4. On the oral information of Shyam
Bihari (P.W.1) Case Crime No.258 of
1991, under Sections 147, 148, 302 I.P.C.
was registered on 22.11.1991 at 15:30 p.m.
under chik F.I.R. Ext.Ka-1 and G.D. Entry
No.32 Ext.Ka-2 was also prepared on
same day at 15:30 P.M. Investigation of
the case was handed over to S.I. Gyan
Singh
(P.W.5).
Investigating
Officer
reached the place of incident, prepared
inquest memo (Ext.Ka-4) and relevant
documents Ext.Ka-5 to Ext.Ka-11 i.e.
address of the deceased, letter to R.I.,
letter to C.M.O., letter to C.M.O., police
form-13, police form 379 and specimen
seal respectively and dispatched the dead
body for post-mortem.

5. Dr. A.K. Sharma (P.W.3)
conducted post-mortem on 23.11.1991 at
3:30 P.M. and prepared report Ex.Ka-2,
according to which following injuries were
found on the body of the deceased Beni
Ram:

1. Incised wound 14 c.m. x 7 c.m.
cavity deep at the front of abdomen 5 c.m.
below the umbilicus, intestine coming out.

2. Incised wound 9 c.m. x 5 c.m.
below trachea the left ear and running
below mandible, left carotid artery jagutar
vein cut.

3. Incised wound 4 c.m. x 3 c.m.
x muscle deep right side of the neck, 3
c.m. below the left angle at mandible on
deep dissection carotid artery cut.

4. Incised wound 1 c.m. x 0.5
c.m. bone deep on the right side of neck, 1
c.m. above injury no.3.

5. Incised wound 3 c.m. x 1 c.m.
bone deep on the back of right shoulder
scapula.

6. Incised wound 5 c.m. x 1 c.m.
bone deep on the back of right shoulder 1
c.m. above injury no.5 cardio process of
right scapula cut.
7. Incised wound 1 c.m. x 5.7 c.m. x chest
cavity deep over the angle of right scapula.
36 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Abrasion 3 c.m. x 1 c.m. on
the inner end of right collar bone.

9. Abrasion 7 c.m. x 1 c.m. over
the left side of neck 5 c.m. above the
middle left collar bone.

In his opinion cause of death was
shock & haemorrhage due to ante-mortem
injuries and death of the deceased was
near about one day old.

6. After dispatching the dead body
for post-mortem Investigating Officer
inspected the place of incident and
prepared spot map Ext.Ka-12. He also
took into possession rope, log (lattha),
blood stained and plain earth (sand), spade
along with handle, old towel and prepared
memo Ext.Ka-13. After completing the
investigation
submitted
charge
sheet
Ext.Ka-3 under Sections 147, 148, 302
I.P.C.
against
the
accused-appellants
before the C.J.M., Pilibhit, who committed
accused for trial to the court of Sessions
Judge where Case Crime No.258/1991 was
registered as Session Trial No.568 of 1996
(State vs. Ram Bahadur and others). The
Sessions Judge transferred it to the court
of Special Judge (E.C. Act), Pilibhit for
trial. The trial court framed charge under
147 and 302/149 I.P.C. against the
accused-appellants Ram Bahadur, Ram
Shankar, Ram Bharosey and under Section
148, 302/149 I.P.C. against accusedappellants Sunder Lal and Ram Chander.
The accused denied the charge and
claimed trial.

Accused Sunder Lal died during
trial and case against him was dismissed as
abated vide order dated 10.04.2001.

7. Prosecution to prove its case has
produced six witnesses. P.W.1 Shyam
Bihari informant, P.W.2 Smt. Ram Rati
are witnesses of fact while P.W.3 Dr. A.K.
Sharma conducted post-mortem, P.W.4
Mohd. Anees second Investigation Officer,
P.W.5 Gyan Singh first Investigating
Officer and P.W.6 Constable Narendra Pal
Singh are formal witnesses. The accusedappellants in their examination under
Section 313 Cr.P.C., have stated that the
witnesses have deposed against them due
to enmity and denied the prosecution case,
but they led no evidence in their defence.

8. Trial court after hearing learned
counsel for the parties and perusal of
records
has
passed
the
impugned
judgement and order. Hence, this appeal.

