# RAM PRASAD AND OTHERS v. THE STATE OF U.P

- **Citation:** [1974] 1 S.C.R. 650
- **Court:** Supreme Court of India
- **Decided:** 1973-09-17
- **Case number:** Criminal Appeal No. 52 of 1970
- **Bench:** H. R. Khanna, A. Alagiriswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-prasad-and-others-v-the-state-of-u-p-6016
- **Pages:** 6

## Headnote

Indian Evidence Act-Whether every person who has seen_ the incident
should be cited as a witness by prosecution in the criminal case-Duty of the
prosecution to bring on· record full and material facts.
The apPellants were convicted u/s 148 and 302 read JVith Sec. 149 of the
l.P.C.
The conviction was challenged in the Supreme CoUrt. inter alia, on
the ground that besides the eye witnesses, the F.I.R. mentioned the names of
three more persons who had seen the incident but they were not examined by
the prosecution. In rejecting th: contention and dismissing the appeal.
HELD : Non-examination ot 'some of the eye-witnesses mentioned in the
F.I.R. does not introduce any fatal infirmity to the prosecution case. It is no
doubt true that the prosecution is bound to produce witnesSes who are essential
to' the unfolding of the narrative on which the
prosecution is based. Apart
front that, it cannot be laid down as a rule that if a large number of persons
are present at the time of the occurrence,.. the prosecution is bound to call and
examine each and every one of those persons. The answer to the question as
to what is the effect of the non-examination of a particular
witness would
depenci upon the facts and circumstances of each case. In case enough number
of witnesses have been examined with regard to the actual occurrence and
the~r evidence is reliable and sufficient to base the conviction of the accused
thereon, the prosecution may well decide t.o refrain from examining the other
witnesses.
Likewise, if any of the witnesses is won over by the accused party
and as such is not likely to state the truth. thC prosecution would have a valid
ground for not examining him in court. The prosecution would not, however,
be justified in not examining a witness on the grouild tha_t his evidence even
though not untrue would go in favour of the accused. It is as much the duty
of the prosecutor as of the court to ensure that full and material facts
a~
'brought on the record so that there may be no miscarriage of justice.
The
discharge of such a duty cannot be affected by the consideration that some of
the facts if brought on the record would be favourable to the accused. In case
the court finds that the prosecution has not examined witnesses for reasons not
tenable or not proper, the court would -be justified in drawing an inference
adverse to the prosecution. [654F]
C!uM1NAL APPELLATE JURISDICTION: Criminal Appeal No. 52 of
1970.
Appeal from the Judgment and Order dated the 10th October,
1969, of the Allahabad High Court (Lucknow Bench) Lucknow, in
Criminal Appeal No. 48. of 1968).
K. B. Rohatgi, for the appellants.
0. P. Rana, for the respondent.

## Text

650
RAM PRASAD AND OTHERS
v.
THE STATE OF U.P.
September 17, 1973
[H. R. KHANNA AND A. ALAGIRISWAMI, JJ.]
Indian Evidence Act-Whether every person who has seen_ the incident
should be cited as a witness by prosecution in the criminal case-Duty of the
prosecution to bring on· record full and material facts.
The apPellants were convicted u/s 148 and 302 read JVith Sec. 149 of the
l.P.C.
The conviction was challenged in the Supreme CoUrt. inter alia, on
the ground that besides the eye witnesses, the F.I.R. mentioned the names of
three more persons who had seen the incident but they were not examined by
the prosecution. In rejecting th: contention and dismissing the appeal.
HELD : Non-examination ot 'some of the eye-witnesses mentioned in the
F.I.R. does not introduce any fatal infirmity to the prosecution case. It is no
doubt true that the prosecution is bound to produce witnesSes who are essential
to' the unfolding of the narrative on which the
prosecution is based. Apart
front that, it cannot be laid down as a rule that if a large number of persons
are present at the time of the occurrence,.. the prosecution is bound to call and
examine each and every one of those persons. The answer to the question as
to what is the effect of the non-examination of a particular
witness would
depenci upon the facts and circumstances of each case. In case enough number
of witnesses have been examined with regard to the actual occurrence and
the~r evidence is reliable and sufficient to base the conviction of the accused
thereon, the prosecution may well decide t.o refrain from examining the other
witnesses.
Likewise, if any of the witnesses is won over by the accused party
and as such is not likely to state the truth. thC prosecution would have a valid
ground for not examining him in court. The prosecution would not, however,
be justified in not examining a witness on the grouild tha_t his evidence even
though not untrue would go in favour of the accused. It is as much the duty
of the prosecutor as of the court to ensure that full and material facts
a~
'brought on the record so that there may be no miscarriage of justice.
