ASHOK KUMAR SINGH CHANDEL versus STATE OF U.P.

[2022] 12 S.C.R. 1035

ASHOK KUMAR SINGH CHANDEL

STATE OF U.P.

(Criminal Appeal Nos. 946-947 of 2019)

NOVEMBER 04, 2022

[UDAY UMESH LALIT, CJI, S. RAVINDRA BHATAND PAMIDIGHANTAM SRI NARASIMHA, JJ.]

Penal Code, 1860 – s. 302 r/w s.149, s.307 r/w s.149 ands.148 – Arms Act, 1959 – ss.25 and 30 – Code of CriminalProcedure, 1973 – s.293 – Murder of five persons – Seven accused– The deceased belonged to or were associated with the same family;two of them were brothers, the third was their minor son and theother two were their close family friends – Trial Court acquitted allthe accused – Appeal against acquittal – High Court reversed thefindings of the trial court and convicted all the accused under ss.148,302 read with 149, 307 read with 149 of the IPC, and sentencedthem to life imprisonment – Propriety of – Held: High Court wasjustified in exercising its appellate jurisdiction in reversing the orderof acquittal as there were certain glaring mistakes, and distortedconclusions in the decision of the Trial Court – High Court wasduty-bound to reverse the decision as there existed very substantialand compelling reasons to do so, failing which it would have causeda grave miscarriage of justice – Prosecution proved the presenceof PW-1 at the place of occurrence and of him being an injuredeye-witness to the incident – Facts narrated in the FIR were fullycorroborated by much of the documentary evidence and were fullyin consonance with the testimony of the prosecution witnesses –The High Court was correct in rejecting the submission that theprosecution failed to prove common object and unlawful assembly– The arrests of A6, A10, A7 and A8 were concurrently andconsistently spoken by all the witnesses, PW-10, PW-11 and PW-12– Conclusion drawn by trial court that the arrest and recovery weredoubtful were glaring mistakes – Rejection of the FSL (ballistic)report was another grave mistake of the Trial Court – Conclusionof Trial Court that the ballistic report was inadmissible as it is not inconsonance with the requirement of s.293 Cr.P.C. was entirely wrong

A– The ballistic report was in complete compliance of the statutoryprovision – High Court had to necessarily step in to prevent gravemiscarriage of justice.

Appeal – Appeal against acquittal by trial court – Jurisdictionof the High Court – Discussed.

Criminal Law – Motive – Sufficiency or insufficiency of motivedoes not have direct bearing on the actual evidence against theaccused, particularly when the prosecution relies on direct evidenceof injured eyewitnesses.

Criminal Law – Investigation – Defective investigation byCinvestigating authorities by itself does vitiate the case of theprosecution when there are credible eye-witness testimonies as wellas other compelling pieces of evidence.

Evidence – Witness – Testimony of injured eye-witness –Appreciation – Held: When there are credible ocular witnesses whoseDstatements are corroborated by other contemporaneous evidence,certain minor variations, such as non-recovery of blood-stainedclothes, certain other weapons etc. will not be fatal to the case ofthe prosecution.

Code of Criminal Procedure, 1973 – s.293 – StatutoryErequirement under – Compliance – FSL (ballistic) report – On facts,the report came from the office of the Assistant Director of ForensicLab bearing his seal – Conclusion of the Trial Court that the ballisticreport was inadmissible as it was not in consonance with therequirement of Section 293 Cr.P.C., is entirely wrong – Ballistic reportFwas in complete compliance of the statutory provision – Trial Courterred in rejecting the ballistic report.

Dismissing the appeals, the Court

HELD: 1. In the instant case, the High Court was justifiedin exercising its appellate jurisdiction in reversing the order ofGacquittal as there were certain glaring mistakes, and distortedconclusions in the decision of the Trial Court. The High Courtwas duty-bound to reverse the decision as there existed verysubstantial and compelling reasons to do so, failing which it wouldhave caused grave miscarriage of justice. [Para 174][1109-C]

2. Even though the prosecution placed material to establishthe existence of motive on the part of the accused party tomurder five members of the Shukla family and associates, themotive part is treated secondary in view of the fact that this is acase of direct evidence of injured eye-witnesses. [Para 174][1109-D-E]

3. The place of the incident is not disputed. In fact, the TrialCourt itself returned findings about the first as well as the secondevent of the incident. These findings were affirmed by the HighCourt. Therefore, the only question related to the personsinvolved and the manner of commission of the offence. [Para174][1109-E-F]

4. Having examined the contentions relating to (a)discrepancies in the number of dead bodies brought to the hospital(b) improbability of the time taken to prepare the tehreer (c)alleged omissions in the FIR (d) and the discharge timingmentioned in the Bed Head Ticket, casting doubt on the time oflodging the FIR, it is found that the prosecution has explained allthe discrepancies beyond reasonable doubt. The conclusionsof the Trial Court were based on surmises and conjectures, andtherefore, the High Court is justified in reversing the judgmentof the Trial Court. [Para 174][1109-G-H; 1110-A]

5. Having considered the four submissions in support ofthe contention that PW-1 and PW-2 are not the eyewitnesses tothe incident, being (a) discrepancy on the bullets marks on thejonga, (b) bullet injuries on the deceased and eyewitnesses onthe basis of PW-1 statement, (c) timing of the X-ray and Bed HeadTicket, and (d) evidence relating to the failure of electricity atthe time of the incident, it is found that these submissions arecontrary to evidence on record. The prosecution has proved thepresence of PW-1 at the place of occurrence and of him being aninjured eye-witness to the incident. The inferences drawn by theTrial Court were based on misreading of the evidence, andtherefore, the High Court was obliged to reverse the finding toprevent grave miscarriage of justice. [Para 174][1110-B-C]

6. Having examined the alternative story of the defencebased on the fax, said to have been sent from the office of the SP

Aand introduced through the defence witness DW-3, it is clear thatthe facts mentioned in the fax are not supported by any evidence.On the contrary, the facts narrated in the FIR are fullycorroborated by much of the documentary evidence and are fullyin consonance with the testimony of the prosecution witnesses.As there is no evidence to corroborate the events mentioned inBthe fax and the evidence of DW-3 does not inspire confidence, tosay the least. The conclusion of the Trial Court that theprosecution could not prove the case is totally erroneous. Such afinding is glaring mistake as held by this Court in Chandrappaand Ors. v. State of Karnataka obligating the High Court to interfereCwith an order of acquittal. [Para 174][1110-D-F]

7. The High Court was correct in rejecting the submissionthat the prosecution failed to prove common object and theunlawful assembly. The decision of the High Court on this issueis unexceptionable on fact and law. [Para 174][1111-A-B]

8. The conclusion of the Trial Court about the recovery ofthe weapon is based on perverse finding as it misunderstoodthe 8x60-bore rifle to be distinct from 0.315 bore rifle. Thetechnical material prove beyond doubt that there is no differenceat all. The distinction is only in the measurement system, oneEbeing British and the other being the Continental system. In viewof such perverse finding, the High Court had very substantialand compelling reasons to reverse the findings of the Trial Court.[Para 174][1111-B-D]

9. The arrests of Naseem (A6), Bhan Singh (A10), ShyamFSingh (A7) and Sahab Singh (A8) were concurrently andconsistently spoken by all the witnesses, PW-10, PW-11 and PW-12. The conclusion drawn by the Trial Court that the arrest andrecovery were doubtful were glaring mistakes. The High Courtwas, therefore, completely justified in reversing the decision ofthe Trial Court. [Para 174][1111-D-E]G

10. The rejection of the FSL (ballistic) report is anothergrave mistake of the Trial Court. The conclusion of the Trial Courtthat the ballistic report is inadmissible as it is not in consonance

with the requirement of Section 293 Cr.P.C. is entirely wrong.The ballistic report is in complete compliance of the statutoryprovision. The High Court had to necessarily step in to preventa grave miscarriage of justice. [Para 174][1111-F-G]

M.G.Agarwal v. State of Maharashtra [1963] 2 SCR405 – followed.

Chandrappa and Ors v. State of Karnataka (2007) 4SCC 415 : [2007] 2 SCR 630; Ghurey Lal v. State ofUP (2008) 10 SCC 450 : [2008] 11 SCR 499; AmzadAli Alias Amzad Kha and Ors v. State of Assam (2003) 6SCC 270; Bhargavan and Ors v. State of Kerala (2004)12 SCC 414 : [2003] 5 Suppl. SCR 535; BhupendraSingh and Ors v. State of U.P. (2009) 12 SCC 447 :[2009] 6 SCR 262 and State of Himachal Pradesh v.Mast Ram (2004) 8 SCC 660 : [2004] 4 Suppl. SCR 269– relied on.

State of U.P. v. Gokaran and Ors (1984) Supp SCC482; Masalti v. State of U.P. [1964] 8 SCR 133; PraveenKumar v. State of Karnataka (2003) 12 SCC 199;Menoka Malik and Ors v. State of West Bengal and Ors(2019) 18 SCC 721 : [2018] 10 SCR 707; N.Vijaykumar v. State of Tamil Nadu (2021) 3 SCC 687;Nawab Ali v. The State of U.P. (1974) 4 SCC 600 :[1974] 3 SCR 734; State of Rajasthan v. Shiv Charanand Ors. (2013) 12 SCC 76 : [2013] 8 SCR 336; ShivajiGenu Mohite v. The State of Maharashtra (1973) 3 SCC219; State of Uttar Pradesh v. Kishanpal and Others(2008) 16 SCC 73: [2008] 11 SCR 1048; Sheo ShankarSingh v. State of Jharkhand and Anr. (2011) 3 SCC654 : [ 2011] 4 SCR 312; Darbara Singh v. State ofPunjab (2012) 10 SCC476 : [2012] 7 SCR 541; RammiAlia Rameshwar v. State of M.P. (1999) 8 SCC 649 :[1999] 3 Suppl. SCR 1; Abdul Sayeed v. State ofMadhya Pradesh (2010) 10 SCC 259 : [2010]13 SCR 311; Rajendra Alia Rajappa & Ors v. State ofKarnataka (2021) 6 SCC 178; Rana Pratap and Ors.v. State of Haryana (1983) 3 SCC 327; Karnel Singh v.

AState of M.P.(1995) 5 SCC 518 : [1995] 2 Suppl.SCR 629; C. Muniappan and Others v. State of TamilNadu (2010) 9 SCC 567 : [2010] 10 SCR 262; Saddikalias Lalo Gulam Hussein Shaikh and Ors v. State ofGujarat (2016) 10 SCC 663 : [2016] 5 SCR 421;Lakshman Singh v. State of Bihar (2021) 9 SCC 191Band M Nageswara Reddy v. State of AP 2022 SCCOnLine SC 268 – referred to.

W.H.B. Smith, Mauser Rifles and Pistols (TheStackpole Company, Pennsylvania, United States ofAmerica, 4[th] edn, 1954, pg nos. 156,157) – referredCto.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 946-947 of 2019.

From the Judgment and Order dated 19.04.2019 of the High Courtof Judicature at Allahabad in Government Appeal No.5123 of 2002 andCriminal Revision No.1548 of 2002.

With

Criminal Appeal Nos. 1030-1031, 1046-1047, 1269-1270, 1804-1805, 1980-1981, 1279-1280 of 2019, slp (crl) no.10742 of 2019, w.p.(crl) no. 57 of 2022.

Harin P. Raval, Siddhartha Dave, Ms. Sonia Mathur, Ms.Aishwarya Bhati, Vishvajit Singh, Jayant Muthuraj, Ratnakar Dash, Sr.Advs., Shiv Kumar Pandey, Abhay Raj Singh Chandel, ChandrashekharA. Chakalabbi, Awanish Kumar, Abhinav Garg, D. Girish Kumar, KumarVinayakam Gupta, Kartikey Kanojiya, M/s. Dharmaprabhas LawAssociates, Sandeep Jha, Arjun D. Singh, Ashish Singh, DharmendraKumar Sinha, Uday Prakash Yadav, Simarjeet Singh Saluja, Ms. PrernaDhall, Noor Rampal, Ms. Aastha Mehta, Ms. Ishita Sinha, Rohit Pandey,Murari Tiwari, Ramjee Pandey, Ms. Manisha Chava, Rustam SinghChauhan, Ms. B.L.N. Shivani, Rajeev Kumar Dubey, Ms. HarshitaRaghuvanshi, Ms. Shreyase Aggrwal, Ashiwan Mishra, KamlendraMishra, Shashank Singh, Anupam Chaudhary, Manoj Kumar Dwivedi,Mrinal Kumar Sharma, Ms. Bansuri Swaraj, Ms. Ana Upadhyay, AkashSingh, Ms. Manya Hasija, Prem Sunder Jha, Pankj Bist, KrishnanandPandeya, Manish Kumar, Anshuman Srivastava, Naresh Kumar, Advs.for the appearing parties.

1042SUPREME COURT REPORTS

AThe Judgment of the Court was delivered byPAMIDIGHANTAM SRI NARASIMHA, J.

1. These Criminal Appeals are by seven accused convicted andsentenced to life by the High Court of Judicature at Allahabad for themurder of five persons. The deceased belonged to or were associatedBwith the same family; two of them were brothers, the third was theirminor son and the other two were their close family friends. Apart fromthese criminal appeals, there is also Special Leave Petition filed by theinformant (PW-1), who is the sole surviving brother in the family, prayingfor enhancement of the sentence from life to death and also WritCPetition seeking transfer of accused no. 5 to jail outside Uttar Pradeshfor serving out the sentence in lieu of his influence in the State.

2.1 The judgment of the High Court was rendered in an appealagainst acquittal of all the accused by the Trial Court[1]. The High Courtby its judgment[2] impugned herein reversed the findings of the Trial CourtDand convicted all the accused for the offences under Sections 148, 302read with 149, 307 read with 149 of the Indian Penal Code, 1860[3] andsentenced them to life imprisonment. The details of the conviction andsentences are as under.

2.2 All these accused were sentenced to undergo life imprisonmentEfor the offence under Section 302 read with Section 149 IPC and to paya fine of Rs. 20,000/- each, in default to undergo six months additionalsimple imprisonment. The accused were sentenced to undergo rigorousimprisonment for three years for the offence under Section 148 IPC andto pay fine of Rs. 5000/- each and in default to undergo simpleFimprisonment of six months. All the accused were sentenced to undergoten years rigorous imprisonment for the offence under Section 307 readwith149 IPC and to pay fine of Rs. 10,000/- each, in default to undergosix months simple imprisonment.

2.3 The acquittal of Ashok Kumar Singh Chandel(A5) underGSections 379 and 404 IPC by the Trial Court was upheld. Further, the

1 Court of the Upper Sessions Judge, Hamirpur; ST No. 145/2000, 146/2000 and 147/2000 dated 15.07.2002.

2 In Government Appeal No. 5123/2002 and Criminal Revision No. 1548/2002 dated19.04.2019.H3 hereinafter referred to as ‘IPC’.

acquittal of accused Sahab Singh (A8) for an offence under Section 25of the Arms Act, 1959[4] and the acquittal of accused Ashok SinghChandel(A5) for an offence under Section 30 of the Arms Act was alsoconfirmed by the High Court without any variation. With these findings,the Criminal Appeal of the State and the Criminal Revision of theinformant (PW-1) were substantially allowed.

3. Challenging the judgment of the High Court, the present criminalappeals are filed by the accused Raghuvir Singh (A1) in Crl. Nos.1046- 1047/2019, Ashutosh Singh @ Dabbu (A2) in Crl. A. Nos. 1030-1031/2019, Uttam Singh (A3) and Pradeep Singh (A4) in Crl. Nos.1269-1270/2019, Ashok Kumar Singh Chandel (A5) in Crl. Nos. 946-947/2019, Naseem (A6) in Crl. Nos. 1279-1280/2019, Sahab Singh(A8) in Crl. No. 1980- 1981/2019, and Bhan Singh (A10) in Crl. ANos. 1804-1805/2019.

The Incident:

4. The prosecution case as it unfolds in the First InformationReport[5] is that there has been long-standing factional dispute betweentwo groups in Hamirpur, U.P. The group represented by Ashok Chandel(A5) and the group represented by Shukla family were inimically disposedagainst each other for long time. The FIR is about the incident that hasoccurred at 09.10 P.M. on 26.01.1997 at Mohalla Subhash Bazar, Kasba,Hamirpur as two events occurring one after another in quick succession.The first incident is in front of the gun shop owned by accused no. 6,referred to as ‘Naseem’s gun shop’ and the second incident is near theresidence of Parma Pandit which is about 50-75 meters from Naseem’sgun shop. The two incidents are as follows.

5.1 First part of the incident: On 26.01.1997, Rajiv Shukla (PW-1) along with his servant Lallan went to the market Mohalla SubhashBazaar, Kasba, Hamirpur in the evening of 26.01.1997 at around 07.30PM to buy some articles. As they were returning from the market, theysaw PW-1’s elder brother, Rakesh Kumar Shukla, his two sons, Guddaand Chandan, Sri Kant Pandey, Vipul (PW-1’s son) and Ved Prakash,returning home in vehicle, all through referred to as ‘jonga’.

5.2 On seeing the jonga, PW-1 and Lallan stopped to speak toRakesh Kumar Shukla and others in the jonga. As the jonga was parked

4 hereinafter referred to as the ‘Arms Act’.

5 hereinafter referred to as ‘FIR’.

Ain the middle of the road, facing east direction in front of Naseem’s (A6)gun shop, six accused, namely Ashok Kumar Chandel (A5), Naseem(A6), Shyam Singh (A7), Sahab Singh (A8), Jhandu (A9) and Rukku(driver of A5) came out of Naseem’s gun shop, all armed with rifles andguns and suddenly started firing indiscriminately at the jonga.

