2026 INSC 707 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 239 OF 2013

DEO PRASAD AND ANR. .….APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH … .RESPONDENT(S)

WITH

CRIMINAL APPEAL NO(S). 237 OF 2013

CRIMINAL APPEAL NO(S). 238 OF 2013

CRIMINAL APPEAL NO(S). 236 OF 2013

J U D G M E N T

Mehta, J.

1. Heard.

BACKGROUND OF THE CASE

2. The appellants herein

1 along with one Ram

Dhani

2 were tried by the learned III Additional

1

Appellant-Accused No. 1 (Raj Kishore- Appellant in Criminal Appeal

No. 237 of 2013); Appellant-Accused No. 2 (Hira Lal- Appellant in

Criminal Appeal No. 238 of 2013); Appellant-Accused No. 3 (Raj Bux-

Appellant in Criminal Appeal No. 236 of 2013); Appellant-Accused No. 5

(Deo Prasad- Appellant No. 1 in Criminal Appeal No. 239 of 2013); and

Appellant-Accused No. 6 (Subedar- Appellant No. 2 in Criminal Appeal

No. 239 of 2013). Collectively, they are being referred to as “accused-

appellants”.

2

Died during the pendency of appeal before the High Court.

Criminal Appeal No.239 of 2013 and connected matters 2

Sessions Judge, Gonda

3, in Sessions Trial No. 242 of

1978 for the offences punishable under Sections 147,

148 and 302 read with 149 of the Indian Penal Code,

1860.

4 Vide judgment of conviction and order of

sentence dated 3

rd June, 1981, the trial Court

convicted the appellant-Accused Nos. 1, 2 and 3 for

the offences punishable under Sections 148 and 302

read with 149 of IPC, and Ram Dhani, appellant -

Accused Nos. 5 and 6 for the offences punishable

under Sections 147 and 302 read with 149 of IPC and

sentenced them in the terms indicated below: -

appellant-Accused No. 1, appellant-Accused No. 2 and

appellant-Accused No. 3

Section Sentence

Section 148 IPC Rigorous

Imprisonment of 3

years

Sections 302 read with 149 of IPC Life Imprisonment

Ram Dhani, appellant-Accused No. 5 and appellant-

Accused No. 6

Section 147 IPC Rigorous

Imprisonment of 2

years

Sections 302 read with 149 of IPC Life Imprisonment

3

Hereinafter, being referred to as ‘trial Court’.

4

For short, ‘IPC’.

Criminal Appeal No.239 of 2013 and connected matters 3

3. Being aggrieved, the accused-appellants

preferred an appeal

5 to the High Court of Judicature

at Allahabad, Lucknow Bench

6, for assailing their

conviction and the sentences awarded to them. The

learned Division Bench of the High Court , vide

judgment and order dated 20

th November, 2011,

dismissed the appeal preferred by the accused-

appellants and affirmed the judgment of conviction

and order of sentence passed by the trial Court.

However, the appeal in respect of co-accused, Ram

Dhani stood abated, as he expired during the

pendency of appeal before the High Court. The said

judgment of the High Court is the subject matter of

challenge in the present appeals by way of special

leave.

4. At the outset, it may be noted that this Court

granted bail to appellant-Accused Nos. 5 and 6 vide

order dated 29

th April, 2011 and to appellant-

Accused Nos. 1 and 3 vide order dated 1

st February,

2013. However, the prayer for suspension of sentence

made on behalf of appellant-Accused Nos. 2 was

5

Criminal Appeal No. 418 of 1981.

6

Hereinafter, referred to as ‘High Court’.

Criminal Appeal No.239 of 2013 and connected matters 4

rejected vide order dated 1

st February, 2013, in view

of the fact that the role attributed to him was graver.

5. It is also relevant to note that Raj Kishore

(appellant-Accused No. 1) and Deo Prasad (appellant-

Accused No. 5) passed away during the pendency of

the present appeals before this Court. In view thereof,

Criminal Appeal No. 237 of 2013, preferred on behalf

of Raj Kishore (appellant-Accused No. 1), and

Criminal Appeal No. 239 of 2013, insofar as it

pertains to Deo Prasad (appellant-Accused No. 5),

stand abated.

FACTUAL MATRIX

6. Succinctly, the story of the prosecution as

adumbrated in the First Information Report

7 is that

in the intervening night of 27

th/28

th June, 1977, a

man intending to commit theft was apprehended at

the house of the complainant, Raghav Ram (PW-1)

8

,

situated in village Lalemau Pure Pundit, Police

Station Colonelganj, District Gonda. The

complainant (PW-1) along with the apprehended

suspect proceeded to the police station in the

7

FIR No. 157 of 1977.

8 Hereinafter, being referred to as ‘complainant (PW-1)’.

Criminal Appeal No.239 of 2013 and connected matters 5

company of Ram Nath (PW-2), Badri Prasad, Ishwar

Saran and Baksha Ram (the village chowkidar). After

lodging the report, Badri Prasad, Ishwar Saran and

the chowkidar returned home, while the complainant

(PW-1) and Ram Nath (PW -2) proceeded towards

Bardhai Bazar (cattle fair), where they met Harihar

Saran, Babu Ram and Nand Lal Singh (PW-4).

7. Thereafter, at about 4:00 p.m., all of them

started their return journey and around 4:30 p.m.,

they reached the western border of village

Kanchanpur. At that time, the accused-appellants

and Ram Dhani, armed with ‘kanta’, ‘ballam’ and

‘lathi’, emerged from the side of the road where they

were lying in ambush under a bail tree challenging

the complainant party and raising cries of “Mar lo

saale ko”. The complainant (PW-1) and his

companions raised an alarm and attempted to flee

from the spot, but Harihar Saran

9 could not escape

and fell into the clutches of the assailants. It is

alleged that the accused-appellants assaulted the

deceased-victim with ‘kanta’, ‘ballam’ and ‘lathi’.

Though the complainant (PW-1) and others

9

Hereinafter, being referred to as ‘deceased-victim’.

Criminal Appeal No.239 of 2013 and connected matters 6

attempted to rescue the deceased-victim, they could

not succeed. In the meantime, villagers from

Kanchanpur gathered at the spot, whereupon the

accused-appellants along with Ram Dhani fled away

towards the western side. When the villagers reached

the spot, they found the deceased-victim lying on the

roadside. Two bicycles allegedly belonging to the

accused-appellants and Ram Dhani were found

abandoned under the bail tree.

8. Pursuant thereto, on the dictation of Raghav

Ram (PW-1), a written complaint

10 was scribed by

Ram Nath (PW-2) at the place of occurrence itself and

the same was presented at Police Station Colonelganj

at about 07:00 p.m. on the same day. Based on the

said complaint, an FIR bearing Crime No. 157 of 1977

was registered against the accused-appellants and

Ram Dhani for the offences punishable under

Sections 147, 148, 149 and 302 of the IPC.

9. The investigation of the case was taken up by

Sub-Inspector, Ram Shanker Dwivedi (PW -10), the

first Investigating Officer

11, who was the first to reach

10

Exhibit Ka-1.

11

Hereinafter, being referred to as ‘first Investigating Officer (PW-10)’.

Criminal Appeal No.239 of 2013 and connected matters 7

the place of occurrence. The dead body of Harihar

Saran (deceased-victim) was located and inquest

proceedings were commenced but could not be

completed due to insufficient light. On the following

morning, the inquest proceedings were completed

and necessary documents including the inquest

report

12, photo lash, challan lash, letter to the Chief

Medical Officer, etc., were prepared. The dead body of

Harihar Saran (deceased-victim) was subjected to

autopsy by Dr. H.C. Srivastava (PW-3), who proved

the post-mortem report

13 noting details of the ante-

mortem injuries found on the body. He opined that

the cause of death was shock and haemorrhage as a

result of the ante-mortem injuries and also gave the

probable time of death and the nature of weapons

which could have caused such injuries.

10. During the course of investigation, two bicycles

allegedly belonging to the accused-appellants and

one belonging to the deceased-victim were recovered

from the spot.

14 Blood-stained soil

15 and plain soil

12

Exhibit Ka-6.

13

Exhibit Ka-2.

14

Exhibit Ka-3 to Ka-5 and Material Object Nos. 1 to 3.

15

Material Object No. 4.

Criminal Appeal No.239 of 2013 and connected matters 8

(sada mitti)

16 were collected and a site plan

17 was

prepared. Statements of the witnesses were recorded.

