. Criminal Law — Sections 302/149, 307/149, 147, 148 IPC — Unlawful assembly — Common object — Murder — Aggressor identified
When a group of accused persons, forming an unlawful assembly armed with deadly weapons, attack another party causing death and injuries, and the evidence establishes that the accused were the aggressors, conviction under Sections 302/149 and 307/149 IPC is justified. Common object need not be premeditated; it can form on the spot when the members act in concert to commit the offence.
2. Evidence — Injured eyewitness — Credibility and evidentiary value
Testimony of an injured eyewitness carries greater evidentiary value and cannot be discarded lightly. Unless shown to be unreliable or inconsistent with medical evidence, such testimony is sufficient to sustain conviction.
(Ref: Bangal Singh (PW-2) — injured witness whose version corroborated by other eyewitnesses and medical evidence.)
3. Criminal Jurisprudence — Cross cases — Determination of aggressor
In cases of cross FIRs arising out of the same incident, the Court must ascertain which party was the aggressor. The mere existence of injuries on both sides does not make it a “free fight.” When the accused side initiates the attack and inflicts fatal injuries, they cannot claim parity or right of private defence.
(Here, appellants demolished the ridge and launched attack with sharp weapons.)
4. Delay in lodging FIR — Not always fatal
Delay in lodging the FIR is not by itself sufficient to discard the prosecution case if the delay is reasonably explained — for example, when time was spent in taking the injured to hospital or arranging for treatment.
(Complainant side’s delay of 3 days was explained satisfactorily.)
5. Exception 4 to Section 300 IPC — “Sudden fight” — When not applicable
The fourth exception to Section 300 (sudden fight, without premeditation, in heat of passion) is not applicable when:
-
The accused side is the aggressor;
-
Deadly weapons are used;
-
Multiple blows are inflicted with intention to kill; and
-
The attack is not in self-defence.
(Hence, conviction for murder under Section 302/149 IPC upheld; not reduced to 304 Part II.)
6. Appeal under Article 136 — Interference with concurrent findings
The Supreme Court will not interfere with concurrent findings of fact by the Trial Court and High Court unless such findings are perverse, based on no evidence, or involve gross misappreciation of material evidence.
(Here, concurrent findings were consistent and supported by credible evidence.)
7. Motive — Boundary dispute — Supporting evidence
Existence of a motive (boundary dispute decided against the accused) corroborates the prosecution case and reinforces the inference of premeditation and common object.
8. Medical evidence — Consistency with ocular testimony
Medical evidence corroborating the nature and seat of injuries described by eyewitnesses strengthens the prosecution version.
(Fatal incised wounds on the skull consistent with use of sharp-edged weapons like tabal and spade.)
9. Sentencing — Life imprisonment — Justified
Where two persons were killed and others grievously injured in a deliberate group assault, the sentence of life imprisonment under Section 302/149 IPC and 10 years’ rigorous imprisonment under Section 307/149 IPC is justified and proportionate.2025 INSC 1262
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 1 of 25
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1624 OF 2011
OM PAL & ORS …APPELLANT(S)
VERSUS
STATE OF U.P
(NOW STATE OF UTTARAKHAND) …RESPONDENT(S)
WITH
CRIMINAL APPEAL NOS.1613-1614 OF 2011
J U D G M E N T
PRASHANT KUMAR MISHRA, J.
1. The present set of Appeals is directed against the common judgment and
order dated 29.11.2010 whereby the High Court dismissed the criminal appeals
filed by the appellants against their conviction under Section 302 read with
Sections 149 and 307 of the Indian Penal Code, 18601.
1 “IPC”
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 2 of 25
2. In the present set of Appeals, Criminal Appeal No.1624 of 2011 is filed by
appellants – Om Pal, Narendra and Ranvir; Criminal Appeal No.1613 of 2011 is
filed by Dharamvir; and Criminal Appeal No.1614 of 2011 was filed by Inchha
Ram, who has passed away during the pendency of the present Appeals.
Therefore, Criminal Appeal No.1614 of 2011 preferred by Inchha Ram stands
abated and the same is, accordingly, dismissed as such.
A. FACTUAL MATRIX
3. In the present case, two sets of First Information Reports2 were lodged with
regard to the same incident which took place on 19.05.1988.
THE FIRST FIR
4. FIR No.65 dated 20.05.1988 was lodged under Sections 147, 148, 149,
323, 324 and 307 of the IPC from the side of the appellants stating that one
Molhar along with his brother Kantu and his sons, Narendra, Om Pal, Inchha,
Ranvir and Pardeep were cutting sugar cane and at the same time, Dile Ram,
Ved Pal, Bengal Singh, Sher Singh entered the field of the appellants along with
lathis, tabals and axes and started attacking the appellants. There was a fight
that ensued and, in the process, Kantu, Narendra, lnchha received several
injuries.
