# Ram Pal v. State of U.P

- **Citation:** Criminal Appeal No. 577 of 2009
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-13
- **Case number:** Criminal Appeal No. 577 of 2009
- **Bench:** Ritu Raj Awasthi, Vikas Kunvar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-pal-v-state-of-u-p-46401
- **Pages:** 59

## Headnote

A. Evidence law- Indian Evidence Act, Section
154 - Hostile witness- The common law
principle, ''falsus in uno falsus in omnibus' does
not apply in Indian Law of Evidence- - The
evidence of a Hostile Witness cannot be altogether
rejected and the part of the evidence, which finds
corroboration from other evidence, is admissible.

B. Evidence law- Indian Evidence Act- Section 3-
Related or Interested Witnesses- Fact that the
witnesses are related to each other is no ground
for disbelieving their evidence- Relative should
have no interest to falsely implicate the accused
or protect the real culprit - There is no reason for
related witnesses to falsely implicate the accused and let
the real culprits go scot free. However, The Court has to
treat the said evidence with caution.

C. Evidence law- Indian Evidence Act- Section
45- Opinion of Expert -The evidence of doctor is
merely an opinion of expert under Section 45 of
the Indian Evidence Act- The expert is a valuable
witness when it becomes utmost necessary for
the court to record his evidence to form an
accurate opinion to determine that the offence
was committed by the accused-The other
evidences corroborated
with
the
expert's
witness' deposition fixes the guilt on the
accused-The testimony of eye witness should be
paramount unless medical evidence is so
conclusive as to rule out even the possibility of
eye witness's version to be true- If the opinion of
the Doctor corroborates the ocular evidence then the
accused can be safely convicted however the ocular
version shall be granted primacy over the medical
evidence unless the medical evidence overwhelmingly
contradicts the ocular version.

D. Criminal Law- Code of Criminal Procedure-
Section 313.- Opportunity to enable accused
to
explain
incriminating
circumstances
emerging out from the evidence against them
- All accused have availed the opportunity and
commonly blamed the incriminating which
came out from prosecution evidence to be
''false implication by reason of enmity'-- Failure
of the accused to provide explanation to the
incriminating material against him would lead the
Court to derive an adverse inference against him.

E. Criminal law- Indian Penal Code-Section 34
- Concept of joint liability- The proved facts
circumstances and materials available on
record
attract
the
constructive
liability
enshrined in the provision of Section 34 of the
IPC.- Section 34 Provides for joint liability of the
accused
where
the
common
intention
and
participation of the accused in the commission of the
offence is proved.
(Para 53,58,59,60,72,77,80,89,109,110)

Criminal Appeal dismissed.(E-3)

List
of
case
cited:-
3-5 All. Ram Pal Vs. State of U.P.
241

## Text

_Characters 0–39,930 of 204,061. This is a partial read: ask again with offset=39930 for what follows._

240 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Appellant is in jail. The period
spent by the appellant in jail shall be set off
from the imprisonment awarded by this
court. Learned trial court shall ensure
compliance of this order.

29. Office is hereby directed to certify
this order to the learned trial court
immediately. The lower court record
should also be transmitted forthwith.
----------
(2020)03-05ILR A240
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.05.2020

BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE VIKAS KUNVAR
SRIVASTAVA, J.

Criminal Appeal No. 577 of 2009
&
Criminal Appeal No. 371 of 2009
&
Criminal Appeal No. 655 of 2009

Ram Pal ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Ashok Verma, Anil Kumar Pandey (Amicus)
Pramod Kumar Shukla, Sanandan Kumar
Misra, Soniya Mishra

Counsel for the Respondent:
G.A., M.L. Syal, Shashi Kiran Arya

A. Evidence law- Indian Evidence Act, Section
154 - Hostile witness- The common law
principle, ''falsus in uno falsus in omnibus' does
not apply in Indian Law of Evidence- - The
evidence of a Hostile Witness cannot be altogether
rejected and the part of the evidence, which finds
corroboration from other evidence, is admissible.

B. Evidence law- Indian Evidence Act- Section 3-
Related or Interested Witnesses- Fact that the
witnesses are related to each other is no ground
for disbelieving their evidence- Relative should
have no interest to falsely implicate the accused
or protect the real culprit - There is no reason for
related witnesses to falsely implicate the accused and let
the real culprits go scot free. However, The Court has to
treat the said evidence with caution.

C. Evidence law- Indian Evidence Act- Section
45- Opinion of Expert -The evidence of doctor is
merely an opinion of expert under Section 45 of
the Indian Evidence Act- The expert is a valuable
witness when it becomes utmost necessary for
the court to record his evidence to form an
accurate opinion to determine that the offence
was committed by the accused-The other
evidences corroborated
with
the
expert's
witness' deposition fixes the guilt on the
accused-The testimony of eye witness should be
paramount unless medical evidence is so
conclusive as to rule out even the possibility of
eye witness's version to be true- If the opinion of
the Doctor corroborates the ocular evidence then the
accused can be safely convicted however the ocular
version shall be granted primacy over the medical
evidence unless the medical evidence overwhelmingly
contradicts the ocular version.

