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

- **Citation:** (2023) 5 ILRA 459
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-15
- **Case number:** Criminal Appeal No. 234 of 1981
- **Bench:** Pritinker Diwaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-ratan-ors-in-jail-v-state-of-u-p-49237
- **Pages:** 27

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Section 374(2) - Indian Penal
Code, 1860-Sections 148 - 302/149Challenge
to-Conviction-
the
autopsy
report of the deceased wherein incised
wounds along with punctured wounds and
abrasions have been found on the body of
the deceased ,doctor P.W.3 has opined
that the injuries to the deceased were
probably caused by use of spade and
spear hence, the weapon carrying by the
accused was used in the commission of
the crime hence, ocular version is fully
460 INDIAN LAW REPORTS ALLAHABAD SERIES
supported
by
the
medical
evidencestatement of P.W.1 that there was no
enmity between the informant's side and
accused but however, it has been held
that
the
enmity
or
motive
has
no
significance in a criminal case based upon
the ocular version and in the present case
the ocular version speaking against the
co-accused
and
confirming
his
participation in the crime has been fully
corroborated by the medical evidence- the
deposition of the eye-witnesses so far as it
relates to the non-participation of the
acquitted accused persons in the crime is
found correct except co-accused but in
view of the non-application of the maxim,
"falsus in uno, falsus in omnibus" in India,
we also cannot hold that the witnesses
are not reliable or credible. - this is a
general law that the ocular evidence may
be
given
priority
over
the
medical
evidence and if the witnesses of fact are
reliable their evidence should not be
rejected-Appellants died during the pendency
of appeal and appeal qua them abated. (Para 1
to 101)

B. Falsity of a particular material witness
or material particular would not ruin it
from the beginning to end. The maxim
"falsus in uno, falsus in omnibus" has no
application in India and the witnesses
cannot be branded as liars. The maxim
"falsus in uno, falsus in omnibus" has not
received general acceptance nor has this
maxim come to occupy the status of rule
of law. It is merely a rule of caution. All
that it amounts to, is that in such cases
testimony may be disregarded, and not
that it must be disregarded. The doctrine
merely involves the question of weight of
evidence which a court may apply in a
given set of circumstances, but it is not
what may be called "a mandatory rule of
evidence". The doctrine is a dangerous
one specially in India for if a whole body
of the testimony were to be rejected,
because a witness was evidently speaking
an untruth in some aspect, it is to be
feared that administration of criminal
justice would come to a dead stop.
Witnesses just cannot help in giving
embroidery to a story, however, true in
the main. Therefore, it has to be appraised
in each case as to what extent the
evidence is worthy of acceptance, and
merely because in some respects the court
considers the same to be insufficient for
placing reliance on the testimony of a
witness, it does not necessarily follow as a
matter of law that it must be disregarded
in all respects as well. The evidence has to
be sifted with care. The aforesaid dictum
is not a sound rule for the reason that one
hardly comes across a witness whose
evidence does not contain a grain of
untruth or at any rate exaggeration,
embroideries or embellishment. (Para 98)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,861 of 88,273. This is a partial read: ask again with offset=39861 for what follows._

5 All. Ram Ratan & Ors. Vs. State of U.P.
459
Court beyond 90 days, therefore, the two
provisions have to be read harmoniously.
Needless to say that every appeal brought
to the High Court can only be decided on
merit provided the provision of limitation is
understood not to oust the power of this
Court to condone the delay. Any other
interpretation of the provision would not
only do violence to the rights guaranteed
under Part III of our Constitution, but
would also be at variance with the
fundamental right of personal liberty,
which lies at the heart of the notion of a fair
procedure guaranteed under Article 14 and
21 of our Constitution.

13. In the result, we have no
hesitation to put on record that the rejection
of the objection raised by the State in our
order dated 4.4.2023 is nothing but a fair
and harmonious reading of the proviso. The
reasoning advanced and strengthened by
the High Court of Jammu and Kashmir in
the case of National Investigation Agency
through its Chief Investigating Officer,
Jammu versus 3rd Additional Sessions
Judge District Court Jammu proceeds in
furtherance of the object and sanctity of
Article 21 of the Constitution of India and
is harmoniously balanced between an
individual right of a citizen with the interest
of the State to secure law and order for its
citizen.

14. In any view of the matter, the
Apex Court being seized of the issue in the
case of State (NIA) versus Farhan Sheikh
would soon resolve the conflicting opinions
and settle the law on the point.

15. Until an authoritative view is
pronounced by the Supreme Court of India,
the order passed by this Court on 4.4.2023
in our considered opinion, is the good law.
Accordingly,
the
application
for
condonation of delay is allowed. The
appeal may be registered and assigned a
regular number.

16. Admit.

17. Let the objection be filed within
two weeks.
----------
(2023) 5 ILRA 459
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.11.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 234 of 1981
And
Government Appeal No. 748 of 1981
And
Criminal Revision No. 261 of 1981

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

Counsel for the Appellants:
Sri S.V. Goshwami, Sri A.M. Tripathi, Sri
Rajeev
Goswami,
Sri
Sudhir
Kumar
Kulshrestha, Sri Suresh Chandra Tripathi

Counsel for the Respondent:
D.G.A.