THE SECOND FIR
5. FIR No. 65A/1988 under Sections 147, 148, 149, 307, 323, 324 and 506
of the IPC was lodged by the opposite/complainant side on 23.05.1988 that
2 “FIR”
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 3 of 25
Molhar and Dharamvir Singh damaged their boundary of the field on 19.05.1988
and, thereafter, the appellants started beating Dile Ram with lathis, tabals, axes,
phawara due to which Dile Ram, Braham Singh and Bangal Singh received
serious injuries, both were taken to hospital where Dile Ram succumbed to the
injuries on 24.5.1988 and Braham Singh expired on 31.5.1988.
6. Taking into account the two sets of FIR, FIR No.65 gave rise to Session
Trial No.57 of 1992 and FIR No. 65A emanated into Session Trial No.56 of 1992.
7. In Session Trial No.56 of 1992, out of which the present Appeals have
arisen, all the seven accused persons were found guilty of the offences
punishable under Section 302 read with Section 149 IPC, and Section 307 read
with Section 149 IPC. Each of them were sentenced to imprisonment for life and
a fine of ₹10,000/- under Section 302/149 IPC, rigorous imprisonment for 10
years and a fine of ₹10,000/- under Section 307/149 IPC. Additionally, the
accused persons were individually sentenced to the following:
Appellant Offence Sentence
Molhar Section 147 IPC R.I. for 2 years
Kantu Section 147 IPC R.I. for 2 years
Om Pal Section 147 IPC R.I. for 2 years
Narendra Section 147 IPC R.I. for 2 years
Ranvir Section 147 IPC R.I. for 2 years
Inchha Ram Section 148 IPC R.I. for 2 years
Dharamvir Section 148 IPC R.I. for 2 years
8. On the other hand, in Sessions Trial No.57 of 1992, which emanated from
FIR No. 65A lodged by the appellants, all the accused persons were acquitted.
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 4 of 25
9. Aggrieved by the judgment in Session Trial No.56 of 1992 convicting the
appellants, three separate appeals were preferred — Criminal Appeal No.1516 of
2001 by Molhar and Dharamvir, Criminal Appeal No.921 of 2001 by Kantu and
Criminal Appeal No.922 of 2001 by Om Pal, Narendra, Inchha Ram and Ranvir
before the Allahabad High Court.
10. Aggrieved by the judgment in Session Trial No.57 of 1992, Criminal
Revision No.321 of 2001 was filed by Molhar Singh before the Allahabad High
Court.
11. All the three criminal appeals and the criminal revision were transferred
to the High Court of Uttarakhand under Section 35 of the Uttar Pradesh
Reorganization Act, 2000 after the formation of the State of Uttarakhand.
12. The High Court of Uttarakhand vide its common impugned judgment and
order dated 29.11.2010 after reappreciating the entire evidence of the
prosecution, dismissed all the criminal appeals and the criminal revision filed by
appellants. Thus, the High Court vide impugned judgment affirmed the
conviction and sentence awarded by the Trial Court in Sessions Trial No.56 of
1992.
13. The appellants are now before us assailing the judgment passed by the
High Court which affirmed their conviction.
B. SUBMISSIONS OF THE PARTIES
14. Learned counsel for the appellants submit that the present case is not of
a premeditated murder but a result of a free fight that ensued between the two
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 5 of 25
groups. As the injuries were sustained on both sides, the possibility of the
appellants exercising their self-defense cannot be ruled out. Also, the fact that
none of the witnesses could attribute specific role to any particular accused,
thus, it indicates that it was a case of free fight.
15. Additionally, it was the side of the appellants that lodged the first FIR. It
was also argued that the cross-FIR from the side of the complainant was in fact
lodged after three days of the incident by the son of the deceased Dile Ram and
not by the injured eyewitness.
16. Learned counsel for the appellants have also questioned the testimonies
of the eyewitnesses. In a nutshell, it was argued that the conviction of the
appellants under Section 302/149 of the IPC is totally misconceived and, if at all
they are liable, they can be liable only under Section 304 Part II of the IPC as
their case falls under fourth exception to Section 300 IPC.
17. To bolster their submissions, the appellants have relied on the decisions
of this Court in Puran vs. State of Rajasthan3, Pappu vs. State of M.P.
4,
Kailash vs. State of M.P.
5, Vadla Chandraiah vs. State of A.P.
6 and
Sandhya Jadhav (Smt.) vs. State of Maharashtra7.
18. Per contra, the respondent-State has argued that the appellants had the
motive for killing Dile Ram since the consolidation proceedings were pending
3 (1976) 1 SCC 28
4 (2006) 7 SCC 391
5 (2006) 11 SCC 420
6 (2006) 13 SCC 587
7 (2006) 4 SCC 653
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 6 of 25
between the parties, but in the consolidation proceedings, the field was given to
Dile Ram, which enraged the appellants.
19. It was also argued that it was the appellants who were the aggressors.
They are the ones who attacked on the complainant side. PW-2 (Bangal Singh)
(injured eyewitness) in his testimony had stated that the appellants’ lathi
contained an arc shaped iron blade. Hence, it cannot be stated that the injuries
on the person of accused are not explained.
