# Ram Narain & Ors v. State of U.P

- **Citation:** (2026) 2 ILRA 246
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-13
- **Case number:** Criminal Appeal No. 492 of 1982
- **Bench:** Rajnish Kumar, Zafeer Ahmad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-narain-ors-v-state-of-u-p-54239
- **Pages:** 19

## Text

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246 INDIAN LAW REPORTS ALLAHABAD SERIES

(69) In view of above and considering the overall facts and circumstances of the case, this
Court is of the view that the findings recorded by learned trial Court are not tenable in the eyes of
law and the appellants are also entitled for benefit of doubt and the impugned judgment and order
passed by the trial Court is liable to be set-aside and the appellants are liable to be acquitted.

(70) The appeals succeed and are allowed. The impugned judgment and order of conviction
and sentence dated 18th December, 2004, passed by the learned trial Court, is hereby set aside. The
appellants are acquitted. They shall be released forthwith, unless they are required to be detained in
connection with any other matter.

(71) Let a copy of this order as well as trial Court's record be transmitted to the Court
concerned forthwith and in any case within ten days from today for information and compliance.
----------
(2026) 2 ILRA 246
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:LUCKNOW 13.02.2026

BEFORE

THE HON'BLE RAJNISH KUMAR, J.
THE HON'BLE ZAFEER AHMAD, J.

Criminal Appeal No. 492 of 1982

Ram Narain & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Issue for consideration
The matter pertains to a criminal appeal against a conviction where the accused reportedly surrounded and
assaulted the deceased Ram Shankar in a field near village Patkhauli, resulting in his death.

Headnotes
A. Criminal law-Indian Penal Code,1860-Sections 302, 34, 147, 148, 149-Criminal Procedure
Code,1973-Section 374(2)- Murder-common intention -Appellant along with deceased coaccused assaulted victim with lathis and farsa due to prior enmity-Eye-witness testimony of
injured witness and others found consistent and reliable-Medical evidence showing multiple
fractures and incised wounds corroborating use of alleged weapons-Non-recovery of weapons
held not fatal to prosecution case where ocular evidence is cogent-Statements of accused
recorded on old proforma is a procedural irregularity-mere use of incorrect proforma does not
vitiate trial unless "failure of justice" or "prejudice" is proved-Non-compliance with technicalities
of section 313 CrPC is a curable irregularity-Relationship of witnesses to deceased is not ground
for discarding testimony if the testimony is found natural and consistent-Injuries including
fractures and incised looking wounds on tense body structures, were consistent with the brutal
assault described by eye-witnesses-Conviction of surviving appellants under section 302/34
affirmed.(Para 29 to 58)
Held
The court ruled that where ocular evidence is cogent and provides a clear account of assault, minor
discrepancies between the weapon used and the nature of injury do not undermine the prosecution's case.
2 All. Ram Narain & Ors. Vs. State of U.P.
247
furthermore, the non-recovery of the weapon of offence is not fatal when the eye-witness accounts are found
to be reliable and are corroborated by the post-mortem findings. The court found no illegality or infirmity in
the findings of the Trial court, the conviction and life imprisonment sentence are upheld. (E-6)

Case law Cited
Anil Phukan Vs State of Assam; AIR 1993 SC 1462, State of Karnataka Vs Babu & Ors; AIR 1994 SC 31,
Suresh Rai & Ors Vs State of Bihar; AIR 2000 SC 2207 , Surendra Koli Vs The State of U.P. & Anr.; Curative
Petition (Cri.) No....... of 2025 @ Diary No 49297 of 2025 in R.P. Crl.) No 395/2014 in Crl. A. No 2227 of 2010,
Indrakunwar Vs The State of Chhattisgarh; 2023 LiveLaw (SC) 932, Kalicharan & Ors. Vs State of U.P.; 2022
LiveLaw (SC) 1027 & Reena Hazarika Vs State of Assam (2019) 13 SCC 289, Indrakunwar Vs The State of
Chhattisgarh , Kalicharan & Ors. Vs State of U.P , State of U.P. Vs Sudhir Kumar Singh & Ors; (2021) 19 SCC
706,Ramesh Singh @ Photti Vs State of A.P; AIR 2004 (SC) 4545, Anil Phukan Vs State of Assam, State of
Karnataka Vs Babu & Ors, Surendra Koli Vs The State of U.P. & Anr , Suresh Rai & Ors Vs State of Biharreferred to.

