Ram Milan & Anr. vs State Of U.P.

( Per: Zafeer Ahmad, J. )

Heard Shri Lali Kishore Pandey, Shri Shubham Gupta and Shri Nadeem Murtaza assisted by Yas Pandey, learned counsel for the appellants and Shri Raj Deep Singh, and learned A.G.A. for the State. Perused the record.

The aforesaid criminal appeals arise out of judgment and order dated 04.07.1985, passed by the learned Sessions Judge, Gonda in S.T. No. 434 of 1983 (State v. Kripa Ram and others), arising out of Case Crime No. 138 of 1983, Police Station Itiathoke, District Gonda, whereby the appellants have been convicted and sentenced to undergo imprisonment for life under Section 302/149 of Indian Penal Code, 1860 (in short IPC) along with two years’ of rigorous imprisonment under Section 148 IPC and one year’s rigorous imprisonment under Section 147 IPC. It was further directed that all the sentences shall run concurrently.

For convenience and clarity, the accused-respondents shall hereinafter be referred to, as per their array before the Trial Court, namely: A1- Kripa Ram; A2- Ram Baran @ Vijai; A3-Satti Ram; A4- Kunney; A5- Ram Milan; and A6- Pokai @ Poknath.

Furthermore, A5-Ram Milan died during the pendency of the appeal, and consequently, the appeal preferred on his behalf stood abated by order dated 26.08.2015.

The prosecution case, in brief, is that on 14.09.1983 at about 7:00 P.M., the complainant, Ram Gopal Singh, submitted a written report stating, inter alia, that the buffaloes belonging to A1 were grazing in his paddy field. On seeing the same, the complainant, along with his brother Raghuraj Singh and his father Dharam Singh, drove the buffaloes away. Thereafter, they proceeded towards their house, with Raghuraj Singh walking ahead, followed by the complainant, while their father Dharam Singh was walking behind them. When they reached near the house of Chhedi Murao, A1 and A2, armed with country-made pistols, kattas, A3 and A4, armed with farsas, and A5 and A6, armed with lathis, came in front of them and exhorted that the members of the complainant party be killed. Thereafter, the accused persons opened fire at Raghuraj Singh and assaulted him with lathis and farsas. It was further stated that the complainant party was able to identify the accused persons with the help of torchlight. On their raising an alarm, villagers, namely, Baachu Murao, Nibbar, Chumman, Hanuman, Ali Husain and others, arrived at the spot carrying lathis and allegedly witnessed the occurrence. It was further stated that Raghuraj Singh succumbed to the injuries sustained during the assault. It was also stated that there was per-existing party factionalism between the complainant party and the accused party and that certain legal disputes between the two sides were pending.

Thereafter, on the same day at about 11:30 P.M., on the basis of the written report, an FIR was registered under Sections 147, 148, 149 and 302 IPC against all the accused-appellants. The investigation was entrusted to Mohammad Ismail, who proceeded to the place of occurrence on 15.09.1983 and conducted the inquest proceedings. After completing the investigation, he submitted the charge-sheet, on 22.09.1983, against all the accused-appellants. Thereafter, charges were framed by the Court of Session under Sections 147, 148 and 302 read with Section 149 IPC against all the accused-appellants. All the accused denied the charges, pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined Bechoo (PW-1), Ram Gopal Singh (PW-2), H.C. Kesho Ram Tiwari (PW-3), Shafiq Mirza (PW-4), SI Mohd. Ismail (PW-5) and Tappay Singh (PW-6). In support of its defence, the accused-appellants examined Sri Mathura Pandey (DW-1), Nanmoon (DW-2) and Harish Chandra Gupta (DW-3). In addition to the aforesaid witnesses, the learned Trial Court also examined Bholanath (CW-1), Raj Kishore Singh (CW-2) and Paras Nath Mishra (CW-3).

The following exhibits were produced and proved before the Trial Court:

The following exhibits were produced by defence and proved before the Trial Court:

The following material exhibits were produced and proved before the Trial Court:

The statements of all the accused-appellants were recorded under Section 313 Cr.P.C., wherein each of them denied the incriminating circumstances appearing against him in the prosecution evidence and pleaded false implication. A1, when asked whether he had anything further to state, stated, in substance, that Ram Gopal Singh and his counsel, Akbar Ali, had been visiting the village for about two months and were saying that the Sessions Judge would not allow the accused persons to go without punishment. He further stated that they were trying to fill up the lacuna’ s in the papers and, therefore, he had no hope of getting justice from the Court. A4 stated the same version as A1. A6 stated that the charge-sheet was false and, when asked whether he had anything further to state, stated that PW-1, Bechoo, had been residing at the house of Akbar Ali in Tilarpur for the preceding five or six years. He further stated that, about two or three years earlier, Bechoo had acquired a field from Jayanarayan at Bardana. He further stated that Akbar Ali and A1 had contested the election for the post of village head (pradhan), in which A1 had succeeded, and that a petition relating thereto was pending before the competent authority. He further stated that, owing to the aforesaid enmity, Akbar Ali had got the accused persons falsely implicated in the present case. A5, when asked whether he had anything further to state, stated that there was a dispute between him and PW-1, Bechoo, regarding the embankment of an agricultural field and that, owing to the said dispute, he had been falsely implicated in the present case. He further stated that, on the day of the occurrence, the health of Amar Singh, his brother, had deteriorated and that he was undergoing treatment at the District Hospital; however, he passed away during the night. Consequently, he stated that he had not remained in the village on the date of the occurrence.