B5.3 It is stated in the FIR that immediately after hearing the soundof fire from the side of the market, Raghuvir Singh, liquor contractor(A1), his son Ashutosh alias Dabbu Singh (A2), Pradeep Singh (A4),Uttam Singh (A3) and Bhan Singh (A10) arrived at the spot in anothervehicle and started firing at the jonga. Due to the firing, Sri Kant (sincedeceased) and Ved Prakash (since deceased), who were sitting on theCrear side of the jonga, received bullet injuries. Rakesh Kumar Shukla(since deceased), Gudda (since deceased), Chandan and Vipul alsoreceived bullet injuries. Because of the firing, panic gripped, and themarket was shut down.6.1 Second part of the incident: Immediately on gettingDinformation about the occurrence, Rajesh Kumar Shukla, elder brotherof PW-1, Ravi Kant Pandey (PW-2), Bhagwati Sharan Nayak, SriPrakash Nayak, Anil and many others reached the place of the incident.As the children Chandan and Vipul sustained minor injuries, they wereimmediately taken out of the jonga and sent home with the help of somepeople in the area.E

6.2 Rajesh Shukla reversed the jonga from in front of Naseem’sgun shop and started driving it towards the hospital, which is on the westside of the Subhash Bazar Road. However, as they reached ParmaPandit’s house, which is just 50-75 meters from Naseem’s gun shop, theaccused, having already reached the spot. At that moment, Ashok ChandelF(A5) exhorted that “no one from the Shukla Family should escapealive”, and on hearing that, all the accused again started firingindiscriminately. At this point, Rajesh Shukla got out of the jonga with hisrifle to take aim and fire back at the accused persons. However, duringthe cross-fire, Rajesh Shukla sustained fatal injuries and fell down onthe spot. PW-1, who was standing on the driver’s side (right side) of theGjonga, also received bullet injuries on his leg. Similar is the position ofPW- 2, who also received bullet injuries on his leg. As PW-1 and hiscompanions took cover to conceal themselves, PW-1 saw the assailantssnatch the rifle from Rajesh Kumar Shukla (since deceased), who hadfallen due to bullet injuries and escaped from the scene of offence, towards‘chowraha’ in their vehicles.H

6.3 Having seen Rajesh Kumar Shukla also succumb to bulletinjuries like Gudda and Rakesh Kumar Shukla, hoping to save SrikantPandey and Ved Prakash, PW-1 put them in the jonga and drove to thehospital.

At the hospital:

7.1 PW-1 reached the hospital at around 07.50 P.M, and he wasimmediately examined by Dr. N.K. Gupta, PW-8 who gave the injuryreport- Exb. Ka-13 which records injuries on his left thigh (back portion)caused by firearms. Dr. S.R. Gupta, PW-7, who was the Radiologist onduty that day, got his X-Ray-Exbs. Ka-44-46 done.

7.2 While PW-1 was being treated, Dr. P.N Paya, PW-5, examinedthe bodies of deceased Rakesh Kumar Shukla, Rajesh Kumar Shuklaand Sri Kant Pandey and declared them dead. Dr. R.S. Gupta, PW-6,examined Gudda and Ved Prakash and declared them dead. One Mr.Hardayal was also injured in the firing was examined by PW-8 Dr. N.K.Gupta. His injury report, Exb. Ka-14 was prepared at 8.45 P.M. PW-8also examined PW-2 at 10 P.M. and gave the injury report, marked asExb. Ka-15. Vipul and Chandan were also examined at 10.30 P.M., andtheir injury reports were marked and exhibited as Exbs. Ka- 16 and Ka-17, respectively.

Filing of the FIR:

8.1 After obtaining immediate medical attention, PW-1’s statement(‘tehreer’) was recorded at the hospital by Saraswati Sharan, the scribewho was examined as PW-3. Upon completion of the tehreer, at around09.10 PM, PW-1 went to the police station to report the incident and tolodge the FIR. At the Police Station, Constable Mahesh Singh, examinedas PW-9 prepared the FIR[6], Exb. Ka-20, in his own handwriting, bycopying the contents from the tehreer under Sections 147, 148, 149, 307,302, 34 & 395 IPC.

8.2 In the FIR, PW-1 mentioned about the two incidents, first infront of Naseem’s gun shop and second near Parma Pandit’s house andnamed ten accused and two unknown persons. The motive behind theattack was stated to be political rivalry between Ashok Kumar Chandeland the Shukla family. In this context, the informant mentioned about acriminal case involving Shyam Singh (A7). In that case, Rakesh Kumar

6 FIR no. 33/1997.

AShukla and Rama Kant Pandey (brother of Sri Kant Pandey) assistedthe prosecution against Shyam Singh (A7). He also mentioned about theAssembly Elections, where the Shukla family opposed Shyam Singh (A7)and Ashok Kumar Chandel (A5), leading to political rivalry.

8.3 The FIR was thereafter copied into the General Diary by theBInvestigating Officer, Lalman Verma, PW-12. After copying the FIR,PW-12 proceeded to the place of occurrence in furtherance of theinvestigation.

9. It is important to mention at this stage that on the next day, i.e.on 27.01.1997, at 7.50 P.M. two more FIRs[7], were registered againstCSahab Singh and Ashok Kumar Chandel under Sections 25 and 30 of theArms Act, 1959 respectively.

Investigation:

10. After lodging the FIR, PW-1 returned to the hospital whereDthe panchayatnama[8]of the deceased was being conducted. Thereafter,PW-1 went to the place of occurrence in the jonga, which was driven byLallan, where he met the Investigating Officer, PW-12. The InvestigatingOfficer, recorded the statement of PW-1 in the presence of anindependent witness and also prepared site map-Exb. Ka-25. Havingnoticed pool of blood on the road near Naseem’s gun shop, PW-12Ecollected samples of bloodstained soil and grass- Exb. Ka-26. TheInvestigating Officer also collected 12 blank cartridges (6 bore and 6brass)- Exb. Ka-27 in front of Parma Pandit’s house. An expired ManarthCard (Railway travel card), issued by the Indian Railways Board, NewDelhi-Exb. Ka-28 was also recovered by him in front of Naseem’s gunFshop, the card bore the name of Ashok Kumar Chandel. The jonga bywhich PW-1 went to the place of occurrence was also seized along witha piece of the footrest which had blood on it, sample of the brokenpiece of the front glass of the jonga and some pieces of glass lying at thespot, all of them later marked as -Exb. Ka- 29.

G11. After the investigation at the place of occurrence, PW-12 wentto the hospital where Sub-Inspector R.N. Singh Pal and ASI

7 FIR no. 34/1997 and FIR no. 35/1997.

8 Panchnama has been referred to as ‘Panchayatanama’ in the High Court as well as theTrial Court Judgment. For the purposes of the present appeals, we will use the wordH‘Panchnama’.

Harishchandra Singh were present and preparing the panchnamas[9] ofthe dead bodies. All the dead bodies were sealed separately and sent forpost-mortem. The post-mortems of the bodies of Rakesh Shukla, RajeshShukla and Sri Kant Pandey were conducted on 27.01.1997 the followingday between 10 AM to 12.30 PM by PW-5[10]. Similarly, the post-mortemsof Gudda and Ved Prakash were also done on 27.01.1997 between 2PM and 2.30 PM by PW-6[11].

Arrests:

12. The next day, that is on 27.01.1997, the Investigating Officerproceeded to Laxmibai Tiraha after finding out that some of the accusedwere at Naseem’s house. Upon reaching the place, the police partyfound Naseem (A6), Shyam Singh (A7), Sahab Singh (A8) and BhanSingh (A10) trying to flee through the backdoor of Naseem’s houseleading to River Betwa. They were arrested and rifle along with 10brass bullets tied in green belt was recovered from the possession ofSahab Singh(A8). On being questioned about the rifle, Sahab Singh statedthat the rifle belonged to Ashok Kumar Chandel. The seized rifle andthe bullets were marked as Exb. Ka-24 and they were sent for FSLReport. copy of the seizure memo was provided to Sahab Singh. Onthe basis of the seizure memo, cases under Sections 25 and 30 of theArms Act were registered against accused Sahab Singh (A8) and AshokKumar Chandel (A5).13. search for the rest of the other accused was made, however,as they could not be found report under Sections 82 and 83 (proclamationof person absconding) of the Code of Criminal Procedure, 1973[12] waspresented to the court on 28.01.1997. On the very same day, on receivinginformation regarding the looted rifle of Rajesh Kumar Shukla at theresidence of Ashok Kumar Chandel, at Mohalla Vivek Nagar, his housewas raided and country-made pistol and one licensed Double BarrelBreach Loading (DBBL) gun were recovered.

14. There was another lead regarding the looted rifles at theresidence of one Mr. Anand Purwar. However, nothing in relation to the

9 Rakesh Shukla (Exb. Ka-30); Rajesh Shukla (Exb. Ka-37); Sri Kant Pandey (Exb. Ka

43); Guddu (Exb. Ka-48); Ved Prakash (Exb Ka-53).

10 Rakesh Shukla (Exb. Ka-3); Rajesh Shukla (Exb. Ka-4); Sri Kant Pandey (Exb. Ka-5).

11 Gudda (Exb. Ka-6); Ved Prakash (Exb. Ka-7).

12 hereinafter referred to as ‘Cr.P.C’

Amurders was recovered in the raid, except one licensed DBBL gun of12 bore, four cartridges and licensed Mauser gun with 8 cartridges.These were seized in the presence of independent witnesses and copyof the same was provided to Anand Purwar. These weapons were notsent for forensic examination.

B15. On 29.01.1997, statements of witnesses to the panchnamawere recorded. Section 161, Cr.P.C statement of Bhagwati Saran Nayakwho was present on the day of the incident was recorded, howeverstatement of victims Vipul and Chandan could not be recorded as theywere very young. The Investigating Officer (PW-12) also recorded thestatement of Hardayal on 16.02.1997.C

16. Upon obtaining information about the presence of accusedRaghuvir Singh (A1), Dabbu (A2), Pradeep (A4) and Uttam (A3), in aMaruti car near city forest, they were perused and arrested on 01.02.1997.

17. Another raid was conducted at Ashok Kumar Chandel’sDKanpur residence however no weapons were recovered. Upon receiptof information about the weapons used by Raghuvir (A1) and Dabbu(A2), their Moradabad residence was raided but nothing could berecovered. Later, even Court witness was again sent to Moradabadfor recovery of the weapons, but nothing was recovered.

E18. On 21.02.1997, accused Jhandu (A9) was arrested and hisSection 313 Cr.P.C statement was recorded. As accused Rukku wasabsconding, his trial was separated from the present case. Ultimately,he was convicted by the Trial Court[13] on 12.04.2007 and sentenced tolife imprisonment. His conviction and sentence was confirmed by theHigh Court[14] by judgment dated 24.05.2019. He has not filed SpecialFLeave Petition before us.

19. On completion of the investigation, charge-sheet, Exb. Ka-58, was filed against 10 accused on 22.02.1997 and the case was set fortrial.

The Trial:G

20. The Trial Court framed charges against the accused personson 25.01.2002 under sections 147, 148 and 302 read with section 149,

13 Sessions Trial number 127/2003.H14 Criminal Appeal No. 2617/2017.

IPC against all the 10 accused and under Sections 25 and 30, Arms Actagainst Sahab Singh and Ashok Kumar Chandel respectively. The TrialCourt also framed charges against Ashok Kumar Chandel under Sections379 and 404 IPC. While prosecution examined fourteen witnesses beingPW-1 to PW-14, the defence examined three witnesses being DW-1 toDW-3. There was also one Court witness being CW-1.

21. The following are the prosecution witnesses with an indicationabout the purpose for which they were examined.

22. The following are the defence witnesses.

23.1 Of all the witnesses, the prosecution strongly relied on theevidence of PW-1 and PW-2 who are examined as injured eye-witnesses.

CDEF

A23.2 PW-1 in his testimony gave detailed description of the eventsat the place of incident. He deposed about the first as well as the secondincident including the position at which the deceased as well as the eye-witnesses were situated at the time of the incident. He also deposedabout the weapons used by the accused persons, injuries sustained bythe deceased persons and the bullet marks on the jonga. PW-1 alsoBrecounted the events that followed the incidents including the lodging ofthe FIR, medical treatment at the hospital and recording of his statementby the IO at the place of occurrence.

23.3 The other ocular witness presented by the prosecution isRavi Kant Pandey, PW-2. He testified about his presence during theCsecond incident and his involvement in rescuing the children from thejonga. He gave detailed description about his position during the incidentand the injury sustained by him. He also detailed the deceased personsin the jonga, including his brother Sri Kant Pandey while naming all theaccused and the firing. He further mentioned about his treatment in theDhospital and also that of the children who he accompanied.

24. Other witnesses are the police officers and the doctors whotreated the deceased persons as well as the injured witnesses asmentioned in the table above. The defence witnesses were examinedonly to contradict the statements of PW-1 and PW-2.

EJudgment of the Trial Court:

25. By its judgment dated 15.07.2002, the Trial Court acquitted allthe accused. As this is case of reversal in an appeal against acquittal,it is extremely important to examine the reasoning and the findings ofthe Trial Court in minute detail. This is for the reason that in an appealFagainst acquittal, the appellate court must exercise its jurisdiction onlyfor very substantial and compelling reasons. For determining whethersubstantial, compelling and sufficient reasons existed for the High Courtto reverse finding of acquittal, we will first scrutinize the judgment ofthe Trial Court in detail. The decision of the Trial Court is based on itsGconclusions on the (a) motive, (b) place of occurrence, (c) contradictionsin the statement of PW-1 and PW-2, (d) recovery of weapons (e) andthe illegality with respect to the FSL report.

26.1 Motive: The Trial Court found that the prosecution failed toestablish any motive for the accused to commit the offence. Theconclusions were based on three grounds:H

26.2 Firstly, the Trial Court held that the motive based on thealleged involvement of Shyam Singh (A7) in past murder case in whichthe deceased and his associates assisted the prosecution is ‘insufficient’and ‘far-fetched’.

26.3 Secondly, the Trial Court dismissed the alleged opposition ofthe deceased party to the election of Ashok Kumar Chandel in theAssembly Elections of 1996 as not convincing enough. Trial Court alsoheld that PW-1 could not clearly articulate the political animosity.

26.4 Thirdly, the alleged animosity between the Chandel groupand the Shukla group based on the competing interests of the educationalinstitutions run by Naseem –Islamia Inter College, Hamirpur and thosesupported by Shukla group – Vidya Mandir is not based on any evidence.

27. Place of occurrence: The Trial Court recorded that the incidentoccurred in two parts. As far as the first part is concerned, it returned afinding that “this place of occurrence has not been challenged bythe defence and from the questions by Naseem himself during thecross-examination of the witness it is clear that the incident hadtaken place.” With respect to the second incident, the Trial Court againreturned finding to the effect that “the investigation officer duringinspection of the place of occurrence found blood but he did notcollect blood stained soil from here. This is his mistake but this doesnot draw any adverse inference on the prosecution case.”

28. The prosecution’s contention that the entire incident was pre-planned did not impress the Trial Court because there were threedifferent routes by which the deceased party could reach their residencefrom their sister’s house. In view of this, the Trial Court held that therewas no certainty about PW-1 and Lallan on the one hand and RakeshShukla and others in the jonga meeting in front of Naseem’s gun shop,i.e. the place of occurrence on the other. The Trial Court held that thismeeting could not have been expected by the accused party to lay anambush.

29. Differences in the contents FIR copied from the Tehreer:The Trial Court examined the tehreer and compared it with the FIR.The discrepancies were highlighted to come to conclusion ofimprobability of scribing the tehreer within ‘10-15 minutes’ and forcoming to conclusion that the FIR is ante-dated and fragmented. Inthis context;

Ai.The Trial Court doubted the FIR for the reason that certainwords and phrases in the tehreer did not appear in the FIR.For the reason that words such as ‘tatha’ in the tehreerwas replaced with ‘aur’ and the sentence ‘tatha mere perme goliya lagi’ was omitted in the FIR, the Trial Courtconcluded that the FIR was ante-dated and fragmented. ItBwas also noted that while the tehreer ends with prayerfor police protection, the FIR is silent on the same.

ii.Taking into account the time at which PW-1 was medicallyexamined (8.30 PM), followed by his narration of the incidentto PW-3 for scribing the tehreer, the Trial Court held thatCthe tehreer could not have been prepared within 10-15minutes. This conclusion was based on calculation madeby the Trial Court on the statement of PW-1 with respectto his medical examination and the lodging of the FIR.Further, the Trial Court considered that the tehreer isDmeticulously written without any mistake, which is notpossible to be done in less than 30 minutes. For this reason,the Trial Court concluded that the tehreer itself is doubtfuland, therefore, even the FIR is doubtful.

30. Contradictions in the timings of lodging the FIR: The TrialECourt came to the conclusion that there are inconsistencies in thestatements of PW-1 about the lodging of the FIR. This finding led to theconclusion that the prosecution has not proved the fact beyond areasonable doubt. The conclusion was based on the following grounds:

i.While the FIR states that the incident took place at 7:30FPM, the fax sent by the Superintendent of Police mentionsthe incident as 7.45 PM. This contradiction cast doubt onthe story of the prosecution, particularly the veracity of thestatement of PW-1.

ii.Based on the statement of PW-1 that he left the place ofoccurrence 10- 15 minutes after the incident and reachedGthe hospital within 3-4 minutes after which he was examinedby PW-8 at 8.30 PM, the Trial Court concluded that theincident could have taken place only at 8.00 PM and not7.30 PM. Yet another reason for the Trial Court to disbelievethe statement of PW-1.

31. Fax sent by Superintendent of Police, Hamirpur: The TrialCourt heavily relied on the fax message sent from the office of theSuperintendent of Police, Hamirpur to the higher authorities informingthem of the occurrence of the incident. This fax message, though notpart of the investigation was introduced by the defence through DW-3.The description of the events in the FIR are in stark contradiction withthe events narrated in the fax. Relying on the fax and accepting theevidence of DW-3, the Trial Court came to the conclusion that theprosecution failed to prove beyond reasonable doubt, the occurrence ofthe event at the time mentioned in the FIR, the motive, presence of theaccused persons etc. As the fax contradicts the statement of PW-1 hisentire evidence must be rejected.

