Hari Prasad Pandey And Others vs State Of U.P.

Reserved
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 818 of 1985
Hari Prasad Pandey and others
…..Appellants
Versus
State of U.P.
…..Respondent
Counsel for the Appellant : Arun Kumar Tiwari, Ramesh
Chandra, Sheetala Prasad Pandey,
Shiv Ram Dubey
Counsel for the Respondent : A.G.A.
Court No. - 47
HON'BLE J.J. MUNIR, J.
HON'BLE TARUN SAXENA, J.
(Delivered by Hon'ble J.J. Munir, J.)
1. This appeal, though preferred by the eight convicts, who
were tried before the Sessions Judge of Basti in Sessions Trial
No.159 of 1984, and all convicted under Sections 302 read with
Section 149 of the Indian Penal Code, 1860 (for short, 'IPC'), one
alone of them, that is to say, Ramakant, survives to pursue it. The
other seven convicts have died pending appeal at different points
of time. The appeal was ordered to abate on behalf of each of the
seven deceased convicted appellants vide order dated
24.11.2025. The appeal was heard on the said day at the instance
of Ramakant alone.
2. This appeal is directed against the judgment and order of
Mr. K. Narayan, the then Sessions Judge, Basti dated 21.03.1985,
convicting the appellant, along with others, for the offence
punishable under Section 302 read with Section 149 IPC and

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CRLA No. - 818 of 1985
sentencing him to imprisonment for life, besides other counts, in
regard to which term sentences were variously awarded, some to
the deceased-appellants and others to the appellant, as would
hereinafter be detailed.
3. A First Information Report ('FIR' in short) was lodged by
Ram Pragat Pandey son of Nirmal Pandey on 01.04.1984 at 6.30
a.m. regarding an incident, that happened earlier in the day at
6.30 a.m., giving rise to Crime No.49 of 1984, under Sections 147,
148, 149, 307, 324, 323 IPC, Police Station Rudhauli, District
Basti. According to the first informant, elections to the office of
Pradhan of the Village were held, wherein the then sitting
Pradhan Hari Prasad Pandey faced contest from Rammurat
Chaudhary. Shesh Bahadur Chauhan and the informant's family
had openly supported Rammurat Chaudhary and assisted him,
leading the then Village Pradhan Hari Prasad to harbour ill-will
against Shesh Bahadur Chauhan and the informant's family. In
the night intervening 27/28.03.1984, Hari Prasad, Swami Nath,
Deena Nath and Patandeen, burgled in Shesh Bahadur's house,
leading to the registration of an FIR against them on 28.03.1984.
This infuriated the four men last mentioned, making them go after
Shesh Bahadur Chauhan and the informant's family. Harbouring
the aforesaid animosity, in the morning hours of 01.04.1984 at
6.30 a.m., according to the informant, when he and his father had
gone to their chak, located on the northern side of the village, and
were about their task of harvesting, and Shesh Bahadur and his
mother were at their shop near the informant's chak, Hari Prasad
Pandey, Mahipat Pandey, Swami Nath Pandey, Deena Nath
Pandey, Ramakant Pandey, Tara Prasad Pandey, Patandeen
Chauhan and Sadhu Saran arrived there variously armed. Hari
Prasad Pandey was carrying a spear, Mahipat Pandey a Farsa,
Sadhu Saran a country-made pistol, whereas all others were
wielding sticks (lathi-danda). All these men, with a common
object, alighted at Shesh Bahadur's shop, whereupon Hari Prasad

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CRLA No. - 818 of 1985
Pandey exhorted others, saying it with an abuse and pointing to
the deceased Shesh Bahadur, that he is the one, who had
reported them to the Police, asking the others to do him to death.
This led Shesh Bahadur to be struck by fear, and, in
consequence, he called rescue. Shesh Bahadur then made a
dash towards the informant and his companions. The informant
and his companions asked Hari Prasad to desist from the course
of violence, whereupon Hari Prasad assaulted the informant with
the intention to kill.
4. The informant and Shesh Bahadur attempted to escape
towards Mugraha, whereas amongst the informant's companions,
his father and younger brother Ram Shankar Pandey attempted to
run of towards Dasia. The first informant goes on to say that the
informant and Shesh Bahadur were chased by Hari Prasad
Pandey, Mahipat Pandey, Swami Nath Pandey and Patandeen
Chauhan, whereas his father and brother were chased by Deena
Nath Pandey, Ramakant Pandey, Tara Prasad Pandey and Sadhu
Saran. Sadhu Saran was wielding the country-made pistol, who
shot the informant's father in his left lower limb, but he somehow
managed to run on and save his life. On the other hand, Shesh
Bahadur was surrounded by Hari Prasad, Mahipat, Swami Nath
and Patandeen, who assaulted and battered him mercilessly. On
account of the injuries, he was thrown to the ground. The
assailants then dragged the victim to the field of Patandeen.
Shesh Bahadur's mother came over wailing and beseeched the
assailants to spare her son, but the assailants did not yield and
continued to assault Shesh Bahadur with sticks (lathi-danda) and
the spear. Upon hearing the commotion that this incident created,
Seeta Ram son of Mahadev and Badri son of Tittal arrived and
saw the assailants. The assailants, holding out threats, made
good their escape from the place of occurrence. It was reported
that Shesh Bahadur, who had sustained severe injuries and his

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CRLA No. - 818 of 1985
mother, who was also badly injured, were lying on the spot with
the condition of Shesh Bahadur being reported as critical.
5. After registration of the FIR, the Police commenced
investigation. The Investigating Officer proceeded to the site of
crime, and in the presence of witnesses Parmanand and Udairaj,
collected samples of bloodstained earth from Patandeen's field as
well as an unstained sample, both of which were sealed in
separate containers. A memo of collection of these samples was
drawn up and duly signed by witnesses at the spot. The injured,
Smt. Tikura, was sent for her medical examination by the Police
through a memo dated 01.04.1984. She was examined the same
day. The other injured Nirmal Pandey was also forwarded for his
medical examination to the Medical Officer, In-charge, Primary
Health Centre, Rudhauli, under a memo dated 01.04.1984 issued
by the S.H.O., P.S. Rudhauli. He too was examined the same day.
A supplementary medical report was done for him, as advised, on
03.04.1984. The injuries sustained by these two persons would be
spoken of later, during the course of this judgment. Inquest for the
purpose of ascertaining the cause of death, as regards the
deceased Shesh Bahadur, was held on 01.04.1984 with
proceedings commencing at 10:00 hours on the aforesaid date
and ending at 12:30 hours. After the inquest, the dead body was
sent for autopsy. The autopsy was done on 02.04.1984, opining
the cause of death to be shock and haemorrhage, as a result of
ante-mortem injuries. Some sixteen injuries were noticed on the
dead body, details whereof shall be mentioned later in this
judgment.
6. After investigation, the Police filed a charge-sheet against
eight men, all of whom were the appellants here.
7. The learned Chief Judicial Magistrate vide his order dated
24.08.1984, finding that the case was exclusively triable by the
Court of Sessions, committed it to the Sessions for trial and

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CRLA No. - 818 of 1985
directed provision of copies of all police papers for the purpose of
the appellants' defence.
8. Post committal, the case was numbered as Sessions Trial
No. 159 of 1984 and came up for framing of charges before the
learned Sessions Judge, Basti on 01.10.1984. The learned
Sessions Judge framed a charge under Section 307 read with
Section 149 IPC and another under Section 302 read with Section
149 IPC against all the eight appellants. A charge was separately
framed against three appellants, to wit, Hari Prasad, Mahipat and
Sadhu Saran, under Section 148 IPC. Still another charge was
framed against the appellants, Swami Nath, Deena Nath,
Ramakant, Tara Prasad and Patandeen, under Section 147 IPC. A
separate charge was framed jointly against Hari Prasad, Mahipat,
Swami Nath and Patandeen under Section 307 read with Section
34 IPC with regard to the injuries caused to Smt. Tikura. And,
lastly, a charge was jointly framed against Sadhu Saran, Deena
Nath, Ramakant and Tara Prasad under Section 307 read with
Section 34 IPC for the causing of injuries to Nirmal Pandey. All the
charges were read over to the respective appellants, against
whom these were framed. Each of them denied the charges and
claimed trial.
9. The prosecution produced the following witnesses to prove
their case:
1. PW-1 – Nirmal Pandey, an injured eye witness,
2. PW-2 – Smt. Tikura, an injured eye witness and mother
of the deceased,
3. PW-3 – Ram Pragat Pandey, an eye witness,
4. PW-4 – H.C. Tila Mohd. Khan, Reader to C.O., Bansi,
District Basti, who was posted as Head Moharrir, P.S.
Rudhauli at the time of incident and scribed the check FIR,
5. PW-5 – Dr. A.P. Singh, Medical Officer, Sadar Hospital,
Basti, who at that time was posted as an E.M.O., Sadar
Hospital, Basti and examined the injuries of Smt. Tikura,

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CRLA No. - 818 of 1985
6. PW-6 – S.I. Jai Shankar Tripathi, P.S. Dudhara, District
Basti, who commenced investigation of the case on
03.04.1984,
7. PW-7 – Dr. O.P. Pathak, P.H.C. Rudhauli, District Basti,
the then Medical Officer, P.H.C. Rudhauli, District Basti and
examined the injured Nirmal Pandey,
8. PW-8 – S.O. Prem Kumar Rai, S.O. Mahane, District
Basti, the then S.O. Rudhauli, who started investigation
and done other proceedings,
9. PW-9 – S.O. Uma Shankar Dwivedi, S.O. Gambhirpur,
District Azamgarh, the then S.O. P.S. Rudhauli, who
completed investigation and submitted the charge-sheet,
and,
10. PW-10 – Dr. G.N. Prasad, M.O. Sadar Hospital, Basti,
who conducted postmortem of the deceased Shesh
Bahadur.
10. The following documentary evidence and materials were
produced by the prosecution to establish their case:
Sr.
No.
Exhibit No. Exhibited documents with brief particulars
1 Ex. Ka-1 Written report dated 01.04.1984 lodged with the Police
Station Rudhauli, District Basti, proved by PW-3, Ram
Pragat Pandey
2 Ex. Ka-2 Check FIR dated 01.04.1984, proved by PW-4, H.C.
Tila Mohd. Khan
3 Ex. Ka-3 Carbon Copy of GD Entry No.12 Time 7.30 dated
01.04.1984, proved by PW-4, H.C. Tila Mohd. Khan
4 Ex. Ka-4 Copy of GD Entry No.14 Time 10.00 dated 01.04.1984,
by which Section 302 IPC added upon death of Shesh
Bahadur, proved by PW-4, H.C. Tila Mohd. Khan
5 Ex. Ka-5 Injury report of Smt. Tikura dated 01.04.1984, proved
by PW-5, Dr. A.P. Singh
6 Ex. Ka-6 Injury report of Nirmal Pandey dated 01.04.1984,
proved by PW-7, Dr. O.P. Pathak
7 Ex. Ka-7 Inquest report dated 01.04.1984, proved by PW-8,
S.O. Prem Kumar Rai
8 Ex. Ka-8 Naksha Nash dated 01.04.1984, proved by PW-8, S.O.
Prem Kumar Rai
9 Ex. Ka-9 Challan Nash dated 01.04.1984, proved by PW-8, S.O.
Prem Kumar Rai
10 Ex. Ka-10 Letter to the C.M.O. dated 01.04.1984 to submit the
report, proved by PW-8, S.O. Prem Kumar Rai
11 Ex. Ka-11 Letter to the C.M.O. dated 01.04.1984 for postmortem
of the deceased Shesh Bahadur, proved by PW-8,
S.O. Prem Kumar Rai
12 Ex. Ka-12 Letter to the Reserve Inspector dated 01.04.1984,
proved by PW-8, S.O. Prem Kumar Rai

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CRLA No. - 818 of 1985
13 Ex. Ka-13 Letter to the C.M.O. dated 01.04.1984 forwarding
belongings found on the deceased person, proved by
PW-8, S.O. Prem Kumar Rai
14 Ex. Ka-14 Site Plan of the place of occurrence dated 01.04.1984,
proved by PW-8, S.O. Prem Kumar Rai
15 Ex. Ka-15 Memo collecting bloodstained and unstained earth
from the spot dated 01.04.1984, proved by PW-8, S.O.
Prem Kumar Rai
16 Ex. Ka-16 Charge sheet dated 16.04.1984, proved by PW-9, S.O.
Uma Shankar Dwivedi
17 Ex. Ka-17 Postmortem Report of the deceased Shesh Bahadur,
dated 02.04.1984, proved by PW-10, Dr. G.N. Prasad
18 Ex. Ka-18 Copy of the X-ray report of Nirmal Pandey dated
03.04.1984, proved by PW-10, Dr. G.N. Prasad
19 Material Ex. 1
and 2
Containers containing bloodstained and unstained
earth, proved by PW-8, S.O. Prem Kumar Rai
20 Material Ex. 2 X-ray plate of Nirmal Pandey, proved by PW-10, Dr.
G.N. Prasad
11. Upon conclusion of the prosecution evidence, statements of
the appellants were recorded under Section 313 Cr.P.C.
12. The Trial Court vide judgment and order dated 21.03.1985
has convicted and sentenced the appellants in the following
manner:
Sr.
No.
Accused Section Sentence
1 All accused 302 read
with 149 IPC
Life Imprisonment
2 All accused 323 read
with 149 IPC
One year rigorous
imprisonment
3 Sadhu Saran 324 IPC One year rigorous
imprisonment
4 Hari Prasad, Mahipat,
Swami Nath, Rama Kant,
Tara Prasad, Patan Den
and Dina Nath
324 read
with 149 IPC
One year rigorous
imprisonment
5 Hari Prasad, Mahipat and
Sadhu Saran
148 IPC Two years rigorous
imprisonment
6 Swami Nath, Rama Kant,
Tara Prasad, Patan Deen
and Deena Nath
147 IPC One year rigorous
imprisonment
13. Aggrieved, the present criminal appeal has been preferred
by the appellants.
14. Heard Mr. Arun Kumar Tiwari, learned Counsel appearing
on behalf of the sole surviving appellant, Ramakant, Mr. Shashi

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CRLA No. - 818 of 1985
Shekhar Tiwari, learned Additional Government Advocate
appearing on behalf of the State and perused the record.
The date, time and place of occurrence
15. The date and time of occurrence, according to the FIR
st
lodged by Ram Pragat Pandey, PW-3, is 1 April, 1984 at 6.30
a.m. It all began at the tea-shop of the deceased and his mother,
located close to the field of the first informant’s father, where there
was a pulse crop (arhar) standing that the first informant and his
father Nirmal Pandey, PW-1 had just commenced harvesting. The
deceased appellants, including the appellant Ramakant Pandey,
arrived at the deceased's tea-shop on the date and time already
said, armed with weapons – some deadly and the others not so
deadly. Those, who alighted at the deceased’s tea-shop, were
Mahipat, Hari Prasad, Sadhu Saran, Swami Nath, Deena Nath,
Patandeen, Ramakant (the appellant) and Tara Prasad. According
to the first informant, the assailants had come over with a
premeditated intention to kill, and, the FIR discloses a brief
background of the motive.
16. Upon arrival at the deceased’s tea-shop, Hari Prasad
Pandey, one of the deceased appellants, is reported to have said,
referring to the deceased Shesh Bahaduri, that he is the one who
reports them (to the Police), let us finish him off. Shesh Bahadur
was terrified and ran towards the field of the informant’s father.
The informant, his father and brother, intervened to save the
situation, but that turned Hari Prasad and his companions
belligerent and they charged at the informant, his father and
brother too with an intent to kill. At this stage, Shesh Bahadur is
said to have taken to his heels in the direction of Village Mugraha
together with the informant, whereas the informant’s father and
his younger brother Ram Shankar Pandey sprinted towards
Village Dasia. The informant and Shesh Bahadur were given a
chase by Mahipat, Hari Prasad, Patandeen and Swami Nath,

