# Ram Singh & Ors. (In Jail) v. State of U.P. 582 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 6 ILRA 581
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-31
- **Case number:** Criminal Appeal No.2111 of 1988
- **Bench:** Mrs. Sunita Agarwal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-singh-ors-in-jail-v-state-of-u-p-582-indian-law-reports-allahabad-series-48822
- **Pages:** 18

## Headnote

Law
-
Appeal
against
conviction - Indian Penal Code, 1860-
Section 148, 302, 323 read with Section
149 , The Code of Criminal Procedure,
1973 - Sections 133 & 313.

Enimity
owing
to
litigation
between
the
informant, appellant and the informant and
residents of his village relating to the pathway -
PW-1(informant and brother of deceased) -
injured witness - presence on the place of
occurrence . (Para - 44,)

(B) Criminal Law - Testimony of an injured
witness - Testimony of an injured witness
is accorded a special status in law -
evidence of an injured witness cannot be
doubted
merely
because
there
is
a
background of previous dispute or enmity
between the parties - evidence of the
stamped witness must be given due
weightage as his presence on the place of
occurrence cannot be doubted - held -
testimony of the injured witnesses is absolutely
clear and cogent and free from any kind of
discrepancies, embellishments and concoctions -
in consonance with the medical evidence on
record - no grounds for rejection of evidence of
PW-1 - unless and until major contradictions
and discrepancies in the testimony of injured
witnesses. (Para - 45,46,47,48 )

(c) Criminal Law - delay in lodging FIR -
held - Occurrence took place at 5:30 P.M. -
F.I.R. was lodged at 21:30 P.M - time gap of
four hours in lodging the F.I.R. - cannot be said
to be any delay - F.I.R. was prompt.(Para -52
)

(D) Criminal Law - motive - unlawful
assembly - common object - motive does
not have major role to play in cases based
on eye witness account of the incident - it
assumes significance in cases that rest on
circumstantial evidence - established from
the testimony of the prosecution witnesses -
random individual acts done by appellants
without meeting of mind - appellants can be
held liable only for their individual acts -
Deceased stabbed with spear - injured
succumbed to the stab injury - No other
appellants assaulted deceased with lathi except
to other persons (injured) - held - It would be
hazardous to hold that there was an unlawful
assembly and common object of that assembly
(of
the appellants) was to commit the
murder.(Para -54,63 )

HELD:- Conviction of each of these appellants
under Section 147 & 302 read with Section 149
I.P.C. cannot be said to be just and lawful and
sentence to imprisonment for each is, hereby,
set aside. Established beyond reasonable doubt
that appellants caused injuries which were
simple in nature and punishable under Section
323 I. P.C. . Convict

## Text

_Characters 0–39,944 of 60,444. This is a partial read: ask again with offset=39944 for what follows._

6 All. Ram Singh & Ors. Vs. State of U.P.
581
adjourning the cross examination of the
private witnesses after the conclusion of the
cross examination without any rhyme or
reason, at the drop of a hat. Long
adjournments are being given after the
completion of the chief examination, which
only helps the defense to win them over at
times, with the passage of time. Thus, we deem
it appropriate to reiterate that the trial courts
shall endeavor to complete the examination of
the private witnesses both chief and cross on
the same day as far as possible. To further
curtail this menace, we would expect the trial
courts to take up the examination of the
private witnesses first, before proceeding with
that of the official witnesses. A copy of this
judgment shall be circulated to all the trial
courts, to be facilitated through the respective
High Courts."

The Apex Court while taking
judicial notice of the factual scenario in
Rajesh Yadav (supra) reiterated that the
appropriate course for the trial court is to make
endeavour to complete the examination of the
private witnesses, both chief and cross, on the
same day, as far as possible, and also to take
up the examination of the private witnesses
first, before proceeding with that of the official
witnesses. This approach is needed to ensure
fair and proper trial which is the duty of the
trial Court and also to curb the menace where
the private witnesses turned hostile for obvious
reasons because of long adjournments,
permitting an act of manoeuvring.

45. Though in the instant case, wherein the
trial was conducted in the year 1989, nothing
much could be said on the conduct of the trial
Judge who had recorded the statements of the
prosecution witnesses of fact (PW-1 to PW-3),
however, as a guidance to conduct the trial in a
prudent manner, it is imperative to notify the
abovenoted judgment of the Apex Court to the
Sessions Court throughout the State of U.P., as a
reminder to the caution and directions issued by
the Apex Court in Vinod Kumar (supra)
reiterated in Rajesh Yadav (supra).

46. We, therefore, direct that the copy of
the judgment and order dated 4th February, 2022
of the Apex Court in Rajesh Yadav and
another etc. vs. State of U.P. (Criminal
Appeal Nos. 339-340 of 2014) reported in
2022 (3) ADJ (SC) be circulated amongst all the
trial Judges in the State of U.P. by the Registrar
General, High Court, Allahabad.

With the above observations and
directions, on merits, the appeal is dismissed.

The appellant is in jail.

The office is directed to transmit back
the lower court record along with a certified copy
of this judgment for information and necessary
compliance.

Necessary steps shall be taken by the
court below to notify this judgment to all
concerned.