32. Trial Court on the testimony of injured eye-witness PW-1:The Trial Court’s reason for rejecting the evidence of PW-1 as aneyewitness is based on its conclusions about the following inconsistenciesin his statement:

i.The veracity of statement of PW-1 based on the bulletmarks on the jonga: Taking note of the bullet marks onthe jonga, the Trial Court came to the conclusion that theversion of PW-1 that there was indiscriminate firing isunbelievable. The Trial Court held that there was only onebullet hole on the back side of the jonga while the otherparts of the jonga were intact, except partially brokenmirror on driver’s side. On this basis, the Trial Courtdisbelieved that there was indiscriminate firing towards thejonga by the accused persons.

ii.The veracity of statement of PW-1 as it contradicts theinjuries sustained by him: Based on the statement of PW-1 that he was on the non-driver side of the jonga, the TrialCourt came to the conclusion that this version cannot bebelieved as the injuries sustained by him do not match hisown description as if that were true, he would have been inthe direct line of firing and could not have escaped with justone bullet injury on his leg.

iii.The veracity of the statement of PW-1 based on injuriessustained by the deceased persons: The Trial Court cameto the conclusion that the gun shot injuries on the body ofRakesh Kumar Shukla do not match the description of PW-

A1. Similarly, the gunshot wounds received by Sri Kant, VedPrakash and Gudda were contrasted with the narration ofevents by PW-1 to disbelieve his version. Further, in viewof the fact that there were no independent witnesses tovouchsafe for the incident, the Trial Court concluded thatthe prosecution failed to establish PW-1’s presence and inBturn the event.

iv.The veracity of PW-1’s statement based on thedocumentary evidence relating to the treatment at thehospital: The Trial Court concluded that the entries madein the medical register were back-dated as there was norecord with respect to any payment made in furtherance ofthe treatment. The injury report prepared by PW- 8 indicatedthat the injuries on PW-1 were on the left knee, whereasthe G.D. entry noted that the bandage was on his left calf.This led the Trial Court to disbelieve the injury on PW-1.Further, with respect to the medical examination of PW-1,

it was observed that the Bed Head Ticket, as well as themedical examination report, had certain discrepancies withregard to the timing, date, parental name as well as theplace of injury which had over-writing and cuttings. Due tothese factors, PW-1’s injuries as well as the medicalEevidence were disbelieved.

v.Unnatural behaviour by PW-1 during the secondincidence: PW-1’s presence at the second incident was alsodisbelieved by the Trial Court on the ground that his behaviouris unnatural. The reason for such conclusion is this. TheFTrial Court felt that PW-1 should have in the natural coursenarrated the incident to Rajesh Shukla and Ravi Kant Pandeyas they reached the place of occurrence. Further, the TrialCourt held that if the firing was indiscriminate, he could nothave narrated the incident with minor details as to who usedGwhich gun. In this context, the Trial Court also noted thatPW-1 could not remember the persons who took the childrenVipul and Chandan home at the time of the incident.

vi.The veracity of PW-1’s statement with respect toelectricity connection at the time of the incident: TheTrial Court believed the evidence of DW-1, Executive

Engineer at the Electricity Distribution Division, Hamirpurthat there was no electricity between 7.50 PM to 8.45 PM.In view of this, the Trial Court concluded that PW-1 couldnot be an eye- witness of the incident as he could neitherhave identified the accused nor clearly seen the incident.

33. Trial Court on the testimony eyewitness, PW-2: The TrialCourt disbelieved the presence of PW-2 at the second place of the incidentbased on its conclusion that the injury on his body was not that of afirearm. The Trial Court held that this witness cannot be believed asthere is contradiction in his statement about who had actually takenthe children, Vipul and Chandan home. Further, the Trial Court concludedthat the conduct and behaviour of PW-2 is unnatural as he did notimmediately go to the hospital after receiving bullet injuries and also didnot accompany his brother who died during the incident.

34. Recovery of weapons:

i.The Trial Court disbelieved the story of the prosecutionabout the recovery of an 8x60 bore rifle from Sahab Singhduring his arrest, as it contradicted the fax message sentby the Superintendent of Police which mentioned therecovery of 0.315 bore rifle from Sahab Singh. Based onthis contradiction, the Trial Court concluded that the recoveryfrom Sahab Singh is false as there are two different riflesmentioned in two different documents.

ii.Trial Court found it strange that PW-12 searched only AshokKumar Chandel and Raghuvir’s Moradabad house for themurder weapons, and none of the houses of the otheraccused persons were searched.

iii.In view of the fact that the Court Witness (CW-1) couldnot recover any weapon from the Moradabad house, theTrial Court concluded that the whole investigation was mala-fide and was intended to implicate Ashok Kumar Chandel.

iv.The Trial Court discredited the seizure of the weapon andthe bullet cartridges from Sahab Singh as the statement ofPW-14Dy. Superintendent of Police, CBCID that PW-11and 12 mentioned to him that they recovered 18 bullets,contradicts with evidence PW-11 and 12 who stated thatthey recovered 10 bullets.

1056SUPREME COURT REPORTS

A35. Ballistic Report: The Trial Court held that the ballistic reportis not admissible in evidence as the requirements of Section 293, Cr.P.Cwere not followed.

36. Recovery of Railway Manarth Card belonging to AshokChandel from the place of occurrence: The Trial Court came to theBconclusion that the Manarth Card recovered from the place ofoccurrence had expired way back on 12.01.1994 which is more thanthree years prior to the incident. The Trial Court also found that the saidManarth Card was not sealed and stamped like other pieces of evidence.While the Trial Court did not dispute that the Railway Manarth Cardbelonged to Ashok Kumar Chandel it doubted the recovery from theCplace of occurrence.37. In view of the above findings and conclusions, the Trial Courtacquitted all the accused of all the charges.

38. Challenging the judgment of the Trial Court, the State preferredDa criminal appeal and the informant (PW-1) filed criminal revisionbefore the High Court.

Judgment of the High Court:

39. We have undertaken detailed description of the reasons andconclusions adopted by the Trial Court only to see if the High CourtEwhile reversing an order of acquittal has sufficient and cogent reasonsto interfere with the reasoning of the Trial Court. strict scrutiny of thejudgment of the High Court is necessary as an order of acquittal can beinterfered with only for substantial and compelling reasons. Followingthe same structure adopted by the Trial Court, we will consider andFexamine the reasons adopted by the High Court with respect to eachand every finding of the Trial Court.

40. As stated earlier, the High Court in appeal convicted all theaccused under Sections 148, 302 read with 149, 307 read with 149 IPCand acquitted the accused Ashok Kumar Chandel under Sections 379Gand 404 IPC and Section 30 Arms Act. Sahab Singh was also acquittedof 25 of the Arms Act. The High Court’s findings are as under:

41. Motive: The High Court held that there is sufficient evidenceto conclude that there existed motive for the Chandel group forcommitting the offences against the deceased and their men. The HighCourt concluded on the basis of evidence on record that Rakesh KumarH

Shukla along with Rama Kant Pandey (brother of deceased Sri KantPandey) lobbied against Shyam Singh (A7), who was involved in criminalcase. Further, it also came on record that the deceased party opposedAshok Kumar Chandel in the Assembly Elections. All this, according tothe High Court establishes that Shyam Singh and Ashok Kumar Chandelwere on hostile terms with the Shukla family. As regards Sahab Singh, itwas held that he was Ashok Kumar Chandel’s private gunner andtherefore, he also had the same motive. In so far as Naseem (A6) isconcerned, he was supported by the Chandel group because Naseem’sEducational Institution – Islamia Inter College was in competition withVidya Mandir, supported by the Shukla Family. In view of all these factors,as indicated above, the High Court concluded that there is sufficientmotive. At the same time, the plea of Ashok Kumar Chandel that hewas falsely implicated and that one Alok Purwar alias Titu who is theowner of petrol pump was responsible for the murders was discardedby the High Court as there was no evidence.42. High Court’s analysis of the approach adopted by the TrialCourt in drawing its conclusions on the evidence of witnesses andthe documentary evidence: Apart from reversing the findings given bythe Trial Court on specified issues such as motive, the contradiction inthe timing of lodging the FIR, its inconsistencies with the tehreer, reliabilityon the fax message, recoveries of firearms etc., which are beingrecounted hereinbelow, the High Court noted fundamental problem.The problem related to the approach adopted by the Trial Court, theHigh Court was of the opinion that much of the conclusions drawn bythe Trial Court were based on very technical and pedantic approach inanalysing the evidence of witnesses or drawing inferences from thedocumentary evidence. The technical approach adopted by the TrialCourt has according to the High Court caused grave miscarriage ofjustice. This is explained by the High Court while dealing with eachissue in the following manner.

43. FIR and Tehreer discrepancies: The High Court was ofthe opinion that the approach adopted by the Trial Court in construingthe tehreer and the FIR were super technical. The High Court foundthat the explanation proffered by the prosecution for omissions in theFIR to be genuine as the investigating officer was pressurizing PW-9who prepared the FIR to provide copy of the report and therefore, it isreasonable to assume that such omissions could have taken place.

AMoreover, the possibility of few words being left out while writing along report cannot be ignored and hence the mistakes were consideredbonafide. Rejecting the allegation that FIR is ante-timed, the High Courtobserved that after PW-1 was treated in the hospital at 8.30 PM hecould go to the police station to lodge an FIR and that there is nothingunnatural about it, considering the nature of his injuries. The High CourtBexamined the spot map as per which the hospital and the police stationwere in close proximity. The documentary evidence supported thestatement of PW-1 that he returned to the hospital for proper treatmentand was discharged the next day at 09.00 AM.

44. Testimonies of PW-1 and PW-2: The High Court was ofCthe opinion that the approach adopted by the Trial Court in discardingthe evidence of PW-1 and PW-2 was hyper-technical. At the outset,the place of occurrence and also the occurrence of the event were notdoubted by the Trial Court. The evidence of PW-1 and PW-2 beinginjured witnesses cannot be discarded based on minor inconsistencies.DThe High Court examined each of the contradictions and inconsistenciesfound by the Trial Court and concluded that the same was drawn on aspeculative premise. The High Court held that, “a perusal of aboveanalysis made by the Trial Court appears to have been done overmeticulously with lot of guess work made on this part”. In thiscontext, the High Court relied on the decision of the Supreme Court inEthe case of State of U.P. v. Gokaran and ors[15]. In this case, SupremeCourt had interfered with the order of acquittal by the High Courtstating that – “it becomes the duty of the Court to interfere with theacquittal in order to redeem the course of justice. the High Courthas adopted hyper-technical approach to the entire prosecutionFcase. “

45. Reversing the finding of the Trial Court based on the evidenceof DW-1, Executive Engineer, Electricity Distribution Division, Hamirpursuggesting that there was no power during the time of occurrence of theincident, the High Court held that even according to DW-1, he was notGsure as to which phase the electricity connection to the Subhash Marketwas connected. Yet again, the High Court felt that the Trial Court judgmentis based on surmises and conjectures, particularly when there were directinjured eye-witnesses.46. On the question of contradictions in the statements of PW-1and PW-2 with regard to their position and injuries sustained, it was heldthat the Trial Court was incorrect in discarding their testimonies as in asituation of indiscriminate firings, it becomes very difficult for any witnessto recollect as to who exactly was shooting at whom and from whichexact direction. It was also observed that it is too much to expect aninjured witness to depose distinctly about each and every injury receivedby the deceased and other injured persons. The High Court went on toobserve that the Trial Court paid more attention to ascertain as to whichparticular injury was caused in what sitting position to the injured and thedeceased rather than looking at the incident as whole. The findings ofthe Trial Court doubting the presence of the witness on technical groundswas not accepted by the High Court.

47. While considering the conduct of PW-2 right after the incident,the High Court did not find anything unnatural. PW-2 was asked to lookafter the injured children Vipul and Chandan and hence he went home,and this is completely natural.

48. Recovery of Weapons: The High Court rejected the findingsof the Trial Court with respect to (a) the fax message sent by theSuperintendent of Police mentioning the arrest of Sahab Singh with a0.315 bore rifle as opposed to the recovery memo which mentioned8x60 bore rifle recovered from Sahab Singh (b) non-examination of apublic witness during the arrest and recoveries (c) the search madeduring the arrest of the accused for the following reasons.

49. The High Court came to the conclusion that the Trial Courterred in arriving at the decision that there was no recovery made fromSahab Singh on the basis of the fax message. The High Court found thatthe conclusions of the Trial Court were perverse as the 0.315 bore riflein the continental system having measurements are in millimeters (mm)is nothing but an 8x60 bore rifle which is the British system of annotation.However, on the legality of recovery, the High Court held that the seizurewas not corroborated by an independent witness and therefore itproceeded to acquit Sahab Singh (A8) as well as Ashok Kumar Chandel(A5) under Sections 25 and 30 of the Arms Act.

50. Manarth Card Recovery: As regards the recovery ofManarth Card (railway travel card) belonging to Ashok Kumar Chandelis concerned, the Trial Court’s decision to discard the same as the cardhad expired long before the incident was rejected by the High Court for

Athe reason that it is not uncommon that people carry passes or ID cardseven after the date of expiry. According to the High Court, the recoveryof the card cannot be rejected just because the validity of the card expiredbefore the incident. The High Court also observed that the InvestigatingOfficer has nothing against Ashok Kumar Chandel to falsely implicatehim.B

51. Ballistic Report: Accepting the ballistic report, the High Courtobserved that the report was forwarded by one of the Director/ DeputyDirector/ Assistant Director of the said lab under the seal. This is incompliance with the statutory requirement under Section 239 Cr.P.Cand hence the report was not discarded and was considered admissible.C

52. In support of its conclusions, the High Court relied on thedecisions of this Court in Masalti v. State of U.P.[16]; Praveen Kumar v.State of Karnataka[17]; State of U.P v. Gokaran and ors[18]; MenokaMalik and ors v. State of West Bengal and ors[19].DSubmissions on Behalf of the Appellants:

53. In this batch of appeals, we heard Mr. Harin P Raval, Mr.Siddharth Dave, Mr. Jayant Muthuraj, Mr. Ratnakar Dash, Mr. BasavaPrabhu Patil, Mr. Vishvajit Singh, Senior Advocates, followed by Ms.Bansuri Swaraj, Advocate for the Appellants. We have also heard, Ms.EAishwarya Bhati, Learned Additional Solicitor General and Mr. A.K.Mishra, Additional Advocate General for the State of U.P. and Ms. SoniaMathur, Senior Advocate for the Informant.

54. The senior counsels were assisted by S/Shri Shiv KumarPandey, Abhay Raj Singh Chandel, Chandrashekhar A. Chakalabbi,FAwanish Kumar, Abhinav Garg, D.Girish Kumar, Kumar VinayakamGupta, Kartikey Kanojia, M/s Dharmaprabhas Law Associates, AOR,S/Shri Sandeep Jha, Arjun D. Singh, Ashish Singh, Advocates,Dharmendra Kumar Sinha, AOR, Uday Prakash Yadav, Simarjeet SinghSaluja, Ms. Prerna Dhall, Ms. Noor Rampal, Ms. Aastha Mehta, Ms.Ishita Sinha, S/Shri Rohit Pandey, Murari Tiwari, Advocates, RamjeeGPandey, AOR, Ms. Manisha Chava, Shri Rustam Singh Chauhan, Ms.B.L.N. Shivani, Shri Rajeev Kumar Dubey, Ms. Harshita Raghuvanshi,

16 (1964) 8 SCR 133.17 (2003) 12 SCC 199.18 Supra no. 15.H19 (2019) 18 SCC 721.

Ms. Shreyase Aggrwal, Shri Ashiwan Mishra, Advocates, S/ShriKamlendra Mishra, Shashank Singh, AOR, Anupam Chaudhary, ManojKumar Dwivedi, Mrinal Kumar Sharma, Ms. Ana Upadhyay, Shri AkashSingh, Ms. Manya Hasija, Advocates, S/Shri Prem Sunder Jha, AOR,Pankaj Bist, Advocate, Krishnanand Pandeya, AOR, Manish Kumar,Advocate, Anshuman Srivastava and Shri Naresh Kumar, AOR.

55. We will encapsulate the submission of the learned counselsfor the Appellants as well as the State before we proceed to analyze andanswer the same.

56. Leading the arguments on behalf of the Appellants, Mr. HarinRaval for A5 submitted that in case of an appeal against acquittal, thereis double presumption in favour of the accused. As having secured anacquittal from one of the courts, the presumption of his innocence isreinforced and reaffirmed. Therefore, if two conclusions are possible onthe basis of the evidence on record, then the appellate court should notdisturb the finding of acquittal recorded by the trial court. He relied onthe decision of this Court of N. Vijaykumar v. State of Tamil Nadu[20].He also submitted that the High Court has reversed the findings of theTrial Court without providing any reasons and has simply supported itsfindings by stating that the Trial Court decision was based on assumptionsand speculations.

57. As the substantial part of the case of the prosecution isdependent on the evidence of PW-1, he rightly focused on the credibilityand veracity of the evidence of this witness. He argued that the followingfeatures of the case would make it clear that PW-1 was not present atthe scene of offence and he cannot be accepted as an eyewitness at all.

i.According to PW-1, he was on the right side of the jonga(non-driver side) when he was speaking to deceasedRakesh Shukla at which point the alleged ‘indiscriminate’firing began from Naseem’s gun shop. If this were true, inthis positioning PW-1 would have been in the direct line offiring and could not have escaped with one bullet injury onhis leg. Further, as per the evidence of PW-8, the bulletinjury on PW-1 was on the upper portion of his left leg,which would only be possible if his back was facing theassailants.

Aii.Since, PW-1 had stated that he was on the non-driver sideand so was deceased Gudda in the jonga who receivedfatal injuries, it is highly improbable that PW-1 did not receiveany injuries in the first incident while being present on thenon-driver side.

Biii.As per PW-1’s evidence, he was standing in front of thejonga during the first incident when there were bystanders.However, none of them were made witnesses and examinedby the prosecution.

iv.During the second incident, when deceased Rajesh KumarCShukla was injured by 16 bullets as per the post-mortemreport, it is highly improbable that PW-1 would receive minorinjuries on the lower part of the body while standing adjacentto Rajesh.

v.As per the evidence of PW-5 (Dr. PN Paya), RakeshDShukla received injuries on his left side which contradictshis position in the jonga on the right side.

vi.PW-9 had stated that when PW-1 reached the police stationto lodge the FIR, the bandage was on his calf, however, asper PW-1’s injury report, his injuries were on his thigh. Ifhe had received immediate medical treatment from PW-8Ethen his bandage would have been on the thighs.

vii.PW-2 sustained 2x2 CM wound which cannot be causedby rifle, DBBL or an SBBL gun. Therefore, thedescription of the firearms as deposed by PW-1 cannot beFbelieved. Moreover, no firearms were recovered expectfor the one recovered from Sahab Singh which is also notproved to be used in the incident.