List of Acts
Indian Penal Code, 1860
Criminal Procedure Code, 1973

List of Keywords
Murder, Common intention, Unlawful Assembly, Examination of accuse, Procedural irregularity, Prejudice,
Repealed code, Failure of justice, Interested witness, Eye witness, Credibility, Scrutiny, Enmity, Post-mortem
report, Lacerated wound, Incised wound, Transfer of case, Presiding officer, Validity of Trial, Non-recovery of
weapon.

Case Arising from
CRIMINAL JURISDICTION: CRIMINAL APPEAL No.- 492 OF 1982
Ram Narain & Ors Vs. State of U.P.
From the judgment and order dated 13.02.2026 of the High Court of judicature at Allahabad.

Appearances for Parties
Advs. for Appellant(s) :-
R.S Shukla, Brij, Mohan Sahai, Raj Priya Srivastava, Rajendra Prasad Mishra
Adv. for Respondent(s):-
G.A.,

(Delivered by Hon'ble Rajnish Kumar, J.)

(1) Heard Sri Rajendra Prasad Mishra, learned counsel for the appellants and Sri Arunendra,
learned A.G.A. for the State.

(2) The instant Criminal Appeal under Section 374(2) of the Code of Criminal Procedure,
1973 (here-in-after referred as Cr.P.C.) has been filed against the judgment and order dated
18.06.1982 passed by learned IInd-Additional Sessions Judge, Gonda in Sessions Trial No.209 of
1979, arising out of F.I.R./Crime No.71 of 1979, under Sections 147, 148, 149, 302 of the Indian
Penal Code, 1860 (here-in-after referred as I.P.C.), Police Station Kotwali Dehat, District Gonda,
whereby the appellants have been convicted and sentenced under Section 302/34 I.P.C. for life
imprisonment.
248 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) The case of the prosecution, in short, as disclosed in the F.I.R. (Ex. Ka-2), is that one Devi
Prasad son of Samai Deen got registered a case of murder in December, 1978 against complainant
of the present case, namely Rajendra Prasad and his deceased uncle Ram Shanker at Police Station
Kotwali City, District Gonda, wherein both i.e. the complainant Rajendra Prasad and his uncle Ram
Shanker were bailed out. It is alleged that on account of the said case, Ram Narain son of Samai
Deen was keeping much enmity with them. It has further been stated that on 08.03.1979 at 08:00
AM, the complainant Rajendra Prasad and his uncle Ram Shanker headed for Village Khamariha,
where his uncle Ram Shanker has his cultivation. At 10:30 AM they reached in Village Khamariha
and after seeing the work of cultivation, they proceeded at about 02:00 PM from Village
Khamariha to Village Madadeva and when they reached Village Salpur (Sajpur) at about 03:00
PM, Gur Charan Kori of his village met them. The complainant Rajendra Prasad, his uncle Ram
Shanker and Gur Charan Kori were coming on foot. At about 04:00 PM, on the road in front of
Village Patkhauli, the accused Ram Narain son of Samai Deen, Janendri son of Lalta Prasad, Ram
Phere son of Lalta Prasad, Resident of Village Mahadeva, Police Station Kotwali Dehat, District
Gonda, Naiyer son of Ram Anuj R/o Village Gaura, Police Station Mankapur, District Gonda, who
is son-in-law of Samai Deen and Ram Uggar son of Mata Prasad R/o Village Pathkauli, Police
Station Kotwali Dehat, District Gonda, armed with lathi, ballam and farsa, came out from field of
Arhar crop, located at west side of the road, and chased them with intention to assault. Ram Uggar
shouted to kill them. In the meantime, five accused persons surrounded Ram Shanker at about 100
gaj on the eastern side of the road and started assaulting him, therefore, the complainant, Rajendra
Prasad raised alarm, on which Laxmi Prasad son of Amrica Prasad R/o Village Pipri and Bhikham
Datt R/o Village Dhanauli, who were passing from the road, came running and scolded, on which
the accused fled away towards the east. It has also been stated in the report that the complainant
alongwith Gur Charan Kori went towards Ram Shanker and found that Ram Shanker had died on
account of injuries sustained by him and, thereafter, leaving Gur Charan and others near the dead
body, he has come for information, therefore, report may be written and appropriate action may be
taken. Accordingly, on the basis of written report (Ex. Ka-2), the F.I.R. was lodged at Police
Station Kotwali (Dehat), District Gonda at 18:45 hours on 08.03.1979 vide Chik F.I.R. (Ex. Ka-5),
under Sections 147, 148, 302/149 I.P.C. and the same was registered in G.D. at Serial No.32 (Ex.
Ka-6).