The compliance report be furnished to
this Court through the Registrar General, High
Court, Allahabad.
----------
(2022)06ILR A581
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No.2111 of 1988

Ram Singh & Ors. ...Appellant (In Jail)
Versus
State of U.P. ...Respondent
582 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri N.K. Sharma, Sri Anshul Singhal, Sri Mukesh
Kumar, Sri S.P.S. Chauhan, Sri Vinod Kumar
Singh, Sri Rahul Kumar Sharma

Counsel for the Respondent:
A.G.A., Sri Ravi Prakash Singh

(A)
Criminal
Law
-
Appeal
against
conviction - Indian Penal Code, 1860-
Section 148, 302, 323 read with Section
149 , The Code of Criminal Procedure,
1973 - Sections 133 & 313.

Enimity
owing
to
litigation
between
the
informant, appellant and the informant and
residents of his village relating to the pathway -
PW-1(informant and brother of deceased) -
injured witness - presence on the place of
occurrence . (Para - 44,)

(B) Criminal Law - Testimony of an injured
witness - Testimony of an injured witness
is accorded a special status in law -
evidence of an injured witness cannot be
doubted
merely
because
there
is
a
background of previous dispute or enmity
between the parties - evidence of the
stamped witness must be given due
weightage as his presence on the place of
occurrence cannot be doubted - held -
testimony of the injured witnesses is absolutely
clear and cogent and free from any kind of
discrepancies, embellishments and concoctions -
in consonance with the medical evidence on
record - no grounds for rejection of evidence of
PW-1 - unless and until major contradictions
and discrepancies in the testimony of injured
witnesses. (Para - 45,46,47,48 )

(c) Criminal Law - delay in lodging FIR -
held - Occurrence took place at 5:30 P.M. -
F.I.R. was lodged at 21:30 P.M - time gap of
four hours in lodging the F.I.R. - cannot be said
to be any delay - F.I.R. was prompt.(Para -52
)

(D) Criminal Law - motive - unlawful
assembly - common object - motive does
not have major role to play in cases based
on eye witness account of the incident - it
assumes significance in cases that rest on
circumstantial evidence - established from
the testimony of the prosecution witnesses -
random individual acts done by appellants
without meeting of mind - appellants can be
held liable only for their individual acts -
Deceased stabbed with spear - injured
succumbed to the stab injury - No other
appellants assaulted deceased with lathi except
to other persons (injured) - held - It would be
hazardous to hold that there was an unlawful
assembly and common object of that assembly
(of
the appellants) was to commit the
murder.(Para -54,63 )

HELD:- Conviction of each of these appellants
under Section 147 & 302 read with Section 149
I.P.C. cannot be said to be just and lawful and
sentence to imprisonment for each is, hereby,
set aside. Established beyond reasonable doubt
that appellants caused injuries which were
simple in nature and punishable under Section
323 I. P.C. . Conviction of appellants modified
as conviction under Section 323 I.P.C. . (Para -
63,64 )

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

1. Brahm Swaroop & anr. Vs St. of U.P., (2011)
6 SCC 288

2. Dalip & ors. Vs St. of Punj. A.I.R. ,(1953) SC
364

3. Masalti Vs St. of U.P. ,(A.I.R.) 1965 SC 202

4. Masalti Vs St. of U.P., A.I.R. 1965 SC 202

5. Rameshwar & ors. Vs St. ,2003 (46) ACC 581

6. Jarnail Singh Vs St. of Punj., (2009) 9 SCC
719

7. Balraje @ Trimbak Vs St. of Mah. ,(2010) 6
SCC 673

8. Abdul Sayed Vs St. of M.P. ,(2010) 10 SCC
259

9. St. of U.P. Vs Naresh & ors., (2011) 4 SCC 324

10. Bhajan Singh Vs St. of Har., (2011) 7 SCC
421
6 All. Ram Singh & Ors. Vs. State of U.P.
583
11. Abdul Sayeed Vs St. of M.P., (2010) 10 SCC
259

12. Kailas & ors. Vs St. of Mah., (2011) 1 SCC
793

13. Durbal Vs St. of U.P., (2011) 2 SCC 676

14. St. of U.P. Vs Naresh & ors., (2011) 4 SCC

15. St. of H.P. Vs Jeet Singh ,1999 (38) ACC 550
SC

16. Baitulla & anr. Vs St. of U.P., AIR 1997 SC
3946

17. Rameshwar & ors. Vs St. ,2003 (46) ACC
581

18. St. of Haryana Vs Sher Singh & ors. ,1981
Cr. Ruling 317 SC

19. Lalji & ors. Vs St. of U.P. ,1973 AIR SC 2505

20. Chinu Patel Vs St. of Orissa ,1990 CRLJ 248

(Delivered by Hon'ble Subhash Chandra
Sharma, J.)

1. Heard Sri N.K. Sharma learned
Advocate assisted by Sri Anshul Kumar
Singhal learned Advocate on behalf of the
appellant nos.3 & 4; Gajraj and Raghuveer;
respectively and Sri Mukesh Kumar,
learned counsel on behalf of the appellant
no.5- Ram Bahadur.