58.1 Referring to the contradictions arising out of the treatmentof PW-1 in the hospital the learned counsel tried to establish that thepresence of PW-1 is doubtful for the following reasons:G

i.The Bed Head Ticket of PW-1 does not mention an X-Rayrecommendation.

ii.There is no entry in the cash register of any money beingdeposited regarding any X-Ray or treatment being done.H

iii.It was deposed by PW-1 that the X-Ray took place at 10APM however, the X-Ray department closes at 2 PM.Therefore, the timings of the same cannot be believed.

iv.There is no mention of date on the X-Ray plates of PW-1.

v.As per the evidence of PW-12, one Srideen took PW-1,BRavi Kant, Hardayal and Vipul to the hospital for X-Ray on28.01.1997 and he also brought them back home. Thus, thestatement of PW-1 regarding the X- Ray is doubtful.Moreover, material witness, Srideen was never examinedby the prosecution.

58.2 It was argued that if PW-1 was admitted to the hospital on26.01.1997 and was discharged only on 27.01.1997 at 9 AM, hisstatement that he went to the police station at 09.10 PM to register theFIR and then returned to the hospital and then to the place of occurrenceat 10 PM cannot be believed. PW- 1 stated that he took all the deadbodies to the hospital, however, the police memo initially recorded fourbodies and the fifth dead body was received after 9 PM. If PW-1 leftto lodge the FIR at 9 PM and at the same time if the hospital recordsreceived the fifth body at 9 PM then how was PW-1 aware of this factto mention it in the tehreer which was written at 8.30 PM. In light ofthis, it was contended that the FIR is ante-timed. The learned SeniorCounsel submitted that there is only one hole on the left side of thewindscreen of the jonga and the remaining parts were intact. If this istrue, then the version of PW-1 that the incident was of indiscriminatefiring cannot be believed. Further, as per the evidence of PW-4, therewas no diesel in the jonga and this is directly in line with the defencetheory put up that, the incident was result of quarrel with one Tituregarding moving the jonga which according to Rakesh Shukla had nodiesel. In this context, the fax message sent by S.P. Mathur was reliedon. It is submitted that Hardayal was treated in the hospital at 8.30P.M and therefore, the statement of PW-1 that he did not see Hardayalcannot be believed.

58.3 Mr. Raval submits that the fax sent by S.P. Mathur to thehigher authorities mentions arrest of Sahab Singh on 26.01.1997 with315 bore rifle and what is shown in the recovery memo is an 8x60 borerifle. The High Court’s findings that rifle of 8x60 bore and 315 bore arethe same is fallacious as the conversion comes to 480 bore.

A59.1 Questioning the presence of PW-2 at the scene of the offenceMr. Raval submitted that:

i.The conduct of PW-2 was very unnatural as he reachedthe hospital only at 10 PM even though he had allegedlyreceived bullet injury. Moreover, his brother Sri KantBPandey has also died.

ii.PW-2 stated that Chandan and Vipul were sent home withsomeone from the Mohalla but they were neither producednor examined by the prosecution. There is also materialcontradiction as to whether PW-2 took Vipul and Chandanhome or not.

59.2 Mr. Raval also relied on the evidence of the defence witnessDW-1, to discredit prosecution witnesses, PW-1 and PW-2 on the groundthat there was no electricity at the place of occurrence when the incidenthappened.

60.1 Mr. Siddharth Dave, learned Senior Advocate appearing forAshutosh Singh alias Dabbu (A2), argued that no evidence was led bythe prosecution to prove how two groups of accused gathered at oneplace by forming an unlawful assembly in pursuance of common objectto fire indiscriminately at the persons sitting in the jonga. It is the case ofEthe prosecution that at around 7.30 PM on 26.01.1997, PW-1 along withhis servant Lallan who had gone to purchase some articles from themarket met Rakesh Shukla in the jonga. If the said meeting was chancemeeting, then the formation of an unlawful assembly with commonobject would stand disproved. Moreover, there were no allegations as toat what prior point in time the accused form an unlawful assembly.F

60.2 It was urged that the incident took place in two parts andtherefore, it was incumbent upon the prosecution to lead evidence as towhen the unlawful assembly in the first part dispersed and when it gathersagain during the second incident. In light of this, it was argued that offenceunder Section 149 was not made out by the Appellants as there was noGevidence to prove the formation of an unlawful assembly with commonobject. The Counsel placed reliance on the judgments of this Court inNawab Ali v. The State of U.P.[21], Masalti v. State of U.P.[22] and State

21 (1974) 4 SCC 600.H22 (1964) 8 SCR 133.

of Rajasthan v. Shiv Charan and ors[23]to say that it is incumbent uponthe prosecution to show that the person concerned was member of theunlawful assembly at the time of the commission of the offence.Moreover, mere presence or association with other members alone isnot per se sufficient to hold that each member is criminally liable for theoffence committed by the others, unless, there is sufficient evidence onrecord to show that each member intended to or knew the likelihood ofcommission of such an offending act, being member of the unlawfulassembly as provided for under Section 149, IPC.61. Mr. Jayanth Muthuraj, learned Senior Advocate, appearingfor Pradeep Singh (A4), submitted on the improbabilities of the first aswell as the second incident. With respect to the first incident, he wouldsay that PW-1 sustained no injury and it has remained unexplainedhow the new vehicle comprising of five people comes all of suddenand starts firing, and even after that PW-1 was not injured. So far asthe second incident is concerned, he took us to the inquest report andargued that the prosecution is not able to explain interpolation and cuttingin many places. He argued in similar lines as that of Mr. Raval aboutthe non-examination of certain witnesses, he also submitted that therewere contradictions about sending Vipul and Chandan to the house.Who took them to the residence is mystery. He also touched uponthe issue relating to the delay in FIR, the fax message sent by theSuperintendent of Police and the recovery of Manarth card bearingthe name of Ashok Kumar Chandel near Naseem’s shop and theevidence of DW-1 establishing that there was no electricity at the timeof the incident.

62. Mr. Ratnakar Dash, learned Senior Counsel appearing forUttam Singh (A3) and Bhan Singh (A10) commenced with U.P. PoliceRegulation 97 about the recording of the FIR. He, however, did notpursue this submission. He adopted the same line of submission as thatof Mr. Raval about the credibility of the PW-1 in view of the uncertaintyabout the injuries. Mr. Dash argued that there was no motive attributableto his clients Uttam Singh and Bhan Singh. He adopted the sameargument as that of Mr. Siddharth Dave with respect to the secondincident and concluded by stating that there are no recoveries from UttamSingh as well as Bhan Singh.

A63. Mr. Basava Prabhu Patil, learned Senior Advocate, appearedon behalf of Sahab Singh (A8) submits that his client’s name appears inthe FIR along with the gunner of Chandel who was also cited. However,after the filing of the charge sheet, the gunner’s name is deleted and hisclient is prosecuted as accused no. 8. He submits that his client is afarmer and he is falsely implicated. Mr. Patil also questioned the veracityBof the evidence of PW-1 and PW-2. He argued that the prosecution hastaken the Government gunner out and substituted him instead. He hasnothing to do with Chandel and the recovery of the rifle, for this he reliedon his Section 313, Cr.P.C statement. It is interesting to note that Mr.Patil has questioned the authenticity of the fax alleged to have been sentCby Mr. S.K. Mathur, SP to his superior officers. In the fax, it is allegedthat Ashok Singh Chandel’s private gunner Sahab Singh was arrestedwhile carrying 0.315 bore rifle before the alleged arrest on 27.01.1997.Mr. Patil submitted that though his client was acquitted of the chargeunder Section 25 of the Arms Act, in view of the fact that the recoverywas not based on any independent witness he was convicted underDSection 302, IPC along with all others only on the basis of evidencegiven by PW-1.

64. Ms. Bansuri Swaraj, learned Advocate made submissions onbehalf of Naseem (A6) who is referred to as the Bandukwala. Shesubmitted that Naseem is 70 years old and has no motive to indulge inEthe crime at all. She joined the other counsels in making the commonargument about the contradictions in statement of PW-1 and PW-2.Questioning the arrest memo, she argued that if the fax mentions SahabSingh’s arrest before 27.01.1997, then Naseem’s arrest along with SahabSingh as evidenced by the arrest memo dated 27.01.1997 is forgedFdocument. Finally, she concluded by stating that no recovery of weaponswas made from his client.

Submissions by the State:

65. The State was represented by the Learned Additional SolicitorGeneral, Ms. Aishwarya Bhati. The learned ASG commenced herGsubmission with the occurrence of the incident on 26.01.1997 which isnot disputed. The death of 5 persons was also not disputed. With the aidof pictographic depiction of the site map and injuries on the body, sheexplained the incident in the context of place, time, and persons involved.Recounting the relationship between the parties, from the very beginningshe states that there is sufficient evidence to conclude that there is aH

longstanding rivalry between the group of Chandel, Raghuvir Singh,Naseem, and other members as against the group comprising of theShukla family.

66. Learned ASG identified the injuries of the witnesses and thedeceased and compared them with the documentary evidence and thestatements of doctors to emphasize the veracity of the eyewitnesses.She has also referred to the post-mortem report of Rakesh Shukla, RajeshShukla, Srikant Pandey, Gudda, and Ved Prakash and again co-related itto the evidence of the doctors who were examined with the correspondingexhibits. This is another factor, according to the learned ASG to addcredence to the statement of the eyewitnesses.

67. Learned ASG referred to the evidence of PW-1 in detail andsought to correct the statements made by the witness with the evidenceon record. She would further submit that there is no reason to disbelievethe evidence of the eyewitnesses and if their version is accepted thenthe various possibilities and contradictions that the Appellants havesuggested have to be discarded. The learned ASG laid emphasis on theapproach adopted by this Court in dealing with an appeal against acquittaland submitted that there is no inviolable rule that an Appellate Courtwould refrain from interfering with the judgment of acquittal even ifthere is grave miscarriage of justice.

68. Referring to the submission of the Appellants that non-examination of witnesses would be fatal for the prosecution, she hasreferred to certain decisions of this Court indicating the correct approachthat needs to be adopted. The reasoning adopted by the High Court inreversing the decision of the Trial Court was brought to our notice. Thelearned ASG emphasized that the Trial Court had adopted supertechnical approach in analyzing the statement of the eyewitnesses andrejected them without appreciating the principles on the basis of whichan injured eyewitness evidence is to be considered. It is her submissionthat the Trial Court has committed serious error in acquitting all theaccused in the teeth of clear evidence of the eyewitnesses. The learnedASG concludes by saying that the High Court has not committed anyerror, in fact or in law while reversing the decision of the Trial Court. Forthis reason, she had prayed dismissal of these appeals.

Submissions by the Informant:

69. Ms. Sonia Mathur learned Senior Counsel supporting the learnedASG has submitted that there is sufficient proof of the presence of PW-

A1 in the first as well as the second incident. She referred to the 1995murder involving Shyam Singh, where Rakesh Kumar Shukla and RamaKant Pandey assisted the prosecution. These incidents coupled with theShukla family and associates opposing Ashok Chandel in the AssemblyElection are strong motive for killing five members of the Shukla family.In the alternative, she has submitted that in view of the presence ofBinjured eyewitnesses the need to prove motive becomes irrelevant. Ms.Sonia Mathur took us through the compilation comprising important piecesof evidence and explained the position in which the witnesses and thedeceased got bullet injuries and corroborated them with the medicalevidence. She has also supported the prosecution on all the points thatCwere taken up by the ASG.

Analysis and Findings:

70. Preliminary: We will commence with dealing with threepreliminary submissions, commonly urged by all the learned counsels forthe Appellants. First of this submission relates to the error committed byDthe High Court in interfering with the judgment of the Trial Court whileexercising jurisdiction of criminal appellate court against an order ofacquittal. The second common submission relates to the alleged failureon the part of the prosecution to establish clear motive for the accusedto commit the offences. The third submission advanced by some of theEcounsels relates to the lack of evidence regarding the occurrence of theevent and that too at two places.

71. After the preliminary submissions, we will deal with thearguments advanced by the defence to impeach the veracity of thetestimonies of PW-1 and PW-2 as the injured eye-witnesses. Thesearguments relate to the discrepancies in the timing of lodging of the FIRFand contradictions about the presence of PW-1 at the place of incidencebecause of the evidence relating to (a) the bullet marks on the jonga (b)the physical position of PW-1 and the injuries sustained by him and thedeceased at the time of the incident (c) the contradictions arising out ofthe timing of X-Ray reports and issuance of the Bed Head Ticket (d)Gand the absence of electricity at the time of the incident. With respect toPW-2, we will examine the submissions (a) regarding his presence atthe place of the incident (b) injuries sustained by him (c) his unnaturalbehaviour at the time of the incident.

72. We will then deal with the submission questioning the convictionHunder Section 149 IPC. Thereafter, we will deal with the contradictions

in the FIR on the basis of the fax message. Then, dealing with thesubmission on recoveries, we will consider the submissions relating to(a) recovery of the Railway Manarth Card from the scene of the offence(b) and recovery of the weapon and bullets during the arrests. We willfinally deal with the submission about the admissibility of the ballisticreport.

I. Jurisdiction of the High Court in Appeals Against Acquittals

73. This is the first preliminary submission and it is based on aprinciple laid down by this Court that in an appeal against acquittal, thecriminal appellate court will not interfere with the acquittal unless thereare substantial and compelling reasons. The common submission ofall the counsels appearing for the Appellants is, therefore, that the HighCourt was not justified in reversing the order of acquittal.

74. The position of law with respect to the jurisdiction of the HighCourt in cases of appeals against acquittals is well established. Afterreviewing the judgments on this subject, this Court clarified inChandrappa and Ors v. State of Karnataka[24]that:

“3. Various expressions, such as, “substantial and compellingreasons”, “good and sufficient grounds”, “very strongcircumstances”, “distorted conclusions”, “glaring mistakes”,etc. are not intended to curtail extensive powers of anappellate court in an appeal against acquittal. Suchphraseologies are more in the nature of “flourishes oflanguage” to emphasise the reluctance of an appellate courtto interfere with acquittal than to curtail the power of thecourt to review the evidence and to come to its ownconclusion.”

75. It is sufficient to note the principle laid down in the ConstitutionBench of this Court in M.G. Agarwal v. State of Maharashtra[25]:

“16. …But the true legal position is that however circumspectand cautious the approach of the High Court may be indealing with appeals against acquittals, it is undoubtedlyentitled to reach its own conclusions upon the evidenceadduced by the prosecutionin respect of the guilt or innocence

24 (2007) 4 SCC 415.

25 (1963) 2 SCR 405.

of the accused. This position has been clarified by the PrivyCouncil in Sheo Swarup v. King Emperor and NurMohammadv. Emperor [AIR 1945 PC 151] ...

17. …Similarly in Ajmer Singh v. State of Punjab [(1953) SCR418] it was observed that the interference of the High CourtBin an appeal against the order of acquittal would be justifiedonly if there are “very substantial and compelling reasons todo so”. In some other decisions, it has been stated that anorder of acquittal can be reversed only for “good andsufficiently cogent reasons” or for “strong reasons”. Inappreciating the effect of these observations, it must beCremembered that these observations were not intended to laydown rigid or inflexible rule which should govern thedecision of the High Court in appeals against acquittals. Theywere not intended, and should not be read to have intendedto introduce an additional condition in clause (a) of SectionD423(1) of the Code. All that the said observations are intended

to emphasise is that the approach of the High Court in dealingwith an appeal against acquittal ought to be cautiousbecauseas Lord Russell observed in the case of Sheo Swarup, thepresumption of innocence in favour of the accused “is notcertainly weakened by the fact that he has been acquitted at

his trial”. Therefore, the test suggested by the expression“substantial and compelling reasons” should not be construedas formula which has to be rigidly applied in every case.That is the effect of the recent decisions of this Court, forinstance, in Sanwat Singh v. State of Rajasthan [AIR 1961FSC 715] and Harbans Singh v. State of Punjab [AIR 1962 SC439] and so, it is not necessary that before reversing ajudgment of acquittal, the High Court must necessarily”characterise the findings recorded therein as perverse…

76. Following the Constitution Bench, this Court in Ghurey Lal v.GState of UP[26]has formulated the following principles:

“69. The following principles emerge from cases

1. The Appellate Court may review the evidence in appealsagainst acquittal under sections 378 and 386 of the Criminal

H26 (2008) 10 SCC 450.

Procedure Code, 1973. Its power of reviewing evidence iswide and the appellate court can reappreciate the entireevidence on record. It can review the trial court’s conclusionwith respect to both facts and law.

2. The accused is presumed innocent until proven guilty. Theaccused possessed this presumption when he was before thetrial court. The trial court’s acquittal bolsters the presumptionthat he is innocent.

3. Due or proper weight and consideration must be given tothe trial court’s decision. This is especially true when witness’credibility is at issue. It is not enough for the High Court totake different view of the evidence. There must also besubstantial and compelling reasons for holding that the trialcourt was wrong.

70. In light of the above, the High Court and other appellatecourts should follow the well-settled principles crystallizedby number of judgments if it is going to overrule or otherwisedisturb the trial court’s acquittal:

1. The appellate court may only overrule or otherwise disturbthe trial court’s acquittal if it has “very substantial andcompelling reasons” for doing so.

number of instances arise in which the appellate court wouldhave “very substantial and compelling reasons” to discardthe trial court’s decision. “Very substantial and compellingreasons” exist when:

i.The trial court’s conclusion with regard to the facts ispalpably wrong;

ii.The trial court’s decision was based on an erroneousview of law;

iii.The trial court’s judgment is likely to result in “graveGmiscarriage of justice”;

iv.The entire approach of the trial court in dealing withthe evidence was patently illegal;

v.The trial court’s judgment was manifestly unjust andunreasonable;

Avi.The trial court has ignored the evidence or misread thematerial evidence or has ignored material documentslike dying declarations/ report of the ballistic expert,etc.

vii.This list is intended to be illustrative, not exhaustive.B2. The Appellate Court must always give proper weight andconsideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads toacquittal, the other to conviction - the High Courts/AppellateCourts must rule in favor of the accused.”C

77. Keeping in mind the above-referred principles we will nowproceed to examine the impugned judgment and see if the High Courthas properly applied the principles while exercising the criminal appellatejurisdiction against the order of acquittal.

II. MotiveD

78. The second common ground raised by many Appellants relatesto the motive behind the commission of the offence. The Trial Courtheld that the disputes between Chandel and other accused with the Shuklagroup are ‘insufficient’ for committing murder. Counsels for theAppellants have repeatedly argued that the prosecution failed to establishEany motive for the accused to commit the crime. We will deal with thissubmission in fact as well as in law.