(4) Investigation of the case was entrusted to Sub Inspector B.N. Singh (P.W.-6). He recorded
the statement of complainant at the Police Station itself and then went to the place of occurrence at
10:30 PM. However, inquest proceedings could not be held for want of source of light in the night
and, accordingly, it was held in the following morning. The Investigating Officer also prepared
diagram of the dead body, challan of the dead body and letter to C.M.O. He also recovered bloodstained and plain soil from the place of occurrence and prepared memo of the dead body. The dead
body was sealed in a cloth and sent for post mortem. He then prepared the site plan. He searched
for the accused with no result. Further investigation of the case was taken up by the S.O.

(5) Dr. Y. N. Pathak; P.W.-1 conducted the post mortem of the dead body of the deceased and
prepared post mortem report on 09.03.1979. The Investigating Officer, after recording the
statements and completion of the investigation, submitted charge sheet. The case was committed to
sessions on 07.08.1979. The Sessions Court framed charges under Sections 147 and 302/149 I.P.C.
on 28.01.1980. The accused persons pleaded not guilty to the charges and claimed to be tried.
2 All. Ram Narain & Ors. Vs. State of U.P.
249

(6) In order to prove its case, the prosecution produced Dr. Y. N. Pathak as P.W.-1,
Complainant Rajendra Prasad as P.W.-2, Gur Charan as P.W.-3, Bhikam Dutt as P.W.-4, Mohd.
Umar as P.W.-5 and I.O. Brij Narain Singh as P.W.-6 and Government Finger Print Expert Shiv
Mangal Pandey was examined as C.W.-1 and Nanhu as C.W.-2.

(7) The prosecution also produced and proved the post mortem report as Ex. Ka-1, written
F.I.R. as Ex. Ka-2, receipt and counter foil regarding purchase of cattle as Ex. Ka-3 & Ex. Ka-4,
chik F.I.R. as Ex. Ka-5, G.D. of registration of case as Ex. Ka-6, inquest report as Ex. Ka-7,
diagram of dead body as Ex. Ka-8, challan as Ex. Ka-9, letter to C.M.O. as Ex. Ka.10,
memorandum of blood stained and plain soil as Ex. Ka-11, site plan as Ex. Ka-12, extract of
Khatauni of deceased Ram Shanker as Ex. Ka-13 and receipt as Ex. Ka-14 in documentary
evidences. The prosecution also produced sweater etc. of the deceased as Material Ex. 1 to 8 and
blood stained and plain soil of earth as Material Ex. 9 & 10. C.W.-1 has also proved his expert
report and cognate papers as Ex. C-1 to C-8.

(8) The defence produced extract of statement of P.W.-1 as Ex. Kha-1, affidavit of Rajendra
Prasad etc. as Ex. Kha-1(A) to Kha-4 and expert's reports etc. as Ex. Kha-5 to Kha-9, copy of
charge sheet as Ex. Kha-10, copy of statement of Ram Shanker as Ex. Kha-11 and police report
under Sections 107/116 Cr.P.C. as Ex. Kha-12.

(9) The trial Court, after affording opportunity of hearing to the learned Government Counsel
as well as learned counsel for the defence, passed the impugned judgment and order of conviction
and sentence. Hence, this appeal has been filed on behalf of the appellant No.1; Ram Narain,
appellant No.2; Gyanendri (Janendri), appellant No.3; Ram Pher and appellant No.4; Ram Uggar
alias Ram Ugra.

(10) During pendency of this appeal, the appellant No.2; Gyanendri (Janendri) and the
appellant No.3; Ram Pher died, therefore, the appeal on their behalf abated. Hence this appeal
survives only on behalf of the appellant No.1; Ram Narain and the appellant No.4; Ram Uggar
alias Ram Ugra.

