Holding

The Supreme Court affirmed that the FIR was valid, Section 157 does not require noting dispatch time, the room could accommodate all accused, the lantern and moonlight provided sufficient illumination for identification, the missing doctor’s testimony was not fatal, non‑recovery of property does not defeat the case, and the corroborated eyewitness evidence supports conviction under Section 396 IPC.

Summary

The case involved the murder and dacoity of village Pradhan Mauji Lal. The prosecution alleged that nine accused entered the house at night, assaulted the deceased and his family, and looted property. The key issues were whether the first information report (FIR) was ante‑timed and whether Section 157 of the CrPC required the time of dispatch to be recorded, whether the size of the eastern kotha could accommodate all nine accused, whether the lantern and moonlight provided sufficient illumination for identification, and whether the non‑examination of a doctor and the non‑recovery of looted items defeated the prosecution. The Supreme Court held that the FIR was not ante‑timed, Section 157 does not mandate noting the dispatch time, the room was large enough for the accused, the lantern and moonlight gave adequate light for identification, the absence of the doctor’s testimony was not fatal, and failure to recover property did not undermine the case. The Court accepted the testimony of PW‑2, corroborated by PW‑1, PW‑7 and PW‑8, and upheld the conviction under Section 396 IPC.

Issues considered

Whether Section 157 CrPC requires the time of dispatch of the FIR to be recorded.
Whether the FIR in this case was ante‑timed.
Whether the dimensions of the eastern kotha preclude the presence of all nine accused simultaneously.
Whether identification of the accused by PW‑2 is reliable given the illumination from a lantern and moonlight.
Whether the non‑examination of the doctor who examined the injured witnesses is fatal to the prosecution case.
Whether the failure to recover looted property defeats the prosecution.
Whether the evidence of PW‑1, PW‑7 and PW‑8 can be relied upon when corroborated by PW‑2.

Legislation cited

Code of Criminal Procedure, 1973s. 157
Indian Penal Code, 1860s. 396

Subjects

FIRSection 157 CrPCidentificationeyewitness testimonylanternmoonlightdacoitymurderSection 396 IPCevidence appraisalconviction

Judgment

l

S64
OM PRAKASH AND OTHERS
A
v. , ....
STATE OF UTTAR PRADESH

March II, 1983
B
(V.D. TOLZAPURKAR AND A. VARADARAJAN, JJ.]

Code of Criminal Procedure 1973-Section 157-First InfornJOJion Report-
Time of despatch- Whether should be noted in it.

Penal Code-Section 396-Murder and dacoity-Evidence-Appreciation of.
c
The deceased was the Pradhan of his village. There were feuds of
various kinds and political rivalries between the party of the deceased on the
one hand and the accused on the other and a number of cases were pending
before the Courts.

The prosecution case against the accused was that on the night of the
occurrence, which was a moonlit _night, the deceased was sleeping in the
D
western room of his house while his wife and children were sleeping in the
eastern room, between the two of which there was a barotha. In the room
in which the wife was sleeping there was a lighted lantern hanging from a
peg on the eastern wall of that room about 6 feet high from the floor. P.W. 8.
the brother-in-law of the deceased was 5leeping in a tin shed situate to
tte west of the western room. Sometime late in ·the night the deceased. and E
his wife woke up on hearing some commotion. They found that a number
of armed men entered the eastern room and started breaking open the northern
....
door whereupon the wife of the deceased raised the wick of the lantern to see
what was happening. By the time the deceased entered the eastern room the
accused who were armed with pistols and other deadly weapons had entered
the room aftt:r breaking open the northern door. The 9 accused persons
F
T
severeiy assaulted the deceased who as a result of the injuries felJ down dead.
The accused also assaulted the wife of the dece1sed (P.W. 2) and her brother
(P.W. 8) and ran away with or~aments, cash and clothes. In the meantime,
some of the prosecution witnesses, who heard the coinmotion went towards
the house of the deceased and saw in the moon light the assailants leaving the
scene of occurrence. The first information report was lodged by P.w: 1 in
the police station which was six miles away from the viltage at 6.05 a.m. on G
that day.

Before the Sessions Judge the accused contended that the dacoity was
committed by an armed gang not known to the pro~ecution witnesses but that
they had been falsely implicated on ac.:ount of enmity between them and the
deceased. H
The Ses~ions Judge found that the first information report had been
lodged at the police station without any inordinate delay or that there was

'
OM PRAKASH v, U.P. STATE

/ nothing on record to show that there was any oblique mot've for concocting ·a
false story of the occurrence. He, however, doutted the veracity of the A
evidence of P.Ws. 1 and 7, that these witnesses could not have had sufficient
glimpse of the miscreants to be able to identify them. He also disbelieved the
evidence of P.W. 8, the brother~in·law of the deceased. He, however, believed
the evidence of the wife of the deceased (P.W. 2) that she saw the accused in
light of the lantern hanging on the easter·n walJ both when they entered her
room as weJl as when they attacked her husband and thereafter carrying away B
properties from the house. The Sessions Judge also accepted the evidence
that P.Ws. 2 and 8 were present in the house at the time of the occurrence
and since they had received injuries at the hands of the assailants they could
•ee what had taken place and that the light of the lantern and moon light
were sufficient to identify the assailants. He, therefore, acquitted some of
tb.e accused afld convicted the appellants and sentenced the1n to undergo
imprisonment fo~ life. C
On appeal the High Court c1id not think it safe to rely on any part of
the evidence of P.W. 8 but believed the evidence of P.W. 2 on the ground that
she had given straight-forward evidence without an attempt at making any
improvements to fit it with the testimony of the other prosecution witnesses.
The High Court confirmed the cop.v!ction and sentences awarded to the D
appellants.