The first Investigating Officer ( PW-10) was

transferred in the meantime and thus, further

investigation was entrusted to Shivdas Singh

Sachan, the second Investigating Officer (PW-6)

18,

who recorded the statements of the remaining

witnesses and upon completion of the investigation,

submitted a chargesheet against the accused -

appellants and Ram Dhani for the aforesaid offences

in the Court of the jurisdictional Magistrate.

11. Since the case was exclusively triable by the

Sessions Court, the Chief Judicial Magistrate, Gonda

vide order dated 17

th October, 1978 committed the

case to the trial Court, which framed charges against

the accused-appellants and Ram Dhani, to which

they pleaded not guilty and claimed to be tried. In

order to prove its case, the prosecution examined ten

witnesses, exhibited 16 documents and 5 material

objects. Raghav Ram (PW-1; Complainant), Ram Nath

(PW-2; scribe of the FIR) and Nand Lal Singh (PW-4)

16

Material Object No. 5.

17

Exhibit Ka-11.

18

Hereinafter, being referred to as ‘second Investigating Officer (PW-10)’.

Criminal Appeal No.239 of 2013 and connected matters 9

were projected as eye-witnesses to the occurrence.

Ram Khilawan (PW-5), father of the deceased-victim,

was examined to establish the motive for the offence.

Shivdas Singh Sachan, the second Investigating

Officer (PW-6) proved the chargesheet and the

investigation conducted by him. Ram Vilas (PW-7)

proved the recovery of bicycles and seizure of blood-

stained earth and was also a witness to the inquest

proceedings. Constable Suresh Chandra Yadav (PW-

8) proved the general diary entries

19 and the chik

FIR

20. Head Constable Brij Bihari Pandey (PW-9)

proved the deposit and production of the bicycles.

Ram Shanker Dwivedi, the first investigating Officer

(PW-10) deposed about the steps of investigation

conducted by him.

12. By resorting to the procedure under Section 313

of the Code of Criminal Procedure, 1973,

21 the

accused-appellants and Ram Dhani were questioned

and confronted with the incriminating circumstances

appearing against them in the case put up by the

prosecution. All the accused-persons denied the

19

Exhibit Ka-12 and Ka-13.

20

Exhibit Ka-14.

21

For short, “CrPC”.

Criminal Appeal No.239 of 2013 and connected matters 10

correctness of the prosecution case and claimed that

they had been falsely implicated owing to prior

enmity. Appellant-Accused No. 6 (Subedar) claimed

to be related to appellant-Accused No. 5 (Deo Prasad).

Appellant-Accused No. 5 (Deo Prasad) stated that his

father had contested the elections for village pradhan

against the deceased-victim. The deceased-victim lost

the election due to which, he had been falsely

implicated in the present case. Accused-Ram Dhani

(deceased) stated that he had enmity with Shiv

Saran, the brother of Raghav Ram (PW -1;

Complainant) and Ram Khilawan (PW-5; father of the

deceased-victim). Appellant-Accused No. 1, 2 and 3

(Raj Kishore, Hira Lal and Ram Bux) also took similar

pleas of false implication due to animosity.

13. In defence, the accused persons examined 1

witness, Badal (DW-1), who claimed that on the

morning of the incident, he had seen 10 to 15 persons

standing near the pathway looking at the dead body

of deceased-victim and that no one from the family of

the deceased-victim was present at the spot. Two

court witnesses, Amresh Singh (CW-1) and

Vishwanath (CW-2), were also examined to establish

Criminal Appeal No.239 of 2013 and connected matters 11

the ownership of the bicycles recovered from the

place of occurrence.

14. The trial Court, upon appreciating the

arguments advanced by the learned Public

Prosecutor and the defence counsel and upon

detailed analysis of the oral and documentary

evidence available on record, found the accused-

appellants as well as Ram Dhani guilty of the charges

framed against them and convicted and sentenced

them vide judgment of conviction and order of

sentence dated 3

rd June, 1981, in the terms indicated

supra.

15. Dissatisfied with the judgment of conviction and

order of sentence passed by the trial Court, the

accused-appellants along with Ram Dhani preferred

an appeal under Section 374(2) CrPC to the High

Court challenging their conviction and sentences

awarded to them. During the pendency of the said

appeal, Ram Dhani expired and consequently, the

appeal in respect of the said co-accused stood abated.

The appeal in respect of the accused-appellants was

dismissed by the High Court vide judgment and order

dated 20

th November, 2011, which is the subject

Criminal Appeal No.239 of 2013 and connected matters 12

matter of challenge in the present appeals by way of

special leave.

SUBMISSIONS ON BEHALF OF THE ACCUSED-

APPELLANTS

16. Learned counsel representing the accused-

appellants assailed the impugned judgment of the

High Court as well as the judgment of conviction and

order of sentence passed by the trial Court on the

following grounds: -

a. That the High Court failed to consider, or rather

omitted to consider, that the alleged occurrence is

stated to have taken place in the late hours of the

day and even the inquest proceedings were carried

out on the next morning. It was urged that the FIR

was actually not registered at the projected time

and the entire prosecution story was developed ex

post facto after conducting the investigation,

thereby creating serious doubts about the

genuineness of the FIR and the involvement of the

accused-appellants. It was further submitted that,

despite the alleged occurrence having been

reported on 28

th June, 1977, neither the family

members of the deceased-victim nor the police

Criminal Appeal No.239 of 2013 and connected matters 13

authorities took any steps to safeguard the dead

body, which remained lying exposed at the place of

occurrence throughout the intervening night.

Considering the rural and orthodox background of

the parties, it is wholly unnatural that the victim’s

close family members neither checked on his

condition nor took steps to secure the dead body

from exposure to the elements and animals

throughout the night, thereby lending credence to

the defence plea that the incident did not occur at

the time and in the manner alleged by the

prosecution.

b. That the High Court failed to appreciate that even

the police officials to whom the occurrence was

allegedly reported on 28

th June, 1977 did not take

any steps to safeguard the dead body or preserve

the scene of occurrence. It was further submitted

that no police guard was posted near the dead

body despite the seriousness of the alleged offence.

Considering the proximity of the police station to

the place of occurrence, which was situated at a

distance of merely 3½ miles, it is wholly

inexplicable that no effort was made to remove the

dead body to the hospital mortuary, and that it

Criminal Appeal No.239 of 2013 and connected matters 14

was allowed to remain unattended at the spot

throughout the intervening night. Such inaction is

wholly inconsistent with the routine police

procedure and natural conduct, and casts serious

doubt on the prosecution version regarding the

time and manner of occurrence, and so also the

registration of the FIR, thereby supporting the

defence plea that the FIR was registered post

investigation after due deliberation and

consultation. The delay in carrying out post -

mortem which was conducted as late as on 30

th

June,1977 further fortifies the fact of the FIR being

registered much after the investigation had already

been conducted.

c. That the High Court failed to appreciate that there

existed deep-rooted political rivalry and animosity

between the accused-appellants and the deceased-

victim inasmuch as father of appellant-Accused

No. 5 had contested the election of village Pradhan

against the deceased-victim, who had lost the

election. This political enmity provided the

complainant party ample motive for false

implication. It was further submitted that the

other accused persons also had long -standing

Criminal Appeal No.239 of 2013 and connected matters 15

prior enmity with Shiv Saran, the brother of

Raghav Ram (PW -1; Complainant) and Ram

Khilawan (PW-5; father of the deceased-victim).

These crucial circumstances, clearly

demonstrating the existence of animosity between

the parties, were noticed by the trial Court but

were completely ignored by the High Court while

affirming the conviction.

d. That the High Court failed to appreciate that the

prosecution story regarding the presence of the so-

called eye-witnesses at the crime scene is highly

improbable, unnatural, and inherently

unbelievable. It was urged that the post-mortem

examination of the deceased was conducted only

on 30

th June, 1977, and the symptoms noticed by

the medical jurist, Dr. H.C. Srivastava (PW-3), on

the dead body clearly support the defence case

that the incident had, in fact, occurred much later

than alleged and that the prosecution story was

subsequently orchestrated to establish the

presence of the so-called eye-witnesses at the

place of occurrence. The medical jurist admitted

that the death could have occurred between one

and a half to two and a half days prior to the post-

Criminal Appeal No.239 of 2013 and connected matters 16

mortem, thereby creating serious doubt regarding

the date and time of the incident as stated in the

FIR. The conduct attributed to the alleged eye-

witnesses is equally unnatural, inasmuch as

despite claiming to have witnessed a fatal assault

upon a close associate, they neither took effective

steps to secure the dead body nor did the police

officials ensure the prompt initiation of the

investigative formalities, both being strong

indicators casting grave doubt upon their claimed

presence at the place of occ urrence and

substantially undermine the credibility of the

prosecution case.

e. That the High Court completely glossed over the

material inconsistencies and contradictions in the

testimony of prosecution witnesses. The witnesses

of fact examined by the prosecution are interested

and partisan witnesses and no independent,

credible or neutral witness has been produced to

establish the presence of the accused-appellants

at the place of occurrence. The trial Court itself

entertained doubts regarding the prosecution

version and yet proceeded to convict the accused

Criminal Appeal No.239 of 2013 and connected matters 17

on such flimsy ocular testimony of interested

witnesses.

f. That the High Court failed to appreciate that the

prosecution has not been able to establish any

logical or convincing motive for the alleged offence.