9. Learned counsel for the appellant
No.2 Ram Bharosey, appellant No.3 Ram
Bahadur and appellant No.4 Ram Shanker,
Sri Apul Mishra has submitted that
appellants are not connected with the
offence. The role has been alleged of
catching hold, if one spade stunt is given
then the person will fall down and there will
be no occasion to catch hold, therefore,
participation of the appellants is doubtful.
He further submitted that if the whole story
of prosecution as stated by P.W.1 Shyam
Bihari is accepted that the appellants
grappled the deceased, then it was not their
intent to commit murder covered under
Section 34 of I.P.C. In support of his
contention he relied on the following
judgements of Hon'ble Supreme Court:

1. Balwantbhai B. Patel vs. State
of Gujarat and another, (2009) 10 SCC
584.

2. Bishu Sarkar and others vs.
State of West Bengal, AIR 2017 SC 1729.

3. Gaya Yadav and others vs. State
of Bihar and others, AIR 2003 SC 1759.

4.
D.V.
Shanmugham
and
another vs. State of A.P. AIR 1997 SC
2583.
1 All. Ram Chander & Ors. Vs. State of U.P.
37

5. Sushil vs. State of U.P., 1994
Law Suit Supreme Court 995.

10. Learned counsel for the appellant
no.1 Ram Chander, Sri Rahul Mishra
assisted by Sri Raghuvans Mishra has
submitted that P.W.1 Shyam Bihari has
specifically stated that he reached the
place of incident at 1:00 P.M. going from
the police station whereas per chik report
Ext.Ka-1 first information report has been
registered at 3:30 P.M. Shyam Bihari has
also stated that he met daroga and put his
thumb impression on the paper when he
came police station along with the dead
body. He has also stated that he reached
police station along with the dead body at
10:00 P.M. in the night while P.W.2 Smt.
Ram Rati has stated that the dead body
reached police station at 6:00 P.M. and
Shyam Bihari was also along with her.
Both witnesses also stated that their
statements might have been recorded on
the same day, from which it becomes clear
that first information report is anti-timed.
It is also submitted that on the point of
lodging F.I.R. and reaching of the
informant to the police station question
could have been put to the scribe of the
chik and G.D. but scribe of chik and G.D.
has not been produced by the prosecution
so he has been deprived of the opportunity
of cross-examination also. He has also
submitted that according to prosecution a
spear injury was caused to the deceased in
the stomach. Injury by spear will be
punctured one but according to postmortem report injury no.1 has been found
to be stomach injury cavity deep incised
wound of 14 c.m. x 7 c.m. Thus, the injury
alleged to have been caused by spear does
not match with the medical report.

11. His next submission is that
according to P.W.1 Shyam Bihari the
incident took place 20 steps away from the
west side of the river and its natural sense
will be that incident took place towards
west side of the river while P.W.5
Investigating Officer Gyan Singh has
stated that the dead body was at a distance
of 20 steps in the east from the river, as
such from the prosecution evidence place
of occurrence is also not established. He
further submitted that Smt. Ram Rati has
stated that in the incident her forefinger of
right hand was cut off but there is no
medical report to support her statement
and Investigating Officer has stated that if
finger of Smt. Ram Rati was cut off then
she must have told him and he would have
got
her
medically
examined
thus
Investigating Officer does not support her
statement, which makes her presence at
the spot doubtful.

12. Next submission is that P.W.1
Shyam Bihari has stated that he was
residing along with his son in Sitarganj
and he was residing separate with his
deceased brother. What was occasion to
come on the day of incident has not been
explained. Therefore, his presence at the
time of incident is doubtful.

13. Lastly he has submitted that
P.W.1 Shyam Bihari informant is brother,
Smt. Ram Rati is wife of the deceased,
both are highly interested witnesses. P.W.1
Shyam Bihari states that he does not know
about share and side of the deceased land.
He also states that as soon as the accused
reached on the field, the accused grappled
with his brother while P.W.2 Smt. Ram
Rati states that reaching the field marking
for partition were made, talks took place
between them, near about half an hour
period was spent in the field and when her
husband sat to smoke chilam, incident
took place. Thus, inference will be either
38 INDIAN LAW REPORTS ALLAHABAD SERIES
P.W.1 Shyam Bihari or P.W.2 Smt. Ram
Rati is telling a lie or both of them are
telling a lie. Learned counsel prayed that
prosecution has failed to prove the charge
beyond reasonable doubt against the
appellants. The impugned judgement and
order is not sustainable. Accordingly,
judgement and order is liable to be set
aside and appellants are liable to be
acquitted.

