ASHOK KUMAR SINGH CHANDEL v. STATE OF U.P.

Citation: [2022] 12 S.C.R. 1035; 2022 INSC 1164

Court: Supreme Court of India

Bench: UDAY UMESH LALIT , S. RAVINDRA BHAT, PAMIDIGHANTAM SRI NARASIMHA

Judgment date: 2022-11-04

Case summary

2022 INSC 1164. Supreme Court of India judgment dated 2022-11-04. ASHOK KUMAR SINGH CHANDEL v. STATE OF U.P. Read the judgment and case details on LawSphereX.

Judgment text

[2022] 12 S. C. R. 1035 1035 ASHOK KUMAR SINGH CHANDEL A v. STATE OF U. P. (Criminal Appeal Nos. 946-947 of 2019) B NOVEMBER 04, 2022 [UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT AND PAMIDIGHANTAM SRI NARASIMHA, JJ. ] Penal Code, 1860 – s. 302 r/w s. 149, s. 307 r/w s. 149 and s. 148 – Arms Act, 1959 – ss. 25 and 30 – Code of Criminal C Procedure, 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 the other two were their close family friends – Trial Court acquitted all the accused – Appeal against acquittal – High Court reversed the D findings of the trial court and convicted all the accused under ss.

148, 302 read with 149, 307 read with 149 of the IPC, and sentenced them to life imprisonment – Propriety of – Held: High Court was justified in exercising its appellate jurisdiction in reversing the order of acquittal as there were certain glaring mistakes, and distorted conclusions in the decision of the Trial Court – High Court was E duty-bound to reverse the decision as there existed very substantial and compelling reasons to do so, failing which it would have caused a grave miscarriage of justice – Prosecution proved the presence of PW-1 at the place of occurrence and of him being an injured eye-witness to the incident – Facts narrated in the FIR were fully F corroborated by much of the documentary evidence and were fully in consonance with the testimony of the prosecution witnesses – The High Court was correct in rejecting the submission that the prosecution failed to prove a common object and unlawful assembly – The arrests of A6, A10, A7 and A8 were concurrently and consistently spoken by all the witnesses, PW-10, PW-11 and PW-12 G – Conclusion drawn by trial court that the arrest and recovery were doubtful were glaring mistakes – Rejection of the FSL (ballistic) report was another grave mistake of the Trial Court – Conclusion of Trial Court that the ballistic report was inadmissible as it is not in consonance with the requirement of s.

293 Cr. P. C. was entirely wrong H 1035 1036 SUPREME COURT REPORTS [2022] 12 S. C. R. A – The ballistic report was in complete compliance of the statutory provision – High Court had to necessarily step in to prevent a grave miscarriage of justice. Appeal – Appeal against acquittal by trial court – Jurisdiction of the High Court – Discussed. B Criminal Law – Motive – Sufficiency or insufficiency of motive does not have a direct bearing on the actual evidence against the accused, particularly when the prosecution relies on direct evidence of injured eyewitnesses. Criminal Law – Investigation – Defective investigation by C investigating authorities by itself does vitiate the case of the prosecution when there are credible eye-witness testimonies as well as other compelling pieces of evidence.

Evidence – Witness – Testimony of injured eye-witness – Appreciation – Held: When there are credible ocular witnesses whose D statements are corroborated by other contemporaneous evidence, certain minor variations, such as non-recovery of blood-stained clothes, certain other weapons etc. will not be fatal to the case of the prosecution. Code of Criminal Procedure, 1973 – s. 293 – Statutory E requirement under – Compliance – FSL (ballistic) report – On facts, the report came from the office of the Assistant Director of a Forensic Lab bearing his seal – Conclusion of the Trial Court that the ballistic report was inadmissible as it was not in consonance with the requirement of Section 293 Cr. P. C. , is entirely wrong – Ballistic report was in complete compliance of the statutory provision – Trial Court F erred in rejecting the ballistic report. Dismissing the appeals, the Court HELD: 1.

In the instant case, the High Court was justified in exercising its appellate jurisdiction in reversing the order of G acquittal as there were certain glaring mistakes, and distorted conclusions in the decision of the Trial Court. The High Court was duty-bound to reverse the decision as there existed very substantial and compelling reasons to do so, failing which it would have caused a grave miscarriage of justice. [Para 174][1109-C] H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1037 2. Even though the prosecution placed material to establish A the existence of a motive on the part of the accused party to murder five members of the Shukla family and associates, the motive part is treated secondary in view of the fact that this is a case of direct evidence of injured eye-witnesses. [Para 174][1109- D-E] B 3. The place of the incident is not disputed. In fact, the Trial Court itself returned findings about the first as well as the second event of the incident.