Learned counsel for the accused-appellants has assailed the impugned judgment and order of conviction, submitting that the prosecution has failed to establish the guilt of the appellants beyond reasonable doubt. It is argued that the testimony of PW-1 and PW-2 suffers from material omissions, contradictions and improvements; their presence and opportunity to witness the occurrence are doubtful, PW-2 admittedly bore previous enmity with the accused, and the material particulars regarding the firearms, weapons and manner of assault were subsequently introduced. It is further submitted that the medical evidence does not fully corroborate the ocular version, particularly with regard to the alleged farsa and lathi assaults and the manner in which the fatal firearm injury was caused. Learned counsel has also pointed out the lapses in investigation, including non-recovery of the alleged weapons, absence of ballistic evidence, non-seizure of lathis and torches, failure to verify the alleged place of buffalo grazing and deficiencies relating to the FIR, special report and inquest proceedings. Reliance has also been placed upon the defence documentary evidence, including the family/parivar register, electoral record and hospital record relating to Amar Singh, to contend that the prosecution version regarding the presence of the witnesses and A5 is doubtful. It is, therefore, submitted that the cumulative effect of the aforesaid circumstances creates a reasonable doubt and the appellants are entitled to acquittal.

Per contra, learned A.G.A. appearing for the State has supported the impugned judgment and order of conviction and submitted that the prosecution case stands established through the consistent testimony of PW-1 and PW-2, which is duly corroborated by the medical evidence. It is argued that the relationship or previous enmity of the witnesses with the accused does not, by itself, render their testimony unreliable and that the core of their account regarding the occurrence and participation of the accused remains intact. Learned A.G.A. submits that the FIR is not required to contain every minute detail of the occurrence and that the omissions or discrepancies relied upon by the defence are minor and do not discredit the substantive prosecution evidence. It is further contended that non-recovery of weapons, absence of ballistic evidence or other alleged investigative lapses cannot, by themselves, demolish an otherwise reliable ocular account. The defence documents, according to learned A.G.A., also do not conclusively establish the presence of any accused elsewhere at the relevant time. It is accordingly submitted that the prosecution has proved the case beyond reasonable doubt and that the learned Trial Court has rightly convicted the appellants; hence, the appeals deserve to be dismissed.

In order to appreciate the issues arising in the present appeal, it is appropriate to examine, in brief, the oral evidence adduced by the prosecution.

PW-1, Bechoo, deposed that at the time of occurrence he was residing in the house of Chhedi Murao and, at about sunset, was taking his meal in the osara (ओसारा) (the porch or open verandah or covered outer extension of the house). He further deposed that he saw Ram Gopal, Dharam Singh and the deceased proceeding towards the north and heard them discussing the damage caused to their paddy crop by A1's buffalo. Shortly thereafter, the accused arrived armed with farsas, lathis and kattas; A1 allegedly exhorted and fired at the deceased, while A3 and A5 assaulted him with farsas and A4 and A6 with lathis. On an alarm being raised, villagers arrived and the accused fled. He further deposed that the Investigating Officer inspected the torches of the complainant side and prepared separate memos.

During cross-examination, he admitted that A1 was the village Pradhan and that an election petition was pending between A1 and Akbar Ali. Though he denied being employed by or residing with Akbar Ali, he admitted that he had been residing with him since the previous date fixed for his evidence and had travelled with him in a trolley. He deposed that he was taking his meal in Chhedi's osara and had shown the place to the Investigating Officer. He further deposed that A2 had fired in the air and that the firearm used by A1 was discharged from about one hand’s distance. He further deposed that the lathis had nails or beru (pointed arrow like structure) attached to them, while admitting that the fact regarding beru had not been disclosed to the Investigating Officer. He estimated the assault to have continued for about 20 minutes and expressed ignorance regarding the death of Amar Singh at Gonda Hospital at about 11:00 P.M. that night or the presence of A5 there.

PW-2, Ram Gopal Singh, brother of the deceased, deposed about the previous enmity between the two sides arising from the Pradhan election and earlier criminal disputes. He further deposed that on 14.09.1983 at around 7:00 P.M., A1’s buffalo was grazing in his paddy field and, while he, his father Dharam Singh and the deceased were returning after driving it away, the accused intercepted and surrounded them near the house of Chhedi Murao. According to him, A1 fired at the deceased, whereafter A3 and A5 assaulted him with farsas and A4 and A6 with lathis. He further stated that PW-1 was taking his meal in the osara of Chhedi Murao and reached the spot on the alarm being raised, followed by other villagers. A2 allegedly brandished his katta to prevent intervention. PW-2 thereafter lodged the written report, Ext. Ka-1, and stated that the torches of himself, his father and other villagers were inspected by the Investigating Officer.

During cross-examination, admitted his support for a rival candidate against A1 in the Pradhan election and the earlier criminal disputes between the parties. He admitted that although he, his father and the deceased had gone towards the field carrying lathis and he and his father had torches, these facts were neither mentioned in the written report nor disclosed to the Investigating Officer, and the lathis were not seized. He further admitted that neither the place where the buffalo was allegedly grazing nor the damaged crop was shown to the Investigating Officer. He deposed that A1 fired from about a foot and A2 fired in the air, but admitted that the written report did not mention that A1 had fired at the deceased or that A1 and A2 were carrying kattas. He further deposed that the deceased fell after being shot and was thereafter assaulted with farsa and lathi blows, however, he admitted that the alleged beru on the lathis was not disclosed to the Investigating Officer. He also admitted that PW-1’s presence in the osara while taking his meal was not mentioned in the FIR and was stated for the first time before the Trial Court. He estimated the assault to have continued for about 4-5 minutes and stated that he proceeded to the police station about an hour after the occurrence, reaching there after approximately three hours, while denying that the FIR was ante-timed.