20. The State has argued that the fourth exception to Section 300 of the IPC
is not attracted in the present case considering that it was a shared motive on
the part of the appellants to cause death on the complainant side. Additionally,
on the issue of delay in lodging the FIR by the complainant, the State argues that
the Trial Court has rejected this contention as the delay was well explained by
the complainant side. Thus, the present Appeals need no interference and the
conviction against the appellants be upheld in toto.
21. To bolster its submissions, the State relied on the decisions of this Court
in Pulicherla Nagaraju alias Nagaraja Reddy vs. State of A.P.8 and Abdul
Sayeed vs. State of Madya Pradesh9.
22. The rival submissions now fall for our analysis.
C. ANALYSIS
23. Having heard the learned counsel appearing for the parties and having
gone through the material on record, the only question that falls for our
8 (2006) 11 SCC 444
9 (2010) 10 SCC 259
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 7 of 25
consideration is whether the High Court committed an error in passing the
impugned judgment and order?
24. As the appellants before us seek for interference with the concurrent
findings by two Courts below, this Court generally should be slow in interfering
with the concurrent findings. In Mekala Sivaiah vs. State of Andhra
Pradesh10, this Court observed as follows:
“15. It is well settled by judicial pronouncement that
Article 136 is worded in wide terms and powers conferred
under the said Article are not hedged by any technical
hurdles. This overriding and exceptional power is,
however, to be exercised sparingly and only in furtherance
of cause of justice. Thus, when the judgment under appeal
has resulted in grave miscarriage of justice by some
misapprehension or misreading of evidence or by ignoring
material evidence then this Court is not only empowered
but is well expected to interfere to promote the cause of
justice.
16. It is not the practice of this Court to reappreciate the
evidence for the purpose of examining whether the findings
of fact concurrently arrived at by the trial court and the
High Court are correct or not. It is only in rare and
exceptional cases where there is some manifest illegality or
grave and serious miscarriage of justice on account of
misreading or ignoring material evidence that this Court
would interfere with such finding of fact.”
(Emphasis supplied)
25. The scope of this Court for interference under Article 136 of the
Constitution of India was further explained in Shahaja alias Shahajan Ismail
Mohd. Shaikh vs. State of Maharashtra11
“23. Again, in Balak Ram v. State of U.P. [(1975) 3 SCC
219:1974 SCC (Cri) 837], this Court also held that the
powers of the Supreme Court under Article 136 of the
10 (2022) 8 SCC 253
11 (2023) 12 SCC 558
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 8 of 25
Constitution are wide but in criminal appeals this Court
does not interfere with the concurrent findings of fact
save in exceptional circumstances. In
Arunachalam v. P.S.R. Sadhanantham [(1979) 2 SCC
297:1979 SCC (Cri) 454], this Court, while agreeing with
the views expressed on the aforesaid mentioned decisions
of this Court, has thus stated : (SCC p. 300, para 4)
“4. … The power is plenary in the sense
that there are no words in Article 136 itself
qualifying that power. But, the very nature
of the power has led the court to set limits
to itself within which to exercise such
power. It is now the well-established
practice of this Court to permit the
invocation of the power under Article 136
only in very exceptional circumstances, as
when a question of law of general public
importance arises or a decision shocks the
conscience of the court. But, within the
restrictions imposed by itself, this Court
has the undoubted power to interfere even
with findings of fact, making no distinction
between judgments of acquittal and
conviction, if the High Court, in arriving at
those findings, has acted “perversely or
otherwise improperly”.”
(emphasis supplied)”
24. In Nain Singh v. State of U.P. [(1991) 2 SCC 432:
1991 SCC (Cri) 421] , in which all the aforesaid decisions
as referred to hereinabove were considered and after
considering the aforesaid decisions on the question of
exercise of power under Article 136 of the Constitution
and after agreeing with the views expressed in the
aforesaid decisions, the Court finally laid down the
principle that the evidence adduced by the prosecution
in that decision fell short of the test of reliability and
acceptability and, therefore, was highly unsafe to act
upon it. In State of U.P. v. Babul Nath [(1994) 6 SCC 29:
1994 SCC (Cri) 1585], this Court, while considering the
scope of Article 136 as to when this Court is entitled to
upset the findings of fact, observed as follows : (SCC p.
33, para 5)
“5. At the very outset we may mention that
in an appeal under Article 136 of the
Constitution this Court does not normally
reappraise the evidence by itself and go
into the question of credibility of the
witnesses and the assessment of the
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 9 of 25
evidence by the High Court is accepted by
the Supreme Court as final unless, of
course, the appreciation of evidence and
finding is vitiated by any error of law of
procedure or found contrary to the
principles of natural justice, errors of
record and misreading of the evidence, or
where the conclusions of the High Court
are manifestly perverse and
unsupportable from the evidence on
record.”
25. From the aforesaid decisions of this Court on the
exercise of power of the Supreme Court under Article 136
of the Constitution, the following principles emerge:
25.1. The powers of this Court under Article 136 of the
Constitution are very wide but in criminal appeals this
Court does not interfere with the concurrent findings of
fact save in exceptional circumstances.