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CRLA No. - 818 of 1985
whereas the informant’s father and brother were chased by Sadhu
Saran, Deena Nath, Ramakant and Tara Prasad. Sadhu Saran is
said to have been armed with a country-made pistol, which he
employed to shoot the informant’s father in his left lower limb. The
informant’s father, however, made a dash to save his life. Shesh
Bahadur was surrounded by Hari Prasad, Mahipat, Swami Nath
and Patandeen, who severely assaulted him. In consequence of
the injuries, he fell down. He was picked up and carried to the
field of Patandeen. At this point of time, Shesh Bahadur’s mother,
Tikura, PW-2, reached there and beseeched the appellants to
spare her son’s life. She too was severely assaulted, employing
sticks (lathi-danda) and spear.
17. It would, thus, be seen that the earliest account of the
occurrence shows the assailants alight at the deceased’s tea-
shop at 6.30 a.m., an unlawful assembly of eight men, all armed.
The respective arms, that the assailants wielded, have already
been mentioned in this judgment. Hari Prasad Pandey exhorted
others to kill Shesh Bahadur, whereupon he called rescue.
Whatever intervention, the first informant, his father and brother
made, led the assailants to attack them too. At this juncture,
Shesh Bahadur and the informant went in one direction, whereas
the informant’s father and younger brother went in another
direction, both groups of two running to save their lives. The
assailants too split into two assailant groups. Thus, the
occurrence took place slightly after 6.30 a.m. at two different
places, away from the deceased’s tea-shop. This is the earliest
description of the occurrence that figures in the FIR, that was
lodged on 01.04.1984 at 7.30 a.m., that is to say, within an hour of
all of it happening. The distance of the police station is nine
kilometers. The FIR is quite prompt.
18. In his testimony, PW-1 has given out the time and place of
st
occurrence as 1 April, 1984 at 6.30 a.m. According to him, it was

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CRLA No. - 818 of 1985
a Sunday. This witness says that he and his son Ram Pragat had
just begun harvesting their pulse crop (arhar), when the eight
members of the unlawful assembly, to wit, Mahipat, Hari Prasad,
Sadhu Saran, Swami Nath, Deena Nath, Patandeen, Ramakant
and Tara Prasad, well armed, alighted at Shesh Bahadur’s tea-
shop, which this witness says is located at a distance of 100
paces from his field at the north-west corner. The assailants
surrounded the victim’s shop. There was commotion and he and
his son Ram Pragat moved in to rescue Shesh Bahadur. When
they reached there, the assailants were threatening him with
death. The witness says that he and his son dissuaded the
appellants from their violent course of action, but they would not
relent. At that point of time, the witness’s other son Ram Shankar
also arrived. They were engaging with the assailants to talk them
out of it, when Shesh Bahadur took to his heels in the direction of
Village Mugraha. The witness’s son Ram Pragat also sprinted with
him. At that point of time, this witness and his other son Ram
Shankar also ran in the eastern direction. The deceased Shesh
Bahadur and the witness’s son Ram Pragat were chased by the
four assailants, Mahipat, Hari Prasad, Patandeen and Swami
Nath, whereas Sadhu Saran, Ramakant, Deena Nath and Tara
Prasad went after this witness and his son Ram Shankar. This
witness says that Sadhu Saran ambushed him by appearing
suddenly in front of him from behind a hut and shot him in his left
leg. This witness, however, continued to run for his life. His son
made off to the south. At this point, the witness says that he
turned around to see his pursuers, but the assailants had
returned. The witness, however, saw that Shesh Bahadur was
being assaulted by Hari Prasad, employing a spear, Mahipat a
farsa, whereas Swami Nath and Patandeen were assaulting the
deceased with their sticks (lathi). The witness says that the
deceased’s mother had also reached by his side. The witness,

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CRLA No. - 818 of 1985
however, continued his journey and reached Dasia Padao Motor
Stand. From there, he proceeded to the police station.
19. Smt. Tikura, PW-2, is an injured witness and mother of the
deceased Shesh Bahadur. She has said in her dock evidence that
on the fateful day, the time was about sunrise. She and her son
Shesh Bahadur were present at their tea-shop. Hari Prasad,
Mahipat, Sadhu Saran, Swami Nath, Deena Nath, Ramakant,
Tara Prasad and Patandeen arrived there. According to this
witness, these men were variously armed, which she has
described with precision. Hari Prasad is said to have accosted
Shesh Bahadur with words that Shesh Bahadur had moved an
application against them and exhorted his companions to catch
hold off Shesh Bahadur and do him to death. In the meantime,
Nirmal, Ram Pragat and Ram Pragat's brother arrived. At this
point of time, Hari Prasad, Mahipat, Swami Nath and Patandeen,
chased Shesh Bahadur, whereas Sadhu Saran, Deena Nath,
Rama Kant and Tara Prasad went after Nirmal Pandey. The
witness says that she was going after Shesh Bahadur, when she
heard a 'thud'. The faction of the appellants, who had gone after
Shesh Bahadur, caught hold off him in Hanif's chak, and battering
him, brought him to Patandeen's chak. She begged for her son's
life, whereupon Hari Prasad struck her with his spear in the left
lower limb whereas Mahipat struck her on the head with his farsa
using the blunt end. Patandeen and Swami Nath assaulted her
with lathi, also delivering blows to her feet. She was then moved
to a trench to the south of the road and pushed inside it. She lost
consciousness only to regain it the following day in the hospital.
There is a pointed question put to this witness in her cross-
examination that when she reached Patandeen's field, Shesh
Bahadur was lying there beaten up. To this, she answered in the
negative and added that when she saw it all, the appellants were
assaulting Shesh Bahadur and battering him in Hanif's field. They
were moving towards Patandeen's field.

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CRLA No. - 818 of 1985
20. The third eye-witness is PW-3, Ram Pragat Pandey. He has
said in his examination-in-chief that at 6 o'clock in the morning of
the fateful day, his father Nirmal was harvesting his pulse crop. At
that time, he heard a call for rescue from Shesh Bahadur's shop.
He and his father rushed towards the shop. When they reached
there, Hari Prasad was pointing to Shesh Bahadur and telling his
companions, after uttering an abuse, that this man has accused
us of theft. Let us kill him. Hari Prasad is said to have been armed
with a spear and Sadhu Saran with a country-made pistol. The
other appellants were carrying lathi. The witness says that he and
his father intervened saying that this was all wrong and while they
were talking, Shesh Bahadur took to his heels in the direction of
Village Mugraha. Thereupon, the appellants exhorted each other
to attack. The witness also took to his heels. He says that he
trailed Shesh Bahadur through some distance and then overtook
him. He has specifically said that Hari Prasad, Mahipat, Swami
Nath and Patandeen were chasing Shesh Bahadur. His father had
simultaneously ran towards Village Dasia. He was chased by
Deena Nath, Tara Prasad, Sadhu Saran and Ramakant. PW-3
says that when he reached close to the pond, he heard a shot
ring. He turned around to see and found his father holding his leg.
All the four appellants, who had chased his father, were behind
him. The witness also says that when he was at a distance of
about 25 meters west of Hanif's field, he turned around to look
and saw that Hari Prasad, Mahipat, Patandeen and Swami Nath
were battering Shesh Bahadur in Hanif's field. The appellants
threw Shesh Bahadur to the ground and carried him to
Patandeen's field and beat him there too. At that point, Smt.
Tikura reached there and beseeched the appellants to spare her
son's life. Thereupon, these appellants assaulted Tikura as well.
21. Upon an appraisal of the testimony of these three
witnesses, PW-1, PW-2 and PW-3, who are said to be eye-
witnesses of the occurrence, there is a broad consensus between

13
CRLA No. - 818 of 1985
them on the date, time and place of occurrence. All the three
witnesses say that the occurrence took place at about sunrise
with PW-1 and PW-3 mentioning the time as 6.30 a.m. PW-1 has
st
very specifically disclosed the date as 1 April, 1984. PW-2, Smt.
Tikura, who is an illiterate woman, has mentioned the time as that
of sunrise. She has not spoken about the time of the clock, which
presumably she was not familiar with. She is apparently a rustic
woman, who way back in 1984, might not have been very familiar
with the hours and minutes of the clock. Broadly, all the witnesses
are ad idem about the time of occurrence. There is hardly any
issue about the date.
22. The place of occurrence in this case is not a single point. It
apparently started with the arrival of the eight appellants at the
deceased's tea-shop at sunrise. The appellants were all variously
armed. All the appellants are again broadly consistent that upon
arrival of the appellants, they disclosed their evil intention to kill
Shesh Bahadur. There was a pause in the event with the arrival of
PW-1 and PW-3 and the other son of PW-1, Ram Shankar
Pandey. These men attempted to intervene and pacify, but this
turned the appellants' hostility against the interveners too. At this
point of time, realizing the peril, Shesh Bahadur ran towards
Village Mugraha in the north to save his life. He was joined in the
run for safety by Ram Pragat, PW-3. At the same time, PW-1,
Nirmal Pandey, sprinted towards Village Dasia, located in the
east. He was joined by his other son Ram Shankar.
23. The eight men, who had arrived at Shesh Bahadur's tea-
shop, were Hari Prasad Pandey, Mahipat Pandey, Swami Nath
Pandey, Deena Nath Pandey, Ramakant Pandey, Tara Prasad
Pandey, Patandeen Chauhan and Sadhu Saran. When Shesh
Bahadur and Ram Pragat ran for safety towards Village Mugraha,
they were pursued by Mahipat, Hari Prasad, Patandeen and
Swami Nath whereas Nirmal Pandey and Ram Shankar, who

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CRLA No. - 818 of 1985
made their flight to the east heading for Dasia, were pursued by
Sadhu Saran, Ramakant, Deena Nath and Tara Prasad. Thus, the
eight appellants were the unlawful assembly of the eight
assailants, who spontaneously divided themselves into two
groups to pursue their victims. The pursuit with division of the
assailants into two groups or factions is the second part of the
event. The third part is the assault to whatever consequence.
Again broadly in consensus, all the three witnesses say that the
pursuers caught up with Shesh Bahadur in Hanif's field and
assaulted him there. The assault began in Hanif's field and the
victim was moved to the adjoining field of Patandeen. There the
assault reached its final blows, doing Shesh Bahadur to death.
Here, the deceased's mother, PW-2, Tikura, had reached and
begged for her son's life. She too was assaulted and pushed into
a trench or ditch. The other party of assailants, who had chased
Nirmal Pandey and his other son Ram Shankar, shot Nirmal
Pandey in his left foot below the knee, as it now appears, with a
country-made pistol and did nothing more.
24. Thus, the assailants did two separate assaults on two
separate groups of victims, comprising two each. Whereas the
party, that went after Shesh Bahadur, killed him, the other that
chased Nirmal Pandey, PW-1, left him with a nominal gunshot
injury in the left foot, below his knee. There is certainly a broad
consensus amongst all the three witnesses about the date, time
and place of occurrence. The variations, to which our attention
was drawn, are not so much about the date, time and place of
occurrence, but about other things, to which we would make
allusion later in this judgment.
The presence of eye-witnesses on the date, time and place of
occurrence
25. It is submitted by Mr. Arun Kumar Tiwari, learned Counsel
for the appellant, that the three eye-witnesses, whose testimony
has been believed by the Trial Judge, never saw anything and

15
CRLA No. - 818 of 1985
have falsely implicated the appellant, including the deceased
appellants in this crime. The false implication has mostly been
credited to PW-1 Nirmal Pandey and PW-3 Ram Pragat, as
admittedly there was animosity between these witnesses, on one
hand, and the appellant, on the other. It is urged that these
witnesses prevailed upon the deceased's mother, PW-2, to falsely
testify, on account of which, later on, on the call of her
conscience, she gave an affidavit before the Court, disowning her
earlier testimony. She was recalled by the Court and she testified
again, demolishing the prosecution case. It is urged with much
vehemence that PW-2 has confessed to the fact that she
sustained the injuries under completely different circumstances, at
a different point of time, and at the hands of unknown assailants.
Learned Counsel for the appellant says that, likewise, PW-1 too
has sustained the nominal injury under completely different
circumstances, time and place, which he has misused to falsely
implicate the appellant.
26. Mr. Shashi Shekhar Tiwari, learned A.G.A., on the other
hand, has refuted the above submissions. He has urged with
much emphasis that the presence of the prosecution witnesses
cannot be doubted. They are natural witnesses, being bhumidhar
of the field, at one corner of which stands the tea-shop, where the
occurrence began. He submits that two of three witnesses, that is
to say, PW-1 and PW-2, have sustained injury in the incident,
which is by no means trivial. Their presence at the spot, therefore,
cannot be doubted. To attribute the injuries sustained by PW-1
and PW-2 to some occurrence, that happened at a different point
of time and elsewhere, is pure conjecture, not supported by any
evidence. It is difficult to objectively accept the fact that PW-1 and
PW-2, who are by no means part of a family, or otherwise staying
together, would both sustain serious injury at the same time in
unrelated incidents, which they would use to offer false testimony
against the appellants. They have obviously been injured,

16
CRLA No. - 818 of 1985
according to Mr. Shashi Shekhar Tiwari, in one incident and that is
the one involving the appellant.
27. We have considered the rival submissions on the point and
carefully scrutinized the evidence.
28. It is true that there is a background of animosity between
PW-1 and PW-3, on one hand, and the appellant, on the other,
including those convicts who are no more, but the fact of
animosity alone would not entitle the appellant to have the
presence of these two witnesses, to wit, PW-1 and PW-2,
doubted. It is true that their testimony is to be viewed with some
circumspection, including that about their presence on the spot,
but if their presence is otherwise well established, corroborated by
other evidence and believable, there is no reason to disregard
their presence or doubt it merely because there was animosity
between the two witnesses and the appellant. A sworn enemy of
another could witness a damning fact or event and truthfully
speak about it against that other. His testimony cannot be
disbelieved on ground of the hostile relationship between the
witness and the accused alone. All that has to be seen is the
dependability of evidence, that would assure the Court of the
witnesses' presence at the spot and the fact of the witnesses
having seen the occurrence.
29. Here, what we find is that what is not disputed on behalf of
the appellant is the fact that the tea-shop owned by the deceased
and his mother, Tikura, stood on one corner of the field, of which
PW-1 Nirmal Pandey was the bhumidhar. It is also not disputed by
anyone that the field had a pulse crop (arhar) ready to harvest.
PW-1 and PW-3 are consistent in their version about the fact that
on the fateful day, at the time of sunrise, when the events
unfolded, they had arrived on their arhar field and just
commenced harvesting. The location of the arhar field, owned by
PW-1, makes this witness and his son PW-3 natural witnesses,