D. Criminal Law- Code of Criminal Procedure-
Section 313.- Opportunity to enable accused
to
explain
incriminating
circumstances
emerging out from the evidence against them
- All accused have availed the opportunity and
commonly blamed the incriminating which
came out from prosecution evidence to be
''false implication by reason of enmity'-- Failure
of the accused to provide explanation to the
incriminating material against him would lead the
Court to derive an adverse inference against him.

E. Criminal law- Indian Penal Code-Section 34
- Concept of joint liability- The proved facts
circumstances and materials available on
record
attract
the
constructive
liability
enshrined in the provision of Section 34 of the
IPC.- Section 34 Provides for joint liability of the
accused
where
the
common
intention
and
participation of the accused in the commission of the
offence is proved.
(Para 53,58,59,60,72,77,80,89,109,110)

Criminal Appeal dismissed.(E-3)

List
of
case
cited:-
3-5 All. Ram Pal Vs. State of U.P.
241
1. Dahari & ors. Vs. St. of U.P. (2012) 10 SCC
256

2. Vijendra Singh & ors. Vs. St. of U.P. (2017)
11 SCC 129

3. Darya Singh Vs. St. of Punj. AIR 1965 SC
328 (331)

4. Mahendra Singh Vs. St. of U.P. (2017) 11
SCC 129

5. Raghubeer Singh Vs. St. of U.P. (1972) 3 SCC
79

6. Maqsoodan Vs. St. of U.P. (1983) 1 SCC 218

7. Veer Singh Vs. St. of U.P. (2014) 2 SCC 455

8. Shyam Babu Vs. St. of U.P. (2012) 8 SCC 651

9. Brahma Swaroop Vs. St. of U.P. (2011) 6 SCC
288

10. Guru Singh Vs. St. of Raj. (2011) 2 SCC 205

11.Attar Singh Vs. St. of Maha. (2013) 11 SCC
719

12. Mrinal Das Vs. St. of Trip. (2011) 9 SCC 479

13. Anil Rai Vs. St of Bih. (2001) 7 SCC 318

14. St. of U.P. Vs. Harban Sahai & Ors. (1998) 6
SCC 50

15. Thaman Kumar Vs. St. of U.T of Chandi.
(2003) 6 SCC 380

16. Reena Hazarika Vs. St. of Assam (2019) 13
SCC 289

17. Sheikh Sattar Vs. St. of Maha. (2010) 8 SCC
430

18. Jitendra Kumar Vs. St. of Har. (2012) 6 SCC
204

19. 'Barendra Kumar Ghosh Vs. King Emperor'
(AIR 1925 P.C. 1)

20. Mohan Singh Vs. St. of Punj. AIR 1963 SC
174
21.
Virendra
Vs.
St.
of
Har.
(Manu/SC/1751/2019)

(Delivered by Hon'ble Vikas Kunvar
Srivastava, J.)

These three criminal appeals have
arisen out from the judgment of Trial
Judge, the Additional Sessions Judge (Fast
Track Court), No.7 in Sessions Trial
No.431
of
1985,
dated
03.02.2009,
whereby the accused-appellants, namely
Ram Pal, Lala Ram and Babu Ram are
convicted of the offence punishable under
Section 302 IPC read with Section 34 of
the IPC and awarded with sentence to
undergo life imprisonment with fine to the
tune of Rs.5,000/- each. In case of failure to
pay the fine, they are further sentenced to
undergo imprisonment of six months.

1. The Criminal Appeal no.371 of
2009 is preferred by appellant, ''Babu Ram',
represented by Sri Kapil Mishra, Advocate
assisting learned Senior designate Sri
Jyotindra Mishra, Advocate. The criminal
Appeal No.577 of 2009 is preferred by
''Ram Pal', who is represented by learned
counsel Sri Anil Kumar Pandey in the
capacity of Amicus Curiae. The Criminal
Appeal No.655 of 2009 is preferred by
''Lala Ram' who is represented by learned
counsel Sri U.P. Singh.

2. Initially, a Case Crime No.48 of
1985 was registered on 4.4.1985 at 7:30
p.m. in Police Station 'Behta Gokul',
District 'Hardoi' under Section 302 read
with Section 34 of the I.P.C. upon the
information of Chhotey Lal, who is further
examined by the Trial Court as prosecution
witness no.1. The written complaint was
directed against: (1) Raj Pal (2) Ram Pal,
both sons of Bihari R/o Police Station
Behta Gokul, District Hardoi (3) Lal Ram
242 INDIAN LAW REPORTS ALLAHABAD SERIES
(4) Babu Ram, both sons of Digga R/o
village Paitapur, Police Station Pali,
District Hardoi.

3. When the first chargesheet was
submitted excluding the name of two named
accused Lala Ram and Babu Ram by the Police
before the Chief Judicial Magistrate, Hardoi, he
committed the case, as the same was triable by
the Sessions Judge on 17.07.1985. It comes out
from the judgment of learned Trial Judge dated
02.01.1987 that Lala Ram and Babu Ram were
summoned
for
trial
along
with
the
chargesheeted accused when the first informant
chhotelal, during his examination in chief
recorded during trial, reiterated the name of
aforesaid accused along with other two accused
named in the FIR, in exercise of power under
the provision of Section 319 Cr.P.C. It also
comes out from the judgment that during the
sessions trial, accused Raj Pal died, therefore,
the trial as against the deceased-Raj Pal was
abated
vide
order
dated
19.09.2000.
Accordingly, the trial proceeded with three
accused, namely, Babu Ram, Ram Pal and Lala
Ram. All the three accused after having been
convicted and sentenced by the impugned
judgment and order of sentence dated
03.02.2009 by the Trial Judge, have preferred
their appeal separately which are described
hereinabove.

