# S.C.R. 850 STATE OF U.P v. RAM KUMAR & ORS

- **Citation:** [2017] 7 S.C.R. 850
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Criminal Appeal No. 1584 of2010
- **Bench:** A. K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-c-r-850-state-of-u-p-v-ram-kumar-ors-32132
- **Pages:** 22

## Headnote

Penal Code, 1860 - s. 302 - Murder - Prosecution case that
week before the incident altercation between informant and his step
brothers-accused person - On the fatefiil day, accused person with
the common intention of murdering the informant came and ii?iured
the informant, killed his wife by using firearms and caused death of
one, and two children by putting the whole house to fire - Award of
capital punishment by trial court - However, acquittal by High
Court, since prosecution failed to prove the guilt of accused - On
appeal, held: High Court relied on small inconsistencies and
untenable grounds to set aside the well considered judgment of the
trial court - Evidence of PWJ and PW2 regarding incident and
identity of the accused rightly believed by trial court - Burning of
lantern being fidly proved, the High Court erred in holding that
lantern was not burning and that the accused could not have been
identified - Also, FIR was not ante timed and ante dated - Thus,
order passed by the High Court set aside - Capital punishment
reduced to life imprisonment.
Allowing the appeal, the Court
HELD: 1. It is clear that the High Court concluded that
lantern was not burning since, had the lantern been burning, there
would have certainly been blackening on the peg and on the wall
near to it. The trial court noticed the evidence and gave reason
for holding that blackening on the wall was not there since the
lantern was burning and hanging on a peg which was a long one.
PW.1 stated that lantern was hanging on the peg in the midst of
two doors. He stated that wall was never blackened since the
peg was one hand long and thick; and that lantern was covered
hence, no blackening was on the wall. [Para 26] [864-G-H; 865A]
850
STATE OF U.P. v. RAM KUMAR & ORS.
851
2. The trial court believed the statement of PW.1 and held
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that the statement of PW.1 that there would not have been any
blackening on the wall due to the long peg is correct. The High
Court, thus, without any valid and cogent reason disbelieved the
burning of lantern at the relevant time which was proved source
of light. As regards a question put in the cross-examination to · B
PW.1 that light of lantern cannot go beyond 8 feet, the trial court
returned finding that accused were at a distance of only 7 to 8
feet from the witness and were recognized in the lantern light by
the PW.I. Further, it has come on the evidence that the IO when
visited the scene of occurrence at 12.30 a.m. in the night itself
lantern was shown by 'P' another son of informant and the lantern
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was given in the superdagi of 'P'. The High Court noted the
statement of IO in regard to the lantern. The statement of the IO
was not to the effect that there was no blackening on the wall.
Statement was that he does not recollect as to whether there was
blackening on the wall or on the peg or not. The High Court
proceeded on the premises that it was stated that there was no
blackening on the wall. The very premise of the High Court, thus,
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to reject the burning of the lantern is fallacious and is the result
of the misreading of the statement of the IO. [Paras 27-30] [865B-G]
3. Accused were all family members and well known to the
witnesses. 'RP' was step brother of informant, his sons and
nephew were with him. Informant also stated that 'RP' exhorted
the accused to kill 'ML'. There cannot be any mistake regarding
identification of the family mem hers who apart from being family
members are residing in the nearby houses. The evidence of
PW.2 regarding identification of the accused was also rightly
believed by the trial court. PW.2 stated that when he along with
other family members bolted themselves in his Kothari, the
accused came and asked him to open the door. They told PW.2 to
open the door, they will not kill'. He further stated that when he
did not open the door, they put the house on fire. PW.2 further
stated that he had seen the accused from 'Jhiri' of the door. He
further stated that he recognised them by thei

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[2017} 7 S.C.R. 850
STATE OF U.P.
v.
RAM KUMAR & ORS.
(Criminal Appeal No. 1584 of2010)
JULY20,2017
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Penal Code, 1860 - s. 302 - Murder - Prosecution case that
week before the incident altercation between informant and his step
brothers-accused person - On the fatefiil day, accused person with
the common intention of murdering the informant came and ii?iured
the informant, killed his wife by using firearms and caused death of
one, and two children by putting the whole house to fire - Award of
capital punishment by trial court - However, acquittal by High
Court, since prosecution failed to prove the guilt of accused - On
appeal, held: High Court relied on small inconsistencies and
untenable grounds to set aside the well considered judgment of the
trial court - Evidence of PWJ and PW2 regarding incident and
identity of the accused rightly believed by trial court - Burning of
lantern being fidly proved, the High Court erred in holding that
lantern was not burning and that the accused could not have been
identified - Also, FIR was not ante timed and ante dated - Thus,
order passed by the High Court set aside - Capital punishment
reduced to life imprisonment.