Dismissing the appeals,

HELD : There is no 5Ubstance in the contention that the first informa-
tion report was ante-timed;· nor is there any requirement in section 157 of
the Code of Crirriinal Procedure that the first ioformation report should be . E
despatched forthwith or that the time of despatch must be noted thereon. The
Sessions Judge found that the first information report had been lodged at•
the police staHon without any inordinate delay and that no oblique motive for
concocting a false story of the occurence in the first information report had
-or been established. lf the police had intended to obtain a concocted report~ ·
it i1 more likely that they would have obtained it from P.W. 8. who wa, in F
the house at the time of occurrence than take it from P.W. 1 who went there
on hearing shouts and sounds. [573 B-D ; 575 BJ

· The evidence on record &hows that the formal first information report
was recorded in the police station at- the earliest on the morning of the
occurrence, that is, at 6.05 a.m. This.had been corroborated with the evidence
of.P.W. 11, Sub-Inspector of Police, who reached the village which is about 6 G
miles away at 8 a.m. and immediately took up the investigation. [575 B-D]

There is no substance in the contention that, having regard to the size of
the-eastern room in which the dead body was found> it waS not probable that
the 9 appellants armed with various weapons could have all been present in H
it at the same time. The room was sufficiently big and the first information
report stated that the culprits were moving in and out of the house at the
time of the occurren~e. I! was not likely that all of tlem were in the room at
566 SUPREME COURT REPORTS (1983] 2 s.c.R.

the same time and it was not improbable· that they were seen by P.W. 2 at
A different times during the occurrence which ":'ent on for some time. [575 F-H]

Al though the explanation of the prosecution for its failure to examine
the doctor who attended the injured persons was not satisfactory the fact tha.t
the witnesses had stated that they sustained injuries during the occurrence 'was
not disputed. Therefore, mere non-examination of the doctor for proving the
injuries is not fatal to the prosecution case. [576 C-E]
B
From the mere fact that none of the looted properties had been recovered
from any of the appellants it could not be said that they were not the culprits
in the case.. On the contrary, there is enough inc1iminating evidence against
them. [576 G-HJ

c There is no substance in the contention that there was Do sufficient light
in the room to identify the assailants. Though, the prosecution had not got
the lantern identified by P.W. 2, P.W.11 testified that the lantern was hanging
on a peg on the eastern wall of the room and was in working condition. This
fact was mentioned in the first information report. P.W.2 woke up on hearing
the noise and raised the wick of the lantern. It was a moon-lit night. All this
D apart it was not the case of the appellants that there was no lantern in the
room at all. Nor was it suggested that the night was cloudy and visibility was
poor. [577 H; B-F]

The submission that P.W.2 had modri.lated her evidence to fit in with
the prosecution case 'is not well founded. She had denied the suggestion that
unknowu persons came to commit decoity inside the house and that she had
E falsely implicated the appellants because she could not recognise the real
culprits. She was undoubtedly in the eastern room which was the scene Of
the occurrence and had sufficient opportunity to recognise the assailants, who
. '

were known to her. During the occurrence she herself sustained many injuries.
[579 D-E]

F Merely because P.W. I had not sustained any injury during the
oCcurrence and had not mentioned the names of any of the accused to .the villa-
gers who entered the house soon after the occurrence, it is not possible to reject
his evidence altogether. [580 A-BJ

The Sessions Judge erred in .-lejecting the evidence of P.Ws. 1 and 7
and the High Court erred in rejecting the evidence ofP.W. 8. There is no
G reason whatsoever for rejecting the evidence of these witnesses to the extent
that their evidence was cOrroborated by the evidence o~ P.-.W. 2 whose evidence
had been believed by both the courts below. The evidence of P.Ws. 1, 7 and '
.
8 in so far as it goes to prove the presence of the appCUants at the scene of
the occurrence lends assurance to the evidence of P.W. 2 that the appellants
entered the house and assaulted her husband fatally and that some of them
H caused injuries to her and committed decoity. The prosecution had proved
\he case a~ainst t.he a~pe!lants beyond all reas.onable dou.bt. [580 D-H)
OM PRAKASH v. U.P. STATE (Varadarajan, J.) 567

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 54
& 55 of 1974. A
Appeals by Special leave from the Judgment and Order dated
the 21st September, l 973 of tbe Allahabad High Court in Criminal
Appeal Nos. 1923 & 1918 of 1969 respectively.

Frank Anthony and KB. Rohtagi for the Appellants in Cr!. A. B
54 of 1974.

Frank Anthony, S.N. Singh and T.N. Singh for the Appellants
in Crl. A. No. 55 of 1974

S.M. Jain, H.M. Singh and Dalveer Bhandari for the Respon- c
dent in both Appeals.

Deven.dra N. Goburdhan and D. Goburdhan for the com-
plainant in both the Appeals.

The Judgment of the Cciurt was delivered by I>

VARADARAJAN J. These appeals by special leave are directed
against the dismissal of Criminal Appeals Nos. 1918 and 1923 of
1963 by a Division Bench of the Allahabad High Court. Those

, . appeals in the High Court were filed against the conviction of nine E
accused persons, Om Prakash (A - I), Anoop Singh (A-2), Sheo
Gopal (A-3), Raj Narain (A-4), Chandra Prakash (A- 6), Moo!
Chand (A-12), Beni Singh (A-16) Ram Pal (A-17) and Lajjar
Ram alias Raja Ram (A-18) under s. 396 I.P.C. and the sentence
of imprisonment for life awarded to them by the learned Sessions
Judge, Kanpur - Etawah at Kanpur in Sessions Trial No. 172 of F
1969, in which in all 18 accused persons were tried. The trial Court
acquitted the other nine accused, Bhoop Singh (A-5), Virendra
(A-7), Ramadhin (A-8), Ranjit (A-9), Chhotay Lai (A-10),
Chunni Lal (A-11), Bhanu Prakash (A-13), Dhani Ram (A-14)
and Ram Gopal (A-15) in the alleged dacoity with murder at the
house of Mauji Lal, Pradhan in Makhauli village, at about I.AM. in · G
the night of 16/17.-2.1968. In that incident Mauji Lal died and his
wife Ram Shree (P.W.2), Parasuram (P.W.7) and P.W.2's brother
Ram Sha'nkar (P.W.8) are stated to have sustained injuries.

