Om Prakash And Others vs State Of U.P. on 3 July, 2026

Allahabad High Court

Om Prakash And Others vs State Of U.P. on 3 July, 2026

Author: Rajnish Kumar

Bench: Rajnish Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2026:AHC-LKO:42922-DB
 

 
Reserved on 06.04.2026 
 
Delivered on 03.07.2026 
 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW 
 
CRIMINAL APPEAL No. - 348 of 1989   
 
   Om Prakash And Others    
 
  .....Appellant(s)   
 
 Versus  
 
   State of U.P.    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Appellant(s)   
 
:   
 
K. Shanti Prakash, Naved Ali, Prem Kumar Srivastava, Rohit Tripathi, Surya Prakash Singh   
 
  
 
Counsel for Respondent(s)   
 
:   
 
Govt. Advocate, Akhlaq Ali, Hemant Tripathi, M.S.Khan, Manish Pandey, Moti Lal Yadav, Neeraj Singh, Parvez Alam, Pranav Pandey, Rama Pati Shukla, Shrikant Mishra   
 
     
 
    
 
 HON'BLE RAJNISH KUMAR, J.  

HON’BLE MRS. BABITA RANI, J.

(Per: Mrs. Babita Rani, J.) 1. Heard Shri Jai Pal Singh, learned counsel for the appellants, learned A.G.A. appearing for the State and Shri Rama Pati Shukla, learned counsel assisted by Shri Shrey Shukla and Ms. Swati Pandey, learned counsel for the complainant.

2. The order shall dispose of the aforementioned appeal which has been preferred by the appellants against the judgement and order dated 26.04.1989 passed by Additional Sessions Judge, Unnao in Sessions Trial No. 230 of 1986 In re; State v. Krishna Kumar and others and in Sessions Trial No. 231 of 1986 In re; State v. Om Prakash and others, whereby the appellants Om Prakash and Ramesh were convicted under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as ‘IPC‘ for brevity) and sentenced to rigorous imprisonment for life, further convicted under Section 307 of IPC and sentenced to rigorous imprisonment for five years and further convicted under Section 323/34 of IPC and sentenced to one year of rigorous imprisonment. Appellant Krishna Kumar was sentenced to life imprisonment under Section 302/34, rigorous imprisonment for 5 years under Section 307/34 and rigorous imprisonment for 1 year under Section 323/34 of IPC. However, accused Om Prakash and Ramesh were acquitted from commission of the offence under section 27 Arms Act, 1959 as charged of. Accused Uma Shanker died during the trial, therefore, the instant appeal has been filed for accused Om Prakash, Ramesh and Krishna Kumar only.

3. For the sake of convenience, the parties shall be referred as per their original nomenclature as given at the time of trial.

Factual matrix of the case

4. The case as set up by the prosecution is that on 28.01.1986, PW1 Kishori Lal along with his son PW2 Rakesh had taken their cows and buffalos at Dedhwa Taal for grazing, in the morning. At about 01:00 PM, one of the cows ran into the field of accused Krishna Kumar and grazed some crop, however, the cow was taken out by his son Rakesh immediately. Accused Krishna Kumar, who was present on the spot, started abusing PW1 and PW2. This resulted in a heated argument between the two sides, after which accused Krishna Kumar left to his home. At about 04:30 PM, when PW1 and PW2 were returning home with their cows and buffalos and reached on the road near the field of Kasi Pandit, the accused Krishna Kumar came carrying a lathi and he was accompanied by accused Uma Shanker, who was also carrying a lathi while accused Om Prakash and Ramesh were having country made pistols. Om Prakash called upon his accomplices to hit the accused and thereafter, accused Krishna Kumar attacked PW1 complainant while accused Uma Shanker attacked PW2 with their lathi. PW1 and PW2 started raising hue and cry due to which nearby people assembled at the spot including PW3 Rajpal Singh, PW4 Ganga Narayan, PW5 Babulal, who witnessed the incident. Incident happened near the house of PW1, therefore, on hearing the hue and cries, his brothers namely Shiv Bilas and Shanti Lal also rushed to the spot and tried to rescue PW1 and PW2 from the clutches of the accused. On this, accused Om Prakash shot Shiv Bilas and accused Ramesh shot Shanti Lal. Thereafter, the accused Om Prakash and Ramesh also fired at PW1 and PW2 but somehow they managed themselves to escape unhurt having intermingled in the nearby crowd. Thereafter, the accused continued to put the people in fear by swaying their arms in air and terrorized the people for about fifteen minutes, extended threats to set the bodies on fire and left the place with their weapons on seeing the crowd assembled on the spot. After their leaving, complainant with the help of villagers lifted the dead bodies of the deceased to home and wrote the complaint Ex. Ka.1 and went to the police station along with his son, where on the basis of the written complaint a first information report (Ex. Ka.4) was registered by PW9 constable Ram Asrey Tiwari, at 22:30 hours on the same day against the accused Krishna Kumar, Uma shanker, Om Prakash and Ramesh under Section 302/307/323 of IPC.