Allowing the appeal, the Court
HELD: 1. It is clear that the High Court concluded that
lantern was not burning since, had the lantern been burning, there
would have certainly been blackening on the peg and on the wall
near to it. The trial court noticed the evidence and gave reason
for holding that blackening on the wall was not there since the
lantern was burning and hanging on a peg which was a long one.
PW.1 stated that lantern was hanging on the peg in the midst of
two doors. He stated that wall was never blackened since the
peg was one hand long and thick; and that lantern was covered
hence, no blackening was on the wall. [Para 26] [864-G-H; 865A]
850
STATE OF U.P. v. RAM KUMAR & ORS.
851
2. The trial court believed the statement of PW.1 and held
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that the statement of PW.1 that there would not have been any
blackening on the wall due to the long peg is correct. The High
Court, thus, without any valid and cogent reason disbelieved the
burning of lantern at the relevant time which was proved source
of light. As regards a question put in the cross-examination to · B
PW.1 that light of lantern cannot go beyond 8 feet, the trial court
returned finding that accused were at a distance of only 7 to 8
feet from the witness and were recognized in the lantern light by
the PW.I. Further, it has come on the evidence that the IO when
visited the scene of occurrence at 12.30 a.m. in the night itself
lantern was shown by 'P' another son of informant and the lantern
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was given in the superdagi of 'P'. The High Court noted the
statement of IO in regard to the lantern. The statement of the IO
was not to the effect that there was no blackening on the wall.
Statement was that he does not recollect as to whether there was
blackening on the wall or on the peg or not. The High Court
proceeded on the premises that it was stated that there was no
blackening on the wall. The very premise of the High Court, thus,
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to reject the burning of the lantern is fallacious and is the result
of the misreading of the statement of the IO. [Paras 27-30] [865B-G]
3. Accused were all family members and well known to the
witnesses. 'RP' was step brother of informant, his sons and
nephew were with him. Informant also stated that 'RP' exhorted
the accused to kill 'ML'. There cannot be any mistake regarding
identification of the family mem hers who apart from being family
members are residing in the nearby houses. The evidence of
PW.2 regarding identification of the accused was also rightly
believed by the trial court. PW.2 stated that when he along with
other family members bolted themselves in his Kothari, the
accused came and asked him to open the door. They told PW.2 to
open the door, they will not kill'. He further stated that when he
did not open the door, they put the house on fire. PW.2 further
stated that he had seen the accused from 'Jhiri' of the door. He
further stated that he recognised them by their voices and also
when the house was lit on fire, in its light he recognised the
accused. There was sufficient evidence on the record which was
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852
SUPREME COURT REPORTS
[2017] 7 S.C.R.
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rightly believed by the trial court that all the accused were present
on the spot at the time of occurrence. Thus, High Court erred in
holding that lantern was not burning and the accused could not
have been identified. [Paras 31, 32] [865-H; 866-A-D]
4. The High Court stated that there was no proof regarding
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any earlier dispute between informant and 'RP'. The High Court
observed that prosecution did not examine any other witness of
the Panchyat and further the dispute was not such as to constitute
immediate motive to kill the family members. When PW.1 and
PW.2 both have stated that one week before the incident there
was dispute between informant and 'RP' for Nabdan which was
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flowing in the western side near the house of 'RP'. The genesis
of dispute laid there. Further observation of the High Court was
that the dispute was not of such a nature, so as to give the accused
any motive to kill the family members of the witnesses. The said
view of the High Court cannot be accepted. On a particular
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incident how a human being will react is not easy to comprehend.
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There was no other evidence before the High Court to come to
the conclusion that there was no dispute between informant and
'RP'. [Para 33] [863-D-G]
5. The High Court made adverse observation regarding
ante dated and ante timed FIR. The High Court noticed the
argument of the defence that in the inquest report prepared by
the ASI, the crime number and section were written in different
ink. The High Court further stated that prosecution cared least
to prove the time of sending the special report and date on which
FIR came before the Court concerned. The fact that in the inquest
report the crime number and date are written in different ink,
are not the facts on which the prosecution case can be disbelieved
by the Court concerned. IO in his statement clearly stated that
at 10.15 p.m. on 9.10.1995 informant reached Police Station and
he was present at that time when the informant had given written
report which was directed to be registered. IO also started for
G place of occurrence at 12.05 a.m. and reached at about 12.30
a.m. on 10.10.1995. The inquest report was also prepared on
10.10.1995 at 6 a.m. Furthermore, from Police Station the injured
were sent to District Hospital and were examined at 1.45 a.m.
i.e. in the night. Sequence of the events belies the argument that
H the FIR was not registered at the time and on the date as claimed.
STATE OF U.P. v. RAM KUMAR & ORS.