PW-3, Kesho Ram Tiwari, Head Constable, deposed that on 14.09.1983 at about 11:30 P.M., complainant Ram Gopal Singh submitted the written report, Ext. Ka-1, on the basis of which the FIR, Ext. Ka-2, was registered and corresponding entry was made in the General Diary at Entry No. 33, proved as Ext. Ka-3. He further deposed that the special report was sent through CP-87 Virendra Pratap and the corresponding General Diary entry was made at Entry No. 2 on 15.09.1983, proved as Ext. Ka-4. He further deposed that the Investigating Officer departed for the place of occurrence on 15.09.1983 at about 11:30 P.M. and returned to the police station on 16.09.1983 at around 10:00 P.M. When his attention was drawn to the contradiction regarding the date of departure of the Investigating Officer namely, whether he had departed on 14.09.1983 or 15.09.1983, he stated that the departure was recorded in General Diary Entry No. 33 and that the same was on 14.09.1983. He further stated that mentioning 15.09.1983 was merely a slip of the tongue.

During cross-examination, when the witness was confronted with the contradiction in his examination-in-chief regarding the date of departure of the Investigating Officer from the police station to the place of occurrence, he deposed that mentioning the date as 15.09.1983 was a mistake and that the Investigating Officer had, in fact, departed on 14.09.1983. He further deposed that the said departure was also recorded in General Diary at entry no. 33.

PW-4, Dr. R.U. Pandey, Medical Officer, Sadar Hospital, Gonda, District Hardoi, deposed that on 16.09.1983 he was posted at the said hospital. He further deposed that the body of the deceased was brought and identified by CP-506 Tappe Singh and CP-101 Rampher Saroj and the post-mortem examination was conducted on the same day at around 3:30 P.M. He further deposed that the deceased must have been aged about 20 years and had died about two days earlier. On external examination, it was found that rigor mortis had passed from the upper limbs and was passing from the lower limbs. The body was distended and the skin was peeling off at places. The following ante-mortem injuries were found:

 Injury No. 1: Incised wound measuring 2.5 cm X 0.5 cm X scalp deep, on right side of the head, 6 cm above the right ear and 13 cm behind right eyebrow.

 Injury No. 2: Incised wound measuring 3 cm X 0.6 cm X scalp deep, on left side of head, 10 cm above left ear and 14 cm behind left eyebrow

 Injury No. 3: Lacerated wound 1 cm X 0.5 cm X scalp deep, on back of the left side of head, 14 cm behind left ear.

 Injury No. 4: Fire-arm wound of entrance measuring 5 cm X 5 cm X chest cavity deep, on the front part left side of chest, 16 cm below the middle part of the left collar bone. The margins were inverted. Laceration, blackening, tattooing and charring around the wound margins were present. The wound was directed towards the back.

 Injury No. 5: Incised wound measuring 8 cm X 0.4 cm X muscle deep, on front part, right side chest, 15 cm below the middle part right collar bone.

 Injury No. 6: Incised wound measuring 0.6 cm X 0.3 cm X muscle deep, on the front part right side abdomen , 10 cm above the umbilicus and 3 cm from the midline.

 Injury No. 7: Incised wound measuring 1.5 cm X 0.8 cm X muscle deep, on outer part of the right side chest, 16 cm below the right armpit.

 Injury No. 8: Incised wound measuring 2 cm X 0.6 cm X muscle deep, on outer part right side chest, 2.5 cm, below injury no. 7 During internal examination, a hole measuring 4 cm X 4 cm was found on the left side of the chest, with fracture of the 6th to 8th ribs under Injury No. 4. The pleura of the left lung was lacerated. The medial border of the left lung covering the heart was lacerated through and through under Injury No. 4. The pericardium was lacerated under Injury No. 4. There was a big hole in the left ventricle of the heart, on the anterior aspect, measuring 3.5 cm. Eleven small pellets and one tikli were recovered in the vicinity of the heart. The left side chest cavity contained one liter of fluid blood. There were three pieces of lumps in the stomach. Pasty material was present in the small intestine and fecal matter in the large intestine. In his opinion, the death was due to bleeding and shock caused by injury to the heart due to the firearm injury, i.e. Injury No. 4. He further proved the post-mortem report, which was marked as Ext. Ka-6. He further deposed that the death of the deceased could have occurred on 14.09.1983 at around 7:00 P.M. He further deposed that Injury No. 4 was sufficient to cause death in the ordinary course and that this injury could have been caused by firing from a distance of one or two feet. He further deposed that Injury No. 3 could have been caused by a lathi and that Injuries No. 1, 2, 5, 6, 7 and 8 were incised wounds and could have been caused by a sharp farsa.

During cross-examination, he deposed that the incised wounds, i.e. Injuries Nos. 1, 2, 3, 5, 6, 7 and 8, were simple in nature and none of them was life-threatening, inasmuch as, if Injury No. 4 had not been caused, death was not likely to occur. He further deposed that the incised wounds were superficial in nature and, due to their nature, he could not state whether such injuries could have been caused by a light weapon. He further deposed that a heavy weapon would cause a wound with gaping and tailing. He further deposed that in the post-mortem report he had not mentioned about the gaping and tailing because the same was not found. He further deposed that he had not seen the margins of Injuries No. 1 and 2 through a magnifying lens and that these injuries were on the tense part of the body. He further deposed that sometimes, depending upon the circumstances, an injury caused by a blunt object on the scalp may also appear like an incised wound. He further deposed that the chances of Injuries No. 5 and 6 being caused by a common pin were low. He further deposed that there could be a difference in the duration of death by 8 to 10 hours. He further deposed that Injury No. 3 could possibly be caused by a fall, depending upon the circumstances. He further deposed that he had not seen beru and that a pointed round object could not have caused such an injury. He further deposed that the firearm injury was directed towards the back and that, if a person was lying down and a firearm was discharged over him, such an injury was possible.