14. On the other hand Sri Ajit Ray,
learned A.G.A. for the respondent submits
that on the basis of oral information of the
informant Shyam Bihari, F.I.R. Ext.Ka-1
was registered at 3:30 P.M. and in Ext.Ka1 itself time of the incident has been
mentioned 1:00 P.M., not a single question
has been put by the defence from the
witness
P.W.6
Narendra
Pal
Singh
regarding the time of registration of the
case. The informant P.W.1 Shyam Bihari,
P.W.2 Smt. Ram Rati are rustic persons
and their statements in the trial court have
been recorded near about after lapse of 6
years from the date of incident. According
to Prabhu Dayal v/s State of Rajasthan
(2018) 3 SCC (Cr.) 518 rustic witnesses
can develop a tendency to exaggerate and
this does not make that the entire
testimony of such witnesses is falsehood.
Minor contradiction in the testimony of
witnesses are not fatal to the prosecution
case.
In
State
of
Karnataka
v/s
Suvarnamma (2015) 1 SCC (Crl.) 663,
Hon'ble Supreme Court has held that in
regard to exact time of an incident or the
time of duration of an occurrence, usually
people make their estimates by guess work
on the spur of the moment at the time of
interrogation. It depends on the time sense
of individuals which varies from person to
person. A witness is liable to be overawed
by the court atmosphere and piercing
cross-examination by the counsel and out
of nervousness mix up facts, get confused
regarding sequence of events or fill up
details from imagination on the spur of the
moment the witnesses nowdays go on
adding embellishments to their version
perhaps for the fear of their testimony
being rejected by the court. The courts
should not disbelieve the evidence of such
witnesses altogether if they are otherwise
trustworthy. So, on the basis of the
statement of informant Shyam Bihari and
P.W.2 Smt. Ram Rati, it cannot be said
that the F.I.R. is anti-timed. Placing
reliance on Vijai Pal v/s State (Govt. of
NCT Delhi) (2015) 2 SCC (Cr.) 733, he
has submitted that value of medical
evidence
is
only
corroborative
and
testimony of Shyam Bihari and Smt. Ram
Rati with regard to causing spear injury in
stomach by Ram Chander is intact and
their statements in this regard are reliable.
He also submitted that P.W.1 Shyam
Bihari and P.W.2 Smt. Ram Rati have
stated that after taking meal they had gone
to the field which is corroborated by
medical evidence as in post-mortem report
Doctor has also found that 2-3 hours
before the incident deceased could have
taken meal. Shyam Bihari has stated that
he lived separately with the deceased in
the village and he also lived at Sitarganj
along with his son. In his crossexamination nothing has been elicited
from which it can be inferred that on the
date of incident he was not present on the
spot and in the village, where the incident
took place. The spot map Ext.ka-12 has
been proved by the Investigating Officer
P.W.5 Sub-Inspector Gyan Singh, who had
taken the blood stained and plain sands
from the place of incident and it has been
sent to Forensic Science Laboratory, Agra.
According to expert report human blood
has been found on it from which the place
of occurrence is established. Shyam Bihari
1 All. Ram Chander & Ors. Vs. State of U.P.
39
has stated that place of incident is 20 steps
away from the west side of the river. On
the basis of his statement it cannot be
inferred that the place of incident is
changed. He has further submitted that the
witnesses have stated that in murder of
Jagdish, case was registered against the
deceased. He has also stated that a
gangster case was also registered against
the deceased brother and another case
under Section 25 Arms Act was also
registered against him which indicates that
the witness is not concealing the facts but
speaking truly, thus he is reliable and
trustworthy
witness.
Lastly
he
has
submitted that so far as discrepancy
regarding
incident
taking
place
on
reaching the place of incident and after
sometime reaching the place of incident is
concerned due to the lapse of time and
witnesses
being
rustic
one,
this
discrepancy has taken place but P.W.2
Smt. Ram Rati has stated that on reaching
the spot places were dug for marking in
which half an hour was spent and when
her husband sat for smoking chilam the
incident was caused. She has also stated
that from the house in reaching the spot it
took half an hour. The estimated time has
been told by the witness which also
corroborate the time of incident to be 1:00
P.M. mentioned in the F.I.R. Ext.Ka-1. He
submitted
that
from
the
evidences
produced by the prosecution charges are
fully proved against the appellants. The
trial court has rightly convicted and
sentenced the appellants-accused. No
interference is required by this Court and
appeal is liable to be rejected.