The High Court further observed that PW.t has stated that he
became unconscious after the incident and he was unconscious
till he reached Police Station. The High Court observed that how
it was possible that the FIR was dictated to 'MP'. This aspect
was very carefully considered by the trial court and trial court
examined and correctly analysed the said statement of PW.t. The
trial court rightly believed ~hat FIR was written on dictation by
'MP' and after FIR was read over to informant he put his thumb
impression on it and the same written report was given to the
Police Station which is also proved from the Police records. On
the doubt expressed by the High Court regarding writing of FIR
on dictation of informant since he claimed to be unconscious,
this is not of any material significance on which evidence of PW. t
regarding preparing and lodging of FIR could have been doubted.
[Paras 34, 35, 37] [866-H; 867-A-E; 868-F-G]
6. Reading of the judgment of the High Court clearly reveals
that there are no such reasons given by the High Court on which
the evidence of injured witnesses could be disbelieved, the minor
inconsistencies pointed out by the High Court were
inconsequential. The prosecution by cogent reason successfully
proved that the accused with the common intention of murdering
'ML' came and injured 'ML', killed his wife by using firearms
and caused death of 'SK' and two children by putting the whole
house to fire. A perusal of judgment of the High Court gives an
impression that the High Court relied on small inconsistencies
and untenable grounds to set aside the well considered judgment
of the trial court. There were no such grounds or reasons on
which evidence of PW.1 and PW.2 regarding incident and identity
of the accused could be disbelieved. [Para 38, 41] [868-H; 869A; 870-E)
7. Two accused 'RP' and 'DS' have already died, only three
accused 'RK', 'RM' and 'K' remain. The High Court acquitted
the accused about 10 years ago. Taking into consideration over
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all facts and circumstances of the case, at this distance of time
confirming the capital punishment to the accused is not an
appropriate punishment. Other punishments awarded by the trial
court is confirmed except capital punishment which is converted
into life imprisonment. The High Court judgment is set aside.
Accused 'RK', 'RM' and 'K' are directed to be taken into custody H
SUPREME COURT REPORTS
[2017] 7 S.C.R.
A forthwith to serve out the sentences awarded. [Para 42] [870GH; 871-A]
Brahm Swaroop and another v. State of Uttar Pradesh
(2011) 6 SCC 288 : [2010] 15 SCR 1 - referred to.
Case Law Reference
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(2010] 15 SCR 1
referred to
Para 38
CRIMIN AL APPELLATE JURISDICTION: Criminal Appeal No.
1584of2010.
From the Judgment and Order dated 11.10.2002 of the High Court
ofJudicature at Allahabad, Lucknow Bench Lucknow in Criminal Appeal
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Nos. 84 and 121 of2001.
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D. K. Singh, AAG, Adarsh Upadhyay, Vikas Chaudhary, Ms.
Koma! Mundhra, Advs. for the Appellant.
Ajay Sharma, Ms. Nidhi, Ms. Puja Sharma, Advs. for the
Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. The State is in appeal against the
judgment of the High Court of Judicature at Allahabad dated 11.10.2002
in Capital Sentence Reference No. l of2001 and three criminal appeals
filed by the accused.
2. The High Court rejected the Capital Sentence Reference made
by Additional Sessions Judge and allowed the criminal appeals filed by
the accused acquitting them from the charges. The Fifth Additional
Sessions Judge vide its judgment dated 18.01.2001 had convicted the
accused Ram Prasad, Ram Kumar, Ramakant, Kalloo and Daya Shankar
and by order dated 19.01.2001 had awarded death sentence with other
sentences.
3. The prosecution story, in brief, is that when at 7.30 P.M. on
09.10.1995 PW. 1 Mohan Lal was sitting outside his house and his wife,
now deceased lying on a cot near him, the accused persons armed with
deadly weapons reached there and on exhortation of accused Ram
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Prasad to kill Mohan Lal accused Daya Shankar, Ramakant and Ram
Kumar started firing due to which PW. I Mohan Lal had to run for safety
but sustained firearm injuries including the wife who was present with
him. The accused persons followed PW. l Mohan Lal inside the house
and on not finding him there demanded from the other family members
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STATE OF U.P. v. RAM KUMAR & ORS.
[ASHOK BHUSHAN, J.]
855
to open the doorofthe room in which they had locked themselves fearing
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for their life due to the sudden assault by the accused persons. When on
demand the door was not opened the accused persons set on fire the
house due to which three humans including one child and one animal lost
their lives. Smt. Makhana wife of the informant PW. 1 Mohan Lal who
had sustained firearm injuries also succumbed to those injuries.
4. A written report was lodged by the injured PW. I Mohan Lal at
the police station at 10.15 P.M. the same night. According to the report
lodged the accused persons were of the family of his step brother and
the assault was due to the altercation which had taken place between
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the informant and the accused Ram Prasad his step brother one week
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5. The I.O., B. P. Singh who was present in the Police Station at
the time of!odging of First Information Report, after lodging of the report
proceeded to place of occurrence at 12.05 A.M. on 10.10.1995. At
12.30 A.M., he reached the place of occurrence. He directed Shri
Nisanath Misra, Sub Inspector Police Chowki, to conduct the Inquest
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Report of the deceased Sarvesh Kumari, Kumari Kunti aged 03 years,
and Santosh son of Ram Asrey aged 09 years.
