Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 65 of 2008
Hiralal Pandey and Ors. …… Appellants
Versus
State of U.P. …..
Respondent
J U D G M E N T
A. K. PATNAIK, J.
This is an appeal by way of special leave under Article
136 of the Constitution of India against the judgment and
order dated 06.02.2007 of the Allahabad High Court in
Criminal Appeal No.178 of 1981.
2. The facts very briefly are that on 22.09.1979 at 8.05
p.m. Balbir Singh, the complainant, lodged an FIR
with Police Chowki Dhata, P.S. Khakhreru in District
Fatehpur. The prosecution story as stated in the FIR
was that on 22.09.1979 the complainant wasPage 2
returning home after purchasing crude oil from Khaga
and Raja Ram Singh (his father) and Kunj Behari
Singh were waiting for him at Dhata and he left the oil
at Dhata and the three sat on the Motorcycle No.UTY
3213. Kunj Behari Singh drove the motorcycle and
when they reached near bamboo clumps ahead of
Kanya Pathshala on Dhata-Hinauta Road at about
6.00 P.M., Hira Pandey, Subhash Pandey @ Bodhan
and Surendra Nath Pandey, the three appellants
herein, who were waiting with single barrel gun,
double barrel gun and rifle respectively and cartridge
belts, started firing at them. As soon as Kunj Behari
was shot, the Motorcycle lost balance and he and his
father jumped off from the bike and while his father
ran towards the west into the paddy fields, he ran
towards Harijan Basti. From Dhata end, Sunder Lal
Singh, Hari Prasad Singh, Lakhpat Sonar and Shisuvir
Narain were coming and many other persons were
coming from Kabraha side and on their exhortation,
the appellants ran away to hide in the fields. Raja
Ram and Kunj Behari died at the spot as a result of
2Page 3
the firing. He had lodged a case against two of the
appellants, Subhash and Surendra under Sections
323, 325 and 147 of the Indian Penal Code (for short
‘IPC’) and they had asked him to compromise several
times but he had not compromised and to take revenge
they had fired upon them. The complainant has also
stated in the FIR that his pant got torn while running
to save his life.
3. The FIR was registered. The investigation was
entrusted to Pyare Lal Sharma, S.I. (for short ‘the IO’).
The IO reached the place of occurrence at 7.30 A.M. on
23.09.1979 where the complainant was present. He
recorded the statement of the complainant and wrote
the Panchnamas of the deceased Raja Ram and the
deceased Kunj Behari in the presence of the witnesses
and seized the bodies of the two deceased persons and
sent them for post mortem to the District Hospital
through Constable Jamil Ahmad. He also collected
blood-stained earth and sealed them in containers. He
recorded the statements of Raghupat Singh, Sunder
Lal Singh, Hari Prasad Singh and a few other persons
3Page 4
of the Harijan Basti. The remaining investigation was
completed by S.O. Ram Mohan Ramand a charge-sheet
was filed against the appellants under Section 302
read with 34, IPC.
4. At the trial, the complainant was examined as PW-1,
who fully supported the prosecution case as alleged in
the FIR. Hari Prasad Singh was examined as PW-2
and he also supported the prosecution case as alleged
in the FIR. Dr. Anand Swarup of the District Hospital,
who carried out the post mortem, was examined as PW-
3. He described in details the ante-mortem gun shot
injuries in the chest and abdominal cavity and the
thighs of the deceased Raja Ram and opined that the
cause of his death was due to shock and hemorrhage
as a result of the injuries sustained by him. PW-3 also
described the ante-mortem gun shot injuries on left
side of the chin and below the left ear and the left side
of the neck of the deceased Kunj Behari Singh and
opined that the cause of his death was due to shock
and hemorrhage. Ram Prakash, the constable who
received the complaint at Dhata Chowki of P.S.