The case of the prosecution was this : There was enmity bet- H
ween the deceased Pradhan Mauji Lal and his brother Baij Nath
(P.W.1) on one hand and the appellants c;>n the other ever since the
568 SUPREME COURT REPORTS (1983] 2 S.C.R.

deceased Mauji Lal, fought an election battle in 1955 witb Mauji
A Lal, tbe father of Om Prakash (A-1) and Bhagwati Prasad, tbe
father of Raj Narain (A-4). There were several cases between the
parties. About a month before this occurrence, Mauji Lal had
reported by Exh. Ka-7 dated 22.1.1968 that accused persons
Om Prakash (A-1) and Sheo Gopal (A-3) had committep tbeft
B of timber belonging to the village school managed by him. A few
days later on 26.1.1968 Mauji Lal had complained before tbe Sub-
Divisional Magistrate, Ghatampur that Moo! Chand (A-12)
forcibly occupied Gaon Sabha land. In 1967 there was rioting in the
village, to which the prosecution party and accused belong. In tbat
rioting one Ran Sanahi was murdered on one side and Kanwar Lal
c was murdered ·on the other side, and two cases were registered, and
Om Prakash (A-1), Sheo Gopal (A-3), Raj Narain (A-4), Ranjit
(A-9), Chhotay Lal (A-II), .Moo! Chand (A-12), Bhoop Singh
(A-5), Rampa! (A-17), Lajjar Ram (A-18) and other are accused
in one case while in the other case the deceased Mauji ta! and 14
D others including Mauji Lal's brother Baij Nath (P.W .I) are accused
and those cases were pending even on the date of the occurrence in
this case. Om Prakash (A-I), Anoop Singh (A-2), and Sheo Gopal
(A-3) are brothers. Raj Narain (A-4), Bhoop Singh (A-5) Virendra
(A-7) and Chandra Prakash (A-6) are brothers. Mool Chand
(A-12) and Bhanu Prakash (A-13) are brothers, Beni Singh (A-16)
E · nephew of Dhani Ram ( A-14) and Ram Gopal (A;; 15), Ram Pal
(A-17) and Lajjar Ram alias Raja Rain (A-18) are cousins.
... '
On the moon lit-night of 16/17.2.1968 deceased Mauji Lal who
was Pradhan of the village and his wife Ram Shree (P.W.2) and
F their children were sleeping in their house in Makhauli village,
Mauji Lal in the western kotha and PW 2 and her children in the
eastern kotha, between which there is a barotha. There was a
lighted lantern hanging from a peg at a height of 6 feet from the
floor On the eastern wall of the eastern kotha. Ram Shaukar
(P.W.8) the brother of Ram Shree (P.W.2) who was assisting his
G deceased brother•in-law Mauji Lal in the cultivation of his lands
was sleeping in a tin shed situate west of the western kotha. The
deceased Mauji Lal and his wife Ram Shree (P.W.2) woke up on
'hearing some commotion when the miscreants who entered the
eastern kotha of the house were breaking open the northern door
H. P.W.2 raised the wick of the lantern, material Exh. III, which
had been lowered previtiusly, and there was sufficient light in
the kotha for recognising ·the miscreants. Mauji Lal had come
. l • , ; '.OM PRAKASH v. u.11. STATE (Varadarajan, J.) 569

·.int~ the eastern kotha before its northern door was broken .ppcn
by ·the miscreants. Om· . Prakash (A.I), Sheo : Gopal (A--:3),
""_,,;~·· ) Anoop .Singh {A~2), Raj Narain (A-4), Chandra Praka9h (A-6),
Moo! Chand (A-12), Beni Singh (A-16), Ram Pal (A-17. a.nd
.Lajjar Ram alias Raja Ram (A-)8) entered the eastern ko.tha af~r
breaking open the northern door with a kulhari, Om Prakash .arm¢
with a pistol and the others armed with Kanta, ballams, kulhari lathi B
and pistol. A pistol shot was fired through the opening in the door
before the miscreants entered the eastern kotha. These nine accuseil .
persons; Om Prakash (A-1), Anoop Singh (A-2), Sheo Gopal
(A-3), Raj Narain (A-4), Chandra Prakash (A-6), Moo! Chand
(A -12), Beni Sinjlh (A-16), Ram Pal (A-17) and Lajjar Ram
'alias Raja Ram. (A_:_ 18) severely assaulted Mauji Lal who died aJ; <1,
ilie spot a~ a result of the injuries sustained by him. Sheo Gopil
(A~3), Cl;landra Pra1rnsh (A-6), Beni Singh (A-16), Ram l'a't
(A-17) and Lajjar Ram alias Raja Ram (A-18) ,assauited P.W;?
se~erely and ra11sacke<l the house for about 15 or 20 minutes and
t~ic away fro~ that eas.tern kotha and the adj~cent box-room D of
'the: house . .ornaments, cash, clothes etc., vaiued at Rs. 2,700/-~ Ram
Shank,ar (P.W,8) who was. sleeping in the tin shed, as stated above,
:W~k.e. up on hearing the 'shouts and sound of gun-fire and s~w
accuse(!, Virendra (A--,7) and Ramadhin (A-8) standing µear his
cqt ar~ed with lathis and they infticted lathi blows on him, When
he. g~ ~n.opportunity, Ram shankar (P W.8) entered the house and B
concealed himself by the side wall near the door connecting the
eastern kotha and the barotha and witnessed what was happening
inside the eastern kotha. P.Ws. 2 and 8 could see the miscreants
in the light of the lantern materi!:ll Exh. III. Baij Nath(P,W:I),
·Parasuram (P.W.7) and others ofthe village woke up on· hearing
·sound 'of gun-shot, and .proceeded towards the house the deceased E'
of
M'auji Lal and stood under a neem tree in' front of 'one Banwari
·Lafs house and eoncealed .themselves in the chappra ofone Motilal
situate east of the decea&"ed Mauji Lal's house.. They saw the in!S•
creants when they were departing 'from the scene, with.tl\e·moob.•
light'. The miscreants standing on the ·roof of Sham· Lat's ·house G
earlier shot'at Paiasuram (P.W.7) while he was standing infiont·of
tliat house and he sustained gun shot injuries.