25.2. It is open to this Court to interfere with the findings
of fact recorded by the High Court if the High Court
has acted perversely or otherwise improperly.
25.3. It is open to this Court to invoke the power under
Article 136 only in very exceptional circumstances as and
when a question of law of general public importance
arises or a decision shocks the conscience of the Court.
25.4. When the evidence adduced by the
prosecution falls short of the test of reliability and
acceptability and as such it is highly unsafe to act upon
it.
25.5. Where the appreciation of evidence and finding is
vitiated by any error of law of procedure or found contrary
to the principles of natural justice, errors of record and
misreading of the evidence, or where the conclusions of
the High Court are manifestly perverse and
unsupportable from the evidence on record.”
26. The parties in the present matter are close relatives of each other as they
happen to be the descendants of a common ancestor. There was a long-standing
dispute between the rival parties due to the pending land boundary dispute. On
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 10 of 25
the day of the incident, an altercation took place between both the groups as the
appellants had broken the mendh (ridge) between the farmlands of the appellants
and the complainant side. Both the sides inflicted injuries on each other, leading
to the death of Dile Ram and Braham Singh.
27. To prove the guilt of the appellants, the prosecution examined PW-1 (Tejpal
Singh) (complainant and son of deceased Dile Ram), PW-2 (Bangal Singh)
(injured and eyewitness), PW-3 (Mahendra Singh) (eyewitness), PW-4 (Mohan Lal
@ Som) (another eyewitness), PW-5 (Dr. R.K. Singhal) (who conducted
postmortem examination on the dead body of Braham Singh), PW-6 (Constable
Jeet Singh) (who registered the case and prepared chik report of both the cross
cases), PW-7 (Dr. Harish Chandra Dua) (who recorded injuries of the accused
and injured), PW-8 (Sub-Inspector D.C. Yadav) (who started the investigation),
PW-9 (Inspector P.C. Pant) (who completed the investigation), and PW-10 (Dr.
P.S. Chahal) (who conducted postmortem examination on dead body of Dile
Ram).
28. In their statement under Section 313 of the Code of Criminal Procedure,
1973, appellant-Om pal admitted the on-going animosity with the complainant
side and he had accordingly stated that Bangal Singh and others had committed
assaults upon him and in order to carve-out a cross-case against him, they had
nominated appellant-Om Pal, as being an accused, in this matter. AppellantNarendra too tendered identical statement. Appellant-Dharamvir had stated
that since he happens to be a witness in the cross-case pertaining to the present
matter, therefore, he had been nominated as an accused. Both the Courts below
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 11 of 25
while holding the appellants guilty heavily relied on the testimonies of PW-1
(Tejpal Singh) (complainant and son of deceased Dile Ram), PW-2 (Bangal Singh)
(injured and eyewitness), PW-3 (Mahendra Singh) (eyewitness) and PW-4 (Mohan
Lal @ Som) (eyewitness).
29. The Trial Court in its judgement while convicting the appellants held that
from the evidence of PW-2, PW-3 and PW-4, it is clear that the appellants had
initiated the said occurrence and they had been the aggressor. Further, nature
of the injuries as well as the evidence available on record itself proved that the
injuries had been knowingly and intentionally inflicted with due, proper and
sufficient motive and object, while the blades of spades, phawads had been used,
from their sharp contours in order to inflict fatal injuries on the head of both the
deceased persons resulting in their death.
30. The High Court in the impugned judgment too held that the appellants
were the aggressors. It was further held that the complainant side used lathis to
defend themselves only after the assault was initiated from the side of the
appellants who used sharp weapons. Additionally, PW-3 and PW-4, who were
the eyewitnesses, have corroborated the prosecution’s case as narrated by PW2, an injured eyewitness.
31. Since injuries were sustained from both the sides, at the outset, it will be
appropriate to mention the injuries that were found on Dile Ram, Braham Singh
and Bangal Singh, and appellants - Om Pal, Narendra and Inchha Ram by PW7 (Dr. Harish Chandra Dua) who prepared the injury report.
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 12 of 25
Dile Ram (deceased) received the injuries in nature of
i) Incised wound 13 ½ cm X 2 cm X bone deep over parietal region left
side extending upto right temporal region. Transversely placed.
Margins clear cut, edges well defined, bleeding present.
Braham Singh (deceased) received the following injuries
i) Incised wound 13 cm X 2 cm X bone deep over left parietal region of
skull extending upto left temporal region 9 cm above left ear. Margins
clear cut, edges well defined. Oozing of blood present. Patient
conscious.
ii) Lacerated wound 3 ½ cm X ½ cm X scalp deep over left parietal
region of skull 3 ½ cm behind injury No. (i).
iii) Lacerated wound 2 ½ cm X ½ cm X bone deep over left parietal region
of skull 3 cm behind injury No.(ii)
iv) Lacerated wound 4 cm X ½ cm X scalp deep over right parietaltemporal region of skull 9 cm above right ear.
v) Lacerated wound 3 ½ cm X ½ cm X muscle deep over back of left
forearm 7 cm below left elbow joint.
vi) Lacerated wound 2 cm X ½ cm X muscle deep over back of left elbow
joint.