A. Criminal Law - Criminal Procedure
Code,1973 - Section 374(2) - Indian Penal
Code, 1860-Sections 148 - 302/149Challenge
to-Conviction-
the
autopsy
report of the deceased wherein incised
wounds along with punctured wounds and
abrasions have been found on the body of
the deceased ,doctor P.W.3 has opined
that the injuries to the deceased were
probably caused by use of spade and
spear hence, the weapon carrying by the
accused was used in the commission of
the crime hence, ocular version is fully
460 INDIAN LAW REPORTS ALLAHABAD SERIES
supported
by
the
medical
evidencestatement of P.W.1 that there was no
enmity between the informant's side and
accused but however, it has been held
that
the
enmity
or
motive
has
no
significance in a criminal case based upon
the ocular version and in the present case
the ocular version speaking against the
co-accused
and
confirming
his
participation in the crime has been fully
corroborated by the medical evidence- the
deposition of the eye-witnesses so far as it
relates to the non-participation of the
acquitted accused persons in the crime is
found correct except co-accused but in
view of the non-application of the maxim,
"falsus in uno, falsus in omnibus" in India,
we also cannot hold that the witnesses
are not reliable or credible. - this is a
general law that the ocular evidence may
be
given
priority
over
the
medical
evidence and if the witnesses of fact are
reliable their evidence should not be
rejected-Appellants died during the pendency
of appeal and appeal qua them abated. (Para 1
to 101)

B. Falsity of a particular material witness
or material particular would not ruin it
from the beginning to end. The maxim
"falsus in uno, falsus in omnibus" has no
application in India and the witnesses
cannot be branded as liars. The maxim
"falsus in uno, falsus in omnibus" has not
received general acceptance nor has this
maxim come to occupy the status of rule
of law. It is merely a rule of caution. All
that it amounts to, is that in such cases
testimony may be disregarded, and not
that it must be disregarded. The doctrine
merely involves the question of weight of
evidence which a court may apply in a
given set of circumstances, but it is not
what may be called "a mandatory rule of
evidence". The doctrine is a dangerous
one specially in India for if a whole body
of the testimony were to be rejected,
because a witness was evidently speaking
an untruth in some aspect, it is to be
feared that administration of criminal
justice would come to a dead stop.
Witnesses just cannot help in giving
embroidery to a story, however, true in
the main. Therefore, it has to be appraised
in each case as to what extent the
evidence is worthy of acceptance, and
merely because in some respects the court
considers the same to be insufficient for
placing reliance on the testimony of a
witness, it does not necessarily follow as a
matter of law that it must be disregarded
in all respects as well. The evidence has to
be sifted with care. The aforesaid dictum
is not a sound rule for the reason that one
hardly comes across a witness whose
evidence does not contain a grain of
untruth or at any rate exaggeration,
embroideries or embellishment. (Para 98)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Bikau Pandey Vs St. of Bih. (2003) 12 SCC
616

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

3. Deepak Verma Vs St. of H.P.(2011) 10 SCC
129

4. Sucha Singh Vs St. of Punj. (2003) 7 SCC 643

5. Bhagwan Jagannath Markad Vs St. of Mah.
(2016) 10 SCC 537

6. Surinder Kumar Vs St. of Punj. (2020) 2 SCC
563

7. Ashok Kumar Chaudhary Vs St. of Bih. (2008)
12 SCC 173

8. Mukesh Vs St. (NCT of Delhi) (2017) 6 SCC
1

9. Nankaunoo Vs St. of U.P. (2016) 3 SCC 317

10. St. thru the Inspr of Police Vs Laly @
Manikandan & anr.. (2022) SCC On Line SC 142,
CRLA No. 1750-1751 of 2022

11. Munna Lal Vs St. of U.P. with Shiv Lal Vs St.
of U.P. (2023) SCC Online SC 80, CRLA No. 490
of 2017

12. Susanta Das Vs St. of Ori. (2016) 4 SCC 371
5 All. Ram Ratan & Ors. Vs. State of U.P.
461
13. St. of Karn. Vs K. Gopalkrishna (2005) 9 SCC
291

14. Sudershan Kumar Vs St. of H.P. (2014) 15
SCC 666

15. Dilawar Singh Vs St. of Har. (2015) 1 SCC
737

16. Gangadhar Behera & ors. Vs St. of Ori.
(2002) 8 SCC 381

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Both these appeals and the criminal
revision arise out of a common impugned
judgement and order dated 13.01.1981 in
Sessions Trial No. 309 of 1978, whereby
6th Additional Sessions Judge, Gorakhpur
convicted accused persons Ram Ratan,
Ghanshayam, Arjun, Vishram, Dayaram @
Shubh Karan under Sections 148, 302/149
I.P.C. and sentenced them to undergo
imprisonment for a period of two years
under section 148 I.P.C. and imprisonment
for life under sections 302,149 I.P.C. and
acquitted them under Sectons 307/149,
323/149,
324/149
I.P.C.
and
further
acquitted
other
accused
persons
Narbdeshwar,
Duryodhan,
Balgovind,
Raghunath @ Bhurari of all the charges
levelled against them.

2. Criminal Appeal No. 234 of 1981
has been preferred by convicted accused
Ram Ratan, Ghanshayam, Arjun, Vishram,
Dayaram @ Shubh Karan against their
conviction, whereas Government Appeal
No. 748 of 1981 has been preferred by the
State against acquittal of respondent nos.
1.Ram Ratan 2. Ghanshayam 3. Duryodhan
4. Narbdeshvar 5. Arjun 6. Vishram 7.
Dayaram alias Shubh Karan 8. Balgovind
9. Raghunath alias Bhorai under sections
147, 148, 149, 307, 302, 323, 324 I.P.C.
However, during pendency of the appeal
convicted
appellants
Ram
Ratan,
Ghanshyam and Vishram died, qua them
Cr. Appeal No. 234 of 1981 abated and in
the same manner Government Appeal No.
748 of 1981 and Criminal Revision No.
261 of 1981 were also abated in respect of
the three above mentined respondent/
opposite parties. Now, this appeal qua the
surviving appellants Arjun and Dayaram is
for adjudication. Criminal Revision No.
261 of 1981 has been preferred by the
informant against the acquittal of four
accused
persons,
1.Narbdeshwar
2.
Duryodhan 3. Raghunath alias Bhorai 4.
Balgovind.

