HIMANSHU MOHAN RAJ versus STATE OF U.P. AND ANR.

Citation: [2017] 2 S.C.R. 678 · Decided: 07-03-2017 · Supreme Court of India · Bench: S.A. BOBDE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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[2017] 2 S.C.R. 678 
HIMANSHU MOHAN RAJ 
v. 
STATE OF U.P .. AND ANR. 
(Criminal Appeal No.827of2011) 
MARCH 07, 2017 
[S. A. BOBDE AND L. NAGESWARA RAO, JJ.] 
Penal Code, 1860 - s.302 - Appeal against acquittal -
Prosecution case was that the accused persons got into an 
altercation with the waiter of a hotel run by deceased and his brother 
(PW-1) - Deceased and PW-1 tried to pacify the accused persons -
Upon heated arguments, one of accomplices exhorted the accused 
to fire the shot - Accused fired five rounds resulting in death of 
brother of PW-1 - Trial court convicted respondent-accused u!s.302 
for murder and awarded life imprisonment - High Court set aside 
the conviction and acquitted the respondent - Appeal by 
complainant/State against acquittal - Held: P. W 1 is the brother of 
the deceased - The testimony of this witness did not shake in any 
material particulars in the cross-examination - His testimony was 
credible and it proved that the accused shot the deceased as alleged 
by the prosecution - The ballistics report stated that the empty 
cartridges found ot the scene of the crime were not fired from the 
gun recovered from the accused - But this had no bearing on the 
credibility of the deposition of P. W 1 that the accused shot the 
deceased with a gun, particularly as it was corroborated by the 
bullets in the body - The fact that accused shot the deceased with a 
gun was also corroborated by the testimony of P. W2 - Plea of false 
implication was also ruled out -
The facts and circumstances of the 
case warranted interference with the acquittal order - Respondent 
convicted u!s.302 and sentenced to undergo life imprisonment. 
Allowing the appeals, the Court 
HELD: 1. P. W. 1 is the brother of the deceased and the 
first informant. The testimony of this witness has not shaken in 
any material particularly in the cross examination. The testimony 
of P.W. 2 completely corroborates the version of P.W. 1 in all 
material details of the incident. There is no reason to reject this 
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HIMANSHU MOHAN RA! v. STATE OF U.P. AND ANR. 
679 
testimony on the ground that bis statement was recorded after 
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30 days particularly since there was a change of investigating 
officers. [Paras 7, 9) [684-D; 685-F) 
2. There is no requirement that the FIR must be in the 
handwriting of the informant. Neither is it necessary to doubt the 
FIR because author of FIR was not examined. The FIR was 
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otherwise proved in the evidence of the Police Officer (P.W. 7) 
who stated that PW-1 and his uncle came with a written report 
and he wrote the chik recorded on the FIR. It cannot be inferred· 
from any of the above circumstances that the FIR was ante-timed. 
Nor is it possible to disbelieve the timing of the FIR because the 
Police Constable went to the scene of crime and seized a shirt 
before the registration of the FIR at 23:05 hours i.e. at 22:00 
hours. In fact, the police inspector (P.W. 6) stated in his evidence 
that he seized the shirt "around 10 in the night"' and that he does 
not remember the exact time. Apparently the police recovered a 
licensed gun from the accused while he was boarding a train and 
the ballis.tic report showed that the licensed gun was not used for 
the killing. This means that the Police did not recover the actual 
weapon used for the killing and the accused had ample time to 
dispose off the weapon. It is, however, not possible to reject the 
credible ocular evidence of the eyewitness who witnessed the 
shooting and who are found be truthful. It is possible that the 
prosecution may not recover the actual weapon in some cases. 
However, this cannot have the effect of discrediting reliable ocular 
testimony particularly when the lead bullets were recovered and 
were found belonging to a commonly used 7 .65 m.m. caliber i.e • 
.32 bore weapon. [Paras 11, 12, 14 and 15) [686-B-D, F-H) 
3. There was no iota of evidence on record which would 
suggest any motive on part of P.W.1 to falsely implicate the 
accused. There was no evidence that the police conspired to frame 
the accused who was a congress leader and had protested against 
police high handedness. The expert evidence to the effect that 
the empty cartridges which were found on the spot were not fired 
from the weapon that was recovered, does not really create a 
contradiction with the ocular evidence of P.W. 1 that the accused 
fired at the deceased with a gun and killed him. It so happens 
that the gun recover

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