PW-5, SI Mohd. Ismail Khan, deposed that after registration of Case Crime No. 138 of 1983, he received the check FIR and GD report at around 12:30 A.M., recorded the statement of the complainant and proceeded to the place of occurrence with other police personnel He reached the place of occurrence at around 3:00 A.M and found that the dead body lying near the door of Chhedi Murao. As it was night and there was no adequate arrangement for light, he deferred the inquest and commenced the same at around 6:25 A.M. on 15.09.1983. He prepared the inquest report and connected papers, site plan, recovery memo of plain and blood-stained earth and memos relating to the torches allegedly used by the complainant party. He also recorded statements of other witnesses, searched for the accused and, after completing the investigation, submitted the charge-sheet. A6 was arrested on 17.09.1983, while the remaining accused surrendered before the Court on 21.09.1983.

During cross-examination, he deposed that he referred to the case diary only when he could not recall a particular fact. He admitted that, although he noticed the blood-stained body and injuries on reaching the spot at night, he could not ascertain the weapons used due to darkness. He further admitted that the written report, Ext. Ka-1, contained no date or endorsement showing the time of its receipt and that the first page of the case diary also did not disclose the date of receipt of the written report. He acknowledged that the crime number on some of the connected documents was entered subsequently and that the time in the inquest report was written in overwriting manner with a bold digit “6”, though he denied any alteration or manipulation. He further deposed that PW-1 had informed him regarding the buffalo grazing in Dharam Singh's field, the assault with lathi and farsa and the arrival of villagers with torches. PW-2 had given him the statement that the accused surrounded the deceased, exhorted to kill him, were armed with lathis fitted with iron rings and that A1 and A2 fired at the deceased, however, he admitted that PW-2 had not initially stated that A1 fired at the chest of the deceased from a distance of about a foot. He further admitted that no pellets, cartridges or lathis were recovered from the place where the dead body was found, that he did not enter Chhedi's house, and that the exact place in the verandah from where PW-1 allegedly witnessed the occurrence was not shown in the site plan. He also admitted that although the alleged buffalo-grazing field was about 50 paces from the complainant's house, he neither inspected the said field nor prepared a site plan in respect thereof. He denied the allegations of fabrication, manipulation of the case diary or deliberate withholding of independent witnesses.

PW-6, Tappe Singh, Constable, Police Station Itiathok, deposed that on 15.09.1983 he was posted at the said police station and had accompanied the I.O. to the place of occurrence. At around 8:30 A.M., the dead body was sealed and handed over to him, along with the requisite papers, for post-mortem examination. Accompanied by Constable Rampher Saroj, he brought the dead body to P.S. Gonda at about 2:30 P.M. As the CMO was unavailable, he contacted him at his residence, whereupon he was directed to produce the dead body on 16.09.1983 at about 9:00– 10:00 A.M. He accordingly handed over the dead body to the doctor at about 11:00 A.M. on 16.09.1983 for post-mortem examination.

During cross-examination, he deposed that the I.O. had not recorded his statement. He further deposed that his arrival at P.S. Gonda with the dead body was entered in the GD, though the reason for the alleged delay was not recorded. He further deposed that he left the police station at around 1:30 A.M. with the I.O. and other constables and reached the place of occurrence at around 3:00 A.M. He further deposed that it was the rainy season, at the relevant time, the dead body was laying 7-8 paces from Chhedi’s door, and its clothes were wet and muddy, with mud also present on the feet. He denied that the dead body was handed over to him only in the evening, that he had been tutored to adjust the timings, or that the requisite papers were prepared or sent subsequently or were antedated.

DW-1, Mathura Prasad, Petition Clerk, District Magistrate, Gonda, verified the original special report of the case and confirmed it was received at the CMO’s bungalow on 15.09.1983 at around 15:45 hours.

No cross-examination was conducted.

DW-2, Nanmun, deposed that Chhedi and Ram Chandar live with their respective families in his house. He further deposed that PW-1 never lived in their house, but resided and worked at Akbar’s place in Tilak Purwa. He further deposed that Ram Gopal Singh owned a house in the village but actually resides with and works for Jainarayan in Hindu Nagar, as he was desirous of acquiring the wealth and property of Jainarayan.

During cross-examination, he denied living in Bahraich for past 20 years and deposed that he own agricultural land in village and live there.

DW-3, Harish Chandra Gupta, Pharmacist, District Hospital, Gonda, produced the bed-head ticket of Amar Singh @ Sudharan Singh, which was proved and marked as Ext. Kha-5. The said document indicated that Amar Singh was admitted to the hospital on 13.09.1983 at about 22:40 hours and died on the following night, i.e. 14.09.1983 at about 23:00 hours.

No cross-examination was conducted.

CW-1, Bhola Nath, Gram Panchayat Adhikari, Nyaya Panchayat, Mohnaun, produced the family register, which had been in existence since 1962, and submitted official copies of the family records relating to House Nos. 39, 40 and 42, which were proved and marked as Ext. Kha-6, Kha-7 and Kha-8, respectively.

No cross-examination was conducted.

