STATE OF U.P. versus GANGA RAM AND ORS.

Citation: [2005] SUPP. 4 S.C.R. 524 · Decided: 25-10-2005 · Supreme Court of India · Bench: H.K. SEMA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
STATEOFU.P. 
v. 
GANGA RAM AND ORS. 
OCTOBER 25, 2005 
B 
(H.K. SEMA AND P.P. NAOLEKAR, JJ.] 
Penal Code, 1860: 
C 
Sections 302134-Conviction of accused on the basis of evidence of 
eye-witnesses-Acquittal by High Court on the ground that no ~esident of 
vicinity was examined as witness and that Prosecution witnesses were 
related-Correctness of-Held: Not correct as testimony of eyewitnesses is 
corroborated by medical evidence-They were subjected to lengthy cross 
examination but nothing had elicited to discredit their testimony in chief-
D Further, non-examination of resident of the vicinity or pedestrian as witness 
would not throw awcy the otherwise reliable testimony of eyewitnesses which 
is natural and inspires confidence. 
Section 34-Two accused armed with country made pistols accompanied 
the other accused armed with SBBL gun and DBBL guir--Ki/led the deceased-
E Conviction under Section 302 with the aid of Section 34-Justification a/-
Held: Justified, as the circumstances, clearly inferring the intention of the 
two accused for committing an offence in furtherance of common intentioir--
lt cannot be said that they accompanied the other accused as an idle 
curiosity. 
F 
Evidence: 
Eyewitness-Testimony of-.Evidentiary value of-Deceased attacked 
on a road-Non-examination of any pedestrian or resident of the vicinity--'-
Held, not fatal and cannot be ground to disbelieve the creditworthy testimony 
G of eyewitness which inspired confidence. 
H 
Prosecution evidence-Held: To be weighed and not counted-It is 
within the domain of prosecution to choose a witness. 
According to Prosecution, the deceased was witness in a criminal case 
524 
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( -. 
' 
STA TE OF U.P. v. GANGA RAM 
525 
against accused A-3 and A-4. Accused were threatening the deceased not to A 
appear as a witness in that case but he showed determination to give statement 
On the fateful day, when the deceased, PW-I and PW-2, father of the deceased 
were on their way to their village, the accused fired at the deceased with 
weapons. Trial Court found them guilty under Sections 302/34 IPC. On appeal, 
High Court disbelieved the testimony of eye-witnesses and ordered acquittal. B 
Hence the present appeal. 
Allowing the appeal, the Court 
HELD: I. To bring home the guilt of accused, the prosecution amongst 
others examined two eye-witnesses, PW-I and PW-2. Admittedly, PW-I is the 
father of the deceased and therefore his evidence had to be weighed with C 
caution. This witness was subjected to lengthy cross-examination. No 
suggestion was put to witness denying the presence of the accused at the place 
of occurrence and weapons carried by each accused as described by P.W.I, 
therefore, the substance of accusation against the accused made in chief of 
P.W.I remains unimpeached. PW-2, another eye-witness, who is resident of D 
the same village was also subjected to lengthy cross-examination but nothing 
could be elicited from his mouth to discredit his testimony in-chief. In fact, 
no question or not even a suggestion, was put to this witness to demolish the 
substance of the testimony about the factum of the incident, lucidly narrated 
by him, which inspires confidence. The testimony of P.W.1 and P.W.2 is well 
corroborated by the medical evidence and the post mortem report conducted E 
by P.W.4 in material particulars. 1529-C-D; 530-E-F; 53I-D-E] 
2.1. The High Court had recorded acquittal of accused on the ground 
that the occurrence is stated to have taken place on a pucca road on which 
bullock-carts, buses and other vehicles also go. The time is also of 5.I5 p.m. 
but no outsider or pedestrian or resident of the vicinity has been named in 
the FIR or in the statement of the witnesses but only P.W-2 has been examined 
as an independent witness. This ground, taken by the High Court, is far-fetched 
and contrary to the testimony of eye-witnesses. This can be hardly a ground 
to disbelieve the otherwise creditworthy testimony, which inspired confidence. 
F 
1531-F-GJ G 
2.2. It is now well-settled principle of law that whom to cite as a witness 
and whom not is within the domain of the prosecution. It is also well settled 
principle that the prosecution evidence has to be weighed and not to be counted. 
It is just because any other pedestrian or resident of the vicinity has not been 
cited as witnesses will be no ground to throw away the otherwise reliable H 
526 
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R. 
A testimony of the eyewitnesses whic

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