(11) Learned counsel for the appellants submitted that the appellants have been convicted and
sentenced by the impugned judgment and order without considering the evidence and material on
record appropriately. He further submitted that there are contradictions in the evidence of the
prosecution witnesses, presence of the P.W.-2 and P.W.-4 i.e. complainant on the spot is doubtful,
there is material contradiction in the testimony of P.W.-2, P.W.-3 and C.W.-1. He further submitted
that the P.W.-2, P.W.-3 and C.W.-1 are of one village and they are interested witness. He further
submitted that injuries does not tally with the alleged weapon used in the crime and the post
mortem report also does not support the prosecution case. He further submitted that the signatures
on the receipt of purchase of Ox are not tallied either in the report of the hand writing expert
submitted by the appellants or in the report of the Government Hand Writing Expert, who appeared
as court witness. He further submitted that as per prosecution story, Ram Pher and Gyanendri were
armed with farsa, Ram Uggar and Naiyer with lathi and Ram Narain with bhala in their hands. The
learned trial Court has acquitted the Naiyer giving benefit of doubt, therefore, Ram Uggar is also
entitled to be acquitted on the benefit of doubt but the learned trial Court failed to consider it and
250 INDIAN LAW REPORTS ALLAHABAD SERIES
convicted him also. He also submitted that the aunt/chachi of the deceased Ram Shanker, who was
material witness, has not been examined. He further submitted that the trial vitiated on account of
non application of mind because the statement of the accused persons under Section 313 Cr.P.C.
has been recorded under the old Cr.P.C. i.e. under Section 364 of the Code of Criminal Procedure,
1898. He further submitted that the evidence was closed in the trial Court on 03.05.1981 and since
the judgment was not pronounced by the Presiding Officer, who has passed the impugned judgment
and order, even after fixing several dates for judgment, therefore, an application was moved before
this Court i.e. High Court for transfer of the case and the case was transferred by means of the order
dated 05.10.1981 to the Court of Second Additional District and Session Judge and in the
meantime, the said Presiding Officer had assumed the charge of Second Additional District and
Session Judge and he passed the impugned judgment and order, whereas when the case was
transferred by this Court from his Court on a transfer application, he could not have decided it,
therefore, the impugned judgment and order is not sustainable in the eyes of law.

(12) On the basis of above, learned counsel for the appellants submitted that the impugned
judgment and order is liable to be set aside and the appellants are liable to be acquitted. He relied
on Anil Phukan Vs. State of Assam; AIR 1993 SC 1462, State of Karnataka Vs. Babu and
Others; AIR 1994 SC 31, Suresh Rai and Others Vs. State of Bihar; AIR 2000 SC 2207,
Surendra Koli Vs. The State of Uttar Pradesh & Another; Curative Petition (Crl.) No........ of
2025 @ Diary No.49297 of 2025 in R.P. (Crl.) No.395/2014 in Crl. A. No.2227 of 2010,
Indrakunwar Vs. The State of Chhattisgarh; 2023 LiveLaw (SC) 932, Kalicharan & Ors. Vs.
State of Uttar Pradesh; 2022 LiveLaw (SC) 1027 and Reena Hazarika Vs. State of Assam;
(2019) 13 SCC 289.

(13) Per contra, learned A.G.A. submitted that the impugned judgment and order of conviction
and sentence has rightly been passed by the learned trial Court in accordance with law. He further
submitted that the F.I.R. was lodged promptly and merely because there are minor contradictions in
the evidence of the prosecution witnesses and the Court witnesses, it cannot be said that their
testimony is not reliable. He further submitted that the post mortem report corroborates the
prosecution case and there was strong motive. He further submitted that the fact of sale of Ox was
raised by the defence and in this regard an affidavit was also filed, which was sealed immediately.
He further submitted that recording of statement of the appellants under Section 313 Cr.P.C. on the
proforma of old Act can be an irregularity but not an illegality, on account of which, the trial may
be said to have vitiated.

(14) On the basis of above, learned A.G.A. submitted that the appellants have rightly been
convicted and sentenced by the impugned judgment and order, which has been passed by a
reasoned and speaking order. It has also been submitted that the arguments advanced by learned
counsel for the appellants that even after transfer of the case to the Court of Second Additional
District and Session Judge from the Court of the Presiding Officer, who has passed the impugned
order, he could not have passed the order and the impugned judgment and order is liable to be set
aside, is misconceived and not tenable for the reason, firstly, no such order has been produced and
the same was considered by the trial Court and after passing an order, trial was decided, which was
not challenged. Secondly, learned counsel for the appellants also failed to show any prejudice
caused to the appellants on account of it. Thus, learned A.G.A. submitted that the appeal has been
2 All. Ram Narain & Ors. Vs. State of U.P.
251
filed on misconceived and baseless grounds and none of the contentions of learned counsel for the
appellants are sustainable. The appeal is liable to be dismissed.

(15) We have considered the submissions of learned counsel for the parties and perused the
records.

(16) One of the grounds of challenge to the impugned judgment and order is that even after
closure of evidence on 03.05.1981, since the judgment was not pronounced by the Presiding
Officer of the concerned Court, which was being held by the Officer, who has passed the impugned
judgment and order at that time, therefore, an application was moved before this Court for transfer
of the case and the case was transferred by means of the order dated 05.10.1981 by this Court to the
Court of Second Additional District and Session Judge and in the meantime, the said Presiding
Officer had assumed the charge of Second Additional District and Session Judge, therefore, in view
of the order passed by this Court, he could not have decided the case. However, the order passed by
this Court is neither available in the Trial Court's record nor the same has been produced by learned
counsel for the appellants.