CW-2, Rajkishore Singh, Gram Panchayat Adhikari, Nyay Panchayat, Rupai Deeh, proved the family register of members of house no. 32, which had been in existence since 1972. The same was proved and marked as Ext. Ka-28.

No cross-examination was conducted.

CW-3, Paras Nath, Clerk, District Election Office Gonda, produced the electoral roll for the Mujehna constituency, showing that, in Gram No. 417, House No. 39 was registered in the names of Chhedi, Kumari and Beechu.

During cross-examination, he denied the suggestion that Beechu's name was added to the electoral roll during the 1984 revision.

The prosecution case rests substantially upon the ocular testimony of PW-1, Bechoo, and PW-2, Ram Gopal Singh. PW-1 claims to have witnessed the occurrence from the osara of the house of Chhedi Murao, while PW-2 is the brother of the deceased and claims to have been present at the time of occurrence. Since the conviction of all the accused-appellants rests principally upon their testimony, their presence at the place of occurrence and the intrinsic reliability of their account require close scrutiny. Learned counsel for the accused-appellant has place reliance upon Vadivelu Thevar v. State of Madras, 1957 1 SCC 700, wherein the Hon’ ble Supreme Court held that oral testimony may be wholly reliable, wholly unreliable, or fall in the third category, where it is neither wholly reliable nor wholly unreliable, in which case the Court must examine the evidence with circumspection and seek corroboration in material particulars. The same principle has been reiterated in Naresh v. State of Haryana, 2023 10 SCC 134, wherein the Supreme Court emphasised that an eyewitness relied upon for conviction must inspire confidence and his version should remain consistent on the core aspects of the occurrence.

Firstly, and most significantly, the very presence of PW-1 at the place from which he claims to have witnessed the occurrence stands directly contradicted by defence witness. PW-1 deposed that he was residing at the material time in the house of Chhedi Murao, his brother-in-law, and that he was seated in the osara of that house, taking his meal, when he saw the deceased's party pass by and was thereafter a witness to the assault. DW-2, Nanmun, a witness whose testimony was not shaken on this point in cross-examination, deposed in categorical terms that PW-1 never resided in that house at all, but resided and worked at the house of Akbar Ali in Tilak Purwa. This is not a peripheral inconsistency, if DW-2 is to be believed, PW-1 was not merely mistaken about some detail of the occurrence, but was not at the vantage point from which he claims to have witnessed it in the first place. This doubt is compounded, rather than dispelled, by PW-1's own admissions in cross-examination wherein he conceded that he had been residing with Akbar Ali since the last date fixed for his evidence, and that he had travelled to court in the trolley of Akbar Ali. Furthermore, Akbar Ali is, the defeated rival of A1 in the Pradhan election and with an election petition pending between them, at that time. A witness who claimed base of operations on the night in question is contradicted by an independent witness, and who is shown to be presently residing with and transported by the complainant faction's principal political rival, cannot be treated as speaking from a position of established, disinterested presence. The reliance place by Ld. Counsel for the accused-appellant on Badam Singh v. State of M.P., 2003 12 SCC 792, on this aspect is squarely applicable in the present case , wherein the Hon’ ble Supreme Court ruled that mere consistency between witnesses is not by itself a guarantee of truthfulness and the Court must critically examine whether their presence at the place of occurrence is established.

Secondly, PW-1’s account does not withstand comparison with his own statement made during investigation. PW-5, the Investigating Officer, confirmed in cross-examination that PW-1 in his statement under Section 161 Cr.P.C. has stated that he had seen the buffalo belonging to A1 grazing in the field of Dharam Singh on the date of occurrence, the very circumstance alleged to have precipitated the altercation. However,before the trial Court, PW-1 denied having seen the buffalo in the field and also denied having made any such statement to the Investigating Officer. The contradiction was duly confronted and proved in accordance with Section 145 of the Evidence Act and relates not to a peripheral detail, but to the very genesis of the occurrence and the circumstances in which PW-1 claims to have witnessed the events of that evening. Furthermore, PW-1 introduced, for the first time before the trial Court, that the lathis carried by the assailants had a beru (a pointed, spear-like attachment) fixed to them, while admitting that he had not disclosed this fact to the Investigating Officer. These omissions and improvements, when considered with the other inconsistencies in his testimony, materially affect the spontaneity and reliability of his ocular account and require his evidence to be approached with considerable caution. As held in Arun v. State of M.P., 2025 SCC OnLine Sc 668, that the maxim falsus in uno, falsus in omnibus has no application in India and the evidence must instead be examined with care and caution. The question, therefore, is whether these variations, viewed cumulatively with the other circumstances, materially impair the reliability of PW-1.

Thirdly, the presence and testimony of PW-2 also require careful scrutiny. He deposed that at about 7:00 P.M. he, his father and the deceased had gone to drive away the buffaloes from the field and that he and his father were carrying lathis and torches. However, these facts were not mentioned in the written report, nor were they disclosed to the Investigating Officer, and the alleged lathis and torches were neither seized nor were they produced before the trial court. He further admitted that he had not shown the alleged damaged crop or the place of grazing to the Investigating Officer. More importantly, although PW-2 attributed the firing to A1 and A2, the written report did not mention that A1 had fired at the deceased or that A1 and A2 were armed with kattas. In his deposition, he further introduced that A1 fired from a distance of about a foot and that A2 fired in the air to scare the deceased party. These details assume significance as they relate to the manner of occurrence and the specific roles attributed to the accused. The defence also disputed the presence of PW-2 in the village at the relevant time and suggested that he was residing and working elsewhere, which he denied. Thus, while the FIR cannot be expected to contain every minute detail, the above omissions and subsequent additions, considered along with his admitted prior enmity with the accused, warrant cautious scrutiny of his presence and ocular account.