15. In cross-examination P.W.1
Shyam Bihari has stated that he reached
the spot at 1:00 P.M. going from the police
station, while as per F.I.R. Ext.Ka-1, the
report of the incident has been made on
22.11.1991 at 15:30 P.M. In crossexamination Shyam Bihari has also stated
that dead body reached the police station
at 10:00 P.M. P.W.2 Smt. Ram Rati has
stated that dead body came to the police
station at 6:00 P.M. As such there is a
discrepancy between statements of Shyam
Bihari and Smt. Ram Rati with regard to
reaching the dead body at the police
station.

16. P.W.1 Shyam Bihari has stated
that by dictating he lodged the report and
after hearing it, he had put his thumb
impression. From his statement it is very
much clear that when he went to the police
station for lodging report at that very time
after dictating and hearing the report he
put his thumb impression on the report.

17. He has also stated that he is
illiterate and he by profession is a farmer.
P.W.2 Smt. Ram Rati has also stated that
she is illiterate. As per F.I.R. Ext.Ka-1
informant Shyam Bihari is by caste Dhobi
(washerman). It is the case of the
prosecution that Gaon Sabha land was
allotted on lease to the deceased Beni Ram
which indicates that the witnesses belong
to a poor strata of the society and both are
rustic witnesses.

18. In State of U.P. vs. Krishna
Master and others (2010) 12 SCC (324),
the Hon'ble Supreme Court has held that
"the basic principle of appreciation of
evidence of a rustic witness who is not
educated and comes from a poor strata of
society is that the evidence of such a
witness should be appreciated as a whole.
The rustic witness as compared to an
educated witness is not expected to
remember every small detail of the
incident and the manner in which the
incident had happened more particularly
40 INDIAN LAW REPORTS ALLAHABAD SERIES
when his evidence is recorded after a lapse
of time. Further, a witness is bound to face
shock of the untimely death of his near
relative(s). Therefore, the court must keep
in mind all these relevant factors while
appreciating evidence of a rustic witness."

19. In State of Karnataka v/s
Suvarnamma and another, 2015 (1) SCC
323, the Hon'ble Supreme Court in para
12.2 of the judgement has referred the case
of Bharwada Bhoginbhai Hirjibhai v/s
State of Gujarat, 1983 SCC 728 as
follows:

5. ..........We do not consider it
appropriate or permissible to enter upon a
reappraisal or reappreciation of the
evidence in the context of the minor
discrepancies painstakingly highlighted by
learned
Counsel
for
the
appellant.
Overmuch importance cannot be attached
to minor discrepancies. The reasons are
obvious :

"(1) By and large a witness
cannot
be
expected
to
possess
a
photographic memory and to recall the
details of an incident. It is not as if a video
tape is replayed on the mental screen.

(2) Ordinarily it so happens that
a witness is overtaken by events. The
witness could not have anticipated the
occurrence which so often has an element
of surprised. The [pic]mental faculties
therefore cannot be expected to be attuned
to absorb the details.

(3) The powers of observation
differ from person to person. What one
may notice, another may not. An object or
movement might emboss its image on one
person's mind, whereas it might go
unnoticed on the part of another.

(4) By and large people cannot
accurately recall a conversation and
reproduce the very words used by them or
heard by them. They can only recall the
main purport of the conversation. It is
unrealistic to expect a witness to be a
human tape-recorder.

(5) In regard to exact time of an
incident, or the time duration of an
occurrence, usually, people make their
estimates by guess-work on the spur of the
moment at the time of interrogation. And
one cannot expect people to make very
precise or reliable estimates in such
matters. Again, it depends on the timesense of individuals which varies from
person to person.

(6) Ordinarily a witness cannot
be expected to recall accurately the
sequence of events which takes place in
rapid succession or in a short time span. A
witness is liable to get confused, or mixed
up when interrogated later on.