4. All the appellants are accused of the
same criminal incident and were tried in the
same sessions trial, therefore, evidences
adduced against them are common. We heard
the learned counsels on behalf of their
respective accused-appellants. In our opinion, it
would be proper to decide all the three appeals
through a consolidated judgment so as to avoid
anomaly and contrary finding on the same
evidence.

5. The accused-appellants in the three
appeals shall be addressed hereinafter as A1
(Babu Ram) in Criminal Appeal No.371 of
2009, A2 (Rampal) in Criminal Appeal No.577
of 2009 and A3 (Lala Ram) in Criminal Appeal
No.655 of 2009.

6. The case in brief, as comes out
from the written complaint submitted by
Chhoteylal, the First Information Report
founded thereupon and the evidences, is
that on 04.04.1985 at about 7:30 p.m.,
Chottey Lal S/o Raggha Raidas R/o Village
and Police Station 'Behta Gokul', District
'Hardoi' along with Saheb Lal, (injured)
approached to the police station with a
report written in his hand writing and
signature informing thereby that his brother
Ganga Ram was killed by the accused
person, namely (1) Raj Pal, (2) Rampal
both sons of Behari, R/o village and Police
Station Behta Gokul, District Hardoi, (3)
Lala Ram and (4) Babu Ram both sons of
''Digga' residents of village Paitapur, Police
Station Pali, District Hardoi. The report
disclosed that on 04.04.1985 at about 6:00
p.m. when the deceased Ganga Ram, his
brothers Chottelal (informant) and Saheb
Lal, after sowing sugarcanes in their field
were on their way to home and reached
near the bridge over Sharda Canal, the
accused persons namely Raj Pal, Lala Ram
(A3), Babu Ram (A1) and Ram Pal (A2),
suddenly plunged over the bridge from
their hide, intercepted and asked Ganga
Ram to halt. Raj Pal (dead) was armed with
country-made pistol, A3 with gun, A2 with
Lathi (Stick) and A1 was armed with a
Gandasa (Chopper). The two accused
persons carrying fire arms named above
fired on ''Ganga Ram' with their respective
weapon due to which he got injuries and
collapsed on the ground. Thereafter A1 and
A2 inflicted on the body of Ganga Ram
blows of Gandasa and lathi respectively.
Saheblal in order to save Gangaram
received lathi blows from A2 to ward him
3-5 All. Ram Pal Vs. State of U.P.
243
off and was injured. When Chhotey Lal, the
informant made hue and cry, ''Vijay Pal'
son of Laxman and ''Kadhiley' son of
Sukkha residents of same village Behta
Gokul, who were coming on bullock-cart,
ran towards the scene of crime. ''Ganga
Ram' who was severely injured due to
profused bleeding succumbed to death on
spot. On seeing the witnesses rushing up to
the spot of incident, the accused persons
fled away. The informant has also disclosed
the motive behind the commission of crime
by the accused-appellant, that a criminal
prosecution was continuing against the
deceased (Ganga Ram), along with the
other co-accused, with regard to murder of
''Digga', (father of both A1 and A3),
wherein though Sessions Court recorded
conviction against all the accused, but in
appeal preferred by deceased in the High
Court he was released on bail during the
pendency of appeal. He further disclosed
that father of Raj Pal, namely, Bihari had
also lodged a criminal case under Section
307 I.P.C. against deceased Ganga Ram
wherein he was acquitted. Because of these
reasons, the accused hatched enmity with
deceased Gangaram and in vengeance, they
attacked Ganga Ram and done him to death
on spot. He approached to the police station
after the arrival of other family members,
leaving dead body in their supervision.