5. The investigation of the case was carried out by S.O. Purshottam Narayan Chaturvedi PW10, who was present in the police station at the time of lodging of the first information report. After sending the complainant PW1 and his injured son to the hospital, PW10 had left for the scene of occurrence and found the bodies of the deceased in the shed of the complainant’s house. The inquest proceedings could not be started due to non-availability of source of light in the dark night and the panchnama was conducted next morning after nominating the panch witnesses. Next morning, the panchnama, photo, challan and other necessary formalities were done which were marked as Ex. Ka.13 to Ex. Ka.22. The blood soaked clothes of the deceased were marked as Ex. Ka.23 and 24 and site map Ex. Ka.25 was also prepared. After concluding the entire proceedings, the dead bodies were sealed and sent for postmortem. The site plan of place of occurrence (Ex. Ka.25) was prepared by him at the instance of PW1 and his son Rakesh. In addition of above, he took into possession two empty cartridges and a pair of chappal of accused Om Prakash, found on the place of occurrence vide recovery memo Ex. Ka.26 and Ex. Ka.27, prepared on the spot in presence of witnesses.

6. Accused Om Prakash and Ramesh were arrested on 30.01.1986 and two pistols were recovered from their possession on the basis of which a separate first information report Ex. Ka.9 was lodged against them under section 25/27 of the Arms Act on the tehrir of Inspector PN Chaturvedi, the complainant.

7. On finding a prima facie case, charge sheet was filed against accused Krishna Kumar, Ramesh, Om Prakash and Uma Shanker. Charges were framed against accused Krishna Kumar and Uma Shanker under Sections 302/34, 307/34, 323/34 of IPC, and against accused Om Prakash and Ramesh under Section 302, 307/34 and 323/34 of IPC and Section 27 of the Arms Act, to which they pleaded not guilty and claimed trial.

8. Thereafter, the prosecution opened its case and examined as many as 12 witnesses in its support. In order to properly appreciate the evidence and the circumstances which were arrayed against the accused, it may be apposite to have a brief resume of the evidence led by the prosecution.

9. PW1 stated that accused Om Prakash and Ramesh were the nephews of accused Krishna Kumar and these three accused along with Uma shanker had attacked PW1, his son PW2 and deceased brothers on 28.01.1986. PW1 had written the complaint and taken it to the police station along with his son PW2 where the first information report was lodged. PW1 and PW2 had been sent to the hospital from the police station where their treatment was done. PW2 corroborated the testimony.

10. PW3, PW4 and PW5 are said to be independent witnesses of incident who did not support the case of the prosecution. PW6 and PW7 are said to be witnesses to the arrest of the accused Om Prakash and Ramesh but they also did not support the prosecution stating that no such arrest took place in their presence.

11. PW8 Dr S.K. Saxena was posted as MO in the Fatehpur hospital and prepared the injury report Ex Ka.2 and Ka.3 of PW1 and PW2 on 29.01.1986. He found the following injuries on the person of PW1 Kishori Lal:

(i) Abrasion with contusion of about 2 cm X 2 cm on the skull on right side on middle part about 8 cm above the right ear, scab present, no sepsis present.

(ii) Abrasion of about 1 cm X 1 cm on the forehead on left side about 5 cm above left eye, scab present, no sepsis present.

(iii) Swelling about 2 cm X 3 cm on the dorsum of the upper part of the left forearm, just below the elbow joint.

(iv) Complaint of pain on the dorsum of the left thigh, slight tenderness present.

(v) Complaint of pain on the base of index finger of right hand, slight tenderness present.

The following injuries were found on the person of PW2 Rakesh:-

(i) Abrasion with contusion of about 2 cm X 2 cm on the skull on middle part on right side about 10 cm above the right ear, scab present, No sepsis present.

(ii) Swelling of about 2 cm X 2 cm on the forehead on right side about 4 cm above the right eyebrow.

(iii) Abrasion of about 5cm x 1 cm on the dorsal surface of the left forearm about 4 cm above the wrist joint. No bleeding present.

(iv) Abrasion of about 0.5cm x 0.2 cm on the palmer surface of the index finger at the first inter-phalengial joint, serum present at the left hand.

(v) Abrasion of about 1 cm X 1 cm on the dorsum of the thumb of the right hand at the first inter phalengial joint, serum present.

(vi) Contusion of about 12cm x 3 cm on the back on right side just below the spine of scapula, reddish in colour.

12. PW9 Ram Asrey Tiwari was posted as Head Constable in police station Fetahpur on 28.01.1986 and had lodged the chik FIR Ex Ka 4 with the corresponding entry in general diary, on the basis of the written complaint submitted by PW1.

13. PW10 was posted as the Station Officer in Police Station Fatehpur on 28.01.1986 and conducted the investigation of the case. PW11 SO Shiv Swaroop Tiwari had filed the charge sheet Ex. Ka.30 against the accused. PW12 Sub Inspector Karan Singh had taken over the investigation on 31.01.1986 after which he recorded the statements of PW6 and PW7 and filed Charge-sheets Ex. Ka.32 and Ex. Ka.33 pertaining to the charges under Arms Act.

