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Section 302, read with Section 34 of the Indian Penal Code, 1860 High court acquitted, apex court confirmed the same = (I) The first information report has not been registered at the time and in the manner as it ought to have been written. (II) The counter FIR lodged by the respondents herein was written by Munshi (dead) on the dictation given by the Inspector of Police and not in accordance with the version given by the informant-respondent. (III) The report (Ex.P-13), which ought to have been lodged at the behest of the respondents herein, revealed that the respondents herein had used the lathis and a country-made pistol in selfdefence. (IV) There had been material discrepancies/contradictions/ inconsistencies in regard to the lodging of FIR and investigation so far as the statements of Pratap Singh, Head Constable and R.D. Yadav, S.O., and the entries made in the Rojnamcha. The cumulative effect of all the same creates a doubt in the prosecution story. (V) The FIR in the instant case against the respondents herein had been lodged by Pyare Chowkidar as directed by one Bilal Miyan who had informed him that Jagan had been killed by the party of Munshi and others. The said Bilal Miyan was neither an eye-witness, nor has been examined by the prosecution. (VI) Bilal Miyan had been informed by Ram Bharose about the murder of Jagan but who had not disclosed as who had killed Jagan. Thus, it was not clear as who had killed Jagan and the prosecution could not get any support whatsoever from the FIR. (VII) The evidence led by the prosecution shows that the offence was committed inside the house. Ram Bharose, witness, had seen it from Gallery. No such Gallery had been shown in the site plan. (VIII) The evidence had been that the rifle which was allegedly used in the murder was a single barrel gun but the empty cartridges used in the shooting were not recovered from the spot. No explanation had been furnished as what had happened to those empty cartridges. (IX) As per the prosecution, 3 live cartridges and one country-made pistol were found at the spot, though as per Ram Bharose, witness, the shot was fired from a single barrel gun. (X) The aforesaid contradictions led to the inference that Jagan had been murdered at some other place and in some other manner which was not brought on record by the prosecution. 10Page 11 (XI) It was nobody’s case that Collector Singh had fired two shots upon Jagan and even according to the postmortem report, there was no injury caused by the country-made pistol. (XII) There had been material contradictions regarding locking of the place where Jagan was detained and no explanation was there as who had opened that lock. (XIII) Ram Bharose and Rameshwar had been interested witnesses and their statements were full of discrepancies and contrary to the prosecution case. In view of the fact that no eye-witness was examined, the said material contradictions become most material. (XIV)The prosecution failed to explain the grievous injuries found on the person of Gobardhan and Munshi – accused herein. = This Court has laid down sufficient guidelines for interference by the superior court against the order of acquittal. In exceptional cases where there are compelling circumstances to interfere and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.

published in http://judis.nic.in/supremecourt/filename=40481

Page 1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.824 of 2007
State of U.P. …Appellant
Versus
Gobardhan & Ors. …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been filed by the State of U.P. against the
judgment and order dated 29.8.2003, passed by the High Court of
Allahabad in Criminal Appeal No. 1919 of 1981, reversing the
judgment dated 24.8.1981, passed by the Additional Sessions Judge,
Badaun, in Sessions Trial No. 251 of 1979 (Crime Case No. 10 of
Police Station: Binawar, District: Badaun), whereby the trial court had
convicted and sentenced the respondents to life imprisonment under
Section 302, read with Section 34 of the Indian Penal Code, 1860
(hereinafter referred to as the ‘IPC’).Page 2
2. Facts and circumstances giving rise to this appeal are that:
A. On 7.1.1979 at about 8.45 P.M., respondents Munshi and
Gobardhan had created a small drainage through the fields belonging
to Rameshwar and Kandhari of their village. Rameshwar and
Kandhari had come there and objected to the same. A scuffle broke
out between them, and at that time, Jagan (since deceased) happened
to pass through the said area, riding on the back of a horse. He had
then intervened in the matter and asked both the parties not to fight.
All of them had then proceeded towards the village. The accused
Munshi and Gobardhan had also gone to the village hurriedly, abusing
Rameshwar and Kandhari all along the way. Thereafter, it was in
front of the house of one Phool Singh, situated in the village, that all
the four accused had started beating up Jagan with lathis and Kanta
(Farsa). The accused Munshi and Gobardhan had possessed lathis, the
accused Collector Singh had been in possession of a gun, and the
accused Afsar Singh had been in possession of the Kanta (Farsa).
B. Jagan (deceased), in order to save himself, had run inside the
house of Phool Singh. All the accused had followed him and
continued to beat him up inside the said house. The accused had then
carried Jagan from the house of Phool Singh to the Baithak of the
2Page 3
accused Munshi and Gobardhan, which was located alongside their
house. They had kept Jagan inside the Baithak. The accused Collector
Singh had then fired at Jagan twice and killed him. They had
thereafter, bolted the Baithak from the outside before going away.