17
CRLA No. - 818 of 1985
given the fact that the tea-shop owned by the deceased, stood at
a corner of this field. The hour of the day, when the occurrence
happened, also lends credibility to the witnesses' presence
because judicial notice may be taken of the fact that fruits of toil in
agriculture are harvested by farmers with the beginning of the day
at dawn. In fact, all important work in fields is done by farmers or
their labourers in the early morning hours. This lends strength to
the inference that PW-1 and PW-3, given the hour of the day,
were present at their field, which stands close to the deceased's
tea-shop, making them natural witnesses.
30. To add to all this is the fact that PW-1, Nirmal Pandey,
sustained a gunshot injury albeit in the lower part of his left foot,
below the knee. The injury, no doubt, is not very serious and the
learned Counsel for the appellant has suggested that it was
sustained under different circumstances, one of which was that
PW-1 was riding along with his son on a bicycle to the police
station to lodge the FIR Ram Pragat was paddling the bicycle,
carrying a country-made pistol. It suddenly went off, injuring
PW-1. A suggestion in this regard was given to this witness in the
concluding part of his testimony during his cross-examination,
which he denied. There is no basis by way of evidence aliunde,
even slight, to infer that PW-1 received the injury sustained by him
under a different set of circumstances.
31. Going by the apparent and logical tenor of the testimony of
PW-1 and those of the other two eye-witnesses, PW-1 sustained
the gunshot wound to his left lower limb in an assault that was
part of the same transaction, which led the deceased to sustain
fatal injuries. If the injury was such that it could have been
received going by the manner of assault, is a matter that we
would soon consider in greater detail. But, broadly speaking, there
is no reason to doubt that the witness (PW-1) did not sustain the

18
CRLA No. - 818 of 1985
injury, upon which he has relied, in the assault mounted by the
appellant, including the deceased co-appellants.
32. Likewise, is the case of the deceased's mother, PW-2. She
too is an eye-witness, who saw the happenings at the tea-shop
and the fatal event at the field of Patandeen. She also witnessed
the assault that began in the adjoining field of Hanif. This witness
too is a natural witness. There is consistent testimony to the effect
that the deceased's tea-shop would open at dawn and his mother
(PW-2) would stay in the shop. There is no reason to disregard
PW-2 as a natural witness, right from the inception or the
unfolding of events. This witness saw the appellant and the seven
others, who are now deceased, arrive at his son's tea-shop,
variously armed. It is but logical that she would have been there at
the shop, when events leading to the fatal consequence began to
unfold. This witness has graphically described the occurrence in
her testimony, which is corroborated by that of the other two
witnesses substantially. There is no reason, therefore, to
disbelieve the presence of this witness at the date, time and place
of occurrence. Also, in the final moments of assault upon her son,
the witness beseeched the appellant and his companions to spare
his life, which led them to severely assault her and cast her away
in a nearby ditch. She lost consciousness, which she regained the
following day in the hospital. The fact that this witness has
received grievous injuries lends credence to the fact that she was
a witness of the final moments of the fatal events, leading to her
son’s death. The presence of this witness, therefore, can hardly
be doubted.
33. This takes us to the third witness, PW-3. His presence at the
shop of the deceased, where the assailants had arrived, is
testified to by the other two witnesses, PW-1 and PW-2. Both
PW-1 and PW-2 are injured witnesses and we have believed their
presence all through the events. Since both these witnesses have

19
CRLA No. - 818 of 1985
vouchsafed the presence of PW-3 at the deceased's shop and
then spoken about this witness, racing along with the deceased
towards Village Mugraha to save himself, the presence of PW-3,
in our opinion, is well established.
34. In view of all these findings, based on the evidence on
record, there is little reason to disbelieve or doubt the presence of
the three eye-witnesses, PW-1, PW-2 and PW-3, at the scene of
crime in all its stretch.
35. The place of occurrence, as already noticed by us, is rather
a spread out of events. It all started at the deceased's shop,
st
where his mother, PW-2, was also present at dawn on the 1
April, 1984. The foremost event was the arrival of the assailants in
a party of eight, variously armed. There was exhortation by one of
them, asking others to do Shesh Bahadur to death, for reason that
he had reported them to the Police in connection with a theft at his
house. Before the assailants could act, PW-1 and PW-3 arrived
from the nearby field and attempted to intervene and save the
situation. This turned the assailants against them as well with as
much belligerence as that harboured against the deceased or
almost approximating to it. The result was that the deceased,
realizing the imminent fatal consequences, took to his heels in the
direction of Village Mugraha. He was joined in the run for dear life
by PW-3, Ram Pragat. Contemporaneously, PW-1, Nirmal
Pandey, Ram Pragat's father, too realized the imminent danger to
his life as did his other son, Ram Shankar, who had also arrived
on the scene. Both these men sprinted in the direction of Village
Dasia, also to save their life. This led the assailants to split into
two groups or factions, one comprising Mahipat, Hari Prasad,
Patandeen and Swami Nath, and other, Sadhu Saran, Ramakant,
Deena Nath and Tara Prasad.
36. Mahipat and his three companions chased Shesh Bahadur
and Ram Pragat, whereas Sadhu Saran and three of his

20
CRLA No. - 818 of 1985
companions, which includes the appellant, went after Nirmal
Pandey and his other son, Ram Shankar. Ram Pragat made good
his escape, whereas Shesh Bahadur was caught by the
assailants in the field of Hanif. The assault commenced there,
whereafter he was moved to Patandeen's own field, where he
received blows from the four assailants, employing the respective
weapons that they wielded, until life ebbed out. It was just before
the fatal blows were delivered, or about time that the assault was
continuing, that the deceased's mother arrived at the scene and
begged for her son's life. She too was assaulted and cast away in
a ditch nearby, making her loose consciousness. The other faction
of assailants, that went after Nirmal Pandey and his other son
Ram Shankar, assaulted in the manner that Sadhu Saran shot
Nirmal Pandey in his left foot, below the knee. After inflicting this
injury, which did not make PW-1 stop, the assailants abandoned
the chase and the assault abated.
37. In the site-plan, the deceased's tea-shop is denoted by the
letter 'A'. The site-plan also shows by identifiable symbols the
route taken by Shesh Bahadur and PW-3 Ram Pragat to run for
their lives in the direction of Village Mugraha. They ran together
until the point denoted by letter 'C' in the site-plan. The letter 'D' in
the site-plan denotes the field of Hanif, where the assailants Hari
Prasad, Mahipat, Swami Nath and Patandeen caught up with
Shesh Bahadur and commenced the assault. By the letter 'E' is
denoted the place where the assailants dragged Shesh Bahadur
and made the final and fatal assault. The letter 'F' in the site-plan
denotes the place where the deceased was lying in a pool of
blood. It was here that PW-2 Tikura was also assaulted and
thrown in the ditch shown by letter 'G'. There is a different symbol
to show the route that Nirmal Pandey and Ram Shankar took in
their race to save their lives. The place where Nirmal Pandey was
shot by Sadhu Saran in his lower limb is shown by letter 'H'. The
letter 'J' shows the place where Sadhu Saran was standing, when

21
CRLA No. - 818 of 1985
he shot Nirmal Pandey with a country-made pistol. The
Investigating Officer has noted the distance between the points
denoted by letters 'H' and 'J' as six paces. The distance between
the deceased's shop and 'H', where Nirmal Pandey was shot, is
noted to be 25 paces. Apparently, PW-1 did not suffer a long
chase before he suffered the assault.
38. The entire spread of the place of assault is apparently not
very large – somewhere, it is a few paces in double digits, and, at
others, a few hundred paces. The place of occurrence, with all its
three important sites, are well established by the consistent
testimony of the three eye-witnesses, PW-1, PW-2 and PW-3, all
of whom are proven to be present at the place of occurrence,
beyond doubt.
The manner of assault
39. The manner of assault has been broadly described. All, that
is required to be now considered about this very relevant fact, are
the details of it and testing it in the face of the appellant's criticism
that the assault happened in a completely different way at the
hands of someone else.
40. As already noticed hereinbefore, on the basis of the eye-
witness account, the assault happened at two different places in
the vicinity of each other, both away from the place where the
assailants first made their reach to the victim. The incident, taken
as a whole, can be traced to the arrival of the assailants, eight in
st
number, at the deceased's tea-shop at 6.30 a.m. on the 1 of
April, 1984. All the witnesses are consistent in their account that
the assailants were armed in the manner that Hari Prasad had on
him a spear (ballam), Mahipat a farsa (battle-axe), Sadhu Saran a
country-made pistol (katta) whereas the remainder five, including
the appellant Ramakant, were armed with sticks (lathi). We have
already noticed earlier how the assault commenced with the

22
CRLA No. - 818 of 1985
deceased and Ram Pragat, PW-3, making a run for their lives in
the direction of Village Mugraha, whereas Nirmal Pandey and his
other son Ram Shankar doing the same for themselves by
sprinting in the direction of Village Dasia. The site-plan would
show that the route of escape for these two pair of men was a
diverging course, one to the east, and the other the north-east.
The places of assault have been identified already with the
pictorial description of it in the site-plan, all that we have found
trustworthy.
41. Now, this takes us to the finer issues of the manner of
assault. The foremost is the assault on the deceased, the
weapons employed and the injuries sustained. We have to
examine these relevant facts because it is urged on behalf of the
appellant and also suggested to the witnesses during their cross-
examination that the deceased suffered an assault by unknown
men much earlier in the morning, along with his mother, while it
was still dark. Though, all the three prosecution witnesses, during
the course of their testimony originally given, have not faltered
about the details of the manner of occurrence much, except may
be in some insignificant and inconsequential details, but PW-2,
the deceased’s mother, threw up a doubt when she gave an
affidavit disowning her dock evidence and had to be recalled by
the Trial Court, describing her rather strangely as DW-1/ PW-2.
We would refer to the value of Tikura’s testimony later on given,
once recalled by the Court, separately. For the moment, we are
concerned about the consistent version of the prosecution
witnesses, including PW-2 as she testified in the first instance and
withstood a searching cross-examination.
42. PW-2 has described the assault in her examination-in-chief
as follows:
,
“सवेरे दिन निकलने का समय था । मैं और शेष बहादुर चाय की दुकान पर थे। मेरे दुकान पर हरिप्रसाद
, , , , ,
महीपत साधूसरन स्वामीनाथ दीनानाथ रमाकान्त ताराप्रसाद और पाटनदीन आ गए। हरि प्रसाद के

23
CRLA No. - 818 of 1985
हाथ में बल्लम व महीपत के हाथ में फरसा व साधूसरन के हाथ में कटटा व बाकी लोगों के हाथ में
लाठियाँ थी। हरिप्रसाद ने शेषबहादुर को कहा कि इन्होंने हमारे खिलाफ दरख्वास्त दिया है इन्हें पकड कर
-
मार दो। इसी बीच में निरमल और रामप्रगट व रामप्रगट का भाई भी वहा आ गए। इस पर हरि प्रसाद
- - ,
महीपत स्वामीनाथ और पाटनदीन ने शेषबहादुर को खदेडा और शेषबहादुर भागे और साधू दीनानाथ
रमाकान्त और तारा प्रसाद ने निर्मल को खदेड़ लिया। मैं उस समय शेष बहादुर की तरफ भाग रही थी।
' '
कुछ भड की आवाज सुनी।
शेष बहादुर के पीछे जाने वाले मुलजिमान शेष बहादुर को हनीफ के चक मे पकड़ लिया और वहाँ से
मारते पीटते पाटनदीन के चक में लाये। वही मैं ने कहा कि मेरे बच्चे को मत मारो। हरि प्रसाद मेरे बाये पैर
में बल्लम मारा। महीपत ने मेरे सर मे फरसा उलट कर मारा। और जब मै हाथ जोड़ रही थी तब पाटनदीन
और स्वामी नाथ ने लाठियों से मारा और पैर पर भी मारा। फिर मुझे सड़क के दखिन गडडे में डाल दिया
। उसके बाद मुझे चेत नही रहा कि क्या हुआ। मुझे दुसरे दिन अस्पताल में होंश आया । और अस्पताल में
"
ही सुना कि मेरा लड़का शेष बहादुर मर गया है।
43. In her cross-examination, she describes the assault thus:
"
शेष बहादुर को दुकान पर मारा पीटा नही। मुलजिमान ने आकर कहा कि इसने दरखास्त दी है इसे
मारो। शेष बहादुर ने कोई जवाब नही दिया गोहार लगाता हुआ भागा। चार मुलजिमान ने शेष बहादुर को
दौड़ा लिया। मै पहले चाय की दुकान पर रूकी रही। गोहार पर निरमल और परगट चाय की दुकान पर
,
आए थे तब मैं चाय की दुकान पर ही थी । इन दोनों ने कहा कि यह क्या होता है तो हरिप्रसाद महीपत
xxx
वगैरह ने कहा कि इन बहन को भी मार डालो।
:- ?
सवाल जब तुमने देखा तब शेष बहादुर पाटनदीन के खेत में मार खाये पड़े थे
:-
जवाब नही। मैंने जब देखा तो मुलजिमान शेष बहादुर को मारते पीटते हनीफ के खेत से पाटनदीन के
खेत की तरफ ला रहे थे।
शेष बहादुर जमीन पर गिरे हुए घसीट नही रहे थे। मुलजिमान घिर्राते हुए जा रहे थे। कभी हाथ पकड़ कर
घसीटते थे कभी मारते थे कभी कन्धे से धक्का देते थे। चारों मुलजिमान शेष बहादुर को मारते हुए ला रहे
थे। जिस जिस मुलजिमान के पास जो जो हथियार था उसी से मार रहे थे। मुलजिमान ने पाटनदीन के
खेत व हनीफ के खेत के बीच भी अपने हथियारों से मारा था। शेष बहादुर कही गिरे नही थे। मुलजिमान
मारते हुए पकड़ कर लाये थे। पाटनदीन के खेत मे ही ज्यादा मारा था। पाटनदीन के खेत में उन दिन गन्ना
"
नही था। कोई फसल नही थी।
(emphasis by Court)
44. Further, in her cross-examination, PW-2 has said:
" 2
शेष बहादुर पाटनदीन के खेत के दखिनी मेड़ से कट्ठा दखिन तरफ मारे गए। जब मुलजिमान शेष
बहादुर को मार रहे थे तभी मैने चिरौरी की थी और मुझे भी मारा था। मुझे चारों मुलजिमान ने मारा था।
शेष बहादुर के बदन से खून काफी जमीन पर गिरा था जिसे चौकीदार ने बाद में बटोरा था। पाटनदीन के
चक से हनीफ के खेत के बीच में खून गिरा था या नही मैंने नही देखा था।
मैं मार खा कर गिर गई थी मुझे थोड़ा थोड़ा होश था । जब मुलजिमान मेरा हाथ पकड़ कर मुझे खीच कर
"
गढ़े तक ले गए और ढकेल दिया।