7. It would be important and relevant
to take notice of the fact that on receiving
the written report from Chhotey Lal, (the
informant), the officer in charge of the
Police Station registered FIR and the
special report was sent to the concerned
Magistrate about the commission of the
offence. Site map was prepared. Inquest
proceeding was done on the spot where the
dead body of ''Ganga Ram' was lying since
after the incident and ultimately the dead
body was sent for post-mortem to the
mortuary. From the stage of receiving the
written report of the incident upto sending
off the dead body for post-mortem, the
investigation was done by Sub Inspector
'Ram Ruchi Arya' and thereafter further
investigation upto the stage of submission
of
chargesheet
before
the
concerned
Magistrate was done by S.I., Jitendra Nath
Singh S.H.O. posted in the Police Station
with the first named I.O. The subsequent
Investigating Officer, named herein-above,
submitted three chargesheets. Out of the
four named accused persons in the FIR viz
Raj Pal, Lala Ram, Ram Pal and Babu
Ram, the first chargesheet was submitted
only against Raj Pal and Ram Pal under
Section 302 IPC read with Section 34 IPC.
Second
chargesheet
thereafter
was
submitted against two strangers namely
Pramod Kumar and Rameshwar under
Section 302 IPC read with Section 34 of
the IPC. Lastly, a third chargesheet was
submitted by the said Investigating Officer
against one more stranger to the FIR, ''Devi
Dayal' in the same incident under Section
302 IPC read with Section 34 IPC. In all
the three chargesheets the named accused
Lala Ram and Babu Ram were not
included. Accordingly, the Trial Judge in
the matter of murder of Ganga Ram as
reported in FIR dated 04.04.1985 by
Chhotey Lal, on 19.11.1985 tried along
with Raj Pal, Ram Pal the additional
chargesheeted accused also Pramod and
Rameshwar charging them under Section
302 IPC read with Section 34 IPC.
Thereafter once again the charge was
framed against Devi Dayal also on
28.07.1986. On 28.07.1986, when trial
began, on the denial from charges by the
aforesaid accused persons, the informant,
Chhotey Lal was produced as PW-1 by the
prosecution for examination on oath before
the court. He firmly said about the
involvement of Raj Pal, Ram Pal alongwith
244 INDIAN LAW REPORTS ALLAHABAD SERIES
Babu Ram and Lala Ram who were named
by him in the FIR. He firmly denied the
involvement of Pramod, Rameshwar and
Devi Dayal and even stated not to know
them. Therefore, the trial Judge exercising
its power under Section 319 Cr.P.C.
summoned the accused Lala Ram and Babu
Ram, who were dropped out from the
chargesheet by the Investigating Officer,
for trial alongwith the chargesheeted
accused persons. Consequent thereupon,
the charge of committing offence under
Section 302 IPC read with Section 34 IPC
with regard to the murder of Ganga Ram
with the other two named accused was
framed against Babu Ram and Lala Ram on
11.03.1987.

8. The record reveals that during
trial
accused
Pramod
Kumar
was
throughout absconding from last 15
years, therefore his case was separated
subjected to the proceedings under
Section 299 of the Cr.P.C. Further on
the report submitted by the concerned
police station about the death of Devi
Dayal, his case was abated. Likewise,
receiving report about the death of
Rameshwar and Raj Pal respectively the
proceedings against them were also
abated.
Thereafter
three
surviving
accused namely Lala Ram (A3), Babu
Ram (A1) and Ram Pal (A2) were
proceeded with and subjected to further
trial.

9. The prosecution to prove its
case against
the accused-appellants
produced
eight
witnesses
and
documents prepared during the process
of investigation which were proved by
their respective witnesses in the court
during their examination. For easy
reference, the respective witnesses and
documents proved by them marked as
Exhibits in the course of trial are given
hereunder in the appended chart.

PW-1,
Chhotey Lal,
the informant
Proved his written
report submitted in
the Police Station
Behta Gokul.
Exhibit Ka-1
Pw-2,
Dr.
Surendra
Singh
Proved the postmortem
report,
submitted
after
autopsy
of
dead
body of deceased
Ganga Ram
Exhibit Ka-2
PW-3, Vijay
Pal, witness
of fact

PW-4,
Dr.
P.K.
Gangwar
Who examined on
the
reference
of
Investigating
Officer, the injury
sustained by Saheb
Lal
Exhibit Ka-3
PW-5,
Sunder
Lal,
the
Head
Muharrar,
posted in PS
Behta Gokul
when
the
incident was
reported
He proved the First
Information Report
and entry of the
same in G.D. the
Nakal report
Letter for medical
examination
of
injured Saheb Lal to
District
Hospital
Lucknow and injury
report of Saheb Lal
Exhibit Ka-4 and
Ka-5
Exhibit
Ka-6
respectively
PW-6, Saheb
Lal
The injured witness
of fact

PW-7,
Rameshwar
Shukla,
Constable
posted in P.S.
Behta Gokul
on
04.04.1985
To whom the dead
body of deceased
Ganga Ram after
having been sealed
was handed over for
carrying the same to
Post-mortem
House.
He
submitted
his
personal affidavit to
prove the said fact
not cross examined.

Lastely, PW8,
Ram
Ruchi Arya,
Sub
Inspector,
posted in PS
Behta Gokul
at the time of
incident.
He
did
the
investigation from
the
stage
of
registering the FIR
upto the stage of
sending the body
for
post-mortem
and also prove the
inquest report
Exhibit Ka-7
Exhibit Ka-8 to Ka12
Exhibit
Ka-13
Exhibit Ka-14
Exhibit Ka-15
3-5 All. Ram Pal Vs. State of U.P.
245
Challaned
Lash
along with letter to
CMO along with
Photos
The empty cartridge
recovered from the
spot
of
incident
prepared the memo
thereof on the spot
proved in the trial
court
The plain soil and
blood stained soil
collected from the
spot,
sealed,
prepared
memo
thereof and proved
in the court.
Prepared site map
and proved in the
court
After
stage
of
sending the body of
deceased for postmortem of sending
the
body
of
deceased for Postmortem,
the
subsequent
Investigating
Officer,
Jitendra
Nath Singh who has
submitted
three
chargesheets,
referred
hereinabove,
was
also proved by PW8, being acquainted
with
the
handwriting
and
signature
of
the
aforesaid
Investigating
Officer as PW-8
was working with
him during trial at
PS Behta Gokul.
The
chargesheets
were proved by him

