2006 Supreme(SC) 775

2006(6) Supreme 567
SUPREME COURT OF INDIA
(From Allahabad High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
Jagdish Murav — Appellant
versus
State of U.P. & Ors. — Respondents
Criminal Appeal No. 1644 of 2005
Decided on 24-8-2006
Counsel for the Parties :
For the Appellant : Ashwin Vaish and Subramonium Prasad, Advocates.
For the Respondents : Sahdev Singh, Javed M. Rao and Praveen Swarup, Advocates.

IMPORTANT POINT
If two views are possible, appellate Court shall not interfere with judgment of acquittal.

Headnote:Indian Penal Code, 1860 — Section 307 — Attempt to murder — Upon exhortation of other three accused, appellant fired a short at the neck of PW2 from his country made pistol — PW1 claimed to be the eye witness — Trial Court acquitted all four accused holding presence of PW1 was doubtful, he being a chance witness who was resident of village 35 km. away and no independent witness was examined — High Court in appeal granted leave only against appellant and convicted him — Appeal — High Court failed to address itself the right question, viz, if two views were possible appellate Court shall not interfere with judgment of acquittal — No gun was seized no cartridge was found at place of occurrence — FIR was found ante-timed as it could not have been sent to circle officer after four days and to Court after eight days — No explanation why statement of PW2 was taken after a long time although doctor had not found him unconscious — Judgment of acquittal could not have been interfered with by High Court.

       Held : The learned Sessions Judge passed the judgment of acquittal opining that the presence of PW-1 was wholly doubtful. In view of the distance of the place of incidence from his residence, it was further opined that it was unlikely that he would travel so far for nothing. His presence was also doubted having regard to the fact that PW-1 did not take PW-2 to the District Hospital. According to PW-1, he took PW-2 directly to the Medical College whereas the evidences on record clearly show that he had first been taken to the District Hospital and then the case was referred to the Medical College. (Para 15)

       No independent witness was examined. The enmity between the PW-2 and the accused persons being admitted, the claim of the Appellant being falsely implicated cannot be ruled out. His testimony was also found to be doubtful by the learned Trial Judge in view of inherent contradictions in his different versions. It is borne out from the records that he made contradictory and inconsistent statements. (Para 16)

       The learned Trial Judge also doubted the veracity of the story as disclosed by PW-2. PW-2 was a driver. He had been going from place to place. The accused persons who were four in number, therefore, could not have any premeditation to come to the place of occurrence in the night from a distance of 35 kms. to commit the offence. The fact that PW-2 would park his vehicle at the place of occurrence could not have been known to the accused persons. PW-2 stated that he had seen PW-1 and the other two witnesses whereas before the Investigating Officer he had stated that it was PW-1 who told him thereabout. (Para 17)

       The learned Trial Judge drew adverse inference for non-examination of Mangal Prasad, employer of PW-2 and, particularly, having regard to the fact that he had got him admitted in the hospital. Dr. V.S. Mehrotra who had taken the X-ray of PW-2 was not examined. The learned Trial Judge also found that motive for commission of the offence was not established. It was further opined that the First Information Report was ante-dated and ante-timed. (Para 18)

       On an appeal having been preferred by the State against the said judgment of acquittal against all the four accused, leave was granted by the High Court only against the Appellant herein. (Para 19)

       We may at the outset like to observe that the High Court failed to consider that it was dealing with a judgment of acquittal. It failed to address itself the right question, viz., if two views are possible, the appellate court shall not interfere with a judgment of acquittal. The High Court evidently in its judgment failed to take into consideration several relevant factors as was done by the Trial Court. The High Court also failed to consider that the statements of PWs 1 and 2 were disbelieved in relation to three other accused persons. No gun was seized. No cartridge was found at the place of occurrence. The enmity between the parties was admitted. The First Information Report was evidently ante-timed as it could not have been sent to the Circle Officer after four days and to the court of the learned magistrate after eight days. (Para 21)

       Investigation of the case was conducted by PW-4 in a slip-shod manner. PW-4 did not explain as to why the original general diary was not produced. In terms of the Police Act, a copy of the statement of the First Information Report is required to be handed over to the informant. First Information Report was required to be taken down in the general diary. Production of the general diary was necessary as the First Information Report was said to be ante-timed and ante-dated. The learned Trial Judge categorically opined the same to be so. No explanation has been given as to why the independent witnesses whose statements had allegedly been recorded were not examined. There was no reason as to why the statement of the PW-2 was taken after such a long time although according to the medical report he was not unconscious as would be evident from the fact that his left thumb impression was taken in the hospital register. If PW-2 was taken within a few minutes to the District Hospital, the doctor incharge must have informed the police. The Investigating Officer does not say so. He had not made any attempt to apprehend the culprits immediately. There is absolutely no reason as to why in a case of grave nature, a copy of the First Information Report was sent to the Circle Officer, 4 days after the incident and to the court 8 days thereafter. Section 157 of the Code of Criminal Procedure mandates that the First Information Report should be sent to the nearest magistrate within a period of 24 hours. The incident took place at Gorakhpur which is a District Town. Section 147 of the Police Act and the Rules framed thereunder provide for safeguards for the accused persons from false implication.(Para 22)

       The High Court did not critically scrutinize the evidence of PWs 1 and 2. Having regard to the facts and circumstances of this case in our opinion the Appellant was entitled to benefit of doubt. [See State of U.P. v. Gambhir Singh and Others, (2005) 11 SCC 271]. It is no doubt true that PW-2 suffered a grievous injury. By reason of the said fact alone, the judgment of acquittal could not have been interfered with by the High Court.(Paras 25 and 26)