14. Post Mortem report of deceased Shiv Bilas Ex. Ka.36 and deceased Shanti Lal Ex. Ka.37, genuineness of which is admitted by the accused, thus formal proof dispensed with. On 29.01.1986 post mortem of both bodies was conducted by Dr. K.L. Shah at 3:20 PM and 04:00 PM respectively and found following injuries on the body of deceased Shiv Bilas:-

i) multiple firearm wounds in an are of 17×21 cm in front of chest and abdomen left side 3 cm below the left nipple and 5 cm above umblicus, depth chest and abdominal cavity deep. Blackening present. Margins inverted.

In internal examination, it was found that 6th, 7th and 8th laterofrontal ribs had holes present and 4 pellets were superficially present. Pericardium was found lacerated at two places, heart lacerated at two places and two pellets were removed from there, cavity had 250 ml blood and 12 small pellets recovered, stomach was lacerated with blood and 200 gm semi digested food and two pellets. Total 30 small pellets were recovered from the body of deceased and sent to the police in sealed cover.

Following injuries were found on the body of deceased Shanti Lal:-

i) multiple fire arm wounds 35×2 cm in front of chest above the nipples in between both front shoulder, depth-superficial to chest cavity deep. Blackening present. Margin inverted.

ii) firearm wound 17cmx 6cm on left side face from left temporal region to left side neck. Blackening present.

In internal examination, 3rd and 4th rib were found to be lacerated and small hole was present in front. Larynx and trachea were found lacerated and small pellets present. Neck was lacerated on left side and small pellets were present. Both lungs were lacerated with small pellets, heart with small pellets in right side, in vessels half litre blood and small pellets found in chest cavity, oesophagas lacerated, and cause of death was shock and haemorrhage as a result of anti-mortem injuries. Total 28 small pellets recovered from the superficial layer and deep layer from the body out of which 2 from temporal, 2-neck, 3-cheek, 5-chest, 8-both lungs, 4- trachea and 4-oesophagas region.

15. The statements of accused were recorded under Section 313 of Code of Criminal Procedure, 1973 (CrPC). They pleaded false implication and claimed themselves to be innocent.

16. Accused were given opportunity to lead evidence and consequent to the same, DW1 Sitaram Tiwari was examined in ocular evidence and a copy of acquittal judgment in ST no. 222/1970, under Sections 147/148/452/323/342 r/w.149 IPC, FIR no. 89/88 pertaining to murder of accused Uma Shanker, filed on record in documentary evidence.

17. After considering the contentions raised by both the sides and appreciating the evidence produced on record, the learned trial court convicted the appellants Om Prakash and Ramesh under Section 302 and sentenced to rigorous imprisonment for life, and under Section 307 of IPC sentenced to rigorous imprisonment for five years and under Section 323/34 imprisonment of one year. Appellant Krishna Kumar was sentenced to life imprisonment under Section 302/34, rigorous imprisonment for 5 years under Section 307/34 and imprisonment for one year under Section 323/34 of IPC. However, accused Om Prakash and Ramesh were acquitted of charges of section 27 of Arms Act, to which state does not intend to challenge and no appeal has been filed.

18. Feeling dissatisfied from the order and judgement of conviction, the accused, Om Prakash, Ramesh and Krishna Kumar have preferred the instant appeal.

Contentions of the parties

19. Raising challenge to the impugned order and judgment passed therein, learned counsel for accused vehemently argued that learned trial court had ignored the material lacunas in the case of prosecution which had rendered the prosecution story highly improbable and doubtful. The learned counsel vehemently submitted that prosecution has produced two injured eye-witnesses PW1 and PW2, but they are not the eyewitnesses at all, rather, they are interested witnesses who falsely implicated the appellants on account of previous political enmity. As per learned counsel, there is gross contradiction in the testimonies of so called eyewitness PW1 and PW2 and the crucial and material independent eyewitnesses have not supported the prosecution version. The accused have been rendered benefit of acquittal discarding the so called recovery of weapons from the possession of accused and cartridge recovered from the spot. Once the recovery has been negated and disbelieved by learned trial court, then there is no logic of recording the conviction of accused and therefore, the conviction is bad and liable to set aside on this score only. There is unexplained delay in FIR which articulate that the so called eye witnesses were not present on the place of occurrence at the time of incident, but learned trial court overlooked this very foundation of prosecution and wrongly recorded the observation about the so called eye witnesses. Learned trial court failed to appreciate that had they been on the spot, then there would not have been no occasion to lodge FIR with delay. Learned counsel further emphasised that learned trial court while passing impugned judgment has not taken into consideration the significant fact of delay in the medical examination of injured, which makes the prosecution story improbable and curtails the right of fair trial of the accused as well. It was further contended that the recovery of the pistols had been fabricated and was not supported by the witnesses. Similarly, the injuries found on the person of the injured eye-witnesses are challenged on the ground of being fabricated. Concluding the arguments, learned counsel for accused urged for setting aside the impugned order and judgement, and prayed for acceptance of appeal and acquit the accused accordingly.

