Page 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.824 of 2007

State of U.P.                                          …Appellant

Versus

Gobardhan & Ors.                     …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This  appeal  has  been  filed  by  the  State  of  U.P.  against  the  

judgment  and order  dated 29.8.2003,  passed  by the High Court  of  

Allahabad  in  Criminal  Appeal  No.  1919  of  1981,  reversing  the  

judgment dated 24.8.1981, passed by the Additional Sessions Judge,  

Badaun, in Sessions Trial No. 251 of 1979 (Crime Case No. 10 of  

Police Station: Binawar, District: Badaun), whereby the trial court had  

convicted and sentenced the respondents to life imprisonment under  

Section 302, read with Section 34 of  the Indian Penal  Code,  1860  

(hereinafter referred to as the ‘IPC’).

Page 2

2. Facts and circumstances giving  rise to this appeal are that:

A. On  7.1.1979  at  about  8.45  P.M.,  respondents  Munshi  and  

Gobardhan had created a small drainage through the fields belonging  

to  Rameshwar  and  Kandhari  of  their  village.   Rameshwar  and  

Kandhari had come there and objected to the same. A scuffle broke  

out between them, and at that time, Jagan (since deceased) happened  

to pass through the said area, riding on the back of a horse.  He had  

then intervened in the matter and asked both the parties not to fight.  

All  of  them had then proceeded towards the village.   The accused  

Munshi and Gobardhan had also gone to the village hurriedly, abusing  

Rameshwar and Kandhari all along the way.   Thereafter, it was in  

front of  the house of one Phool Singh, situated  in the village, that all  

the four accused had started beating up Jagan with lathis and Kanta  

(Farsa).  The accused Munshi and Gobardhan had possessed lathis, the  

accused Collector  Singh had been in  possession  of  a  gun,  and the  

accused Afsar Singh had been in possession of the Kanta (Farsa).   

B. Jagan (deceased), in order to save himself, had run inside the  

house  of  Phool  Singh.  All  the  accused  had  followed  him  and  

continued to beat him up inside the said house.  The accused had then  

carried Jagan from the house of Phool Singh to the Baithak of the  

2

Page 3

accused Munshi and Gobardhan, which was located alongside their  

house. They had kept Jagan inside the Baithak.  The accused Collector  

Singh  had  then  fired  at  Jagan  twice  and  killed  him.   They  had  

thereafter, bolted the Baithak from the outside before going away.   

C. The village Chowkidar had furnished information pertaining to  

the said incident to the police, on the basis of which, a case had then  

been registered, and investigation had commenced in relation to the  

murder of Jagan by the accused, i.e. by  Munshi, Gobardhan, etc.

D. During the course of the investigation, the dead body of Jagan  

was recovered from the house belonging to Munshi and Gobardhan.  

A 12 bore country made pistol, 3 live cartridges, and 2 paper tiklies of  

a 12 bore pistol were also recovered from there.  A seizure memo was  

then prepared for the same. Samples of blood stained earth were also  

taken from the spot.  The dead body of  Jagan was sealed  and was  

thereafter, sent for postmortem examination.   

E. After  the  completion of  the  investigation,  a  chargesheet  was  

submitted  against  all  the  accused  persons.   The  case  was  then  

committed to the Sessions Court for trial vide order dated 10.2.1979.  

3

Page 4

All the accused denied the charges levelled against them, and pleaded  

not guilty.   

F. After  the  conclusion of  the  trial,  the  learned  Sessions  Judge  

vide judgment and order dated 24.8.1981, held the accused Munshi,  

Gobardhan, Collector Singh and Afsar Singh guilty for offences under  

Sections  302/34  IPC,  and  sentenced  them  to  undergo  life  

imprisonment.  

G. Aggrieved,  the said convicts  filed an appeal  before the High  

Court,  which  was  allowed  by  it,  vide  its  impugned  judgment  and  

order.  

Hence, this appeal.  

3. Shri Amit Singh, learned standing counsel appearing on behalf  

of the State, has submitted that respondent no. 1 Munshi has died, and  

that thus,  the appeal against  him stands abated.  His name may be  

deleted from the array of respondents, and the same is accordingly,  

deleted.  Hence, the appeal is limited to respondent nos. 2, 3 and 4.   