(7) A witness, though wholly
truthful, is liable to be overawed by the court
atmosphere
and
the
piercing
crossexamination made by counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up
details from imagination on the spur of the
moment. The sub- conscious mind of the
witness sometimes so operates on account of
the fear of looking foolish or being
disbelieved though the witness is giving a
truthful
and
honest
account
of
the
occurrence witnessed by him -- Perhaps it is
a sort of a psychological defence mechanism
activated on the spur of the moment."

20. In the instant case the incident
has occurred on 22.11.1991 and statement
of P.W.1 Shyam Bihari was recorded on
23.10.1997 and statement of P.W.2 Smt.
Ram Rati was started on 23.10.1997 and
completed
on
03.03.1998
i.e.
the
statements
of
both
witnesses
were
recorded near about after a lapse of six
years.
1 All. Ram Chander & Ors. Vs. State of U.P.
41

21. In the first information report,
Ext.Ka-1 the time of incident has been
mentioned 1:00 P.M. and time of giving
information to the police station is
mentioned as 15:30 P.M. The witness has
stated very clearly that he reached the
police station and at the police station he
had no talk with the daroga. This much
talk too did not take place that you reach
on the spot. Further he has stated that after
lodging report he had gone at the spot and
he reached on the spot from the police
station at about 1:00 P.M. in the afternoon.
It appears that due to his testimony being
recorded after a lapse of six years from the
date of incident and witness is also a rustic
witness overawed by the court atmosphere
and piercing cross-examination made by
counsel and out of nervousness mixing up
facts, getting confused regarding sequence
of
events
or
fill
up
details
from
imagination on the spur of the moment as
held by Hon'ble Supreme Court in
Bharwada Bhoginbhai Hirjibhai v/s State
of Gujarat, (supra), he has stated that he
reached on the spot at 1:00 P.M. going
from the police station.

22. Informant Shyam Bihari has
further stated that he had talk with
darogaji at the police station at the time
when he made thumb impression on the
paper. He has also stated that when he
came along with the dead body at the
police station then he had met darogaji.
He has clearly stated that after lodging
report he had gone on the spot. From his
whole statement it is clear that after
lodging the report, informant Shyam
Bihari returned to the spot thereafter dead
body of the deceased was taken to the
police station. It appears that due to
statement being recorded after six years
from the date of incident and informant
being rustic one out of nervousness mixing
the fact with regard to putting thumb
impression has stated that he put his thumb
impression on papers when he met
darogaji on coming along with dead body.
Considering his whole statement it can't be
inferred that he lodged the report when
dead body reached the police station.
Thus, on the basis of statements of P.W.1
Shyam Bihari that he reached the place of
incident at 1:00 P.M. going from the
police station and statement of Smt. Ram
Rati as well as his statement with regard to
time of reaching dead body at the police
station, time of lodging F.I.R. 15:30 P.M.
mentioned in Ext.Ka-1 and informant's
putting thumb impression on paper when
he met daroga along with dead body, it
can't be inferred that F.I.R. was lodged
when dead body reached the police station.

23. In view of the above discussion,
we do not find any substance in the
contention of learned counsel for the
appellants that F.I.R. is anti timed.

24. P.W.1 Shyam Bihari in his crossexamination has stated that the incident
has taken place at a distance about 20 steps
from the west side of the river and as per
P.W.5 Gyan Singh Investigating Officer
and spot map Ext.Ka-12 distance of the
dead body from the river is 22 steps
towards east of the river. The veracity of
spot
map
Ext.Ka-12
proved
by
Investigating Officer P.W.5 Gyan Singh
has not been disputed by the defence. In
the Ext.Ka-12 dead body has been shown
at place marked as ''D' which is towards
east of the river and distance of the dead
body from the east of the river has been
shown to be 22 steps. P.W.1 Shyam Bihari
has stated that the incident took place at
about 20 steps from the west side of the
river which cannot be taken as the dead
body was 20 steps towards west from the
42 INDIAN LAW REPORTS ALLAHABAD SERIES
west side of the river. It is tact of the
counsel as to how he puts question to a
witness. The witness replies in accordance
to the question put to him. Thus, on the
basis of statements of P.W.1 Shyam Bihari
and P.W.5 Gyan Singh Investigating
Officer it can't be inferred that the place of
incident is not established. Apart from it,
in spot map Ext.Ka-12, it is clearly
mentioned that at place marked as ''D'
dead body was found and at the place
marked as ''3' blood was found and both
places are situated towards east side of the
river. On asking by defence in crossexamination Investigation Officer has
stated that apart from place D he did not
see blood of the deceased. As per recovery
memo Ext.Ka-13 Investigating Officer
took into his possession blood stained
(sand) from the place of incident. He also
took into his possession the towel from
which legs of deceased alleged to have
been tied and a spade shown in the spot
map at place F was found. According to
scientific report available on record human
blood were found on the materials
recovered from the place of incident.
These facts clearly establish the place of
incident towards east of the river. As such
prosecution regarding place of incident is
consistent, corroborated and reliable.