20. Per contra, learned counsel for the state submitted that in view of incriminatory evidence against accused, learned trial Court has passed a speaking and well-reasoned judgment based on proper appreciation of evidence available on record and rightly convicted the accused. The ocular evidence of PW1 and PW2 clearly pointed out of the positive act of accused firing and resultantly, two brothers of PW1 died due to gunshot injuries while PW1 and PW2 themselves sustained injuries. Considering the gruesome murder and testimony of prosecution witnesses, conviction of accused is fully justified. Therefore, the judgment of the learned trial Court convicting the accused warrants no interference.

21. Submissions made by learned counsel for parties have received for the due consideration of the Court.

Points of Determination

22. Upon perusal of the contentions advanced by both the parties, the testimony of the witnesses, the impugned judgment and other evidence available on record, the following issues emerge for consideration:-

i) Whether learned trial court has erred in relying on testimony of the eye-witnesses PW1 and PW2?

ii) Whether the conviction recorded by learned trial court suffers any perversity?

Answer to here-in-above formulated issues:-

23. Prosecution has endeavoured to establish the guilt of accused by way of ocular testimony of eyewitnesses PW1 and PW2, who are also injured witnesses of the incident. There is no dispute that the brothers of PW1 namely Ram Bilas and Shanti Lal died homicidal death by the gun shot injuries on the day of incident. As per prosecution the accused sharing the common intention, assembled on the place of occurrence at about 04:30 PM armed with their weapon to eliminate the injured and when accused Krishna Kumar and Uma Shanker with their lathi, started beating PW1and PW2, they defended themselves by the sticks they were having for grazing and controlling the cattle. This incident raised in hue and cry and hearing the noise, deceased also came out of their home and tried to rescue them from cluches of accused, but in the meantime, accused Om Prakash and Rakesh fired shot on them resulting into their death immediately on the spot. After killing them, accused fired on the injured, but they successfully escaped from firearm injuries, having themselves intermingled in crowd. However, accused denied their complicity in offence raising challenge to the testimony of the prosecution witnesses PW1 and PW2. Before beginning to pen down the answer to issue (A), it would be beneficial to refer to certain judicial pronouncements laying down the principles relating to the evidentiary value of an eye-account, who is also an injured witness.

24. In Abdul Sayeed v. State of M.P.; (2010) 10 SCC 259, the Hon’ble Supreme Court made the following observations:

“28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. “Convincing evidence is required to discredit an injured witness”.

25. In Braham Swaroop & Anr vs State Of U.P; (2011) 6 SCC 288, the Hon’ble Supreme Court made the following observations:

“26. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence (Vide: Dalip Singh v. State of Punjab, AIR 1953 SC 364; Masalti v. State of U.P., AIR 1965 SC 202; Lehna v. State of Haryana, (2002) 3 SCC 76; and Rizan v. State of Chhattisgarh, (2003) 2 SCC 661).

27. Injured witness Attar Singh (PW.1) has been examined, his testimony cannot be discarded, as his presence on the spot cannot be doubted, particularly, in view of the fact that immediately after lodging of FIR, the injured witness had been medically examined without any loss of time on the same day. The injured witness had been put through a grueling cross-examination but nothing can be elicited to discredit his testimony.

(Emphasis added by court)

26. In Thoti Manohar v. State of Andhra Pradesh; (2012) 7 SCC 723, the Hon’ble Supreme court made the following observations:

“34. In Hari Obula Reddi and others v. The State of Andhra Pradesh AIR 1981 SC 82, a three-Judge Bench has held that evidence of interested witnesses is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. It cannot be laid down

as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.”

35. In Kartik Malhar v. State of Bihar (1996) 1 SCC 614, it has been opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term ‘interested’ postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.

36. In Pulicherla Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh AIR 2006 SC 3010, while dealing with the liability of interested witnesses who are relatives, a two-Judge Bench observed that

“16?.it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or close relative to the deceased, if it is otherwise found to be trustworthy and credible.”

The said evidence only requires scrutiny with more care and caution, so that neither the guilty escapes nor the innocent is wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, then it can be acted upon.

“16?..If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted.”

*****

38. The learned counsel for the appellant has endeavoured hard to highlight certain discrepancies pertaining to time, situation of the land, number of persons, etc., but in our considered opinion, they are absolutely minor in nature. The minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hyper-technical approach. The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored??”

(Emphasis added by court)

27. Broadly speaking, the prosecution has categorised its version into three parts:-

i) First part is demonstrated as motive of incident indicating the heated exchange between PW1 and PW2 and co-accused Krishna Kumar on account of straying of cow and grazing few plants of crop of Krishna, same day at about 1 o’clock.

ii) Second part has started at 4:30 PM, when accused sharing common intention assembled with their weapons and initially attributed injuries to the witnesses and when the witnesses were being rescued by the deceased / brothers of PW1, brother of accused Krishna Kumar, who were standing guard with their fire arms fired on the brothers of PW1 and complainant and his son as well, in which both of PW1’s brothers died and the PW1 & PW2 escaped unhurt, except injuries of lathi.

iii) Thirdly, PW1 wrote the tehrir and went to police station with PW2. On the basis of tehrir, the FIR was lodged same day at 10:30 pm and their medical was conducted next morning and during investigation on arrest of accused and on the disclosure statement, the weapon was recovered.