3. The brief facts of the case are
hereunder:

Accused
Ram
Ratan,
Ghanshayam, Arjun, Vishram, Dayaram @
Shubh Karan, Narbdeshwar, Duryodhan,
Balgovind, Raghunath alias Bhorai had a
grudge against deceased Trimbak Prasad
Mishra, the brother of the informant
Shambhoo Saran Misra, on account of
some land dispute. On 9.4.1978, all the
accused persons abused and threatened the
deceased in the evening. On 10.4.1978,
Trimbak Prasad had gone to worship in
Shiv Mandir of the village and when he
came out of the temple about 6.00 or 6.30
A.M., all the nine accused came there,
armed
with
spade,
lathi
and
spear
surrounded Trimbak Prasad, who shouted
while running away from there. On hearing
his shrieks, informant Shambhoo Saran
Misra and witneses Ram Kumar, Ram
Pyare, Bari, Narbdeshwar, Shivdhar Shukla
and Shambhoo Saran's brother Rannath @
Vijai rushed to the spot. Accused Vishram
exhorted other accused persons to finish
Trimbak Prasad and then accused Vishram,
Daya Ram @ Shub Karan, Ram Ratan and
Arjun
with
spade,
Balgovind
and
462 INDIAN LAW REPORTS ALLAHABAD SERIES
Ghanshyam with spear and remaining
accused armed with lathis, assaulted over
Trimbak Prasad in the Khalihaan of Ram
Kumar, who fell down but even then the
accused persons continued their violent
attack.
Trimbak
Prasad
died
instantaneously on spot due to the injuries
received by him. When Ramnath @ Vijai
tried to save him, he was also beaten by the
accused persons and when the villagers
came, the accused persons fled away. The
FIR was lodged on the same day at 10.00
am, on the basis of the written report given
by informant Shambhoo Saran Misra at
Police Station Khajni, Gorakhpur. The
investigation started and inquest report and
autopsy report of the deceased were
prepared.

4. The post mortem of the deceased
was performed by Dr. K.M. Singh, who
found following injuries over the body of
the deceased:

(i) Incised wound 7" x 5-1/2" x
bone deep on the right and lower side of
the neck (right) soft issues & vessels cut
and cut of the 2nd cervical vertebra
through and through. Tailing 2" long up to
lower part of the right chin.

(ii) Incised wound 0.6" x 1-1/2" x
3rd cervical vertebra deep wound in having
tailing upto 1-1/2 below & right to the
adams apple.

(iii) Incised wound 11" x 2-1/2"
bone deep, tip of the right humerous bone
cut, through & through on the right side
extending from upper shoulder joint to the
side of the neck, right side.

(iv) Incised wound 4" x 2-1/2" x
bone deep front of the right shoulder joint
outer 1/3 of the right clavicles cut.

(v) Incised wound 7" x 2" x bone
deep, angle of the right ear cut. Tailing just
01" length just 2" below the right ear
lobule.

(vi) Incised wound 4-1/2" x 11/2" bone deep right maxilla cut through &
through soft tissues and vessels cut.

(vii) Incised wound 8" x 1" x
carnial x cavity deep right frontial bone cut
just above the right upper part of the right
ear. Tailing extending 1-1/2" up to the 1"
above & lateral side to the right eyebrow
lateral margin brain matter is coming out.

(viii) Incised wound 5" x 1" x
brain deep on the right frontal bone lower
margin is 2" below the right upper part of
the right ear.

(ix) Incised wound 4" x 1-1/2" x
muscle deep on the mid and upper part of
the head, 4" above the bridge of the nose.

(x) Punctured wound 1" x 1/2" x
2" on the lateral and outer aspect of the
lower one third of the right elbow joint.
Punctured wound 2" x 1" x 4-1/2" directed
medially and upwards.

(xii) Abrasion 2-1/2 x 1/4" long
inner aspect of the left fore arm middle 4"
above the left wrist joint.

(xiii) Abrasion 2" x 1/2" on the
skin of the left front middle.

The doctor also opined that the
death was caused due to shock and
haemorrhage, as a result of anti-mortem
injuries one and half day prior to the post
mortem and were probable to be caused by
use of spade and spear. The death was
probable to be occured on 10.04.1978 at
6.30 a.m.

5. Injured Ramnath @ Vijai was also
medically examined by Dr. C.B. Prasad on
10.04.1978, who found following injuries
over his body.

(i) Incised wound on right side of
head 8 cm x 1 cm x bone deep placed
5 All. Ram Ratan & Ors. Vs. State of U.P.
463
obliquely 10 cm above the right eye brow.
Bleeding present.

(ii) Lacerated wound on right
side of head 4 cm x 1⁄2 cm x scalp deep
placed 2 cm above the injury no.1.
Bleeding present.

(iii) Lacerated wound on junction
of root of nose with two eye brows whence
is 1 cm x 1⁄2 cm skin deep. Bleeding present.

(iv)Punctured wound on back of
left upper arm 1 cm x 1⁄2 cm x 1 1⁄2 cm deep
placed 7 cm above the prominence of the
left elbow joint. Bleeding present.

(v) Lacerated wound on front of
left leg 1 1⁄2 cm x 1⁄2 cm x skin deep placed
12 cm below the tibial tuberosity. Bleeding
present.