79. On facts, three instances are referred to by the prosecution toindicate the existence of prior rivalry between the two groups. Firstly,in the year 1995, one Sanjay Kumar Shukla of Sumerpur and Shiv NarainFMishra, President of Degree College were murdered by accused ShyamSingh (A7) and others. In that murder case, deceased Rakesh KumarShukla along with Rama Kant Pandey (brother of deceased Sri KantPandey) lobbied against Shyam Singh. Ashok Kumar Chandel andRaghuvir Singh were in close alliance with Shyam Singh. Secondly, theGShukla family and associates opposed Ashok Kumar Chandel in theAssembly Elections that year. As result, accused Shyam Singh, AshokKumar Chandel and Raghuvir were on hostile terms with the Shuklafamily. Sahab Singh is stated to be the private gunner of Ashok KumarChandel and therefore he would have the same disposition against theShukla family. Thirdly, accused Naseem was the Manager of IslamiaH

Inter College and the other competing educational institution in the town,Vidya Mandir was run by the members associated with Shukla family.Naseem was close to Ashok Kumar Chandel and they were actingtogether since they were inimical towards Shukla’s individually and alsoas group.

80. PW-1 has in his deposition spoke about the existence of longpolitical enmity with Ashok Chandel in the following terms.

“13. I had long political enmity with Ashok Chandel. Myfamily used to oppose him in the election. Ashok Chandelused to contest election for MLA. He lost the 1996 electionfor MLA with huge margin because of our opposition. AshokChandel had lost the election before this in the year 1995.Shiv Narayan Mishra and Abhay Shukla, Chairman, ofdegree college were killed at Sumerpur publicly in whichaccused Shyam Singh and others were prime accused againstwhich chargesheet had been filed. In the said incident, mybrother Rakesh Shukla and Sh. Ramakant Pandey, Advocate,i.e. brother of deceased Shrikant Pandey, had favoured thedeceased. Ashok Chandel and Raghuvir Singh and other hadfavoured Shyam Singh. This is the reason for their animosity/grudge.

14. Naseem was the manager of Islamiya Inter College,Hamirpur. Whereas, the Chairman of the Vidya Mandir,Hamirpur (Inter College). are Brahmins. There existscompetition between both the institutions. Ashok Chandel,Raghvir Singh, Naseem etc. used to sit together often.”

81. At the outset, we hold that the finding of the Trial Court thatthe motive suggested by the prosecution is ‘insufficient’ for thecommission of the murder of five persons is an inappropriate measure.

82. Sufficiency or insufficiency of motive does not have directbearing on the actual evidence against the accused, particularly whenthe prosecution relies on direct evidence of injured eyewitnesses.This position of law is clear from the following decisions of this Court.In Shivaji Genu Mohite v. The State of Maharashtra[27], this Courtheld:

27 (1973) 3 SCC 219.

“11. Assuming that the prosecution evidence was not sufficientor cogent enough for motive to be spelt out of it, the factthat the prosecution was not able to discover such an impellingmotive would not reflect upon the credibility of witness,proved to be reliable eyewitness…..

B12. As stated earlier, the fact that the prosecution in givencase has been able to discover sufficient motive or not cannotweigh against the testimony of an eyewitness. Evidence as tomotive would, no doubt, go long way in cases whollydependent on circumstantial evidence. Such evidence wouldform one of the links in the chain of circumstantial evidenceCin such case. But that would not be so in cases where thereare eye- witnesses of credibility, though even in such cases ifa motive is properly proved, such proof would strengthen theprosecution case and fortify the court in its ultimateconclusion.But that does not mean that if motive is notDestablished the evidence of an eye-witness is rendereduntrustworthy.”

83. In the case of State of Uttar Pradesh v. Kishanpal andOthers[28]it was held that:

“39. The motive may be considered as circumstance whichEis relevant for assessing the evidence but if the evidence isclear and unambiguous and the circumstances prove the guiltof the accused, the same is not weakened even if the motive isnot very strong one. It is also settled law that the motiveloses all its importance in case where direct evidence ofFeyewitnesses is available, because even if there may be verystrong motive for the accused persons to commit particularcrime, they cannot be convicted if the evidence of eyewitnessesis not convincing. In the same way, even if there may not bean apparent motive but if the evidence of the eyewitnesses isclear and reliable, the absence of in adequacy of motiveGcannot stand in the way of conviction.”84. In another case of Sheo Shankar Singh v. State ofJharkhand and Anr[29], this Court observed:

28 (2008) 16 SCC 73.H29 (2011) 3 SCC 654.

“15. ….. These decisions have made clear distinctionbetween cases where the prosecution relies uponcircumstantial evidence on the one hand and those where itrelies upon the testimony of eyewitnesses on the other……….Proof of motive, recedes into the background in cases wherethe prosecution relies upon an eye witness account of theoccurrence. This is because if the court upon properappraisal of the deposition of the eyewitnesses comes to theconclusion that the version given by them is credible, absenceof evidence to the motive is rendered inconsequential…

16. The case at hand rests upon the deposition of theeyewitnesses to the occurrence. Absence of motive would not,therefore, by itself make any material difference……”

85. Also, in the case of Darbara Singh v. State of Punjab[30]:

“15. ……In case where there is direct evidence of witnesseswhich can be relied upon, the absence of motive cannot be aground to reject the case. Under no circumstance, can motivetake the place of direct evidence available as proof……...

16. Motive in criminal cases based solely on the positive, clear,cogent and reliable ocular testimony of witnesses is not at allrelevant. In such fact situation, the mere absence of strongmotive to commit the crime, cannot be of any assistance to theaccused… “

86. In view of the evidence on the aspect relating to motive, coupledwith the clear position of law with respect to the relevance and weightageof motive in cases of evidence of direct injured eyewitness to the incident,the conclusion of the Trial Court that the case of the prosecution fumblesas it failed to prove the motive is incorrect. The decision of the HighCourt, based on the principles laid down by this Court is unexceptionable.

III. Place of occurrence

87. Some of the counsels for the Appellants submitted that theprosecution has failed to adduce any evidence about the occurrence ofthe event at the place alleged. This submission need not detain us forlong as this was also raised before the Trial Court and it was not acceptedeven by the Trial Court. It is, therefore, sufficient for us to refer to the

Afinding of the Trial Court on this submission. While rejecting thisargument, the Trial Court recorded that the incident occurred as twoevents in quick succession. With respect to the first event the Trial Courtheld:

“This place of occurrence has not been challenged by theBdefence and by the questions by Naseem himself during thecross examination of witnesses it is clear that the incidence”had taken place.

88. Similarly, the Trial Court recorded the following with respectto the second event of the incident in the following manner:C

“The second place of incident has been said to be occurredin front of the house of Parmanand Pandit and as per sitemap [Exh. A-25], house of Anirudh Kumar Sahu is locatedwest side of house of Naseem….

xxx

The investigation officer during inspection of the place ofoccurrence found blood but did not collect blood-stained soilfrom there. This is his mistake but this does not draw anyadverse inference on the prosecution case.B. B. words havebeen shown by the investigation officer in the site map [Exh-EA-25] after inspection of the place of occurrence, on whichplaces it is said that bullet cartridges total 12 have beenfound, out of which 6 are to said of 12 bore and 6 of brass.He has not indicated as to which bullet cartridges was foundfrom which place separately. These B. B. marks are shown inFthe map as the road below the platform at Nasim’s house anin front of house of Parma Pandit. Therefore the place ofincident is not doubtful.”

89. In view of the clear and categorical finding of the Trial Courtitself about the place of occurrence, we need not entertain any doubtabout the place of occurrence. This issue is answered accordingly.G

IV. Timings of lodging of the FIR and Discrepancies therein

90. Faced with the direct evidence of eyewitnesses cited by theprosecution, the defence mounted challenge to the veracity and thetruthfulness of the eyewitnesses. At the outset, they would submit thatHthe prosecution could not answer the severe improbabilities depending

upon the time taken by PW-1 to move from the scene of the offence tothe hospital and then to the police station. We will presently deal withthis issue.

91. The prosecution case is that the incident took place at around07.30 PM and lasted for about 8-10 minutes. Thereafter, PW-1 reachedthe hospital with all the deceased in the jonga by 07.50 PM. After reachingthe hospital, he got the dead bodies examined first and then himself. Hewas eventually examined at 8.30 PM. After his preliminary examination,Saraswati Sharan, PW-3, scribed the tehreer as narrated by PW-1 inthe hospital itself. It is after this that PW-1 left for the police station ataround 09:00 PM to lodge the FIR which came to be registered at 09.10PM.

92. Challenging the prosecution story, the learned counsel for theAppellants made four submissions (i) it was contended that the statementin the tehreer that PW-1 brought five dead bodies with him to the hospital,and thereafter he left for the police station at 9PM is in contradiction tothe police memo (Exb. Ka-18) sent by the hospital to the police stationat 9PM, which in turn mentions only four dead bodies and two injuredpersons (ii) it could not have been possible for PW-3 to write such along tehreer and that too without any mistake in span of 15-20 minutesbefore PW-1 proceeded to the police station (iii) it was also urged that,there were certain omissions made in the FIR which was copied fromthe tehreer and hence, there were material discrepancies in both thedocuments (iv) finally, according to PW-1’s Bed Head Ticket receivedfrom the hospital, the discharge timing is mentioned to be 9 AM on27.01.1997 on the next day and therefore he could not have lodged theFIR at 09.10 PM on 26.01.1997. We will now deal with each of thesesubmissions.

93. Firstly, it can be observed from the evidence of the doctor,PW-8 that he examined the dead bodies and the two injured namely,PW-1 and Hardayal and prepared police memo to that effect. Thesame was sent to the police station by 9 PM. The evidence of PW-8 isextracted below:

“All these injuries have possible to come at 7 .30 PM of26.1.97. On that day I had sent Police Memo to the Inspectorin-charge of P.S. Kotwali for information. I had sent this memoat 9 PM. I had prepared this in my handwriting and signatureand it was mentioned that dead bodies of five persons have

1078SUPREME COURT REPORTS

Abeen brought in this hospitaland two injured have also come,whose names are Rajiv Shukla S/o Sh. Bhishm Prasad Shuklaand name of other is Hardyal Verma S/ o Sh. Mahadev Prasad.Original of it was sent to the Police, which is Ex. 7 6A / 7 onthe case file, exhibited as Ex.A-18"

B94. The above-referred evidence, when contrasted with Exb. Ka-18 (which is in Hindi) does not give rise to any contradiction for thefollowing reason. In the first paragraph of Exb. Ka-18 there is mentionof four dead bodies and two injured. The second paragraph mentionsone more dead body brought at 9 PM.

C95. Further, as per the evidence of PW-1, he has taken all thedeceased to the hospital together. He has also stated that from the hospitalhe did not take the jonga to the police station to lodge the FIR, instead,he went by autorickshaw. This was because one dead body was still inthe jonga and was surrounded by female members of the family. It wasbrought inside the hospital around the time he was about to leave for theDpolice station. The relevant portion of PW-1’s testimony is extractedherein below:

“250. I had gone to the Kotwali by rickshaw, reason beingthat few ladies had come from home. dead body was insidethe Jonga.E

251. The ladies had surrounded the car and the kotwali wasat short distance only. The ladies of my own family also hadcome (illegible) ladies from colony and Pandey jee’s familyalso had come when. I had gone to lodge report.”

F96. It is thus clear that there were five bodies and PW-1 broughtthem to the hospital in the jonga after the incident. The conclusion of theTrial Court is therefore erroneous and is not based on the evidence onrecord. The High Court is fully justified in reversing this finding as it isnot merely an alternative view but correction of an error which issubstantial and compelling.G

97. Secondly, we have seen the tehreer, it is short document.The conclusion of the Trial Court that the tehreer could not have beenwritten in less than 30 minutes and therefore the FIR could not havebeen filed at 9.10 PM is speculative and based on an imaginative arithmeticcalculation. There was no basis for the Trial Court to assume that thisHdocument could not have been written in 15-20 minutes, particularly in

view of the evidence of PW-3 who is stated to be an experienced scribe.In this very context, the further conclusion of the Trial Court that thedocument could not have been written without any mistakes or cuttingsis yet again speculative and without any basis.

98. Thirdly, it was argued that Constable Mahesh Singh, PW-9who prepared the FIR by copying the contents of the tehreer madecertain omissions like the word ‘tatha’ were replaced by ‘aur’ and theword ‘anya’ was written out of alignment. Also, the sentence ‘tathamere per me goliya lagi’ was omitted. During the examination-in-chiefof this witness, he mentioned that he was under pressure to completethe FIR formalities and the investigating officer was hurrying him tohand over the report. This explanation was accepted by the High Courtas such omissions cannot be held to be fatal to the case of the prosecution.

The Trial Court committed serious error in discrediting the versionof PW-1 about the occurrence of the event on the basis of such minorand inconsequential omissions. It was therefore necessary for the HighCourt to interfere with the glaring mistakes committed by the Trial Court.This is good and sufficient ground to interfere.

99. Finally, we are in agreement with the observation made bythe High Court with regard to the discharge timing mentioned on theBed Head Ticket, as this is natural conclusion to be drawn based onthe evidence available on record. It is, therefore, logical to conclude thatPW-1 would have gone to the police station to lodge the FIR and returnedto the hospital for further treatment.

100. The variations indicated in the tehreer and the FIR, as wellas the argument of improbability based on minute-by-minute constructby the learned counsels for the Appellants, can under no circumstancebecome fatal to the acceptance of the tehreer and the FIR. This Court,while noting the defects and variations in the investigation observed inRammi Alia Rameshwar v. State of M.P.[31]:

“24. When an eyewitness is examined at length it is quitepossible for him to make some discrepancies. No true witnesscan possibly escape from making some discrepant details.Perhaps an untrue witness who is well tutored cansuccessfully make his testimony totally non- discrepant. Butcourts should bear in mind that it is only when discrepancies

Ain the evidence of witness are so incompatible with thecredibility of his version that the court is justified in jettisoninghis evidence. But too serious view to be adopted on merevariations falling in the narration of an incident (either asbetween the evidence of two witnesses or as between twostatements of the same witness) is an unrealistic approach forBjudicial scrutiny.

25. It is common practice in trial courts to make outcontradictions from the previous statement of witness forconfronting him during cross-examination. Merely becausethere is inconsistency in evidence it is not sufficient to impairCthe credit of the witness.No doubt Section 155 of the EvidenceAct provides scope for impeaching the credit of witness byproof of an inconsistent former statement. But reading ofthe section would indicate that all inconsistent statements arenot sufficient to impeach the credit of the witness….

26. former statement though seemingly inconsistent withthe evidence need not necessarily be sufficient to amount tocontradiction. Only such of the inconsistent statement whichis liable to be “contradicted” would affect the credit of thewitness…..”

E101. The Trial Court has taken super technical approach indoubting the timing of lodging of the FIR for arriving at an erroneousconclusion the FIR and the tehreer are ante-timed. In thesecircumstances, there are compelling and substantial reasons for the HighCourt to interfere with the findings and conclusions of the Trial Court.

FV. Presence of PW-1 at the place of incidence

102. Yet another substantive argument advanced on behalf of theAppellants is that the presence of PW-1 at the scene of the offence isdoubtful. Therefore, his testimony must be rejected on the ground thathe is not an eye-witness at all. To make this point good, the learnedcounsels advanced four-fold submission, which is also the reasoning ofGthe Trial Court. We will refer to each of the submissions and deal withthem.

A. Bullet marks on the jonga

103. Based on the statement of PW-1 in the FIR that the accusedHparty fired at them ‘indiscriminately’, it is argued that this statement

cannot be believed as there were no multiple bullet holes on the jonga.In fact, the jonga only has one bullet hole on the left side of thewindscreen.

104. proper reading of the evidence demonstrates the following.The Head Constable, M.T., Malkhan Singh, PW-4, conducted the technicalexamination of the vehicle and prepared report exhibited as Ex-A2.Though Exb. A-2 is in Hindi, and the content of it is available in thetestimony of PW-4, which we can consider and understand the correctfact situation. PW-4 states in the report that the jonga had hole in thewindscreen window and multiple holes in the back side of the driver’sseat. He also stated that there were holes in the upper body of the backtyre of the left side of the jonga and on both sides of the window. Thedriver-side mirror was also broken.

105. This description matches the seizure memo of the jongaexhibited as Ka-29, which was prepared when the jonga was seized.The relevant part of PW- 4’s testimony is as under:

“….There was hole in the body towards back in left side.Condition of steering was ok. Condition of break was ok.Condition of Back Pedal, Electric (Light) was fine.Transmission was fine. Suspension was fine. Tyres were inrunning condition. There was hole in the front mirror (windscreen) window and right side and there were holes in theback seat of right side (driver seat). Driver mirror was alsobroken…..

xxxx

9. Holes were found in the side doors of both side windows.Holes were not found in the back curtain. Holes of curtains,except one or two, remaining holes ‘ are inside the fold ofcurtain.That which is one or half hole has not gone whilefolding the curtains from many places.”

106. We have carefully perused the seizure memo of the jongawhich clearly describes “kai jagah par goliyon ke nishan hai”,meaning thereby that there are many bullet marks found on the jonga.Further, the inspection report prepared by PW-4 on 25.02.2002 alsomentions about the existence of multiple bullet marks on the jonga. Thisis also the version of PW-1.

A107. Even the investigating officer, PW-12 who prepared theseizure memo of the jonga, found 12 blank cartridges on the spot alongwith samples of the broken front glass of the jonga.

108. It is in the context of the above-referred evidence that weneed to look at the testimony of PW-1 about which the Appellants haveBargued as if he supports their case. The following extraction from histestimony makes it clear that this submission has no ground to stand.

“…I don’t remember the number of hole, I had seen at thattime. I had seen only one hole in the glass (wind shield). I didnot notice the hole on other parts of the body of the vehicle.CIt is incorrect to suggest that there might not been any othergun shot hole in the vehicle except one on the glass (windshield).”

109. On an overall examination of the testimonies and thedocumentary evidence on record, it is evident that the jonga had multipleDbullet holes on different parts. The contention that only one bullet holewas found on the windscreen is to be rejected, and we have no hesitationin holding that the conclusion drawn by the Trial Court that there wasno ‘indiscriminate’ firing is based on the misreading of the evidence.We are also of the opinion that this is substantial and compellingreason for the High Court to interfere with the judgment of the TrialECourt.B. Position of PW-1 and the injuries sustained by him and thedeceased at the time of the incident

110. The Appellants argued that the injuries on PW-1 and theFdeceased persons do not match the position they were in when the firingoccurred. We will answer this with reference to the first as well as thesecond incident.