2. This appeal emanates from the
judgment and order dated 14.09.1988
passed by the learned VIIth Additional
Session
Judge,
Aligarh
in
S.T.
No.373/1987 (State vs. Rajveer & others)
arising out of Case Crime No.26 of 1987
u/s 148, 302, 323 readwith Section 149
I.P.C., Police Station Sikandrarau, District
Aligarh whereby appellant Rajveer has
been
convicted
and
sentenced
for
imprisonment for a period of six months u/s
148; with life imprisonment u/s 302
readwith Section 149 I.P.C; for a period of
three months simple imprisonment u/s 323
readwith Section 149 I.P.C; and appellant
Ram Singh, Roshan, Gajraj, Raghuveer,
Ram Bahadur & Roop Kishore have been
convicted and sentenced u/s 147 I.P.C. for
a
period
of
three
months
rigorous
imprisonment; u/s 302 readwith Section
149 I.P.C. for life imprisonment; and u/s
323 readwith Section 149 I.P.C. for a
period
of
three
months
simple
imprisonment.

3. Co-appellant Rajveer had died
during pendency of this appeal, therefore,
appeal on behalf of co-appellant Rajveer
stands abated.

4. The prosecution case in brief is that
informant Ram Khiladi S/o Surat Singh is
R/o Nagla Mahari hamlet of Kachaura,
Police Station Sikandrarao. There was
enmity owing to litigation between the
informant Roshan Singh, Ram Singh and
the informant and residents of his village
relating to the pathway. As per narration in
the F.I.R on 22.01.1987 at about 5:30 P.M.,
Pandit Bakelal resident of the neighbouring
village cried near the Pipal tree in the forest
under the fear of ghost on which several
people reached there. In the meantime, the
informant and his brother Rukumpal were
coming back to their house from the field
with fodder of babul and passed by the
Pipal tree while looking at Bakelal Pandit.
When they were near the Shiv Temple,
Rajbir, Ram Singh, Roshan Singh, Gajraj,
Kishorilal, Raghuveer, Ram Bahadur and
Roop Kishore called and asked as to who
was
there
and
that
who
was
shouting/crying, on which the informant
replied that it was Bakelal Pandit who got
scared near the pipal tree. On this, they said
to him while abusing that he was not telling
the truth. On this, the informant told them
584 INDIAN LAW REPORTS ALLAHABAD SERIES
to keep their tongue under control and
asked
why
were
they
abusing.
An
altercation was started between them and at
which the accused said "maro salon ko inka
dimag bahut kharab hai" and they began to
beat all of them with lathi and spear.

5. On hearing their screams, his father,
brother Ramji Lal, Ramdeen, Dhyan Singh
and Krishnaveer ran to save them. They were
assaulted as well. Rajveer was equipped with
spear and others were carrying lathi. Rajveer
pierced with spear in the abdomen of Rukum
Pal who fainted and fell down. In the
meantime, Netrapal, Sughar Singh and Foran
Singh came there and the accused/appellants
ran away. It was stated in the report that in
defence, the complainant side also wielded
lathi which might have caused injuries to
some of the persons of the accused party, but
all on the side of the complainant were
injured. Rukumpal succumbed to the injuries
on the way to the hospital Sikandrarao, and
then they reached the police station. Written
tehrir stating the above noted facts was
prepared by the informant and on the basis of
it, F.I.R. was lodged at the police station on
the same day at about 21:30 P.M.

6. The inquest of deceased Rukum Pal
was conducted by S.I. Baljeet Singh on
22.01.1987 on the same day at about 10:40
P.M. at the gate of the police station and the
inquest report was prepared in the presence
of the witnesses present there. The dead
body was sealed, essential papers were
prepared and the body was handed over to
constables Prempal Singh and Ram Tirath
Singh for the post-mortem. Dr. T.N. Goel
conducted autopsy of the dead body of
Rukampal which was received by him in a
sealed bundle, on 23.01.1987 at 4:30 P.M.
and the post-mortem report was proved as
Exihibit Ka-2. Details of the post-mortem
report are as under:-

External Examination

Age of the deceased was about 30
years and the time of death about one day.
Average built body. Rigor mortis was
present
in
both
upper
and
lower
extremities. Eyes and mouth were closed.

Antemortem Injuries

1. Penetrating wound 1.5 cm x 1
cm x cavity deep on the left side of upper
abdomen region. Margins are cleaned.

2. Abrasion 1.5 cm x 1.5 cm on
back of the right elbow.

3. Abrasion 1 cm x 0.5 cm on
back of the left wrist.

4. Linear abrasion 3 cm on
outside middle of the left leg.

Internal Examiantion

Scalp, skull - NAD. Membrane -
NAD. Brain - NAD. Base - NAD.
Vertebrae - NAD. Spinal Cord - Not
opened.

Thorax

Walls, ribs and cartilage - NAD.
Pleaura - NAD. Larynx and Trachea -
NAD. Right and left lungs - NAD.
Pericardium - NAD. Heart - NAD. Weight
- 6.5 ounces. Vessels - NAD.