10. The trial Judge after recording
evidence of the aforesaid prosecution
witnesses nos.1 to 8 called the accusedappellants to submit their explanation, if
any, against the incriminating facts and
circumstances proved on evidences against
them under Section 313 of the Code of
Criminal Procedure 1973. All the three
accused-appellants
stated
the
said
evidences false and concocted to implicate
them due to enmity. They proposed to
produce
witnesses
in
their
defence.
Consequent thereupon, two witnesses were
examined namely, Sushil Bajpayee (DW-1)
and Gaya Prasad (DW-2). Sushil Bajpayee
supported the plea of alibi of A1 (Babu
Ram) deposing that on the date, time and
place of incident as reported by PW-1 in
his
written
report
and
FIR
dated
04.04.1985, Babu Ram was not at the spot
of incident but was on duty. DW-2 Gaya
Prasad stated on oath that he identified
three unknown assailants in the District Jail
Hardoi who committed the crime with Raj
Pal. The Trial Judge evaluated the evidence
of aforesaid defence witnesses but did not
find the same credible, reliable and
trustworthy
therefore,
discarded.
The
learned Trial Judge dealing with issues as
to the trustworthiness and credibility of the
prosecution witnesses held them reliable
for recording conviction of the accusedappellants. Learned Trial Judge in his
judgment has elaborately discussed both
factual and legal aspects of the prosecution
case and that of the defence case and held
that the prosecution has been successful in
proving its case with all certainty beyond
all reasonable doubts. The learned Trial
Judge thus reached at conclusion that the
murder of Ganga Ram was committed by
the accused persons named in the First
Information
Report
and
none
else,
therefore, recorded conviction against them
for the offence punishable under Section
302 IPC with the aid of Section 34 IPC.
Accordingly, awarded the punishment.

11. The learned counsel made
submissions on behalf of their respective
accused appellants separately. We heard
their
submissions
anxiously
devoting
several days. We heard the learned
246 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional Government Advocate for the
State and thereafter awarded opportunity of
second round of submission in reply to the
respective counsels of the appellants. We
think it proper and necessary to give a short
account of the arguments preferred before
us by the learned counsels for the
appellants and the respondent State. We
perused the voluminous record so as to
move ahead for decision on the moot issues
involved in all the abovesaid three criminal
appeals through a consolidated judgment.

12. Considering the facts and evidences
led before the learned Trial Judge and argued
before this court also the prosecution case
involves four accused, named in the First
Information Report dated 04.04.1985, Exhibit
Ka-4. The named accused, four in number; are
respectively Raj Pal (names), out of whom Raj
Pal died during trial. The proceeding abated
against him but so far as the role of Raj Pal
alongwith other accused as participant in
commission of the crime is concerned, it is
necessary to be considered in context that
accused-appellants are convicted under Section
302 IPC read with section 34 IPC. In other
word they are held to have committed the
homicide of Ganga Ram in furtherance of their
common intention. We are of the opinion to
examine and re-appreciate the evidence in view
of the above so as to find out whether the
prosecution has been successful in proving its
case beyond all reasonable doubts. We have to
consider also the effect of induction of three
other persons as accused by the second
Investigating officer J.N Singh namely Pramod
Kumar, Rameshwar and Devi Dayal in the
context that neither in the First Information
Report they were named by the informant nor
any of the prosecution witness named them as
participant in commission of crime during trial.

Arguments submitted by learned
Senior designated Sri Jyotindra Mishra,
Advocate assisted by Sri Kapil Mishra ,
Advocate for and on behalf of the accusedappellant A-1, namely, Babu Ram

Contention as to Ingenuinity of the
FIR

13. Learned counsel opened his
arguments with condemnation of the First
Information Report alleging the same antetimed and ante-dated as the information
received from PW-1 (the informant)
Chhotey Lal was got reduced into writing
after consultation with the Investigating
Officer. The purpose behind this was
illustrated by contending the fact that only
Raj Pal and Ram Pal were charge-sheeted
after investigation alongwith two others,
namely, Pramod Kumar and Rameshawar
in the chargesheet submitted by the
Investigating Officer before the Magistrate
concerned. The name of Babu Ram and
Lala Ram was added on the consultation
with informant and accordingly the First
Information
Report
was
styled
and
registered naming them in the written
report and FIR which is ante-timed and
ante-dated. He further contended that the
statements of prosecution witnesses are
suffering from serious discrepancies as to
the fact, the weapon, namely, Gandasa
(Chopper) allegedly held and used by A-1
in the course of commission of offence.
PW-1 and PW-6 assigned to A1 the role in
inflicting blows of Gandasa, whereas the
PW-3 assigned the role to A-1 of having
Lathi in his hand while committing the
offence
in
question.
Therefore,
the
witnesses loose their credibility by virtue of
such kind of serious discrepancy in their
narration as to the commission of offence
by the accused-appellant, A-1.

