[2008) 15 S.C.R. 313

STATE OF U.P.

A v.

CHANDRAPAL & ANR.

(Criminal Appeal No. 60 of 2002)

OCTOBER 22, 2008 8

[DR. ARIJIT PASAYAT, C.K. THAKKER AND )

LOKESHWAR SINGH PANTA, JJ.]

Penal Code, 1860 - s. 302 and 302 rlw 34 - Acquittal of c accused, by High Court on grounds that medical evidence was in serious conflict with oral evidence and that authenticity of the FIR was doubtful - Challenge to - On facts, held: Conclusion of High Court that there were many manipulations and a new story was concocted, not without rational basis - D No interference called for by Supreme Court. ' According to the prosecution, Respondent No.1 fired gunshots at the brother of PW2 which proved fatal while Respondent No.2 (the father of Respondent No.1) E inflicted injuries on the abdomen and chest of PW2 with a sharp cutting weapon 'Karauli'.

Trial Court convicted Respondent No.1 under s.302

't IPC and Respondent No.2 under s.302 r/w s.34 IPC. On appeal, the High Court acquitted the Respondents.

F Hence the present appeal.

Dismissing the appeal, the Court

HELD: The High Court, with reference to the injuries G found on PW2 and the post-mortem report, concluded , that the medical evidence was in serious conflict with oral j-. evidence and the possibility of there being more than two assailants and use of several kinds of weapons cannot

313 H

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A be ruled out. Additionally, it was noticed by the High Court that the FIR appeared to be a suspicious document. In the report, initially the name of the wife of deceased was stated to be the informant but later on the name of PW1 was added. The time of starting of inquest proceeding, as B disclosed in the Panchayatnama-and time of completion

of inquest are in different inks. No time of lodging the FIR is mentioned and in the inquest report the time appeared to have been over-written in different inks. Further, PW1 claimed to have been examined by Dr. J.S. Rai at 6.00 a.m.- C and he was brought by constable of Kotwali Police

Station and not of Ghazipur Police Station. The High Court, from the aforesaid facts, concluded that the first informant had left the police station much prior to 6.00 a.m. The report was claimed to have been written at 8.00 a.m. The High Court was, therefore, of the view that the D possibility of consultation and manipulation ca1mot be

ruled out. The discrepancies in the inquest report, the non-mentioning of the time of FIR and entries made in different inks certainly raise a doubt about the authenticity of the document. The factors which weighed when the E High Court concluded that there were many manipulations and a new story was concocted, cannot be said to be a finding without any rational basis. [Paras 7 and 8] [317-G, H; 318-A-D; F]

F CRIMINAL APPELLATE JURISDICTION: Criminal Appeal

No. 60 of 2002.

From the final Judgment and Order dated j 8.12.2000 of the High Court of Judicature at Allahabad in Criminal Appeal

No. 2086 of 1980.

S.K. Dwivedi, AAG., S.N. Pandey and Chandra Prakash Pandey for the Appellant.

B.B. Singh for the Respondents.

...----

STATE OF U.P. v. CHANDRAPAL & ANR. 315

_..-4 The Judgment of the Court was delivered by A

DR. ARIJIT PASAYAT, J. 1. Heard learned counsel for the parties.

2. Challenge in this appeal is to the judgment of the B Division Bench of the Allahabad High Court directing aquittal of two respondents - Chandra Pal, son of Jagannath and

Jagannath, son of Gajju, who faced trial for alleged commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short 'IPC') so far as Respondent No.1-Chandra

Pal is concerned, and Section 302 read with Section 34 IPC c so far as Respondent No.2 is concerned. It is to be noted that Respondent No.2-Jagannath died during the pendency of the appeal and, therefore, the appeal has abated so far as he is

I concerned. r

3. The prosecution story in brief is that the deceased of D

l this case was Sodhi. He was instrumental in getting Siyapati _.

daughter of his maternal uncle married to accused Chandra Pal.

However, accused persons were not satisfied with the dowry given in the marriage and therefore, they were treating Siyapati E with cruelty and ultimately turned her out of the house.

Deceased Bodhi took up the cause of Siyapati and he convened a panchayat on her behalf. The panchayat was held in the morning of 3.7.1979 and it was decided therein that 'I accused Chandra Pal should maintain Siyapati and keep her • with him and he will also pay Rs.2500/- to her. A joint affidavit F

of Siyapati and Chandra Pal on a five rupee stamp paper Ext.Ka.6 was also executed. Both the accused persons felt highly aggrieved on account of the action taken by the deceased Bodhi and they considered him to be their thorn.

G Therefore, with a view to eliminate him, both the accused persons came to village Mardariyapur in the night between 3rd and 4th July, 1979. At that time the deceased was sleeping underneath his Chhapper. Appellant Chandra Pal was armed with a country made pistol while Jagannath was having a "Karauli", a sharp cutting weapon. Accused Chandra Pal fired H

A at Bodhi which struck him and he fell down on the ground from h._ the cot, on which he was sleeping. As soon as Bodhi tired to get up. Chandra Pal accused fired another shot at him which also strUCR him and he fell down on the ground and died instantaneously. Gaya Deen-P.W.1 husband of younger B daughter of Sodhi was also sleeping at a little distance at the same place while Indra Pal P.W.6, a child aged about 11-12 years was also sleeping along with Gaya Deen on the same cot, as he used to sleep daily along with the deceased Sodhi.