Fourthly, this Court cannot lose sight of the fact that PW-2 belongs to a family which had been involved in a prolonged and reciprocal course of litigation and hostility with the accused party. PW-2 admitted that he had supported a rival candidate against A1 in the Pradhan election; that the deceased had been a witness in a 1982 assault case against A1 and others; that, in a 1983 tree-cutting case, the deceased was the informant and had got A1, A2, A5 and A6 arrested, and that, in another dispute in the same year, PW-2, his father and the deceased had themselves been implicated by the accused side. This history of admitted and reciprocal hostility does not, by itself, render PW-2’ s testimony unacceptable, particularly in view of the settled principle that relationship or enmity is not, standing alone, a ground for discarding ocular evidence. Nevertheless, once independent circumstances have already cast doubt upon the reliability and presence of PW-1, the admitted background of hostility assumes considerable significance in assessing whether the testimony of PW-2, the deceased’ s own brother and an admittedly inimical witness, inspires the degree of confidence necessary to sustain the conviction. In this regard, the reliance place by the learned counsel for the accused-appellant upon Jaikam Khan v. State of U.P., 2021 13 SCC 716 and Jai Prakash Tiwari v. State of M.P., 2024 15 SCC 424, on this aspect is squarely applicable in the present case, that although relationship or enmity by itself is not sufficient to discard the testimony of a witness, such evidence requires careful and cautious scrutiny and, where the witness is not wholly reliable or wholly unreliable, corroboration in material particulars assumes significance.

Fifthly and finally, this doubt is compounded by the prosecution's unexplained failure to examine Dharam Singh, father of the deceased and PW-2, who, on the prosecution's own case, was walking with the deceased and PW-2 at the very moment of the assault and was thus as much a witness to the occurrence similar to PW-1 or PW-2, and potentially better placed than either, since his presence at the spot is nowhere disputed. Once PW-1's presence stands contradicted and PW-2's own account of his presence and opportunity to observe is shown to rest on an unverified premise and unexplained omissions, the one witness capable of independently resolving these doubts was available to the prosecution and was left unexamined without explanation. That omission is not a neutral gap in the evidence, it is a further reason to hold that the prosecution has not established, beyond reasonable doubt, that the eyewitnesses on whom it relies were, in fact, reliably placed to witness and identify the assailants as alleged. Thus, the non-examination of a natural witness, in the peculiar circumstances of the present case, adds to the doubts already arising from the ocular evidence.

Learned counsel for the accused-appellants, placing reliance upon Sunil Kundu and another v. State of Jharkhand, (2013) 4 SCC 422 and Krishnegowda v. State of Karnataka, (2017) 13 SCC 98, submitted that material lapses and omissions in investigation assume significance where they create doubt regarding the prosecution version. It was contended that the investigation in the present case suffers from several such lapses which, when considered cumulatively with the weaknesses in the ocular evidence, materially affect the prosecution case.

The manner and timing of the inquest proceedings create a circumstance requiring scrutiny. The Investigating Officer reached the place of occurrence on 15.09.1983 at around 3:00 A.M., yet the inquest proceeding was not commenced until 6:25 A.M., on the ground that there was insufficient light. More significantly, the time mentioned for the completion of the inquest proceeding in Ext. Ka-9 bears overwriting, the original time of 8:30 A.M. was altered to 06:30 A.M. Such alteration in a document concerning the earliest stage of investigation cannot be ignored, particularly when the prosecution seeks to rely upon the contemporaneous police papers to establish the chronology of the investigation.

Furthermore, the promptness and communication of the FIR also require examination. Though the FIR is stated to have been registered at 11:30 P.M. on 14.09.1983, the written report bears no endorsement showing the time of its receipt and does not even bear a date. The first page of the case diary also does not disclose the date of receipt of the written report. The evidence further shows an unexplained contradiction in the testimony of PW-3 regarding the date on which the Investigating Officer departed for the place of occurrence. These circumstances assume significance in view of the principles laid down in Chotkau v. State of H.P., (2023) 6 SCC 742, regarding prompt lodging and communication of the FIR, and in Meharaj Singh v. State of U.P., (1994) 5 SCC 188, wherein the Supreme Court held that unexplained circumstances surrounding the preparation and dispatch of the FIR may give rise to a legitimate suspicion regarding its ante-timing.

Moreover, the investigation suffers from the absence of recovery of the alleged weapons of assault and the absence of ballistic corroboration. Although the prosecution alleges that A1 and A2 were armed with kattas and that A3 and A5 were armed with farsas while A4 and A6 carried lathis, no weapon of offence was recovered and connected with the occurrence. Likewise, no pellets or cartridges were recovered from the place of occurrence so as to furnish independent corroboration to the alleged firearm assault. The reliance paced by the counsel for the accused-appellant on Ram Singh v. State of U.P., (2024) 4 SCC 208, is correct, wherein the Hon’ble Supreme Court has recognised the relevance of non-recovery of the weapon and absence of ballistic corroboration while assessing the prosecution case, particularly where the ocular account itself requires close scrutiny.