Bangal Singh (PW-2) received following injuries
i) "Lacerated wound 3 ½ cm X ½ cm X scalp deep over left parietal
region of skull 9 cm above medial ends of eyebrow.
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 13 of 25
ii) Lacerated wound 2 cm X ½ cm X muscle deep in front and middle of
right index finger with traumatic swelling 3 cm X 2 cm. Advised X-ray.
iii) Abrasion ½ cm X ½ cm over back of middle of index finger with
traumatic swelling 2 cm X 1 cm extending upto root. Advised X-ray.
iv) Linear abrasion 6 cm in length over outer aspect of right upper arm 4
cm below the left shoulder.
v) Abrasion 2 cm X 1 cm over back of left forearm, below left elbow joint.
vi) Lacerated wound 3 cm X ½ cm X skin deep over outer aspect of left
arm 14 cm above left elbow joint.
32. From the side of the appellants, Narendra received injuries in the nature
of:
i) Lacerated wound 3 ½ cm X ½ cm X scalp deep over right parietal
region of skull. Oozing of blood present. Advised X-ray.
ii) Incised wound 20 cm X 4/10 cm X muscle deep over posterio aspect
of index finger of right hand. Margins clear cut, edges well defined.
Bleeding present.
iii) Incised wound 1 cm X 2/10 cm X skin deep just below injury No. (ii).
Margins clear cut, edges well defined.
Om Pal received the following injuries:
i) Abraded contusion 11 cm X 2 ½ cm over upper surface of left
shoulder.
ii) Abrasion in an area 3 cm X 2 cm in front of the lateral part of supra
clavicular region left.
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 14 of 25
iii) Contusion 6 cm X 3 cm over lateral aspect left shoulder.
iv) Traumatic swelling 5 cm X 4 cm over medial aspect of left foot.
Inchha Ram received the following injuries:
i) Lacerated wound 7 cm X 1 cm X bone deep over left parietal region 6
cm above left ear. Margins of the wound are irregular and contused.
ii) Lacerated wound 1 ½ cm X ½ cm X scalp deep over right occipital
region of the skull. 3 ½ cm behind injury No. (i).
iii) Lacerated wound 3 ½ cm X ½ cm X scalp deep right side of parietal
region 12 cm above top of the right ear.
iv) Lacerated wound 1 ½ cm X ½ cm X scalp deep over right parietal
region of skull. 8 cm above top of right ear.
v) Traumatic swelling in an area 18 cm X 8 cm over back of right forearm
in upper half of the arm. Advised X-ray.
vi) Contusion 9 cm X 2 ½ cm over posterio lateral aspect of right shoulder
and adjoining part of right arm.
vii) Contusion 3 ½ cm X 2 cm over back right side of scapula region, 14
cm below right shoulder.
viii) Contusion 6 cm X 2 cm over back of left arm 10 cm above left elbow
joint.
ix) Abrasion 12 cm X 1 cm over posterio medial aspect of left forearm just
below elbow joint.
x) Lacerated wound 3 ½ cm X ½ cm X skin deep over back of thigh just
below the gluteal region.
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 15 of 25
OCULAR EVIDENCE
33. The present case before us is not the one based on circumstantial
evidence, but is based on ocular evidence. Time and again this Court has held
that ocular evidence is the best evidence unless there are reasons to doubt it.
This Court in Shahaja alias Shahajan Ismail Mohd. Shaikh (supra) held
thus:
“30. To put it simply, in assessing the value of the evidence
of the eyewitnesses, two principal considerations are
whether, in the circumstances of the case, it is possible to
believe their presence at the scene of occurrence or in such
situations as would make it possible for them to witness
the facts deposed to by them and secondly, whether there
is anything inherently improbable or unreliable in their
evidence. In respect of both these considerations, the
circumstances either elicited from those witnesses
themselves or established by other evidence tending to
improbabilise their presence or to discredit the veracity of
their statements, will have a bearing upon the value which
a court would attach to their evidence. Although in cases
where the plea of the accused is a mere denial, yet the
evidence of the prosecution witnesses has to be examined
on its own merits, where the accused raise a definite plea
or puts forward a positive case which is inconsistent with
that of the prosecution, the nature of such plea or case
and the probabilities in respect of it will also have to be
taken into account while assessing the value of the
prosecution evidence.
31. There is nothing palpable or glaring in the evidence of
the two eyewitnesses on the basis of which we can take the
view that they are not true or reliable eyewitnesses. Few
contradictions in the form of omissions here or there is not
sufficient to discard the entire evidence of the
eyewitnesses.”