one and a half hours after the miscreants left the place, II
rw ..About
1 who went inside the house and found.Mauji Lal lying dead
. 1¥itli injuriefi an,d P.Ws. 2 and 8 having injured, got the report, Exh.
,Ka--:\ written.by one Sl\ankar Sin~h. ~e thereafter proceeded to

--- ~,J -
'5'10 SUPREME COURT REPORTS (J98JJ 2 S.C,R

the Police Station at Mooa Nangar situate six miles away from tllC
village, and handed it over to the Head Constable Ram Kishore
Panday (P.W.9). On the basis of that report a formal FIR was ( --'...._ .
registered at the Police Station at 6.05 AM on 17.2.1968. Tiwari, tllit
Sub-Inspector of Police (P.W. 11) took ilp investigation and reached
the village at 8 AM on 17.2.1968 when PW 2 handed over to him ll
.list of properties which had been looted from her house. P.W. 11
B found the dead body of Mauji Lal in the eastern kotha and the lantorn
material Exh. III hanging from a peg in the eastern wall of the kotba
and boxes broken open and the locks.thrown in the verandah.

c SharmaAutopsy on the body of Mauji Lal was· conducted by Dr.
(P. W. 3), Civil Surgeon, Kanpur at 2 PM on 18.2.1968. He
found six incised wounds, two lacerated wounds and three abrasions
on the body of the deceased. The left eye was found bl.ack. The sculp
bones were found cut through and through under three incised wounds.
The doctor (P.W.3) was of the opinion that the incised wound might
D have been caused by some sharp edged weapons like kanta and axe,
that the lacerated wounds could have been caused with Iathi, that the
abrasions might have been caused by coming into contact with some
rough object, that the blackening of the eye might be due to clotting
of blood due to the head injury and that all the injuries together were
sufficient in the ordinary course of nature to cause instantaneous
death. Ex. Ka-2 is the post-mortem certificate issued by P.W.3.

The injured witnesses P.Ws. 2, 7 and 8 were examined between
6 PM and 7.30 PM on 17.2.1968 by Dr. Mukherjee of Chattarpur
Dispensary, who could not be examined as a prosecution witness on
account of difficulty due to his non'availability. The wound certi-
ficates, Exh. Ka 18-20, issued by that Doctor in respect of P.Ws.
2,. 7 and 8 have been proved by the Compounder Vishamber Nath
(P.W. 13). P.W. 2 had sustained 19 injuries consisting of one lacera-
ied wound on the left side of the head and a number of contusions
and abrasions on various parts of her body, all caused by blunt
G weapons .. P.W. 7 had sustained six gun-shot injuries. P.W. 8 had
sustained a contusion on the top of his shoulder joint and an abra-
sion on the lower aspe9t of the right clavicular region, all caused by
blunt weapons such as lathis-.
H
That fact the there was enmity between the two parties and that
Mauji Lal was murdered and property worth about Rs. 2,700/-
from his house was footed in the night of 16.17.2.1968 and that iii
o!.i PRAKAsiI v. tJ.P STATE (Varadarajan, J.) Sii
that incident Mauji Lal's wife (P.W. 2) and brother-in-law (P.W.8)
were injured and P.W. 7 who came near the scene of occurrence ,had ~
received six gun-shot injuries, was not doubted or disputed before the
. learned Sessions Judge by the learned counsel for the defence. But an
the accused denied in their statement their presence and participation
in the occurrence. The suggestion made on behalf of the accused
was that an armed gang of dacoits, not kaown to the prosecution B
witnesses, committed the crime and that the accused have been fal·
sely implicated on- account of enmity. No defence witnesses were
examined.

The prosecution examined. PWs 1,2,7 and 8 as eye-witnessM to <;
speak about the participation ofthe accused in the occurrence. P.W.
1 implicated all the 18 accused persons as having been present at the
time of the occurrence. P.W. 2 implicated only the nine appellants,
namely A-1 to 4;6,12 and 16 to 18 as those who entered the house
and attacked her and her husband and committed dacoity. P.W. 7,
implicated fourteen accused, namely Anoop Singh (A-2), Raj Naraii:t J)
(A-4), Bhoop Narain (A-5), Chandra Prakash (A-6), Virendra
(A-7), Ramadhin (A-8), Ranjeei (A-9), Chhote alias Ram Swarup
(A-10), Chunni Lal (A-11), Moo! Chand (A-12), Bhanu Prakash
(A-13), Dhani Ram (A-14), Ram Gopal (A-15) and Rampa!
(A-17) as some of the miscreants who were present at the house·:( of B
P.W. 2. P.W. 8 also implicated these nine appellants besides
' ~· Virend.ra (A-7) and Ranjit (A-8).