6. I.O. inspected the place of occurrence, collected the blood
found on the spot, collected ashes of burnt chhappar and also examined
the lantern (lalten) which was stated to be burning at the time of E
occurrence and gave it in the supurdgi of Parshuram son of Mohan Lal.
LO. had already recorded the statement of Mohan Lal, the informant at
the Police Station itself. The inquest of the deceased started at 6 A.M.
on 10.10.1995.
7. Injured Mohan Lal, Ram Asrey, Smt. Shakuntla and Guddu
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were sent from the Police Station itself to the District Hospital. Medical
examination of injured was conducted at 1.45 A.M. on l 0.10.1995, which
had revealed firearm injuries on different parts of the bodies of Mohan
Lal. Medical examination of Ram Asrey, Shakuntala and Guddu had
revealed that they were suffering from inhalation of carbon dioxide and
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carbon mono oxide.
8. The postmortem was also conducted of deceased Sarvesh
Kumari, Kumari Kunti, Santosh and Smt. Makhana. The postmortem
report of Sarvesh Kumari, Kumari Kun ti and Santo sh revealed that death
had occurred due to suffocation from the smoke. Postmortem of Smt.
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(2017] 7 S.C.R.
Makhana revealed fire arm injury on the chest to the extent of I 5 X I 7
cm. Postmortem report opined that death had occurred due to firearm
injury sustained by the deceased. Postmortem of the she buffalo was
also conducted by the veterinary doctor, who also opined that she buffalo
died due to third-degree burns.
9. The Police submitted the chargesheet against Ram Prasad,
Ram Kumar, Ramakant, Kalloo and Shripal on which Sessions Trial No.
6196 was registered and against one Daya Shankar, on which Sessions
Trial No. 412/96 was registered. The Prosecution produced 08 witnesses.
PW. I Mohan Lal (informant and injured eyewitness), PW. 2 RamAsrey
(son of Mohan Lal and injured eyewitness) PW. 3 Nisanath Misra (Sub
Inspector who conducted the Inquest Report of body of Smt. Sarvesh
Kumari, Kumari Kunti and Santosh). PW. 4 Dr. Jalaludeen (conducted
the post mortem of Smt. Sarvesh, Kumari Kunti, Santosh and Smt.
Makhana) PW. 5 Dr. Veerender Kumar Trivedi, Veterinary Doctor (who
conducted the postmortem of she buffalo), PW. 6 Dr. J. L. Gautam
(who examined the injured, namely, Mohan Lal, Guddu, Ram Asrey,
Smt. Shakuntala and Chotey Lal), PW. 7 B. P. Singh Inspector (LO.),
PW. 8 Dr. R. C. Agrawal Radiologist.
10. No witness was examined by defence. Statements under
Section 313 Cr. P. C. were recorded of all the accused, who in their
statements denied the allegation and alleged false persecution due to
enmity. The trial court heard the parties and after analyzing the evidence
available on record held eyewitnesses PW. I and PW.2 trustworthy and
found the guilt proved against accused Ram Prasad, Ram Kumar,
Ramakant, Kalloo and Daya Shankar and looking into the heinous and
barbaric murder, awarded the capital punishment to all of them. Accused
Shripal, was acquitted as having not been found involved in the crime.
Learned Sessions Judge sent Reference to the High Court for
confirmation of death sentence. All the convicted accused filed criminal
appeals.
11. The High Court decided the death confirmation reference as
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well as criminal appeals filed by the convicted accused by its judgment
and order dated I I .I 0.2002. The High Court by impugned judgment
held that evidence of injured Mohan Lal and Ram Asrey is totally
untrustworthy and unreliable. Doubt is, having created that First
Information Report was ante timed and ante dated and there was no
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source oflight to identify the assailants at the time of incident. The State
STATE OF U.P. v. RAM KUMAR & ORS.
[ASHOK BHUSHAN, J.]
857
aggrieved by the above judgment has come up with this appeal. The
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Respondent No. I Ram Prasad died and the appeal has been abated by
order dated 08.03.2013. Accused Daya Shankar died during pendency
of this matter and Special Leave Petition( Criminal) filed by the State
was dismissed as having abated by this Court's order dated 12.02.2007.
12. We have heard Shri D. K. Singh Additional Advocate General
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for the State ofU. P. and Mrs. Puja Sharma, learned counsel appearing
for Respondent No.2.