111. At the first incident, from the testimony of PW-1 as well asthe site plan drawn by PW-12, PW-1 was initially standing in front of theGjonga when he stopped to speak to the deceased Rakesh Shukla. Whileexplaining that the site plan does not accurately describe Lallan’s andhis position, he categorically states that he moved to the right side (non-driver side) of the jonga when it was facing east to speak to the deceasedRakesh as there were people on the driver’s side. We will quote this inhis own words as this is of some importance:H

“….The Jonga had been stopped/parked in the mid of theroad. I was in front of the Jonga only, when it was stoppedthere. I do not recall exactly if I was on the right side (Patari)of the road. At that time, the Jonga was facing east. The eastfalls in the direction of my home. I moved to the Jonga atnon-driver side to speak to him. I had gone to my right side.There were few people standing in the side of driver.Myservant· (domestic help) Lallan had come to me

xxx

I had told the I.O. the fact that the Jonga was standing exactlyin the mid of the road but not that we were standing on theright side of the road. I do not know the reason why the LO.has shown (demarcated) our location in the right side of the”road but not in front of the Jonga…

112. It is at this point of time that the firing started, that is whenPW-1 was on the non-driver side. If this is considered true, then PW-1’stestimony that he shielded himself behind the jonga falls into place andhe is certainly not in the direct line of firing. We have no hesitation inrejecting the contention of the Appellants that PW-1 is in the direct lineof firing. It is not in dispute that PW- 1 is on the non-driver side of thevehicle and when the firing began from Naseem’s gun shop which is inthe south side of the jonga. In fact, this submission is speculative as thecomplainant has not even indicated in the FIR that he was on the driver-side of the jonga during the first instance. PW-1’s testimony is clearly inconsonance with the statement in the FIR. It is surprising that Trial Courthas rejected the very presence of PW-1 on the scene of the offence onthe basis of hypothetical argument, and the High Court was justified ininterfering with such finding.

113. In so far as the second incident is concerned, Appellantscontend that, when deceased Rajesh stepped out of the jonga after turningthe same towards the hospital to fire back at the Appellants, he was hitby several bullets, PW-1 could not have escaped with just one bulletshot. This, according to the Appellants, is so improbable that his presenceis falsified. In fact, the Trial Court accepted this submission. We haveexamined this submission in detail and have found it to be incorrect forthe following reasons.

DEF

A114. After the first incident, the jonga was turned to proceedtowards the hospital. On reaching the second spot near Parma Pandit’shouse, when the assailants again attacked, Rajesh got down from thejonga with his rifle in an attempt to retaliate. At that point, he sufferedmultiple bullet injuries. Consistent with his stand, PW-1 was behind thejonga on the right side, which is the driver’s side, and that is how heBcould take cover of the jonga, but he could not escape bullet injury onhis leg. So far as deceased Rajesh Shukla is concerned, he proactivelygot out of the jonga and took position to fire at the assailants. There isa clear distinction between the position taken by Rajesh on the one handand PW-1 on the other. There is, therefore, sufficient explanation forCPW-1 receiving not as many bullets injuries as the deceased Rajesh. Wemay also add that the submission made by the Appellants is not based onany evidence but proceeds on theory of probability. The High Courthas correctly rejected this theorization, which has unfortunately impressedthe Trial Court. This is without any basis. It was, therefore compellingfor the High Court to interfere and correct the glaring mistake of theDTrial Court.

115. In situation like this, when there is group attack whichlasted for only few minutes, it is unreasonable to expect an eye-witnessto recount each fact in mathematical detail. recent decision of thisCourt recounted chaotic situation like this by reviewing the existingEcase laws on the subject. In Abdul Sayeed v. State of MadhyaPradesh[32], this Court held as under:

“27. In the instant case, very large number of assailantsattacked Chand Khan and Shabir (the deceased), causedinjuries with deadly weapons to them. The incident stoodFconcluded within few minutes. Thus, it is natural that the exactversion of the incident revealing every minute detail i.e.meticulous exactitude of individual acts cannot be given bythe eyewitnesses.

28. The question of the weight to be attached to the evidenceGof witness that was himself injured in the course of theoccurrence has been extensively discussed by this Court.Where witness to the occurrence has himself been injuredin the incident, the testimony of such witness is generally

considered to be very reliable, as he is witness that comeswith built-in guarantee of his presence at the scene of thecrime and is unlikely to spare his actual assailant(s) in orderto falsely implicate someone. “Convincing evidence is requiredto discredit an injured witness.”…..”

116. Reiterating the same principle about the evidence of an injuredwitness, this Court in Rajendra Alia Rajappa & Ors v. State ofKarnataka[33], held as under:

“18. This Court in Narayan Chetanram Chaudhary v. State ofMaharashtra [Narayan Chetanram Chaudhary v. State ofMaharashtra, (2000) 8 SCC 457 : 2000 SCC (Cri) 1546] ,has considered the minor contradictions in the testimony, whileappreciating the evidence in criminal trial. It is held in thesaid judgment that only contradictions in material particularsand not minor contradictions can be ground to discredit the”testimony of the witnesses….

117. In light of this, the argument of improbability that whiledeceased Rajesh Shukla received 16 bullet injuries, Rakesh and Guddareceived fatal bullet injuries and PW-1 received just one bullet injury,must be rejected.

118. Yet another argument raised by the Appellants is that, asper the injury report of PW-1, he received one bullet injury on theupper portion of his left thigh. However, as per the testimony of PW-9,the bandage was not on PW-1’s thigh but on his calf. This statement ofPW-9 must be understood in the context of the statement that PW-1sustained bullet injury. This is an important part of the evidence. Themathematical analysis of PW-9’s evidence is unnecessary. The injuryreport of PW-1 is in corroboration with the evidence of the doctor,examined as PW-8. Further, even the X-Ray supports the view thatPW-1 received an injury on his left thigh. All these evidences, whichare contemporaneous and credible, cannot be discarded on the basisof the testimony of PW-9 given four years after the incident. The oraland documentary evidence consistently points towards an injury onthe leg of PW-1. That one of the witnesses refers to the injury beingon the calf cannot cast doubt on the presence of PW-1 at the scene ofthe offence. The Trial Court committed serious error in relying on

Athe evidence of PW-9 for discarding the entire evidence of PW-1.This finding was rightly set aside by the High Court.

C. X-Rays and Bed Head Ticket

119. PW-1 and PW-12, both depose that PW-1 went back to thehospital from the place of occurrence due to the pain of his injury. AfterBreaching the hospital, it was stated that PW-1 was advised an X-Ray forhis injuries by PW- 8, who did his preliminary examination. It has beenargued by the Appellants that the X-Ray done on PW-1 was forged forthree reasons (i) there was no entry for treatment of PW-1 in the medico-legal register or recommendation of X-Ray in the Bed Head Ticket (ii)Cthe time of X-Ray of PW-1 is 10 PM, however, the department stopsworking at 2 PM (iii) there was no money deposited by PW-1 andHardayal for their treatment.120. We will deal with these submissions by taking the lastargument first. The Medical Officer, PW-8 who treated PW-1 as wellDas Hardayal has deposed that after the preliminary treatment of thedeceased and the victims, police memo describing the deceased aswell as the injured victims was sent by him to the police station at 9 PM.It was also stated that the entry of treatment of the victims was made inthe accidental register instead of the medico legal register as thepolice did not accompany PW-1 and Hardayal. Therefore, no entry wasEmade in the medico legal register. Further, this witness also admittedthat in cases where entries are made in the accidental register, no fees ischarged from the patients. The statement of this witness is importantand it is extracted hereinbelow:

“…..Entry which is made in the medico legal register, whichFare sent by police for medical examination or any doctorhimself conducts the medical examination by writingapplication. We do so because no charges are levied of thematter referred by police and medical fees has to deposit inthe matter of giving application at his own. These injuriesGwould have come by some quarrel and from any other reasonor beatings etc., which relates to medical examination. Nocharge is deposited in case of accidental case, treatment hasto be given by us, hence we recorded further proceeding inthe accidental register. The report which I have given in respectof the injuries of those injured, they have been recorded inH

accidental register.When police has not come with the injuredand injured has come, neither gives application nor depositsfees and has asid to do the examination then under compulsionwe write injuries in the accidental register after conductinghis examination. First we demand application from the injuredor says that to come with police when he does not giveapplication then we examined him in the accidental register.Injured come and write in medico legal case that how theinjuries have come, then we examined him…..”

121. It has also been admitted by the PW-7, the Radiologist, underwhose supervision the X-Ray was done that the X-Ray was conductedon the reference of the Emergency Medical Officer, PW-8 who sent areference slip for the same. In view of the statements of the doctor PW-8 as well as the Radiologist, PW-7, there is clarity and certainty aboutthe entry in the accidental register and as such, there is no moneydeposited by PW-1 and Hardayal. There is absolutely no justification forthe Trial Court to conclude that these documents are forged. Seen in thecontext of various contemporaneous documents, supporting the injurieson the body of PW-1, it is difficult to accept the submission made by theAppellants that the X-Ray is forged document or that it is ante-dated.

122. Coming to the submission that the X-Ray of PW-1 andHardayal could not have been taken at 10 PM when the departmentcloses at 2 PM, we have examined the evidence of PW-7, who hascategorically stated that the X-Ray was taken under his supervision.The relevant portion of his statement is as under:

“On dated 27 .1. 97 also I was posted at the post ofRadiologist in Dist. Hospital, Hamirpur. On that day under-my supervision the XRay of the right thigh, along with leftthigh and left knee of injured Rajiv Shukla S/o Sh. BhishmShukla R/o Ramedi P.S. Kotwali Hamirpur aged about 31years was conducted who was referred by E.M.O. DistrictHospital, Hamirpur for X-ray. He himself had come from theemergency ward. In the X-ray one small round metal non-transparent (torn paper) was seen in the right thigh, left thighand left knee alongwith leg. Report was prepared by me onthe basis of X-ray plate, which bears the identification markand thumb impression of the injured. This Rajiv Shukla ispresent in the Court, the report exhibited as Ex.A-8. Three X-

1088SUPREME COURT REPORTS

ARay plates exhibited as Ex.44 to 46, which bears thumb”impression of the injured and is attested by me.

123. This witness was cross-examined at length but he explainedthat despite the department normally closing at 2 PM, he insisted thatthe X-Ray of PW-1 and Hardayal was actually taken at 10 PM onB26.01.1997. The defence tried to discredit this witness by suggestingthat he had some issues with Ashok Kumar Chandel which he denied.We have no reason to disbelieve this witness. Moreover, it is notunbelievable that hospital could make special provision for X-Ray intimes of immediate medical aid. Instead of referring to and consideringthe material evidence on record relating to X-Ray and the bed headCticket, the Trial Court arrived at its own conclusion based on probabilities.The High Court was therefore justified in setting aside the judgment ofthe Trial Court.

D. Electricity failure at the time of the incident

D124. The last attempt to persuade the court to discard the evidenceof PW-1 is based on an argument that during the period commencingfrom 07.30 PM to 08.45 PM, there was no electricity at the scene of theoffence. To make good this argument, the defence examined DW-1,who was working as an Engineer at the Electricity Distribution Division.This witness deposed that he received information at 07.50 PM regardingEthe breakdown of the electricity connection at Akil Tiraha; as result,the electricity supply discontinued in areas from Kali Chauraha to DeviDas, which included Subhash Market (place of the occurrence) andSuphiganj. It was informed that the connection broke down 15-20 minsbefore 07.50 PM, i.e., around 7.30 PM. He stated that the connectionFwas only restored at 08.45 PM after repairing the broken wires. On thisbasis, it was urged that it would have been difficult for PW-1 to identifythe Appellants and also for other witnesses to identify persons aroundthe market.

125. The High Court examined this issue in detail. It was observedGthat DW-1 has admitted to the fact that although there was an electricitycut between 07.30 PM to 08.45 PM, he was not sure if the place ofoccurrence, i.e., Subhash Market was affected by the same. He wenton to state that there were total of three phases connected to Akil Tiraha,and out of those three phases, two continued to remain operational despitethe breakdown. DW-1, in his cross-examination, has affirmed that:H

“…..I am unable to say about how many connection of theelectricity was connected there at Subahs Bazara from AkilTiraha with that phase that is broken and the electricity supplywas interrupted. There in total number of three phases butafter breaking the wire, two phases of electrification werecontinued. Akil Tiraha is in very far distance from SubhashBazaar. I am not able to say about electricity connectionsfrom Akhil Tiraha to Subhash Bazar or whether was connectedthere or not….”

126. Having examined the matter in detail, the High Court cameto the correct conclusion that electricity shutdowns are quite commonand the public is not solely dependent on street lights. In place likeSubhash Market, people must keep their own arrangements likegenerators in cases of electricity cuts. Moreover, DW-1 clearly admittedthat, “…but after breaking the wire, two phases of electrificationwere continued. Akil Tiraha is in very far distance from SubhashBazaar. I am not able to say about electricity connections from AkhilTiraha to Subhash Bazar or whether was connected there or not….”.127. As against the reasoning and the conclusions drawn by theHigh Court, the Trial Court has simply referred to the evidence of DW-1 stating that there was no electricity and immediately concluded thatthe testimonies of PW-1 and PW-2 are not trustworthy. The Trial Courthas not examined the evidence of DW-1 in detail and has, in fact left outthe crucial portion of the evidence. The High Court was, therefore,completely justified in reversing this finding drawn by the Trial Court.

128. In conclusion, with respect to the issue relating to the presenceof PW-1 as doubted by the Trial Court, we have examined the matter indetail. The evidence about the existence of multiple bullet holes on thejonga establishes ‘indiscriminate’ firing, as stated by PW-1. We havealso seen that the injuries on the body of PW-1 and that of the deceasedpersons co-relate with the testimony establishing PW-1’s presence atthe scene of occurrence. Further, the injury on PW-1 at the scene of theoffence is proved on the basis of the medical evidence supported bytestimonies of the doctors. Furthermore, we have also seen that thedefence could not probablize their theory that there was no electricity atthe scene of offence in view of the equivocal evidence of their ownwitness DW-1.

A129. For all these reasons we are of the opinion that the HighCourt was correct in its conclusion that the prosecution has successfullyestablished the presence of PW-1 at the scene of the offence. We arealso convinced that the High Court is justified in reversing the order ofacquittal for the glaring mistakes and distorted conclusions that theTrial Court has drawn.B

VI. Presence of PW-2 at the place of incidence

130. Learned Counsel for the Appellants submitted that theevidence of PW-2 must be discarded for the following reasons; (i) hecannot be accepted as an eye-witness as the injuries on his body are notCof firearm (ii) his version is in contradiction to PW-1 who instructedPW-2 to check on the children and that he is unaware as to who took thechildren home (iii) the conduct and behaviour of PW-2 are unnaturalbecause when his own brother Sri Kant Pandey received fatal injuries,he chose not to go to the hospital.

131. The way to answer this first issue is to refer to the medicalevidence. While the X-Ray report described the injury on PW-2 as “onesmall metallic radio opaque shadow is seen in left leg” corroboratingthe same, Dr. SK Gupta, PW-7 has, in his own words, stated:

“…Shadow of small non-transparent radio thing of metalEwas seen in it. I had prepared the report in my handwritingand signature on the basis of X-ray plates...”

132. The doctor’s evidence as well as the X-Ray report standduly corroborated and the Appellants have brought nothing on record tofalsify the same. In light of the report and the testimony, the injuryFsustained by PW-2 has to be believed.

133. With respect to the second issue, there is no confusion orcontradiction about the shifting of the children. We have gone throughthe evidence of PW-2 and he has clearly explained that upon hearinggunshots he rushed to the spot along with Rajesh Shukla and othersand saw PW-1 and Lallan moving the children out of the jonga. In hisGcross-examination, he stated that he was unaware as to who actuallytook the children to the residence. It is after the second incident whenhe also received an injury that PW-1 asked him to go home and checkon the children, Chandan and Vipul. It can be seen from his testimonythat:H

“18. When I reached there, Chandan was outside the Jongaand Vipul was being driving out. At that time, in my firstglimpse, Chandan was standing at left side of Jonga. Rajeevwas standing outside the vehicle. He was driving Vipul fromthe vehicle. He pulled out Vipul immediately. I cannot tell thename of the person, with whom Chandan and Vipul were sendthe home. Then voluntarily told that they were send home along-with some known person of the mohalla. I cannot tell thatthey were taken to the house in some vehicle or on foot.

xxx

22. I was there, when Rajeev Shukla took Rakesh, Gudda,Sri Kant, Ved, Rajesh to the hospital by putting them in Jonga.I cannot tell whether there was someone else in the vehicle ornot, as I had come back to the house. The moment, RajeevShukla sit in the Jonga, I moved to the house as per hisinstruction.

xxx

29. Rajeev told me to go to the house, I am going to thehospital. I do not remember whether I had told this fact to the‘Daroga’ or not”

134. Coming to the third issue, the evidence of PW-2 cannot bebrushed aside under the assumption that he did not accompany his brotherto the hospital. It is not as if he left his brother on the road and wenthome to check on Chandan and Vipul. He saw his own person, PW-1, aclose family associate taking his brother along with PW-1’s own brothersto the hospital. In such situations, it is natural for people to shareresponsibilities. PW-2 come forward to take care of and protect children.There is nothing unnatural about it. While PW-1 was taking PW-2’sbrother to the hospital it is natural that PW-2 would take care of theother emergencies of checking on the children who also received minorinjuries. In any event, there is no standard for expecting particularbehavior or reaction of victim. This Court in Rana Pratap and ors v.State of Haryana[34], held:

“6. Yet another reason given by the learned Sessions Judgeto doubt the presence of the witnesses was that their conduct

Ain not going to the rescue of the deceased when he was in theclutches of the assailants was unnatural. We must say thatthe comment is most unreal. Every person who witnesses amurder reacts in his own way. Some are stunned, becomespeechless and stand rooted to the spot. Some become hystericand start wailing. Some start shouting for help. Others runBaway to keep themselves as far removed from the spot aspossible. Yet others rush to the rescue of the victim, even goingto the extent of counter-attacking the assailants. Every onereacts in his own special way. There is no set rule of naturalreaction. To discard the evidence of witness on the groundCthat he did not react in any particular manner is to appreciateevidence in wholly unrealistic and unimaginative way.”[35]

135. For the reasons stated above, there is absolutely no reasonfor rejecting the evidence of PW-2 and doubting his presence at thescene of the offence. The Trial Court was not justified in disbelievingDthe evidence of PW-2.