No credible explanation has been offered as to why

the accused-appellants would commit such a

grave offence in broad daylight in the presence of

several witnesses, thereby rendering the

prosecution story inherently doubtful. It was

further submitted that the prosecution version

itself indicates that the complainant party

comprised several persons accompanying the

deceased-victim and, therefore, it is inherently

improbable that the accused-appellants would

selectively target only the deceased-victim while

leaving the others completely unharmed. This

circumstance strikes at the very genesis of the

prosecution narrative and renders the alleged

manner of occurrence doubtful.

g. That the High Court failed to appreciate that no

recovery of any weapon was effected from the

accused-appellants or from the place of

occurrence. Though it was alleged that the

Criminal Appeal No.239 of 2013 and connected matters 18

accused-appellants were armed with ‘kanta’,

‘ballam’ and ‘lathi’, no such weapon was

recovered. No injury on the body of the deceased-

victim could have been caused by a lathi. On the

contrary, the medical jurist, Dr. H.C. Srivastava

(PW-3) admitted that all the injuries to the

deceased-victim were caused by sharp -edged

weapons, which were never recovered by the

Investigating Officers.

h. That the High Court failed to consider that the

recovery of three bicycles from the spot does not

incriminate the accused -appellants in any

manner. It was further urged that the

prosecution’s attempt to attribute ownership of the

bicycles to the accused-appellants is wholly

speculative and unsupported by reliable evidence,

as no witness examined during the investigation

could establish, even with a semblance of

certainty, that the bicycles belonged to them.

Significantly, the ownership and role of the person

to whom the third bicycle allegedly belonged were

never investigated, thereby rendering the alleged

recovery meaningless, devoid of evidentiary value,

and wholly unreliable.

Criminal Appeal No.239 of 2013 and connected matters 19

i. That the High Court failed to appreciate that the

appellant-Accused No. 6, i.e., Subedar, was a

minor at the time of the alleged incident and was

therefore entitled to the benefit of the Juvenile

Justice Act. The High Court completely overlooked

this crucial legal issue and mechanically affirmed

the conviction of the said accused without

examining the plea of juvenility, which goes to the

very root of the matter. The sentence imposed

upon the appellant-Accused No. 6 is thus illegal,

void and unsustainable in law.

j. That the High Court failed to appreciate that the

investigation itself was tainted, highly biased and

unreliable. Multiple case diaries were prepared

and the investigation appeared to have been

manipulated for the purpose of ante-dating the

proceedings, which completely erodes the

credibility of the prosecution’s case. It was further

submitted that despite the incident having

occurred at about 04:00 p.m. in broad daylight

during peak summer, with sufficient time and

visibility, no plausible explanation was offered for

not conducting the inquest immediately and for

delaying the post-mortem examination till the

Criminal Appeal No.239 of 2013 and connected matters 20

third day. Such unexplained and inordinate delay

in undertaking crucial stages of investigation,

including the preparation of Panchayatnama,

demonstrate non-adherence to due procedure and

lack of scientific investigation, and therefore, the

benefit of such serious lapses ought to have been

extended to the accused-appellants. It was further

urged that had the occurrence been reported at the

time alleged by the prosecution, there was no

justification whatsoever for postponing the inquest

proceedings till the next day and for allowing the

dead body to remain unattended at the crime

scene throughout the night. These circumstances

lend credence to the defence plea that the FIR was

ante-timed and that the prosecution version was

subsequently tailored to fit the investigation.

k. That the High Court failed to appreciate that the

medical evidence does not corroborate the ocular

version and does not rule out the possibility that

the murder took place much later in the darkness

of night rather than at the time alleged by the

prosecution. The post-mortem findings, including

absence of food in the alimentary canal and

presence of faecal matter in the large intestine,

Criminal Appeal No.239 of 2013 and connected matters 21

clearly indicate that the deceased-victim had

remained in a state of repose for several hours

after his last meal. These facets, considered in

conjunction with the opinion of Dr. H.C.

Srivastava (PW-3), probabilize the defence version

that the occurrence took place in the wee hours of

the morning and not during afternoon as alleged

by the prosecution. Such contradictions strike at

the very root of the prosecution case and entitles

the accused-appellants to the benefit of doubt.

l. That the High Court failed to appreciate that the

cumulative effect of the unnatural conduct of the

alleged eye-witnesses, the failure to secure the

dead body, the unexplained delay in conducting

the inquest proceedings, the doubtful timing of the

FIR and the inconsistencies emerging from the

medical evidence create a serious dent in the

prosecution case. These circumstances, viewed

holistically, render the prosecution version highly

doubtful and entitle the accused-appellants to the

benefit of doubt in accordance with the settled

principles of criminal jurisprudence.

Criminal Appeal No.239 of 2013 and connected matters 22

On these grounds, learned counsel representing the

accused-appellants submitted that the impugned

judgment passed by the High Court, as well as the

judgment of conviction and order of sentence passed

by the trial Court, are vitiated as the same suffer from

non-consideration and misappreciation of material

evidence on record and have resulted in grave

miscarriage of justice, and therefore, deserve to be set

aside.

SUBMISSIONS ON BEHALF OF THE

RESPONDENT -STATE: -

17. Mr. Namit Saxena, learned counsel for the

respondent-State of Uttar Pradesh supported the

impugned judgment and urged that the same does

not call for any interference by this Court, inter alia,

on the following grounds: -

a. That the impugned judgment is well-reasoned and

unassailable both on facts and in law, inasmuch

as the prosecution case is fully supported by

reliable ocular as well as medical evidence. The

testimonies of Raghav Ram (PW-1; Complainant),

Ram Nath (PW-2) and Nand Lal Singh (PW-4), who

were named in the promptly lodged FIR, are

Criminal Appeal No.239 of 2013 and connected matters 23

consistent, natural and cogent and clearly

describe the entire occurrence and specifically

highlight the participation of the accused -

appellants in the alleged offence.

b. That the medical evidence fully corroborates the

ocular version. Dr. H.C. Srivastava (PW-3) proved

the post-mortem report and categorically deposed

that the deceased-victim had sustained as many

as 17 ante-mortem injuries on various parts of his

body, including contusions, punctured wounds

and abrasions. The internal examination revealed

multiple fractures of the skull, particularly on the

right side of the head, with brain matter

protruding through a punctured wo und. The

medical jurist, Dr. H.C. Srivastava (PW-3), opined

the cause of death to be shock and internal

haemorrhage resulting from the said ante-mortem

injuries.

c. That the significant number, nature and

distribution of injuries on different parts of the

deceased-victim’s body unmistakably indicate a

brutal and concerted heinous assault involving

multiple assailants, thereby fortifying the

prosecution case. The medical jurist, Dr. H.C.

Criminal Appeal No.239 of 2013 and connected matters 24

Srivastava (PW-3), did not rule out the use of the

weapons suggested by the prosecution, namely a

blunt object resembling a ‘lathi’, a penetrating

sharp-edged weapon similar to a ‘ballam’, and a

sharp-edged pointed weapon like a ‘ kanta’.