Moreover, the investigation also failed to provide adequate objective corroboration regarding the alleged manner of occurrence. The prosecution witnesses claimed that they were carrying torches and that the Investigating Officer inspected those torches and prepared separate memos, yet such articles were not retained as material evidence nor were they produced before the trial court. Similarly, the lathis allegedly carried by PW-2 and his father were neither seized nor subjected to any recovery memo. The Investigating Officer also did not inspect or show in the site plan the precise place in the field where the buffalo was allegedly grazing or the alleged damaged crop. These omissions assume significance because the occurrence took place after sunset and the prosecution relies upon identification of six accused and attribution of specific weapons and overt acts to each of them.

The aforesaid lapses, considered individually, may not necessarily be sufficient to discard the prosecution case. However, criminal trials require the Court to examine whether the investigation, viewed as a whole, provides assurance to an otherwise doubtful ocular account. As held in Sunil Kundu (supra) and Krishnegowda (supra), material lapses in investigation assume significance when they affect the substratum of the prosecution case or create a reasonable doubt about its truthfulness. In the present case, the discrepancies concerning the FIR and inquest chronology, the overwriting in Ext. Ka-9, the delayed communication of the special report, non-recovery of the alleged weapons and absence of ballistic corroboration, coupled with the failure to preserve objective evidence relating to source of light and the place of occurrence cannot be viewed in isolation. They assume greater significance in the backdrop of the doubts already noticed in the presence and reliability of PW-1 and PW-2. The cumulative effect of these circumstances, therefore, materially weakens the prosecution case and makes it unsafe to sustain the conviction solely on the basis of the ocular testimony.

The prosecution has placed considerable reliance upon the post-mortem report to lend assurance to the ocular account of PW-1 and PW-2. There is no dispute that the deceased suffered a homicidal death and that Injury No. 4 was a fatal firearm injury. The issue, however, is whether the nature, number and characteristics of the injuries found on the deceased correspond with the manner and intensity of assault narrated by the eyewitnesses. On a careful comparison of the ocular and medical evidence, material discrepancies emerge which cannot be brushed aside as minor variations.

The prosecution attributes a concerted assault to the accused involving farsas and lathis. PW-1 and PW-2 have described the use of these weapons as part of the assault upon the deceased. PW-4 found six incised wounds, namely injuries nos. 1, 2, 5, 6, 7 and 8. The mere description of these wounds as incised, however, is not sufficient to establish that they were caused by the alleged farsa. During cross-examination, PW-4 stated that the injuries were superficial and simple and further explained that injuries caused by a heavy cutting weapon such as a farsa would ordinarily be expected to show gaping and tailing and he found no such features in the injuries of the deceased.

The importance of this admission lies in the distinction between the presence of a sharp-edged injury and the alleged manner of its infliction. The medical evidence does establish that the deceased had incised wounds, but when the prosecution version is that two accused repeatedly assaulted him with farsas, the absence of the characteristics which the medical officer himself associates with such a weapon assumes significance. The Court is not holding that absence of gaping or tailing conclusively excludes a farsa. The point is that the medical evidence does not furnish the degree of confirmation which would ordinarily be expected if the ocular account of repeated and forceful farsa blows were to be accepted without reservation.

The position is further affected by the doctor’ s evidence that he had not examined the margins of the injuries with a magnifying instrument and that the wounds were superficial and simple. Thus, while the medical examination establishes the nature of the wounds as recorded, it does not provide an equally firm basis for accepting the prosecution’ s more specific assertion that the injuries were the result of the heavy farsa blows attributed to A3 and A5. This distinction becomes material because their participation is sought to be established through a direct attribution of such weapon and assault in the ocular account.

The alleged lathi assault presents an even more substantial difficulty. The prosecution witnesses describe an assault by two persons armed with lathis, including the allegation that the deceased continued to be assaulted even after he had fallen. Yet, apart from the firearm injury, the only injury which the doctor regarded as compatible with a blunt weapon was injury no. 3, a lacerated wound on the back of the head. The post-mortem examination does not disclose a corresponding series of blunt-force injuries commensurate with the alleged sustained assault by two persons.

More importantly, PW-4 accepted during cross-examination that injury no. 3 could possibly have resulted from a fall. The medical evidence therefore leaves open the possibility that the injuries were caused by something other than the alleged lathi blows. The Court does not treat this possibility as proof that the injury was caused by a fall. Its significance lies in the fact that the only injury relied upon to support the alleged lathi assault is not, in medical evidence, specifically attributable to a lathi and could have been caused in some other manner.

The allegation regarding the lathis being fitted with iron rings or nails makes the absence of further corresponding injuries more significant. If the ocular account is accepted in its full force, the deceased was subjected to repeated blows by two persons armed with such weapons. Yet the medical examination reveals only the solitary laceration on the head, without a corresponding pattern of multiple blunt-force injuries. The Court cannot supply such missing medical features by conjecture. While the absence of injuries corresponding to every alleged blow cannot by itself disprove an assault, the substantial disparity between the intensity of the alleged beating and the injuries actually found is a circumstance which materially affects the corroborative value of the medical evidence.

The fatal firearm injury requires separate consideration. Injury No. 4 was undoubtedly serious and was sufficient to cause death. PW-4 found features clearly indicative of a firearm discharge and opined that the injury could have been caused from a short distance. At the same time, the direction of the wound and the doctor’s evidence regarding the possible position of the deceased introduce a circumstance which is not fully explained by the ocular narrative. The medical evidence permits the possibility that the firearm could have been discharged when the deceased was lying down and the weapon was directed over him.

This aspect assumes significance because the prosecution has presented a particular sequence in which the accused allegedly surrounded the deceased during the confrontation and A1 fired the fatal shot, followed by the assault with the other weapons. The medical evidence does not affirmatively support that particular positional sequence. It is not necessary for the Court to hold that the medical and ocular versions are wholly irreconcilable, the relevant consideration is that, where the eyewitness account is itself under scrutiny, the medical evidence does not provide the independent assurance expected in relation to the precise manner in which the firearm injury was sustained.