VII. Discrepancies in the FIR and the Fax sent by theSuperintendent of Police

136. The learned counsels have referred to fax message said tohave been sent from the office of the Superintendent of Police (SP) toEthe superiors informing them about the occurrence of this very incident.The contents of this fax are used by the defence to contradict the veryhappening of the incident in the manner described by the prosecution.They also contradict the time of the incident, apart from certain allegedrecoveries.F137. This

137. This fax message is said to have emanated from the officeof the Superintendent of Police. Except for this fax, we have not beeninformed of any role being played by the SP during the investigation. It isthrough the evidence of DW-3, examined by the defence on 27.06.2002that parallel story advanced by the defence comes into play.

G138. The circumstances in which the fax never formed part ofthe investigation and that it emanated only with its introduction by DW-

35 This principle has been reiterated in number of decisions of this court in Leela Ram(Dead) through Duli Chand v. State of Haryana and anr (1999) 9 SCC 525; State ofU.P. v. Devendra Singh (2004) 10 SCC 616; Kathi Bharat Vajsur and anr v. State ofHGujarat (2012) 5 SCC 724.

3 examined on 27.06.2002, causes much suspicion about the fax as wellas its contents. There is nothing to corroborate the contents of the fax.The prosecution has in fact established the contents of the FIR withclinching evidence, both oral and documentary. The entire evidence ofthe defence was to discredit the eyewitnesses and to show contradictionsin their statements on the basis of contemporaneous documentaryevidence. We have already considered those submissions and haverejected the same by upholding the conclusions drawn by the High Court.The circumstance in which the fax originated has not been establishedto the satisfaction of the Court. The evidence of DW-3 does not inspireconfidence as well.

139. In conclusion, we reject the fax as well as the submissionsbased on the contents of the fax for the reason that firstly, the timings asindicated in the FIR stand confirmed by other oral and documentaryevidence as discussed earlier. There is nothing to suggest about thehappening of the event as mentioned in the fax. Secondly, as theprosecution has established the occurrence of the incident as describedin the FIR on the basis of bullets on the vehicle, empty cartridges, bloodrecovery from the place of occurrence coupled with proof of injuriesbased on medical evidence we have to accept the story in the FIR andreject the one propagated in the fax involving Titu leading the attack onthe victims. Even the so-called recovery of 0.315-bore rifle referred toin the fax must be rejected and we will explain this aspect in more detailwhile discussing the next argument relating to the recoveries and thearrest.

140. Fax is not part of the investigation. Even assuming that thereis some defect in the investigation on this count, it will have no bearingon the prosecution case. This Court has observed in number of cases,that defective investigation by the investigating authorities by itself doesvitiate the case of the prosecution when there are credible eye-witnesstestimonies as well as other compelling pieces of evidence. In KarnelSingh v. State of M.P.[36]this Court held that:

“5.….In cases of defective investigation the court has to becircumspect in evaluating the evidence but it would not beright in acquitting an accused person solely on account ofthe defect;to do so would tantamount to playing into the hands

[2022] 12 S.C.R.

Aof the investigating officer if the investigation is designedlydefective…..”

141. Similarly in the case of C. Muniappan and Others v. Stateof Tamil Nadu[37]this Court held:

“55. There may be highly defective investigation in case.BHowever, it is to be examined as to whether there is any lapseby the IO and whether due to such lapse any benefit shouldbe given to the accused. The law on this issue is well settledthat the defect in the investigation by itself cannot be groundfor acquittal. If primacy is given to such designed or negligentCinvestigations or to the omissions or lapses by perfunctoryinvestigation, the faith and confidence of the people in thecriminal justice administration would be eroded.Where therehas been negligence on the part of the investigating agencyor omissions, etc. which resulted in defective investigation,there is legal obligation on the part of the court to examineDthe prosecution evidence dehors such lapses, carefully, to findout whether the said evidence is reliable or not and to whatextent it is reliable and as to whether such lapses affected theobject of finding out the truth. Therefore, the investigation isnot the solitary area for judicial scrutiny in criminal”Etrial…..

VIII. Unlawful Assembly and Common Object

142. Mr. Siddharth Dave, Senior Counsel, appearing for Ashutosh,Appellant No. 2 made three-fold submissions. He argued that theprosecution has failed to prove that there was an unlawful assembly andFthat Appellant No.2 was one of the persons constituting the unlawfulassembly. He submitted that mere presence or association with othermembers alone is not sufficient to hold everyone criminally liable asvicarious or constructive liability can be fastened only if it is proved thatan unlawful assembly is physically formed.

G143. The submission proceeds on premise that prior formationof an unlawful assembly with common object is must and shouldhave been condition precedent for roping the accused within the foldof Section 149, IPC. Mr. Dave submitted that the prosecution has not

H37 (2010) 9 SCC 567.

explained that there was common object on the basis of which theaccused came to the spot and fired at the jonga in front of Naseem’sgun shop. An extension of this very argument is that the prosecutionfailed to prove how the unlawful assembly was disbanded after firing infront of Naseem’s gun shop and again reassembled as an unlawfulassembly before Parma Pandit’s house. These submissions pale intoinsignificance if we appreciate the true and correct effect of an unlawfulassembly as enunciated by this Court. We will refer to some of theleading judgments on the point. In the case of Amzad Ali Alias AmzadKha and ors v. State of Assam[38], this Court held:

“5. ....It is incorrect to claim that prior formation of anunlawful assembly with common object is must and shouldhave been found as condition precedent before roping theaccused within the fold of Section 149 IPC. No doubt theoffence committed must be shown to be immediately connectedwith the common object, but whether they had the commonobject to cause the murder in given case would depend andcan rightly be decided on the basis of any proved rivalrybetween two factions, the nature of weapons used, the mannerof attack as well as all surrounding circumstances.Commonobject has been always considered to be different fromcommon intention and that it does not require prior concertand common meeting of minds before the attack. Commonobject could develop eo instanti and being question of factit can always be inferred and deduced from the facts andcircumstances of case projected and proved in givencase…..”

144. Also in Bhargavan and ors v. State of Kerala[39], it washeld by this Court. that:

“14. “Common object” is different from “common intention”as it does not require prior concert and common meetingof minds before the attack. It is enough if each has the sameobject in view and their number is five or more and that theyact as an assembly to achieve that object. The “commonobject” of an assembly is to be ascertained from the acts and

Alanguage of the members composing it, and from aconsideration of all the surrounding circumstances.It may begathered from the course of conduct adopted by the membersof the assembly. What the common object of the unlawfulassembly is at particular stage of the incident is essentiallya question of fact to be determined, keeping in view the natureBof the assembly, the arms carried by the members, and thebehaviour of the members at or near the scene of the incident.It is not necessary under law that in all cases of unlawfulassembly, with an unlawful common object, the same must betranslated into action or be successful. Under the ExplanationCto Section 141, an assembly which was not unlawful when itassembled, may subsequently become unlawful. It is notnecessary that the intention or the purpose, which is necessaryto render an assembly an unlawful one comes into existenceat the outset. The time of forming an unlawful intent is notmaterial. An assembly which, at its commencement or evenDfor some time thereafter, is lawful, may subsequently becomeunlawful. In other words, it can develop during the course of”incident at the spot eo instanti.

145. Further, the PW-1 is an eye-witness to the first incident beforeNaseem’s gun shop. The advent of Raghuvir Singh’s gang in vehicle isEimmediately after the firing commenced from and in front of Naseem’sgun shop. PW-1 clearly mentioned about Raguvir Singh, Ashutosh Singh,Pradeep Singh, Uttam Singh and Bhan Singh wielding weapons and firingat the jonga. The second incident is vouchsafed by PW-1 as well asPW-2, who have reached Parma Pandit’s house as the deceased partyFalighted the children Vipul and Chandan and turned the jonga towardsthe hospital. Having reached Parma Pandit’s house, these accused againattacked the jonga and fired indiscriminately. It is therefore futile tosuggest that there was no common object and that the assembly was notunlawful. In fact, PW-1 spoke of the exhortation by Ashok Kumar

Chandel that “no one from the Shukla Family should escape alive”Gand thereafter all other accused including the Raghuvir group startedfiring. This is yet another factor which establishes the existence of acommon object. The argument that the prosecution has not proved whenthe unlawful assembly after the first incident was disbanded and when itreassembled again as an unlawful assembly in front of Parma Pandit’sHhouse is also to be rejected for the reason that the distance between the

two places is merely 50-75 meters, and all this happened within matterof minutes. The submissions were advanced as if there is requirementto prove common intention, which is not requirement for an unlawfulassembly under Section 149 IPC. It is apt to refer to the decision of thisCourt in Bhupendra Singh and ors v. State of U.P.[40], at this stage:

“14…..Where common object of an unlawful assembly is notproved, the accused persons cannot be convicted with thehelp of Section 149. The crucial question to determine iswhether the assembly consisted of five or more persons andwhether the said persons entertained one or more of thecommon objects, as specified in Section 141. It cannot belaid down as general proposition of law that unless an overtact is proved against person, who is alleged to be memberof an unlawful assembly, it cannot be said that he is memberof an assembly. The only thing required is that he should haveunderstood that the assembly was unlawful and was likely tocommit any of the acts which fall within the purview of Section141. The word ‘object’ means the purpose or design and, inorder to make it ‘common’, it must be shared by all. In otherwords, the object should be common to the persons, whocompose the assembly, that is to say, they should all be awareof it and concur in it. common object may be formed byexpress agreement after mutual consultation, but that is byno means necessary. It may be formed at any stage by all or afew members of the assembly and the other members may justjoin and adopt it. Once formed, it need not continue to be thesame. It may be modified or altered or abandoned at any stage.

The expression ‘in prosecution of common object’ as appearingin Section 149 has to be strictly construed as equivalent to‘in order to attain the common object’. It must be immediatelyconnected with the common object by virtue of the nature ofthe object. There must be community of object and the objectmay exist only up to particular stage, and not thereafter.Members of an unlawful assembly may have community ofobject up to certain point beyond which they may differ intheir objects and the knowledge, possessed by each memberof what is likely to be committed in prosecution of their

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Acommon object which may vary not only according to theinformation at his command, but also according to the extentto which he shares the community of object, and as aconsequence of this the effect of Section 149 IPC may bedifferent on different members of the same assembly.”

B146. With respect to the submission that the prosecution failed toestablish any vicarious liability, it is enough to refer to the decision of thisCourt in Saddik Alias Lalo Gulam Hussein Shaikh and ors v. Stateof Gujarat[41], where the Court expressly rejected this argument andheld:

C“18. Further, once it is established that the unlawful assemblyhad common object, it is not necessary that all the personsforming the unlawful assembly must be shown to havecommitted some overt act. For the purpose of incurringvicarious liability under the provision, the liability of othermembers of the unlawful assembly for the offence committedDduring the continuance of the occurrence, rests upon the factwhether the other members knew beforehand that the offenceactually committed was likely to be committed in prosecutionof the common object.”

147. While concluding, we may note that there is no specific findingEon unlawful assembly and the common object under Section 149 by theTrial Court. The High Court has discussed this issue and has also reliedon the decision of this Court while dealing with the submission. Havingconsidered the matter in detail, we are of the opinion that the High Courthas examined the issue from all perspectives and in great detail beforeFreversing the decision of the Trial Court. The decision of the High Courtis, therefore unexceptionable.IX. Recoveries of Weapons, Railway Manarth Card and Arrestof Sahab SinghA. Recovery of Railway Manarth Card belonging to AshokGChandel

148. The Appellants made two-fold submissions with respect tothe recovery of the Railway Manarth Card from the place of the incident.Firstly, the railway card had expired on 12.01.1994 and the present

H41 (2016) 10 SCC 663.

incident being of 1997, it was argued that under no circumstances woulda person be carrying an expired railway card. Secondly, it is submittedthat the recovery of the card from the place of the incident is doubtful asit was sealed and stamped separately from all other material objects thatwere recovered from the place of the incident. It is also submitted thatthe diary entry mentions all other material objects except the RailwayManarth card.

149. With respect to the first issue, the High Court’s view is correctas it is not unimaginable that accused Ashok Kumar Chandel carried anexpired card. There is nothing unusual or uncommon about carryingexpired cards, as people do it for some reason or another. TheInvestigating Officer, PW-12, found the Railway Manarth card at thescene of the offence. So far as the submission relating to the irregularityin the recovery and the marking of the Manarth card is concerned, weare of the opinion that there is no reason for the IO to plant the cardthere, as there is no past enmity between him and Ashok Kumar Chandel.Once the presence of PW-1 and PW-2, injured eye witnesses is accepted,then this argument will make no difference.

B. Recovery of Weapons and the Arrests

150. little factual background is necessary before noting theargument raised by the Appellants.

151. The Investigating Officer, PW-12, deposed that afterreceiving information from an informant that four accused were tryingto escape from Naseem’s gun shop, he, along with Constable AftabAli, PW-11 and other police officers, proceeded to the spot and arrestedthe four accused namely Naseem (A6), Bhan Singh (A10), ShyamSingh (A7) and Sahab Singh (A8). Upon the arrest, one 8x60 bore riflewas recovered from Sahab Singh (A8) along with ten brass cartridgesfrom his belt. PW-11, Constable Aftab Ali, deposed the same and alsomentioned that attempts were made to secure public witnesses.However, no one was ready due to the apprehension of danger. Healso stated that the recovery memo, Exb. Ka-24 was prepared, and acopy was given to Sahab Singh, who tore the same into pieces. In hisevidence, Dy. SP, Sukhram Sonkar, PW-14 stated that PW-12 had inhis statement before the CBCID stated that one rifle along with 18bullets, ten from the belt and eight from the butt cover of the rifle,were recovered from Sahab Singh (A8).

A152. It is in the above-referred background, the learned counselshave raised two contentions. Firstly, the recovery from Sahab Singhcontradicts the contents of the fax, which mentions the recovery of a0.315 bore rifle and not an 8x60-bore rifle. Secondly, it is also thecontention that the prosecution has not proved the recoveries at all.B153. We have already considered and rejected the story set up bythe defence on the basis of the fax message. In fact, the contents of thefax are referred to only to contradict the nature of the weapon recoveredfrom Sahab Singh; that is, while the recovery mentioned in the fax refersto the weapon as 0.315- bore rifle, the recovery memo, Exb. Ka-24mentions the weapon as an 8x60- bore rifle.C

154. It is important to note that the Trial Court accepted thissubmission and held it to be serious contradiction which the prosecutionfailed to answer. The High Court has correctly reversed the decision ofthe Trial Court as its conclusions are fallacious. There is no distinctionbetween 0.315 bore rifle and an 8x60-bore rifle except for the systemDof measurement, one being the British System and another being theContinental system. The conclusions of the High Court are as under:

“We find that confusion probably occurred in the mind of thetrial court that the 315 bore rifle is different rifle than 8x60bore rifle which is fallacious. In fact, 8mm rifle in continentalsystem would be called to be .315 bore rifle in British systemEbecause in British system, its measurement is in inches whilein continental system, its measurement is given in mm.,therefore, this finding of the trial court that no such recoverywas made was found proved from the accused, Sahab Singhis an erroneous finding on the basis of logic given.”F155. We are of the view that the High Court had substantial andcompelling ground to interfere with this glaring mistake and the distortedconclusions that the Trial Court has drawn. As the learned counsels forthe Appellants raised and argued this point all over again, we had toindependently verify the conclusion and the finding of the High Court.

G156. The treatise, W.H.B. Smith on Mauser Rifle and Pistols[42]provides detailed description of an 8x60 sporting rifle under the chapter

42 W.H.B. Smith, Mauser Rifles and Pistols (The Stackpole Company, Pennsylvania,United States of America, 4th edn, 1954, pg nos. 156, 157)Also see: 0.315" Sporting Rifle, available at: https://ddpdoo.gov.in/product/products/product-details/0-315-quot-sporting-rifle. The website of Directorate of OrdnanceH(Coordination and Services) where 0.315 bore rifle is also described as an 8mm rifle.

‘Mauser Sporting Rifles’. The relevant portion is extracted hereinunderfor ready reference:

“This design was made in Germany specifically for foreignmarkets. It was finished much better than those for homeconsumption. Various types of sights were provided and thisdesign was made in both single-trigger and double triggertypes.

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The usual barrel length of this type is 24 inches.

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The standard calibers of the 24-inch was as follows: 7x57mm(.276), 8x60 mm (.315), 9x57 mm (0.355) …”

157. With respect to the second submission, about the doubt caston the recoveries, we have the concurrent depositions of PW-10, PW-11 and PW-12 all of whom consistently speak about the recoveries ofthe rifle and the bullets. The relevant portion of their testimonies are asunder:

158. Head Constable, Munna Lal Mishra, PW-10, stated in hisevidence that:

“…On that day at 11.50 SHO Lalman Verma, SI R.S. Tiwari,SI Roshan Lal, Ct. 621 Kamlesh Kumar and Ct. 154 Aftab Alialong with Jeep and Driver Ram Kishan came at the policestation and produced four accused persons Naseem Ahmad,Sahab Singh, ·Man Singh, then said Man Singh, Shyam Singhin the police station. One sealed bundle of Rifle and one sealedbundle of cartridges and sample seal were also filed at thepolice station and filed one recovery memo of rifle andcartridge. On the basis of the Memo filed case FIR no.34/97u/ s 25 Arms Act registered against Sahab Singh and caseFIR No.35/97 u/ s 27 Arms Act registered against AshokChandel. The filed articles with sample seal kept in themalkhana….”

159. Constable Aftab Ali, PW-11 in his evidence stated that:

“…Four persons namely Sahab Singh, Naseem, Mansingh,Shyamsingh were about to go out from the door there that we

surrounded and caught them. When we asked the name-address then one told his name as Naseem, second told hisname Shyam Singh, third one told his name as Bhansinghand fourth one told his name as Sahab Singh. When the SHOtook the personal search of all four then one rifle and greencolour cartridge belt recovered from the possession of SahabSingh, which had 10 cartridges and nothing recovered fromany other. Ramsakal Tiwari wrote the Seizure memo at thespot on the dictation of Lalman Verma and read out the sameand our signatures were obtained and he also signed the same.Ramfal sealed the cartridges and belt separately. He madethe sample seal. No public person got ready to give statementdue to their well- being. Copy of memo given to Sahab Singh,who had torn and threw it….”