(vi) Lacerated wound on front of
right leg 2 cm x 1⁄2 cm x skin deep placed 9
cm below the tibial tuberosity. Bleeding

(vii) Punctured wound on front of
right leg 2 cm x 1⁄2 cm bone deep placed 9
cm below the injury no.6. Bleeding present.

The injuries were simple, caused
by sharp, blunt and pointed weapons and
injury
no.4
was
advised
for
x-ray.
However, no X-ray report is on record.

6. The Investigating Officer after
performing all the formalities of the
investigation
submitted
charge
sheet
against all the nine accused persons.

7. The case, being exclusively triable
by the Sessions Court was committed by
the concerned Magistrate to the Court of
Sessions.

8. The accused persons appeared
before the Court, charges against accused
Vishram, Dayaram @ Shubh Karan, Ram
Ratan, Arjun, Balgovind, Ghanshayam
were framed under Section 148 I.P.C. on
14.9.1978,
against
Narbdeshwar,
Duryodhan, Raghunath alias Bhorai under
Section 147 I.P.C. and under Sections
302/149, 324/149, 323/149 I.P.C. against
accused persons Ram Ratan, Ghanshayam,
Arjun,
Narbdeshwar,
Duryodhan,
Balgovind, Vishram, Dayaram @ Shubh
Karan,
Raghunath
alias
Bhorai
and
subsequently
additional
charge
under
Section 307/149 was also framed against
all the accused persons.

9. To bring home the charge in oral
evidence as many as 14 witnesses have
been examined, who are as follows:

1.
Shambhoo Saran Misra,
eye witness
PW1
2.
Ram Kumar, eye-witness
PW2
3.
Dr. K.M. Singh, Performed
autopsy
PW3
4.
HC Jang Bahadur Yadav,
scribe of FIR
PW4
5.
Narbdeshwar, eye-witness
PW5
6.
Kripa Shankar Dubey,
witness of criminal
conspiracy
PW6
7.
Vijai @ Ram Nath, eyewitness/ injured
PW7
8.
HC Hriday Nath Tiwari,
Moharir Malkhana
PW8
9.
Moti Lal Singh, witness of
M.L. Register
PW9
10. Dr. Purshottam, Formal
Witness
PW10
11. Kunwar Ram Dularey
Singh, Formal Witness
PW11
12. Rama Kant Yadav, Formal
Witness
PW12
13. Dr. C.B. Prasad, Witness of
Injury Report
PW13
14. S.O. Dinesh Rai- I.O
PW14

10. To support the oral evidence
following documentary evidence has been
filed by the prosecution:
464 INDIAN LAW REPORTS ALLAHABAD SERIES
1.
Prescription
Ex.Ka-1
2.
Prescription
Ex.Ka-2
3.
Prescription
Ex.Ka-3
4.
Written tehrir
Ex.Ka-4
5.
Autopsy report
Ex. Ka5
6.
FIR
Ex.Ka-6
7.
G.D.
Ex.Ka-7
8.
Injury Report
Ex.Ka-8
8.1
Inquest Report
Ex.Ka8/1
9.
Challan nash
Ex.Ka-9
10.
Photo nash
Ex.Ka10
11.
Report medical officer
Ex.Ka11
12.
Report CMO
Ex.Ka12
13.
Site plan
Ex.Ka13
14.
NBW
Ex.Ka14
15.
Process under Section
83 Cr.P.C.
Ex.Ka15
16.
Process under Section
83 Cr.P.C.
Ex.Ka16
17.
Memo of attachment
Ex.Ka17
18.
NBW
Ex.Ka18
19.
NBW
Ex.Ka19
20.
Process under Section
83 Cr.P.C.
Ex.Ka20
21.
NBW
Ex.Ka21
22.
Process under Section
83 Cr.P.C.
Ex.Ka22
23.
Process under Section
83 Cr.P.C.
Ex.Ka23
24.
Receipt regarding died
animal
Ex.Ka24
25.
NBW
Ex.Ka25
26.
Process under Section
83 Cr.P.C.
Ex.Ka26
27.
Process under Section
83 Cr.P.C.
Ex.Ka27
28.
NBW
Ex.Ka28
29.
Process under Section
83 Cr.P.C.
Ex.Ka29
30.
Process under Section
83 Cr.P.C.
Ex.Ka30
31.
Process
Ex.Ka31
32.
NBW
Ex.Ka32
33.
Process under Section
83 Cr.P.C.
Ex.Ka33
34.
Process under Section
83 Cr.P.C.
Ex.Ka34
35.
NBW
Ex.Ka35
36.
Process under Section
83 Cr.P.C.
Ex.Ka36
37.
Process under Section
83 Cr.P.C.
Ex.Ka37
38.
Memo of attachment
Ex.Ka38
39.
NBW
Ex.Ka39
40.
Process under Section
83 Cr.P.C.
Ex.Ka40
41.
Process under Section
83 Cr.P.C.
Ex.Ka41
42.
NBW
Ex.Ka42
43.
Process under Section
83 Cr.P.C.
Ex.Ka43
44.
Process under Section
83 Cr.P.C.
Ex.Ka44
45.
Memo of attachment
Ex.Ka45
46.
Charge sheet
Ex.Ka46
47.
FSL report
Ex.Ka47
5 All. Ram Ratan & Ors. Vs. State of U.P.
465
48.
Will
Ex.Ka48
49.
Letter to Sub Registrar
Tehsil
Sadar
Gorakhpur
Ex.Ka49
50.
Letter
to
Collector
Gorakhpur
Ex.Ka50
51.
Written
Statement
before Consolidation
Officer
Ex.Ka51
52.
Copy of the order
sheet
Ex.Ka52
53.
Report under section
151, 107, 116 Cr.P.C
Ex.Ka53
54.
Application
for
impleadment
Ex.Ka54
55.
Copy of Judgement of
the C.O II, Sehjanwa (
) Gorakhpur
Ex.Ka55
56.
Copy
of
the
Judgement of Court
C.O. Khajni
Ex.Ka56
57.
Copy of the judgement
of the Court A.S.O.
(Consolidation)
Ex.Ka57