(Emphasis supplied)
34. Coming to the testimony of PW-2 (Bangal Singh), an injured eyewitness.
He stated that on the day of the incident his grandfather Dile Ram and uncle
Braham Singh were working in the sugarcane field when at about 11:00 A.M.,
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 16 of 25
Molhar and Dharamvir damaged the mendh (ridge) of the field to which Dile Ram
objected to, and Molhar and Dharamvir started hurling abuses. Thereafter,
Molhar and Dharamvir called other accused Kantu, Inchha Ram, Narendra, Om
Pal, Pehlu (since deceased) and Ranvir. He had further stated that Dharamvir
and Inchha Ram were armed with spades, while the other accused were armed
with lathis. It is further stated that both the deceased persons and PW-2 were
assaulted with dangerous weapons. The witness further stated that at the time
of incident PW-3 and PW-4 also arrived at the spot.
35. It is settled that the testimony of an injured eyewitness is accorded a
special status in law. As being a stamped witness, his presence cannot be
doubted. The testimony of an injured eyewitness has its own relevancy as he has
sustained injuries at the time and place of occurrence and this lends support to
his testimony that he was present during the occurrence. Thus, the testimony of
the injured eyewitness should be generally given due importance unless there
are glaring contradictions.
36. While dealing with the importance of the injured eyewitness testimony,
this Court in Jarnail Singh & Ors. vs. State of Punjab12 held as under
“28. Darshan Singh (PW 4) was an injured witness. He had
been examined by the doctor. His testimony could not be
brushed aside lightly. He had given full details of the
incident as he was present at the time when the assailants
reached the tubewell. In Shivalingappa
Kallayanappa v. State of Karnataka [1994 Supp (3) SCC
235 : 1994 SCC (Cri) 1694] this Court has held that the
deposition of the injured witness should be relied upon
unless there are strong grounds for rejection of his
evidence on the basis of major contradictions and
discrepancies, for the reason that his presence on the
12 (2009) 9 SCC 719
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 17 of 25
scene stands established in case it is proved that he
suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 :
2004 SCC (Cri) 2021] a similar view has been reiterated
observing that the testimony of a stamped witness has its
own relevance and efficacy. The fact that the witness
sustained injuries at the time and place of occurrence,
lends support to his testimony that he was present during
the occurrence. In case the injured witness is subjected to
lengthy cross-examination and nothing can be elicited to
discard his testimony, it should be relied upon
(vide Krishan v. State of Haryana [(2006) 12 SCC 459 :
(2007) 2 SCC (Cri) 214] ). Thus, we are of the considered
opinion that evidence of Darshan Singh (PW 4) has rightly
been relied upon by the courts below.”
(Emphasis supplied)
37. In Abdul Sayeed (supra), this Court explained that injury to the witness
is an inbuilt guarantee of his presence at the scene of the crime and because the
witness will not want to let his actual assailant go unpunished merely to falsely
implicate a third party for the commission of the offence. Thus, deposition by the
injured eyewitness should be relied upon unless there are strong grounds for
rejection of his evidence on the basis of major contradictions and discrepancies
therein.
38. In the present case before us, it is clear from the record that the defence
had not at all challenged the version of PW-2, but on the contrary, the defence
had admitted his presence at the spot of the said occurrence.
39. Keeping in view the principle that an injured eyewitness enjoys a
presumption of truth and the fact that the same is supported by the medical
evidence, testimony of PW-2 does not suffer from any infirmity and has to be
considered while fixing the guilt of the appellants.
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 18 of 25
40. With respect to the testimonies of PW-3 and PW-4 who were the
eyewitnesses, it has been revealed that they were taking their respective bullockcarts loaded with sugarcanes towards the Northern direction on the chak-road,
in order to get the same weighed. While at the time of the incident, both of them
had been in the vicinity of the spot of occurrence and they had accordingly
arrived there upon hearing hue and cry and commotion being raised. PW-4 had
also narrated that he had seen the mendh (ridge) which stood demolished and
cut-off and the middle portion thereof had since been missing from the spot of
its existence.
41. While examining these eyewitnesses, the defence had not at all been
successful in eliciting any contradiction in their respective evidence on the basis
of which their evidence may be according1y discarded and thrown out in this
matter. Thus, there is nothing palpable or glaring in the evidence of the two
eyewitnesses on the basis of which we can be of the view that they are not true
or reliable eyewitnesses.
MOTIVE
42. Motive although is a relevant factor in all criminal cases, it, however, is
not a sine qua non for establishing the guilt of the accused persons. Motive even
in a case which rests on an eyewitness account, lends strength to the
prosecution’s case and fortify the Court in its ultimate conclusion. Thus, the fact
of motive has to be seen in the light of the other cogent evidence available. In
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 19 of 25
the case of Sheo Shankar Singh vs. State of Jharkhand & Anr.13, this Court
observed as under:
“15. The legal position regarding proof of motive as an
essential requirement for bringing home the guilt of the
accused is fairly well settled by a long line of decisions of
this Court. These decisions have made a clear distinction
between cases where the prosecution relies upon
circumstantial evidence on the one hand and those where
it relies upon the testimony of eyewitnesses on the other.