(17) On perusal of the Trial Court's record, it is found that on 13.05.1981, the evidence of
C.W.-1 was recorded and the case was fixed for arguments on 28.05.1981. Thereafter some dates
were fixed for arguments. On 08.07.1981, the case was adjourned on account of transfer of the
Presiding Officer and on 14.07.1981, certain documents were placed on record by learned counsel
for the accused. By means of the order dated 05.10.1981, the case was transferred to the Court of
Second Additional Session Judge as per order of the High Court. However, neither the date of order
of the High Court is mentioned nor the case number of the High Court is mentioned. It could also
not be produced and shown by learned counsel for the appellants. The C.W.-2 was examined on
03.05.1982. Thereafter statement under Section 313 Cr.P.C. of accused were recorded and the case
was fixed for arguments. On 24.05.1984, it was fixed for 29.05.1982. On the said date, after
hearing arguments, the case was fixed on 31.05.1982 for judgment. However, on an application
moved by the accused subsequently, the date was changed to 07.06.1982.

(18) The learned trial Court passed an order on 07.06.1982 on the point of transfer of the case,
in view of ensuing shift in order of Session Judge after hearing learned counsel for the parties. It is
mentioned in the order that the case was transferred to the said Court by order passed by the High
Court on 28.09.1981. It was not a case transferred to the said Court under the transfer order passed
by him as In-charge Sessions Judge in July, 1981 but one made by the High Court on 28.09.1981. It
has been observed that this fact was never brought to his notice earlier and the order was filed in
the Court of Third Additional Session Judge, Gonda and since this case found mention in the list of
cases directed to be transferred under Section 409 Cr.P.C., it was taken to have landed in the said
Court in compliance of that order. He further recorded that he had gone through the Hon'ble High
Court's order and it appears from the perusal of that order that it was transferred to his Court by
name, therefore, the case was to be disposed of by him alone under the existing position. Lastly, it
has been recorded that the accused also said that he should dispose of the case. The said order was
not challenged.
252 INDIAN LAW REPORTS ALLAHABAD SERIES

(19) In view of above, since the order passed by this Court has not been placed before this
Court and is also not in the Trial Court's record, the position, as emerged from the aforesaid order,
could not be doubted in any manner. The consent of the appellants for disposal of the case by the
said Presiding Officer and the Court is also recorded in the said order. Thus, this Court does not
find any illegality or error in disposal of the case by the said Presiding Officer. Even otherwise,
learned counsel for the appellants has failed to show any prejudice caused to the appellants on
account of passing of the impugned order by the said Presiding Officer. This Court also does not
find any prejudice to have been caused to the appellants on account of the aforesaid facts. Thus, the
contention raised by learned counsel for the appellants is misconceived and not tenable, hence
rejected.

(20) The other ground raised by learned counsel for the appellants is that the learned Trial
Court recorded the statements of the appellants under Section 364 of the Code of Criminal
Procedure, 1898 on the proforma prescribed for the same, whereas the said Act was not in
existence because the said Act was repealed by Section 484 of the Code of Criminal Procedure,
1973, which came into force w.e.f. 01.04.1974, therefore, the entire proceedings are vitiated and
liable to be quashed. The Code of Criminal Procedure, 1898 was repealed by Section 484 but, by
means of the Section 484(2)(b) Cr.P.C., 1973, all forms prescribed alongwith others, which were
enforced immediately before commencement of the said Code, have been deemed respectively to
have been published, issued, conferred, prescribed defined, passed or made under the
corresponding provisions of this Code, which is extracted here-in-below:-

"all notifications published, proclamations issued, powers conferred, forms prescribed,
local jurisdictions defined, sentences passed and orders, rules and appointments, not being
appointments as Special Magistrates, made under the Old Code and which are in force
immediately before the commencement of this Code, shall be deemed, respectively, to have been
published, issued, conferred, prescribed, defined, passed or made under the corresponding
provisions of this Code;

(21) Section 8 of The General Clauses Act, 1897 provides Construction of references to
repealed enactments. It provides that where this Act, or any Central Act or Regulation made after
the commencement of this Act, repeals and re-enacts, with or without modification, any provision
of a former enactment, then references in any other enactment or in any instrument to the provision
so repealed shall, unless a different intention appears, be construed as references to the provision so
re-enacted. In view of above, the object of the provision is that where any act is repealed and reenacted, references in any other enactment or instrument to provisions of the repealed former
enactment must be read and construed as references to the corrosponding provision of re-enacted
new provision, unless a different intention appears. Thus, the reference to the provision in the
format, on which the statement under Section 364 Cr.P.C., 1898 was recorded, would be referable
to Section 313 Cr.P.C., 1973.