28. Learned counsel for accused raised challenge to the presence of accused on several grounds:-

i) accused had no motive and no incident as such happened in first half of the day,

ii) PW1 and PW2 deposed falsely and murder was committed in unknown time by unknown assailant and due to the only reason, no blood mark were traced in investigation,

iii) the so called eyewitnesses had self suffered manipulated injuries and due to the reason they were medically examined with a delay, of which no plausible explanation was offered by them.

29. So far as first argument is concerned, PW1 and PW2 had corroborated the testimonies of each other in so far as the date, time and place of first incident. PW1 had stated that he along with PW2, took the cattle to the field daily for grazing and on the fateful day too, they had taken their cattle for grazing. This statement has not been contradicted by the accused. PW1 further stated that PW2 was his eldest child and his other children were very young and thus, it was natural for PW2 to accompany PW1 for the grazing of cattle. PW2 stated that he went with his father for grazing the animals because crops were sown in the field on those days and thus, two people were needed to control the animals. The presence of these two witnesses on the scene of occurrence has thus been established on the record and same has not been contradicted by accused. Both witnesses stated that a cow entered in the field of accused Krishna and graze some crops which resulted into the heated exchange between the two and at the time no independent witness was there except the witnesses and accused. The accused was not having any weapon and had not extended beatings to the PW1 and PW2. The fact that both the witnesses had danda with them to manage the cattle but no force was used by them against accused nor extended filthy abuses and finally at 4:30 PM, they left for home with the cattle. Thus, despite being put in detailed cross examination, no contradiction whatsoever, could be brought on record to make their statement doubtful. Although, the accused have given suggestion to PW1 and PW2 that no such altercation was ever taken place in the daytime in the field of accused Krishna Kumar, no evidence has been placed to rebutt the sworn testimony of witnesses. It is not the case of accused that on the day of heated exchange, as placed by prosecution, accused Krishna kumar was not present in his field or was elsewhere, therefore, merely on the basis of suggestions given to the witnesses, the sworn unchallenged and unfettered testimony of witnesses can not be discarded. Learned trial court while relying the prosecution witnesses proving the circumstance of motive of incident, committed no error at all.

30. Now we have to see whether the argument as placed by accused of having committing the offence by unknown person at unknown place has found any bearing on the prosecution story. Incident is said to have committed at about 04:30 PM near field of Kaasi Pandit on the road, when PW1 and PW2 were on their way to home with cattle. They categorically stated that accused Krishna Kumar and Uma Shanker gave them lathi blows while accused Om Prakash and Ramesh were standing guard having fire arms in their hands. In the site plan Ex. Ka.25, the houses of accused and PW1 has been shown near the place of occurrence which is not disputed by the accused, therefore, it can be safely said that the given place of occurrence was more convenient to them to commit the offence. We have discussed hereinbefore that after heated exchange between the two, Krishna Kumar left for his house, while the witnesses continued with their grazing and left for home at 4:30 pm, therefore, it is clear that the accused got ample opportunity to design the motive to commit the offence. PW1 and PW2 testified that they defended themselves from the blows with the lathi they had to manage the cattle, but despite of that, they received injuries on their body. Both PW1 and PW2 stated in their testimonies that they were carrying lathis/sticks with them at the time of grazing the cattle. They used these sticks for the purpose of shielding themselves when the accused attacked them. Both these witnesses stated that while the accused had attempted to wield their lathis 10-12 times, they could hit the witnesses only 2-3 times and the remaining blows were defended by the witnesses. It is relevant to mention that accused gave suggestion in cross examination that PW1 and PW2 were not present on the spot and injuries were fabricated, but no evidence as such has been produced to prove the objection. On the other hand, PW 8 Dr. S.K. Saxena, who medico-legally examined the injured has deposed that injuries were sustained at 04:30 PM and are not self suffered or of anytime before 04:30 PM, therefore the defence argument to this effect, does not hold water and is rejected, in light of testimony of injured witnesses and the concerned doctor PW8.

31. So far as, argument of killing by unknown at unknown place is concerned, to answer the argument, we may take note of evidence of PW1 and PW2, who stated that accused Ramesh and Om Prakash opened fire on Shanti Lal, Ram Bilas and both injured as well, resultantly, both injured escaped while deceased died on spot itself due to the firearm injuries. We do not find any force in the arguments of learned counsel for defence. Reason is not far to seek. As discussed above, both injured sustained the injuries in the incident and on the top of the fact, PW3 who is independent witness and though has not supported prosecution version, but has categorically supported and corroborated the prosecution version stating that when on hearing the noise, he reached on the spot, he found there the blood stained dead bodies of deceased and presence of injured there. Further, the investigating officer also corroborated that in the night itself, he visited the place of occurrence and in next morning found the empty cartridges and same was taken into possession vide recovery memo.