11. The prosecution has also referred
material exhibits as under:

1.
Material Ex.1
Lungi
2.
Material Ex.2
Bandi
3.
Material Ex.3
Janeu
4.
Material Ex.4
Bundle
of
blood stained
soil
5.
Material Ex.5
Bundle
of
plain soil

12. The accused persons, in their
statement under Section 313 Cr.P.C., on
putting incriminating circumstances and
evidence against them, stating all the
evidence recorded against them as false,
have claimed false implication due to
animosity. However, no oral evidence has
been adduced by the accused persons.

13. To support the defence version,
following documentary evidence has been
relied upon:

1.
Copy of judgement in
S.T. No. 27/1962
Ex.Kha.1
2.
Copy of judgement in
S.T. No. 107/1965
Ex.Kha.2
3.
Certified
copy
of
complaint
by
Baneshwar
Shukla
against Shiv Dhar and
others
dated
24.3.1975
Ex.Kha.3
4.
Copy of statement of
witness Ram Gulam
dated 9.7.1968
Ex.Kha.4
5.
Copy of statement of
witness Ram Ratan
dated 2.5.1968
Ex.Kha.5
6.
Copy of order passed
by D.D.C. Gorakhpur
dated 18.01.1971
Ex.Kha.6
7.
Copy of statement of
Kripa Shankar Dubey
dated 18.12.1969
Ex.Kha.7
8.
Copy of sale deed
dated
23.12.1971
executed
by
Smt.
Kaula
Ex.Kha.8

14. P.W.1, P.W.2, P.W.5 and P.W.7
are the witnesses of fact.

15. P.W.1 Shambhoo Saran Misra, the
informant and eye-witness of the case, has
narrated the prosecution story in his
examination-in-chief and has deposed that
deceased Triambak Mishra, his real elder
brother, used to take medicine from the
Kaviraj Atmaram Dubey, Vaidya, as he had
some digestion problem. The prescriptions
466 INDIAN LAW REPORTS ALLAHABAD SERIES
written by the aforesaid Vaidya have been
proved by P.W.1 by Ex.Ka-1, Ex.Ka-2 and
Ex.Ka-3. He has also explained that late
Bhagwat Pandey, who was the remote
relative of the informant side and owner of
a huge land and house, had executed a
registered will dated 5.7.1977 in respect of
his entire property in favour of the
deceased. The accused persons were not
happy at this and they felt animosity with
the deceased and even in the mutation
proceedings, they filed their objection
before the Court. They had also made
attempt to forcibly take possession of the
house
of
Bhagwat
Pandey
and
an
altercation took place between both the
sides and proceeding under Section 151
and 107 Cr.P.C. was initiated by the police.
Further , a series of incidents has been
narrated by this witness to establish the
history of enmity and grudge between both
the side.

16. Narrating the incident, P.W.1
further states that on 10.04.1978 at 6.30 in
the morning, this witness was present in his
Khalihan along with his brother Ramnath
@ Vijay and the deceased was offering
worship in the temple situated at the
distance of 20 steps from the Khalihan. As
soon as he came out of the temple accused
Ram
Ratan,
Ghanshayam,
Arjun,
Narbdeshwar,
Duryodhan,
Vishram,
Dayaram @ Shub Karan, Balgovind and
Raghunath alias Bhorai chased him to kill
holding spade, lathi and spear in their
hands.
Accused
Ram
Ratan,
Arjun,
Vishram and Dayaram @ Shubh Karan
were
holding
spade,
Balgovind
and
Ghanshyam spear and rest of the accused
were holding lathi. When the deceased tried
to escape and reached the Khalihan of Ram
Kumar, all the accused persons attacked
him with the aforesaid weapons. The
deceased slipped in the Khalihan but
despite that the accused persons continued
their assault. When Ramnath @ Vijay tried
to save the deceased, the accused persons
assaulted him also with the aforesaid
weapons and he fell down. After several
blows accused Vishram exhorting to kill
the deceased made two or three blows of
the spade over his neck and he died. The
occurrence was witnessed by Raghunath @
Vijay, Ram Kumar, Narbdeshwar, Ram
Pyare, Shiv Dhar Shukla etc. The matter
was reported to the police on the written
report of the informant, who went to the
police station along with injured Ramnath
@ Vijay. The injured after primary
treatment was sent to the District Hospital,
Gorakhpur and remained admitted there.
P.W.1 has proved his written report as
Ex.Ka-4. He has also explained that the
plan of murder was made by accused Ram
Ratan, Vishram and Balgovind 15 days
prior to the occurrence, which was heard by
the villagers, Kripa Shankar Dubey and
Shiv Shankar Dubey, who disclosed this to
the deceased. P.W.1 also states that one day
before the occurrence, the accused persons
had threatened and assaulted his brother
Triambak, however, no report was lodged
in this connection.