13. Learned Additional Advocate General submitted:
(i)That evidence of eyewitnesses was correctly appreciated and
believed by the trial court whereas, High Court on surmises and
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conjectures held evidence of PW. I and PW. 2 untrustworthy. It
is submitted that appreciation of the evidence by the High Court
is perverse. Without any valid reason evidence led by the
prosecution has been disbelieved.
(ii) Referring to the finding of the High Court that there was no
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source oflight at the time of occurrence, it is contended that burning
of lantern at the time of occurrence was proved by eyewitnesses
PW. 1 and PW. 2 which lantern was also shown to the 1.0., who
examined the same in the same night. The High Court misdirected
in observing that since there was no blackening on the wall, the
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burning oflantern is doubtful. PW. I had already clearly explained
in his statement that peg on which lantern was hung, was long
one hence there was no blackening on the peg or wall. Without
considering the statement of PW. I, High Court unnecessarily
jumped to the conclusion that there was no light and accused
could not have been identified.
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(iii) The High Court had also committed error in holding that
prosecution failed to prove that there was dispute regarding
Nabdan. Eyewitnesses proved that one week before the incident,
there was dispute between the parties who were no other than
step brother of Mohan Lal, step brother's sons and one nephew
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of Ram Prasad.
(iv) Observation made by the High Court that there were doubts
regarding date and ·time of lodging of the FIR were nothing but
surmises and conjectures by the High Court. A written report
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[2017] 7 S.C.R.
was given to the Police Station at I 0.15 P.M. on the same night.
Immediately thereafter, LO. reached at the place of incident in
the same night at 12.30 A.M. The mere fact that on the Inquest
Report FIR No. was written by different ink cannot be the basis
for observing that FIR was ante timed or ante dated.
(v) The doubt has been expressed by the High Court that when
Mohan Lal himself stated that after incident he became
unconscious then how can he dictate the FIR, which case of
defence was properly dealt by the Sessions Judge who had
examined and correctly explained the statement of Mohan Lal
regarding his unconsciousness.
(vi) Minor contradictions and omissions cannot be the basis for
rejecting the prosecution theory. The High Court had tried to dig
out the minor contradictions and omissions on the basis of which
a capital is sought to be made, which is clearly against the settled
law.
14. Learned counsel appearing for Respondent No. 2 supported
the judgment of the High Court and have submitted that capital punishment
awarded by the trial court in any view of the matter could not be sustained
in the facts of the present case.
15. We have considered, the submission of the learned counsel
for the parties, gone through the judgments of the High Court and the
trial court and have also perused the lower court records including the
statement of the witnesses and other materials on record.
16. The prosecution case is mainly based on oral evidence of
PW. l Mohan Lal and PW.2 RamAsrey. Mohan Lal received the firearm
injuries fired upon him by the accused and on the sam~ day after lodging
of the First Information Report he was sent to the District Hospital for
medical examination. Dr. J.L. Gautam, Emergency Medical Officer,
District Hospital, Hardoi had examined Mohan Lal at 1.45 a.m. on
10.10.1995. Three injuries were noticed on the body of the injured. Doctor
opined that all injuries were caused due to firearm. In this reference, it is
relevant to notice that Smt. Makhana, wife of Mohan Lal, was also lying
on the cot near the door of the house of Mohan Lal. At 7 .30 p.m. accused
came and fired both on Mohan Lal and his wife. Smt. Makhana, wife of
Mohan Lal died while being taken to the District Hospital. On 10.l 0.1995
in the evening postmortem ofSmt. Makhana was conducted. The injuries
STATE OF U.P. v. RAM KUMAR & ORS.
859
[ASHOK BHUSHAN, J.]
which were all ante mortem were noted in postmortem report (translated
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in English from Hindi) to the following effect:
"Wound of insertion of the bullet in front of the chest which
was in 15 c.m. X 17 c.m. area. The wound was deep up to 3
c.m. X 3 c.m. flesh of the chest. The wound was lacerated
from front to inner side of the body and direction of potholes
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were from front to back. "
17. The medical injury report of PW. I as well as postmortem
report ofSmt. Makhana clearly supports the prosecution case regarding
the manner in which accused came and fired on the Mohan Lal and his
wife who were at that time outside the house. The medical report fully c
corroborates the time of incident i.e. 7.30 p.m. as claimed in the FIR.