C. The village Chowkidar had furnished information pertaining to
the said incident to the police, on the basis of which, a case had then
been registered, and investigation had commenced in relation to the
murder of Jagan by the accused, i.e. by Munshi, Gobardhan, etc.
D. During the course of the investigation, the dead body of Jagan
was recovered from the house belonging to Munshi and Gobardhan.
A 12 bore country made pistol, 3 live cartridges, and 2 paper tiklies of
a 12 bore pistol were also recovered from there. A seizure memo was
then prepared for the same. Samples of blood stained earth were also
taken from the spot. The dead body of Jagan was sealed and was
thereafter, sent for postmortem examination.
E. After the completion of the investigation, a chargesheet was
submitted against all the accused persons. The case was then
committed to the Sessions Court for trial vide order dated 10.2.1979.
3Page 4
All the accused denied the charges levelled against them, and pleaded
not guilty.
F. After the conclusion of the trial, the learned Sessions Judge
vide judgment and order dated 24.8.1981, held the accused Munshi,
Gobardhan, Collector Singh and Afsar Singh guilty for offences under
Sections 302/34 IPC, and sentenced them to undergo life
imprisonment.
G. Aggrieved, the said convicts filed an appeal before the High
Court, which was allowed by it, vide its impugned judgment and
order.
Hence, this appeal.
3. Shri Amit Singh, learned standing counsel appearing on behalf
of the State, has submitted that respondent no. 1 Munshi has died, and
that thus, the appeal against him stands abated. His name may be
deleted from the array of respondents, and the same is accordingly,
deleted. Hence, the appeal is limited to respondent nos. 2, 3 and 4.
It has further been submitted that there is sufficient evidence on
record to show that the three respondents had, in fact, committed the
offence punishable under Sections 302/34 IPC, and had alongwith
4Page 5
Munshi (since dead), committed the murder of Jagan, intentionally in
furtherance of their common intention. The trial court has rejected
their contention that they had falsely been implicated in the case. The
accused Gobardhan is the real brother of the accused Munshi (since
dead). Accused Collector Singh and Afsar Singh are also real
brothers. Even otherwise, all the said accused belong to the same
family. Thus, their participation in the crime is most certainly, not
unintentional. A large number of injuries were found on the body of
Jagan (deceased) which support the case of the prosecution to the
extent that all the accused had, in fact, been involved in the incident.
The High Court has not decided the case in correct perspective. The
appeal, thus, deserves to be allowed.
4. Per contra, Shri Pradeep Gupta, learned counsel appearing on
behalf of the respondents, has opposed the appeal contending that the
High Court has rightly acquitted the respondents. A cross case has
been filed and is pending as regards the large number of injuries were
found on the person of the accused. The said injuries have all been
examined and proved. The injuries suffered by the accused were of a
grievous nature. Even otherwise, the case put up by the respondents in
defence, is highly probable, that there had been a dispute between
5Page 6
Rameshwar and Kandhari on one hand, and the accused on the other
hand. There was no motive whatsoever, to cause any kind of injuries
to the deceased. Jagan (deceased), had only intervened at the time of
scuffle between the parties, which was related to taking water to their
own fields, through the land of the accused. Thus, the appeal is liable
to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties, and perused the record.
6. The dead body of Jagan was subjected to postmortem, and the
following injuries were found on his person:
[1]. An oblique incised wound 7Cm x 3Cm x brain deep on the
right side of forehead just above the right eye brow. Fracture of
right frontal bone seen.
[2]. An incised wound 2Cm x l/2Cm x bone deep on the right
side of the forehead 1 Cm above the injury no. 1. Bone has been
cut.
[3]. A lacerated wound 3Cm x l-l/2Cm x bone deep on the right
side of forehead lateral side 4 Cm. Above the lateral edge of the
right eye.
6Page 7
[4]. Four gun shot wound of entry on the right side of mandible
including upper part of neck in the area of 14Cm x 4Cm. There
is blackening of skin around the wound involving right side
neck in the area of 18Cm x 12Cm. Hair near the right of neck is
burnt. One wound on the neck is measuring 1¼ x l Cm. And
remaining 3 wounds are 1 Cm x 3/4Cm in size.
[5]. An incised wound 13Cm x 4Cm x bone deep on the post
aspect of left forearm 3 Cm, below the left elbow joint.
[6]. A Contusion 4 Cm x l/2 Cm on the ulna border left
forearm 2 Cm., above the left wrist joint.
[7]. An incised wound 1 ½ Cm x ½ Cm x muscle deep on the
medial aspect of the right leg 6 Cm, below the right knee joint.