17. P.W.2 Ram Kumar is said to be
the eye-witness to the occurrence. He has
corroborated the deposition of P.W.1 in his
examination-in-chief and has clarified that,
at the time of occurrence, accused persons
Ram
Ratan,
Ghanshyam,
Duryodhan,
Arjun, Narbdeshwar, Vishram, Dayaram @
Shubh Karan, Balgovind, Raghunath @
Bhurai had assaulted the deceased with
lathi, spear and spade, which resulted into
his instantaneous death and the occurrence
was witnessed by Shambhoo Mishra,
Ramnath @ Vijai, Narbdeshwar Dubey,
Ram Pyare and by him as well. He has also
affirmed this fact that Ramnath @ Vijai
5 All. Ram Ratan & Ors. Vs. State of U.P.
467
was also assaulted by the accused persons
during the occurrence.

18. P.W.5 Narbdeshwar is also the
eye-witness of the occurrence, who has
deposed that, at the time of the occurrence,
he was present in his Khalihaan, which is
about 60-70 steps far from the Shiv temple.
He had seen accussed persons Ram Ratan,
Vishram, Arjun, Dayaram @ Shubh Karan,
Balgovind,
Ghanshyam,
Dhuryodhan,
Narbdeshwar and Raghunath @ Bhurai
holding lathi, spear and spade and chasing
the deceased Triambak, who was running
towards Khalihan of Ram Kumar. The
accused persons were threatening for life to
the deceased, who fell down in the
Khalihan of Ram Kumar, while making his
escape. Accused Vishram, Ram Ratan,
Arjun and Dayaram @ Shubh Karan with
spade, Balgovind and Ghanshyam with
spear and Narbdeshwar, Duryodhan and
Raghunath @ Bhurai with lathi assaulted
Triambak Mishra and when his brother
Ramnath @ Vijai came to save him, he was
also
assaulted.
Triambak
was
again
inflicted
several
blows
and
accused
Vishram abusing and shouting that he was
still alive, made blows by spade and he
died. This witness also states that the
occurrence was seen by Shambu Saran,
Ramnath @ Vijai, Ram Pyare, Shiv Dhar
and other persons of the village and by him
as well.

19. P.W.7 Vijai @ Ramnath is the
injured witness. He has corroborated the
version
of
P.W.5
as
given
in his
examination-in-chief. He has also affirmed
this fact that the murder of Triambak was
caused by accused persons Ram Ratan,
Arjun, Vishram, Dayaram @ Shubh Karan
by use of spade, Balgovind and Ghanshyam
by
use
of
spear
and
Narbdeshwar,
Duryodhan and Raghunath alias Bhorai by
use of lathi on 10.04.1978 at 6.30 a.m. He
has also affirmed this fact that when he
tried to protect Triambak, he was also
assaulted by Dayaram @ Shubh Karan,
Balgovind and Narbdeshwar by lathi, bhala
and spear. Triambak died on spot and he
was taken to the police station on a cot and
subsequently to the hospital.

20. P.W.6 Kripa Shankar Dubey is the
witness of criminal conspiracy. He has deposed
before the Court that on 25.3.1978, while
returning from the house of his uncle at Gram
Mandory, he was sitting for a nature's call in the
evening near the canal bridge situated in the
south of village Budhat. In the meanwhile,
accused Ram Ratan, Vishram and Balgovind
came over the bridge. He has further stated that
this story was narrated to Triambak by him but
he expressed his faith over God. Rest of the
prosecution witnesses are formal witnesses.

21. P.W.3 Dr. K.M. Singh has
performed
autopsy
of
the
deceased
Triambak and has proved the autopsy
report as Ex.Ka-5.

22. P.W.4 H.C. Jang Bahadur Yadav,
is the scribe of the FIR, who has proved
Chick FIR and registration G.D. as Ex.Ka-6
and Ex.Ka-7.

23. P.W.8 Hriday Nath Tiwari, is the
Malkhana Incharge, who on the basis of the
relevant register has proved this fact that
three sealed bundles relating to this case
were sent for investigation to chemical
examiner, CMO office, Gorakhpur from
Sadar Mal Khana and after investigation on
21.10.2018, the sealed packets were sent
back to the Mal Khana, and relevant entries
were made by him in the register.

24. P.W.9 Moti Lal Singh, who is a
clerk in the C.M.O. office, Gorakhpur has
468 INDIAN LAW REPORTS ALLAHABAD SERIES
been produced before the Court along with
Medico Legal Register and on the basis of
the aforesaid register, he has deposed that
the sealed bundles along with specimen ''c'
were received in his office on 23.08.1978
brought by Cons. Kuwar Ram Dularey
Singh, P.S. Khajni, Gorakhpur, which were
sent to chemical examiner, Agra on
24.8.1978 in sealed condition.

25. P.W.10 Dr. Purshottam Tiwari has
been examined as secondary witness for
Dr. C.B. Prasad, Medical Officer P.H.C.
Khajni, who had medically examined
injured Ramnath @ Vijai on 10.04.1978.
On the basis of original injury register, he
has proved the injury report of injured
Ramnath @Vijai as Ex.Ka-8.

26. P.W.11 Cons. Kuwar Ram
Dularey Singh states, in his evidence, that
on 23.8.1978, while working as Cons.
Police Station Khajni, Gorakpur, he had
deposited three sealed bundles bearing
specimen ''c' to the sadar Malkhana from
P.S. Khajni and submitted the same to the
office of the C.M.O. from the Malkhana on
the same date.

27. P.W.12 Cons. Ramakant Yadav
has deposed that on 10.04.1978, while
working as Cons. P.S. Khajni, Gorakhpur,
he along with Chaukidaar, Jhinku had
presented the dead body of Triambak
Mishra in sealed condition along with
specimen
seal
before
the
doctor
at
Gorakhpur for autopsy.