4Page 5
Khakheru, was examined as PW-4. The IO was
examined as PW-5 and Jamil Ahmad, the constable,
who carried the dead body for the post mortem, was
examined as PW-6. In defence, the appellants
examined a resident of the Harijan Basti of village
Dhata, Shiv Balak, as DW-1 who stated that he had
heard some voice coming from the road in the south of
his house asking for help and when he walked ahead
in the direction of the voice he saw 6-7 miscreants who
fired twice, but he could not recognise the miscreants
and the appellants were not amongst the miscreants.
The trial court, however, relied upon the evidence of
PW-1 and PW-2 and convicted the appellants under
Section 302 read with Section 34, IPC and after
hearing the parties on the question of sentence,
sentenced them for life imprisonment. The appellants
carried an appeal to the High Court, but the High
Court has affirmed the conviction and the sentence
and has dismissed the appeal.
5. Mr. Vijay Hansaria, learned Senior Counsel appearing
for the appellants, submitted that the trial court and the
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High Court should not have relied on the evidence of PW-1
as admittedly he had previous enmity with the appellants.
He submitted that if PW-1 was the prime target of the
appellants, he would have received some injury as according
to PW-1 all the appellants were armed with fire arms and
cartridges, but as a matter of fact PW-1 has not received a
single injury and this would go to show that PW-1 has
falsely implicated the appellants. He further submitted that
according to the evidence of PW-1, as soon as the
motorcycle lost balance he jumped off from the motorcycle
and ran away from the place of occurrence towards the
Harijan Basti and therefore he could not have seen the
appellant firing on the two deceased persons.
6. Mr. Hansaria submitted that the trial court and the
High Court should not have relied on PW-2, who was a mere
chance witness and was also a witness cited by PW-1 in
support of his complaint against the appellants under
Sections 323, 325 and 147 IPC pending in the Court. He
argued that PW-2 therefore was an interested witness and
his evidence should have been discarded. He submitted
that PW-2 has made material improvements over his
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statement made to the police under Section 161 of the
Cr.P.C. He has stated that Hira and Surendra fired at the
deceased Raja Ram in which case Raja Ram would have had
injuries from at least two gun shots, but according to PW-3,
the Doctor, who carried out the post mortem on the dead
body of Raja Ram, all the injuries on his dead body were
caused by a single gun shot.
7. Mr. Hansaria next submitted that in the FIR, PW-1 has
stated that when the appellants were firing on the deceased
persons from the Dhata end besides Hari Prasad Singh
(PW-2) Sunder Lal Singh, Lakhpat Sonar and Shisuvir
Narain were coming and many other persons were coming
from Kabraha side, but the prosecution has examined only
PW-1 and has not examined the other witnesses. He
submitted that the I.O. (PW-5) has admitted that he had
recorded the statement of Sunder Lal Singh and yet Sunder
Lal Singh has been withheld from the witness box and there
is no explanation whatsoever as to why Sunder Lal Singh
was not examined. He submitted that independent
witnesses have therefore not been examined in support of
the prosecution case though these witnesses were named in
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the FIR. He cited Hem Raj and Others v. State of Haryana
[(2005) 10 SCC 614] in which this Court has held that when
the evidence of alleged eyewitnesses raises serious doubts
on the point of their presence at the time of actual
occurrence, the unexplained omission to examine the
relevant witnesses would assume significance.
8. Mr. Hansaria also pointed out the following lapses in
the prosecution case:
(i) The time of recording of FIR at Dhata Police Chowki
is doubtful, since at the time of writing the report it
was made by pencil which was erased and again
overwritten as per the evidence of PW-4 (Constable
Ram Prakash).
(ii) There is no recovery of empty cartridges from the
place of occurrence, even though both the
eyewitnesses have stated that several gun shots
were fired.
(iii) Injuries on the bodies of the two deceased persons
were not correlated with weapons allegedly
possessed by accused persons.
8Page 9
(iv) The fire arms allegedly used have not been
recovered nor is there any mention of efforts made
to recover the same.
(v) Though blood stained earth was collected and
sealed near the dead body of Kunj Behari; no
serological report has been produced to match the
blood with that of the deceased Kunj Behari.