The learned Sessions Judge found that the FIR (Exh. ka-1)
f had been lodged at the Police Station without any inordinate delay
and that there was nothing on the record to show that there was any F
oblique motive for concocting a false story of the occurrence. But he
was of the opinion that the evidence of P.Ws. 1 and 7 does not
inspire confidence, that it could not be believed beyond all reasonable
doubt that those two witnessess had seen the occurrence, that P. W. 1
would have been fired at if he had been present at the chappar as G
claimed by him and that the probability is that as soon as P.W. 7 '
received the six gun-shot injuries in front of Narbada's house, .he
would have either fallen down there or returned to his house. He was
further of the opinion that in any case P.Ws. 1 and 7 could not have
had sufficient "gl;mpse of the miscreants" so as to be able to identify JJ
them. He rejected the evidence of P. W. 8 about the participation. of
Virendra (A-7) and Ramadhin (A-8) in the occurrence as not ins·
pired sufficient confidence and was of the opinion that the evidence
<S?2 SUPREME COURT REPORTS [1983) 2 Sc R·
1':0 - •. • . . • .·' • ·- - ·. • . •
·of P.Ws. I, 7 and 8 about the particip'atiori of the acquitted accuseCI
··9l 's, 7 to I land 13 to 15 in the crime was not acceptable. As. regards
the participation of ihe appellants in the crime ·he accepted the
.evidence of P.Ws. 2 and 8. The evidence of P.W. 2 is that she saw
:the appellalits in the light of the lantern that was hanging in the
eastern wall of the eastern kotha as soon as tliey entered her kotha
'B and also while they were attacking her husband and causing illjuries
to her and ca~rying away the properties from ihe house. The evidence
of P.W. 8 is that he saw Om Prakash (A-1) when he was escaping
from the tin shed where he was sleeping earlier to the western kotha
and that he saw the other appellants from behind the door of the
western kotha when they were attacking deceased and P.W. 2 and
C looting the properties from the house. The learned Sessions Judge
·accepted t~ evidence of P.Ws. 2 and 8 about their presence in the
house at the time of the occurrence, and also the fact that they recei-
.ved the injuries at the hands of the miscreants and could see what
had taken place in the light of the lantern as well as of the moon.
AccC?rdingly, he acquitted accused 5, 7 to JI and 13 to 15 and
D .convicted the appellants and sentenced them as mentioned ~bove.

The learned Judges of the High Court agreed with the trial
·court in not relying upon the evidence bf P.Ws. J and 7. They were
·not prepared to doubt the presence of P.W. 8 in the tin shed of the
E house of the deceased Mauji Lal and P.W. 2 in view of the fact· that
he has received injuries at the hands of the miscreants. But they ,_ '
found it diffiuclt to believe that on finding an opportunity to move
away from the tin-shed, he W'?Uld have entered the house. and taken
shelter there when the miscreants were in the house and beating the
·deceased and P.W. 2. They were of the opinion that P.W. 8 cpuld
·have been of more help to his sister P.W. 2 by running to the village
:abadi for help so that on the arrival of the villagers the offenders
may run away and not cause undue havoc in the house. P.W. · .2 .-
"had not mentioned P.W. 8 as one of the persons who came into the
kotha after the miscreants left the place though, ·he had mentioned
G ·the names of many other persons who came into the kotha. Accor.d-
ing to the learned Judge>, P.W. 8 could have seen only some of the
·offenders but he has intentionally made improvements in his ·version.
·For these reasons the learned Judges of the High Court thought ·it
·not' safe to rely on any part of the evidence of P.W. 8. But they .we~e
H ·of the opinion that the incident could have been witnessed only by
P. W. 2 and her children and that there is no substance in the critidsm
·that independent witnesses have not been called to depose about the
·occurrence as eye-witnesses. They were of the opinion that P.W.. 2
;·:
.. OM PRAKASH v. ti,P. STATE (Varadarajan, J.)
/
has gl~iti &traight;for~ard evidence without any attempt at making
1
any improvement to fit in with the testimony of the other prosecu- A
tion witnesses. They accepted the ,evidence of P.W. 2 as wholly
reliable and confirmed the convictions of the appellants and the
sentence award~d to them and dismissed the appeals.

The .learned counsel for the appellants submitted that the F.1.R.
Exh. K.a"" I is ante-timed. He drew our attention to section 157 of
the Code of Cri,minal. Procedure and submitted that the time of
despatch of Exh. Ka-I is not entered there on. Section 157 only
states that the first information· report should be despatched forth-
with and does no.t say that the time of despatch must be noted there-
on. The learned Sessions Judge has observed in his judgment that
Exh Ka~ I seems to have been lodged at the P61ice Station without
any inordin.ate dely and that there is notbing on record to show that
there was any oblique motive for concocting a false story of the
occurrence itself in that frrst information report. The learned counsel
for the appellant; invited our attention to the evidence of.Shiv Poojan D
Tiwari. Sub-Inspector of Moosa Nagar Police Statwn who had bten
examined as C.W. I. The evidence of CW. I is that while he was
raiding Numain Purwa village in a murder case of his Police Station
at about 2.00 A.M. in the night of 16/17-2-1968 he heard noise
coming from the side of Makhauli village situate 3 miles north of
Numain Purwa village and went there along with some armed police E
guar<l at about 4.00 A-M. and was informed that Mauji Lal had been
murdered in his house and property had been looted from his house
by decoits and that his brother and certain other persons bad gone to
the police station for lodging a report. He has also stated that he
went to the house qf Mauji Lal and found his dead body lying inside
F
the house and that he stayed irr the village until the Sub Inspector of
the Police Station concerned (P.W. I I) arrived at the spot and started
investigation. The learned counsel for the appellants commented ou
the basis of the evidence of c.W. I that he bad not noted the names
of the assailants in the general diary entry made by him in bis police
".station that the: names of the 18 accused including those of the appel- G
lants have been mentioned in the first information report Exh. Ka - I
·,~lily, as an after thought. The relevant portion of Exb. Ka-I may
'.be extracted i':1 order to appreciate the contention of.the learned
·counsel for the appellants. P.W. I the author of exhibit Ka I who
·'do.cs.not claim to have seen the incident which took place in the H
cast,ern kot.ha of tlie house of the deceased has stated in that report
thus :.....: .
574 SUPREME COURT REPORTS (1983] 2 s.c.R.

