Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1029 OF 2023
SITA RAM …APPELLANT
versus
THE STATE OF UTTAR PRADESH ...RESPONDENT
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The appellant is the original accused no.9. The
appellant and the accused no.10 – Ram Bachan, were
convicted for the offence punishable under Section 302
read with Section 34 of the Indian Penal Code, 1860 (for
short, ‘IPC’). Accused nos. 1 to 8 were convicted for the
offence punishable under Section 325 read with Section
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.04.12
19:13:36 IST
Reason:
149 of IPC. The appellant and the accused no.10 were
sentenced to undergo life imprisonment. The accused
Criminal Appeal No.1029 of 2023
Page 1 of 8
no.10 died during the pendency of the appeal before the
High Court of Judicature at Allahabad.
th
2. The incident is of 17 August 1984. According to
the prosecution’s case, PW1 Uday Raj Maurya, PW2
Ram Aadhar (father of PW1) and Karam Hussain
(deceased) were sitting near the doorsteps of the house of
PW1 and PW2. Their discussion was about irrigating
the fields. According to the prosecution’s case, there was
previous enmity between PW1 and PW2 on the one
hand and the accused persons on the other. There was a
case filed against the family of the accused no.1 in which
PW2 was a witness. According to the prosecution’s case,
a decree was passed in favour of PW1 and PW2 and
against accused no.7 Tufani. Moreover, PW2 had filed
the case against accused no.3 and accused no.4. While
PW1, PW2 and the deceased were discussing the issue
of irrigating their fields, the accused persons came there
carrying bricks and bamboo sticks. The appellant was
carrying a spade. At that time, accused nos.4 and 6
shouted that PW1, PW2 and the deceased should be
killed so that the case gets finished. On hearing this,
PW1, PW2 and the deceased ran towards the northern
side of the house of PW1. The accused persons chased
and surrounded them. The appellant attacked the
deceased on his head with the blunt edge of the spade.
Criminal Appeal No.1029 of 2023
Page 2 of 8
He also attacked PW2 by using the same weapon. After
the deceased fell down, the accused continued to assault
the said three persons with bamboo sticks. Karam
Hussain, the deceased, succumbed to the injuries
sustained due to the assault made by the appellant and
the accused no.10. The prosecution examined eight
witnesses, out of which, PW1 and PW2 were the eye
witnesses. The Sessions Court believed the testimony of
PW1 and PW2 and convicted the accused. In the appeal
before the High Court, the conviction of the appellant was
confirmed. However, accused nos.1 and 2, who were the
only other surviving accused, were acquitted.
SUBMISSIONS
3.
The learned counsel appearing for the appellant
urged that both PW1 and PW2 admitted in the cross
examination that they had not seen which accused
assaulted the deceased. Moreover, three eyewitnesses
who were present at the time of the incident were not
examined. He, therefore, submitted that the conviction of
the appellant cannot be sustained.
The learned senior counsel representing the
4.
respondent – State of Uttar Pradesh pointed out that both
PW1 and PW2 have clearly stated that the appellant
Criminal Appeal No.1029 of 2023
Page 3 of 8
assaulted the deceased on his head with the blunt edge
of the spade. He submitted that the medical evidence
supports the version of PW1 and PW2 as far as the
assault by the appellant on the deceased is concerned.
He submitted that both the Courts have believed the
testimony of PW1 and PW2 as far as the assault on the
deceased is concerned and that there was no perversity
in the findings recorded by the Sessions Court and the
High Court. He submitted that no interference be made
with the conviction of the appellant.
OUR VIEW
5.
We have perused the evidence of PW1 and PW2.
We may note here that the High Court has disbelieved
their versions to the extent to which they deposed about
the injuries received by them in the incident at the hands
of the accused. In fact, there is a specific finding that the
version of PW1 and PW2 about the assault on them
does not inspire confidence.
6. It is true that both PW1 and PW2, in their
examinationinchief, have stated that the appellant
assaulted the deceased on his head with the blunt edge
of the spade. In the examinationinchief, PW1 stated
that his father PW2 fell on the ground due to the injuries
Criminal Appeal No.1029 of 2023
Page 4 of 8
sustained by him as a result of the assault made by
bamboo sticks. Thereafter, the deceased tried to run
away when he was caught by one of the accused persons
and thereafter, the appellant assaulted the deceased.