Discrepancies in the testimony
of eye witnesses and the reasons not to
believe them.
3-5 All. Ram Pal Vs. State of U.P.
247

14. Learned counsel further assailed
the credibility and trustworthiness as well
as the truthfulness of the witnesses on the
ground that their oral statement as a witness
of incident is not corroborated with the
medical evidence. He pointed out towards
the Post-mortem report of deceased Ganga
Ram which referrers the injuries no.1 to 7
on his body, as lacerated injuries. A
lacerated wound which in the opinion of
doctors PW-2 who did autopsy on the dead
body of Ganga Ram, would have been
caused from an article having blunt edge.
In the post-mortem report, Exhibit Ka-2, no
incise wounds are reported on the body of
deceased
Ganga
Ram,
therefore,
probability of using ''Gandasa' by accusedappellant A-1 is ruled out. As such the
witnesses PW-1 and PW-6 are falsely
implicating the accused-appellant A-1, they
are not reliable witnesses.

15. He has further submitted that PW-3,
Vijay Pal has been declared hostile witness by
the prosecution as he did not support the
prosecution case against the accused-appellant
A-1 of his having used ''Gandasa' in the course
of occurrence of killing Ganga Ram. He further
drew attention towards the statement of PW-3
in cross examination by prosecution in Para-4
to the effect that he could not see anyone
inflicting the blow of Gandasa because he was
crying for rescue at that time. Further in his
cross examination done on behalf of accusedappellant A-1, in Para 7 he again asserted that
he could not see anyone inflicting the blow of
Gandasa. He further assigned the role to the
accused-appellant A-1 of having Lathi and
using the same during the incident by inflicting
blow of Lathi upon the body of Ganga Ram,
(deceased).

Doubt as to the presence of PW-1 and
PW-6 on the spot of incident

16. Learned counsel doubted upon the
presence of PW-1 and PW-6 at the time of
incident on 04.04.1985. He argued the said two
witnesses were not present at the spot of
incident and did not see anything and have only
told a lie to poise their vengeance against the
accused-appellant A-1 due to prolonged enmity.

Doubt as to PW-6 being injured
witnesses and alleging him to be a planted
witnesses

17. Learned defence counsel further
argued that witness Saheb Lal (PW-6) is a
planted witness. Neither he is an eye
witness nor a witness injured in the
occurrence. His injuries were self inflicted
by him so as to masquerade him an eye
witness present during the incident to
falsely implicate the accused-appellant A-1.
To fortify his argument, he emphasized on
the fact that the medical examination of his
alleged injuries were not made promptly
but the same was procured in consultation
with Investigating Officer on 05.04.1985 in
District Hardoi. On the basis of above
contention, learned counsel assailed the
judgment and order of sentence impugned
in this appeal that despite the fact that
prosecution failed to prove its case by
reliable witnesses, the learned Trial Judge
committed serious error in appreciating the
evidence.

Plea of alibi taken in defence of
''A1'

18. To prove his allegation against the
truthness
of
prosecution
case
and
particularly
against
the
prosecution
witnesses, learned defence counsel relied
on
the
statement
of
DW-1,
Sushil
Bajpayee. The DW-1 has deposed that
'Babu Ram Verma' was on duty in the
Board Examination during second inning
248 INDIAN LAW REPORTS ALLAHABAD SERIES
on 04.04.1985, as such he gave evidence in
support of plea of alibi so as to show the
prosecution witnesses implicating falsely
the accused-appellant A-1 who actually
was not present on the spot of incident on
04.04.1985
at
the
relevant
time
of
occurrence.

Arguments of learned counsel Sri
Anil Kumar Pandey, Amicus Curiae for and
on behalf of the accused-appellant A-2,
namely, Ram Pal.

False implications

19. Learned Amicus Curiae assailed
the judgment of conviction and sentence
against Ram Pal on the ground that he is
arraigned in the incident for his being
brother of the co-accused Raj Pal (died
during the trial). He emphatically relied on
statement on oath of PW-1, Chottey Lal to
argue that he himself admitted in the
statement as to his running away to save his
life from the spot. As such the learned
Amicus Curiae argued that how one can
claim himself an eye witness when he left
the spot of incident under the fear of his
life, when the occurrence just began to
occur.

No evidence against A-2

20.

He
argued
that
nothing
incriminating circumstance against A2 was
stated to him when he was called under
Section 313 Cr.P.C. to explain. He further
emphasized that prosecution has not
proposed and adduced evidence against the
accused-appellant
A-2
to
prove
his
presence on the spot of crime with ''lathi'.
On bare perusal of question asked to him
no weapon is assigned to the accusedappellant A-2 which he was alleged to hold
and used in the course of commission of
crime. He argued that A2 in his explanation
to the question no.13 during examination
under Section 313 Cr.P.C. has submitted
that the informant, PW-1 and his family
members were having enmity with him for
the reason, he (accused-appellant A-2) has
been a witness in prosecution against
Ganga Ram with regard to murder of
Digga, the father of accused-appellant A-1
(Babu Ram). The learned trial Judge has
not appreciated the evidence correctly and
on false implication though the prosecution
has not been successful in proving it's case
beyond all reasonable doubt, has convicted
and sentenced the A2 in the matter of
killing of Ganga Ram.