Abdomen

Walls - as described. Peritoneum -
punctured left side upper part. Cavity -
partly clotted blood present. Buccal cavity,
pharynx & oesophagus - NAD. Teeth -
16/16. Stomach - punctured with clotted
6 All. Ram Singh & Ors. Vs. State of U.P.
585
blood present 40 ounces food material
present mixed with blood. Small intestine -
gases and faecal matter. Large intestine -
gases faecal matter. Liver and gall bladder -
NAD. GB - half full. Pancreas - NAD.
Spleen - NAD weight 4.5 ounce. Kidneys -
NAD with 7.5 ounce both bladder empty.
Generation organs - NAD. Cause of death -
due to shock and hemorrhage resulting
from injury no.1.

7. On the date of the incident injured
Ramji Lal, Ram Khiladi, Suraj Singh, Dhyan
Singh, Krishna Singh were also examined by
Dr. L.S. Chauhan at PHC Sikandra Rao,
Aligarh. The details of injuries found on the
person of Ramji Lal are as under:-

(a) abraded contusion 3 cm x 2
cm x muscle deep on forehead 5 cm above
the right eyebrow.

(b) abraded contusion 4 cm x 2 cm
on the back of left elbow joint. All injuries
were simple in nature and caused by some
hard and blunt object. Duration fresh.

8. On the body of Ram Khiladi, the
following injuries were found :-

(a) abraded contusion 4 cm x 7
cm on the outer part of right upper arm
from above the right elbow joint.

(b) Contusion 5 cm x 2 cm on the
back of the right forearm 6 cm above the
right elbow joint. All injuries were simple
in nature, caused by some hard and blunt
object. Duration fresh.

9. Injuries found on the body of Suraj
Singh are as under :-

(a) Contusion 3 cm x 2 cm on the back
of right shoulder oblique in direction.

(b) Contusion 8 cm x 2 cm on the back
of right forearm below the elbow joint.

(c) Lacerated wound 1.5 x 5 cm x
tissue deep on the back of the right hand
just below the wrist joint.

(d) Abraded contusion 4 cm x 2 cm on
the left scapula region 3 cm below the
shoulder joint. All injuries were simple in
nature, caused by some hard and blunt
object. Duration fresh.

10. Injuries found on the body of
Dhyan Singh are as under :-

(a) Lacerated wound 1 cm x .2 cm
x tissue deep on the right side of face just
away from the nose.

(b) Contusion 6 cm x 3 cm on the
back of left forearm 8 cm blow the left
elbow joint oblique in direction.

(c) Contusion 3 cm x 2 cm below
the back of right forearm 2 cm above the
wrist joint. All injuries were simple in
nature, caused by some hard and blunt
object. Duration fresh.

11. Injuries found on the body of
Krishna are as under :-

(a) Contusion 4 cm x 2 cm on the
back of right leg 5 cm above the ankle
joint. Injury was simple in nature caused by
some hard and blunt object. Fresh in
duration.

12. The investigating officer visited
the place of the occurrence, collected blood
stained and plain soil in separate boxes,
sealed them and prepared fard Ex Ka- 12.
Two bundles of fodder of babul were taken
into possession and given in supurdagi and
586 INDIAN LAW REPORTS ALLAHABAD SERIES
fard
supurdaginama
Ex
Ka-13
was
prepared.

13. Search of the house of accused
Rajveer was made on 29.01.1987 from
where blood stained spear was recovered at
the instance of the appellant Ram Singh
and taken into custody and fard Ex Ka- 15
was prepared.

14. After inspection of the place of
occurrence
at
the
instance
of
the
informant,site plan Ex Ka- 11 was prepared
on 23.01.1987 by the Investigating Officer
and the site plan Ex Ka-23 relating to
recovery of spear from the house of coappellant Rajveer was also prepared on
29.01.1987. The Investigating Officer had
also recorded the statements of witnesses
conversant to the facts of the case. He
concluded the investigation and found a
case prima facie made out u/s 147, 148,
149, 323, 302 I.P.C. against the appellants
and after preparing the charge-sheet, he
submitted it to the court concerned.

15. Cognizance of the offences was
taken by the learned C.J.M., who provided
copies of prosecution papers to the
appellants in compliance of Section 207
Cr.P.C. and committed the case to the court
of sessions for trial.

16. Learned trial court framed the
charges u/s 147, 148, 302, 323 readwith
Section 149 I.P.C. on the basis of the
material on record after giving opportunity
of hearing to the appellants. Charges were
readover and explained to them. They
pleaded not guilty but denied the charges
and claimed for trial, consequently case
was fixed for prosecution evidence.

17. The prosecution examined PW-1
Ram Khiladi, PW-2 Sughar Singh, PW-3
Netrapal, PW-4 Sri Krishana Veer as
witnesses of fact. PW-5 Dr. T. N. Goel is
the doctor who conducted the post-mortem
of the body of deceased Rukampal and
prepared post-mortem report. PW-6 Dr.
L.S. Chauhan had examined the injuries on
the person of Ramji Lal, Ram Khiladi,
Suraj Singh, Dhyan Singh and Krishan
Singh and prepared injury report. PW-7
H.C. Sri Krishna prepared the check F.I.R.
on the basis of tehrir and entered the detail
in the G.D. PW-8 S.I. Mahaveer Singh
Yadav conducted the investigation of the
case after S.S.I. Kailash and Inspector
Baljeet Singh and submitted the chargesheet. PW-9 Constable Ram Tirath brought
the dead body to the mortuary for the postmortem. PW-10 Lakhan Singh is a witness
of recovery of spear from the house of
appellant Rajveer. PW-11 Inspector Baljeet
Singh recorded the statement of witnesses
and prepared the inquest report and after
visiting the place of the incident prepared
the site plan.