These findings were affirmed by the High Court. Therefore, the only question related to the persons involved and the manner of commission of the offence. [Para C 174][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 timing D mentioned in the Bed Head Ticket, casting doubt on the time of lodging the FIR, it is found that the prosecution has explained all the discrepancies beyond a reasonable doubt. The conclusions of the Trial Court were based on surmises and conjectures, and therefore, the High Court is justified in reversing the judgment of the Trial Court. [Para 174][1109-G-H; 1110-A] E 5.

Having considered the four submissions in support of the contention that PW-1 and PW-2 are not the eyewitnesses to the incident, being (a) discrepancy on the bullets marks on the jonga, (b) bullet injuries on the deceased and eyewitnesses on the basis of PW-1 statement, (c) timing of the X-ray and Bed Head F Ticket, and (d) evidence relating to the failure of electricity at the time of the incident, it is found that these submissions are contrary to evidence on record. The prosecution has proved the presence of PW-1 at the place of occurrence and of him being an injured eye-witness to the incident. The inferences drawn by the G Trial Court were based on a misreading of the evidence, and therefore, the High Court was obliged to reverse the finding to prevent a grave miscarriage of justice. [Para 174][1110-B-C] 6. Having examined the alternative story of the defence based on the fax, said to have been sent from the office of the SP H 1038 SUPREME COURT REPORTS [2022] 12 S. C. R.

A and introduced through the defence witness DW-3, it is clear that the facts mentioned in the fax are not supported by any evidence. On the contrary, the facts narrated in the FIR are fully corroborated by much of the documentary evidence and are fully in consonance with the testimony of the prosecution witnesses. As there is no evidence to corroborate the events mentioned in B the fax and the evidence of DW-3 does not inspire confidence, to say the least. The conclusion of the Trial Court that the prosecution could not prove the case is totally erroneous. Such a finding is a glaring mistake as held by this Court in Chandrappa and Ors. v. State of Karnataka obligating the High Court to interfere C with an order of acquittal. [Para 174][1110-D-F] 7. The High Court was correct in rejecting the submission that the prosecution failed to prove a common object and the unlawful assembly. The decision of the High Court on this issue is unexceptionable on fact and law.

[Para 174][1111-A-B] D 8. The conclusion of the Trial Court about the recovery of the weapon is based on a perverse finding as it misunderstood the 8x60-bore rifle to be distinct from a 0. 315 bore rifle. The technical material prove beyond doubt that there is no difference at all. The distinction is only in the measurement system, one being British and the other being the Continental system. In view E of such a perverse finding, the High Court had very substantial and compelling reasons to reverse the findings of the Trial Court. [Para 174][1111-B-D] 9. The arrests of Naseem (A6), Bhan Singh (A10), Shyam Singh (A7) and Sahab Singh (A8) were concurrently and F consistently spoken by all the witnesses, PW-10, PW-11 and PW- 12. The conclusion drawn by the Trial Court that the arrest and recovery were doubtful were glaring mistakes. The High Court was, therefore, completely justified in reversing the decision of the Trial Court. [Para 174][1111-D-E] G 10.

The rejection of the FSL (ballistic) report is another grave mistake of the Trial Court. The conclusion of the Trial Court that the ballistic report is inadmissible as it is not in consonance H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1039 with the requirement of Section 293 Cr. P. C. is entirely wrong. A The ballistic report is in complete compliance of the statutory provision. The High Court had to necessarily step in to prevent a grave miscarriage of justice. [Para 174][1111-F-G] M. G. Agarwal v. State of Maharashtra [1963] 2 SCR 405 – followed. B Chandrappa and Ors v. State of Karnataka (2007) 4 SCC 415 : [2007] 2 SCR 630; Ghurey Lal v. State of UP (2008) 10 SCC 450 : [2008] 11 SCR 499; Amzad Ali Alias Amzad Kha and Ors v. State of Assam (2003) 6 SCC 270; Bhargavan and Ors v. State of Kerala (2004) C 12 SCC 414 : [2003] 5 Suppl. SCR 535; Bhupendra Singh 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. D State of U. P. v. Gokaran and Ors (1984) Supp SCC 482; Masalti v. State of U. P. [1964] 8 SCR 133; Praveen Kumar 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. E 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 Charan and Ors. (2013) 12 SCC 76 : [2013] 8 SCR 336; Shivaji Genu Mohite v. The State of Maharashtra (1973) 3 SCC 219; State of Uttar Pradesh v. Kishanpal and Others F (2008) 16 SCC 73: [2008] 11 SCR 1048; Sheo Shankar Singh v. State of Jharkhand and Anr. (2011) 3 SCC 654 : [ 2011] 4 SCR 312; Darbara Singh v. State of Punjab (2012) 10 SCC476 : [2012] 7 SCR 541; Rammi Alia Rameshwar v. State of M. P. (1999) 8 SCC 649 : G [1999] 3 Suppl. SCR 1; Abdul Sayeed v.