(vi) As per PW-4, though Darogaji from Police Station,
Khakeru came to the outpost in the night after the
report of the incident has been sent from Chowki,
yet investigation was started only in the morning.
9. Mr. R.K. Das, learned Senior Counsel appearing for the
State, submitted that the presence of PW-1 at the spot of
occurrence is supported by three circumstances: (a) that his
motorcycle was found lying at the spot; (b) that his pant was
torn and (c) DW-1 admitted to have seen the motorcycle
lying on the western side of the road. He submitted that
PW-1 therefore was present at the place of occurrence and
was an eyewitness to the firing. He submitted that PW-2
could not be treated as a chance witness as the incident
took place on the road and only passers-by on the road
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would be witnesses to any such incident which took place
on the road and their evidence could not be brushed aside
on the ground that they are chance witnesses. He cited
Thangaiya v. State of T.N. [(2005) 9 SCC 650] in which this
Court has held that if a murder is committed in a street,
only passers-by will be the witnesses and their evidence
could not be brushed aside or viewed with suspicion on the
ground that they were mere chance witnesses.
10. Mr. Das also cited the decision of this Court in State of
U.P. v. Anil Singh (1988 Supp. (2) SCR 611) for the
proposition that the prosecution version could not be
rejected only on the ground that all the witnesses to the
occurrence have not been examined. He submitted that the
prosecution story thus cannot be discarded merely because
all the witnesses named in the FIR including Sunder Lal
Singh were not examined before the court.
11 Mr. Das submitted that it is true that the fired
cartridges have not been recovered from the place of
occurrence and this may be because the paddy fields
had water and paddy stand up to knee height and it
1Page 11
was impossible to search and collect the fired
cartridges, but the fact remains that the deceased have
died of fire arm injuries. He contended that the trial
court and the High Court have rightly believed the two
eyewitnesses PW-1 and PW-2 considering the fact that
the motive of the appellant was to take revenge against
the complainant and his father for not agreeing to
compromise the complaint case under Sections 323,
325 and 147 of the IPC pending before the court.
12. We may first examine the contention of Mr. Hansaria
that the trial court and the High Court should not
have relied on the evidence of PW-1 and PW-2 who
were interested witnesses and that the prosecution
should have examined the independent witnesses
cited in the FIR, namely, Sunder Lal Singh, Lakhpat
Sonar and Shisuvir Narain, who as per the FIR
shouted at the appellants when they were firing at
the deceased. We have perused the decision of this
Court in Hem Raj and Others v. State of Haryana
(supra) cited by Mr. Hansaria and we find that in the
aforesaid decision this Court has held that non-
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examination of independent witnesses by itself may
not give rise to adverse inference against the
prosecution, but when the evidence of the alleged
eyewitnesses raises serious doubts on the point of
their presence at the time of actual occurrence, the
unexplained omission to examine the independent
witnesses would assume significance. Hence, we will
have to first consider whether the evidence of the two
eyewitnesses PW-1 and PW-2 raises serious doubts
on the point of their presence at the time of actual
occurrence.
13. When we examine the evidence of PW-1 in this light,
we find that he has stated that he had a motorcycle
and a diesel pump set and on the day of the incident
he purchased crude oil from Khaga, which is entered
in his card and he came back to Dhata taking crude
oil at 5.30 P.M. in the evening where he met his
father and Kunj Behari and he kept the oil in a shop
there and Kunj Behari drove the motorcycle from
Dhata and his father and he sat behind him and
when they started from Dhata for their village on the
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motorcycle the incident took place at about 5-10
minutes before 6.00 p.m. He has stated:
“When we reached ahead of Kanya Pathshala
Dhata near bamboo clumps, these three accused
came out bamboo clumps. At that time accused
Subhash was holding a double barrel gun with
cartridge belt on shoulder. Hira Lal Pandey was
having single barrel gun with cartridge belt on
shoulder. Surendra had rifle and also cartridge
belt. When these people came on the road and
saw us going, then the three accused exhorted
that today let them not escape. It was combined
voice of the three. On exhortation all the three
fired almost same time. First Subhash fired, I do
not know whether it hit any body or not. But
Kunj Behari Singh was scared by firing and
Motor Cycle got dis-balanced and came on
western strip of the road. Me and my father
jumped from Motorcycle and ran. But Kunj
Behari fell down along with Motorcycle. Accused
persons were firing continuously. My father
went ran towards paddy field towards west and
I ran towards Harijan Basti in north. Hearing
the fire, Sunder Lal Singh and Hari Prasad Singh
of village Sonari coming on cycles from Dhata
reached there. Lakpat Sonar also reached there.