18. After conclusion of prosecution
evidence, the statements of appellants
under Section 313 Cr.P.C were recorded
wherein they negated the statements made
by the witnesses before the court and stated
that witnesses had falsely implicated them
due to enmity. Co-appellant Rajveer had
also negated the recovery of spear from his
house. All the appellants had made similar
statements.

19. Appellants were given an
opportunity for defence evidence wherein
they examined Layak Singh as DW-1 in
their support.

20. Learned trial court heard the
arguments for the prosecution as well as
appellants, passed the judgment and order
dated 14.09.1988 wherein he found the
6 All. Ram Singh & Ors. Vs. State of U.P.
587
appellant Rajveer guilty under Sections
148, 302, 323 read with Section 149 I.P.C.
Appellants Ram Singh, Roshan, Gajraj,
Raghuveer, Ram Bahadur and Roop
Kishore were found guilty u/s 147, 302,
323 readwith Section 149 I.P.C. and
sentenced as aforesaid against which this
appeal has been preferred.

21. Learned counsel for the appellants
submits that the judgment of the learned
trial court is against the evidence available
on record. It is bad in the eyes of law and
based on the testimony of interested
witnesses those who were related to the
deceased. No independent witness had been
examined though the occurrence took place
on a public place. The prosecution failed to
establish the motive for committing the
offence. As a result, no offence can be said
to be made out against the appellants under
Sections 302, 323 read with Section 149
I.P.C. Appellant Rajveer who had been
assigned the role of stabbing spear had
already died. There was no evidence of
unlawful assembly and common object,
therefore, conviction under Section 302
with the help of Section 149 I.P.C. against
all the appellants cannot be sustained. The
learned trial court on misappropriation of
the evidence has convicted and sentenced
all the appellants with the aid of Section
149 I.P.C. which is bad in law. There was
no common object in the minds of the
appellants to murder the deceased. There
was an altercation between the appellants
and the deceased due to which the incident
took place wherein people from both the
sides received injuries. This fact is clear
from the F.I.R. wherein the informant has
mentioned that in defence people on their
side also wielded lathi causing injuries to
some people on the accused side. In this
way, from the evidence on record, it
transpires that the appellants had not
committed the act in prosecution of their
common object so they cannot be held
guilty for the overt act committed singly by
appellant Rajveer for stabbing with spear to
the deceased. Even if it is accepted that
there was a common object it may be to the
extent of causing injuries only but not to
commit the murder. Therefore, the case, at
the worst, would fall within the limits of
Section 323 I.P.C. and the appeal deserves
to be allowed.

22. Learned A.G.A. opposed the
submissions made by the learned counsel
for the appellants and urged that, in this
case, the appellants caused injuries to the
deceased with lathi and spear and also to
other injured persons with lathi. All the
appellants formed an unlawful assembly
and in prosecution of the common object of
the assembly they committed the murder of
Rukampal and caused injuries to others. It
was argued that it is not necessary that an
assembly may be unlawful since the
beginning but it may become unlawful
subsequently and in this regard the
argument made by the learned counsel for
the appellants is not tenable. The witnesses
had sustained injuries on their person so
their presence cannot be disputed and their
testimony is wholly reliable. There are no
material contradictions in their statements.
They are natural witnesses of the incident
so their testimony cannot be said to be
unreliable and untrustworthy. Learned trial
court has convicted the appellants on the
basis of the evidence on record. There is no
illegality in the judgment in question and
the appeal being devoid of merit is liable to
be dismissed.

23. From the submissions and perusal
of the record,the following questions
emerged for consideration by this Court (i)
as to whether there was any unlawful
588 INDIAN LAW REPORTS ALLAHABAD SERIES
assembly
and
common
object
in
prosecution of which the offence was
committed or the incident took place only
at the spur of the moment without any prior
meeting of mind. (ii) Further whether it
was only to the extent of committing marpit
for which liability of all the appellants
cannot be fixed with the help of Section
149 I.P.C.,constructively, but it may be
fastened individually on the appellant
Rajbeer who did overt act in causing injury
to Rukampal with spear resulting into his
death, and that the offence committed by
the appellants goes to the extent of Section
323 I.P.C. since appellant Rajbeer who
stabbed the deceased with spear had
already died and this appeal on his behalf
stood abated.

24. Before we deal with the
contentions raised by the learned counsel
for the appellant, it would be convenient to
take note of the witnesses account as
adduced by the prosecution.