"Today my brother Mauji Lal was sleeping inside his
A house in the night as usual. A lantern was burning in the
house. Smt. Ram Shree (P.W. 2) was also inside the
house. Shri Ram Shankai s/o Manni Lal (P.W.8) was
sleeping under the tin-shed. In the night intervening
between 16th and 17th of February 1968, at about 1.00
O' clock, the accused persons, having armed themselves
with kantas, ballams, lathis, axes, guns and pistols came
and surrounded the house of my brother Mauji Lal. They
cut open the door and entered the house. They inflicted
injuries upon my brother Mauji Lal and cau£ed his
instantaneous death. They also caused injuries to my
c bhabhi. My bhabhi raised alarm. Ram Shankar was also
assaulted with lathis. He too, raised alarm. On hearing
the shouts and the sounds of guns and pistols I and Prasu
Ram s/o Hira Lal (P.W. 7), Ram Adhar, Ram Kumar,
Ram Prasad Sachan, Banwari Lal s/o Ram Lal, residents
of my village, Beta Lal Sachan of Damodarpur, and
D several other persons, reached the spot, saw the occurrence,
and challanged the accused persons. They recognised
them in the light of the moon. My bhabhiji and Ram
Shankar have also recongnised the accused persons in the
light of the moon and lantern. Parasu Ram has also recei-
E ved injuries from the shots of the gun. There are several
injuries on the person of my brother. After committing the
assault, the accused persons looted away the articles kept
in the boxes in the house, ornaments, clothes and cash etc.
The accused persons kept coming and going outside inside
and on the roof. Out of the accused persons, Annp Singh
F was armed with an axe, Dr. Om Prakash with a pistol, Raj
Nari an and Moo! Chand with kantas, Ram Gopa l and
Dhani Ram .with guns and Bhoop Narain and llanjeet
with ballams. The remaining persons were armed with
lathis."
G
The actual part played by either any of the appellants or any of
the acquitted accused has not been mentioned in this report. It I!luSt
be remembered in this connection that while P.W: 1 has named all
the 18 accused mentioned in Exh. Ka-I. P.W. 2 has nam.ed only
the 9 appellants, P.W. 7 has named the 9 appellants as also accused
7 and 8 and P.W. 8 has named 14 accused persons. If Exh. Ka-1
was ante-timed as submitted by the learned counsel for the appellants
it is not probable that the police would have obtained that report from
.( ''' . bM P~ASIH'. tJ.P. STATE ('Yaradarajan, J.) S75

i'.W: t who was· not one of the residents of the house of Mauji Lal
where the occurrence had taken place but was admittedly living in A'
his own house situate at some distance from the house of the decea·
.sed and was admittedly attracted to the scene of occurrence only by
shouts and the sounds of guns and pistols. If the police had intea·
ded to obtain a concocted first infromation report it is not probable
tllat instead of obtaining it from P.W. 8 who was indisputably one of B
tile rcSidents ofthe house in which the occurrence had taken place
they would have obtained it from P .W. I. The evidence shows that
on the basis of this first information report a formal F.I.R. was
t'l!Corded to' the Police Station situate six miles away from the scene of
. occurrence at 6.05 A.M. on 17.2.1968. The evidence of P.W. 1 is that
he left for the police station about 1 or I! hours after the culprits C
left the place and gave the report which he had got written by one
Shankar Singh. The Sub-Inspector of Police, P.W. 11 has stated that
. 1te thereafter took up investigations of the case and reached the
village at 8.00 A.M. and found the dead body of Mauji Lal in the
l!lllstern kotha and obtained a list of the looted properties from P.W. 2.
In· .these. circumstances we are of the opinion that the submission of D
tfle learned counsel for the appellants that the first information
'report Exh. Ka-! is ante-timed is not well founded.

The learned counsel for the appellants next submitted that hav·
·~
ing regard to the size of the eastern kotha of the house of the dece-
ased it is not probable that these 9 appellants with arms such as guns,
pistols, axe and lathis could have been in)h.e kotha together at the
.saJDe time at the time of the occurrence. The evidence of P.W. 2 is
that that the kotha is 19 or 20 cubits north-south, 41/2 cubits east west
.and IO' in height The evidence of P.W. 11 shows that the eastern
l;otha is 7!. ill height. It is stated in the first information report
.Exh. Ka-I that the culprits were moving in and out of the house of
the deceased at the time of . the occurrence. Therefore, it is quite
not unlikely that all the 9 appellants were in the eastern kotha of
the house at the same time and it is not improbable that these appel·
lants were seen by P. W. 2 at different times during the occurrence G
which must have gone on for some length of time. during which
P.W. 2 has received as many as 19 injuries. The deceased and P.W. 1l
also received injuries, and P.W. 7 who was near about the house o.f
.t~ ·deceased at the. time of the occurrence has also received as many
· as 6 gun shot injuries. In these circumstances we are of the opinion · if
·that. the submission of the learned counsel for the appellants that
havin~ re~ard to the size of the eas\ern kotha it is not probable that
516 SUPREME COURT REPORTS (1983] 2 s.c.R.

the appellants armed with various weapons could not have been pre,
A sent in that kotha is not acceptable.