The
discharge of such a duty cannot be affected by the consideration that some of
the facts if brought on the record would be favourable to the accused. In case
the court finds that the prosecution has not examined witnesses for reasons not
tenable or not proper, the court would -be justified in drawing an inference
adverse to the prosecution. [654F]
C!uM1NAL APPELLATE JURISDICTION: Criminal Appeal No. 52 of
1970.
Appeal from the Judgment and Order dated the 10th October,
1969, of the Allahabad High Court (Lucknow Bench) Lucknow, in
Criminal Appeal No. 48. of 1968).
K. B. Rohatgi, for the appellants.
0. P. Rana, for the respondent.
The Judgment of the Court was delivered by
A
B
c
D
E
F
G
KHANNA, J. This is an appeal by special leave by Ram Prasad
(65), his son Udit Narain (22) and their servant Sri Pal (22) against
H
the judgment of the Lucknow Bench of the Allahabad High Court
affirming on appeal the judgment of the Additional Sessions Judge
Lucknow whereby the three appellants
and three others, namely
A
B
c
D
E
F
G
ll
RAM PRASAD V. U.P. STATE (Khanna,/.)
651
Sarju, Putti and J aganath had been convicted under section 148 and
section 302 read with section 149 Indian Penal Code and had been
senl/;lnced to undergo rigorous imprisonment for a period of 18
months on the first count and imprisonment for life on the secornl
count.
The occurrence giving rise to the present case took place on
March 31, 1967 at 2·30 p.m. in front of and inside the tarwaha of
the house of J askaran, father of J agannath
accused, in
villag~
Gadarian Purwa at a
distance of two miles from police
station
Mandiaon. The person murdered during the course of the occurrence.
was Parmeshwar Din ( 35). The prosecuti011 case is that Parme.shwar
Din deceased aJJ.d Sita Ram (PW 4) purchased two plots of land
situated in the area of village Gadarian Purwa from Paggu
and
others for Rs. 3,000 as per sale deed dated December 23, 1966.
The possession of these plots had been taken by the vendees about
one or two months earlier when they paid Rs. 500 as earnest money.
The vendees sowed wheat in those plots. Sarju and Putti accused, who
are both brothers, laid claim to those plots. As Ram Prasad accused
was an influential person, Sarju and PuUi sought his assistance in
obtaining the possession of the plots. Ram Prasad is also stated to
have been assured by Sarju and Putti that in case they were successful
in getting those two plots, they would give him half of the land.
On March 31, 1967, it is stated, Parmeshwar Din was getting the
wheat crop standing in the two plots mentioned above
harvested.
The plots are at a distance of about 150 paces from the house of
Jaskaran, father of Jagannath accused.
Umrao (PW 1) as well as
Sita Ram (PW 4) ·were also present in the fields along with Parmesh·
war Din. The actual work of harvesting was being done by seven
labourers, four of whom were women.
The male labourers were
Sbankar, Baddal and Bubba.
At about 2.30 p.m., it is
alleged,
Udit Narain accused came to Parme.shwar ·Din and told him that
some persons were waiting for him in the abadi of Gadarian Purwa
to have some talks with the deceased regarding the two plots in
dispute. Parmeshwar Din deceased then went
with Udit
Narain.
Shortly thereafter, Umrao and Sita Ram PWs heard the cries of
Parmeshwar Din .. On looking towards the house of J~skaran, they
found that the six accused had surrounded Parmeshwar Din · and
were giving banka blows to him in front of that house. The six
accused then dragged Parmeshwar Din deceased inside the tarwaha
which had a thatched roof.
The tarwaha had one shutterless opening.
Umrao and Sita Ram then ran towards the .tarwaha and stood·
close to the opening of the tarwaha. The labourers engaged in harves1'inj!; also followed Umrao and Sita Ram to that place· Chandrika
(PW 2) and Mohan (PW 3) were passing that way .at that time
B_o~ of them on hearing alarm also came there and saw the accused
g1vmg banka blows to ParmeShwar Din.
Umrao and others shouted'
to the ·accused not to kill Parmeshwar Din, but they too were threat·
ened by the accused. The accused thereafter ran away. Umrao and'
'652
SUPREME ~OURT REPORTS
J 1974] 1 s.c.R.
uthers then went inside the tarwaha and found Parmeshwar Din ly·
ing dead in a pool of blood. A number of persons then collected
there.