It has further been submitted that there is sufficient evidence on  

record to show that the three respondents had, in fact, committed the  

offence  punishable  under  Sections  302/34 IPC,  and had  alongwith  

4

Page 5

Munshi (since dead), committed the murder of Jagan, intentionally in  

furtherance of their common intention.  The trial court has rejected  

their contention that they had falsely been implicated in the case.  The  

accused Gobardhan is the real brother of the accused Munshi (since  

dead).   Accused  Collector  Singh  and  Afsar  Singh  are  also  real  

brothers.  Even  otherwise,  all  the  said  accused  belong  to  the  same  

family.  Thus, their participation in the crime is most certainly, not  

unintentional. A large number of injuries were found on the body of  

Jagan  (deceased)  which support  the case  of  the  prosecution  to  the  

extent that all the accused had, in fact, been  involved in the incident.  

The High Court has not decided the case in correct perspective.  The  

appeal, thus, deserves to be allowed.  

4. Per contra, Shri Pradeep Gupta, learned counsel appearing on  

behalf of the respondents, has opposed the appeal contending that the  

High Court has rightly acquitted the respondents.  A cross case has  

been filed and is pending as regards the large number of injuries were  

found on the person of the accused.  The said injuries have all been  

examined and proved. The injuries suffered by the accused were of a  

grievous nature. Even otherwise, the case put up by the respondents in  

defence,  is  highly probable,  that  there  had been a  dispute  between  

5

Page 6

Rameshwar and Kandhari on one hand, and  the accused on the other  

hand.  There was no motive whatsoever, to cause any kind of injuries  

to the deceased.  Jagan (deceased), had  only intervened at the time of  

scuffle between the parties, which was related to taking water to their  

own fields,  through the land of the accused.  Thus, the appeal is liable  

to be dismissed.  

5. We have considered the rival submissions made by the learned  

counsel for the parties, and perused the record.  

6. The dead body of Jagan was subjected to postmortem, and the  

following injuries were found on his person:

[1]. An oblique incised wound 7Cm x 3Cm x brain deep on the  

right side of forehead just above the right eye brow. Fracture of  

right frontal bone seen.  

[2]. An incised wound 2Cm x l/2Cm x bone deep on the right  

side of the forehead 1 Cm above the injury no. 1. Bone has been  

cut.  

[3]. A lacerated wound 3Cm x l-l/2Cm x bone deep on the right  

side of forehead lateral side 4 Cm. Above the lateral edge of the  

right eye.  

6

Page 7

[4]. Four gun shot wound of entry on the right side of mandible  

including upper part of neck in the area of 14Cm x 4Cm. There  

is  blackening of  skin  around the wound involving right  side  

neck in the area of 18Cm x 12Cm. Hair near the right of neck is  

burnt. One wound on the neck is measuring 1¼ x  l Cm. And  

remaining 3 wounds are 1 Cm x 3/4Cm in size.  

[5]. An incised wound 13Cm x 4Cm x bone deep on the post  

aspect of left forearm 3 Cm, below the left elbow joint.  

[6].   A  Contusion  4  Cm  x  l/2  Cm  on  the  ulna  border  left  

forearm 2 Cm., above the left wrist joint.  

[7].  An incised wound 1 ½ Cm x ½ Cm x muscle deep  on the  

medial aspect of the right leg 6 Cm, below the right knee joint.  

[8]. A gunshot wound of entry 2 Cm x 1 ½ Cm on the back in  

the  midline  1  Cm.  Right  to  midline  at  the  level  of  T-10.  

Blackening present around the wound in the area of 5 Cm x 4  

Cm.  Fracture of the left ulna in lower part seen.  

7. The  accused  Gobardhan  was  also  medically  examined  on  

8.1.1979 at 11 A.M., and the following injuries were found on his  

body:

[1].   Contusion  6  Cm x  1  Cm on  the  back  of  left  forearm  

starting just below left elbow to downwards vertically, on the  

forearm.    

7

Page 8

[2].  Abraded contusion on outer aspect of left thigh 3 Cm x 2  

Cm., in size and 4 Cm. Above and to the left from upper border  

of  Lt.  Patella  reddish  in  colour  blood  scab  present  in  the  

abraded area of the injury.  

[3].  Tenderness  present  on  the  dorsum  of  Lt.  foot  near  

metatarsus  phalangeal joint of Jt. Big toe and 2 Lt. toe.  