Though, he initially expressed doubt regarding the

‘kanta’, he subsequently acknowledged the

possibility of injuries being caused by a sharp-

edged pointed weapon. The ocular testimony of

Raghav Ram (PW-1; Complainant), Ram Nath (PW-

2) and Nand Lal Singh (PW -4), consistently

establishes that the injuries were inflicted by the

weapons attributed to the accused persons,

leaving no room for doubt that Harihar Saran was

the victim of a deliberate and coordinated act of

violence leading to his death.

d. That the recovery of two bicycles belonging to the

accused-appellants from near the dead body of the

deceased-victim lends further credence to the

prosecution story and constitutes an important

incriminating circumstance. The said recoveries

were duly proved through Ram Vilas (PW-7) and

Constable Suresh Chandra Yadav (PW-8) and were

accepted by the trial Court as well as affirmed by

Criminal Appeal No.239 of 2013 and connected matters 25

the High Court, thereby establishing the presence

of the accused-appellants at the place of

occurrence.

e. That the plea of political rivalry raised by the

accused-appellants is wholly irrelevant to discard

the otherwise trustworthy evidence of the

prosecution witnesses. Existence of prior enmity,

far from weakening the prosecution case, in fact

provides motive for the crime and cannot by itself

be a ground to reject truthful testimony of eye-

witnesses, particularly in a serious offence like

murder.

f. That both the trial Court and the High Court have

meticulously appreciated the entire evidence on

record and recorded well-reasoned concurrent

findings of guilt against the accused-appellants.

No perversity, illegality or miscarriage of justice

has been demonstrated which would warrant

interference by this Court in exercise of its

jurisdiction under Article 136 of the Constitution

of India.

On these grounds, learned counsel for the

respondent-State prayed that the present appeals be

dismissed.

Criminal Appeal No.239 of 2013 and connected matters 26

18. However, upon being specifically queried by this

Court with regard to the claim of juvenility raised on

behalf of appellant–Accused No. 6, namely Subedar,

learned counsel for the respondent -State fairly

conceded that as per the custody certificate placed on

record, the said accused was below the age of 18

years on the date of the alleged occurrence.

DISCUSSION AND ANALYSIS

19. We have given our anxious and thoughtful

consideration to the submissions advanced at the

Bar and have carefully perused the impugned

judgments and the material available on record.

20. Before proceeding to deal with the rival

contentions advanced on behalf of the parties on

merits, it would be appropriate to briefly advert to

and undertake a conspectus of the testimonies of the

material prosecution witnesses, in order to assess the

credibility of their versions and the veracity of the

case set up by the prosecution.

I. Ocular Testimony and witnesses of fact

A. Raghav Ram (PW-1; Complainant)

21. Raghav Ram (PW -1; Complainant), in his

examination-in-chief, stated that on the day of the

Criminal Appeal No.239 of 2013 and connected matters 27

incident, he had initially gone to the police station in

the morning along with Ram Nath (PW-2), Badri

Prasad, Baksha Ram (chowkidar) and Ishwar Saran

to lodge a report regarding a thief who had been

apprehended from his house during the previous

night. After returning from the police station, he and

Ram Nath (PW-2) proceeded to the cattle fair held

near the police station, where they met Nand Lal

Singh (PW-4), Babu Lal and the deceased-victim, and

thereafter all of them went to Colonelganj market for

purchasing household articles. While returning to

their village on foot at about 4:30 p.m., the deceased-

victim was walking slightly ahead of them with his

bicycle. When they reached near village Kanchanpur,

the accused persons namely Raj Kishore (appellant-

accused No.1), Hira Lal (appellant-accused No.2),

Ram Dhani (accused No.4), Raj Bux (appellant-

accused No.3), Deo Prasad (appellant-accused No.5),

and Subedar (appellant-accused No.6), who were

lying in ambush under a bail tree, raised a war cry to

kill (maro-maro) and rushed towards them. Out of

fear, the complainant (PW-1) and the others fled from

the spot, but the deceased-victim, being bogged down

by the bicycle, could not escape and was belaboured

Criminal Appeal No.239 of 2013 and connected matters 28

by the accused persons with ‘kanta’, ‘ballam’ and

‘lathi’. The complainant (PW-1) stated that Raj

Kishore and Raj Bux were armed with ‘kanta’, Hira

Lal was carrying a ‘ballam’, and the remaining

accused were armed with ‘lathis’. He further stated

that upon hearing their hue and cry, villagers

gathered at the spot, whereupon the accused persons

fled away. Shortly thereafter, he returned to the place

of occurrence and found the deceased-victim lying

prone without any signs of life. He then went to the

police station along with Ram Nath (PW-2), got the

written report scribed on his dictation and lodged the

FIR.

22. In his cross-examination, the complainant (PW-

1) admitted that Shiv Saran, is his real brother and

that about three months prior to the present incident,

criminal proceedings had been initiated between

appellant-Accused No. 1 (Raj Kishore) and Ram

Khilawan (PW-5; father of the deceased-victim), who

is his brother-in-law. He stated that in the said case,

both sides had lodged reports against each other and

that several persons including his brother Shiv Saran

and witness Ram Nath (PW-2) were named as

accused in the report lodged by appellant-Accused

Criminal Appeal No.239 of 2013 and connected matters 29

No. 1, while in the cross-case filed by Ram Khilawan

(PW-5), appellant-Accused No. 1 (Raj Kishore),

appellant-Accused No. 2 (Hira Lal), appellant-

Accused No. 3 (Raj Bux), and Ram Dhani (accused

No. 4) were named as accused persons. He further

admitted that both the said cases were still pending

before the Court. He also acknowledged that he had

dictated the complaint which was scribed by Ram

Nath (PW-2) and that copy of the report was not

furnished to him at the police station. He admitted

that he was not aware of the exact contents or the

language used therein and conceded that he was

unable to either speak or write in such formal

manner. He further stated that only Ram Nath (PW-

2) had accompanied him, and that Ram Gopal and

Ram Achhaiver had not gone with him. He expressed

his inability to explain how their names had been

recorded as his companions in the records of the

Police Station. He admitted that he had dictated the

facts relating to their visit from the cattle fair to

Colonelganj market and the purchase of household

goods, as well as the fact that the deceased-victim

was carrying a bicycle, but expressed his inability to

explain why these details did not find mention in the

Criminal Appeal No.239 of 2013 and connected matters 30

FIR. He further stated that the police did not record

his statement at the spot and that he was unsure

about the timing of the inquest proceedings and

arrival of the police. However, he emphatically denied

the suggestion that he had not witnessed the incident

or that the murder took place during the night. He

reaffirmed that he had seen the accused persons

assaulting the deceased-victim with his own eyes.

B. Ram Nath (PW-2)

23. The testimony of Ram Nath (PW-2) is broadly on

the same lines as that of Raghav Ram (PW-1). He

deposed that on the day of the incident, he had

accompanied the complainant (PW-1) to the police

station in the morning in connection with an incident

of theft and thereafter both of them went to the cattle

fair, where they met Nand Lal Singh (PW-4), Babu Lal

and the deceased-victim. From there, all of them

proceeded to Colonelganj market where they

purchased household articles and were returning to

their village on foot at about 04:30 p.m. When they

reached near village Kanchanpur, the accused

persons namely Raj Kishore, Hira Lal, Raj Bux, Ram

Dhani, Subedar and Deo Prasad, who were sitting

Criminal Appeal No.239 of 2013 and connected matters 31

under a bail tree, suddenly rushed towards them

raising an exhortation to kill the deceased-victim. The

witness (PW-2) stated that Raj Kishore and Raj Bux

were armed with ‘kanta’, Hira Lal was carrying a

‘ballam’, and the remaining accused were armed with

‘lathis’. Out of fear, he and the others ran away, but

the deceased-victim could not escape and was

belaboured by the accused persons. On hearing their

hue and cry, villagers gathered and the accused fled

away, leaving two bicycles at the spot. Thereafter, he

accompanied the complainant (PW-1) to the police

station and scribed the written complaint on the

dictation of the complainant (PW-1), which he

identified as Exhibit Ka-1.

24. In his cross-examination, the witness (PW-2)

admitted that he had scribed the report precisely as

dictated by the complainant (PW-1) and had not

added any facts on his own. He stated that he knew

how to read and write and that this was the only

report he had ever written. The facts regarding the

deceased-victim having a bicycle had not been

written in the complaint since the complainant (PW-

1) had not dictated the same. He admitted that his

statement was not recorded by the first Investigating

Criminal Appeal No.239 of 2013 and connected matters 32

Officer (PW-10) on the night of the occurrence and

that the inquest proceedings were conducted on the

next morning. He further stated that he never told the

first Investigating Officer (PW-10) that the

complainant (PW-1) had gone alone to the police

station to lodge the report and expressed his inability

to explain why the said officer recorded such fact in

the case diary. He also stated that he could not

explain why the fact relating to the accused persons

having left their bicycles at the spot was not

mentioned in his statement recorded by first

Investigating Officer (PW-10). However, he

categorically denied the suggestion that no bicycles

were left by the accused at the place of occurrence or

that he was deposing about the said fact on

suggestion of someone else. He also admitted that

criminal proceedings had earlier taken place between

Ram Khilawan (PW-5; father of the deceased-victim)

and appellant-Accused No. 1, in which he had also

sustained injuries. However, he denied the

suggestion that the incident had taken place during

the night or that the FIR was drafted later on the

instructions of the police. He emphatically denied

that he was deposing falsely due to enmity and

Criminal Appeal No.239 of 2013 and connected matters 33

reaffirmed that he had personally witnessed the

assault on the deceased-victim.