(22) In view of above, the forms prescribed under the old Act have been deemed to have been
prescribed under the corresponding provisions of Code of Criminal Procedure, 1973. Perusal of the
records indicates that though the statement under Section 313 Cr.P.C. of the accused/appellants
were recorded, but it started on the proforma prescribed for statement under Section 364 of the
2 All. Ram Narain & Ors. Vs. State of U.P.
253
Criminal Procedure Code, 1898 on 10.05.1982, whereas in the order sheet of the said date, it has
been mentioned that the statement of accused persons were recorded under Section 313 Cr.P.C.

(23) Learned counsel for the appellants failed to point out any discrepancy, illegality or error
in the statements of the appellants under Section 313 Cr.P.C. except above. This Court is of the
view that it may be an irregularity and cannot be said to an illegality affecting the trial or merit of
case in itself, on account of which the whole trial may be said to have vitiated. Even otherwise,
learned counsel for the appellants has failed to point out any discrepancy or illegality in the
statements of the appellants recorded under Section 313 Cr.P.C., as referred in the order sheet of
the said date, in any manner or it may have caused any prejudice to the appellants in any manner. It
is also settled in law that merely by mentioning of wrong provision, the order or any proceeding
etc. cannot be said to be vitiated and set aside. Even otherwise, it may have been a procedural
violation only, therefore, the appellants have to show that on account of it, they could not get
proper opportunity to defend them and it prejudiced them in any manner, but they failed to do so.
Thus, the contention in this regard is wholly misconceived and not tenable and liable to be repelled,
repelled accordingly.

(24) The Hon'ble Supreme Court, in the case of Indrakunwar Vs. The State of Chhattisgarh
(Supra), has held that under Section 313 Cr.P.C., the Court is obligated to put, in the form of
questions, all incriminating circumstances to the accused so as to give him an opportunity to
articulate his defence. The defence so articulated must be carefully scrutinized and considered.
Non-compliance with the Section may cause prejudice to the accused and may impede the process
of arriving at a fair decision. However, this statement does not qualify as a piece of evidence under
Section 3 of the Indian Evidence Act, 1872. However, the inculpatory aspect as may be borne from
the statement may be used to lend credence to the case of the prosecution.

(25) Similar view has been expressed by the Hon'ble Supreme Court in the cases of
Kalicharan & Ors. Vs. State of Uttar Pradesh (Supra) and Reena Hazarika Vs. State of
Assam (Supra). The relevant paragraph No.19 of the judgment rendered in the case of Reena
Hazarika Vs. State of Assam (Supra) is extracted herein below:-

"19. Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It
confers a valuable right upon an accused to establish his innocence and can well be considered
beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution,
even if it is not to be considered as a piece of substantive evidence, not being on oath under Section
313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but
it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the
accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C.
the Court is duty bound under Section 313(4) Cr.P.C. to consider the same. The mere use of the
word 'may' cannot be held to confer a discretionary power on the court to consider or not to
consider such defence, since it constitutes a valuable right of an accused for access to justice, and
the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or
not and whether it is compatible or incompatible with the evidence available is an entirely different
matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in
the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast
254 INDIAN LAW REPORTS ALLAHABAD SERIES
on the court in dispensation of justice to adequately consider the defence of the accused taken
under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing."

(26) The Hon'ble Supreme Court, in the case of State of Uttar Pradesh Vs. Sudhir Kumar
Singh and Others; (2021) 19 SCC 706, held that breach of the audi alteram partem rule cannot by
itself, without more, lead to the conclusion that prejudice is thereby caused. Where procedural
and/or substantive provisions of law embody the principles of natural justice, their infraction per se
does not lead to invalidity of the orders passed.