28. P.W.13 Dr. C.B. Prasad was
subsequently examined by the prosecution,
who has proved this fact on 10.04.1978, he
was posted at P.H.C. Khajni as Medical
Officer where he used to medically
examine the injured persons and entered
the injuries in the Medico Legal Register.
However, at present, the original register
dated 10.04.1978 is missing. He himself
had gone to P.H.C. Khajni to inquire into
the aforesaid register but did not find it.

29. P.W.14 S.O. Dinesh Rai, is the
I.O. of the case, who has proved the
proceeding of the investigation in his
evidence. As per his deposition, he had
recorded the statement of the witnesses and
after inspection of the place of occurrence,
site plan Ex.Ka-13 was prepared by him.
He also performed the inquest of the dead
body of the deceased and relevant papers
for post mortem were also prepared by him
and the dead body was sent for post
mortem. Inquest report and relevant papers
prepared for post mortem have been proved
as Ex.Ka-8/1 to Ex.Ka-12 by this witness.
He has also proved the memo of seizure of
blood stained and plain soil as Ex.Ka-14
and the bundles of the aforesaid articles as
material Ex.Ka-4 and Ka-5. He has also
narrated this fact that the accused persons
were absconding and punitive processes
were issued against them and he has proved
the same as Ex.Ka-14 to Ex.Ka-45, which
are under the signature and hand writing of
S.I. Ram Tej Pandey, who was instructed
by him for the search of the accused
persons. Charge sheet Ex.Ka-46 has also
been proved by this witness.

30. Learned counsel for the appellants
assailed the impugned judgement on many
grounds. It has been argued that the ocular
evidence adduced by the prosecution is
concocted and as a matter of fact, there was
no eye-witness to the incident. There is
ample evidence on record to show that due
to enmity, accused persons/ appellants were
falsely implicated in this case. The
deceased himself had criminal antecedents
and the possibility of his being murdered
by some other persons cannot be ruled out.
5 All. Ram Ratan & Ors. Vs. State of U.P.
469
The evidence of fact is unnatural and the
sequence of the incidents, as narrated by
the witnesses of fact, is improbable. There
are
material
contradictions
in
the
depositions of the witnesses of fact. The
investigation is highly faulty and place of
occurrence is also not certain. F.S.L report
and the medical evidence does not help the
prosecution at all. The learned trial Court
has miserably failed to appreciate the
evidence on record and it has totally
discarded and misread the documentary
evidence adduced by the defence. The
convicts had no motive to do away with the
deceased. On the basis of the aforesaid
submissions and on other grounds as well,
it has been prayed that the impugned
judgement and order of conviction deserve
to be set aside by allowing the present
appeal. Further it has been submitted by the
learned counsel for the opposite parties in
the Revision Petition that the part of
impugned judgment recording acquittal of
some of the accused persons requires no
interference.

31. Per contra, learned A.G.A. and
learned counsels for appellants in the
Government Appeal No. 748/1981 and the
learned counsel for the revisionist as well
have vehemently argued that present is a
case based on ocular evidence and the
witnesses of fact are reliable. The place of
occurrence is fixed and the medical
evidence is clearly in conformity with the
prosecution case. The accused persons had
a strong motive to kill the deceased and the
F.S.L report also supports the prosecution
version. There was no possibility of false
implication of any of the accused persons.
The learned trial Court has meticulously
and carefully scrutinized the evidence
adduced by the prosecution as well as by
the defence and reached at a right
conclusion that the convicts are guilty of
murder of the deceased. It has been further
submitted that to acquit some of the
accused persons was not proper and to that
extent, the impugned judgement deserves
to be modified and the acquitted accused
persons be also convicted for the offence
charged against them. On the aforesaid
grounds dismissal of the present appeal and
allowing of the Government Appeal and
criminal revision has been prayed for.

32. At the very outset, it has to be
kept in mind that charges against accused
persons Vishram, Dayaram @ Shubh
Karan, Ram Ratan, Arjun, Ghanshayam
were framed under Sections 302/149, 148,
324/149, 323/149 and 307/149 I.P.C. After
conclusion of the trial, accused persons
Ram Ratan, Ghanshayam, Arjun, Vishram,
Dayaram @ Shubh Karan were held guilty
and convicted for the offences under
Sections 302/149, 148 I.P.C. and acquitted
under Sections 307/149, 323/149, 324/149
I.P.C. Rest of the accused persons, namely,
Narbdeshwar,
Duryodhan,
Balgovind,
Raghunath @ Bhurari were acquitted of all
offences for which, they were charged. It
means that the trail court reached to the
conclusion that no injury was caused to the
injured in the said incident and the main
offence of murder was found proved
against five of the total nine accused
persons.

33. This is the specific case of the
prosecution that accused persons, forming
an unlawfull assembly equipped with
dangerous weapons like lathi, spade and
spear, came to the spot and with an
intention to kill the deceased gave several
blows to him resulting into his death.

34. It was specifically stated by
P.W.1, the eye-witness, that after bitterly
assaulting the deceased, accused Vishram,
470 INDIAN LAW REPORTS ALLAHABAD SERIES
exhorting the other accused persons,
inflicted 2 or 3 more injuries of spade upon
the neck of the deceased, which resulted
into his instantaneous death. In his cross
examination, he has made some specific
statements and states that when the
deceased fell down on the ground after
sustaining injuries, the left portion of his
body was on the down side and right
portion was on the upper side and all the
injuries of lathi, spear and spade which he
sustained after falling on the ground, were
over the right portion of his body. His
brother Ram Nath @ Vijai also sustained
injuries by use of the aforesaid weapons in
the said occurrence.