C. Nand Lal Singh (PW-4)

25. The testimony of Nand Lal Singh (PW -4) is

broadly on the same lines as that of Raghav Ram

(PW-1). He deposed that on the day of the incident,

he had gone alone to the cattle fair where he met the

deceased-victim, complainant (PW-1), Ram Nath

(PW-2) and Babu Lal. Thereafter, all of them

proceeded to Colonelganj market for purchasing

household articles and after taking refreshments,

they started returning towards their village at about

04:00-04:30 p.m. The deceased-victim was pulling a

cycle with a jackfruit placed on it, while the rest were

walking on foot. When they reached near village

Kanchanpur, the accused persons, namely, Hira Lal,

Raj Kishore, Raj Bux, Deo Prasad, Subedar and Ram

Dhani, were seen sitting under a bail tree with two

bicycles lying nearby. The witness (PW-2) stated that

Raj Kishore and Raj Bux were armed with ‘kanta’,

Hira Lal was carrying a ‘ballam’, and the remaining

accused were armed with ‘lathis’. The accused

persons exhorted by saying that “he is the Harihar

Criminal Appeal No.239 of 2013 and connected matters 34

Saala who implicates all of us in all cases (sic) and

implicates thieves also” and saying so, they started

assaulting the deceased-victim. Being unarmed, the

witness (PW-4) and the others stepped back out of

fear and raised an alarm. Upon hearing their cries,

villagers gathered, whereupon the accused persons

fled away. The witness (PW-4) returned to the spot

and found the deceased-victim lying dead. He further

stated that he remained at the place of occurrence

thereafter, while Raghav Ram (PW-1) and another

person, whom he initially identified as Maharaj Ram,

left for lodging the report.

26. In his cross-examination, the witness (PW-4)

admitted that there was long -standing enmity

between the family of the deceased-victim and the

accused persons, including previous criminal

litigation and rivalry over village elections. He stated

that he was aware of these disputes as their villages

were adjacent to one another. He admitted that he

had not personally witnessed the earlier quarrels and

was aware of them only through hearsay. He further

stated that he could not recall when his statement

was recorded by the police and that he had not

volunteered certain details suc h as taking

Criminal Appeal No.239 of 2013 and connected matters 35

refreshments or the deceased-victim purchasing a

jackfruit, since the second Investigating Officer (PW-

6) had not specifically asked him about these facts.

He also admitted that he had not mentioned before

the police the exact words allegedly used by the

accused persons while assaulting the deceased-

victim. However, he denied the suggestion that he

was not present at the spot and categorically

maintained that he had witnessed the assault on the

deceased-victim with his own eyes.

D. Ram Khilawan (PW-5; father of the deceased-

victim)

27. Ram Khilawan (PW-5; father of the deceased-

victim), in his examination-in-chief, stated that there

existed long-standing enmity between his family and

the accused persons. He deposed that elections for

the post of village Pradhan had taken place in which

Ram Karan, father of appellant-Accused No. 5 (Deo

Prasad), was a candidate and that his son (deceased-

victim) had lost the election, which led to political

rivalry between the parties. He further stated that

earlier also, criminal proceedings had been initiated

between him and Ram Karan, which further

Criminal Appeal No.239 of 2013 and connected matters 36

aggravated the hostility. He also referred to another

incident involving one Jagannath Shukla, wherein

the accused persons had assaulted the deceased-

victim and Jagannath Shukla. His son (deceased-

victim) was a witness in that case, due to which the

accused persons bore deep grudge against his son.

He stated that these prior instances gave motive to

the accused persons who had killed his son.

28. In his cross-examination, the witness (PW-5)

admitted that his son had lost elections on more than

one occasions and that no election petition was filed

by him. He acknowledged that criminal proceedings

had indeed been initiated between him and Ram

Karan nearly two to three decades prior, in which

they were initially convicted but later acquitted in

appeal. He further denied that his son was managing

the business of one Malkhan Singh or that any

money orders were being received in his son’s name.

He stated that he had no knowledge about the

personal affairs of Malkhan Singh or his family

members and denied th e suggestion that the

daughter of Malkhan Singh had mourned at the dead

body of his son (deceased-victim). He further stated

that the Investigating Officer had not recorded his

Criminal Appeal No.239 of 2013 and connected matters 37

statement and denied the suggestion that he was

deposing falsely due to enmity.

E. Ram Vilas (PW-7)

29. Ram Vilas (PW-7), in his examination-in-chief,

stated that he was present at the place of occurrence

on the western side of village Kanchanpur, from

where the first Investigating Officer (PW-10)

recovered the bicycle of the deceased-victim. He

deposed that several articles including a jack-fruit, a

bag, a lock, a kurta and a bottle of medicine were

found on the bicycle and the same were taken into

custody by the first Investigating Officer (PW-10), who

prepared the recovery memo in his presence and

obtained his signatures thereon. He further stated

that plain soil and blood-stained soil were also

recovered from the spot and sealed in boxes in his

presence. He identified his signatures on the recovery

memos. He also stated that two other bicycles were

found lying beneath the bail tree, which were seized

by the first Investigating Officer (PW-10) and memos

were prepared. He further deposed that he acted as a

panch witness during the inquest proceedings and

that the inquest report, photo lash, challan lash,

Criminal Appeal No.239 of 2013 and connected matters 38

letter to the Chief Medical Officer and the sample seal

were prepared in his presence and signed by him. He

also stated that the site plan was prepared before him

by the first Investigating Officer (PW-10) and he

identified the same.

30. In his cross-examination, the witness (PW-7)

stated that he resided about 5-6 miles away from the

place of occurrence and that no one had called him,

but he had himself reached the spot on hearing about

the incident. He admitted that he is the nephew of

Nand Lal Singh (PW-4) and had good relations with

the deceased-victim and that several persons

including his uncle had also reached the spot. He

stated that the first Investigating Officer (PW-10) did

not record his statement during investigation. He

also stated that the dead body was moved after

about 2-3 hours and that he left the place of

occurrence around noon. However, he denied the

suggestion that he had not gone to the place of

occurrence or that his signatures were taken at the

police station.

II. Medical Jurist

F. Dr. H.C. Srivastava (PW-3)

Criminal Appeal No.239 of 2013 and connected matters 39

31. Dr. H.C. Srivastava (PW-3; Medical Officer,

District Hospital, Gonda), in his examination-in-

chief, stated that he had conducted the post-mortem

examination on the dead body of the deceased-victim

at about 01:30 p.m. on 30

th June, 1977. He found

that rigor mortis had passed off and the body was

swollen. He noticed as many as 17 ante-mortem

injuries on various parts of the body including

abrasions, contusions, lacerated and punctured

wounds, particularly on the skull, face, chest, back,

arms and thighs. On internal examination, he found

multiple fractures of the skull bones, with brain

matter protruding through some of the punctured

wounds. Fractures of ribs and rupture of the right

lung were also noticed. The stomach and small

intestine were empty, while faecal matter was present

in the large intestine. In his opinion, the cause of

death was shock and haemorrhage as a result of the

aforesaid ante-mortem injuries. He further stated that

the death could have occurred about two days prior

to the post-mortem and that such injuries could have

been caused by weapons like ‘lathi’ and ‘ballam’, and

also by a ‘kanta’ if it was sharp and pointed and used

with sufficient force.

Criminal Appeal No.239 of 2013 and connected matters 40

32. In his cross-examination, the medical jurist

(PW-3) stated that the punctured wounds on the

skull were more likely with a sharp and pointed

weapon and that multiple fractures could not

ordinarily be caused by a sharp cutting weapon

alone. He admitted that he could not give a definite

opinion regarding the exact time taken in digestion of

food, though he stated that normally vegetarian food

remains in the stomach for about 4 to 6 hours and in

the small intestine for 6 to 12 hours. He further

admitted that the death could have occurred within

a range of one and a half to two and a half days prior

to the post-mortem. He also stated that some of the

punctured wounds might have been caused by a

blunt pointed weapon and that it was possible that a

single weapon could have caused multiple punctured

injuries on the skull and ear.