The learned counsel for the appellants next submitted that Dr.
Mukherjee who was incharge of the Primary Health Centre, Ghatam-
pur on 17-2-1968 and had examined P. Ws. 2,7 and 8 on that dify
and issued the wound certificates Exh. Ka-18 to Ka-20, has not
been examined and that only the compounder of that Primary Health
Centre, P.W. 13 has been called to prove those certificates. The
reason given by the prosecution for the non-examination of Dr·.
Mukherjee is that he was not available and could not be examined
without difficulty. The explanation for the non-examination of Dr.
c Mukherjee is no doubt not quite satisfactory. The learned Public
Prosecutor should have taken steps to procure the attendance of Dt.
Mukherjee for giving evidence about the injuries noted b)' him as per
Exh. Ka-18 to Ka-20 on the persons of P.Ws. 2,7 and 8. But the
fact that these three witnesoes bad sustained injuries during the
·occurrence in this case was not and could not be disputed: Those
witnesses have stated in their evidence that they sustained: injuri!$
during the occurrence. Therefore, the' non-examination of Dr.
Mukherjee for proving the injuries noticed by him on the bodies of
P.Ws. 2, 7 and 8 as per the wound certificates Exh. Ka-18 to
Ka-20 is not fatal to the prosecution.
E
The learned counsel for the appellants next submitted that no . ....(.
property out of the properties looted from the house of the deceased
and P, W. 2 has been recovered from any of the appellants and that
. it is, therefore;not probable that any of these appeilapts ·was res)lon-
f sible for the occurrence in this case. But, as stated earlier, the f;ict that
· · Mauji Lal wa§ murdered and property from his house was looted on,
the night of !6[17-2-1968 and _in that occurrence Mauji La!'s wife
P.W. 2 and his brother -in-law P.W. 8 were injured in the hous~ and
· P. W. 7 sustained 6 gun shot injuries, when he was standing near the
scene of occurrence bad not been disputed befo;e the learned Sessions
6 lodge by the learned counsel for the defendants. ';rhe suggestion made
on behalf of the accused was that an unknown armed ·gang of dacoits
committed the crime and that the accused have been' falsely. impli~a
ted in this case on account of enmity. Having regard to t1J.e av'aiia-
bihty of other incriminating evidence against the appellants, it is not
II , possible to agree with the learned counsel for the appellants that
from the mere fact that none of the looted properti~s has teen re<;<>-
vered from any of the appellants it could be held that the appellants
are not the culprits in this case. ·
1
OM PRAKASH v. u.P. STATE (Varadarajan, J.) 577

The learned counsel for the appellants next submitted that the
lantern material Exh. III has not been put to or identified by P.W. 2 A
'•
. ->-· as the one which was burning in the eastern kotha at the time of
the occurrence. Here again it. is unfortunate that the learned Public
Prosecutor has not got the lantern identified by P. W. 2. But Sub-
Inspector of Police P.W. 11 who had seized that lantern has stated
in his evidence that it was found hanging on a peg on the eastern B
wall of the eastern kotha of the house of the deceased and P.W. 2
and that it was in working condition. The presence of the lantern
in the eastern kotha. at the time of the occurrence as well as of moon
light at the time of the occurrence has been mentioned in the first
information report Exh. Ka-1 by P.W. 1 who is a brother of the
deceased Mauji Lal and a resident of the same village and could be c
naturally expected to have gone. into the house of the deceased soon
after the culprits left the place. P. W. 2 has stated in her evidence
that it was moon-lit night and the lantern was buring in the eastern
kotha where it had been hung on a peg fixed at a height of 6' from
the ground on the eastern wall and that when she hearcl the sound of D
some persons in the court-yard she got up immediately and raised the
wick of the lantern which was until then giving clim light. She has
stated in her cross-examination that the lantern used to be, hung daily
on the same peg, that there was no blackness on the wall near the peg
and that she had scratched it off about 8 days prior to the date of
her examination in the Court. It is significant to note that it has not E
been suggested to P.W. 2 that there w&s no lantern at all in the room
in which she was sleeping with her children .and that her husband
Mauji Lal whose dead body was found by the Sub-Inspector P.W. 11
in that kotha had not come to that ·kotha at all. It is seen from the
T almanac that the night of 16i17.2.1968 was the third night after the F
full moon and that the moon arose at Delhi at 8.43 P.M. on that
day. It has not been suggested to P.M. 2 or P.W. 7 or any other
'witness examined by the prosecution that the night was cloudy ·and
visibility was poor for that or any other reason. It is not improbable
that the lantern was burning in the eastern kotha where P.W. 2 and
her children were sleeping during the night and that P.W. 2 had G
raised the wick of the lantern when she heard some commotion in the
court-yard of her house before the culprits broke open the eastern
door of her kotha and entered the same. Therefore, there must have
been sufficient light in the eastern kotha for P.W. 2 to note the
presence of the appellants who belong to the same village and were H
not strangers and for P .W. 8 also to note the presence of the culprits,
578 SUPREME COURT REPORTS [1983] 2 ~.C'R,

A There was sufficient moon light for P.W. 1 and P.W. 7 to see the
culprits who are stated to have been moving in and out of the
deceased and P.W. 2 during the occurrence. Therefore, it could not .(_ ..

be stated that P.Ws 1, 2, 1 and 8 could not have been in a position to
identify any of the culprits.

B The learned counsel for the appellants invited our attention to
the fact that the learned Sessions Judge has disbelieved the evidence
of P. Ws 1 and 7 and the learned Judges of the High Court have not
relied on the evidence of P.W. 8 and submitted that P.W. '.2 has
modulated her evidence to fit in with the case of prosecution and that -+
the evidence of P.W. 2 should not, therefore, be relied upon for
c basing the conviction of the appellants in this case. We were taken
through the evidence of P.W. 2 by the learned counsel for the appel-
lants, and we are of the opinion that the submission that P.W. 2 has
modulated her evidence to fit in with the case of the prosecution is
not well founded. P. W. 2 has stated thus in her evidence :-
D
"Raj Narain (A-4) , Om Parkash (A-1) , Moo! Chand
(A-6), Anup Singh (A-3) , Ram Pal (A-7) , Beni
Singh (A-9) , Raja Ram (A-8) , Shiv Gopal (A-2)
and Chandra Prakash (A-5) cut the northern door of
E my Kotha with small hatchets and immediately came in
my kotha. I saw and indentified them in the light of
lantern. I know them from before. All of them were
..
armed with kanta and spears etc. Out of them Rampa!
(A·- 7), Beni Singh (A-9) , Lajjar Ram (A-8) , Shiv
Gopal (A-2) and Chandra Prakash (A-5) assaulted me T
F with lathis as a result of which I received several injuries.
My husband Mauji Lal had come in my kotha before the
entery of the accused persons. The aforesaid accused per-
sons carried out bru,tal assault on Mauji Lal with lathis,
small hatchets and kanta so much so that he expired.
My brother Ram Shankar (P. W. 8) was sleeping in a
G
verandah having the tin-shed. Some persons had reached
there as well. They were assaulting him. His voice was
audible at my kotha. The nine accused persons who
entered my kotha had started looting my articles and
H they. looted several ornaments and clothes belonging to
me. After having stayed for about 15-20 minutes inside
the house oil the accused persons went away outside
through the nort\lern door of my kotha. During the mur-
OM PRAKASH v. U.P. STATE (Varadarajan, J.) 579