24
CRLA No. - 818 of 1985
45. PW-3, Ram Pragat, who had taken the same escape route
as the deceased Shesh Bahadur, has described the manner of
assault in his examination-in-chief thus:
" 6
कतल के दिन सुबह करीब साढ़े बजे मै व मेरे पिता निरमल खेत में अरहर काट रहे थे। तभी मुझे शेष
बहादुर के दुकान से गोहार सुनाई दी। मैं और पिताजी दुकान की तरफ दौड़े। जब हम पहुंचे तब हरिप्रसाद
शेष बहादुर को बताकर कह रहे थे कि यही साला हमारे उपर चोरी का रिपोर्ट किया है इसे जान से मार
,
दो। हरि प्रसाद उस समय बल्लम लिए थे। साधूसरन कट्टा लिए थे। और बाकिया मुलजिमान स्वामीनाथ
, ,
दीनानाथ रमाकान्त ताराप्रसाद तथा पाटनदीन लाठियां लिए थे। हम लोगों ने टोका कि यह क्या गलत
कर रहे हो। हम लोग बात ही कर रहे थे कि शेष बहादुर उत्तर तरफ मुँगरहा की तरफ भागे।
मुलजिमान ने हम लोगो को भी मारने के लिए ललकारा। तब मैं भी भागा। कुछ दूर शेष बहादुर के पीछे
रहा फिर उसके आगे हो गया।
, ,
हरिप्रसाद महीपत स्वामीनाथ और पाटनदीन ने शेष बहादुर का पीछा किया।
25
जब मैं हनीफ के खेत के करीब मीटर पछिम पहुँचा तो मैं पलट कर खड़ा हो गया। तब मैंने देखा कि
, ,
हरिप्रसाद महीपत पाटनदीन व स्वामीनाथ हनीफ के खेत में शेष बहादुर को मार रहे थे। वहा गिरा कर
शेष बहादुर को मुलजिमान पाटनदीन के खेत में उठा लाये और वहाँ भी मारा। तभी श्रीमती टिकरा भी
"
वहाँ आ गई और हाथ पैर जोड़ने लगी। तब इन चारों मुलजिमान ने टिकरा को भी मारा।
46. In his cross-examination, PW-3 has spoken thus about the
manner of assault:
" 10
मुलजिमान जब हम लोगों के पीछे दौड़ना शुरू किए तो मेरे और मुलजिमान के बीच करीब कदम का
फासला था। रास्ते मैं मुझे किसी मुलजिमान ने मारा पीटा नही। शेष बहादुर को हनीफ के खेत पर मारा
पीटा था।
4-6
टंकी से कदम बाद ही मैं शेष बहादुर से आगे हो गया था। शेष बहादुर को पकड़ने के बाद मेरे पीछे
कोई मुलजिम नही भागा।
हनीफ के खेत में शेष बहादुर मारे भी गए थे और गिरे भी थे। मैने नही देखा कि हनीफ के खेत में खून
20, 25
गिरा या नही। मैं मीटर की दूरी पर था। नही देख पाया कि शेष बहादुर के शरीर से हनीफ के
, ,
खेत में खून निकला या नही। माला फरसा लाठी लगते देखा था। उठाने और घसीटने के फर्क मैं जानता
हॅू। यह मै नही कह सकता कि किस वक्त उठाना कहा जायगा और किस वक्त घसीटना कहा जायेगा। मैं
B. A. "
तक पढ़ा हूँ।
47. About the assault on the deceased, PW-1 Nirmal Pandey,
who had taken his escape route to Village Dasia, has described it
in the following words:
"
मैने भागते हुए पीछे मुड़ कर देखा तो मुलजिमान लौट गए और तभी मैने यह भी देखा कि शेष बहादुर
, , "
को हरिप्रसाद बल्लम से महीपत फरसा से स्वामीनाथ व पाटनदीन लाठियों से मार रहे थे ।
(emphasis by Court)

25
CRLA No. - 818 of 1985
48. PW-1 has said during his cross-examination about
witnessing the assault upon the deceased:
" ,
जिस जगह शेष बहादुर मारे गए और सड़क के पास से जहां से मुड़ कर मैंने देखा का फासला करीब
35
कट्ठा होगा।
मैने शेष बहादुर को हनीफ के चरनी तक भागते हुए नही देखा मगर हनीफ के चक से मुलजिमान को
उनको मारते हुए पाटनदीन के खेत तक ले जाते हुए देखा।
4-5
पाटनदीन के चक से हनीफ का चक लगभग कदम है। मैने शेष बहादुर को हनीफ के चक में पहले
मार खाते नही देखा। जब मैने देखा तब मुलजिमान शेष बहादुर को मारते हुए हनीफ के चक से पाटनदीन
के चक में ला रहे थे।
मुलजिमान शेष बहादुर को मारते थे। गिर जाने पर उठाते थे ओर ढकेलते थे इसी तरह से पाटनदीन के
3-4 ......
चक में ला रहे थे। बार शेष बहादुर गिरें और उठाये गए।
पाटनदीन के चक में भी मुलजिमान ने शेष बहादुर को मारा। मैं नही कह सकता कि पाटनदीन के चक में
किस कोने पर शेष बहादुर मारे गए थे। पाटन दीन के चक में शेष बहादुर के मॉ को भी मारा पीटा था।
, , ,
चारों मुलजिम हरिप्रसाद महीपत पाटनदीन और स्वामीनाथ जो शेष बहादुर को खदेड़ रहे थे ने शेष
,
बहादुर के मॉ को भी मारा था। पाटनदीन का चक कुल कितना बड़ा है मै नही जानता। जहां शेष बहादुर
, "
को मार रहे थे वही उसके मॉ को भी मार रहे थे चक का कौन सा कोना था मै नही जानता।
49. The testimonies of PW-1 and PW-2, where the manner of
assault upon the deceased has been noticed in the words of the
witnesses, also describe how and where the injured witness
Tikura (PW-2) was assaulted. We need not, therefore, dilate upon
the evidence, describing how she was assaulted separately. This
leaves for consideration the assault upon the other injured eye-
witness, PW-1 Nirmal Pandey. The best description of the assault
that PW-1 sustained comes from himself. He describes the
genesis and the actual assault upon him thus:
"
हम लोगो से बातचीत के दौरान शेष बहादुर उत्तर की तरफ मुगरहा गाँव की तरफ भागे। राम प्रगट भी
उनके साथ भाग गया। मुलजिमान ने आवाज दी कि भाग रहे है खदेड कर मारो। मैं और मेरा लड़का
, , ,
रामशंकर पूरब की तरफ भागे । मुलजिमान महीपत हरिप्रसाद पाटनदीन स्वामीनाथ ने शेष बहादुर का
-
पीछा किया। साधू सरन मडई के पीछे से आकर मुझे आगे से घेर लिए और मेरे बाये पैर के नरहर पर कट्टे
, ,
से फायर किया। साधुसरन रमाकान्त दीनानाथ और तारा प्रसाद ने हम लोगों का पीछा किया। मैं भागता
"
रहा। इसी बीच मेरा लड़का उत्तर तरफ भाग गया।
50. In his cross-examination, Nirmal Pandey has testified:
" 20-25
मुझे जब गोली लगी तब चाय का दुकान मुझसे कदम पर थी। मुझे खदेड़ने वाले मुलजिमान मेरे
भागने के पहले से दुकान पर मौजूद थे।

26
CRLA No. - 818 of 1985
:- ?
सवाल तुम को उन मुलजिमान ने खदेड़ा या नही
जवाबः– खदेड़ा।
25-30
इन लोगों ने मुझे कदम खदेड़ा था। मुझे किसी ने लाठी से नही मारा। खदेड़ते में साधूसरन ने मेरे
,
उपर फायर किया था लेकिन आगे आकर साधूसरन मड़ई के पीछे से आकर मेरे आगे आ गए थे और
,
वाकिया तीन आदमी मेरे पीछे रहे। वाकिया तीन मुलजिमान सीधे दौड़े थे साधूसरन मड़ई के पीछे से
आए थे।
मेरा लड़का रामशंकर मुझ से आगे भाग रहा था । रामशंकर को मेरी जानकारी में किसी ने न घेरा न
38-
मारा। जिस वक्त साधूसरन ने मुझे कटटा से मारा है उस समय मेरे व उनके बीच करीब एक कटठे
का फासला था । साधूसरन मेरे सामने से आए और मैं पूरब की तरफ भाग रहा था जब हम दोनो आमने
सामने हुए तथा साधूसरन ने गोली चलाई।
:-
सवाल जब आप को चोट लगी तब दोनो आदमी दौड़ रहे थे या खड़े थे।
:- ,
जवाब मैं दौड़ रहा था। नही कह सकता हूं साधू सरन खड़े हो गए थे या दौड रहे थे दौड़ कर आए थे।
साधू सरन के गोली चलाने के वक्त नाल नीचे की थी । कट्टे की चोट लगने के बाद मैं गिरा नही। मैं
"
भागता ही रहा। भागते मे मैने मुडकर देखा था और भागते ही दसिया पहुँचा था।
51. PW-2 Tikura in her cross-examination has spoken about the
assault upon Nirmal Pandey, PW-1, thus:
"
जब निरमल व परगट आए तब शेष बहादुर भाग रहे थे। परगट पीछे थे और शेष बहादुर पीछे थे निरमल
पूरब तरफ दसिया की तरफ भागा जब निरमल भागे और उन्हें गोली लग गई तब मै भी अपने लड़के की
....”
तरफ भागी।
52. PW-3, Ram Pragat, has described in his examination-in-
chief the assault upon his father Nirmal Pandey, PW-1, as follows:
" , ,
मेरे पिता दसिया की तरफ भागे। उनका पीछा दीनानाथ ताराप्रसाद साधूसरन और रमाकान्त ने किया।
जब मैं पोखरे के पास पहुँचा तब मुझे गोली चलने की आवाज सुनाई दी। पलट कर देखा तो पिता जी
"
अपना पैर पकड़े थे। चारो मुलजिमान जो उनके पीछे दौड़े थे पिता जी के पीछे थे।
53. In his cross-examination, PW-3 has said about the assault
on PW-1:
" ,
मैंने अपने पिता को पैर पकड़े देखा भी था और उन्होंने मुझे दसिया में बताया था कि साधू सरन ने मारा
"
है। मैने साधूसरन को अपने पिता पर गोली चलाते नही देखा।
54. A combined reading of the testimony of all the three eye-
witnesses leads us to the inevitable conclusion that the manner,
including the weapons of assault, ascribed to each of the eight
assailants, including the sole surviving appellant, is broadly
consistent about essential facts and how it all happened. There

27
CRLA No. - 818 of 1985
are some discrepancies, but those are largely due to the vantage,
which each of the three witnesses had, when they saw the fateful
events. A few of the minor discrepancies can be attributed to the
individual accomplishments of the witnesses, such as PW-2
Tikura, who is rather rustic, and, therefore, has her own way of
describing things. The testimony of all the three witnesses,
however, is natural and one that is assuring of the genuineness of
the principal events in the crime and the manner it all happened.
There is no reason, therefore, in the slightest measure to doubt or
disbelieve the three eye-witnesses about the manner of assault.
55. Here, we must notice that the most badly assaulted was the
deceased Shesh Bahadur and apparently he was attacked by
Hari Prasad, Mahipat, Swami Nath and Patandeen. Out of these
men, Hari Prasad had employed a spear, Mahipat a battle-axe,
Swami Nath and Patandeen had delivered lathi blows. These
weapons are ascribed to the respective assailants from the
commencement of the account, whereas PW-1, who saw the
happenings from a distance, has graphically described each of
the four assailants use a particular weapon to assault the
deceased. PW-2, who is the deceased's mother and was also
assaulted by the same assailants as the ones, who battered her
son to death, has also affirmed the employment of weapons by
each of the appellants that they were carrying. She is affirming,
but not that graphic in her account of the weapons of assault
employed by each assailant. It is now to be seen whether the
ocular testimony about the assault by the four assailants, as far as
the deceased goes, is corroborated by the medico-legal evidence.
56. A perusal of the autopsy report relating to the deceased, Ex.
Ka-17, shows the following sixteen ante-mortem injuries:
“(1) Incised wound 8 x 2cm x bone cut partially Rt.
side head 10 cm above Rt. ear;
(2) Lacerated wound 4cm x 1.5cm x bone deep 2.0 cm
medial to Inj. No. (1);

28
CRLA No. - 818 of 1985
(3) Abraded contusion 30cm x 10 cm of Rt. upper arm
posterior just below Rt. shoulder Jt.;
(4) Abraded contusion 30cm x 8cm back of Rt.
forearm just below Rt. elbow Jt. underneath ulna
fracture;
(5) Abraded contusion 8 x 4cm back of Rt. hand just
below wrist Jt.;
(6) Abraded contusion 20cm x 10cm back of Lt. Upper
arm just above Lt. Elbow Jt.;
(7) Punctured wound 2cm x 1cm x bone deep back of
Lt. Upper arm 7cm above Lt. Elbow Jt.;
(8) Abraded contusion 32 x 8 cm back of Lt. Forearm
5cm below Lt. Elbow Jt. underneath ulna fracture;
(9) Punctured wound 2cm x 1cm x muscle deep back of
Lt. Forearm 4cm below Lt. Elbow Jt.;
(10) Incised wound 2cm x 1cm x bone deep on tip of
Lt. Little finger underneath distal phalanx
fracture;
(11) Abraded contusion 10cm x 8cm back of Lt. hand
just below wrist Jt.;
(12) Abrasion 3cm x 1cm outer aspect of Rt. thigh
10cm below iliac crest;
(13) Multiple abrasion in an area of 15 x 10 cm
front of Rt. knee & upper part of leg Rt.
Anteriorly;
(14) Abraded contusion 15x 8cm front of Rt. leg 3cm
above Rt. Ankle Jt.;
(15) Punctured wound 3 x 1cm x muscle deep front of
Lt. leg 15 cm below Lt. knee Jt.;
(16) Multiple contusion in an area of 45cm x 30cm
whole of back of chest & abdomen, largest measuring
15 x 3cm & smallest measuring 5 x 2cm.”
57. A perusal of these injuries show that there are two incised
wounds, one on the head with bone cut partially, and the other
bone deep on the tip of the left little finger, underneath the distal
phalanx with a fracture. There are three punctured woulds, one of
which is on the left upper arm, bone deep, 7cm above the elbow,
the other a muscle deep wound on the back of the left forearm,
4cm below the left elbow, and, a third punctured wound on the
front of the left leg 15cm below the left knee. These two sets of
wounds, that is to say, the incised and the punctured wounds,

29
CRLA No. - 818 of 1985
have apparently come from the battle-axe, a sharp edged
weapon, and the spear, a piercing weapon, wielded by Mahipat
and Hari Prasad, respectively. The other wounds are abraded
contusions, besides one lacerated wound and a multiple
abrasions. The abraded contusions have led to fractures as well.
The abraded contusions have apparently come from the lathi
blows, inflicted by Swami Nath and Patandeen. The cause of
death is shock and haemorrhage as a result of ante-mortem
th th th
injuries. The 5 , 6 and the 7 rib on the right side of the back are
fractured. There is a blood clot present under the scalp of the right
parietal bone under Injury No.1. There is a linear fracture, 15cm
long on the right parietal bone under Injury No.2. The membrane
of the brain showed them to be congested and a blood clot
present under the surface of membrane. The brain was found
congested with blood clot present on the brain.
58. The autopsy report has been proved by Dr. G.N. Prasad,
who had carried out the postmortem examination on the
deceased's cadaver on 02.04.1984. He has opined the death to
have occurred about a day and a quarter before the time of
autopsy on 02.04.1984, which was done at 4.45 p.m. He has
given a detailed account of all the sixteen injuries in his
examination-in-chief and also explained the damage to the
internal organs. The fractures have been testified to with
reference to the X-ray plates, that was apparently done by the
Radiologist on 03.04.1984. The X-ray plates and the report based
on the X-ray have been proved by PW-10. The doctor has opined
that Shesh Bahadur could have died on 01.04.1984 at 6.30 a.m.,
though upon his cross-examination on behalf of the accused by
Mr. S.N. Srivastava, Advocate, he has also acknowledged the fact
that death could have happened on 01.04.1984 between 4-5 a.m.
59. The injuries not only are affirmative of the manner of
assault, but precisely correspond to the weapons of assault. The

30
CRLA No. - 818 of 1985
injury to the internal organs noticed also support the manner and
weapons of assault. The testimony of the eye-witnesses, relating
to the manner of assault, as far as the deceased goes, is
therefore, free from blemish and truthful beyond reasonable
doubt. The autopsy doctor's testimony is also affirmative of the
ocular account, apart from proving the injuries sustained by the
deceased in the assault and the damage caused, besides the
cause of death.
60. The other victim, who was assaulted by the four assailants,
Hari Prasad, Mahipat, Swami Nath and Patandeen, is PW-2
Tikura. As the account of the assault goes, she was apparently
assaulted using the respective weapons held by the aforesaid four
assailants, according to eye-witness account, including that of
herself. The medico-legal evidence on record is her injury report,
bearing Ex. Ka-5. It shows that the witness was brought by
Constable 107 CP Muttur Singh and Constable Dhruva Kumar
Chaubey of P.S. Rudhauli on 01.04.1984 at 9.20 a.m. The doctor
has noticed upon her person the following eight injuries:
“(1) Lacerated wound 5cm x 1cm x scalp deep on left
side below, 5.5 cm above the left Ear;
(2) Multiple abrasion in an area of 3cm x 2cm on outer
part of left elbow;
(3) Lacerated wound 1.5 cm x 1cm x skin deep at the
base of finger between thumb & index finger of left
hand;
(4) Contusion 4cm x 2cm on back of left hand 1cm above
the base of left thumb. Advise X-ray;
(5) Abrasion 1cm x 0.75 cm tip of Rt. Index Finger
above nail bed;
(6) Contusion swelling 18cm x 14cm on front & anterior
part of left leg. Advise x-ray. 11cm below the left
knee;
(7)Punctured would 1cm x 0.25 cm x bone deep outer &
lower part of left leg; 3cm above the lateral malleolus
left leg;
(8) Contused swelling whole of left foot. Advise x-ray.