III. Investigating Officers and Police Witnesses

G. Shivdas Singh Sachan (PW-6; second

Investigating Officer)

33. Shivdas Singh Sachan (PW -6; second

Investigating Officer), in his examination-in-chief,

stated that the investigation of the case was assigned

Criminal Appeal No.239 of 2013 and connected matters 41

to him on 6

th August, 1977. He deposed that upon

taking over the investigation, he recorded the

statement of Nand Lal Singh (PW-4) and noted the

conclusion of the post-mortem in the case diary. He

further stated that after recording the statements of

two accused persons, namely appellant-Accused No.

5 (Deo Prasad) and appellant -Accused No. 6

(Subedar), he forwarded the chargesheet.

34. In his cross-examination, second Investigating

Officer (PW-6) stated that he had recorded the

statement of only one witness, namely, Nand Lal

Singh (PW-4). He denied the suggestion that the

statement of Nand Lal Singh (PW-4) recorded by him

was fabricated or falsely entered in the case diary.

H. Constable Suresh Chandra Yadav (PW-8)

35. Constable Suresh Chandra Yadav (PW-8), in his

examination-in-chief, stated that he was posted at

Police Station Colonelganj and was familiar with the

handwriting and signatures of Head Constable

Keshri Nandan. He proved the General Diary entries

dated 28

th June, 1977 and 29

th June, 1977, including

the relevant rapat entries and the chik FIR, and

identified the handwriting of the concerned police

Criminal Appeal No.239 of 2013 and connected matters 42

officials. He also produced the sealed boxes

containing plain and blood-stained soil from the

malkhana.

36. In his cross-examination, the witness (PW-8)

stated that the arrival and departure entries of the

first Investigating Officer (PW-10) and the seized cycle

were recorded in the General Diary. He admitted that

no document was prepared in his presence but

denied that the General Diary entries were fabricated.

I. Head Constable Brij Bihari Pandey (PW-9)

37. Head Constable Brij Bihari Pandey (PW-9), in

his examination-in-chief, stated that he was carrying

the malkhana register of Police Station Colonelganj

and that two broken bicycles were deposited in the

malkhana in connection with Case Crime No. 157 of

1977. He identified the relevant malkhana register

entries and produced both bicycles before the court.

38. In his cross-examination, the witness (PW-9)

stated that the bicycles were already in a damaged

condition when they were deposited and handed over

to him. He admitted that no entry was made in the

handwriting of the first Investigating Officer (PW-10)

Criminal Appeal No.239 of 2013 and connected matters 43

but denied the suggestion that recovery was

fabricated or planted.

J. Ram Shanker Dwivedi (PW-10; first

Investigating Officer)

39. Ram Shanker Dwivedi (PW -10; first

Investigating Officer), in his examination-in-chief,

stated that on 28

th June, 1977, he was posted as

Sub-Inspector at Police Station Colonelganj and had

taken up the investigation of the case on the same

day. He deposed that he reached the place of

occurrence at about 09:00 p.m. but due to lack of

illumination, he could not conduct the inquest

proceedings and therefore, completed the inquest the

following morning. He stated that he prepared the

inquest report, seized the bicycle of the deceased-

victim along with articles found on it, recovered

blood-stained and plain soil, seized two bicycles

allegedly left by the accused persons, got taken the

photo lash, prepared the challan lash, sample seal,

letter for post-mortem and the site plan, and proved

all the material documents prepared by him. He

further stated that he arrested some of the accused

persons, namely, appellant-Accused Nos. 1, 2 and 3

Criminal Appeal No.239 of 2013 and connected matters 44

as well as Ram Dhani and recorded their statements

before being transferred.

40. In his cross-examination, the first Investigating

Officer (PW-10) admitted that in the General Diary

entry regarding lodging of the case, made by Head

Constable Keshri Nandan, only the arrival of Ram

Gopal (father-in-law of deceased-victim) and Ram

Achhaiver (brother of deceased-victim), resident of

village Lalemau, along with the complainant, was

recorded. He further admitted that except for the

complainant (PW-1), no other eye-witness met him at

the spot. He also admitted that he did not record the

statements of some persons whose names appeared

in the FIR and that certain statements were recorded

in different case diaries. He stated that he did not

mention about the deceased-victim’s bicycle in the

site plan but only in the recovery memo. However, he

denied the suggestion that he had not visited the

place of occurrence or that the FIR, inquest report

and recoveries were fabricated. He categorically

denied the suggestion that the deceased-victim had

been killed during the darkness of the night.

Criminal Appeal No.239 of 2013 and connected matters 45

41. Having undertaken a comprehensive

examination of the testimonies of the material

prosecution witnesses, we shall now proceed to

evaluate the rival submissions advanced on behalf of

the parties. At this stage, it may be noted that the

conviction of the accused-appellants and Ram Dhani

rests substantially on the ocular account furnished

by Raghav Ram (PW-1), Ram Nath (PW-2) and Nand

Lal Singh (PW -4), which, according to the

prosecution, stands corroborated by the medical

evidence and material collected during investigation.

The defence, however, has questioned the very

genesis of the prosecution case and has urged that

the occurrence did not take place at the time and in

the manner alleged; that the FIR was ante-timed; and

that the presence of the so-called eye-witnesses at the

place of occurrence is highly doubtful. It is in the

backdrop of these rival contentions that the evidence

on record is required to be scrutinized so as to

determine whether the prosecution has succeeded in

establishing the guilt of the accused-appellants

beyond reasonable doubt.

42. At first blush, the evidence of the eye-witnesses,

namely, Raghav Ram (PW-1), Ram Nath (PW-2) and

Criminal Appeal No.239 of 2013 and connected matters 46

Nand Lal Singh (PW-4), appears consistent on the

broad features of the occurrence and may create an

impression that they were present at the spot and

witnessed the assault on the deceased -victim.

However, the defence has come out with a fervent and

persistent plea that none of these witnesses were

actually present at the place of occurrence; that the

incident did not take place at the time and in the

manner alleged by the prosecution; and that the FIR

was ante-timed and the prosecution story was

subsequently developed so as to falsely implicate the

accused persons.

43. In order to test the correctness of the defence

plea and verify whether the FIR was in fact registered

at the time alleged by the prosecution, it is necessary

to scrutinize the FIR itself and the sequence of events

immediately following the occurrence so a s to

ascertain whether any suspicious circumstances

surround its registration. This issue assumes

significance because, according to the prosecution,

the incident took place at about 04:30 p.m. on 28

th

June, 1977; the FIR was registered at about 07:10

p.m. on the same day; the inquest proceedings were

conducted on 29

th June, 1977; and the post-mortem

Criminal Appeal No.239 of 2013 and connected matters 47

examination was ultimately conducted on 30

th June,

1977 at about 01:30 p.m.

44. A striking and glaring circumstance that

unmistakably emerges from the record of the case is

that neither the family members of the deceased-

victim nor the police officials took any meaningful

steps to preserve the dead body, which admittedly

remained lying at the place of occurrence throughout

the intervening night. As per the prosecution case,

information regarding the incident had already

reached the police station by 07:10 p.m. on 28

th

June, 1977. The police station was situated at a

distance of merely about 3½ miles from the place of

occurrence. Admittedly, the police officers reached

the crime scene soon after registration of the FIR.

Even if it is accepted that the inquest proceedings

could not be conducted on account of paucity of light,

there is no explanation whatsoever, nor any rhyme or

reason, as to why the police authorities did not shift

the dead body to a secure place or make

arrangements for its preservation. Equally

inexplicable is the conduct of the family members

and villagers who, according to the prosecution itself,

had gathered at the spot soon after the incident but

Criminal Appeal No.239 of 2013 and connected matters 48

showed no interest whatsoever in guarding the dead

body of a close relative.

45. The situation becomes even more doubtful, and

lends further credence to the defence theory, when it

is noticed that although the inquest proceedings were

conducted on 29

th June, 1977, the post-mortem

examination of the deceased-victim was carried out

only on 30

th June, 1977 at about 01:30 p.m. The

record is conspicuously silent, and there is no

discernible justification, as to why almost two days

elapsed and why the Investigating Officer took nearly

48 hours to get the post -mortem examination

conducted on the dead body, despite the incident

having allegedly been reported on 28

th June, 1977

itself. No plausible explanation for such inordinate

delay has been forthcoming from the prosecution.