25. PW-1 Ram Khiladi,the informant
and brother of the deceased Rukampal
deposed that he is resident of Nagla Surat
Singh. Appellant Rajbeer and Gajraj are
residents of Nagla Beni Ram. Other
appellants Roshan, Ram Singh, Ram
Bahadur,
Kishori,
Roop
Kishor
and
Raghuveer are residents of Nagla Kaka
which is 200 meters away in the South
direction. Nagla Beni Ram is located in the
Western direction at the distance of 350
meters. Appellants Rajbeer and Gajraj are
uncle and nephew, Roop Kishor and
Kishori are cousins. Ram Singh and Ram
Bahadur are also uncle and nephew,
likewise Kishori and Rajbeer are also
cousins.The
informant
moved
an
application u/s 133 Cr.P.C. before the
S.D.M. against Roshan and Ram Singh for
removing the obstruction in the pathway in
front of his house which was withdrawn by
him under the pressure of both the
appellants. That pathway was still closed
regarding. Earlier also an application was
moved before the S.D.M whereupon order
was passed to remove the obstruction and
open the way due to which they became
inimical with him. He further reiterated the
averments
in
the
FIR
about
the
occurrence.It is stated by PW 1 that he
wrote a tehrir by taking a piece of paper
from the compounder of the hospital and
lodged the report at the police station
Sikandrarao.He proved the written tehrir
being in his writing and signature as Ex Ka
- 1. It was further stated that all the injured
persons were sent to Sikandrarau hospital
for medical examination where they were
medically examined and the dead body of
Rukampal was kept in front of the police
station.

This witness was subjected to a
lengthy cross-examination by the learned
counsel for the appellants wherein the
witness had not disclosed any such fact
which weakens his testimony. He had
assigned the role of stabbing with spear to
the appellant Rajbeer and marpit by lathi by
other appellants.

26. PW-2 Sughar Singh deposed that
on the date of the incident, at about 5:30
P.M.,he was coming from the side of the
village and when reached near the temple
outside the village,he heard the noise of
abuses. Hearing the noise,he reached to the
boundary line of the field of Kedari, where
Sobran Singh and Netrapal Singh were also
present. He saw that Rukampal, Ram
Khiladi, Suraj Singh, Dhyanveer Singh,
Krishnaveer Singh and Ramji Lal were
being beaten by Rajveer, Gajraj, Roshan,
Raghuveer, Kishori, Roop Kishor, Ram
Singh and Ram Bahadur. Rajveer stabbed
6 All. Ram Singh & Ors. Vs. State of U.P.
589
Rukampal with spear in his stomach, as a
result, he fell down.Other accused persons
beaten Rukampal, Dhyan Singh, Suraj
Singh, Ramji Lal, Ram Khiladi and
Krishnaveer with lathi. All these persons
sustained injuries of lathi. After beating,
accused persons went away towards the
East
direction.
Rukampal
became
unconscious and was taken to his house on
a cot.

This witness was also subjected
to grueling cross-examination by the
learned counsel for the appellants but even
during the cross-examination he again
asserted the account of the incident as
committed by the appellants. No such
statement was made by him as to indicate
that this witness was not present at the
place of occurrence or he could not identify
the assailants.

27. PW-3 Netrapal Singh had deposed
that the time of murder of Rukampal was
5:30 P.M. He was at the temple and heard
noise coming from the field of Kedari. The
boundary line of the field of Kedari and the
temple was same. Hearing the noise he
went to the filed of Kedari where Ram
Khiladi,
Ramji
Lal,
Rukum
Pal,
Kishanveer, Ramdin, Surajpal, Sugar Sigh
& Sobran Singh were present. Rajbir was
equipped with spear (Bhala), Gajraj Singh,
Kishori Lal, Roopkishor, Ram Singh, Ram
Bahadur, Roshan Singh and Raghuveer
were equipped with lathi. These people
started beating Ram Khiladi and others.
Rajbir stabbed Rukampal with spear who
fell on the ground. PW 3 stated that he
interrupted and said why did you beat
them,whether you would kill them. In
addition to Rukam Pal, Ramji Lal, Ram
Khilari, Ramdin, Kishan Veer and Suraj
Pal also sustained injuries. After beating,
the accused persons ran away towards East.

This witness faced lengthy crossexamination but he reiterated the detail of
the incident categorically without any
deviation.

28. PW-4 Krishnaveer also stated that
his brother Rukam Pal was murdered at
about 5:30 P.M. He was at home at that
time. His father, brother Ramji Lal, Ramdin
and Dhyan Singh were also at home.
Hearing the noise from near the temple,
they went to the field of Kedari (near the
temple)
where
Rajbir,
Gajraj,
Ram
Bahadur, Ram Singh, Roshan Lal, Kishan
Lal and Roop Singh were present. They
were beating his brothers Ram Khiladi and
Rukam Pal. Rajbir had spear and others
were equipped with lathi and all the
accused were beating the complainant side.
When they tried to save the injured, the
accused Rajbir and others also beaten them
and caused injuries, Rajbir stabbed with
spear in the stomach of his brother Rukam
Pal before him, with the stab wound
Rukam Pal fell down. He,(P.W. 4) Ram
Khiladi, Ramji Lal, Dhyan Singh and his
father Sooraj Singh also sustained injuries.
After committing marpit, accused persons
went away towards the East. Rukum Pal
was brought to his house by them, then to
the police station by tractor. While they
were taking him to the hospital at Sikandra
Rao he succumbed to his injuries.

This witness was also crossexamined by the learned counsel for the
appellant at length but during crossexamination the witness had asserted the
details of the incident clearly without
deviating from the actual facts relating to
the occurrence.