These people stopped there and shouted at the
accused. I was running and hearing the fire. I
was clearly hearing the sound of fire. Accused
persons ran away on exhortation-lalkara of
witnesses. When I jumped from the motorcycle
and ran, I could not see whether my father or
Kunj Behari was hurt or not because I was
running to save myself. I ran towards village
through Harijan Basti and Canal Side. I shouted
reaching near the village. I returned back at the
spot along with several persons collected there,
and found that Kunj Behari was lying dead by
gun shot on the road and my father was lying
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dead by gun shot in paddy field, while running
my trouser got torned. We people remained for
about an hour at the place of occurrence. From
there I came to Dhata and wrote the report in my
hand writing sitting near the shop of Uma
Shankar and gave that in Data Chowki.”
14. From the aforesaid narration of the incident by PW-1,
it is very clear that he was present at the time of the
occurrence and has seen the appellants with double
barrel gun, single barrel gun and a rifle with
cartridges. He has stated that when the appellants
fired, Kunj Behari, who was driving the motorcycle,
got scared by the firing and the motorcycle got disbalanced and came on the western strip of the road
and he and his father jumped from the motorcycle
and ran but Kunj Behari fell down along with
motorcycle. He has also stated that the appellants
were firing continuously and his father ran towards
paddy field towards west and he ran towards Harijan
Basti towards north. He has also said that after he
returned to the spot he found that Kunj Behari was
lying dead by gun shot on the road and his father
was lying dead by gun shot in paddy field. Moreover,
1Page 15
PW-1 has clearly disclosed that hearing the firing,
Sunder Lal Singh and Hari Prasad Singh (PW-2), who
were coming on cycles from Dhata, reached there and
Lakhpat Sonar also reached there. He has not said
that only Hari Prasad Singh (PW-2) from Dhata
reached there. If PW-1 was really interested in falsely
implicating the appellants in the case with the help of
PW-2, he could have also said that he also saw the
appellants firing at his father and at Kunj Behari and
that only Hari Prasad Singh (PW-2) was coming on
cycle from Dhata and shouted at the appellants and
that Sunder Lal Singh and Lakhpat Sonar, whom he
had named in the FIR, did not reach the spot in time
to be able to witness the incidence. We are, thus, of
the view that the evidence of PW-1 could not have
been doubted by either the trial court or the High
Court.
15. When we examine the evidence of PW-2 Hari Prasad
Singh, we find that he has stated:
“Incident occurred about an year ago. Sun was
about to set at about 6 P.M. in the evening I
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along with fellow Sunder Singh were going from
Dhata to Sonari on our separate cycles. Sunder
Singh is also resident of Sonari. When I reached
near girls school on Dhata-Sonari road, then from
our back, deceased Raja Ram, Kunj Behari and
Balbir P.W.1 crossed us on motorcycle. Kunj
Behari was driving the motorcycle, Raja Ram
and then Balbir were sitting behind him.
After crossing the girls school and when we were
30-40 paces away from Bamboo Kothi, all the
three accused, Surendra, Heera and Subhash,
present in court, came on the road from Bamboo
Kothi. Seeing these persons, all the three
accused gave a Lalkara that they should not go,
and after saying this, three accused fired. At
that time, accused Subhash had a double barrel
gun, Surendra had a rifle and Hira Pandey had
a single barrel gun. Due to fire, motor cycle got
disbalanced. I did not see that the fire hit any
body riding the motorcycle or its driver but I saw
motorcycle getting disbalanced and going
towards left strip of the road. Balbir P.W.1
jumped from that disbalanced motorcycle and
ran towards north in the side we were going.