32. The only contradiction that the appellants could bring out in the testimony of PW1 and PW2 was that PW1 stated that they brought home the bodies of his dead brothers because it was raining at the time of the incident whereas PW2 stated that the bodies were brought back out of fear that the accused may harm the bodies. We do not think that such a minor discrepancy is sufficient to discredit the testimony of these witnesses. It is an admitted position of the prosecution that the dead bodies of the deceased were brought back home after the incident and only thereafter, the complainant PW1 wrote the complaint and took it to the police station. Both PW1 and PW2 have stated that the accused after killing PW1’s brothers, continued to stay at the scene of occurrence for nearly 15 minutes, making threats and warnings. It is not unusual if the family members decided to bring back the bodies of the deceased home and not leave them lying on the road. Furthermore, no force is found in the defence argument pertaining to not finding the marks of blood on the spot, as it is the case of prosecution itself that the accused extended threats to disappear the bodies of deceased, therefore, the complainant and his son after obtaining help of people assembled on place of occurrence, lifted dead bodies of the deceased and placed them at safe place. Further, in the FIR as well in depositions of witnesses, prosecution has explained the reason of disappearing the blood stains as raining in the night. It is nether the case of defence that there was no rain in the night, nor any evidence has been adduced to rebut the version of prosecution, therefore, the prosecution has proved its case beyond shadow of doubt and we thus find no strength in the argument. Therefore, the defence argument is rejected being not able to raise doubt in the prosecution story. In the given circumstances, we find no perversity in the findings recorded by learned trial court regarding place of occurrence.

33. So far as argument of contradiction in ocular and medical evidence is concerned, in the site plan of place of occurrence prepared by Investigating Officer at the instance of PW1, distance between accused Ramesh and deceased Shanti Lal was 12 paces while between accused Om Prakash and Ram Bilas was 11 paces, has been indicated and same has been corroborated in their ocular evidence. The postmortem report which has been admitted by the defence without any formal proof being proved, the injuries are said to have been caused by firearm with presence of blackening meaning thereby the injuries were caused from close distance. There is no dispute that in case the firing is made from close range, then it will leave sings of blackening. There has been evidence on record that accused were at distance of 11 to 12 paces away at the time of firing, as detailed above, however, distance as disclosed by witnesses is not enough to discard the unchallenged and uncontroverted statements of PW1 and PW2, who are eyewitnesses of the incident and left no shadow of doubt by proving that deceased were killed by the accused. Human are not machines and have feelings and emotions and it is not possible for everyone to create a numerical representation of the situation, as each individual has his own unique characteristics. Moreover, such events occur with such intensity that it’s natural to be slight irregularities in the way a person mentally pictures the event. Therefore, the arguments of defence emphasising the so called contradiction between ocular and medical evidence, is not found sustainable, hence is rejected hereby.

34. The testimonies of these two witnesses assumes greater significance by virtue of their being injured witnesses which confirms their presence at the scene of occurrence at the relevant time. Both the witnesses had filed the complaint in the police station on the day of the incident itself from where they were taken to the Fatehpur hospital and they were medically examined on the next day as the doctor was not available at the hospital during the night. This fact find strength with the testimony of PW9 who provided chithi majroobi to the injured after registration of FIR as well as by investigating officer, who was also present in the police station at the relevant time. Therefore, we concur that on the ground of delayed medical examination of injured, neither the version, nor the injuries can be disputed.

35. In this regard, it is apposite to refer to the judgment of the Hon’ble Supreme Court, in the case of Baban Shankar Daphal & Others v. State of Maharashtra; 2025 SCC OnLine SC 137, wherein the Hon’ble Supreme Court made the following observations:

“35. The Trial Court gave undue weight to minor discrepancies in the eyewitness accounts, such as variations in their descriptions of the sequence of events or the exact number of blows inflicted. It is a well-established principle of law that minor contradictions or inconsistencies in testimony do not necessarily render it unreliable, as long as the core facts remain intact. The role of the court is to discern the truth by considering the evidence in its totality and not by isolating individual inconsistencies to discredit an entire narrative. The Trial Court erred by focusing excessively on trivial discrepancies, thereby losing sight of the broader picture and the compelling evidence against the accused.

36. The High Court appropriately invoked the principle that when direct evidence, such as eyewitness testimony, is credible and reliable, it must be given due weight unless there are compelling reasons to disbelieve it. In this case, the eyewitnesses were independent and had no motive to falsely implicate the accused. Their testimony was consistent with the overall circumstances of the case and was corroborated by the medical evidence.”

(Emphasis added by court)

36. In Birbal Nath v. State of Rajasthan & Others; (2024) 15 SCC 190, the Hon’ble Supreme Court made the following observations regarding the effect of discrepancies on the witness testimonies:

“22. The contractions in the two statements may or may not be sufficient to discredit a witness. Section 145 read with Section 155 of the Evidence Act, have to be carefully applied in a given case. One cannot lose sight of the fact that PW-2 Rami is an injured eye witness, and being the wife of the deceased her presence in their agricultural field on the fateful day is natural. Her statement in her examination in chief gives detail of the incident and the precise role assigned to each of the assailants. This witness was put to a lengthy cross examination by the defence.

23. Some discrepancies invariably occur in such cases when we take into account the fact that this witness is a woman who resides in a village and is the wife of a farmer who tills his land and raises crops by his own hands. In other words, they are not big farmers. The rural setting, the degree of articulation of such a witness in a Court of Law are relevant considerations while evaluating the credibility of such a witness. Moreover, the lengthy cross examination of a witness may invariably result in contradictions. But these contradictions are not always sufficient to discredit a witness.