Umrao got report Ka· 1 written by his son Hari Prasad· Umrao
thereafter went to police station Mandiaon and lodged there report
Ka·l at 5.30 p.m.
Station Officer Tiwari (PW 11) was not present
at the police station at the time he report was lodged. On being
'informed about the lodging of the report, the S!ation Officer went to
the place of occurrence and arrived there at 6.30 p.m. The Station
Officer on arrival recorded the statements of Umrao, Sita Ram and
Mohan PWs and prepared inquest report relating to the dead body of
the deceased.
The body was thereafter sent to the mortuary where
post mortem examination was performed by Dr. J aitle on April 1,
1967. Out of the appellants, Udit Narain and Sri Pal were arrested
on April 7, 1967, while Ram Prasad surrendered in court on April
14, 1967.
The six accused in their statements denied the prosecution allega·
tions a bout their having participated in the assault on Parmeshwar
Din deceased. Sarju and Putti also denied the prosecution allegation
;that Parmeshwar Din and Sita Ram had purchased the land in question
.and had brought the same under cultivation. The case of Ram Prasad
and Udit Narain was that they had been falsely involved in this case
<because of the enmity of Sita Ram PW with whom, according to the'e
.accused, Ram Prasad had an altercation on an earlier occasion.
The trial court accepted the prosecution case and convicted and
•sentenced the six accused as mentioned above. The judgement of the
<trial Court was, as already stated, affirmed on appeal by the Hig:h
Court.
·
.
In appeal before us, Mr. Anthony on behalf of the a,ppellants has
.assailed the conviction of the accused-appellants on the ground that
the evidence adduced by the prosecution in this case is not reliable
and suffers from infirmities.
As against that, Mr. Rana on behalf
of the State has canvassed for the correctness of the view taken by
•the High Court.
It cannot be disputed that Parmeshwar Din deceased. was
the
victim of a murderous assault.
Dr. Jaitle,
who
perfof·med
post
.mortem examination on the dead body of Parmeshwar Din, found
as
many as 23 injuries on the body, out of which 18 were incised wounds.
One of the incised wounds had resulted in cutting the occipital bone
and another had resulted in cutting the frontal bone·
The incised
injuries, in the opinion of the doctor, had been caused by some heavy
sharp-edged weapon.
The death of the deceased was due to shock
.~n.d .haem0rrhage resulting from the head and
neck injuries.
The
1n1unes were sufficient in the ordinary course of nature to
cause
<death.
A
B
c
D
E
F
G
H.
A
B
c
D
E
F
G
H
RAM PRASAD v. U.P. STATE (Khanna, /.)
653,
According to 'the prosecution case, the injuries found on the body·
of the deceased had been caused by the six accused, including the
three appellants. The prosecution, in order to substantiate that allegation, examined Umrao (PW 1), Chandrika
(PW
2),
Mohan
(PW 3) and Sita Ram (PW 4) as eye witnesses of the occurrence·
These witnesses supported the prosecution case as given above. The
trial court, on consideration of the material on record, accepted the
evidence of the four eye witnesses. On appeal the learned Judges of
the High Court again examined that evidence and found the same to
be convincing, Nothing cogent has been brought to our notice as may
justify interference with the concurrent findings of the trial court
and the High Court arrived at as a result of the appraisement of the
evidence of the four eye witnesses.
It has been pointed out that the statement of Chandrika
was
recorded during the investigation of the case 25 days after the occurrence, and as such, not much reliance can be placed upon the testi·
mony of this witness.
In this respect we find that the evidence of
Chandrika shows that on the morning of the day following
the,
occurrence, he went to Muzaffarpur in district Barabanki where his
father-in-law was lying ill. The witness stayed in Muzaffarpur for
about six days and thereafter returned to his village,
In the meanwhile, Sub-Inspector Tiwari had gone back to the police station. The Sub1-spector subsequently called the witness and recorded his statement
on April 25, 1967. Chandrika's name as an eye witness of the
occurrence had been mentiou.ed in the first information report which
was lodged within about three hours of the oocurrence. In the circumstances, the delay in recording the police statement of Cha.ndrika
by the investigating officer would not justify-rejection of Chandrika's
testimony. In any case, we find that apart from the statement of
Chandrika, the prosecution case is also supported by the evidence of
other three eye witnesses.
So far as these witnesses are concerned,
their statements were recorded by the investigating officer soon after
he arrived at the place of occurrence.