This circumstance, when considered alongside the

unusual manner in which the dead body was left

unattended throughout the night, lends considerable

support to the defence plea that the prosecution

version regarding the time of occurrence is not free

from doubt.

Criminal Appeal No.239 of 2013 and connected matters 49

46. Another glaring inconsistency, which goes to

the root of the prosecution case, concerns the

circumstances surrounding the lodging of the FIR.

The testimonies of Raghav Ram (PW-1), Ram Nath

(PW-2) and Nand Lal Singh (PW -4) indicate that

Raghav Ram (PW-1) and Ram Nath (PW-2) had gone

to the police station for registration of the FIR. More

significantly, Raghav Ram (PW-1), in his cross-

examination, categorically stated that only Ram Nath

(PW-2) had accompanied him to the police station

and specifically denied that Ram Gopal or Ram

Achhaiver had gone with him. He further expressed

complete inability to explain how their names came

to be recorded as his companions in the police

records.

47. However, the testimony of Ram Shanker

Dwivedi (PW-10), the first Investigating Officer,

presents an entirely different picture. In his cross-

examination, he admitted that the General Diary

entry pertaining to the registration of the case, as

recorded by Head Constable Keshri Nandan, reflected

the arrival of Ram Gopal (father-in-law of the

deceased-victim) and Ram Achhaiver (brother of the

deceased-victim), along with the complainant ,

Criminal Appeal No.239 of 2013 and connected matters 50

Raghav Ram (PW -1). Thus, the contemporaneous

documentary record maintained at the police station

stands in direct contradiction to the testimony of

complainant (PW-1) himself. This material

inconsistency strikes at the very genesis of the

prosecution case and casts a grave doubt not only on

the manner and time at which the FIR came to be

lodged, but also on the identity of the persons who

actually approached the police station for its

registration.

48. An even more significant and startling

circumstance emerging from the record, which lends

considerable support to the defence contention that

the prosecution sought to manipulate the time and

place of occurrence, is that the FIR, though

purportedly lodged and registered on 28

th June,

1977, reached the Court of the jurisdictional

Magistrate only on 30

th June, 1977. This fact is borne

out from the endorsement and seal affixed upon the

chik FIR (Exhibit Ka-14), which clearly indicates that

the complaint allegedly registered as a formal FIR on

28

th June, 1977, a Tuesday, was received in the

Magistrate’s Court only on 30

th June, 1977.

Significantly, although this aspect neither appears to

Criminal Appeal No.239 of 2013 and connected matters 51

have been highlighted by the parties nor engaged the

attention of the trial Court or the High Court,

verification of the original record leaves no manner of

doubt on this score. This unexplained delay in the

FIR reaching the Magistrate assumes great

significance and, when all the pieces of the puzzle are

put together and viewed in conjunction with the other

attendant circumstances on record, the sequence of

events becomes clear as daylight, thereby lending

substantial credence to the defence plea that the

prosecution version was developed subsequently and

is not a truthful account of the occurrence and that

the FIR was as a matter of fact registered post

investigation.

49. Another circumstance which merits notice is

the manner in which the contemporaneous police

records relating to the registration of the FIR were

proved. The chik FIR as well as the relevant General

Diary entries were admittedly recorded by Head

Constable Keshri Nandan. Since the said official had

expired by the time the trial commenced, the

prosecution examined Constable Suresh Chandra

Yadav (PW-8), who stated that he was acquainted

with the handwriting and signatures of Head

Criminal Appeal No.239 of 2013 and connected matters 52

Constable Keshri Nandan and, on that basis, proved

the relevant entries and documents. However, the

witness (PW-8) admittedly had no personal

involvement in, or direct knowledge of, the

preparation of these records and candidly stated in

his cross-examination that no document had been

prepared in his presence. Thus, while the documents

were formally exhibited in evidence, the prosecution

was unable to adduce any direct evidence regarding

the circumstances in which the FIR and the

corresponding General Diary entries came to be

recorded. This aspect assumes added significance in

the peculiar facts of the present case where the

defence has consistently alleged ante-timing and

subsequent manipulation of time of registration of

the FIR. In such circumstances, the

contemporaneous police records, instead of

dispelling the cloud of suspicion, fall short of

providing the degree of assurance necessary to

conclusively establish that the FIR was recorded at

the time and in the manner pr ojected by the

prosecution.

50. The significance of delay in forwarding the FIR

to the jurisdictional Magistrate has repeatedly been

Criminal Appeal No.239 of 2013 and connected matters 53

considered by this Court. In Pala Singh v. State of

Punjab

22, this Court observed that though delayed

receipt of the FIR by the Magistrate may be improper

or objectionable, such delay by itself would not

necessarily render the prosecution case doubtful if

the FIR had in fact been promptly recorded and the

investigation had commenced thereupon. Relevant

extract from the aforesaid judgment is reproduced

hereinbelow: -

“8. [……] Section 157 CrPC requires such report

to be sent forthwith by the police officer

concerned to a Magistrate empowered to take

cognizance of such offence. This is really

designed to keep the Magistrate informed of the

investigation of such cognizable offence so as to

be able to control the investigation and if

necessary to give appropriate direction under

Section 159. But when we find in this case that the

FIR was actually recorded without delay and the

investigation started on the basis of that FIR and

there is no other infirmity brought to our notice,

then, however improper or objectionable the

delayed receipt of the report by the Magistrate

concerned it cannot by itself justify the

conclusion that the investigation was tainted

and the prosecution insupportable. It is not the

appellant's case that they have been prejudiced by

this delay.”

[Emphasis supplied]

22

(1972) 2 SCC 640.

Criminal Appeal No.239 of 2013 and connected matters 54

51. More recently, in Jafarudheen v. State of

Kerala

23, this Court reiterated that prompt

transmission of the FIR to the jurisdictional

Magistrate is not a mere procedural formality but a

vital safeguard intended to ensure fairness and

transparency in the investigative process. The Court

observed that the FIR is the document which sets the

criminal law in motion and constitutes a valuable

piece of evidence for corroborating the prosecution

version. Prompt forwarding thereof to the Magistrate

serves the salutary purpose of eliminating the

possibility of ante-dating, ante-timing, embellishment

or subsequent interpolation of facts and enables the

Magistrate to effectively exercise the supervisory

jurisdiction contemplated under the CrPC. It was

further held that although mere delay in forwarding

the FIR is not, by itself, fatal to the prosecution case,

such delay assumes significance where the

surrounding circumstances indicate the possibility of

manipulation, deliberation, consultation or

introduction of a coloured version of events. In such

cases, the effect of the delay has to be assessed

23

(2022) 8 SCC 440; 2022 SCC OnLine SC 495.

Criminal Appeal No.239 of 2013 and connected matters 55

cumulatively along with the other attendant

circumstances appearing on record. Relevant extract

from the aforesaid judgment is reproduced

hereinbelow: -

“28. The jurisdictional Magistrate plays a pivotal role

during the investigation process. It is meant to make

the investigation just and fair. The investigating

officer is to keep the Magistrate in the loop of his

ongoing investigation. The object is to avoid a

possible foul play. The Magistrate has a role to play

under Section 159CrPC.

29. The first information report in a criminal

case starts the process of investigation by letting

the criminal law into motion. It is certainly a

vital and valuable aspect of evidence to

corroborate the oral evidence. Therefore, it is

imperative that such an information is expected

to reach the jurisdictional Magistrate at the

earliest point of time to avoid any possible ante-

dating or ante-timing leading to the insertion of

materials meant to convict the accused contrary

to the truth and on account of such a delay may

also not only get bereft of the advantage of

spontaneity, there is also a danger creeping in by

the introduction of a coloured version,

exaggerated account or concocted story as a

result of deliberation and consultation. However,

a mere delay by itself cannot be a sole factor in

rejecting the prosecution's case arrived at after

due investigation. Ultimately, it is for the court

concerned to take a call. Such a view is expected

to be taken after considering the relevant

materials.”