There is also a circumstance concerning the condition of the body which requires consideration. PW-6, who was entrusted with taking the body for post-mortem, stated that the occurrence was during the rainy season and that the body and clothes were wet and muddy when he reached the place of occurrence. The prosecution thus places the deceased at an outdoor place in conditions where contact with wet or muddy ground was possible. However, PW-4, while conducting the post-mortem examination, did not record any corresponding observation regarding mud or wetness on the body or clothes.

This omission, standing alone, cannot be treated as decisive. A post-mortem examination is primarily directed towards determining the nature, cause and circumstances relevant to death and is not a complete record of the physical environment of the occurrence. Nevertheless, where the condition of the body is relied upon as an objective circumstance consistent with the prosecution’ s account of how and where the deceased fell or remained after the assault, the absence of any corresponding observation by the medical officer reduces the corroborative value sought to be attached to that circumstance. It is another instance where the objective evidence does not affirmatively reinforce the detailed ocular narrative.

An additional circumstance arises from the transportation of the dead body. PW-6 stated that after reaching the hospital, he was unable to have the post-mortem conducted because the Chief Medical Officer was not available and was thereafter directed to bring the body on the following day. The body was consequently subjected to post-mortem examination on 16.09.1983. The delay by itself does not establish any manipulation or affect the cause of death, particularly when the body had already been sealed. However, when the Court is examining the reliability of the physical condition described by the witnesses, the intervening period between the occurrence, transportation, preservation and eventual post-mortem becomes a relevant circumstance in assessing what significance can safely be attached to the absence or presence of external observations.

The Court must, therefore, avoid treating the post-mortem report as either wholly supporting or wholly contradicting the prosecution case. Its evidentiary value is more nuanced. It strongly confirms the fatal firearm injury, but the medical characteristics of the remaining injuries do not correspond with the prosecution’ s description of a sustained assault by heavy farsas and lathis to the extent claimed. Injury No. 3 is capable of another explanation, the incised wounds lack the features which PW4 associated with heavy cutting weapons, and the medical evidence does not satisfactorily explain the positional aspect of the fatal firearm injury in the manner narrated by the eyewitnesses.

The significance of these circumstances becomes greater because the medical evidence is expected, as in the present case, to arrive at independent corroboration to the ocular account which has already been found to contain material aspects requiring closure scrutiny. The Court is not applying an inflexible requirement that every injury must correspond to every alleged blow. Rather, the question is whether the overall physical evidence is consistent with the character and intensity of the assault described by the witnesses. In the present case, there is a noticeable gap between the two.

Thus, the medical evidence proves the most fundamental aspect of the prosecution case, namely that Raghuraj Singh died a homicidal death from a firearm injury. But it does not provide corresponding corroboration to several material features of the ocular account concerning the alleged farsa and lathi assaults and the precise circumstances in which the fatal firearm injury was sustained. When these medical limitations are considered alongside the material omissions and improvements in the ocular evidence and the investigative deficiencies already noticed, the post-mortem evidence does not furnish the independent assurance necessary to remove the reasonable doubt arising from the prosecution case.

In view of the foregoing discussion, we are of the considered opinion that the prosecution has failed to prove the guilt of the accused-appellants beyond reasonable doubt. The ocular testimony of PW-1 and PW-2 suffers from material omissions, inconsistencies and circumstances affecting their credibility, while the medical evidence does not furnish satisfactory corroboration to the alleged manner of assault. The previous enmity between the parties, the doubtful presence and conduct of the witnesses, and the non-examination of Dharam Singh, who was admittedly present with the deceased immediately before and at the time of the occurrence, also assume significance in assessing the prosecution version. The infirmities in the investigation, including the failure to establish the precise place and circumstances of the occurrence, non-recovery of the alleged weapons and absence of satisfactory ballistic or other corroborative material, further weaken the prosecution case. The defence evidence and the documentary material produced on behalf of the defence, though not by themselves sufficient to establish the entire defence version, also constitute circumstances which cannot be completely disregarded. Considered cumulatively and taking a holistic view, these circumstances create a reasonable doubt as to the manner of occurrence, the specific roles attributed to the accused-appellants and the existence of the common object alleged against them. In such circumstances, the accused-appellants are entitled to the benefit of doubt.

Accordingly, we find that the present appeals are liable to be allowed and the judgment and order of the trial court, convicting and sentencing the accused-appellants under Sections 302/149, 148 and 147 IPC, is liable to be set aside.

Consequently, the present appeals are allowed. The accused-appellants, namely, A1-Kripa Ram, A2-Ram Baran @ Vijai, A3-Satti Ram, A4-Kunney, and A6-Pokai @ Poknath, are hereby acquitted of all the charges levelled against them. So far as A5-Ram Milan is concerned, his appeal stood abated on account of his death by order dated 26.08.2015.

The accused-appellants A1-Kripa Ram and A2-Ram Baran @ Vijai are in jail. They shall be released forthwith, if not wanted in any other case, subject to compliance with Section 437-A Cr.P.C. A3-Satti Ram, A4-Kunney and A6-Pokai @ Poknath are on bail. Their bail bonds shall stand cancelled and the sureties shall stand discharged, subject to compliance with Section 437-A Cr.P.C.

Pending applications, if any, stands disposed of.

Let a copy of this judgment, along with the lower court record, be transmitted forthwith to the court concerned for information and necessary compliance.