(27) Adverting to the facts of the present case, the incident had occurred on 08.03.1979 at
about 04:00 PM. The F.I.R. of the incident was lodged on the same date at about 06:45 PM at
Police Station Kotwali Dehat, District Gonda. The distance of the Police Station and the place of
occurrence is about 6.5 miles. The F.I.R. (Ex. Ka-5) was lodged on the basis of written complaint
(Ex. Ka-2) of P.W.-2; Rajendra Prasad. The G.D. entry of the same was made, which was proved
as Ex. Ka-6 by the Investigating Officer; Brij Narain Singh. The Investigating Officer also proved
the F.I.R., the time of lodging of the F.I.R. and start of investigation. Thus, the F.I.R. was lodged
promptly and there was no delay in lodging the F.I.R. The learned Trial Court also, after
considering the evidence and material on record, found that there was no delay in lodging the F.I.R.
and it has not been lodged in consultation with anybody.

(28) So far as the motive for perpetration of the crime is concerned, the learned Trial Court has
recorded a finding that there is proximate and perpetuated motive for the crime by the accused. The
learned Trial Court found that the motive is locative in the nomination of the complainant and the
deceased in the roll call of murders of Samai Deen father of Ram Narain, who was murdered in
December, 1978. The P.W.-2; Rajendra Prasad has deposed in his examination-in-chief about the
motive and stated that he and the deceased Ram Shanker, who was his uncle, were accused in the
aforesaid murder of Samai Deen. They were released on bail, barely 22 days ago of the incident.
This fact has also been mentioned in the F.I.R. He also stated that his father's cousin, accused Ram
Pher and Gyanendri wanted to cultivate his land and infact they cultivated for two fasli years. The
accused Naiyar, son-in-law of the aforesaid Samai Deen, also stated that his uncle Ram Pher had
assaulted accused Ram Ugra about three years ago and a criminal case under Section 325 I.P.C.,
emanating therefrom, was pending, when his murder took place. In the cross-examination, he has
not deviated from his statement in examination-in-chief, which may create any doubt about his
statement. Though the defence tried to show that the complainant, Rajendra Prasad had some illicit
nexus with the widow of his uncle Ram Shanker and he was murdered in the night by somebody
else but they have falsely been implicated. However, it failed to prove it or extract anything from
the complainant, which may infer in any manner about the illicit nexus between the complainant
and the widow of the deceased.

(29) This is a case of direct evidence and eye witness account. In the case of direct evidence,
motive is insignificant if the ocular evidence is strong enough to record the finding of guilt and in
such circumstances, motive can only have a corroborative role and not more than that. Thus, this
case is to be tested on the basis of ocular evidence adduced by the prosecution and the material
placed on record.
2 All. Ram Narain & Ors. Vs. State of U.P.
255

(30) The complainant Rajendra Prasad appeared as P.W.-2. He stated that about 18 months
back, he was going alongwith his uncle Ram Shanker from his home to Khamaria, where his uncle
had five and half bighas of land, which was being ploughed. They had gone to see it. They reached
Khamaria at 10:00 AM and after seeing the field, which was half ploughed by Sattar, they, as per
their commitment, went towards Sajpur market at 10:30 AM for purchasing bull for Gurcharan
Kori of his village. Gurcharan Kori met them in Sajpur market then they went to Dhanepur by taxi
and there in the Vardahi market, they purchased the bull from Nanhu of their village. The doctor
had passed the bull and a receipt of which was given. After purchasing the bull, all the three
persons came back to Sajpur by tempo. They had asked the owner of the bull, Nanhu, to handover
the bull in the village. From there, he and his uncle went to Khamaria and Gurcharan went to
Sajpur market to see bull for his maternal uncle, as his maternal uncle had asked him to see a bull
of a man in Sajpur and if it is good, he would purchase it. He and his uncle Ram Shanker went to
Khamaria on foot asking Gurcharan that they will meet him after returning in Sajpur and then they
will go together. He and his uncle Ram Shanker returned from Sajpur at 02:00 PM, where
Gurcharan met.

(31) He further stated that they took tea and then they started for their village on foot, which is
about 1.5 - 1.75 miles. They were coming from Utraula Dhanepur Road and reached near village
Patkhauli at about 04:00 PM, where the accused Ram Narain, Ram Pher, Janendri, Ram Ugra and
Naiyar were sitting in the field of Arhar in the West of the road and when they reached near to it,
all the five accused came out and chased them. Ram Narain was having a gun in his hand, Ram
Pher and Janendri were having farsa in their hands and Naiyar and Ram Ugra were having lathi in
their hands. He further stated that accused Ram Ugra came ahead and exhorted to kill and with this
exhortation, he gave a blow of lathi on the knee of Ram Shanker. His uncle crying ran towards the
east, he and Gurcharan ran towards the north. They suddenly dragged Ram Shanker about 100
yards towards the east in the field of gram and canola (राई) having canola (राई) harvested and gram
standing. Ram Shanker fell there and the accused persons kept on beating with the aforesaid arms.
He and Gurcharan started shouting from the road, on which the witnesses Bhikham Datt and Laxmi
Prasad came. Laxmi was having lathi, who was going towards south and Bhikham was going by
cycle towards the north. The witnesses scolded but the accused ran away, but only after killing
Ram Shanker. Thereafter, they went near the deceased and found him dead. Thereafter, leaving
Gurcharan near the dead body, he went to his house. The witnesses also remained there.