Argument has also been advanced on behalf of the
appellants
that there is no mention in the first information report that injuries
were caused to Parmeshwar Din deceased by the accused before the
deceased was dragged inside the tarwaha, while, according to the
evidence of the eye witnesses in court, the injl)ries to the deceased
were caused by the accused both before he was dragged as welt as
inside the tarwaha, Reference to the first information report shows
that it is recited therein that the deceased was dragged and given
banka blows by the accused. The omission to make an express men·
tion in the first information report that banka blows were given to
the deceased before he was dragged inside the tarwaha would not in
the circumstances, in onr opinion, make much material
difference.
ASsuming that banka blows were caused to the deceased inside the
tarwaha, this fact
would not exculpate any of the
aocused.
The
accused at the time of the occurrence were armed with bankas, They
dragged the deceased inside the tarwaha and gave banka blows to
654
SUPREME COURT REPORTS
[ 1974] 1 s.c.R.
Jtim. It is plain that the injuries were caused to the deceased in
prosecution of the common object of all the accused to cause the
death of the deceased.
The appellants, in t'ie circumstances, cannot
derive any benefit from the inability of the prosec_ution 'Witnesses ID
.state as to which particular injury was caused by which of the accused.
It has also been argued that the evidence of the eye witnesses is of
partisan chatacter and, therefore, 'it is not safe to base the conviction
of the accused upon that evidence. We find it difficult to accede to
this contention beause the trial court and the
High Court while
appraising the evidence of these witnesses, considered all the features
of the case and came to the conclusion that the evidence of the witnesses was trustworthy and reliable.
We find no cogent ground to
>take a different view.
Considerable stress has been laid by Mr. Anthony upon the fact
that, besides the four eye witnesses who have been examined in tllis
tase, the occurrence, according to the first information report, had
also been witnessed by Baddal, Shankar and Hubba. These persons
were, however, not examined as \Vitnesses at the trial. It is
also
pointed out that in addition to these persons, the occurrence was also
witnessed by Sham Lal and Hubba (this Hubba is different
frmR
Hubba whose name was mentioned in the first information report),
who also arrived at the scene of occurrence· Sham Lal and Hubba
too were not examinec\ as witnesses. . The non-examination of these
witnesses, in our opinion, would not introduce an infirmity fatal to the
prosecutioa case. It is no doubt true that the prosecution is bound
to produce witnesses who are essential to the unfolding of the nar·
rative on which the prosecution is' based. Apart from that, it cannot
be laid down as a rule that if a large number of persons are present
at the time of the occurrence, the prosecution is bound to call and
examine each and every one of those persons. The answer
to the
question as to what is the effect of the non-examination of a particular witness would de· ~nd upon the facts and circumstances of each
case. In case enough number of witnesses have been examined with
(egard to the actual occurrence and their evidence is reliable
and
sufficient to base the conviction of ihe accused thereon, the prosecution
may well decide to refrain from examining the either witnesses. Likewise, if any of the witnesses is won over by the accused party and
as such is not likely to state the truth, the prosecution would have
a valid groun,d for not examining him in court.
The prosecution
would not, however be justified in not examining a witness on the
ground that his evidence even though not untrue would go in favour
of the accused. It is as much the duty of prosecutor as of the court
to ensure that full and material facts are brought on the record so
that there may be no m;<carriage of justice. The discharge of such
a duty cannot be affected bv the consideration that some of the facts
if brou~ht on the record would be favourable to the accused.
In
case the court finds that the prosecution has not examined witnesses
A
B
c
D
·E
F
G
H
RAM PB.ASAD v. U.P. STATE (Khanna,!.)
655
A
for reasons not tenable or not proper, the court would be justified in
drawing an inference adverse· to the prosecution.
So far as the present case is C<?ncerned, we find that the prosecution has examined four eye witnesses of the occurrence and their evidence has been found by the trial court and the High Court t.o be
reliable, convincing and sufficient to warrant the conviction of
the
B
· accused. It has not been shown to us that the evidence of the persons
who were not e>.amined as witnesses was essential for the unfolding
of the narrative on which the prosecution was based. The present
is not a case wherein the witnesses not examined could have given
evidence on a point regarding which the witnesses actually examined
were m>t in a positon to depose. We are, therefore, of the view that
the failure of the prosecution to examine the persons mentioned above
C
as witnesses. would not justify interference with the judgments of the
High Court and the trial court·
The appeal fails and is dismissed.
S.B.W.
Appeal dismissed.
2- L392SupCI/74