25. In view of the above, we also
find no substance in the contention of
learned counsel for the appellants that on
the basis of statement of informant P.W.1
Shyam Bihari and P.W.5 Investigating
Officer, Gyan Singh, place of incident is
not established.

26. As per post-mortem report
Ext.Ka-2, seven incised wounds and two
abrasions have been found on the person
of the deceased, in which injury no.1 is
incised wound 14 cm. x 7 cm. cavity deep
at the front of abdomen 5 c.m. below the
umbilicus,
intestine
coming
out.
In
Ext.Ka-1 proved by P.W.1 Shyam Bihari,
it has been mentioned that Ram Sunder
inflicted spear injury on the stomach.
P.W.1 Shyam Bihari through his testimony
also has supported the prosecution version
and has stated that accused Ram Chander
caused spear injury in the stomach of
deceased Beni Ram. P.W.2 Smt. Ram Rati
too supporting the prosecution story has
stated that Ram Chander caused spear
injury in the stomach of her husband.
Statement of both the witnesses regarding
inflicting spear injury in the stomach of
deceased Beni Ram by appellant-accused
Ram Chander has not been impeached.
Thus, the statement of P.W.1 Shyam
Bihari and P.W.2 Smt. Ram Rati is
consistent and corroborative to each other.

27. Learned counsel for the appellant
no.1 contends that injury by spear will be
punctured wound and injury no.1 alleged
to have been caused by spear has been
found to be incised wound of 14 c.m. x 7
c.m. So, the alleged spear injury does not
match with the medical report.

28. In Pal Singh vs. State of U.P.
(1979) 4 SCC 345, the Hon'ble Apex
Court has held as under:

"Lastly, it was submitted that the
injuries caused to the deceased are
inconsistent with the manner in which the
deceased
is
alleged
to
have
been
assaulted. For instance, while the accused
were armed with kantas and spears, only
one punctured wound was found. We
might point out that this is a purely
artificial argument. The High Court has
rightly pointed out that if the accused
assaulted with side portion of the blade of
the weapons in a slanting fashion, only
1 All. Ram Chander & Ors. Vs. State of U.P.
43
incised wounds would be caused. Thus the
injuries sustained by the deceased are not
inconsistent with the medical report which
finds a number of incised wounds inflicted
on the deceased. On the findings of fact
arrived at by the High Court, it is clear
that the appellants shared the common
object to cause the death of the deceased
either by participation or by exhortation."

29. In Vijai Pal v/s State of
(Government of NCT of Delhi) (supra)
Hon'ble Supreme Court in para 15 of the
judgement has held as under :

"There is no dispute that the
value
of
medical
evidence
is
only
corroborative. It proves that the injuries
could have been caused in the manner as
alleged and nothing more. The use which
the defence can make of the medical
evidence is to prove that the injuries could
not possibly have been caused in the
manner alleged and thereby discredit the
eye-witnesses.
Unless,
however
the
medical evidence in its turn goes so far
that it completely rules out all possibilities
whatsoever of injuries taking place in the
manner alleged by eyewitnesses, the
testimony of the eye-witnesses cannot be
thrown out on the ground of alleged
inconsistency between it and the medical
evidence. It is also true that the postmortem report by itself is not a substantive
piece of evidence, but the evidence of the
doctor conducting the post-mortem can by
no means be ascribed to be insignificant.
The significance of the evidence of the
doctor lies vis--vis the injuries appearing
on the body of the deceased person and
likely use of the weapon and it would then
be the prosecutor's duty and obligation to
have the corroborative evidence available
on record from the other prosecution
witnesses. It is also an accepted principle
that sufficient weightage should be given
to the evidence of the doctor who has
conducted the post- mortem, as compared
to the statements found in the textbooks,
but giving weightage does not ipso facto
mean that each and every statement made
by a medical witness should be accepted
on its face value even when it is self-
contradictory. It is also a settled principle
that the opinion given by a medical
witness need not be the last word on the
subject. Such an opinion shall be tested by
the Court. If the opinion is bereft of logic
or objectivity, the court is not obliged to
go by that opinion. That apart, it would be
erroneous to accord undue primacy to the
hypothetical answers of medical witnesses
to exclude the eyewitnesses' account which
are to be tested independently and not
treated as the 'variable' keeping the
medical evidence as the 'constant'. Where
the eyewitnesses' account is found credible
and
trustworthy,
a
medical
opinion
pointing to the alternative possibilities
cannot be accepted as conclusive."