18. The trial court in its judgment after perusing the evidence
recorded finding in paragraph 19 of the judgment that there is no dispute
that on 9.10.1995 at 7.30 p.m. in the evening the incident of firing of
gunshots at the house of informant had taken place due to which he
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sustained gunshots injuries and his wife Makhana died. Thereafter the
fire was lit to the house of Mohan Lal. It is relevant to extract the following
observation recorded by the trial court in paragraph 19 of the judgment:
"19 ... I deem it important to mention that the evidence available
on the file and from the statements given by the accused E
persons under Section 313 Cr.P. C. and on the basis of the
arguments made before me this fact does not remain disputed
that on 9.10.95 at 7.30 p.m. in the evening the incident of
firing of gunshots at the house of the plaintiff Mohan has
taken place due to which he sustained gunshots injuries and
due to gunshots injuries his wife Makhana died. Thereafter
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the fire was lit to the house of the plaintiff Mohan Lal, due to
which the persons who have closed themselves inside the room
to save them, out of them Sarvesh Kumari and two children
Km. Kunti and Santosh have died due to suffocation of the
smoke of the fore and one she buffalo of the plaintiff also
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died and the son of the plaintiff and the wife of his son and
two others were adversely affected by the smoke of the fire ... "
19. PW. I Mohan Lal in his statement has clearly stated that one
week before the incident with regard to eastern Nabdan of informant
there has been talks between informant and Ram Prasad. Ram Prasad
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asked to close the Nabdan on which informant stated that Nabdan is on
Gramsamaj land and not in Ram Prasad's land hence it will not be closed
by the informant. Ram Prasad extended threat of killing to the informant
due to which the accused harboured enmity with the informant. He further
stated that on 9.10.1995 at about 7.30 p.m., when he was sitting near
southern door and his wife was lying on the cot towards south, lantern
was also burning on the peg above the door, at that time from northern
side accused persons came having guns in their hands. Ram Prasad
immediately exhorted others to kill Mohan Lal. By that time he could
only stand up from earth and his wife could sit on the cot, Daya Shanker,
Ramakant and Ram Kumar fired on which witness ran inside the house.
When he stood up he received firearm shot and when he entered into
the house second firearm shot hit him. His wife also received firearm
shot injuries. When accused entered, the witness ran from inside by
western side door and went out from the house. Accused ran behind the
witness. The other family members, who were present inside the house,
bolted themselves in the room ofRamAsrey. The accused asked them
to open the door and when they did not open the door, the accused set
the house on fire. He stated that when he ran he had seen the accused.
He further stated that certain persons of the village came and accused
ran away. Due to suffocation wife of Munna, daughter of Mumm and
son of Ram Asrey died. Ram Asrey his wife and son also became
unconscious. A buffalo also died in this incident. Villagers put off the
fire. He further stated that he dictated the written report to Maujiram,
Pradhan and after completion of dictation, FIR was read over to him
and he put his thumb impression on it. PW. I along with his wife and
other persons who were unconscious proceeded to Police Station and at
IO.IS p.m. written report was given to the Munshi of the Police Station
who registered the report. He along with two Police Constables was
sent to District Hospital and on the way his wife died. PW.2 RamAsrey,
son of Mohan Lal, also supported the prosecution case. He stated that
his father and mother were sitting outside the house and a lantern was
burning above the door and other family members including Ram Asrey
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were inside. Accused came and fired on which father of the witness ran
inside the house and told that accused had arrived with firearms and
have fired. RamAsrey and other family members bolted themselves in
a 'Kothari'. All the accused asked them to open the door. When they did
not open the door, Daya Shanker told if the door was not open, put the
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house on fire, accused put the house on fire. Due to suffocation of the
STATE OF U.P. v. RAM KUMAR & ORS.
[ASHOK BHUSHAN, J.]
smoke of fire, Sarvesh Kumari wife ofMunna, Kunti daughter ofMunna
and Santosh son of Ram Asrey died and one buffalo also died. Ram
Asrey, his wife and his son Guddu became unconscious due to suffocation.
RamAsrey in his cross-examination also stated that lantern was burning.
He has seen the accused from 'Jhiri' of the door. Further, he had
recognised the accused from their voices who asked the witness to open
the door.
20. After marshalling the evidence on record, the trial court
returned the following findings:
"The fact that the witnesses had colluded with the Accused
Persons has not been contradicted.
There has been no delay in lodging the FIR. Further, merely
because PW-I has stated in his main examination that he had
got the report written at home through Maujiram Pradhan,
while in his argument he has stated that he got it written at
the police station, does not make the FIR a concocted one.
The said witness has stated that he was brought to the police
station in a state of unconsciousness by the Pradhan, to which
the defence has stated that it was not possible for him to lodge
the FIR. However, he hid and waited quietly for the Accused
Persons to leave for the safety of his life, and therefore, he
had not become immediately unconscious due to the fire.
Further, as soon as he ran towards his house, he warned his
son: PW-2, and informed him quickly that the Accused Persons
had attacked him. Therefore, statement given by PW-1 as
regards his unconsciousness is hyperbolic.
The fact that there is insertion of the name of Shripaf in the
written complaint, while PW-I has denied his involvement in
the incident, does not render the writf:en complaint bad or
incorrect. Further, his name may have been added by mistake
of the Pradhan, as PW-1 has not stated anywhere about him
firing any shots, but has in fact, stated that he helped put out
the fire at the place of the incident. Similarly, even in the
statement of PW-2, the name of Shripaf is not mentioned
anywhere.