Raja Ram also got down from motorcycle and ran
towards paddy fields in west. But Kunj Behari
fell there with motorcycle. As soon as the
motorcycle fell, accused Subhash went near Kunj
Behari and fired. Raja Ram fell down in water
filled paddy fields. As Raja Ram tried to get up,
accused Surendra and Hira reached near him
and fired. Kunj Behari and Raja Ram died due
to fire injuries then and there and Balbir ran
away.
I asked accused persons not to fire which could
hit us. Apart from me and Sunder Lal, Lakhpat
Sonar also reached on the place of occurrence
from south side and he also shouted that do not
fire, do not kill (Maaro). Hearing this, accused
persons ran away from the spot.
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After the incident, I stayed for about 30-45
minutes at the spot. During this, Balbir came on
the spot along with 7-8 persons.”
16. The aforesaid testimony of PW-2 supports the
evidence of PW-1 in all material respects. He has
said that due to the firing by the appellants, the
motorcycle got disbalanced and went towards left
strip of the road and PW-1 jumped from the
motorcycle and ran towards north side while Raja
Ram ran towards paddy fields in the west, but Kunj
Behari fell there with the motorcycle. PW-2 has
further said that that as soon as the motorcycle fell,
the appellant Subhash went near Kunj Behari and
fired. He has also said that Raja Ram fell down in the
water-filled paddy fields and when Raja Ram tried to
get up, the appellants Subhash and Hira reached
there and fired while PW-1 ran away. He has also
disclosed that Sunder Lal and Lakhpat also reached
the place of occurrence and shouted along with him
not to fire and hearing this, the appellants ran away
from the spot. He has also said that after the
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incident, PW-1 came on the spot along with 7-8
persons. PW-2 is, therefore, a direct eyewitness to
the firing by the appellants on the two deceased
persons and in the lengthy cross-examination of PW-
2 the defence has not been able to bring to the notice
of the court any material to hold that his evidence is
not reliable. On the other hand, we find, on a reading
of the cross-examination of PW-2, that he has stated
that Kunj Behari had fallen flat and his face was
towards the sky when he was shot and his head was
in the north, one leg in the south and one leg was on
the motorcycle. He has stated that the appellant
Subhash fired at Kunj Behari from the east from a
standing position and at that time the barrel of the
gun of the appellant Subhash was downwards on
Kunj Behari. PW-2 has also stated that there were
four paces distance between the place where Raja
Ram fell in the paddy field and the place from where
the two appellants entered the field and the two
appellants fired on Raja Ram when he tried to get up.
Had PW-2 not seen the occurrence, he could not have
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given such details of the occurrence in the witness
box during the cross-examination. The veracity of
PW-2, in our considered opinion, has been tested in
the cross-examination and his evidence is, thus,
reliable.
17. We do not also think that the evidence of PW-2 could
have been discarded on the ground that he was only
a chance witness. The incident took place when the
deceased were traveling on a motorcycle on the road
and PW-2 was also coming on the same road on his
cycle when he saw the incident. This Court has held
in Thangaiya v. State of T.N. (supra) that if a murder
is committed in a street, only passers-by will be
witnesses and their evidence cannot be brushed aside
or viewed with suspicion on the ground that they
were mere chance witnesses. Moreover, PW-2 has
been named in the FIR as one of the persons who
were coming on a cycle from Dhata side and as one of
the persons who shouted at the appellants not to fire.
In State of U.P. v. Anil Singh (supra), this Court has
held that when a witness figures as an eyewitness in
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the FIR, he cannot be categorized as a chance
witness. Once we accept that PW-1 and PW-2 were
present at the place of occurrence and their evidence
was reliable, the fact that other independent
witnesses named in the FIR, such as Sunder Lal
Singh, have not been examined before the Court,
cannot be a ground for not believing the prosecution
case. In State of U.P. v. Anil Singh (supra), this Court
has held that the prosecution case cannot be doubted
for not examining the witnesses after taking note of
the fact that the public are generally reluctant to
come forward to depose before the Court. We,
therefore, do not find any merit in the submission
made by the learned counsel for the appellants that
the prosecution story should not be believed because
the independent witnesses have not been examined.