der. and loot I diclnot hear any alarm from the maidan
outside from the atari on the upper storey. Some accused A
person fired a gunshot also inside my kotha from a hole
of the door before cutting the same. The pellet of that
shot hit the wall but it did not bit me or my husband.
Om Prakash (A-1) had a pistol in his hand .
•
• • • B
* * * *
A sufficiently loud noise came out as a result of firing
shots with a gu~ and a pistol .................................. ..
2 or 3 minutes atter the accused persons went away, My
Dewar (husband's brother) Baijnath (P.W.1) came in my
kotha. first of all and along with him Ramadhar, Ram-
c
Kumar, Banwari and Parasuram (P. W. 7) also came".

P.W.2 has denied the suggestion that unknown persons came to
commit dacoity inside the house and that she has falsely implicated
the appellants because she could not recognise the real culprits. D .
We do not see any reason whatsoever for not accepting the evidence
of P.W. 2 who undoubtedly was in the eastern kotha where the main
part of the occurrence lias taken place and ·must have had
sufficient opportunity to indentify, with the help of the lantern whch
was burning, the appellants who were previously knowon to her and
not strangers and she has received as many as 19 injuries during E
' .. the course of the occurrence which had gone on for about 15-20
minutes.

The noise created during the occurrence had attracted the
attention of the· Sub-Inspector of police C.W.l who belonged to F
some other police station and was in another village situate a couple
of miles away from the one in which the scene of occurrence is
situate. It is, therefore, not improbable that P.Ws. 1,7 and othors
had ' got up on hearing the noise and that P. W. l had moved near-
ahout the house of his brother Mauji Lal where the occurrence
was taking place. P.W. 1 has named all the 18 accused in his G
evidence as well as in the first information report Exh. Ka- I given
by him at the police station at about 6.05 A.M on 17.2.1968.
The suggestion made to P.W.l in cross examination is that as soon
as Parsuram (P.W.7) received injuries they became afraid and did
not advance ahead and that he did not reach the spot and did not H
see the occurrence with his own eye. He had emphatically denied
that. suggestion. The learned Sessions Judge has rejected the
w
evidence of P. 1 mainly because he had not mentioned the nallle of
~80 SUPREME COURT REPORTS [1983) 2 s.c.R.

any of the accused to any of the villagers who entered the house of
A the deceased soon after the miscreants left the place and alsif becaus~
he has not sustained any injury and he would not have been left
unharmed by the accused if he was anywhere near the scene of
occurrence. Merely because P. W.1 had not sustained any injury
during the occurrence and had not mentioned the name of any of
the accused to other villagers who entered the house of the deceased
B soon after the culprits left the place it is not possible to reject the
evidence of P.W.1 altogether.

Tue learned Sessions Judge disbelieved the evidence of P.W.7
having regard to the fact that it is admitted by P.W.J that P.W.7
c belonged to the party of the deceased and that it was "doubtful"
whether P,.W. 7 could have had a sufficient "glimpse" of the miscreants
so as to be in a position to identify them, The learned Sessions
Judge has further observed that as soon as P.W.7 received the six
gun shot injuries in front of Narbada's house he would have
either fallen down there or returned to his house. There was r
D sufficient moon light at the time of the occurrence and -it is not
improbable that P.W.7 who had undoubtedly come near the scene
of occurrence would have seen· any of the culprits and could not
identify them. Therefore, it is not possible to agree with the
learned Sessions Judge that no reliance could be placed on the eviden·
E ce of P.Ws. I and 7. The learned judges of the High Court have
observed in· their judgement that P.W. 8 who was undoubtedly
present in the house in the tin-shed at the time of the occurrence ••
could have seen some of the offenders and that his evidence could
not be relied upon because he has intentionally made improvements
in his version about the occurrence. They have also observed that
F P.W.8 would have helped his sister P.W.2 better if he had run into
the abadi and informed othar villagers. We arc of the opinion
that the reasons given by the learned Judges of the High Court for
rejecting the evidence of P.W.8 altogether are not convincing. We
are ftirther of the opinion that there is no reason whatsoever for
G rejecting the evidence of P.W.s. I, 7 and 8 of whom P.Ws.7 and 8
are injured witnesses to the extent that their evidence is corroborated
by the evidence of P.W. 2 who has been believed by not ·only the
learned Sessions Judge but also by the learned Judges of the High
Court. The evidence of P.Ws. I, 7 and 8 in so far as it goes to prove
H the presence of the appellants lends assurance to the evidence of
P.W. 2 that the appellants entered the house and assaulted her husband.
fatally and that some of them caused injuries to her and committed
dacoity by looting properties worth abo\lt Rs 2,700/· from her house.
OM f>RAKASI! v. U.P. STATE (Yaradarqjan, i> SSi
Thus on consideration of the evidence of P.W.2 and of
P.Ws. J, 7 and 8 to the extent that it is corroborated by evidence of A
P.W.2 and the other circumstances of the case, namely that the door
of the eastern kotha of the house of the deceased was found broken
open, that the dead body of Mauji Lal was found lying in the
eastern kotha of the house and that the boxes had been found
broken open ans! the locks were found lying nearby in the verandah Jj
of the house, we are of the opinion that prosecution has proved
the case against the appellants satisfactorily and beyond all reas'on-
+ able doubt and that the conviction of the appellants for the offence
under section 396 I.P.C. and the ·sentence awarded to them by the
learned Sesssions Judge and confirmed by the learned Judge~ of the
High Court are correct. We accordingly confirm the conviction and C
sentence and dismiss the appeals.

P.B.R. Appeals dismissed.

..

T
•