State of Madhya Pradesh (2010) 10 SCC 259 : [2010] 13 SCR 311; Rajendra Alia Rajappa & Ors v. State of Karnataka (2021) 6 SCC 178; Rana Pratap and Ors. v. State of Haryana (1983) 3 SCC 327; Karnel Singh v. H 1040 SUPREME COURT REPORTS [2022] 12 S. C. R. A State of M. P. (1995) 5 SCC 518 : [1995] 2 Suppl. SCR 629; C. Muniappan and Others v. State of Tamil Nadu (2010) 9 SCC 567 : [2010] 10 SCR 262; Saddik alias Lalo Gulam Hussein Shaikh and Ors v. State of Gujarat (2016) 10 SCC 663 : [2016] 5 SCR 421; Lakshman Singh v. State of Bihar (2021) 9 SCC 191 B and M Nageswara Reddy v. State of AP 2022 SCC OnLine SC 268 – referred to. W. H. B. Smith, Mauser Rifles and Pistols (The Stackpole Company, Pennsylvania, United States of th America, 4 edn, 1954, pg nos. 156,157) – referred C to.

Case Law Reference (1984) Supp SCC 482 referred to Para 44 [1964] 8 SCR 133 referred to Para 52 D (2003) 12 SCC 199 referred to Para 52 [2018] 10 SCR 707 referred to Para 52 (2021) 3 SCC 687 referred to Para 56 [1974] 3 SCR 734 referred to Para 60. 2 E [2013] 8 SCR 336 referred to Para 60. 2 [2007] 2 SCR 630 relied on Para 74 [1963] 2 SCR 405 followed Para 75 [2008] 11 SCR 499 relied on Para 76 F (1973) 3 SCC 219 referred to Para 82 [2008] 11 SCR 1048 referred to Para 83 [2011] 4 SCR 312 referred to Para 84 G [2012] 7 SCR 541 referred to Para 84 [1999] 3 Suppl. SCR 173 referred to Para 100 [2010] 13 SCR 311 referred to Para 115 (2021) 6 SCC 178 referred to Para 116 H (1983) 3 SCC 327 referred to Para 134 ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1041 [1995] 2 Suppl. SCR 629 referred to Para 140 A [2010] 10 SCR 262 referred to Para 141 (2003) 6 SCC 270 relied on Para 143 [2003] 5 Suppl.

SCR 535 relied on Para 144 B [2009] 6 SCR 262 relied on Para 145 [2016] 5 SCR 421 referred to Para 146 (2021) 9 SCC 191 referred to Para 164 [2004] 4 Suppl. SCR 269 relied on Para 170 C CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 946-947 of 2019. From the Judgment and Order dated 19. 04. 2019 of the High Court of Judicature at Allahabad in Government Appeal No. 5123 of 2002 and Criminal Revision No. 1548 of 2002. D 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. E Aishwarya Bhati, Vishvajit Singh, Jayant Muthuraj, Ratnakar Dash, Sr. Advs. , Shiv Kumar Pandey, Abhay Raj Singh Chandel, Chandrashekhar A. Chakalabbi, Awanish Kumar, Abhinav Garg, D. Girish Kumar, Kumar Vinayakam Gupta, Kartikey Kanojiya, M/s. Dharmaprabhas Law Associates, Sandeep Jha, Arjun D.