29. PW-5 Dr. T.N. Goel had deposed
that on 23.01.1987 he was posted at
Malkhan Singh Hospital and conducted the
590 INDIAN LAW REPORTS ALLAHABAD SERIES
post-mortem of the dead body of Rukam
Pal at about 4:35 O'clock. Dead body was
brought by the constables Prem Pal and
Ram Tirath. He had proved the injuries
found on the person of deceased and also
the post-mortem report, having being
prepared in his hand writing and signature
as Ex Ka- 2. He opined that the death of
deceased Rukam Pal was possible in the
evening at about 8:30 P.M. on 22.01.1987
and injury no.1 could be inflicted with
spear and others with lathi and danda.

30. PW-6 Dr. L.S. Chauhan had
deposed that on 22.1.1987 he was posted at
P.H.C. Sikandrarau as Medical Officer. On
that day, he examined injuries on the
person of Ramji Lal at 11 O'clock in the
night, Ram Khiladi at 11:15 P.M., Sooraj
Singh at 11:30 P.M., Dhyan Singh at 11:45
P.M. and Kishan Singh at 12:00 P.M. He
proved the injuries found on the person of
injured and also injury report prepared by
him in his hand writing and signature. He
proved them as Ex Ka- 3 to 7.

31. PW-7 Shri Krishan, H.C. Police
Station, Sikandrarau deposed that he
prepared check report of this case in his
hand writing and signature and proved it as
Ex Ka- 8. Further stated that the entry of
F.I.R. was made as report no.41 in G.D. in
his hand writing and signature and proved
the carbon copy of G.D. by comparing it
with the original, as Ex Ka- 9.

32. PW-8 S.I. Mahaveer Singh Yadav
stated that he was handed over the
investigation of this case after S.S.I.
Kailash Bhusan and Inspector Bajeet
Singh. He recorded the statements of
witnesses Ramdin, Netrapal, Sughar Singh
and all the accused persons. He prepared
the charge-sheet in his hand writing and
signature which he proved as Ex Ka-10.

33. PW-9 Constable Ram Tirath,
stated that on 22.01.1987 at about 12:00
O'clock in the night he was handed over the
dead body of deceased Rukam Pal and
brought it to post-mortem house, Aligarh
with relevant papers. Constable Prem Pal
was also with him at that time.

34. PW-10 Lakhan Singh is a witness
of recovery of spear at the instance of
Rajbir and proved the recovery as Ex-1.

35. PW-11 Inspector, Baljeet Singh
had investigated the case prior to S.S.I.
Mahaveer
Singh.
He
proved
the
investigation done by him and also the
inquest report which was got prepared by
S.I., K.P. Sharma and the site plan of the
place where two bundles of babul fodder
were lying as Ex Ka-11. He also proved
fard relating to collection of blood stained
and plain soil from the place of occurrence
as Ex Ka-12, supurdaginama relating to
two bundles of babul fodder as Ex Ka-13
and search memo of the house of accused
Rajbir as Ex Ka-14. Thereafter,he was
transferred. Further he proved the fard
recovery of the spear in the hand writing of
S.I., K.B. Singh as Ex Ka-15, the inquest
report of deceased Rukam Pal in the hand
writing and signature of Sri K.P. Sharma as
Ex Ka-16, other relevant papers relating
thereto as Ex Ka-17 to Ex Ka-22 and the
site plan relating to the place of recovery as
Ex Ka-23.

36. PW-1 to PW-4 are witnesses of
fact. All these witnesses remained intact
during their gruelling examination. No such
contradictions
are
visible
in
their
statements which can make their testimony
unreliable
and
unnatural.
Minor
contradictions are there but they are of
cosmetic nature and not likely to affect the
credibility of their testimony. In the instant
6 All. Ram Singh & Ors. Vs. State of U.P.
591
case, both informant, injured persons and
the appellants belong to the adjacent
locality. There cannot be any dispute about
the identification of the appellants. Though
the
appellants
have
stated
in
their
statements recorded u/s 313 Cr.P.C. that
they had been implicated falsely on account
of enmity but there was no suggestion of
enmity during cross-examination of any of
the witnesses which might have adversely
affected their reliability and become an
excuse for implicating the accused falsely
while absolving real culprits. It is to note
that PW-1 Ram Khilari, informant has
stated that he moved an application u/s 133
Cr.P.C. before the S.D.M. against Roshan
and Ram Singh for removing obstructions
in the pathway in front of his house which
was
withdrawn
by
him.
Thereafter,
pathway was still closed and he filed
another application before the S.D.M. to
remove the obstructions owing to which
they became inimical with him. It infers
that
there
was
dispute
relating
to
obstruction in the way of the informant
between appellants Roshan and Ram Singh
but not with other appellants. It can also not
be said that on account of such a dispute
informant
would
implicate
appellants
falsely leaving the real assailants. On the
ground of enmity the testimony of ocular
witnesses those have sustained injuries in
the incident cannot be said to be unreliable
because they are natural witnesses of the
incident. On the other hand, enmity is said
to be with appellant Roshan and Ram Singh
whereas other appellants Gajraj, Ram
Singh, Ram Bahadur and Roop Kishor
were not inimical to the informant.
Therefore, the testimony relating to their
involvement also can not be disbelieved.