35. P.W.2, the other eye-witness also
deposes that at the time of the incident,
when accused persons were chasing the
deceased after making assault upon him, he
slipped and fell down and even then
accused
Vishram
exhorted
the
other
accused persons and himself made two or
three spade blows over the neck of the
deceased. In his cross examination, he has
clarified that when the accused persons
were chasing the deceased, they were
making assault upon him and the blows
were inflicted over the sides of the body
and the back portion also, although he
could not see as to on which parts of the
body he sustained injuries. When the
accused persons fled away, he found the
injuries over the right side of the neck of
the deceased and also over the sides and
back of body. He has also affirmed this fact
that when the deceased fell down on the
ground the left part of his body was
downward.

36. P.W.5 Narbdeshwar and P.W.7
Vijay @ Ram Nath are also eye-witnesses
of the incident and they have narrated the
story in the same manner as P.W.1 and
P.W.2 depose.

37. In view of the specific ocular
evidence about the manner and use of
weapons in the occurrence, the medical
evidence is to be examined. Dr. S.S.
Srivastava who performed the autopsy of
the deceased, has been examined as P.W.3
and has proved the autopsy report as
Exhibit-Ka-5. The doctor has found as
many as 13 injuries over the body of the
deceased out of which 9 injuries were
incised wounds over the right portion of the
body of the deceased. Injuries on the face
and skull were also found, two stab wounds
and two injuries of abrasion were also
there. Significantly, the doctor has found
clotted blood beneath the skin of the neck
and
opined
that
due
to
excessive
haemorrhage and shock, the deceased died
and that was caused due to ante mortem
injuries. The expert, corroborating the
prosecution version, has also stated that
injury nos. 1 to 9 might be caused by use of
spade, injury nos. 10 and 11 by use of spear
and if a person falls on the ground, abrasion
may be caused. This is also significant to
note that P.W.3 had made a specific
statement that if a person falls with left side
downwards and is assaulted in that
position, all the aforesaid injuries are
possible to be caused. He has also stated in
his cross-examination that it appears from the
perusal of the injuries that the deceased was
assaulted forcibly and it is quite possible that
injuries might be inflicted when he was lying
or was in a position with his left portion
downwards. However, he has also stated that
if the deceased dies only after one or two
blows and he is continuously being beaten
even after his death, it is not possible to
differentiate between ante mortem and post
mortem injuries.
5 All. Ram Ratan & Ors. Vs. State of U.P.
471

38. A lot has been argued on the point
of motive by the learned counsel for the
appellants. At the very outset on the point
of motive, the documents adduced by way
of defence evidence have been impressed
upon. It has been argued on behalf of the
appellants that on account of old animosity
between the parties all the accused persons
have been falsely implicated.

39. The arguments on the point of
motive and animosity take us to the
documents adduced by the defence, which
are on record as Ex.Kha-1 to Ex.Kha-8.

40. Ex.Kha-1 is the certified copy of
the judgement passed by Sessions Judge,
Gorakhpur on 24.5.1962, who, thereby
convicting the accused persons Triambak
Prasad Mishra, Shiv Murti and Ram Ratan
u/s 302 and 302/34 I.P.C., has given benefit
of doubt to one of the accused Shambhoo
Saran Misra.

41. In the same manner Ex.Kha-2 is
the certified copy of the judgement passed
by Sessions Judge, Gorakhpur in Sessions
Trial No. 107 of 1965, wherein the accused
persons, five in numbers, including the
deceased Triambak Prasad Mishra, were
acquitted vide judgement and order dated
31.3.1966.

42. From the perusal of Ex.Kha-3, we
find that one Vaneshwar Shukla filed a
criminal complaint dated 24.3.1975 before
the Court of Munsif Magistrate, Bansgaon,
Gorakhpur, wherein 14 accused were
alleged to take away the crop from the
Khalihan of the complainant and deceased
Triambak Prasad Mishra and some police
personnel were named as accused. It was
argued that this document shows that the
deceased was a muscle man and he had
friendly terms with the police personnel.
We do not think that the present document
has any impact upon the merits of the
present case because this document shows
nothing against the I.O. or any police
official related to the present case.

43. Ex.Kha-4 is a certified copy of the
statement of witness Ram Gulam before the
Court of C.O., which was recorded on
9.7.1968.

44. Ex.Kha-5 is the statement of
witness Ram Ratan before the Court of
C.O. IInd Sadar, Gorakhpur in the case of
Ram Samuj and ors. vs. Triambak Prasad
Mishra and that statement was recorded on
2.5.1968.

45. Ex.Kha-6 is a copy of judgment
delivered
by
Deputy
Director
of
Consolidation,
Gorakhpur
in
a
consolidation case filed by Gajraj, father of
the present appellant Ram Ratan, against
Vishram and Ram Gulam.It appears from
the perusal of the aforesaid document that
the said case was decided on 18.01.1971,
whereas the incident in the present case
was occurred on 10.04.1978, i.e almost 7
years after the aforesaid judgment.

46. Likewise, Ex.Kha-7 is the copy of
statement of D.W.2 Kripa Shankar Dubey
dated 18.12.1969 in consolidation case
between Triambak Prasad Mishra and
others Vs. Bhawani and ors.

47. Ex.Kha-8 is the copy of sale deed,
which was executed by Smt. Kaula, widow
of Raja Ram, in favour of deceased
Triambak Prasad Mishra on 24.12.1971,
which relates to the time much before the
date of present occurrence.

48. By way of the aforesaid defence
evidence, an attempt was made to show
472 INDIAN LAW REPORTS ALLAHABAD SERIES
that the parties had been on inimical terms
for long, and several litigations had been
pending between them. It was also tried to
show that the deceased had a criminal
history and even in a case of murder, he
was awarded life sentence by the Sessions
Court of Gorakhpur prior to the present
occurrence.

49.