Singh, Ashish Singh, Dharmendra F Kumar Sinha, Uday Prakash Yadav, Simarjeet Singh Saluja, Ms. Prerna Dhall, Noor Rampal, Ms. Aastha Mehta, Ms. Ishita Sinha, Rohit Pandey, Murari Tiwari, Ramjee Pandey, Ms. Manisha Chava, Rustam Singh Chauhan, Ms. B. L. N. Shivani, Rajeev Kumar Dubey, Ms. Harshita Raghuvanshi, Ms. Shreyase Aggrwal, Ashiwan Mishra, Kamlendra Mishra, Shashank Singh, Anupam Chaudhary, Manoj Kumar Dwivedi, G Mrinal Kumar Sharma, Ms. Bansuri Swaraj, Ms. Ana Upadhyay, Akash Singh, Ms. Manya Hasija, Prem Sunder Jha, Pankj Bist, Krishnanand Pandeya, Manish Kumar, Anshuman Srivastava, Naresh Kumar, Advs. for the appearing parties. H 1042 SUPREME COURT REPORTS [2022] 12 S. C. R. A The Judgment of the Court was delivered by PAMIDIGHANTAM SRI NARASIMHA, J. 1. These Criminal Appeals are by seven accused convicted and sentenced to life by the High Court of Judicature at Allahabad for the murder of five persons.

The deceased belonged to or were associated B with the same family; two of them were brothers, the third was their minor son and the other two were their close family friends. Apart from these criminal appeals, there is also a Special Leave Petition filed by the informant (PW-1), who is the sole surviving brother in the family, praying for enhancement of the sentence from life to death and also a Writ C Petition seeking transfer of accused no. 5 to a jail outside Uttar Pradesh for serving out the sentence in lieu of his influence in the State. 2. 1 The judgment of the High Court was rendered in an appeal 1 against acquittal of all the accused by the Trial Court . The High Court 2 by its judgment impugned herein reversed the findings of the Trial Court D and convicted all the accused for the offences under Sections 148, 302 3 read with 149, 307 read with 149 of the Indian Penal Code, 1860 and sentenced them to life imprisonment. The details of the conviction and sentences are as under.

2. 2 All these accused were sentenced to undergo life imprisonment E for the offence under Section 302 read with Section 149 IPC and to pay a fine of Rs. 20,000/- each, in default to undergo six months additional simple imprisonment. The accused were sentenced to undergo rigorous imprisonment for three years for the offence under Section 148 IPC and to pay a fine of Rs. 5000/- each and in default to undergo simple imprisonment of six months. All the accused were sentenced to undergo F ten years rigorous imprisonment for the offence under Section 307 read with149 IPC and to pay a fine of Rs. 10,000/- each, in default to undergo six months simple imprisonment. 2. 3 The acquittal of Ashok Kumar Singh Chandel(A5) under Sections 379 and 404 IPC by the Trial Court was upheld. Further, the G 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 dated 19. 04. 2019.

3 hereinafter referred to as ‘IPC’. H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1043 [PAMIDIGHANTAM SRI NARASIMHA, J. ] acquittal of accused Sahab Singh (A8) for an offence under Section 25 A 4 of the Arms Act, 1959 and the acquittal of accused Ashok Singh Chandel(A5) for an offence under Section 30 of the Arms Act was also confirmed by the High Court without any variation. With these findings, the Criminal Appeal of the State and the Criminal Revision of the informant (PW-1) were substantially allowed. B 3. Challenging the judgment of the High Court, the present criminal appeals are filed by the accused Raghuvir Singh (A1) in Crl. A Nos. 1046- 1047/2019, Ashutosh Singh @ Dabbu (A2) in Crl. A. Nos. 1030- 1031/2019, Uttam Singh (A3) and Pradeep Singh (A4) in Crl. A Nos. 1269-1270/2019, Ashok Kumar Singh Chandel (A5) in Crl. A Nos. 946- C 947/2019, Naseem (A6) in Crl. A Nos. 1279-1280/2019, Sahab Singh (A8) in Crl. A No. 1980- 1981/2019, and Bhan Singh (A10) in Crl. A Nos.

1804-1805/2019. The Incident: 4. The prosecution case as it unfolds in the First Information D 5 Report is that there has been a long-standing factional dispute between two groups in Hamirpur, U. P. The group represented by Ashok Chandel (A5) and the group represented by Shukla family were inimically disposed against each other for a long time. The FIR is about the incident that has occurred at 09. 10 P. M. on 26. 01. 1997 at Mohalla Subhash Bazar, Kasba, E 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 the residence of Parma Pandit which is about 50-75 meters from Naseem’s gun shop. The two incidents are as follows. 5. 1 First part of the incident: On 26. 01. 1997, Rajiv Shukla (PW- F 1) along with his servant Lallan went to the market Mohalla Subhash Bazaar, Kasba, Hamirpur in the evening of 26. 01. 1997 at around 07.