(32) He also stated in his evidence that he knows the accused Ram Narain, Ram Pher,
Janendri, Ram Ugra and Naiyar. Father of the Ram Narain was murdered and he and his uncle i.e.
the deceased Ram Shanker were accused in the said case and they were released on bail, barely 22
days ago from the date of incident. Ram Pher and Janendri are his co-tenure holders. Their father
and his Aaja were real brothers. After death of his father, he started living with the deceased Ram
Shanker. The accused Ram Pher and Janendri wanted to plough his field but on account of his
company with Ram Shanker, they could not do it, therefore, they were keeping enmity with Ram
Shanker and after the death of Ram Shanker, for two half years, they ploughed the field. Naiyar is
son-in-law of Samai Deen. Samai Deen was father of accused Ram Narain, in whose murder he and
his uncle were accused. His uncle Ram Shanker had beaten the accused Ram Ugra about three
years ago, on account of which, a case under Section 325 I.P.C. was instituted and on account of
the aforesaid enmity, the accused have committed crime.
256 INDIAN LAW REPORTS ALLAHABAD SERIES

(33) He further stated that after reaching his house, he wrote a report on a paper and after
seeing the report, he stated that it is the same report, which was written by him and it was marked
as Ex. Ka-2. From the house he went to Kotwali and gave the report to Munshi and the Munshi
gave him chik. He further stated that the Inspector had recorded his statement at the Police Station.
Thereafter, the Inspector came with him to his house and after consoling his aunt etc. they went to
the place of incident. In the meantime, night stood advanced, therefore, the Investigating Officer
sent for a cot from his house and he stayed at the place of occurrence. The inquest was prepared in
the morning. He was also witness to the inquest and proved his signatures on the inquest report.
Thereafter, the Investigating Officer prepared the site plan on his pointing out. Seeing the site plan,
he stated that the site plan was rightly prepared. Thereafter, a sealed bundle containing blood
stained and earth stained yellow sweater of the deceased was opened, which he proved of his and
and marked as Ex. 1 to 8. He stated that no cut or gap in the sweater was visible. There was,
however, a blood stained and earth stained cut on the lower portion and another on the collar of the
coat, shown by the witness. In the cut on the coat, brown threads stood turn, while yellow ones
were intact. The witness also showed the dried up under clothing of the coat resulting from blood.
He also showed the cut mark above the bloody spot on the shirt with warp intact. He also maintains
that on the inner side too, there were locative bigger bloody spots emitting bloody odour. He then
showed bloody patches on the Dhoti with a cut on the lower part. The Dhoti was in shambles. The
witness did placing of those pieces to make Dhoti one piece on the floor. He also showed a bloody
mark on the Dhoti in the middle, which became a bloody train of desperate pieces. He also showed
two holes lengthwise near the border of the Dhoti. The underwear was shown to be tattered. He
then showed some reddish matter agglutinated to the underwear and maintained that it smelt of
faecal matter.

(34) In the cross-examination, Rajendra Prasad had maintained his evidence given in
examination-in-chief. He also stated that receipt of bullock sale is bearing his signature and those
of others and he and Ram Shanker were the witnesses of that receipt prepared in the cattle fair and
removal of receipt by the accused from the pocket of deceased Ram Shanker. He stated that loan
for purchase of bullock could be taken from co-operative society through veterinary doctor only.
He also stated that the doctor gave a sum of Rs.2,112/- that day for purchase of two bulls, from
which, the said two bulls were purchased. The receipt was kept by the Ram Shanker in his pocket,
which was snatched by the accused. However, he could not tell what other things were robbed by
the accused. He further stated in the cross-examination that on account of anguish at that time, he
omitted to explain his visit to Dhanepur in the company of Ram Shanker and Gurcharan in F.I.R.
and in his statement to the Investigating Officer and the affidavit (Ex. Kha-1A) sworn at the time of
bail. However, the fact of going for purchasing of bulls has been mentioned in the F.I.R. The
meeting of Gurcharan with the complainant and the deceased at Sajpur at 03:00 PM is also
mentioned in the F.I.R.