24. In Rammi v. State of M.P. (1999) 8 SCC 649, this Court had held as under: (SCC p. 656, para 24)

“24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.”

37. Thus, we find no strength in the argument that the death has been ante-timed and a false story has been build-up solely for the purpose of implicating the accused.

38. It has also been argued that since PW3 to PW7 had turned hostile, the conviction cannot be recorded solely on the basis of the testimony of the interested and related witnesses. In this regard, we find it apposite to refer to the judgment of the Hon’ble Supreme Court in Kartik Malhar v. State of Bihar, reported in (1996) 1 SCC 614, wherein the Hon’ble Supreme Court made the following observations:

“14. We have already discussed above that it is open to the Courts to record a conviction on the basis of the statement of a single witness provided the evidence of that witness is reliable, unshaken and consistent with the case of the prosecution. The case of the prosecution cannot be discarded merely on the ground that it was sought to be proved by only one eye witness, nor can it be insisted that the corroboration of the statement of that witness was necessary by other eye-witnesses. The instant case, it may be pointed out, does not strictly fall within the category of those cases where only one witness is present and the case of the prosecution is sought to be proved by the statement of that witness alone. Here, three of the witnesses were produced but two of them turned hostile leaving the third alone and, therefore, on the principles already discussed, if the remaining eye witness is found to be trustworthy, it becomes the duty of the Court to convict the accused as observed by this Court in Vadivelu Thevar AIR 1957 SC 614, quoted below:

“But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.”

15. As to the contention raised on behalf of the appellant that the witness was the widow of the deceased and was, therefore, highly interested and her statement be discarded, we may observe that a close relative who is a natural witness regarded as an interested witness. The term “interested” postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason. In Dalbir Kaur (Mst) v. State of Punjab, (1976) 4 SCC 158, it has been observed as under: (SCC pp. 167-68, para 11)

“Moreover a close relative who is a very natural witness cannot be regarded as an interested, witness. The term ‘interested postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason. Such is not the case here,”

39. There can be numerous reasons for which a witness may turn hostile. It may be due to fear, hesitation, monetary as well as other considerations. The incident occurred in January 1986 and the testimony of the witnesses was recorded in January, 1989, that is, after a lapse of almost three years. If the independent witnesses turn hostile, that calls for a more cautious approach and careful scrutiny of the evidence of the prosecution. However, it cannot be said that the conviction cannot be recorded solely because the independent witnesses turned hostile.

40. PW3, PW4 and PW5 were named as witnesses in the complaint Ex. Ka.1 on the basis of which the first information report came to be lodged. However, during trial, they turned hostile witnesses and have not supported the case of the prosecution. PW3 stated that he came to the scene of occurrence on hearing the hue and cry and found the bodies of deceased Shiv Bilas and Shanti Lal. However, he stated that the two had already died by the time he reached the spot and he did not see the accused kill either Shanti Lal or Shiv Bilas. He further stated that the accused were present on the scene of occurrence but they were not carrying any lathis or pistols. He further contradicted the prosecution version by stating the accused had not made any threats near the bodies of the deceased.

41. In the facts of the case, the three witnesses have not contradicted the case of the prosecution but have merely endeavoured to take a neutral stand where they have not denied the incident or the time and place of incident but have either denied their presence on the spot or have denied witnessing the commission of the offence at the hands of the accused. It cannot be lost sight of that PW1 had stated that his deceased brother Shiv Bilas had also been arrayed as an accused in a criminal case in which PW1 was a co-accused. PW1 further stated that one Nanhu of his village had lodged a false report in which PW1, PW3 and PW4 had been named as accused. The accused had committed a gruesome murder of two brothers in broad daylight. The family of the deceased is also involved in numerous other complaints. One of the accused, Uma Shanker had already died by the time of the trial and an FIR had been lodged in that case against PW1 and PW2, the only two intact witnesses in the present case. Under such circumstances, it is not unusual for independent witnesses to turn hostile and desist from taking sides in a trial.

42. Undoubtedly, PW1 and PW2 are the close family members of the deceased and both denied having any enmity with the accused. Learned counsel for accused argued that being relative and interested witnesses, learned trial court erred in convicting the accused on the mere evidence of these two witnesses, however, the appellants could not bring out any reason for PW1 or PW2 to falsely implicate them. There is nothing on record to indicate as to why PW1 and PW2 would falsely implicate the appellants and shield the actual culprits who not only assaulted the witnesses but also killed two brothers of PW1. Thus, their testimony cannot be doubted merely by reason of them being relatives of the deceased.