8. The accused Munshi (dead), was also medically examined on  

the same day at 11.15 A.M.,  and the following injuries were found on  

his body:  

[1]. Contusion on posterior lateral surface of left leg 7 Cm x l  

Cm in size. Transversely present 25 Cm above it.  

[2].  Tenderness present in the area of Lt. lateral malleolus of  

Lt. ankle.  

[3]. Complaint of pain in the right side of the head.

9. The  High  Court  has  re-appreciated  the  entire  evidence  and  

recorded the following findings of fact:

(I) The first information report has not been registered at the time  

and in the manner as it ought to have been written.  

8

Page 9

(II) The counter FIR lodged by the respondents herein was written  

by Munshi  (dead) on the dictation given by the Inspector  of  

Police  and  not  in  accordance  with  the  version  given  by  the  

informant-respondent.  

(III) The report (Ex.P-13), which ought to have been lodged at the  

behest of the respondents herein, revealed that the respondents  

herein had used the lathis and a country-made pistol  in self-  

defence.   

(IV) There  had  been  material  discrepancies/contradictions/  

inconsistencies in regard to the lodging of FIR and investigation  

so far as the statements of Pratap Singh, Head Constable and  

R.D. Yadav, S.O., and the entries made in the Rojnamcha. The  

cumulative  effect  of  all  the  same  creates  a  doubt  in  the  

prosecution story.  

(V) The FIR in the instant case against the respondents herein had  

been  lodged  by  Pyare  Chowkidar  as  directed  by  one  Bilal  

Miyan who had informed him that Jagan had been killed by the  

party of Munshi and others. The said Bilal Miyan was neither  

an eye-witness, nor has been examined by the prosecution.

9

Page 10

(VI) Bilal  Miyan  had  been  informed  by  Ram  Bharose  about  the  

murder of Jagan but who had not disclosed as who had killed  

Jagan.  Thus, it was not clear as who had  killed Jagan and the  

prosecution could not get any support whatsoever from the FIR.

(VII) The evidence led by the prosecution shows that the offence was  

committed inside the house.  Ram Bharose, witness, had seen it  

from Gallery. No such Gallery had been shown in the site plan.  

(VIII) The evidence had been that the rifle which was allegedly used  

in the murder was a single barrel gun but the empty cartridges  

used  in  the  shooting  were  not  recovered  from the  spot.  No  

explanation had been furnished as what had happened to those  

empty cartridges.  

(IX) As per the prosecution, 3 live cartridges and one country-made  

pistol  were  found  at  the  spot,  though  as  per  Ram  Bharose,  

witness, the shot was fired from a single barrel gun.  

(X) The aforesaid contradictions led to the inference that Jagan had  

been murdered at some other place and in some other manner  

which was not brought on record by the prosecution.  

10

Page 11

(XI) It was nobody’s case that Collector Singh had fired two shots  

upon Jagan and even according to the postmortem report, there  

was no injury caused by the country-made pistol.   

(XII) There had been material contradictions regarding locking of the  

place where Jagan was detained and no explanation was there  

as who had opened that lock.   

(XIII) Ram Bharose  and Rameshwar  had been  interested  witnesses  

and their statements were full of discrepancies and contrary to  

the prosecution case.  In view of the fact that no eye-witness  

was  examined,  the said  material  contradictions  become most  

material.   

(XIV) The prosecution failed to explain the grievous injuries found on  

the person of Gobardhan and Munshi – accused herein.   

10. This Court has laid down sufficient guidelines for interference  

by the superior court against the order of acquittal.   In exceptional  

cases where there are compelling circumstances to interfere and the  

judgment under appeal is found to be perverse, the appellate court can  

interfere with the order of acquittal. The appellate court should bear in  

mind the presumption of innocence of the accused and further that the  

trial  Court’s  acquittal  bolsters  the  presumption  of  his  innocence.  

11

Page 12

Interference  in  a  routine  manner  where  the  other  view is  possible  

should be avoided, unless there are good reasons for interference.

11. We have considered and examined the matter most minutely.  

Applying the parameters of interference against the order of acquittal,  

we are of  the considered opinion that  no interference is called for.  

This appeal lacks merit and is, accordingly, dismissed.   

……………………………...J.                                                                 [DR. B.S. CHAUHAN]  

  ...…….…….......................... J.                                                                 [DIPAK MISRA]  NEW DELHI;  July 1,  2013  

12