30 PM to buy some articles. As they were returning from the market, they saw PW-1’s elder brother, Rakesh Kumar Shukla, his two sons, Gudda and Chandan, Sri Kant Pandey, Vipul (PW-1’s son) and Ved Prakash, G returning home in a vehicle, all through referred to as a ‘jonga’. 5. 2 On seeing the jonga, PW-1 and Lallan stopped to speak to Rakesh 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’. H 1044 SUPREME COURT REPORTS [2022] 12 S. C. R. A in 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 and guns and suddenly started firing indiscriminately at the jonga. 5.

3 It is stated in the FIR that immediately after hearing the sound B of 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 another vehicle and started firing at the jonga. Due to the firing, Sri Kant (since deceased) and Ved Prakash (since deceased), who were sitting on the C rear side of the jonga, received bullet injuries. Rakesh Kumar Shukla (since deceased), Gudda (since deceased), Chandan and Vipul also received bullet injuries. Because of the firing, panic gripped, and the market was shut down. 6. 1 Second part of the incident: Immediately on getting information about the occurrence, Rajesh Kumar Shukla, elder brother D of PW-1, Ravi Kant Pandey (PW-2), Bhagwati Sharan Nayak, Sri Prakash Nayak, Anil and many others reached the place of the incident.

As the children Chandan and Vipul sustained minor injuries, they were immediately taken out of the jonga and sent home with the help of some people in the area. E 6. 2 Rajesh Shukla reversed the jonga from in front of Naseem’s gun shop and started driving it towards the hospital, which is on the west side of the Subhash Bazar Road. However, as they reached Parma Pandit’s house, which is just 50-75 meters from Naseem’s gun shop, the accused, having already reached the spot. At that moment, Ashok Chandel F (A5) exhorted that “no one from the Shukla Family should escape alive”, and on hearing that, all the accused again started firing indiscriminately. At this point, Rajesh Shukla got out of the jonga with his rifle to take aim and fire back at the accused persons. However, during the cross-fire, Rajesh Shukla sustained fatal injuries and fell down on the spot. PW-1, who was standing on the driver’s side (right side) of the G jonga, also received bullet injuries on his leg.

Similar is the position of PW- 2, who also received bullet injuries on his leg. As PW-1 and his companions took cover to conceal themselves, PW-1 saw the assailants snatch the rifle from Rajesh Kumar Shukla (since deceased), who had fallen due to bullet injuries and escaped from the scene of offence, towards ‘chowraha’ in their vehicles. H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1045 [PAMIDIGHANTAM SRI NARASIMHA, J. ] 6. 3 Having seen Rajesh Kumar Shukla also succumb to bullet A injuries like Gudda and Rakesh Kumar Shukla, hoping to save Srikant Pandey and Ved Prakash, PW-1 put them in the jonga and drove to the hospital. At the hospital: B 7. 1 PW-1 reached the hospital at around 07. 50 P. M, and he was immediately examined by Dr. N. K. Gupta, PW-8 who gave the injury report- 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 on duty that day, got his X-Ray-Exbs. Ka-44-46 done. C 7.

2 While PW-1 was being treated, Dr. P. N Paya, PW-5, examined the bodies of deceased Rakesh Kumar Shukla, Rajesh Kumar Shukla and 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-8 D also examined PW-2 at 10 P. M. and gave the injury report, marked as Exb. Ka-15. Vipul and Chandan were also examined at 10. 30 P. M. , and their injury reports were marked and exhibited as Exbs. Ka- 16 and Ka- 17, respectively. Filing of the FIR: E 8. 1 After obtaining immediate medical attention, PW-1’s statement (‘tehreer’) was recorded at the hospital by Saraswati Sharan, the scribe who was examined as PW-3. Upon completion of the tehreer, at around 09. 10 PM, PW-1 went to the police station to report the incident and to lodge the FIR.