PW1, in paragraph 19 of his crossexamination, stated
that he and PW2 fell down as a result of the attack by
the accused persons, and therefore, he had not seen
which accused assaulted them with which weapon. He
admitted that he is unable to tell which accused
assaulted him. In the examinationinchief, PW1 did not
state that he also fell down after he and his father were
attacked. The version of his father PW2 is that after
both of them fell down, there was an assault on the
deceased.
Now, coming to the testimony of PW2, in his
7.
examinationinchief, he stated that after two accused
persons shouted that PW1, PW2 and the deceased
should be killed, he started running away. He stated that
he fell down due to an assault made by the accused, and
thereafter, PW1 fell down. He stated that thereafter, the
appellant assaulted the deceased. In paragraph 10 of the
crossexamination of PW2, he stated that he and his son
PW1 were beaten at the same time. However, he
accepted that he had not seen who had assaulted whom.
The version of PW1 and PW2 in the crossexamination
Criminal Appeal No.1029 of 2023
Page 5 of 8
creates serious doubt as to whether they had seen any
particular accused assaulting the deceased.
8. There is another important aspect of the matter.
PW1, in his examinationinchief, stated that when he,
PW2 and the deceased were being assaulted, after
hearing their shouts, Munif, Murtaza and Iltaf rushed
there. They stopped near the house of one Funnu and
shouted at the accused to leave PW1, PW2 and the
deceased. However, the accused continued to assault
them. Even PW2 stated that the witnesses, Munif,
Murtaza and Iltaf came to the spot where he was being
assaulted along with other villagers. It must also be
noted here that in paragraph 20 of the cross
examination, PW1 stated that many villagers have seen
the incident, including the witness Munif. PW6 Shiv
Narayan Singh, who had investigated the offence, stated
in his examinationinchief that he had recorded the
statements of witnesses Munif, Iltaf and Murtaza.
However, he has not stated any reason for not examining
these three independent eyewitnesses. In fact, in
paragraph 15 of the crossexamination of PW2, he stated
that witness Munif had come to the Court on the very day
on which his evidence was recorded, but he had become
hostile.
Criminal Appeal No.1029 of 2023
Page 6 of 8
9. As observed earlier, there is serious doubt whether
PW1 and PW2 had really seen the appellant assaulting
the deceased with the blunt edge of the spade. There was
a prior enmity between the two eyewitnesses and the
accused. Moreover, at least three independent
eyewitnesses were available whose statements under
Section 161 of the Code of Criminal Procedure, 1973 (for
short, ‘Cr.P.C.’) were admittedly recorded. One of them
(Munif) admittedly attended the Court but was not
examined. It is true that when there are a number of
eyewitnesses, the prosecution’s case cannot be
disbelieved on the ground that few of the eyewitnesses
were not examined, especially when the version of the
eyewitnesses examined before the Court, inspires
confidence. In the present case, version of PW1 and PW
2 does not inspire confidence. That is how the failure of
the prosecution to examine three independent
eyewitnesses whose statements were recorded, becomes
very relevant. Moreover, one of the three witnesses
attended the Court but was not examined. Considering
the fact that the testimony of PW1 and PW2 who were
allegedly injured witnesses, cannot be believed, adverse
inference will have to be drawn on account of the
prosecution’s failure to examine the three eyewitnesses.
Criminal Appeal No.1029 of 2023
Page 7 of 8
10. Therefore, we hold that the prosecution has failed to
prove the guilt of the appellant beyond a reasonable
doubt. Hence, the conviction of the appellant under the
impugned judgment and orders is set aside, and the
appellant is acquitted of the charges framed against him.
th
The order dated 8 February 2021 passed by this Court
records that the appellant has surrendered. We,
therefore, direct that the appellant shall be forthwith set
at liberty unless he is required in connection with any
other case. The appeal is, accordingly, allowed.
….……………J.
(Abhay S. Oka)
1.
.………………J.
(Pankaj Mithal)
New Delhi;
April 12, 2023.
Criminal Appeal No.1029 of 2023
Page 8 of 8