30. In the instant case testimony of
P.W.-1 Shyam Bihari and P.W.-2 Smt.
Ram Rati with regard to causing spear
injury by Ram Chander is consistent and
corroborated to each other. Considering
the opinion of Hon'ble Apex Court in Pal
Singh and others (supra) that if accused
assaulted with side portion of the blade of
the weapons in a slanting fashion only
incised wounds would be caused as well as
opinion of Hon'ble Supreme Court in Vijai
Pal v/s State (GNCT of Delhi) (supra)
referred by learned A.G.A. that value of
medical evidence is only corroborative and
unless medical evidence in its turn goes so
far that it completely rules out all
possibilities whatsoever injuries taking
place in the manner alleged by eye
witnesses, the testimony of eye witnesses
44 INDIAN LAW REPORTS ALLAHABAD SERIES
can't be thrown out on the ground of
alleged inconsistency between it and
medical evidence, in the instant case it
can't be gathered that injury no.1 is not
possible by spear as stated by witnesses
Shyam Bihari and Smt. Ram Rati.
Accordingly, we find no substance in the
contention of learned counsel for the
appellants
that
spear
injury
will
necessarily be punctured one and injury
no.1 is incised injury hence injury injury
no.1 alleged to have been caused by spear
does not match with the medical report.

31. P.W.2 Smt. Ram Rati has stated
that she made efforts to save her husband
from injury being caused by accused in
which her right hand's forefinger got cut
and fell on the ground. In crossexamination she has stated that she had
shown the cut finger to the Investigating
Officer. The Investigating Officer P.W.5
Gyan Singh has stated that he cannot tell
whether finger of Smt. Ram Rati was cut
or not. Smt. Ram Rati had not received
any injury and her finger was not cut, if it
happened, so, then she certainly would
have told him and he would have got her
medically examined for the same. From
statement of P.W.2 Smt. Ram Rati and
P.W.5 Gyan Singh, it appears that Smt.
Ram Rati has made such a statement first
time in court which is not supported by
any other evidence, so, to this extent her
statement does not appear credible.

32. In first information report, it is
mentioned that along with deceased Beni
Ram, Smt. Ram Rati had also gone at the
place of incident. In spot map Ext.Ka-12 at
place-1 shown in a circle presence of wife
of the deceased has been mentioned. As
per statement of P.W.5 Gyan Singh, the
spot map was prepared on the day of
incident
and
from
cross-examination
nothing has been extracted so that its
veracity can be doubted. P.W.2 Smt. Ram
Rati has also stated that she had
accompanied her husband and in her crossexamination by defence nothing material
has been extracted, so that her presence on
the spot at the time of incident can be
doubted.
P.W.1
Shyam
Bihari
in
examination-in-chief as well as in crossexamination has stated that he and his
sister-in-law (bhabhi) were present on the
spot together. He has also stated that due
to fear of accused his bhabhi did not go to
the deceased to save him. Thus, with
regard to presence of P.W.1 Shyam Bihari
and P.W.2 Smt. Ram Rati at the time of
incident on the spot, prosecution evidence
is consistent, corroborative to each other.
P.W.2 Smt. Ram Rati in last day of her
cross-examination has stated that when her
husband was caught, tied and killed she
cried and wept, five persons were there so,
she could not dare save him. As such the
prosecution evidence of P.W.1 Shyam
Bihari and P.W.2 Smt. Ram Rati is
consistent and corroborated to each other
that due to fear of accused, Smt.