Arguments submitted by learned
counsel Sri U.P. Singh, Advocate in
Criminal Appeal No.655 of 2009, Lala
Ram Vs. State of U.P. for and on behalf of
accused-appellant A-3.

Objection as to reliability of
prosecution witness of fact

21. Most of the arguments done by
learned counsel are as to the falsity of the
prosecution case and the prosecution
witnesses being untrustworthy and not
worthy
of
reliance
for
recording
a
conviction for the offence of murder of
''Ganga Ram' are quite similar to that
submitted in putting the case of accusedappellant A-1.

22. Learned Advocate Sri U.P. Singh
further raised the issue of trustworthiness
of the witness of the prosecution witnesses
of fact, namely, PW-1, Chhotey Lal, PW-6,
Saheb Lal on the ground of their being
''Related' and ''interested' as they are real
brothers of deceased-Ganga Ram, whereas
the prosecution witness no.3 is also related
with the deceased-Ganga Ram being his
cousin brother. On the basis of this
contention, he submitted that in no way the
3-5 All. Ram Pal Vs. State of U.P.
249
said
witnesses
may
be
termed
as
independent witnesses or disinterested
witnesses, rather they stand on the footings
of interested witnesses having inimical
relation
with
the
accused-appellant,
therefore, their evidence before the court
required thorough care and caution while
considered for reliance so as to record
conviction against the accused but the
learned Trial Judge failed to do so.

Absence of P.W-3 on spot

23. Learned counsel further argued
that the informant, PW-1, Chottey Lal was
not on the spot of incidence and the written
report filed by him i.e. Exhibit Ka-1 was
prepared and submitted in the police station
with prior consultation and pre-plan to
falsely implicate the accused-appellant A-3.

False implication

24. Learned counsel further drew
attention of the court towards the fact
which we ourselves have noticed in one of
the preceding paras, that the investigating
officer submitted the first chargesheet
excluding Lala Ram and Babu Ram and a
final report of no evidence was submitted
with regard to them. Chargesheet was
submitted dropping their names against rest
of the named accused in the FIR namely
Raj Pal and Ram Pal. He further submitted
that during the investigation, name of two
other persons came into light, namely,
Pramod and Rameshwar, thereafter one
Devi Dayal also came into picture. The
case of Pramod could not proceed further in
the trial as he was absconding from last 15
years, whereas Devi Dayal and Rameshwar
died during trial, therefore, prosecution
continued against three surviving accused
persons. One of the named accused is Lala
Ram (A-3). The conviction recorded not
only the role of the accused-appellant but
also his presence accompanied with other
co-accused was necessary to have been
proved, which the prosecution failed to do.

Eye witness's evidence is not in
consonance with medical evidence

25. Learned counsel further argued
that none of the prosecution witnesses are
credible and genuine. The oral account
given by the witnesses as to the manner and
mode
allegedly
adopted by
A-3
in
committing the offence of killing the
deceased ''Ganga Ram' is not in consonance
with the medical evidence. The weapon
assigned to the accused-appellant A-3 is a
gun whereas a country-made pistol in the
hand of Raj Pal (died during trial). The oral
account given by the prosecution witnesses
as to the distance from the victim Ganga
Ram of the accused having firearm his
direction from the victim and relatively
location of firearm wound on the body of
the deceased are not in consonance with
each other. The nature of wound does not
support the eye witnesses' account of
incident and, as such, the witnesses proved
themselves not present on the spot of
incidence and, therefore, they cannot be
said to have seen anything on the spot. Like
the learned counsel for the appellant A-1,
learned counsel for the appellant A-3 also
emphasized on the discrepancies that
occurred in the statements of PW-1 and
PW-2 as to the manner of attack and
weapons said to be used by them. The
declaration of hostility of PW-3 is also
taken into consideration by learned counsel
for
the
appellant
A-3
illustrating
inconsistencies between the prosecution
witnesses with regard to the use of weapon.
In doing so, learned counsel stepped into
the capacity as counsel for A-1 with regard
to use of Gandasa by him, otherwise the
250 INDIAN LAW REPORTS ALLAHABAD SERIES
case of accused-appellant A-3 for whom
the learned counsel appeared and argued is
with regard to the use of gun in the couse
of incident of killing Ganga Ram making
firearm injury. He further stressed on the
point of enmity which induced the
informant PW-1 and other prosecution
witnesses to falsely implicated the accused
-applicant.

Ingenuinity of FIR

26. Learned counsel lastly argued that
FIR is ingenuine. The incident is said to
have happened on 6:00 p.m. on 04.04.1985.
The police station was only two kilometers
away from the place of incidence even then
PW-1 and PW-6 reached the police station
at 7:30 p.m. The delay is not explained. It
is, therefore, the FIR is post-dated and ante
timed, registered after consultation with the
police
officer.
He
summed
up
his
arguments with the fact that there is a
proved enmity between the informant, his
family
members
and
the
accusedappellants. In view of the proved enmity,
the witness who are not only relatives of
the deceased Ganga Ram but also stands on
the footings of interested witnesses, their
evidence without proper scrutiny, care and
caution and appreciation, could not be
taken into reliance for recording conviction
against the accused-appellants.