[8]. A gunshot wound of entry 2 Cm x 1 ½ Cm on the back in
the midline 1 Cm. Right to midline at the level of T-10.
Blackening present around the wound in the area of 5 Cm x 4
Cm. Fracture of the left ulna in lower part seen.
7. The accused Gobardhan was also medically examined on
8.1.1979 at 11 A.M., and the following injuries were found on his
body:
[1]. Contusion 6 Cm x 1 Cm on the back of left forearm
starting just below left elbow to downwards vertically, on the
forearm.
7Page 8
[2]. Abraded contusion on outer aspect of left thigh 3 Cm x 2
Cm., in size and 4 Cm. Above and to the left from upper border
of Lt. Patella reddish in colour blood scab present in the
abraded area of the injury.
[3]. Tenderness present on the dorsum of Lt. foot near
metatarsus phalangeal joint of Jt. Big toe and 2 Lt. toe.
8. The accused Munshi (dead), was also medically examined on
the same day at 11.15 A.M., and the following injuries were found on
his body:
[1]. Contusion on posterior lateral surface of left leg 7 Cm x l
Cm in size. Transversely present 25 Cm above it.
[2]. Tenderness present in the area of Lt. lateral malleolus of
Lt. ankle.
[3]. Complaint of pain in the right side of the head.
9. The High Court has re-appreciated the entire evidence and
recorded the following findings of fact:
(I) The first information report has not been registered at the time
and in the manner as it ought to have been written.
8Page 9
(II) The counter FIR lodged by the respondents herein was written
by Munshi (dead) on the dictation given by the Inspector of
Police and not in accordance with the version given by the
informant-respondent.
(III) The report (Ex.P-13), which ought to have been lodged at the
behest of the respondents herein, revealed that the respondents
herein had used the lathis and a country-made pistol in selfdefence.
(IV) There had been material discrepancies/contradictions/
inconsistencies in regard to the lodging of FIR and investigation
so far as the statements of Pratap Singh, Head Constable and
R.D. Yadav, S.O., and the entries made in the Rojnamcha. The
cumulative effect of all the same creates a doubt in the
prosecution story.
(V) The FIR in the instant case against the respondents herein had
been lodged by Pyare Chowkidar as directed by one Bilal
Miyan who had informed him that Jagan had been killed by the
party of Munshi and others. The said Bilal Miyan was neither
an eye-witness, nor has been examined by the prosecution.
9

(VI) Bilal Miyan had been informed by Ram Bharose about the
murder of Jagan but who had not disclosed as who had killed
Jagan. Thus, it was not clear as who had killed Jagan and the
prosecution could not get any support whatsoever from the FIR.
(VII) The evidence led by the prosecution shows that the offence was
committed inside the house. Ram Bharose, witness, had seen it
from Gallery. No such Gallery had been shown in the site plan.
(VIII) The evidence had been that the rifle which was allegedly used
in the murder was a single barrel gun but the empty cartridges
used in the shooting were not recovered from the spot. No
explanation had been furnished as what had happened to those
empty cartridges.
(IX) As per the prosecution, 3 live cartridges and one country-made
pistol were found at the spot, though as per Ram Bharose,
witness, the shot was fired from a single barrel gun.
(X) The aforesaid contradictions led to the inference that Jagan had
been murdered at some other place and in some other manner
which was not brought on record by the prosecution.
10Page 11
(XI) It was nobody’s case that Collector Singh had fired two shots
upon Jagan and even according to the postmortem report, there
was no injury caused by the country-made pistol.
(XII) There had been material contradictions regarding locking of the
place where Jagan was detained and no explanation was there
as who had opened that lock.
(XIII) Ram Bharose and Rameshwar had been interested witnesses
and their statements were full of discrepancies and contrary to
the prosecution case. In view of the fact that no eye-witness
was examined, the said material contradictions become most
material.
(XIV)The prosecution failed to explain the grievous injuries found on
the person of Gobardhan and Munshi – accused herein.
10. This Court has laid down sufficient guidelines for interference
by the superior court against the order of acquittal. In exceptional
cases where there are compelling circumstances to interfere and the
judgment under appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The appellate court should bear in
mind the presumption of innocence of the accused and further that the
trial Court’s acquittal bolsters the presumption of his innocence.
11Page 12
Interference in a routine manner where the other view is possible
should be avoided, unless there are good reasons for interference.
11. We have considered and examined the matter most minutely.
Applying the parameters of interference against the order of acquittal,
we are of the considered opinion that no interference is called for.
This appeal lacks merit and is, accordingly, dismissed.
………………………………J.
[DR. B.S. CHAUHAN]
……….………………………….. J.
[DIPAK MISRA]
NEW DELHI;
July 1, 2013

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