160. Investigating Officer, Lalman Verma, PW-12 in his evidencestated that:

“….While walking from the riverbank of Betwa when wereached before the back door of Naseem’s house then we sawthat four accused came out from the back door and on thesignal of the Informant we arrested all four accused personson dated 27.1. 97 at 6.30 PM. When we asked their name-Eaddress then first told his name as Naseem S/ o Hameed, othertold his name as Shyam Singh s / o Birbal, third told his nameas Bhan Singh s / o Man Singh and fourth one told his nameas Sahab Singh s/ o Dalgajan Singh. When personal searchof above three accused persons made as per rules then nothingrecovered from the possession of · ·the accused Naseem,FShyam Singh. But rifle N.P. (illegible) No.20260 gotrecovered from the possession of Sahab Singh R/ o KaloliJaar Bhag Lalpura Dist. Hamirpur and then said that 10 brasscartridges got recovered from the belt tied in the waist, whichwas taken into police possession and memo was written gotwritten from S.S.I Sh. R.S. Tiwari in the torch light. On inquiryGaccused Sahab Singh told that this is of Ex.MLA AshokChandel, which was sealed. Signatures of the witnesses takenafter reading out the memo, no public witness got readybecause of considering their well-being. Memo of this isexhibited as Ex.A-24. Copy of which was given to theHaccused….”

161. In view of the above, we are of the opinion that the recoveryof the 8x60 bore rifle from Sahab Singh (A8) and the arrest of the restof the accused, A6, A7 and A10, have been successfully proved by theprosecution. The clear, consistent and categorical evidence adduced bythe prosecution to prove the recovery of the weapon, bullets as well asarrests could not have been ignored by the Trial Court. The conclusionsdrawn by the Trial Court were, therefore not only wrong but glaringmistakes. These were substantial and compelling reasons for the HighCourt to reverse the decision of the Trial Court.

162. An additional argument is raised with respect to the variationin the number of bullets recovered from the green belt worn by SahabSingh. It is argued that while PW-12 states in his testimony that herecovered ten bullet cartridges from the belt, PW-14 mentions in histestimony that PW-12 stated in his statement before the CBCID that herecovered 18 bullets (10 from the belt and eight from the butt of therifle) from Sahab Singh.

163. We consider this to be minor variation. In any event, PW-14 is only stating what PW-12 supposedly mentioned in the statement tothe CBCID. The variation in the number of bullets recovered cannothave direct bearing on the recovery itself, particularly when all otherwitnesses have spoken about the recovery.

164. As the prosecution has established the occurrence of theincident through the evidence of PW-1 and PW-2, and we are inagreement with the judgment of the High Court that these are credibleocular witnesses whose statements are corroborated by othercontemporaneous evidence, certain minor variations, such as non-recovery of blood-stained clothes, certain other weapons etc. will not befatal to the case of the prosecution. This principle is well established incases where there are credible injured eye-witness testimonies. InLakshman Singh v. State of Bihar[43], this Court held:

“9. In Mansingh [State of M.P. v. Mansingh, (2003) 10 SCC414 : (2007) 2 SCC (Cri) 390] , it is observed and held bythis Court that “the evidence of injured witnesses has greaterevidentiary value and unless compelling reasons exist, theirstatements are not to be discarded lightly”. It is furtherobserved in the said decision that “minor discrepancies do

not corrode the credibility of an otherwise acceptable”evidence. It is further observed that “mere non-mention ofthe name of an eyewitness does not render the prosecutionversion fragile”.

9.1 similar view has been expressed by this Court in theBsubsequent decision in Abdul Sayeed [Abdul Sayeed v. Stateof M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] . Itwas the case of identification by witnesses in crowd ofassailants. It is held that “in cases where there are largenumber of assailants, it can be difficult for witnesses to identifyeach assailant and attribute specific role to him”. It is furtherCobserved that “when incident stood concluded within fewminutes, it is natural that exact version of incident revealingevery minute detail i.e. meticulous exactitude of individual”acts, cannot be given by eyewitnesses.It is further observedthat “where witness to occurrence was himself injured in theDincident, testimony of such witness is generally considered tobe very reliable, as he is witness that comes with an inbuiltguarantee of his presence at the scene of crime and is unlikelyto spare his actual assailant(s) in order to falsely implicatesomeone”. It is further observed that “thus, deposition ofinjured witness should be relied upon unless there are strongEgrounds for rejection of his evidence on basis of majorcontradictions and discrepancies therein”.

9.2 The aforesaid principle of law has been reiterated againby this Court in Ramvilas [Ramvilas v. State of M.P., (2016)16 SCC 316 : (2016) 4 SCC (Cri) 850] and it is held thatF“evidence of injured witnesses is entitled to great weightand very cogent and convincing grounds are required todiscard their evidence”. It is further observed that “beinginjured witnesses, their presence at the time and place ofoccurrence cannot be doubted”.”

G165. In the recent case of M Nageswara Reddy v. State of AP[44]it was held that:

“16. Having gone through the deposition of the relevantwitnesses — eyewitnesses/injured eyewitnesses, we are of the

H44 2022 SCC OnLine SC 268.

opinion that there are no major/material contradictions inthe deposition of the eyewitnesses and injured eyewitnesses.All are consistent insofar as Accused 1 to 3 are concerned.As observed hereinabove, PW 6 has identified Accused 1 to3. The High Court has observed that PW 1, PW 3 & PW 5were planted witnesses merely on the ground that they wereall interested witnesses being relatives of the deceased. Merelybecause the witnesses were the relatives of the deceased, theirevidence cannot be discarded solely on the aforesaid ground.Therefore, in the facts and circumstances of the case, the HighCourt has materially erred in discarding the deposition/evidence of PW 1, PW 3, PW 5 & PW 6 and even PW 7.

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19. Having gone through the reasoning given by the HighCourt, we are of the opinion that the High Court hasunnecessarily given weightage to some minor contradictions.The contradictions, if any, are not material contradictionswhich can affect the case of the prosecution as whole. PW6 was an injured eyewitness and therefore his presence oughtnot to have been doubted and being an injured eyewitness,as per the settled proposition of law laid down by this Courtin catena of decisions, his deposition has greater reliabilityand credibility.”

X. Ballistic Report

166. The last submission made on behalf of the Appellants is intwo parts. Firstly, it is submitted that the ballistic report cannot be reliedon as it is not authenticated and contrary to the requirements of Section293 Cr.P.C under which the report is to be made only by the Director/Deputy Director/ Assistant Director and not by Scientific Officer.Secondly, it is argued that the prosecution only sent 8x60 bore rifle forthe ballistic report but has failed to send the 0.315 bore rifle, which issaid to have been recovered from Sahab Singh.

167. The second argument must straightaway be rejected in viewof our finding that 8x60 bore rifle and 0.315 bore rifle are one and thesame. On the first point, the requirement under Section 293 is in factcomplied with as the report should be treated as under the hand of theGovernment Scientific Expert, being the “Director [, Deputy Director

Aor Assistant Director] of Central Forensic Science Laboratory ora State Forensic Science Laboratory” as provided under Section293(4)(e).

168. The Trial Court yet again took super technical view of thematter and rejected the ballistic report, in spite of the fact that the reportBhad come from the office of the Assistant Director bearing seal. Wemay note the reasoning of the Trial Court here itself.

“….In reply to this the learned counsel for the prosecutionhas drawn my attention towards presence of the seal andsignature of the Assistant Director in the end of the report. InCthis seal is put. On this seal it has been printed that“forwarded for further necessary ·action” and below thatafter leaving some space, by this seal Assistant Director hasbeen imprinted and signatures are put thereupon. It is clearthat this report is not report selfsigned by an AssistantDirector but this report is of some Scientific Officer, whichDhas been merely forwarded by the Assistant Director. Thisreport does not fulfil the objectives and conditions of Section23 Cr.P.C…”

169. After having noted that the report has emanated from theoffice of the Assistant Director and also having noted the “presence ofEseal and signature of the Assistant director at the end of the report”,the Trial Court could not have rejected it. It was, therefore compellingfor the High Court to have reversed the finding of the Trial Court. Onthis count, the High Court held as under:

“…Further he has also tried to discard the report of F.S.L. onFthe ground that Section 293 Cr.P.C. provides for an expert’sreport to be admissible only when it is signatured by theDirector/Deputy Director/ Assistant Director of the said laband not by any Scientific Officer. We do not subscribe to hisview because it has come on record that the same wasGforwarded by the one of the Director/Deputy Director/Assistant Director of the said lab under the seal, therefore, itcannot be discarded and the same would be treated to beadmissible and in this report, it is clearly found that E.C.-12is found to have been fired by 8 x 60 bore rifle which couldalso addressed to be .315 bore rifle….”

170. The decision of this Court in State of Himachal Pradesh v.Mast Ram[45]is complete answer to this submission. In an identicalsituation, this Court held that there is no illegality in the way theprosecution has obtained the ballistic report under Section 293. Therelevant portion of the decision is as under:

“6. Secondly, the ground on which the High Court has thrownout the prosecution story is the report of the ballistic expert.-The report of the ballistic expert (Ext. P X) was signed byone Junior Scientific Officer. According to the High Court, aJunior Scientific Officer (Ballistic) is not the officerenumerated under sub-section (4) of Section 293 of the Codeof Criminal Procedure and, therefore, in the absence of hisexamination such report cannot be read in evidence. Thisreason of the High Court, in our view, is also fallacious.Firstly,the forensic science laboratory report (Ext. P-X) has beensubmitted under the signatures of Junior Scientific Officer(Ballistic) of the Central Forensic Science Laboratory,Chandigarh. There is no dispute that the report was submittedunder the hand of government scientific expert. Section293(1) of the Code of Criminal Procedure enjoins that anydocument purporting to be report under the hand of agovernment scientific expert under the section, upon anymatter or thing duly submitted to him for examination oranalysis and report in the course of any proceeding underthe Code, may be used as evidence in any inquiry, trial orother proceeding under the Code. The High Court has-completely overlooked the provision of subsection (1) ofSection 293 and arrived at fallacious conclusion that aJunior Scientific Officer is not an officer enumerated undersub-section (4) of Section 293. What sub-section (4) of Section293 envisages is that the court is to accept the documentsissued by any of the six officers enumerated therein as validevidence without examining the author of the documents.

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13. In our view, the consistent ocular testimony of PWs 1, 3and 4 corroborated by the opinion of PW 2 Dr. Sanjay Kumar

AMahajan and the ballistic expert report clearly establishedthe prosecution case beyond all reasonable doubtsand theHigh Court fell into grave error of law and facts, resulting ingrave miscarriage of justice.”

171. In view of the fact that the ballistic report has come from theBoffice of the Assistant Director bearing his seal and having consideredthe same in the context of Section 293(4) Cr.P.C., as explained by thisCourt in State of Himachal Pradesh v. Mast Ram[46]we are opinion thatthe Trial Court committed serious error in rejecting the ballistic reportand it was necessary and compelling for the High Court to reverse theCfinding of the Trial Court on this count also.Special Leave Petition and Writ Petition filed by the Informant(PW-1):

172. PW-1 filed Special Leave Petition against the judgment ofDthe High Court seeking enhancement of the sentence awarded to theAppellants from life sentence to that of death. We quite appreciate thegrievances and anxiety of the informant whose brothers were murderedin front of his eyes. He also saw his nephew (his brother’s son) beingmurdered at the same place. PW-1 also lost two of his close friends andfamily associates. While we symphatise with PW- 1, for the deprivation,Ewe are not inclined to entertain the Special Leave Petition forenhancement of the sentence to death as this is faction fight andcertainly not rarest of the rare case qualifying imposition of deathsentence.

173. PW-1 also filed Writ Petition (Crl.) No. 57/2022 under ArticleF32 of the Constitution for direction to transfer accused no. 5, AshokKumar Chandel to jail outside Uttar Pradesh for serving out his sentencein view of his undue influence in the State of Uttar Pradesh. The WritPetition was filed when the criminal appeal of Ashok Kumar Chandel(A5) was pending adjudication before this Court. However, in view of

Gthe present judgment dismissing the criminal appeal and confirming theconviction and sentence of Ashok Kumar Chandel (A5) we are of theview that no further order needs to be passed in this writ petition. TheWrit Petition is therefore dismissed.

Conclusions:

174. As this is an appeal against the decision of the High Courtreversing an order of acquittal. We have examined each and every pointraised by the Appellants. We have also noted the reasoning adopted bythe Trial Court on each issue and contrasted it with the decision of theHigh Court to see if the reversal is based on, what this Court mandatedas, very substantial and compelling reasons or good and sufficientgrounds causing grave miscarriage of justice. Having examined thematter in detail, we are of the opinion that:

I.The High Court was justified in exercising its appellatejurisdiction in reversing the order of acquittal as there werecertain glaring mistakes, and distorted conclusions in thedecision of the Trial Court. The High Court was duty-boundto reverse the decision as there existed very substantialand compelling reasons to do so, failing which it would havecaused grave miscarriage of justice.

II.Even though the prosecution has placed material to establishthe existence of motive on the part of the accused partyto murder five members of the Shukla family and associates,the motive part is treatednsecondary in view of the factthat this is case of direct evidence of injured eye-witnesses.

III.We have found that the place of the incident is notdisputed. In fact, the Trial Court itself returned findings aboutthe first as well as the second event of the incident. Thesefindings were affirmed by the High Court. Therefore, theonly question related to the persons involved and the mannerof commission of the offence.

IV.Having examined the contentions relating to (a)discrepancies in the number of dead bodies brought to thehospital (b) improbability of the time taken to prepare thetehreer (c) alleged omissions in the FIR (d) and thedischarge timing mentioned in the Bed Head Ticket, castingdoubt on the time of lodging the FIR, we find that theprosecution has explained all the discrepancies beyond areasonable doubt. We are convinced that the conclusionsof the Trial Court were based on surmises and conjectures,

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[2022] 12 S.C.R.

Aand therefore, the High Court is justified in reversing thejudgment of the Trial Court.

V.Having considered the four submissions in support of thecontention that PW-1 and PW-2 are not the eyewitnessesto the incident, being (a) discrepancy on the bullets marksBon the jonga, (b) bullet injuries on the deceased andeyewitnesses on the basis of PW-1 statement, (c) timing ofthe X-ray and Bed Head Ticket, and (d) evidence relatingto the failure of electricity at the time of the incident, wehave found that these submissions are contrary to evidenceon record. The prosecution has proved the presence of PW-C1 at the place of occurrence and of him being an injuredeye-witness to the incident. We conclude that the inferencesdrawn by the Trial Court were based on misreading ofthe evidence, and therefore, the High Court was obliged toreverse the finding to prevent grave miscarriage of justice.DVI.Having examined the alternative story of the defence basedon the fax, said to have been sent from the office of the SPand introduced through the defence witness DW-3, we areof the opinion that the facts mentioned in the fax are notsupported by any evidence. On the contrary, the factsEnarrated in the FIR are fully corroborated by much of thedocumentary evidence and are fully in consonance withthe testimony of the prosecution witnesses. As there is noevidence to corroborate the events mentioned in the faxand the evidence of DW-3 does not inspire confidence, tosay the least. The conclusion of the Trial Court that theFprosecution could not prove the case is totally erroneous.Such finding is glaring mistake as held by this Court inChandrappa and Ors. v. State of Karnataka[47]obligatingthe High Court to interfere with an order of acquittal.

VII.The legal submission that the prosecution has failed to proveGthat there was an unlawful assembly based on commonobject is examined by us independent of the explanationand conclusions drawn by the High Court. We are of theopinion that the High Court has correctly appreciated the

H47 Supra no. 24.

principle and rejected the submission that the prosecutionAhas failed to prove common object and the unlawfulassembly. The decisions of this Court in Amzad Ali v. Stateof Assam[48], Bhargavan v. State of Kerela[49]as well asBhupendra Singh v. State of U.P.[50]fully support the viewtaken by the High Court. The decision of the High Court onBthis issue is unexceptionable on fact and law.

VIII. We have also found that the conclusion of the Trial Courtabout the recovery of the weapon is based on perversefinding as it misunderstood the 8x60-bore rifle to be distinctfrom 0.315 bore rifle. We have perused and extracted theCtechnical material to prove beyond doubt that there is nodifference at all. The distinction is only in the measurementsystem, one being British and the other being the Continentalsystem. In view of such perverse finding, the High Courthad very substantial and compelling reasons to reversethe findings of the Trial Court.D

IX.We have also found that the arrests of Naseem (A6), BhanSingh (A10), Shyam Singh (A7) and Sahab Singh (A8) wereconcurrently and consistently spoken by all the witnesses,PW-10, PW-11 and PW-12. The conclusion drawn by theTrial Court that the arrest and recovery were doubtful wereglaring mistakes. The High Court was, therefore, completelyjustified in reversing the decision of the Trial Court.

X.The rejection of the FSL (ballistic) report is another gravemistake of the Trial Court. The conclusion of the Trial Courtthat the ballistic report is inadmissible as it is not inFconsonance with the requirement of Section 293 Cr.P.C. isentirely wrong. We have explained this in detail. In anidentical situation this Court in State of Himachal Pradeshv. Mast Ram[51]has explained how the ballistic report is incomplete compliance of the statutory provision. The HighCourt had to necessarily step in to prevent graveGmiscarriage of justice.

48 Supra no. 38.

49 Supra no. 39.

50 Supra no. 40.

51 Supra no. 45.

A175. For the reasons stated above, we dismiss Criminal AppealNos. 946- 947/2019 filed by Ashok Kumar Chandel, Criminal AppealNos. 1030- 1031/2019 filed by Ashutosh @ Dabbu, Criminal AppealNos. 1269-1270/2019 filed by Pradeep Singh and Uttam Singh, CriminalAppeal Nos. 1804- 1805/2019 filed by Bhan Singh, Criminal Appeal Nos.1980-1981/2019 filed by Sahab Singh, Criminal Appeal Nos. 1279-1280/B2019 filed by Naseem, and affirm the judgment of the High Court ofJudicature Allahabad in Government Appeal No. 5123/2002 dated19.04.2019. We are informed that Appellant Raghuvir Singh died on15.08.2022 pending disposal of these appeals, his Criminal Appeal No.1046-1047/2019 stands abated. The SLP (Crl.) No. 10742/2019, filed byCRajiv Shukla, the informant (PW-1) for enhancement of the sentence isdismissed.