43. Let’s now analyse the evidence regarding recovery of cartridges from the place of occurrence along with the weapon recovered at the instance of accused. It is to be noted here that PW10, Investigating Officer inspected the place of occurrence and took into possession two cartridges from the spot and sealed vide recovery memo prepared on the spot in presence of witnesses and sent FSL for examination. On an information that the accused Om Prakash and Ramesh were going towards Bhutiya village, accused were arrested on 30.01.1986 and a pistol was found on the person of each accused vide recovery memo Ex. Ka.28. PW6 Ghassa and PW7 Ram Swaroop were named as the witnesses to the recovery but they turned hostile during the testimony and denied the recovery. The two cartridges recovered from the scene of occurrence were sent for forensic examination along with the two pistols recovered from the accused. The forensic report Ex. Ka.29 found the cartridges to have been fired from the recovered weapons. Learned trial court reached on the conclusion that the recovery memo pertaining to the cartridges recovered from the scene of crime was not inspiring confidence, firstly, on the ground that recovery memo prima facie was lacking with the necessary details of recovered cartridges and secondly on the ground that both recovery witnesses did not support the recovery of cartridges. Learned trial court further discarded the recovery of country made pistol from the possession of accused with the detailed discussion. As recorded above, in the facts and circumstances of the case, we concede with the finding of learned trial court and found no illegality in the observation. Reason is not for to seek. The recovery has appeared doubtful for not supported by the recovery witnesses, for keeping the recovered articles in malkhana for eleven days without explaining reason of same, non examination of link witness who took and deposited the recovered items to the FSL, non- drawing of separate disclosure statement of accused, therefore, the recovery as proposed was proved to be not having any judicial sanctity to be relied upon. At this juncture, we deem it fit to mention that conviction may subsist even in absence or irrespective of not proving the weapon used in commission of crime. As recorded above, the fact remained undisputed that deceased died homicidal death by gun shot injuries and those injuries were caused by accused in presence of eye witnesses, who also sustained simple injuries on their person by lathi, therefore, merely on the ground of non- proving of weapon or cartridges in question, accused can not seek relief of acquittal.

44. In this regard, it may be apposite to refer to the judgment of the Hon’ble Supreme Court in State Through The Inspector Of Police vs Laly @ Manikandan reported in 2022 SCC OnLine SC 1424, wherein the Hon’ble Supreme Court made the following observations:

“20. The submission on behalf of the accused that as the original informant – Mahendran has not been examined and that the other independent witnesses have not been examined and that the recovery of the weapon has not been proved and that there is a serious doubt about the timing and place of the incident, the accused are to be acquitted cannot be accepted. Merely because the original complainant is not examined cannot be a ground to discard the deposition of PW1. As observed hereinabove, PW1 is the eye witness to the occurrence at both the places. Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted. Similarly, even in the case of some contradictions with respect to timing of lodging the FIR/complaint cannot be a ground to acquit the accused when the prosecution case is based upon the deposition of eye witness.

21. As observed hereinabove, PW1 is an eye witness. He has fully supported the case of the prosecution. As per settled position of law, there can be a conviction on the basis of the deposition of the sole eye witness, if the said witness is found to be trustworthy and/or reliable. As observed hereinabove, there is no reason to doubt the credibility and/or reliability of PW1. Therefore, it will be safe to convict the accused on the sole reliance of deposition of PW1.”

(Emphasis added by court)

45. We are also mindful of the fact that the learned trial court has already acquitted accused Om Prakash and Ramesh in so far as the offence under Section 27 of the Arms Act is concerned and the said finding has not been assailed before us. However, the acquittal under the Arms Act cannot ispo facto lead to the acquittal of the accused under the relevant provisions of IPC. The accused cannot be acquitted on the sole basis of the hostility of the witnesses as it would amount to miscarriage of justice, particularly when the eye-witness accounts of PW1 and PW2, the injury and post-mortem reports as well as the testimony of the investigating officer, all support the case of the prosecution and point to the guilt of the accused. Issue A is thus decided in favour of the prosecution.

Issue No. 2

46. Having regard to the aforementioned details, we thus find that PW1 and PW2 are reliable witnesses, whose testimonies remain unblemished and untainted despite a lengthy cross-examination. The probable and natural story of prosecution, production of reliable and trustworthy evidence brought on record by prosecution coupled with the other facts and circumstances, culminating from the evidence on record as discussed here in above are put together, then irresistible conclusion can be drawn as to the complicity of the accused and in commission of offence for which they have been charged with. Having said that and for the reasons as discussed above, the judgement of conviction and order of sentence as passed by learned trial court to suffers no illegality and perversity and accordingly the issue no. 2 is also decided against the accused.

47. No other argument was urged before us for consideration.

48. The judgment and order passed by learned trial court is affirmed. Appeal filed by the accused appellant, Om Prakash, Ramesh and Krishna Kumar is liable to be dismissed and is dismissed accordingly.

49. Accused/appellants are on bail. Their bail bonds and surety bonds are hereby cancelled and sureties are forfeited. Sureties are discharged from their obligations. Non-bailable warrants of accused Om Prakash, Ramesh and Krishna Kumar be issued and they are directed to surrender before learned chief judicial magistrate within 15 days from today who will send them to the jail to serve the remaining sentence, failing which learned chief judicial magistrate will execute the non-bailable warrants issued against them by this court. Learned chief judicial magistrate concerned will ensure strict compliance of the order passed by this court.

50. Original record be transmitted after due compliance to the concerned court forthwith and in any case within a week from today.

51. All pending applications also stand disposed of.

(Mrs. Babita Rani,J.) (Rajnish Kumar,J.)

July 3, 2026

S. Shivhare