31
CRLA No. - 818 of 1985
61. Out of the aforesaid injuries, Injury Nos.4, 6 and 8 were
directed to be kept under observation and X-ray advised. The rest
of the injuries were opined to be simple in nature. Injury No.7 was
opined to have been caused by a sharp edged weapon. The rest
of the injuries were found to have been inflicted by a hard and
blunt object. The duration of the injuries was found fresh. Injury
No.7 is a punctured would, 1cm x .25cm x bone deep, 3cm above
the left lateral malleolus. The injury report has been proved by Dr.
A.P. Singh, Medical Officer, Sadar Hospital, Basti, who had
examined the victim. He has said in his cross-examination that
Injury Nos.4, 6 and 8 were kept under observation and X-ray
advised. The rest of the injuries were simple. He has specifically
opined that Injury No.7 had been caused by some pointed and
sharp edged object. The rest of the injuries were caused by a
hard and blunt object. The injuries were fresh when examined.
The patient was admitted to hospital. He has proved the injury
report Ex. Ka-5, about which he has said in his cross-examination
that it was prepared at the time when the patient was examined.
In his cross-examination by the defence, he has said that Injury
No.7 could have resulted from collision with a pointed object. He
has also said that it is possible that Tikura had received the
injuries at 4.00 a.m. The injuries sustained by this injured witness,
as found by the doctor, go hand-in-hand with the ocular version.
The opinion about the time of assault being possibly a few hours
earlier, as is the case with the deceased, is opinion evidence,
which has to be understood, consistent with the ocular testimony.
62. The mere fact that the injuries to this witness as well as the
deceased could have been caused at 4 o'clock or 5 in the
morning in the doctor's opinion, does not mean that the ocular
version of the injuries being sustained at 6.30 a.m., or shortly
thereafter, is to be disbelieved. It is only if the medico-legal
evidence is wholesomely incompatible with the ocular version that
the eye-witnesses' testimony may fall under suspicion. A mere

32
CRLA No. - 818 of 1985
possibility expressed in the opinion evidence does not derogate
from the veracity of the eye-witness account, if the medico-legal
evidence predicates the ocular version as one of the possibilities.
63. PW-1 in his testimony has said that he along with his son
Ram Shankar, who had run for safety towards the east, were
chased by Sadhu Saran, Ramakant, Deena Nath and Tara
Prasad. Out of these four, Sadhu Saran overtook them and after
overtaking the witness, using the cover of a hut on the left side,
appeared in the witness's front suddenly and opened fire from his
country-made pistol, injuring him in the left leg at a place that he
has described in vernacular as 'narhar'. This would mean that the
injury was sustained to the shin or speaking in medical terms the
tibia, the weight bearing bone located in the lower leg between the
knee and the ankle. The medico-legal evidence appears in the
form of the medical report of Dr. O.P. Pathak, who examined
Nirmal Pandey, brought by Constable 718 Kripa Ram Verma. The
doctor noticed a solitary wound as follows:
“Lacerated wound 2cm x 0.5cm x bone deep 22cm below the
left knee joint. Margin contused. 3 rounded pellets
found embedded superficially in blood clot between the
gaping of wound. Pellets are sealed and bag sent to
S.O. Rudhauli for necessary action. Advised X-ray.
Duration fresh.
Caused by firearm.”
64. Since the X-ray of the solitary wound sustained by PW-1
was advised, he was subjected to an X-ray examination regarding
the injury sustained in the left leg at the District Hospital, Basti.
The Radiologist's report dated 03.04.1984, marked Ex. Ka-18,
before whom the witness was brought by Constable 519 Hari
Shankar Mishra, has opined as follows:
“One small rounded metallic radiopaque shadow seen.”
65. Dr. O.P. Pathak, who has examined Nirmal Pandey, has
described in his examination-in-chief the solitary wound as a

33
CRLA No. - 818 of 1985
lacerated wound (phata hua ghav) 2cm x 0.5cm x bone deep with
margins contused. Three pellets were found embedded
superficially in the blood clot between the gaping of wound. The
doctor has opined in his testimony that the wound was fresh at the
time of examination and appeared to be caused by a firearm. X-
ray was advised.
66. Dr. G.N. Prasad, who did the X-ray examination for PW-1,
has testified in the dock as PW-10 and already introduced
hereinbefore in connection with the deceased's autopsy, which he
had done, has said that he was the Radiologist at the hospital on
03.04.1984 and did the X-ray examination of Nirmal Pandey
regarding his injury in the left leg. The X-ray plate was before him,
which he proved as Ex. 2. He has said in his testimony that he
had written his report, Ex. Ka-18 on the basis of the X-ray report.
It is said by this witness that the X-ray showed that there was a
pellet like object seen in Nirmal Pandey's leg. The testimony of
the doctors, who examined PW-1, essentially supports the ocular
version.
67. The argument advanced by the learned Counsel for the
appellant – that Nirmal Pandey was injured when a country-made
pistol held by his son, Ram Pragat, accidentally went off while
they were riding a bicycle to the police station to lodge an FIR – is
based on pure conjecture. There is no evidence aliunde on record
to support this version, nor can it be inferred from the testimonies
of either the prosecution or the defence, who failed to examine
any witnesses on this matter. It has also been argued by the
learned Counsel for the appellant that Nirmal was shot, as he
says, by Sadhu Saran from a distance of one kattha, which is
about six paces, employing a country-made pistol. The pellet
injuries sustained show that the contraption of a weapon, that was
used, had a 0.12 bore ammunition. He submits that if a country-
made pistol of 0.12 caliber is discharged at a distance of one

34
CRLA No. - 818 of 1985
kattha from PW-1, the nature of injury, which is a minimal of three
superficial pellets and one deep embedded, is impossible. The
injury would have been far more damaging. This is an aspect,
which ought have been put to the doctor, who examined PW-1, or
some other expert witness produced by the defence.
Unfortunately, neither any question regarding the nature of injury
that could be sustained from a country-made pistol of 0.12 bore
was asked of the doctor nor an expert witness produced by the
defence, who could have shed light on the issue. In the absence
of any evidence to suggest that PW-1 sustained injuries under a
different set of circumstances, it is difficult to accept the
appellant's submission on the point under consideration. Even if
there were some slight discrepancy in the medico-legal evidence
and the ocular testimony, though it is not so in this case, a
dependable and consistent eye-witness account would remain
unscathed by minor contradictions between the medical expert's
opinion and the eye-witness' testimony. The principle is well
adumbrated in Pruthiviraj Jayantibhai Vanol v. Dinesh Dayabhai
Vala and others, (2022) 18 SCC 683. In Pruthiviraj Jayantibhai
Vanol (supra), it has been held by the Supreme Court:
“ 17. Ocular evidence is considered the best evidence
unless there are reasons to doubt it. The evidence of
PW 2 and PW 10 is unimpeachable. It is only in a case
where there is a gross contradiction between medical
evidence and oral evidence, and the medical evidence
makes the ocular testimony improbable and rules out all
possibility of ocular evidence being true, the ocular
evidence may be disbelieved. In the present case, we
find no inconsistency between the ocular and medical
evidence. The High Court grossly erred in appreciation
of evidence by holding that Muddamal No. 5 was a simple
iron rod without noticing the evidence that it had a
sharp turn edge.”
68. Thus, it can be safely inferred that the ocular version, about
the manner of occurrence, is a dependable account and
supported, as it is, by medical evidence, must be believed the way
the prosecution have put it.

35
CRLA No. - 818 of 1985
Motive for the crime, if at all a relevant inquiry
69. Learned Counsel for the appellant, cognizant of the fact that
this is a case of direct evidence, has impressed upon us that we
must bestow our consideration to the background of witnesses
because PW-1 and PW-3 are highly inimical to Hari Prasad and
the other assailants, including the appellant. This is on account of
the fact that there was an election rivalry between Hari Prasad, on
one hand, and, Ram Murat, on the other, whom PW-1 and PW-2
had supported in the elections. It is particularly pointed out that
the manifestation of this animosity is well reflected in the fact that
4-5 days, antedating the occurrence, there was a theft in Shesh
Bahadur's house. Shesh Bahadur had nominated Hari Prasad,
Swami Nath, Deena Nath and Patandeen in the FIR relating to the
offence. This nomination had turned Hari Prasad and the other
assailants, including the appellant, very inimical towards Shesh
Bahadur. The FIR of the theft case was scribed by Ram Pragat,
PW-3, and both Ram Pragat and another brother of his, Shiv
Shankar Pandey, were prosecution witnesses against Hari Prasad
etc.
70. The learned A.G.A. has submitted that motive has no
relevance in a case of direct evidence.
71. We are of opinion that the principle is far too well settled to
detain us much that in a case of direct evidence, motive is hardly
relevant as a defence. It is another thing that if the prosecution
are able to prove their case, the existence of motive may be an
added buttress. A Division Bench of this Court had occasion to
consider this otherwise well settled principle in Pratap Singh and
others v. State of U.P., 2021 SCC OnLine All 686, to which one of
us (J.J. Munir, J.) was party. In Pratap Singh (supra), it was held
by this Court:
“ 17. To our outstanding, motive is not very relevant in
a case of direct evidence, where a dependable ocular
version is available. Once there is evidence

36
CRLA No. - 818 of 1985
forthcoming on the basis of an eye-witness account,
that is consistently narrated by multiple witnesses,
motive is hardly relevant. If an unimpeachable ocular
testimony is there to establish the prosecution case,
an investigation into the motive or the sufficiency of
it to result in the crime and the manner in which it
has been perpetrated, would not at all brook inquiry.
The testimony of PW-2, PW-3 and PW-4, as would be
analyzed in greater detail later in this judgment, is
broadly consistent about the time, place and manner in
which the deceased was done to death by the appellants.
All the three witnesses have stood by their account of
the occurrence in their cross-examination. There is a
broad consistency of version amongst all the three eye-
witnesses, that is to say, PW-2, PW-3 and PW-4. In a
case that rests on ocular evidence motive for the
accused to have acted in the manner they did, is
besides the point. In this connection, there is
authoritative statement of the law to be found in the
decision of the Supreme Court in Bipin Kumar Mondal v.
State of West Bengal . In Bipin Kumar Mondal, it has
been held:
“21. The issue of motive becomes totally irrelevant
when there is direct evidence of a trustworthy
witness regarding the commission of the crime. In
such a case, particularly when a son and other
closely related persons depose against the
appellant, the proof of motive by direct evidence
loses its relevance. In the instant case, the
ocular evidence is supported by the medical
evidence. There is nothing on record to show that
the appellant had received any grave or sudden
provocation from the victims or that the appellant
had lost his power of self-control from any action
of either of the victims.
Motive
22. In fact, motive is a thing which is primarily
known to the accused himself and it may not be
possible for the prosecution to explain what
actually prompted or excited him to commit a
particular crime.
23. In Shivji Genu Mohite v. State of Maharashtra
[(1973) 3 SCC 219 : 1973 SCC (Cri) 214 : AIR 1973
SC 55] this Court held that in case the prosecution
is not able to discover an impelling motive, that
could not reflect upon the credibility of a witness
proved to be a reliable eyewitness. Evidence as to
motive would, no doubt, go a long way in cases
wholly dependent on circumstantial evidence. Such
evidence would form one of the links in the chain
of circumstantial evidence in such a case. But that
would not be so in cases where there are
eyewitnesses of credibility, though even in such
cases if a motive is properly proved, such proof
would strengthen the prosecution case and fortify
the court in its ultimate conclusion. But that does
not mean that if motive is not established, the
evidence of an eyewitness is rendered
untrustworthy.

37
CRLA No. - 818 of 1985
24. It is settled legal proposition that even if
the absence of motive as alleged is accepted that
is of no consequence and pales into insignificance
when direct evidence establishes the crime.
Therefore, in case there is direct trustworthy
evidence of witnesses as to commission of an
offence, the motive part loses its significance.
Therefore, if the genesis of the motive of the
occurrence is not proved, the ocular testimony of
the witnesses as to the occurrence could not be
discarded only by the reason of the absence of
motive, if otherwise the evidence is worthy of
reliance. (Vide Hari Shanker v. State of U.P.
[(1996) 9 SCC 40 : 1996 SCC (Cri) 913], Bikau
Pandey v. State of Bihar [(2003) 12 SCC 616 : 2004
Supp SCC (Cri) 535] and Abu Thakir v. State of T.N.
[(2010) 5 SCC 91 : (2010) 2 SCC (Cri) 1258])”
72. Considering what we have held in Pratap Singh, as
remarked earlier, the point need not detain us any more and we
hold that the motive attributed to two of the eye-witnesses, PW-1
and PW-3, is hardly of much relevance. In any case, there is
another very dependable eye-witness account, the deceased's
mother, PW-2 Tikura, where no criticism founded on motive, can
be pleaded to discredit her testimony.
The retracted stand of Tikura, PW-2, and its effect on the
credibility of the prosecution case
73. In this case, there is a rather unusual feature, though not
something unheard of. After close of the prosecution evidence,
PW-2 Tikura, one of the most dependable and star witnesses for
the prosecution, filed an affidavit before the learned Sessions
Judge dated 16.01.1985, saying that her testimony in Court was
wrong and she had given that evidence out of fear of Nirmal
Pandey and Ram Pragat, besides threats from the Police. She
said further in her affidavit that after testifying in Court, her
conscience revolted and her soul cursed her. She thought that
what ill-deed had she done that her son was killed, and, now by
falsely testifying in the murder case leading to implication of men,
who were not involved, she wondered what punishment God
would give her. She stated in the affidavit that considering these
matters, she thought that she should speak truthfully before the