Merely because the wall on which the lantern was hanging
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was not blackened, does not mean anything, as the peg/rod
on which it rested was long one.
It was argued by the defence that the visibility in the light of
the lantern was only up to 8 steps, and so it was not possible
for PW-1 to see the Accused Persons. However, the Accused
Persons were at a distance of only 6 to 7 feet, and therefore,
it was not hard to identify them in the light. Even otherwise,
the Accused Persons were not outsiders, and it was easy to
recognize them from their voices.
The argument that no cartidges or tikkahs were found on the
place of incident is of no consequence, as the place of
occurrence of the said incident is not disputed. Further, it
was the negligence on the part of the IO if he could not find
bullet marks, and the benefit of such negligence cannot be
given to the defence.
The witness, PW-2, Ram Ashrey recognized the AccusedRespondents from the side of the door of the room in which
he was locked, as well as from their voice. Further, the light
from the burning thatched roof also aided his vision."
21. The trial court awarded capital sentence noticing the gruesome
and barbaric act and murder committed by the accused. The High Court
while deciding the Death Reference and appeals has set aside the
judgment of the trial court and acquitted all the accused.
22. The High court by giving following reasoning and finding has
set aside the judgment of the trial court and acquitted the accused:
"As regards the fact of the dispute between the Accused and
PW-1 as regards the Nabdan, the prosecution has not
examined any other witnesses or the panchayat. Therefore,
in the absence of the evidences of the panchas, it will not be
safe to place reliance on the same. Furthe1; the dispute was
not of such a nature, so as to give the Accused Persons any
motive to kill the family of the witnesses/complainants.
Since all the parties belonged to the same family, it appears
unlikely that the Accused Persons attempted lo kill them or
had any motive to do so.
STATE OF U.P. v. RAM KUMAR & ORS.
[ASHOK BHUSHAN, J.]
The High Court has observed that PW-I stated in his
examination in chief that he got the report written by Maujiram
Pradhan, and put his thumb ingression on it, after the same
was read out to him. Jn his cross-examination(l 6. 02.1999 -
after 4 years), he has stated that he fell unconscious after his
house was set on fire, and it was in that state that the Pradhan
took him to the Police Station, where the written report was
prepared. He also stated that he had never asked the scribe
to note down the name of Shripal.
It has been argued that the complaint was written in one
ink, while the case number and sections were written in a
different ink and stroke, and it appears that the FIR was not
in exestence on 10.10.1995. The High Court has held that
although it is not possible to prove that the said FIR was ante
dated and ante times, but the facts and circumstances create
a doubt in the mind. Nothing in this regard has been explained
by PW-3.
It was not natural on the part of PW- I to dictate an FIR
soon after the incident in his house, and his natural conduct
would have been to take the injured to the hospital.
Had the lantern been burning on the wall ever:v day, the same
would have created a black mark on the said ·wall. [IO has
stated that he does not recollect the Jae/um of the blackening.}
Ram Ashrey could not have identified the Accused or the
culprits in the light created by flamer of the burning chappe1;
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as this was not mentioned in the FIR. It is also unbelievable
that the flames would have come to high as to create enough
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light for such identification. Further, he fact that he came to
know of the same also from his father does not inspire
confidence. "
23. We have noticed the findings and reasoning given by the trial
court as well as by the High court. We have also gone through the oral
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evidence of the witnesses and exhibits on the record.
24. One of the main reasons for acquittal ofthc accused given by
the High Court is that there was no source of light, lantern was not
burning on the date of incident since there was no blackening on the
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wall, hence it was not possible for PW. I and PW.2 to identify the accused.
The prosecution failed to prove the guilt of accused. We proceed to
examine the first issue pertaining to source of light and the burning of
lantern.
25. Before we examine the evidence pertaining to source oflight,
burning oflantern and identification of accused by PW.1 and PW.2, it is
necessary to refer to judgment of the High Court in the above reference.
With regard to burning oflantern following is the discussion of the High
Court:
"RamAsrey PW.2 has tried to support on the point of the burning
of the lantern. In his cross-examination he says that it is wrong to
say that he identified the culprits in the lantern light. He says on
page 6 that the lantern was burning towards south of the place,
where his father was sitting. The investigating officer, Sri. B.P.
Singh, who inspected the lantern and prepared fard, says that he
does not recollect as to whether there was blackening on the wall
or on the peg where lantern was allegedly burning at the time of
the incident.
Learned counsel for the appellants have submitted that the
discrepancy in between the evidence of Mohan Lal and his
son Ram Asrey i_n regard to the. actual place of burning of the
lantern and absence of any blackening etc. on the wall or on
the peg, creates doubt whether lantern was actually burning
at the relevant time.