I These persons witnessed the incident so also Jodhi, P.W.-2, \ c brother of deceased Sodhi. When Jodhi advanced to the rescue of Bodhi he was given two blows of "Karauli" by appellant Jagannath, one on abdomen and 'Jther on chest whereby he also sustained injuries. On the alarm raised by injured and other witnesses, Smt. Dhirajya as well as Smt. Sia-

D Dulari wife of Gaya Deen, Jiya Lal, (P.W.5) and Hori Lal were

""' attracted to the scene of occurrence, but before their arrival assailants took to their heels_ Assailants were identified in the .f light of burning lantern as well as in the flash light of torch. Gaya >-'

Deen-P.W.1 did not report the matter to police for whole of the

E night. However in the morning he reached police station .._ Ghazipur at 8.00 AM. and dictated oral report Ext. Ka.1. Case

was registered and investigation was taken up. The investigating officer reached the place of occurrence, held inquest, collected blood stained earth and plain earth and

F prepared _site plan Ext.Ka.17. He also found an empty cartridge '""( and a "tikli" at the scene of occurrence which he took into his custody through memo Ext.Ka. 12. Torches of Hori Lal and Jiya Lal were also examined. The complainant also produced the lantern which was said to be burning at the time of incident and the same was found to be in working order. The lantern then G was given back in the custody of Smt. Dhirajya wife of the deceased through a memo. Accused Jagannath was arrested on 6. 7 .1979 in presence of witnesses and said accusd stated before the investigating officer that he could get recovered the "karauli" with which he had caused injuries to Jodhi and H thereafter the said accused led the police party to the field of

STATE OF U.P. v. CHANDRAPAL & ANR. 317

[DR. ARIJIT PASAYAT, J.]

Ram Swaroop and then took out "karauli" by digging out the A southern-western corner of the field. "Karauli" was kept in a sealed bundle and is alleged to have been sent to chemical examiner, but no report of chemical examiner was placed on record of the trial court by the prosecution. On conclusion of investigation both the appellants were charge sheeted.

4. Since the accused persons denied the accusations, they ' faced the trial, in order to establish the accusation, 10 witnesses j

were examined. Gaya Deen-P.W.-1, Jodhi-P.W.-2 and Indra Pal-

P .W.6 were stated to be the eye-witnesses to the occurrence. c The trial court placed reliance on their evidence and found the accused persons guilty. The judgment of the trial court was questioned in appeal before the High Court. Accepting the stand of the accused persons that the prosecution has not been able to establish the accusations, more particularly, when the

0 evidence of the so called eye-witnesses were not cogent, credible and reliable, the High Court directed acquittal, as noted above.

5. In support of the appeal, learned counsel for the appellant submitted that the High Court's conclusions that the medical E evidence was at variance with the ocular evidence, is not factually correct. It was also submitted that there was nothing to show that the First Information Report (for short 'FIR') was

y not lodged at the time claimed and/or that there were

) manipulations therein.

6. Learned counsel for the respondents, on the other hand, supported th"e judgment of the High Court.

7. We find that the High Court has, with reference to the injuries found on P.W.-2 and the post-mortem report, concluded G that the medical evidence was in serious conflict with oral evidence and the possibility of there being more than two assailants and use of several kinds of weapons cannot be ruled out. Additionally, it was noticed by the High Court that the FIR appeared to be a suspicious document. In the report, initially H

A the name of Smt. Dhirajya, wife of Sodhi, was stated to be the

h.,~

1-- informant but later on the name of Gaya Deen was added. The time of starting of inquest proceeding, as disclosed in the Panchayatnama and time of completion of inquest are in different inks. No time of lodging the FIR is mentioned and in B the inquest report the time appeared to have been over-written in different inks. Further, Gaya Deen-P.W.-1 claimed to have been examined by Dr. J.S. Rai at 6.00 a.m. and he was brought f by constable of Kotwali Police Station and not of Ghazipur

Police Station. The High Court, from the aforesaid facts, c concluded that the first informant had left the police station much prior to 6.00 a.m. The report was claimed to have been written at 8.00 a.m. The High Court was, therefore, of the view that the possibility of consultation and manipulation cannot be ruled out.

The discrepancies in the inquest report, the non-mentioning of

D the time of FIR and entries made in different inks certainly raisP. a doubt about the authenticity of the document. Additionally, the ., tinjured witness was examined by Dr. J.S. Rai at 6.00 a.m. and )-. )

appears to have been brought by Constable of Kotwali Police l- Station and not by Ghazipur Police Station. r->-

8. Learned counsel for the appellant submitted that there is some discrepancy in the evidence relating to the constable - of police who had taken the deceased to be examined by Dr.

J.S. Rai at 6.00 a.m. Even if that be so, the factors which weighed when the High Court concluded that there were many -y

F manipulations and a new story was concocted, cannot be said

)= to be a finding without any rational basis. this being the position, we are not inclined to interfere with fne impugned judgment of the High Court. - G

9. The appeal is, therefore, dismissed.

B.B.B.

Appeal dismissed. " .\_