In the former category of cases proof of motive is given the
importance it deserves, for proof of a motive itself
constitutes a link in the chain of circumstances upon
which the prosecution may rely. Proof of motive, however,
recedes into the background in cases where the
prosecution relies upon an eyewitness account of the
occurrence. That is because if the court upon a proper
appraisal of the deposition of the eyewitnesses comes to
the conclusion that the version given by them is credible,
absence of evidence to prove the motive is rendered
inconsequential. Conversely, even if the prosecution
succeeds in establishing a strong motive for the
commission of the offence, but the evidence of the
eyewitnesses is found unreliable or unworthy of credit,
existence of a motive does not by itself provide a safe basis
for convicting the accused. That does not, however, mean
that proof of motive even in a case which rests on an
eyewitness account does not lend strength to the
prosecution case or fortify the court in its ultimate
conclusion. Proof of motive in such a situation certainly
helps the prosecution and supports the eyewitnesses.
See Shivaji Genu Mohite v. State of Maharashtra [(1973) 3
SCC 219 : 1973 SCC (Cri) 214] , Hari Shanker v. State of
U.P. [(1996) 9 SCC 40 : 1996 SCC (Cri) 913] and State of
U.P. v. Kishanpal [(2008) 16 SCC 73 : (2010) 4 SCC (Cri)
182].”
43. In the present case, the question is what actually drove the appellants to
commit this double murder after forming an unlawful assembly. According to
the prosecution, Dile Ram had asked Molhar and Dharamvir to desist from
mendh (ridge) of his field, whereupon Molhar hurled abuses and then called upon
13 (2011) 3 SCC 654
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 20 of 25
the other appellants on the spot and committed assaults upon the complainant
party with lathis, spades, phawadas, which they had already carried with
themselves. Also, the fact of a prior enmity on account of the boundary dispute
clearly establishes the motive for the commission of the offence.
PRESENT CASE DOES NOT FALL UNDER THE FOURTH EXCEPTION TO
SECTION 300 OF THE IPC
44. Now let us come to the contentions raised by the appellants. One of the
main arguments from the side of the appellants was that since it was a case of
free fight where injuries were received on the side of the appellants as well and
considering there was no premeditation from their side, the case would fall under
the fourth exception to Section 300 of the IPC. We, however, are not convinced
with this argument in view of the law laid down by this Court in Pulicherla
Nagaraju alias Nagaraja Reddy (supra) wherein it was held:
“29. Therefore, the court should proceed to decide the
pivotal question of intention, with care and caution, as
that will decide whether the case falls under Section 302
or 304 Part I or 304 Part II. Many petty or insignificant
matters — plucking of a fruit, straying of cattle, quarrel of
children, utterance of a rude word or even an objectionable
glance, may lead to altercations and group clashes
culminating in deaths. Usual motives like revenge, greed,
jealousy or suspicion may be totally absent in such cases.
There may be no intention. There may be no
premeditation. In fact, there may not even be criminality.
At the other end of the spectrum, there may be cases of
murder where the accused attempts to avoid the penalty
for murder by attempting to put forth a case that there was
no intention to cause death. It is for the courts to ensure
that the cases of murder punishable under Section 302,
are not converted into offences punishable under Section
304 Part I/II, or cases of culpable homicide not amounting
to murder, are treated as murder punishable under
Section 302. The intention to cause death can be gathered
generally from a combination of a few or several of the
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 21 of 25
following, among other, circumstances: (i) nature of the
weapon used; (ii) whether the weapon was carried by the
accused or was picked up from the spot; (iii) whether the
blow is aimed at a vital part of the body; (iv) the amount of
force employed in causing injury; (v) whether the act was
in the course of sudden quarrel or sudden fight or free for
all fight; (vi) whether the incident occurs by chance or
whether there was any premeditation; (vii) whether there
was any prior enmity or whether the deceased was a
stranger; (viii) whether there was any grave and sudden
provocation, and if so, the cause for such provocation; (ix)
whether it was in the heat of passion; (x) whether the
person inflicting the injury has taken undue advantage or
has acted in a cruel and unusual manner; (xi) whether the
accused dealt a single blow or several blows. The above list
of circumstances is, of course, not exhaustive and there
may be several other special circumstances with reference
to individual cases which may throw light on the question
of intention. Be that as it may.”
(Emphasis supplied)
45. From the medical evidence on record, it stands established that the death
of both the deceased persons was the result of ante-mortem injuries. The nature
and extent of these injuries, coupled with the surrounding circumstances, leave
no doubt that they were intentionally inflicted. The use of the sharp edges of
spades, phawadas to deliver fatal blows on the heads of the deceased
demonstrates that the assailants acted with a clear motive and object of
permanently eliminating them, thereby committing their murder. Thus, the
circumstances to bring the case under the fourth exception to Section 300 of the
IPC do not exist.
DELAY IN FILING OF FIR IS NOT FATAL TO THE CASE OF THE
PROSECUTION
46. The issue of delay in the filing of the FIR from the side of the complainant
came up during the hearing. It was argued that the cross FIR was lodged on
23.05.1988 which is after three days of the incident. Thus, according to them,
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 22 of 25
the second FIR was merely an afterthought of the first FIR which was lodged by
the appellants. This contention has been dealt by both the Courts below holding
that the delay was well explained by PW-1, who is the son of deceased Dile Ram.