After careful scrutiny of the evidence on record, we find
ourselves in agreement with the learned counsel for the
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appellants. Had the lantern been burning and hanging in a
peg as usual, there would have certainly been some blackening
on the peg and on the wall near to it. "
26. From the above, it is clear that the High Court concluded that
lantern was not burning since, had the lantern been burning, there would
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have ce1iainly been blackening on the peg and on the wall near to it. The
trial court had already noticed the evidence given in the above context
and gave reason for holding that blackening on the wall was not there
since the lantern was burning and hanging on a peg which was a long
one. We again revert on the evidence of PW. I. In his statement he has
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STATE OF U.P. v. RAM KUMAR & ORS.
[ASHOK BHUSHAN, J.]
865
stated that lantern was hanging on the peg in the midst of two doors. He
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stated that wall was never blackened since the peg was one hand long
and thick. He further stated that lantern was covered hence no blackening
. was on the wall.
27. The trial court as noted above has believed on the statement
of PW. I and held that the statement of PW. I that there would not have
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been any blackening on the wall due to the long peg is correct. The High
Court, thus, without any valid and cogent reason has disbelieved the
burning oflantern at the relevant time which was proved source oflight.
28. A question was also put in the cross-examination to PW.I that
light of lantern cannot go beyond 8 feet. The trial court had returned c
finding that accused were at a distance of only 7 to 8 feet from the
witness and were recognized in the lantern light by the PW. I.
29. There is one more reason by which the above view of the
High Court regarding not burning oflantern is out rightly to be rejected.
It has come on the evidence that the IO when visited the scene of D
occurrence at 12.30 a.m. in the night itself lantern was shown by
Parshuram another son of infonnant and the lantern was given in the
. superdagi of Parshuram. The High Court has noted the statement ofIO
in regard to the lantern as extracted above which was to the following
effect:
" ... he does not recollect as to whether there was blackening
on the wall or on the peg where lantern was allegedly burning
at the time of the incident ... "
30. The statement of the IO was not to the effect that there was
no blackening on the wall. Statement was that he does not recollect as
to whether there was blackening on the wall or on the peg or not. The
High Court proceeded on the premises that it was stated that there was
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no blackening on the wall. The very premise of the High Court, thus, to
reject the burning of the lantern is fallacious and is the result of the
misreading of the statement of the IO. The burning oflantern being fully
proved, the High Court committed error in putting off the light oflantern
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from the case.
31. It is also relevant to note that accused were all family members
and well known to the witnesses. Ram Prasad was step brother of
informant, his sons and nephew were with him. Informant has also stated
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that Ram Prasad exhorted the accused to kill Mohan Lal. There cannot
be any mistake regarding identification of the family members who apart
from being family members are residing in the nearby houses.
32. The evidence of PW.2 RamAsrey regarding identification of
the accused was also rightly believed by the trial court. Ram Asrey in
his statement has stated that when he along with other family members
bolted themselves in his Kothari, the accused came and asked him to
open the door. They told that 'Ram Asrey open the door they will not
kill'. He further stated that when he did not open the door, they put the
house on fire. Ram Asrey further stated that he had seen the accused
from 'Jhiri' of the door. He further stated that he recognised them by
their voices and also when the house was lit on fire, in its light he
recognised the accused. There was sufficient evidence on the record
which was rightly believed by the trial court that all the accused were
present on the spot at the time of occurrence. We are, thus, of the view
that High Court erred in holding that lantern was not burning and the
accused could not have been identified.
33. The High Court has further stated that there was no proof
regarding any earlier dispute between informant and Ram Prasad. The
High Court has observed that prosecution has not examined any other
witness of the Panchyat and further the dispute was not such as to
constitute immediate motive to kill the family members. When PW.1
and PW.2 both have stated that one week before the incident there was
dispute between informant and Ram Prasad for Nabdan which was
flowing in the western side near the house of Ram Prasad. The genesis
of dispute laid there. Further observation of the High Court is that the
dispute was not of such a nature, so as to give the accused any motive to
kill the family members of the witnesses. We do not subscribe the above
view of the High Court. On a particular incident how a human being will
react is not easy to comprehend. There was no other evidence before
the High Court to come to the conclusion that there was no dispute
between informant and Ram Prasad. The said observations were based
on no evidence. It is, however, relevant to note that the High Court
itself has observed that where prosecution has adduced direct evidence
on the point of actual occurrence, search for motive is only academic
and with a view to clear the conscience of the Court.
34. The High Court has also made adverse observation regarding
ante dated and ante timed FIR. The High Court has noticed the argument
STATE OF U.P. v. RAM KUMAR & ORS.
[ASHOK BHUSHAN, J.]
of the defence that in the inquest report prepared by the ASI, Nishant
Mishra on 10.10.1995 the crime number and section were written in
different ink. The High Court further stated that prosecution cared least
to prove the time of sending the special report and date on which chick
FIR came before the Court concerned.