Defence witness not considered

27. In supporting his contentions as to
the legal requirement of considering the
testimony
of
defence
witnesses
and
evidentiary value thereof. Learned counsel
Sri U.P. Singh, Advocate referred the
judgment of the Hon'ble Supreme Court in
State of Haryana Vs. Ram Singh with Rai
Saheb and Anr. Vs. State of Haryana
reported in (2002) 2 SCC 426. When it is
held elaborately in para 19, the evidence
tendered by defence witnesses cannot
always be termed to be a tainted one. The
defence witness are entitled to equal
treatment and equal respect as that of the
prosecution. The issue of credibility and
trustworthiness ought to be attributed with
the defence witnesses at par with that of the
prosecution witnesses.

Argument
by
Sri
Chandra
Shekhar Pandey, the learned Additional
Government Advocate for and on behalf of
the State:-

28. Learned A.G.A countered the
objection and upon objurgation done by the
respective counsels as to the weakness of
the
prosecution
case,
witnesses
and
evidences of the three appellants, he
submitted categorically on each and every
point. First of all, he clarified that the
incident happened in course of the day,
when there was sufficient day light at 6:00
p.m. in the evening of 04.04.1985, as the
witnesses could have faced no difficulty in
properly seeing the incident taking place
and identify the accused. They did so, with
all certainty. The informant named the
accused in the FIR as they were well
known to him as well as to other witnesses
of fact. He further submitted that the First
Information Report was lodged promptly
by
the
police
on
receiving
written
complaint from the informant, Chhotey Lal
(PW-1) on 7:30 p.m. He read over the
relevant paras extracted from the statement
recorded by the Trial Judge of PW-1 and
other witnesses like Investigating Officer
and Head Moharrir (respectively PW-8 and
PW-5) as well as another witness of the
fact, who was injured in the course of
incident, (PW-6, Saheb Lal), to explain the
gap of time between time of occurrence
(6:00 p.m.) and lodging of the FIR in the
3-5 All. Ram Pal Vs. State of U.P.
251
Police Station (7:30 p.m.) while the
distance of police station from the spot of
incident was two kilometers. He submitted
that the time spent by PW-1, the informant
is well explained from the evidence as
firstly he waited his family members and
the village Chaukidar thereafter handing
over the dead body of Ganga Ram, he
proceeded along with his brother, PW-6
Saheb Lal towards the police station and
reached there within a reasonable time. He
bought plain paper from a nearby shop,
wrote the report in his handwriting and then
handed over the same to the officer on duty
in the police station.

29. Learned A.G.A vehemently
denied the argument as to the FIR being
ante-timed and ante-dated, quoting the
statement of Head Moharrir Sunder Lal
(PW-5) that immediately after registering
the First Information Report at 7:30 p.m.,
the special report was sent at 8:40 p.m. on
the same day to the concerned Magistrate.
He further quoted from the statement of
PW-5 that after registering the First
Information Report, the police party moved
to the spot where the dead body of the
deceased-Ganga Ram was lying near the
bridge over Sharda Canal in village Karuna
Kheda. At the spot necessary inquiry was
done. The inquest proceeding before
'Panchas' of dead body was performed and
prepared the inquest report. Quoting from
Exhibit Ka-7 (the inquest report) he argued
that the inquest proceeding started at 2130
hours (9:30 p.m. in the evening) and
continued upto 2230 hours (10:30 p.m.) on
the same day i.e. 04.04.1985, after the
completion of inquest proceeding the dead
body was sent for post-mortem. He further
added that the Exhibit Ka-7 itself bears the
Case Crime No.48 of 1985, under Section
302 IPC registered in Police Station Behta
Gokul on 7:30 p.m. and even the memo
along with the dead body, sending for the
same to post-mortem, bears the said case
crime number. All these documents are
duly proved by PW-5 and PW-8 in the
course of their examination before the Trial
Judge and no cross-examination in this
regard was done by the counsels for the
defence, therefore, the statements with
regard to registration of FIR, it's time and
date stand un-controverted and even
sufficiently corroborated by the proof of
documents like Exhibit Ka-1, Exhibit Ka-4
etc. The aforesaid Exhibit Ka-1, Exhibit
Ka-4, First Information report and Exhibit
Ka-5, FIR and copy of the FIR had been
furnished to the informant on the same day.
Learned
A.G.A.
submitted
that
the
arguments advanced by learned counsels
for the appellants as to the FIR being antedated and ante-timed is baseless.

30. Learned Additional Government
Advocate further submitted that the First
Information Report was lodged promptly
and quickly by the informant, Chhotey Lal
(PW-1) clearly naming the accused persons
who were four in number, namely, Raj Pal,
Lala Ram, Ram Pal and Babu Ram and no
one else in their aid in the commission of
offence. The first Investigating Officer,
PW-8, SI, Ram Ruchi Arya had promptly
registered the FIR on the basis of written
report then there was no room for any
consultation or dictation on the part of the
investigating officer on duty from the stage
of lodging of the FIR up to the stage of
sending the dead body of deceased-Ganga
Ram for postmortem.