It is a settled position that delay in filing of the FIR cannot be considered to be
fatal to the case of the prosecution when there is direct evidence and when the
delay in filing the FIR is well explained. This Court in the case of State of H.P.
vs. Gian Chand 14 observed that:
“12. Delay in lodging the FIR cannot be used as a
ritualistic formula for doubting the prosecution case and
discarding the same solely on the ground of delay in
lodging the first information report. Delay has the effect of
putting the court on its guard to search if any explanation
has been offered for the delay, and if offered, whether it is
satisfactory or not. If the prosecution fails to satisfactorily
explain the delay and there is a possibility of
embellishment in the prosecution version on account of
such delay, the delay would be fatal to the prosecution.
However, if the delay is explained to the satisfaction of the
court, the delay cannot by itself be a ground for
disbelieving and discarding the entire prosecution….”
(Emphasis supplied)
47. Furthermore, in the case of Raghbir Singh vs. State of Haryana15, this
Court observed thus:
“11. With regard to the delay in filing the FIR, both the
courts have found that there was no delay in filing the FIR.
The trial court found that the rushing of the victim to the
hospital to save his life instead of first going to the police
station was a satisfactory explanation for the delay in
making the complaint. The view was affirmed by the High
Court and we find no reason to interfere with the same.”
(Emphasis supplied)
14 (2001) 6 SCC 71
15 (2000) 9 SCC 88
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 23 of 25
48. In the present case, we will have to consider whether there was a probable
explanation from the side of PW-1 for the delay in the lodging of the FIR. From
the statement of PW-1, it is clear that on his coming back from Muzaffarnagar,
he took his injured father (Dile Ram), injured uncle (Braham Singh), and nephew
to the hospital in Chandigarh and after he came back from Chandigarh on
23.05.1988, he lodged the FIR. The present explanation, according to us, is
probable and natural considering the facts and circumstances of the case.
NON- RECOVERY OF THE WEAPONS IS NOT FATAL TO THE CASE OF THE
PROSECUTION
49. Another contention raised by the appellants was that the weapons used
during the incident were never recovered from the site. However, this Court has
many a times reiterated that non-recovery of the weapons cannot be considered
fatal to the case of the prosecution if there is consistent medical and ocular
evidence. This Court in the case State of Rajasthan vs. Arjun Singh & Ors.16
held as under:
“18. As rightly pointed out by the learned Additional
Advocate General appearing for the State that mere nonrecovery of pistol or cartridge does not detract the case of
the prosecution where clinching and direct evidence is
acceptable. Likewise, absence of evidence regarding
recovery of used pellets, bloodstained clothes, etc. cannot
be taken or construed as no such occurrence had taken
place. As a matter of fact, we have already pointed out that
the gunshot injuries tallied with medical evidence. It is also
seen that Raghuraj Singh and Himmat Raj Singh, who had
died, received 8 and 7 gunshot wounds respectively while
Raj Singh (PW 2) also received 8 gunshots scattered in
front of left thigh. All these injuries have been noted by the
doctor (PW 1) in his reports, Exts. P-1 to P-4.”
(Emphasis supplied)
16 (2011) 9 SCC 115
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 24 of 25
50. Also in Nankaunoo vs. State of Uttar Pradesh17, this Court held that
where in light of unimpeachable oral evidence is corroborated by the medical
evidence, non-recovery of murder weapon does not materially affect the case of
the prosecution. Any omission on the part of the investigating officer cannot go
against the prosecution’s case. Story of the prosecution is to be examined dehors
such omission by the investigating agency. Otherwise, it would shake the
confidence of the people not merely in the law enforcing agency but also in the
administration of justice.
D. CONCLUSION
51. From the above discussion, there remains no doubt in our minds that the
present appellants in furtherance of their common intention formed an unlawful
assembly. Inncha and Dharamvir stood armed with sharp edged deadly weapons
committed the murder of Braham Singh and Dile Ram, while in order to achieve
their common intention, they had also inflicted such injuries on the physical
person of Bangal Singh knowing fully well that had Bangal Singh died on account
of the said injuries they ought to have been held guilty of causing his murder in
this matter.
52. Consequently, the Appeals, being sans merit, stand dismissed. As we have
dismissed the Appeals, the appellants shall surrender to custody forthwith and
it will be the duty of the Trial Court to see that they are taken into custody. The
bail bonds stand cancelled accordingly.
17 (2016) 3 SCC 317
CRIMINAL APPEAL NO.1624 OF 2011 ETC. Page 25 of 25
53. We shall further clarify that nothing mentioned above shall preclude the
appellants from making an application for remission in accordance with law and
the applicable policy of the State Government. In the event, such an application
is preferred, the same shall be considered by the competent authority on its own
merits, strictly in terms of the available policy of the State Government.
………………………………………J.
(SANJAY KAROL)
………………………………………J.
(PRASHANT KUMAR MISHRA)
NEW DELHI;
OCTOBER 28, 2025