18. We have also considered the contention of Mr.
Hansaria that the time of recording of FIR at Dhata
Police Chowki is doubtful as the FIR was first written
by pencil which was erased and again overwritten as
per the evidence of PW-4. We find from the evidence
2Page 21
of PW-4 that although a suggestion was made to him
in cross-examination by the defence that the time of
incident in the chik register as the time of incident
was first written in pencil and thereafter erased and
again written, PW-4 has said that the suggestion is
incorrect. There is no definite evidence before the
Court to come to the conclusion that the time of
incident in the FIR was first written in pencil and was
thereafter erased and again written and that the time
of incident as recorded in the FIR was doubtful.
19. Regarding the contention of Mr. Hansaria that there
was no recovery of empty cartridges, we find that the
IO (PW-5) has admitted during cross-examination by
the defence that no empty cartridge was found from
the passage on which PW-1 ran away from the spot
and he did not find any empty pellet, tikli or cartridge
from the spot where the motorcycle was lying and
where the deceased Kunj Behari was shot. PW-5 has
also not stated that any empty cartridge was
recovered from the paddy field where Raja Ram was
shot, but the fact remains that the deceased Kunj
2Page 22
Behari and Raja Ram were killed by gun shots. Dr.
Anand Swarup (PW-3), who carried out the post
mortem, has described the gun shot wounds of the
deceased Raja Ram as ante mortem injuries in the
chest and abdominal cavity and has opined that the
cause of his death is shock and hemorrhage as a
result of the injuries sustained by him. Mr. Hansaria
is right that according to PW-3 all the injuries on the
deceased Raja Ram were caused by one gun shot,
whereas PW-2 has deposed that both Surendra and
Hira fired at Raja Ram, but it appears only one of
them was able to hit Raja Ram with a bullet because
of which Raja Ram died. PW-3 has similarly
described the injuries on the body of the deceased
Kunj Behari as gun shot injuries in his oval cavity on
the left side of the chin and neck and left shoulder
and has opined that the injuries were sufficient to
normally cause death. Thus, the medical evidence
supports the eyewitness accounts of PW-1 and PW-2.
20. The submission of Mr. Hansaria that injuries on the
body of deceased were not correlated with the
2Page 23
weapons allegedly possessed by the appellants would
have been relevant if the fire arms were recovered
from the appellants and the bullets were also
recovered from the body of the deceased or from the
place of occurrence. Regarding his contention that
serological report has not been produced although
the blood-stained earth was collected and that the
investigation was started not on 22.09.1979 but only
next day in the morning, these are defects in
investigation but such defects cannot be a ground to
disbelieve the prosecution story which has been
proved beyond reasonable doubt through the
evidence of the two eyewitnesses as supported by the
medical evidence. In State of Uttar Pradesh v.
Bhagwant Kishore Joshi (AIR 1964 SC 221), Subba
Rao, J., as he then was, has held that it was
necessary for the accused to throw a reasonable
doubt that the prosecution evidence is such that it
must have been manipulated or shaped by reason of
the irregularity in the matter of investigation, or that
he was prevented by reason of such irregularity from
2Page 24
putting forward his defence or adducing evidence in
support thereof, but where the prosecution evidence
has been held to be true and where the accused had
full say in the matter, the conviction cannot obviously
be set aside on the ground of every irregularity or
illegality in the matter of investigation. In other
words, unless the lapses on the part of the
investigation are such as to cast reasonable doubt
about the prosecution story or seriously prejudice the
defence of the accused, the Court will not set aside
the conviction.
21. We, therefore, do not find any merit in this appeal
and we accordingly dismiss the appeal.
.……………………….J.
(A. K. Patnaik)
………………………..J.
(Swatanter
Kumar)
New Delhi,
17 April, 2012.
2