38
CRLA No. - 818 of 1985
Court. She then set out a different version of the occurrence to the
effect that it was still dark and she and her son had gone to
harvest her crop. It was said in the affidavit that when she
reached Patandeen's field, some men assaulted her son and she
could not recognize the assailants. They were not men, whom she
knew or recognized. Her son died immediately in consequence of
the assault. She too was assaulted by those men and upon
seeing her son dead, and in consequence of injuries, she fainted.
There are other things said in the affidavit in derogation of her
dock evidence given during trial.
74. Taking cognizance of the affidavit dated 16.01.1985, the
learned Sessions Judge, after hearing learned Counsel and taking
into consideration PW-2’s affidavit, paper No. 49-Kha, passed an
order on 16.01.1985, directing the trial to adjourn to 17.01.1985
for the purpose of recording the statement of the accused,
apparently under Section 313 Cr.P.C. It was further directed that
the accused, if they so wished, could produce PW-2 in their
defence. On 17.01.1985, the statements of the accused were
recorded. At the end of the statements of the accused/ appellants
under Section 313 Cr.P.C., they were asked to lead evidence in
defence. The trial was adjourned to 18.01.1985 for the purpose of
leading defence evidence. On 18.01.1985, quaintly the testimony
of Tikura was again heard styling her as DW-1/ PW-2. In addition,
documentary evidence on behalf of the accused, numbering
twelve documents, was taken on record through a list, paper No.
60-Kha. The documents produced on behalf of the defence were
marked as Ex. Kha-1 to Kha-12. It is recorded in the order dated
18.01.1985 that defence evidence on behalf of the accused has
concluded and the trial was adjourned for the purpose of hearing
arguments to 22.01.1985. We are of opinion that it would be
relevant to quote the orders dated 16.01.1985, 17.01.1985 and
18.01.1985 passed by the learned Sessions Judge, verbatim:

39
CRLA No. - 818 of 1985
“16-1-85
NB Singh
आज पेश हुआ। पुकार कराई गई। मुलजिमान मय वकील हाजिर हो। वकील सरकार श्री
48 PW 2 49
हाजिर है। वकला फरीकैन की बहस ख पर सुनी गई। गवाह टिकुरा ने शपथ पत्र ख
दाखिल किया।
17-1-85 PW 2
आदेश हुआ कि दि० को वास्ते बयान मुलजिमान पेश हो। मुलजिमान को अगर चाहे
तो सफाई मे पेश कर सकते है।
ह० अप०
SJ
17-1-85
NB Singh
आज पेश हुआ। पुकार कराई गई। मुलजिमान मय वकील हाजिर हो। वकील सरकार श्री
हाजिर है। बयान मुलजिमान लिखा गया। वकला फरीकैन की बहस सुनी गई। बयान मुलजिमान फिर
लिया गया। मुलजिमान ने सफाई देने के लिए कहा।
18-1-85
आदेश हुआ कि दि० को वास्ते सफाई पेश हो।
ह० अप०
SJ
18-1-85
DW 1/PW 1
आज पेश हुआ। पुकार कराई गई। मुलजिमान मय वकील हाजिर हो। टिकुरा का बयान
12 60 Ex
लिखा गया। मुल्जि मान के ओर से किता सबूत द्वारा सूची ख दाखिल हुआ। जिस पर क्रमशः
1 12
ख ता ख डाला गया। मुलजिमान ने सफाई समाप्त किया।
22-1-85
आदेश हुआ कि दि० को वास्ते बहस पेश हो।
ह० अप०
SJ"
75. The learned Sessions Judge recorded the testimony of
Tikura on 18.01.1985, recording on the top of the papers ‘DW-1/
PW-2’. It is next written ‘Recalled’. After a short examination-in-
chief, the witness has been cross-examined by the learned
District Government Counsel. We propose to examine not only
the worth of Tikura’s evidence recorded by the learned Sessions
Judge, but also the legality and character thereof, that is, if at all
she could be examined as a defence witness or given her
anomalous description as PW-1/ DW-1, as done by the learned
Sessions Judge, could she just be regarded as the prosecution
witness that she was, who had simply been recalled by the

40
CRLA No. - 818 of 1985
learned Sessions in view of her affidavit in the exercise of powers
by the Judge under Section 311 Cr.P.C.
76. We think, it would be profitable to notice for a first what
Tikura had to say, when she re-appeared in the dock. She has
said in her examination-in-chief, which the learned Trial Judge
heard on 18.01.1985, as follows:
“शेष बहादुर मेरा लड़का था।
मैने पिछली बार इसी अदालत में बयान दिया था। वह बयान मैंने प्रगट, निरमल व थाने वालों के डर
से दिया था। सही बात यह है कि मै और शेष बहादुर गेहू काटने जा रहे थे दो घरी रात बाकी थी।
जब पाटनदीन के खेत के पास पहुँचे तो 4-5-6 आदमियों ने हम लोगों को मारा। मैं उनमें से किसी
को पहचान नहीं पाई। मैं उन में से किसी को जानती पहचानती नही थी।
चोट खाकर मेरा लड़का वही मर गया।
मैं चोट खाकर बेहोश हो गई थी। जब होश आया तब दिन चढ आया था, तभी निरमल और प्रगट
मेरे पास आए और कहा कि मैं वही बैठूं, वह थाने जा रहे है।
इस वाकया में मेरे देखने में निरमल को कोई चोट नही आई थी।
फिर प्रगट थानेदार के साथ लौट कर आए थे।
मुझे सुध नही थी इसलिए मैने दरोगा जी को नही बताया कि मैने मारने वालों को नही पहचाना
था।"
77. In her cross-examination by the learned District Government
Counsel, Tikura testified as follows:
“हरिप्रसाद मेरे गाँव के प्रधान है। मेरे पास कोई खेत नहीं है। शेष बहादुर के पास एक बीघा खेत
है। मैं मजदूरी करके खाती हूँ। प्रधान ने मुझे कोई खेत नही दिया।
यह कहना गलत है कि मुझे हरिप्रसाद ने 2000 दिया है और दो बीघा खेत पट्टा पर देने के लिए
वायदा किया है।
अब मुझे निरमल और प्रगट से डर नही है। अब वह मुझे मारना चाहें तो मार डालें।
प्रगट आज भी अदालत में मौजूद है।
मेरी पतोहू ने मुझे खाना नही दिया। शेष बहादुर के कियाकम के बाद से मेरी पतोहू बेवा शेष
बहादुर मुझ से अलग रहती है। शेष बहादुर के नाम से जो खेत था प्रगट ने पतोहू के नाम करा
दिया। खेत मैं नही चाहती थी मगर खाना पीना चाहती थी मगर पतोहू वह भी नही दे रही है। मैने
प्रगट से कहा था कि वह पतोहू से खाना दिलवाये मगर पतोहू ने कुछ नही दिया।
मेरा बयान इस अदालत में हुआ था। मेरी पतोहू पिछले बयान के पहले भी खाना नही देती थी और
अब भी नही देती है।
शेष बहादुर कि एक बीघा वाला खेत चाय टंकी के उत्तर है और मेरा घर टंकी के दखि न है। शेष
बहादुर का खेत पाटनदीन के खेत के पास ही लगा हुआ है।
मैं दसिया से बस से आती हूँ। दसिया से बस्ती का किराया 2 रूपया आठ आना लगता है।

41
CRLA No. - 818 of 1985
गवाह को उसका पिछला बयान Chief पढ़कर सुनाया गया। मैने यह बयान खुशी से नही दिया
था। डर से दिया था। चूंकि परगट और निरमल बाँधकर लाये थे। मैने डर के मारे अदालत से भी
नही कहा कि मुझे प्रगट और निरमल से डर है।
मेरे पिछले बयान के बाद से आज तक मैने प्रगट व निरमल के खि लाफ कोई दरख्वास्त नही दिया।
यह कहना गलत है कि मैं मुलजिमान से मिल गई हू और पैसा लेकर बयान बदल रही हू।"
78. We may now consider the legality and/ or regularity of
hearing Tikura and also ascertain her character as a witness,
when she re-appeared in the dock. A close look at the orders
dated 16.01.1985, 17.01.1985 and 18.01.1985 passed by the
learned Sessions Judge seem to suggest that the learned Judge,
after recording the statements of the accused under Section 313
Cr.P.C., all on 17.01.1985, heard Tikura as a defence witness or
intended to do so. This is apparent from the last of his directions
in the order dated 16.01.1985, when Tikura’s affidavit, paper No.
49-Kha, was first laid before the learned Sessions Judge for his
consideration. He had directed on 16.01.1985 that, if the accused
wish, they could produce PW-2 in their defence. Thereafter, on
17.01.1985, which was a date scheduled for recording of the
accused’s statement under Section 313 Cr.P.C., all that was
recorded were the statements of the accused as aforesaid.
79. Tikura was heard again as a witness on 18.01.1985, but the
order of the day describes her as DW-1/ PW-2. At the top of the
order-sheet, where her testimony is recorded, we have already
noticed that she is described as DW-1/ PW-2. In addition, the
word ‘Recalled’ is written, also at the top of the order-sheet dated
18.01.1985. The difficulty that the learned Sessions Judge was
confronted with stemmed from the basic principle that the
orientation of a witness never changes. If a witness has testified
as a prosecution witness or a defence witness, he or she retains
that character all through the trial, notwithstanding whatever he/
she may say in her testimony.
80. Section 154 of the Indian Evidence Act, 1872 (for short, 'the
Evidence Act') empowers the Court to permit the person, who

42
CRLA No. - 818 of 1985
called him as a witness to put any questions to him, that might be
put in cross-examination by the adverse party. It is this provision,
which is invoked when it is in practice said that the Court has
declared a witness hostile, permitting cross-examination by the
party, who called him/ her. The words hostile witness or
declaration of hostility by the Court, are not used in the statute,
but are parlance of practice. Sub-Section (2) of Section 154
postulates the principle that notwithstanding a witness called by a
party being cross-examined, or so to speak, declared hostile and
cross-examined, the testimony of the witness can still be relied
upon by the party, calling him to the extent it supports his or her
case. This principle is well regarded by consistent authority and
the testimony of a witness, so to speak, declared hostile, need not
be wholesomely rejected. In case of a prosecution witness, to the
extent the testimony supports the prosecution, can well be relied
upon by them.
81. Apparently, Tikura testified as a prosecution witness, called
to the dock as PW-2. After her testimony was over and just before
the statements of the accused under Section 313 Cr.P.C. were
scheduled to be recorded, she had a change of mind, which she
called, 'the call of her conscience to speak truthfully', leading her
to lodge an affidavit with the Court that her earlier testimony
during trial was all falsehood. It is no doubt true that the purpose
of all trial and the endeavours of Court in the quest for justice is to
seek the truth. If the Court found, as in the present case, that a
prosecution witness had spoken something under pressure or
otherwise, which was away from truth, the Court could always
have exercised its powers under Section 311 Cr.P.C. and recalled
PW-2 in the very same character for re-examination. PW-2 then
could introduce facts what led her to depose contrary to what she
had seen and the prosecution could have cross-examined her
under Section 154 of the Evidence Act, but as a prosecution
witness nevertheless.

43
CRLA No. - 818 of 1985
82. As the orders dated 16.01.1985, 17.01.1985 and
18.01.1985 would show, the learned Sessions Judge initially
decided to permit the accused, upon reading the affidavit of PW-2,
paper No. 49-Kha, to examine her as a defence witness. It is for
this reason that she was examined after the statements of the
accused under Section 313 Cr.P.C. had been recorded.
Examining a witness after the statements under Section 313 are
over, is clearly suggestive of the fact that the Court intended the
witness to be produced in defence by the accused as a defence
witness. However, it appears that by 18.01.1985, when the turn
came for Tikura to be recalled in the dock, the Trial Court was a
bit perplexed as to how a prosecution witness could be called as a
defence witness, and endeavour was, therefore, made by the
learned Sessions Judge to overcome the apparent illegality of this
procedure by describing Tikura as DW-1/ PW-2. Perhaps, the
learned Sessions Judge realized the fallacy of the procedure and,
therefore, at the top of the order-sheet, where the testimony of
Tikura was recorded, after she re-appeared in the dock, the word
'Recalled' is superscribed. The learned Sessions Judge would
have done well if he thought that Tikura should be heard again to
have invoked his powers under Section 311 Cr.P.C. and recalled
her in her character as a prosecution witness, to wit, PW-2, and
permit her to be re-examined by the prosecution with a right to
them to cross-examine, if they so desired. We must say that the
procedure adopted by the learned Sessions Judge in examining
Tikura, describing her anomalously as DW-1/ PW-2, was flawed
and cannot be countenanced.
83. The question fell for consideration recently before a Division
Bench of the Madhya Pradesh High Court in Kaleem v. State of
Madhya Pradesh, 2026 SCC OnLine MP 5990, where the facts
were that a woman, called Najma, was set ablaze on 06.11.2013,
allegedly by a colleague of hers over a monetary dispute with her
husband. The husband had lodged an FIR orally reporting the

44
CRLA No. - 818 of 1985
incident to the Police the same day, saying that he was informed
by a boy from the village, Lokendra, that his wife Najma was
burning near the Delgaon-Dhangaon Road. He rushed to the spot
and extinguished the fire. Najma informed him that Kaleem had
called her there, abused her over the dispute, poured kerosene
and set her afire, before fleeing on a motorcycle. Saleem testified
for the prosecution as PW-3 and supported the prosecution case.
Later on, Saleem was produced as a defence witness, DW-3,
where he testified contrary to what he had said in the dock earlier
as a prosecution witness. In those circumstances, in Kaleem
(supra), Ratnesh Chandra Singh Bisen, J. held:
“ 32. From the defence side, Saleem (DW 3) was again
examined as Defence Witness No. 3, and he was made to
give a statement contrary to what he had stated earlier
in support of the prosecution. In such a situation, his
statement recorded as a defence witness cannot be
accepted. It is appropriate to mention here that once a
witness has been examined by the prosecution, he should
not be examined again as a defence witness; rather, if
the court finds it necessary to re-examine the witness
for the ends of justice, it may allow re-examination or
cross-examination, but it cannot allow the witness to
be examined as a defence witness. In this regard, the
principle laid down in the Supreme Court in case of
State of Madhya Pradesh v. Badri Yadav , (2006) 9 SCC
549 : (2006) 3 SCC (Cri) 337 is worth noting, which is
as follows—
“11. In our view, the reasoning recorded by the
High Court, itself would have been sufficient to
reject the testimony of DW 1 and DW 2. However,
having said so the High Court reversed the order of
conviction and recorded the order of acquittal,
which is perverse.
12. In this case the application under Section 311
CrPC for recalling PW 8 and PW 9 and re-examining
them was rejected by the court on 2-9-1994.
Therefore, the question with regard to recalling PW
8 and PW 9 and re-examining them stood closed.
There is no provision in the Code of Criminal
Procedure that by filing affidavit the witnesses
examined as PWs (PW 8 and PW 9 in this case) could
be juxtaposed as DW 1 and DW 2 and be examined as
defence witnesses on behalf of the accused.
13. Mr A.T.M. Rangaramanujam, learned Senior
Counsel for the respondent, however, contended that
the accused is entitled to enter upon defence and
adduce evidence in support of his case as provided
under Section 233 CrPC particularly sub-section (3)
of Section 233. Sub-section (3) of Section 233
reads:

45
CRLA No. - 818 of 1985
“233. (3) If the accused applies for the issue of
any process for compelling the attendance of any
witness or the production of any document or thing,
the Judge shall issue such process unless he
considers, for reasons to be recorded, that such
application should be refused on the ground that it
is made for the purpose of vexation or delay or for
defeating the ends of justice.”
(emphasis supplied)
14. Section 233 itself deals with entering upon
defence by the accused. The application for
recalling and reexamining persons already examined,
as provided under Section 311 CrPC, was already
rejected. The power to summon any person as a
witness or recall and reexamine any person already
examined is the discretionary power of the court in
case such evidence appears to it to be essential
for a just decision of the case. Under Section 233
CrPC the accused can enter upon defence and he can
apply for the issue of any process for compelling
the attendance of any witness in his defence. The
provisions of sub-section (3) of Section 233 cannot
be understood as compelling the attendance of any
prosecution witness examined, crossexamined and
discharged to be juxtaposed as a defence witness.
In the present case PW 8 and PW 9 were juxtaposed
as DW 1 and DW 2. This situation is not one what
was contemplated by sub-section (3) of Section 233
CrPC
15. When such frivolous and vexatious petitions are
filed, a judge is not powerless. He should have
used his discretionary power and should have
refused relief on the ground that it is made for
the purpose of vexation or delay or for defeating
the ends of justice. In the present case, the
witnesses were examined by the prosecution as
eyewitnesses on 18-12-1990, cross-examined and
discharged. Thereafter, an application under
Section 311 CrPC was rejected. They were recalled
purportedly in exercise of power under sub-section
(3) of Section 233 CrPC and examined as DW 1 and DW
2 on behalf of the accused on 17-7-1995. This was
clearly for the purpose of defeating the ends of
justice, which is not permissible under the law.”
(emphasis by Court)
84. In Kaleem, reliance has been placed on State of Madhya
Pradesh v. Badri Yadav, (2006) 9 SCC 549, where the course of
recalling prosecution witnesses and re-examining them as
defence witnesses, has been held impermissible under the law.
We too are bound by the principle in Badri Yadav (supra) and
respectfully follow the holding of the Division Bench of the
Madhya Pradesh High Court in Kaleem.