37. There is not even an iota of
evidence on record which could suggest that
PW-1 to PW-4 had any other grudge against
the appellants in any case to implicate them
falsely.

38. From PW-1 to 4, all are related to
each other and also to the deceased
Rukumpal regarding which argument had
been made that all these witnesses being
relative and highly interested, are not reliable
and lack of account of independent witnesses
in support of the case is fatal no the
prosecution story. No doubt the prosecution
witnesses from PW-1 to 4 relating to the fact,
as examined in the case, are members of the
same family as uncle and nephew and also
related to the deceased. But the relationship
itself is not a ground to reject the testimony of
witnesses, rather a family member would be
last to leave the real culprit and falsely
implicate any other person.

39. In the case of Brahm Swaroop and
another vs. State of U.P. (2011) 6 SCC 288
the Apex Court in Para No.21 has observed
as under

"merely because the witnesses
were related to the deceased persons, their
testimonies cannot be discarded. Their
relationship to one of the parties is not a
factor that affects the credibility of a
witness, more so, a relation would not
conceal
the
real
culprit
and
make
allegations against an innocent person. A
party has to lay down a factual foundation
and prove by leading impeccable evidence
in respect of its false implication. However,
in such cases the Court has to adopt a
careful approach and analyse the evidence
to find out whether it is cogent and credible
evidence."

40. The Court also referred cases of
Dalip and others vs. State of Punjab A.I.R.
(1953) SC 364; Masalti vs. State of U.P.
(A.I.R.) 1965 SC 202.
592 INDIAN LAW REPORTS ALLAHABAD SERIES

41. In Masalti vs. State of U.P. A.I.R.
1965 SC 202, the Apex Court observed in
Para No.14

"but it would, we think, be
unreasonably to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. The
mechanical rejection of such evidence on
sole ground that it's partisan would
inveriably lead to failure of justice. No
hard and fast rule can be laid down as to
how much evidence should be appreciated.
Judicial approach has to be cautious in
dealing with such evidence; but the plea
that such evidence should be rejected
because it's partisan cannot be accepted as
correct.

42. It is common knowledge that
village (mohalla) life is faction ridden and
involvement of one or the other in the
incidents is not unusual. One has also to be
cautious about the fact that wholly
independent witnesses are seldom available
or are otherwise not inclined to come forth.
Lest they may invite trouble for themselves
for future. Therefore, relationship of eyewitnesses inter se, cannot be a ground to
discard their testimony. There is no reason
to suppose the false implication of the
appellants at the instance of the eyewitnesses. It would also be illogical to
think that witnesses would screen the real
culprits and substitute the appellants for
them.

43. This Court has also made such
observations in Para No.14 of Rameshwar
and others vs. State 2003 (46) ACC 581.

44. It is pertinent to note that PW-1
Ram Khilari is an injured witness and his
presence on the place of occurrence cannot
be denied and it can also not be said that he
would conceal the name of real assailants
and implicate the false one.

45. It is settled law that the testimony
of an injured witness is considered to be
very reliable and is accorded a special
status in law. In the case of Bhajan Singh
Vs. State of Haryana (2011) 7 SCC 421,
where it was held as follows: " The
evidence of the stamped witness must be
given due weightage as his presence on the
place of occurrence cannot be doubted. His
statement is generally considered to be very
reliable and it is unlikely that he has spared
the actual assailants in order to falsely
implicate someone else. The testimony of
an injured witness has its own relevancy
and efficacy as he has sustained injuries at
the time and place of occurrence and this
lends support to his testimony that he was
present at the time of occurrence. Thus, the
testimony of an injured witness is accorded
a special status in law. Such a witness
comes with a built in guarantee of his
presence at the scene of crime and is
unlikely to spare his actual assailants in
order
to
falsely
implicate
someone.
Convincing
evidence
is
required
to
discredit an injured witness. (vide Jarnail
Singh v. State of Punjab (2009) 9 SCC 719;
Balraje @ Trimbak v. State of Maharashtra
(2010) 6 SCC 673; Abdul Sayed v. State of
Madhya Pradesh (2010) 10 SCC 259)".

46. In the case of State of U.P. v.
Naresh & Ors. (2011) 4 SCC 324, it was
held that evidence of an injured witness
cannot be doubted merely because there is
a background of previous dispute or enmity
between the parties because this could well
be the motive of giving assault by the
accused on injured witnesses. The evidence
of an injured witness has to be appreciated
keeping in view that ordinarily a person,
6 All. Ram Singh & Ors. Vs. State of U.P.
593
who has been assaulted by someone would
not allow him to go Scot free and falsely
implicate persons other than those who
actually assaulted him. The evidence of an
injured witness stand on different pedestal
as compared to any other witness cited by
the prosecution as eye witness, who claims
to have seen the incident. Where an injured
witness clearly named the person and the
assault made on him by those persons
which is broadly corroborated with what
has been found in the medical report, even
though there may not be any mathematical
precision with regard to the manner of
assault, the evidence of an injured eye
witness cannot be lightly thrown aside only
on
certain
minor
contradictions
and
omissions.