REPORTABLE

      IN THE SUPREME COURT OF INDIA       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO. 60 OF 2002      

  State of U.P.             .....      Appellant

VERSUS

  Chandrapal & Anr.                  .....      Respondents

 J U D G M E N T

DR.ARIJIT PASAYAT,J.

1. Heard learned counsel for the parties.

2. Challenge  in  this  appeal  is  to  the  judgment  of  the  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

  ..2/-

.2.

Code, 1860 (in short 'IPC') so far as Respondent No.1-Chandra Pal is concerned, and

Section 302 read with Section 34 IPC 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 concerned.

3. The prosecution story in brief is that the deceased of this case was Bodhi.  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 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 accused Chandra Pal should maintain Siyapati and keep her with

him and he will also pay Rs.2500/- to her.  A joint affidavit 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

  ..3/-

.3.

and they considered him to be their thorn.  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 at Bodhi which struck

him and he fell down on the ground from 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 struck

him and  he  fell  down  on  the  ground  and  died  instantaneously.   Gaya  Deen-P.W.1

husband of younger daugher of Bodhi 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 Bodhi.

These persons witnessed the incident so also Jodhi, P.W.-2, brother of deceased Bodhi.

When Jodhi advanced to the rescue of Bodhi he was given two blows of “Karauli” by

appellant Jagannath,  one on abdomen and other on chest whereby he also sustained

injuries.  On the alarm raised by injured and other  witnesses, Smt. Dhirajya as well as

Smt. Sia Dulari wife

  ..4/-

.4.

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 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 night.  However in the morning he reached police station Ghazipur at 8.00 A.M.

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 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 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 accused stated

before the  investigating  officer that  he could get recovered  

  ..5/-

.5.

the “karauli” with which he had caused injuries to Jodhi and thereafter the said accused

led the police party to the field of Ram Swaroop and then took out “karauli” by digging

out the 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 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. 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 evidence of the so called eye-witnesses were not

cogent, credible and reliable, the High Court directed acquittal, as noted above.  

  ..6/-

.6.

5. In support of the appeal, learned counsel for the appellant submitted that the

High Court's  conclusions that  the medical 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 not lodged at the time claimed

and/or that there were manipulations therein.

6. Learned  counsel  for  the  respondents,  on  the  other  hand,  supported  the

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

        ..7/-

.7.

mentioned and in 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 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  possibility  of  consultation  and  manipulation  cannot  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.

Additionally,  the injured witness was examined by Dr. J.S. Rai at 6.00 a.m. and appears

to have been brought by Constable of Kotwali Police Station and not by Ghazipur Police

Station.   

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

  ..8/-

.8.

weighed when the 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.  This

being the position, we are not inclined to interfere with the impugned judgment of the

High Court.

9. The appeal is, therefore, dismissed.     

          ......................J.

[DR. ARIJIT PASAYAT]

    ......................J.        [C.K. THAKKER]

    ......................J.      [LOKESHWAR SINGH PANTA]

NEW DELHI October 22,2008.