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CRLA No. - 818 of 1985
85. Now, we must turn attention to the fact that assuming that
Tikura was indeed not called as a defence witness, but merely
recalled as a prosecution witness and re-examined, can her
testimony, subsequently given, be relied upon to infer a
reasonable doubt about the prosecution case. We must remark
here that Tikura's testimony in the dock as a prosecution witness
was one, which, apart from sparing the minor lapses of human
cognizance and limitations of vantage or the inaccuracies of
description, was largely consistent with the prosecution case
throughout and supported the first information version and the
prosecution case as a whole on all its broad parameters. She was
consistent in her examination-in-chief and withstood a reasonably
lengthy cross-examination without faltering. She came up with an
affidavit, disowning her testimony, citing the call of her
conscience. The learned Sessions Judge, bearing in mind the
highest traditions of the functions of a Judge, dispensing justice,
would have naturally felt the weight on his conscience lest truth,
remain hidden from the Court's eye and not prevail in a case as
serious as one on a charge of murder. No doubt, the learned
Judge faltered, as we have already remarked, in permitting the
defence to examine Tikura as a defence witness, but he
attempted a course correction and heard the witness,
anomalously describing her as DW-1/ PW-2 and somewhere
mentioning at the top that she was recalled. In all that we have
spoken of earlier regarding the legality of the procedure, what is
important is that the witness was heard again by the learned
Sessions Judge in his anxiety to reach the truth and dispense as
accurate as possible justice could be in human hands.
86. In the dock, as we have elaborately set forth the testimony
of Tikura, she completely resiled from the prosecution case and
blamed her earlier wrong testimony on the fear of Pragat, Nirmal
and the Police. She narrated the same story, which was the
suggestion of the defence when she appeared as a prosecution

47
CRLA No. - 818 of 1985
witnesses and one, which she categorically denied during her
cross-examination, upon a complete and detailed suggestion
given to her to the same effect. Now, she has said that the truth
was that she and her son Shesh Bahadur were harvesting their
wheat crop and sometime of the night was still left. When they
reached near Patandeen's field, 4-5-6 men assaulted them. She
does not know any of the assailants. Her son died on the spot and
she fell unconscious. When she regained consciousness, it was
day and then Nirmal and Pragat came over to her, asking her to
sit there, as they were proceeding to the police station. She then
said that she never saw Nirmal receiving any injury. Next, Pragat
came back along with the Station House Officer. She has further
on said that she was not in her senses and for this reason did not
tell the Police Inspector that she had not recognized the
assailants.
87. During her cross-examination by the learned District
Government Counsel, she came out with the fact that she had no
field with her. Her son Shesh Bahadur had a field of one bigha.
She works as a labourer to earn her livelihood. She denied the
suggestion that the Pradhan had offered to give her a field. The
Pradhan, we must note here, is a reference to Hari Prasad, one of
the deceased appellants, who was convicted by the Trial Court
and was in appeal alongside the surviving appellant. She denied
the suggestion that Hari Prasad had given her a sum of Rs.2000/-
or promised to give her a field of two bigha on lease. She has
then said in her cross-examination that her daughter-in-law does
not provide her food. After the demise of her son Shesh Bahadur,
she had separated from her.
88. The field that stood in Shesh Bahadur's name, Pragat had
made her give it to her daughter-in-law. She has said that she
does not want the field, but needs a square meal, which her
daughter-in-law is not prepared to provide her with. She also said

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CRLA No. - 818 of 1985
that she had asked Pragat to ask her daughter-in-law to provide
for her, but he did not do anything about it. The witness was
confronted with her earlier testimony in the dock, and upon that,
she said that she did not give that testimony voluntarily. She gave
it out of fear. She said that she was brought to Court earlier by
Pragat and Nirmal forcibly. She had testified on the earlier
occasion out of fear of Pragat and Nirmal. She acknowledged the
fact that she never made a complaint against Pragat and Nirmal in
the matter.
89. A witness, like Tikura, who has testified with an account,
seamlessly consistent with the prosecution story in the first
instance, cannot be permitted to go back on her version at a later
point of time, particularly when her circumstances show her to be
vulnerable. Tikura is the helpless mother of a young man, who
was killed before her eyes and both the mother and son did not
come from an affluent background. The son had a field of one
bigha only and a tea-shop. The field was given away by Tikura to
her daughter-in-law, that is to say, Shesh Bahadur's wife, who
refused to provide her a square meal. She would work as a
labourer. One of the co-appellants of Ramakant, convicted
alongside him, was Hari Prasad, in fact a member of his family.
He was the Village Pradhan at the relevant time and a resourceful
man. Given the socioeconomic differences between parties as
well as Tikura's circumstances, it is not difficult to infer that she
attempted to regain an entry in the witness-box, not to answer the
call of her conscience, but in fact to abjure it and opt for falsehood
at the instance of the accused, falling for the mundane necessity
of keeping her body and soul together. We have not the slightest
hesitation in our mind that Tikura was suborned by the appellant
into changing her stance and laying the affidavit, paper No. 49-
Kha, before the Court.

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CRLA No. - 818 of 1985
90. Even as a matter of practice, to permit a witness, who has
remained consistent at the trial, to give an affidavit later on and
resile from his testimony, has met with judicial disapproval as a
matter of principle. In Yakub Ismailbhai Patel v. State of Gujarat,
(2004) 12 SCC 229, a decision that was followed in Kaleem by
the Madhya Pradesh High Court, PW-1 Munna @ Gheti, the
witness of res gestae against the appellants, who were tried for
murder after testifying to the conduct of the two accused,
consistent with the prosecution case in his dock evidence, later
filed an affidavit, saying that he had testified at the instance of the
Police. Rejecting the witnesses' endeavour to do a somersault,
the Supreme Court in Yakub Ismailbhai Patel (supra) held:
“ 38. Significantly this witness, later on filed an
affidavit, wherein he had sworn to the fact that
whatever he had deposed before Court as PW 1 was not
true and it was so done at the instance of the police.
39. The averments in the affidavit are rightly rejected
by the High Court and also the Sessions Court. Once the
witness is examined as a prosecution witness, he cannot
be allowed to perjure himself by resiling from the
testimony given in Court on oath. It is pertinent to
note that during the intervening period between giving
of evidence as PW 1 and filing of affidavit in court
later, he was in jail in a narcotic case and that the
accused persons were also fellow inmates there.”
91. In a somewhat similar situation, the Supreme Court in Nisar
Khan v. State of Uttaranchal, (2006) 9 SCC 386 observed:
“ 9. The other contention of Mr Jaspal Singh is that all
the eyewitnesses were turned hostile and the
credibility of their testimonies are doubted. It is
clearly apparent on the record that eyewitness PW 4
Naeem Babu had filed an application before the trial
Magistrate (Ext. Kha-27) that he has been threatened
and intimidated by the accused not to depose against
them. So also PW 1 and PW 2 who were eyewitnesses and
supported the prosecution case consistently, were
turned hostile. PW 1 and PW 2, direct eyewitnesses of
the occurrence were examined, cross-examined and
discharged on 4-1-2001. They were recalled on 7-1-2002
and re-examined by the defence on which date all of
them turned hostile and resiled from the previous
statement. It clearly appears that the eyewitnesses
were won over by threat or intimidation after more than
one year of their examination and cross-examination and
ultimately when the eyewitnesses were won over by the
accused they were recalled and re-examined on 7-1-2002.
Even on re-examination on 7-1-2002 the eyewitnesses
consistently supported the prosecution story with

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CRLA No. - 818 of 1985
regard to the date and place of incident, the car in
which they came and the genesis of the incident. To
that extent they supported the prosecution story. They
resiled from the previous statement only with regard to
the identity of the accused. It is in evidence on
record that the accused and prosecution parties are at
loggerheads because of business rivalry and known to
each other from before. Naturally, by the time the
eyewitnesses were recalled, they were won over either
by money, by muscle power, by threats or intimidation.
We are of the view that no reasonable person properly
instructed in law would allow an application filed by
the accused to recall the eyewitnesses after a lapse of
more than one year that too after the witnesses were
examined, cross-examined and discharged.”
92. In the circumstances, we are of clear opinion that it is too
perilous a course to attach any weight to the testimony of second
thought offered by Tikura, when she came back to the witness-
box as DW-1/ PW-2. We, therefore, refuse to act upon it or find for
the appellant any case that may entitle him to the benefit of doubt.
The appellant’s vicarious liability for the offences punishable
under Sections 302, 323, 324 IPC with the aid of Section 149 IPC,
if established?
93. The facts here present to us a case where if at all we have
to uphold the conviction for Ramakant on each of the charges that
he has been held guilty by the learned Sessions Judge, we would
be punishing him, as the learned Counsel for the appellant
submits, for acts of others as he himself never committed an act
or omission to kill or injure any of the victims. The submission is in
itself mostly besides the point. The conviction of the appellant is
on charges under Sections 302/149, 323/ 149, 324/ 149 IPC,
besides one under Section 147 IPC. Apart from the charge under
Section 149 IPC, of which the appellant has been held
substantively guilty by the learned Trial Judge, his conviction on
all other charges is by virtue of the fact that he was a member of
the unlawful assembly, where the others particeps criminis with
him, committed acts constituting the offences punishable under
Sections 302, 323 and 324 IPC in prosecution of the common

51
CRLA No. - 818 of 1985
object of the unlawful assembly, of which the appellant Ramakant
was a member.
94. Our attention is drawn to the fact that Ramakant was
wielding a lathi from the beginning, which he never used. The
unlawful assembly, that was formed with the assailants, arriving at
the deceased’s tea-shop at 6.30 in the morning on the fateful day,
according to the prosecution case, itself divided into two factions
of four members each, one going after Shesh Bahadur and Ram
Pragat, and the other, after Nirmal Pandey and Ram Shankar,
causing the group of men, who actually carried out the assault to
become two assemblies, each comprising less than five persons.
A fortiori, the divided groups, which carried out the attacks, in the
submission of the learned Counsel for the appellant, were not
unlawful assemblies within the meaning of Section 141 IPC, so as
to attract Section 149 IPC at all. We do not agree. The said
submission was also advanced before the learned Sessions
Judge, who repelled it with the following remark:
“44. There has been a rioting in the case beginning
with eight persons. The assembly was unlawful as they
had all mustored to do an illegal act and force was
also shown as well as used. It is something different
that in the details of occurrence the accused had to
divide themselves into two groups, each group going
below five in number. This to my mind, does not disturb
the status of unlawful assembly and the liability of
each accused by application of section 149 I.P.C....”
95. We agree with the reasoning of the learned Sessions Judge
on this score. We are of opinion that the reasoning should be
supplemented. As the evidence shows, the eight accused,
including the surviving appellant, alighted at the deceased Shesh
Bahadur's tea-shop at 6.30 a.m., three armed with deadly
weapons, and the other five, with lathi. The evidence broadly
shows that Hari Prasad exhorted others to kill Shesh Bahadur on
account of the fact that he had reported them in the case of theft
to the Police. The assembly was, therefore, decidedly unlawful
because the evidence read as a whole, including the subsequent

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CRLA No. - 818 of 1985
conduct of its members, show together with the exhortation made,
that the accused had come over to the deceased's tea-shop, all
armed and three with deadly weapons, to do him to death. They
were, therefore, decidedly an unlawful assembly under the Third
Clause of Section 141, because their numbers was more than five
and the common object was to kill Shesh Bahadur, and it is for
that purpose, that they had come over armed.
96. The opening words in the remark of the learned Sessions
Judge that, ' There has been a rioting in the case beginning with
eight persons', are not acceptable to us because while they had
arrived at the deceased's shop, and one of them exhorted the
others to kill him, no force or violence was used by members of
the assembly until that point of time within the meaning of Section
146 IPC. The evidence shows that this was the situation moments
before the assault would commence in order to accomplish the
object of the unlawful assembly. At that point time, Nirmal Pandey
and his son Ram Pragat intervened, who were soon joined by
Nirmal Pandey's other son Ram Shankar. There was a brief
attempt to dissuade the assailants. Shesh Bahadur, sensing
immediate danger to his life, ran for safety towards Village
Mugraha. Ram Pragat, also sensing danger, took the same
escape route as Shesh Bahadur. Nirmal Pandey and Ram
Shankar made a run for their life in the direction of Village Dasia.
The three other men reacted this way because when they
intervened, the members of the unlawful assembly showed their
immediate intention of assaulting them as well, with apparently
fatal consequences for each.
97. It is only because the number of victims went up from one to
four and they made off in two different directions that the
assailants, who were an unlawful assembly, split into two factions
in prosecution of their common object. The common object of the
assembly was to murder the victim Shesh Bahadur. The others

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CRLA No. - 818 of 1985
were perceived, as the evidence shows, as disrupters of the
assailants' design to kill Shesh Bahadur, and, therefore, attacked
alongside him. A complete unlawful assembly of eight men, three
armed with deadly weapons and the other five with lathi, split into
two groups or factions, ultimately in the prosecution of their
common object, reacting that way because of the unexpected
intervention of the three men, which includes PW-1 and PW-3.
The unlawful assembly, therefore, never dissolved. It continued its
task meeting the added challenge posed by the three men, who
intervened by dividing themselves into two groups, each chasing
two victims, including Shesh Bahadur.
98. What Section 149 IPC requires is if an offence is committed
by any member of an unlawful assembly in prosecution of the
common object of that assembly, or an act is committed by a
member of that assembly, which the other members knew to be
likely to be committed in prosecution of that object, every person,
who at the time of commission of the offence is a member of the
assembly, is guilty of that offence. The assembly that was formed
here, as remarked more than once, had formed with the object of
committing an offence, that is to say, the murder of Shesh
Bahadur. Three members of the assembly were armed with
deadly weapons, to wit, a country-made pistol, a spear and a
battle-axe (farsa). The appellant, no doubt, was armed with a
lathi, but the object was apparently known to each member, which
was to do Shesh Bahadur to death. There is an added reason to
think that the common object was well-known to the members of
the assembly, including the appellant.
99. After all, the appellant and the other accused, who have
appealed alongside him after conviction and passed away in
course of time, are members of the same family. PW-1, in his
examination-in-chief, has graphically described their blood
relationship, a fact which has nowhere been denied. This is an

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CRLA No. - 818 of 1985
added reason to presume that the common object of the
assembly was well-known to each member of it. Of course, the
fact that the common object was known, can as well be gathered
from other circumstances, such as, the arrival of all the members
together, the way they were armed and the fact that they got down
to business as soon as they arrived, speaking out their intentions
through Hari Prasad, who exhorted others to kill Shesh Bahadur.
The aberration in the profile of attack being divided into two sites
of occurrence, with two different sets of victims, came about
merely because three men intervened to save the situation. This
would not result in dissolution of the unlawful assembly at the
deceased's tea-shop, comprising the appellant and the seven
other accused, who arrived there to murder Shesh Bahadur, well
armed for the purpose.
100. The mere fact that the original eight split into two groups,
does not make the unlawful assembly, loose its character, as the
members divided in prosecution of the common object. The
faction, which went after Nirmal Pandey and his other son Ram
Shankar, too was acting in prosecution of the common object of
the assembly, that is to murder Shesh Bahadur, because they
were only abating the obstruction that Nirmal Pandey and his
sons had placed before them, moments before they would assault
the deceased at his shop. It is perhaps for this reason that the
witness, PW-1, a victim too, was shot in his left lower limb and the
faction chasing him abandoned the chase, after they were
assured that he was no longer in a position to rescue the
deceased. Thus, those members, who went after Nirmal Pandey
and Ram Shankar, continued to be as much members of the
unlawful assembly as the faction of the other four, which actually
went after Shesh Bahadur and did the evil deed that the unlawful
assembly had for its object.