[Emphasis supplied]

Criminal Appeal No.239 of 2013 and connected matters 56

52. We are in respectful agreement with the

aforesaid principles. Mere delay in forwarding the FIR

to the Magistrate cannot, by itself, be treated as fatal

to the prosecution case nor can such delay, in

isolation, be made the sole basis for discarding an

otherwise credible prosecution version. However,

where allegations of ante-timing, ante-dating and

fabrication are not merely speculative but find

substantive support from attendant circumstances

appearing on the record, and are coupled with

surrounding facts generating genuine suspicion

regarding the fairness and integrity of the

investigation, such delay acquires considerable

significance. In such a situation, the delay ceases to

be a mere procedural irregularity and assumes

substantive importance in evaluat ing the

authenticity of the prosecution narrative, the

spontaneity of the FIR and the possibility of

subsequent embellishment or manipulation. The

Court is then required to assess the effect of such

delay not in isolation but cumulatively with the other

circumstances brought on record while testing the

overall credibility of the prosecution case.

Criminal Appeal No.239 of 2013 and connected matters 57

53. Applying the aforesaid principles to the facts of

the present case, we find that the delayed

transmission of the FIR to the Magistrate does not

stand in isolation. It is accompanied by a series of

highly unusual circumstances, namely, the admitted

fact that the dead body of the deceased -victim

remained lying at the place of occurrence throughout

the intervening night without any effort either by the

family members or the police authorities to preserve

its sanctity; the inquest proceedings being postponed

to the next day; the post-mortem examination being

conducted after a delay of about 48 hours without

any plausible cause; contradictions regarding the

persons who accompanied the complainant (PW-1) to

the police station; and the absence of any satisfactory

explanation for these lapses.

54. These circumstances assume even greater

significance when viewed in the backdrop of the

defence plea that the FIR was ante-timed and the

prosecution story was subsequently tailored to create

the presence of the alleged eye-witnesses at the crime

scene. Viewed cumulatively, these circumstances are

not mere procedural irregularities but constitute

serious infirmities affecting the very genesis and

Criminal Appeal No.239 of 2013 and connected matters 58

credibility of the prosecution case. They create a

substantial dent in the prosecution version and

render the defence plea not only plausible but

reasonably probable.

55. If these circumstances are cumulatively

considered, two possibilities emerge. The first

possibility is that the assault on the deceased-victim

did not take place on 28

th June, 1977 and occurred

at a later point of time. The second possibility is that,

even if the occurrence did take place on 28

th June,

1977, none of the so-called eye-witnesses were

present at the place of occurrence when the

deceased-victim was assaulted, and the incident

came to light only subsequently, upon the discovery

of the dead body lying at the scene on the following

day.

56. In our considered opinion, either of the two

possibilities cannot be ruled out in the facts and

circumstances of the present case as narrated above.

If the so-called eye-witnesses had in fact witnessed

the assault in the manner alleged by the prosecution,

and if the police had indeed been informed within

three hours of the occurrence, there was no

Criminal Appeal No.239 of 2013 and connected matters 59

conceivable reason for the dead body to remain

abandoned at the place of occurrence throughout the

night. The conduct attributed to the prosecution

witnesses, family members of the deceased-victim,

villagers, and even the investigating agency is wholly

inconsistent with ordinary human behaviour and

normal investigative procedure. It is quite probable

that the incident took place during the intervening

night of 28

th and 29

th June, 1977, and the dead body

lying abandoned at the crime scene was discovered

by the villagers only on the following morning,

whereafter the prosecution story was developed to

project that the deceased-victim, the alleged eye-

witnesses and others had returned together from the

market and that the assault had taken place in their

presence on 28

th June, 1977.

57. Indeed, the combined effect of the

circumstances discussed above leaves little room for

accepting the prosecution version regarding the

manner and timing of the occurrence. The delay in

conducting the inquest proceedings, the unexplained

delay in undertaking the post-mortem examination,

the material contradictions regarding the

circumstances in which the FIR came to be lodged,

Criminal Appeal No.239 of 2013 and connected matters 60

and, most importantly, the fact that the chik FIR,

though purportedly registered on 28

th June, 1977,

reached the Court of the jurisdictional Magistrate

only on 30

th June, 1977, collectively cast a serious

cloud of doubt over the prosecution narrative. The

facts taken together convince us that the FIR (Exhibit

Ka-14) is a post investigation document. These

circumstances are, by themselves, sufficiently

clinching to establish that the prosecution version of

the occurrence having taken place on 28

th June,

1977 was a subsequent fabrication devised to lend

credibility to the prosecution case and to support the

cooked-up story that Raghav Ram (PW-1), Ram Nath

(PW-2) and Nand Lal Singh (PW -4) had actually

witnessed the incident.

58. In the face of these infirmities, we find ourselves

unable to place implicit reliance on the testimony of

the alleged eye-witnesses. The defence plea that the

occurrence did not unfold in the manner projected by

the prosecution cannot be brushed aside as fanciful

or speculative. On the contrary, the circumstances

noticed above substantially undermine the

prosecution’s assertion that Raghav Ram (PW -1),

Ram Nath (PW -2) and Nand Lal Singh (PW -4)

Criminal Appeal No.239 of 2013 and connected matters 61

witnessed the assault and narrated the occurrence in

a spontaneous and consistent manner immediately

thereafter. Equally unconvincing is the prosecution

story regarding the alleged recovery of two bicycles

from beneath the bail tree, purportedly belonging to

the accused persons. The theory of such recovery is,

in our view, wholly flimsy. No cogent or reliable

evidence has been adduced to establish the

ownership of the bicycles. The evidence of the two

Court Witnesses examined in this regard does not

conclusively prove that the bicycles belonged to any

of the accused persons. Apart from the alleged

recovery itself, there is no independent evidence

connecting the bicycles with the accused persons.

Significantly, there were six accused, yet the

prosecution has failed to establish which particular

accused, if any, was the owner of or in possession of

either bicycle.

59. No other reliable evidence has been brought on

record to bring home the charges against the

accused-appellants. Having regard to the cumulative

effect of the discussion made above, we are

persuaded to hold that the prosecution has failed to

establish beyond reasonable doubt that the

Criminal Appeal No.239 of 2013 and connected matters 62

occurrence took place in the afternoon of 28

th June,

1977 or in the manner alleged by the so-called eye-

witnesses. Consequently, their presence at the crime

scene becomes not merely doubtful but highly

improbable, and the prosecution case cannot be

sustained on such uncertain and unreliable

evidence.

60. Once a reasonable doubt arises regarding the

presence of the alleged eye-witnesses and the

truthfulness of the prosecution version regarding the

genesis and timing of the occurrence, the very

substratum of the prosecution case stands eroded.

The entire edifice of the prosecution story, being

founded upon the testimony of these witnesses,

stands breached and cannot be sustained. The trial

Court as well as the High Court fell in error in

overlooking these vital infirmities and in relying upon

the highly doubtful testimony of the so-called eye-

witnesses to affirm the guilt of the accused -

appellants. Consequently, we are of the considered

view that the prosecution has failed to establish the

guilt of the accused-appellants beyond reasonable

doubt and they are entitled to the benefit thereof.

Criminal Appeal No.239 of 2013 and connected matters 63

61. As an upshot of the above discussion , the

impugned judgment passed by the High Court and

the judgment of conviction and order of sentence

passed by the trial Court do not stand to scrutiny

and, therefore, deserve to be set aside.

62. Since we are extending the benefit of doubt to

the accused-appellants by disbelieving the

prosecution case on material aspects, it is not

necessary for us to examine the plea of juvenility

raised on behalf of appellant -Accused No. 6

(Subedar).

63. Resultantly, Criminal Appeal No. 239 of 2013,

to the extent it relates to appellant-Accused No. 6

(Subedar), Criminal Appeal No. 238 of 2013 and

Criminal Appeal No. 236 of 2013, are allowed. The

judgment of conviction and order of sentence dated

3

rd June, 1981 passed by the trial Court, as affirmed

by the judgment dated 20

th November, 2011 passed

by the High Court are hereby set aside.

64. The surviving accused-appellants, i.e., Accused

No. 2 (Hira Lal), Accused No. 3 (Raj Bux) and

Accused No. 6 (Subedar) are acquitted of all charges.

Since appellant-Accused No. 3 (Raj Bux) and

Criminal Appeal No.239 of 2013 and connected matters 64

appellant-Accused No. 6 (Subedar) are already on

bail, their bail bonds shall stand discharged and they

shall not be required to surrender. Insofar as

appellant-Accused No. 2 (Hira Lal) is concerned, he

has already been released pursuant to remission

granted by the competent authority and, therefore,

no further directions are called for in respect of the

said accused.

65. Pending application(s), if any, shall stand

disposed of.

….……………………J.

(VIKRAM NATH )

...…………………….J.

(SANDEEP MEHTA)

NEW DELHI;

JULY 15, 2026.