BABU RAM AND ANR. versus STATE OF U.P. AND ORS.

Citation: [2002] SUPP. 1 S.C.R. 366 · Decided: 01-08-2002 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Case Partly allowed

Judgment (excerpt)

A 
BABU RAM AND ANR. 
v. 
ST ATE OF U.P. AND ORS. 
AUGUST I, 2002 
B 
(R.C. LAHOTI AND BRIJESH KUMAR, JJ.] 
Penal Code: Sections 34, 147, 148, 149, 302 and 325: 
Murder-Act of assault by lathi-Subsequent/y, act of firing by other 
C accused persons-Caused death of victim-Inference-Held, Absence of direct 
or circumstantial evidence-Evidence of eye-witnesses confirm that act of 
assault was over when gun shots were fired at victim-Injuries caused by lathi 
not enough to cause the death-In such circumstances, inference cannot be 
drawn that accused were sharing common intention with other accused, and 
D death of the victim was caused due to their concerted action. 
E 
Murder-Simultaneous firing by accused persons-Death of victim-
Whether accused were sharing common intention-Held, yes, since shots were 
fired at victim simultaneously and shot by one of them has fatally hit the 
victim and caused his death. 
Evidence Act, 1872: 
Non-examination of an eye-witness-Effect of-Held, evidence of one 
eye-witness examined is found to be trustworthy to convict the accused 
persons-Non-examination of another eye-witness would not cause any infirmity 
F in prosecution case. 
According to the prosecution, in connection with levy of irrigation 
charges on the users, the tubewell Operator, and tubewell Amin, 
accompanied by some villagers including deceased and his brother, were 
G surveying the villa~e fields. When they reached the field of the accused a 
quarrel started between accused and the deceased on the issue of use of 
tube well. One of the accused exhorted the deceased whereupon two other 
accused dealt with lathi blows on the deceased who also wielded his lathi 
in defence. Tubewell Operator and tubewell Amin had slipped away. 
However, brother of the deceased, PWI tried to pacify both the parties. 
H 
366 
( 
BABURAMv. STATE 
367 
In the meanwhile, other two accused opened fire aiming at deceased, who A 
after receiving firearm injury, fell down and died on the spot. PWI lodged 
F.I.R. of the incident. Police started investigation and dead body of the 
deceased was sent for post mortem examination. Five accused persons were 
tried on charges under Sections 302/149, 148 and 147 I.P.C. Trial Court 
convicted two of the accused for offences under Sections 148 and 302/149 B 
IPC and other three accused were convicted for offences under Section 
147 and 302/149 IPC. On appeal, High Court held that one of the accused 
did not participate in the incident at all, and therefore, there was no 
unlawful assembly formed by the accused persons. Accordingly it convicted 
four accused persons under Sections 302/34 IPC and one accused has been 
completely exonerated and acquitted. Hence these appeals by the four C 
convicted accused. 
It was contended for the appellants that PWI is the brother of the 
deceased and, therefore, an interested witness; that according to the 
brother of the deceased, deceased had taken Dal-Roti in breakfast on the 
fateful day, whereas post-mortem report suggests presence of rice in the D 
intestine as well. It shows that PWI was not present with the deceased; 
Tubewell Operator, a Government Servant and an independent eye 
witness, was not examined, therefore an adverse inference could be drawn 
against the prosecution; and that there is infirmity in the prosecution as 
the guns seized from accused was not sent for forensic examination by E 
ballastic experts. 
Partly allowing the main appeal filed by the two accused and 
dismissing the connected appeal filed by another two accused, the Court 
HELD: I.I The ocular evidence adduced on behalf of the F 
prosecution proves beyond reasonable doubt the prosecution story 
including the role assigned to each of the accused persons excepting the 
one who has been acquitted by the High Court. (372-El 
1.2. Evidence of PWI finds corroboration from the promptly lodged 
FIR and the medical evidence who is also supported with all force by PW2, G 
a villager and an independent witness and as to whom it is not even 
suggested why he would tell a lie and implicate the accused persons falsely. 
PW3, the tubewell Amin has turned hostile. He was declared so and cross-
examined by the public prosecutor. However, even PW3 has admitted the 
presence of the deceased and a dispute having taken place with him during H 
368 
SUPREME COURT REPORTS [2002) SUPP. l S.C.R. 
A the inspection visit of the witness and the use of lathis and gun by the 
assailants though he did not identify o

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