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CRLA No. - 818 of 1985
101. In Mizaji and another v. State of U.P., AIR 1958 SC 572, the
question before the Supreme Court was, 'what was the common
object of the unlawful assembly and whether the offence of
murder was committed in prosecution of the common object or
was such an offence as the members of the unlawful assembly
knew was likely to be committed in prosecution of the common
object' , to borrow the words of their Lordships. In Mizaji (supra), it
was observed:
“ 4. ..... It was argued on behalf of the appellants that
the common object was to take forcible possession and
that murder was committed neither in prosecution of the
common object of the unlawful assembly nor was it such
as the members of that assembly knew to be likely to be
committed. That the common object of the unlawful
assembly was to take forcible possession of the Sukhana
field cannot be doubted. Can it be said in the
circumstances of this case that in prosecution of the
common object the members of the unlawful assembly were
prepared to go to the extent of committing murder or
they knew that it was likely to be committed? One of
the members of the assembly Tej Singh was armed with a
spear. His son Mizaji was armed with a pistol and
others were carrying lathis. The extent to which the
members of the unlawful assembly were prepared to go is
indicated by the weapons carried by the appellants and
by their conduct, their collecting where Tej Singh was
and also the language they used at the time towards the
complainant's party. The High Court has found that the
appellants “had gone prepared to commit murder if
necessary in the prosecution of their common object of
taking forcible possession of the land”, which it based
on the testimony of Matadin and Hansraj who deposed
that when the complainant's party arrived and objected
to what the appellants were doing they (the appellants)
“collected at once” and asked Ram Sarup and his
companions to go away otherwise they would finish all
of them and when the latter refused to go away, the
pistol was fired. That finding would indicate the
extent to which the appellants were prepared to go in
the prosecution of their common object which was to
take forcible possession of the Sukhana field. The High
Court also found that in any event the case fell under
the second part of Section 149, Indian Penal Code in
view of the weapons with which the members of the
unlawful assembly were armed and their conduct which
showed the extent to which they were prepared to go to
accomplish their common object.
5. Counsel for the appellants relied on Queen v. Sabid
Ali [(1873) 20 WR 5 Cr] , and argued that Section 149
was inapplicable. There the learned Judges constituting
the full bench gave differing opinions as to the
interpretation to be put on Section 149, Indian Penal
Code. That was a case where the members of an unlawful
assembly went to take forcible possession of a piece of
land. The view of the majority of the Judges was that,

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CRLA No. - 818 of 1985
finding unexpected opposition by one member of the
party of the complainants and also finding that they
were being overpowered by him, one of the members of
the unlawful assembly whose exact time of joining the
unlawful assembly was not proved fired a gun killing
one of the occupants of the land who were resisting
forcible dispossession. It was also held that the act
had not been done with a view to accomplish the common
object of driving the complainants, out of the land,
but it was in consequence of an unexpected counter-
attack. Ainslie, J., was of the opinion that the common
object of the assembly was not only to forcibly eject
the occupants but to do so with show of force and that
common object was compounded both of the use of the
means and attainment of the end and that it extended to
the committing of murder. Phear, J., said that the
offence committed must be immediately connected with
that common object by virtue of the nature of the
object. The members of the unlawful assembly must be
prepared and intend to accomplish that object at all
costs. The test was, did they intend to attain the
common object by means of murder if necessary? If
events were of sudden origin, as the majority of the
learned Judges held them to be in that case, then the
responsibility was entirely personal. In regard to the
second part he was of the opinion that for its
application it was necessary that members of the
assembly must have been aware that it was likely that
one of the members of the assembly would do an act
which was likely to cause death. Couch, C.J., was of
the opinion that firing was not in prosecution of the
common object of the assembly and that there was not
much difference between the first and the second part
of Section 149. He said:
“At first there does not seem to be much difference
between the two parts of the section and I think
the cases which would be within the first, offences
committed in prosecution of the common object,
would be, generally, if not always, within the
second, namely, offences which the parties knew to
be likely to be committed in the prosecution of the
common object. But I think there may be cases which
would come within the second part and not within
the first.”
Jackson, J., held in the circumstances of that case
that assembly did not intend to commit nor knew it
likely that murder would be committed. Pontifex, J.,
interpreted the section to mean that the offence
committed must directly flow from the common object or
it must so probably flow from the prosecution of the
common object that each member might antecedently
expect it to happen. In the second part “know” meant to
know that some members of the assembly had previous
knowledge that murder was likely to be committed.
6. This section has been the subject-matter of
interpretation in the various High Courts of India, but
every case has to be decided on its own facts. The
first part of the section means that the offence
committed in prosecution of the common object must be
one which is committed with a view to accomplish the
common object. It is not necessary that there should be
a preconcert in the sense of a meeting of the members

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of the unlawful assembly as to the common object; it is
enough if it is adopted by all the members and is
shared by all of them. In order that the case may fall
under the first part the offence committed must be
connected immediately with the common object of the
unlawful assembly of which the accused were members.
Even if the offence committed is not in direct
prosecution of the common object of the assembly, it
may yet fall under Section 149 if it can be held that
the offence was such as the members knew was likely to
be committed. The expression ‘know’ does not mean a
mere possibility, such as might or might not happen.
For instance, it is a matter of common knowledge that
when in a village a body of heavily armed men set out
to take a woman by force, someone is likely to be
killed and all the members of the unlawful assembly
must be aware of that likelihood and would be guilty
under the second part of Section 149. Similarly, if a
body of persons go armed to take forcible possession of
the land, it would be equally right to say that they
have the knowledge that murder is likely to committed
if the circumstances as to the weapons carried and
other conduct of the members of the unlawful assembly
clearly point to such knowledge on the part of them
all. There is a great deal to be said for the opinion
of Couch, C.J., in Sabid Ali case [(1873) 20 WR 5 Cr]
that when an offence is committed in prosecution of the
common object, it would generally be an offence which
the members of the unlawful assembly knew was likely to
be committed in prosecution of the common object. That,
however, does not make the converse proposition true;
there may be cases which would come within the second
part, but not within the first. The distinction between
the two parts of Section 149, Indian Penal Code cannot
be ignored or obliterated. In every case it would be an
issue to be determined whether the offence committed
falls within the first part of Section 149 as explained
above or it was an offence such as the members of the
assembly knew to be likely to be committed in
prosecution of the common object and falls within the
second part. ”
102. The principle, governing application of Section 149 IPC to
an individual, part of an unlawful assembly, is always a matter of
fact in each case to be gathered from the evidence on record. In
this regard, reference may be made to Lalji and others v. State of
U.P., (1989) 1 SCC 437, where the Supreme Court remarked:
“ 8. …..... The two essentials of the section are the
commission of an offence by any member of an unlawful
assembly and that such offence must have been committed
in prosecution of the common object of that assembly or
must be such as the members of that assembly knew to be
likely to be committed. Not every person is necessarily
guilty but only those who share in the common object.
The common object of the assembly must be one of the
five objects mentioned in Section 141 IPC. Common
object of the unlawful assembly can be gathered from
the nature of the assembly, arms used by them and the
behaviour of the assembly at or before scene of

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occurrence. It is an inference to be deduced from the
facts and circumstances of each case.”
103. Also relevant to the point are the principles laid down in
Gangadhar Behera and others v. State of Orissa, (2002) 8 SCC
381, where it was observed by the Supreme Court:
“ 23. “Common object” is different from a “common
intention” as it does not require a prior concert and a
common meeting of minds before the attack. It is enough
if each has the same object in view and their number is
five or more and that they act as an assembly to
achieve that object. The “common object” of an assembly
is to be ascertained from the acts and language of the
members composing it, and from a consideration of all
the surrounding circumstances. It may be gathered from
the course of conduct adopted by the members of the
assembly. What the common object of the unlawful
assembly is at a particular stage of the incident is
essentially a question of fact to be determined,
keeping in view the nature of the assembly, the arms
carried by the members, and the behaviour of the
members at or near the scene of the incident. It is not
necessary under law that in all cases of unlawful
assembly, with an unlawful common object, the same must
be translated into action or be successful. Under the
Explanation to Section 141, an assembly which was not
unlawful when it was assembled, may subsequently become
unlawful. It is not necessary that the intention or the
purpose, which is necessary to render an assembly an
unlawful one comes into existence at the outset. The
time of forming an unlawful intent is not material. An
assembly which, at its commencement or even for some
time thereafter, is lawful, may subsequently become
unlawful. In other words it can develop during the
course of incident on the spot eo instanti.
24. Section 149 IPC consists of two parts. The first
part of the section means that the offence to be
committed in prosecution of the common object must be
one which is committed with a view to accomplish the
common object. In order that the offence may fall
within the first part, the offence must be connected
immediately with the common object of the unlawful
assembly of which the accused was a member. Even if the
offence committed is not in direct prosecution of the
common object of the assembly, it may yet fall under
Section 141, if it can be held that the offence was
such as the members knew was likely to be committed and
this is what is required in the second part of the
section. The purpose for which the members of the
assembly set out or desired to achieve is the object.
If the object desired by all the members is the same,
the knowledge that is the object which is being pursued
is shared by all the members and they are in general
agreement as to how it is to be achieved and that is
now the common object of the assembly. An object is
entertained in the human mind, and it being merely a
mental attitude, no direct evidence can be available
and, like intention, has generally to be gathered from
the act which the person commits and the result
therefrom. Though no hard-and-fast rule can be laid

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down under the circumstances from which the common
object can be culled out, it may reasonably be
collected from the nature of the assembly, arms it
carries and behaviour at or before or after the scene
of incident. ….....”
104. The same principles were approved by the Supreme Court
in Zainul v. State of Bihar, 2025 SCC OnLine SC 2152. It was held
in Zainul (supra):
“ 49. The expression “in prosecution of the common
object” means that the offence committed must be
directly connected with the common object of the
assembly, or that the act, upon appraisal of the
evidence, must appear to have been done with a view to
accomplish that common object. In Charan Singh v. State
of U.P. , (2004) 4 SCC 205, this Court held that the
test for determining the “common object” of an unlawful
assembly must be assessed in light of the conduct of
its members, as well as the surrounding circumstances.
It can be deduced from the nature of the assembly, the
weapons carried by its members, and their conduct
before, during, or after the incident. ….
50. To put it briefly, Section 149 of the IPC makes all
the members of an unlawful assembly constructively
liable when an offence is committed by any member of
such assembly with a view to accomplish the common
object of that assembly or the members of the assembly
knew that such an offence was likely to be committed.
However, such liability can be fastened only upon proof
that the act was done in pursuance of a common object.
….....
51. Undoubtedly, once the existence of a common object
amongst the members of an unlawful assembly is
established, it is not imperative to prove that each
member committed an overt act. The liability under this
provision is attracted once it is certain that an
individual had knowledge that the offence committed was
a probable consequence in furtherance of the common
object, thereby rendering him a “member” of the
unlawful assembly.
52. While ascertaining this fact, it is of utmost
importance to consider whether the assembly consisted
of some persons who were merely passive onlookers who
had joined the assembly as a matter of idle curiosity,
without the knowledge of the common object of the
assembly, since such persons cannot be said to be
members of the unlawful assembly. We say so because,
the nucleus of Section 149 is “common object”.”
105. Here, as the evidence shows, the members of the unlawful
assembly were, by no means, passive or curious bystanders.
They were one assembly, whose object was to do Shesh Bahadur
to death. We have already remarked that the splitting up of the
assembly into two groups was a modification of the modus of

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assault on account of the unexpected intervention by three men,
to wit, Nirmal Pandey, Ram Pragat and Ram Shankar. The object
of the unlawful assembly, that the assailants formed, was never
abandoned. It is only that it separated into two groups to ensure
that the object could be better fulfilled. Those, who went behind
Nirmal Pandey and Ram Shankar, were acting in prosecution of
the same common object to eliminate Shesh Bahadur, and all that
they did was to obviate any interference by men, like Nirmal
Pandey and his son Ram Shankar, who wished to dissuade the
perpetrators.
106. If the action of the faction led by Sadhu Saran is to be seen
and spoken of at the cost of some repetition, one cannot fail to
notice that as soon as Sadhu Saran had shot Nirmal Pandey in a
non-vital part of the body and was assured of the fact that he
would not interfere in accomplishment of the object that the
unlawful assembly had, and his son Ram Shankar too had
continued his escape, this faction of the unlawful assembly
returned with no further pursuit. Ultimately, the object of the
unlawful assembly was not to murder Nirmal Pandey or Ram
Shankar. It was to eliminate Shesh Bahadur, an object all the
members of the assembly shared in common from the inception. It
was never abandoned. All members of the assembly contributed
to it in some measure.
107. As far the appellant Ramakant is concerned, much was said
that he did no more than to wield a lathi, which he did not employ
to deliver even a single blow. That, in our opinion, hardly matters.
When he went along with Sadhu Saran and two others after
Nirmal Pandey and Ram Shankar, he was acting in prosecution of
the common object of the assembly to chase away men, who
could dissuade members of the unlawful assembly in
accomplishing their object of murdering Shesh Bahadur or
interfere with the fulfillment of that object. Thus, he went with

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Sadhu Saran, who was armed with a country-made pistol, albeit
holding a lathi, as his reserve force, to enable him to deal with the
intruders, who had endeavoured to obstruct the unlawful
assembly in the fulfillment of its common object.
108. In our considered view, therefore, the appellant Ramakant
would be as much liable for the offence under Section 302/ 149
IPC as those who actually murdered Shesh Bahadur. The other
offences, held proved against the appellant Ramakant, are
beyond exception, and the evidence on record well establishes
each of them. We are, therefore, not inclined to interfere with the
impugned judgment and order passed by the learned Sessions
Judge, convicting and sentencing the appellant.
109. In the result, this appeal fails and is dismissed. The
appellant Ramakant is on bail. He would surrender to his bail
bonds in order to serve out the sentence of law imposed upon
him. His bail bonds stand cancelled and the sureties discharged.
In the event, however, the appellant does not surrender within a
period of four weeks from date, the Chief Judicial Magistrate,
Basti, shall ensure that he is caused to be arrested and committed
to prison.
110. Let a copy of this judgment be forwarded to the Trial Court
concerned along with the lower court record for information and
necessary compliance.
(Tarun Saxena,J.) (J.J. Munir,J.)
May 05, 2026
Anoop
Digitally signed by :-
ANOOP KUMAR SINGH
High Court of Judicature at Allahabad