At the Police Station, Constable Mahesh Singh, examined F 6 as PW-9 prepared the FIR , Exb. Ka-20, in his own handwriting, by copying 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 in front of Naseem’s gun shop and second near Parma Pandit’s house and G named ten accused and two unknown persons. The motive behind the attack was stated to be a political rivalry between Ashok Kumar Chandel and the Shukla family. In this context, the informant mentioned about a criminal case involving Shyam Singh (A7). In that case, Rakesh Kumar 6 FIR no. 33/1997. H 1046 SUPREME COURT REPORTS [2022] 12 S. C. R. A Shukla and Rama Kant Pandey (brother of Sri Kant Pandey) assisted the prosecution against Shyam Singh (A7). He also mentioned about the Assembly Elections, where the Shukla family opposed Shyam Singh (A7) and Ashok Kumar Chandel (A5), leading to a political rivalry. 8.

3 The FIR was thereafter copied into the General Diary by the B Investigating Officer, Lalman Verma, PW-12. After copying the FIR, PW-12 proceeded to the place of occurrence in furtherance of the investigation. 9. It is important to mention at this stage that on the next day, i. e. 7 on 27. 01. 1997, at 7. 50 P. M. two more FIRs , were registered against C Sahab Singh and Ashok Kumar Chandel under Sections 25 and 30 of the Arms Act, 1959 respectively. Investigation: 10. After lodging the FIR, PW-1 returned to the hospital where 8 the panchayatnama of the deceased was being conducted. Thereafter, D PW-1 went to the place of occurrence in the jonga, which was driven by Lallan, where he met the Investigating Officer, PW-12. The Investigating Officer, recorded the statement of PW-1 in the presence of an independent witness and also prepared a site map-Exb. Ka-25.

Having noticed a pool of blood on the road near Naseem’s gun shop, PW-12 E collected samples of bloodstained soil and grass- Exb. Ka-26. The Investigating Officer also collected 12 blank cartridges (6 bore and 6 brass)- Exb. Ka-27 in front of Parma Pandit’s house. An expired Manarth Card (Railway travel card), issued by the Indian Railways Board, New Delhi-Exb. Ka-28 was also recovered by him in front of Naseem’s gun shop, the card bore the name of Ashok Kumar Chandel. The jonga by F which PW-1 went to the place of occurrence was also seized along with a piece of the footrest which had blood on it, a sample of the broken piece of the front glass of the jonga and some pieces of glass lying at the spot, all of them later marked as -Exb. Ka- 29. 11. After the investigation at the place of occurrence, PW-12 went G to 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 the Trial Court Judgment. For the purposes of the present appeals, we will use the word ‘Panchnama’. H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1047 [PAMIDIGHANTAM SRI NARASIMHA, J. ] 9 Harishchandra Singh were present and preparing the panchnamas of A the dead bodies. All the dead bodies were sealed separately and sent for post-mortem. The post-mortems of the bodies of Rakesh Shukla, Rajesh Shukla and Sri Kant Pandey were conducted on 27. 01. 1997 the following 10 day between 10 AM to 12. 30 PM by PW-5 . Similarly, the post-mortems of Gudda and Ved Prakash were also done on 27. 01. 1997 between 2 B 11 PM and 2. 30 PM by PW-6 . Arrests: 12. The next day, that is on 27. 01. 1997, the Investigating Officer proceeded to Laxmibai Tiraha after finding out that some of the accused were at Naseem’s house.

Upon reaching the place, the police party C found Naseem (A6), Shyam Singh (A7), Sahab Singh (A8) and Bhan Singh (A10) trying to flee through the backdoor of Naseem’s house leading to River Betwa. They were arrested and a rifle along with 10 brass bullets tied in a green belt was recovered from the possession of Sahab Singh(A8). On being questioned about the rifle, Sahab Singh stated D that the rifle belonged to Ashok Kumar Chandel. The seized rifle and the bullets were marked as Exb. Ka-24 and they were sent for FSL Report. A copy of the seizure memo was provided to Sahab Singh. On the basis of the seizure memo, cases under Sections 25 and 30 of the Arms Act were registered against accused Sahab Singh (A8) and Ashok Kumar Chandel (A5). E 13. A search for the rest of the other accused was made, however, as they could not be found a report under Sections 82 and 83 (proclamation 12 of person absconding) of the Code of Criminal Procedure, 1973 was presented to the court on 28. 01. 1997.

On the very same day, on receiving information regarding the looted rifle of Rajesh Kumar Shukla at the F residence of Ashok Kumar Chandel, at Mohalla Vivek Nagar, his house was raided and a country-made pistol and one licensed Double Barrel Breach Loading (DBBL) gun were recovered. 14. There was another lead regarding the looted rifles at the residence of one Mr. Anand Purwar. However, nothing in relation to the G 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’ H 1048 SUPREME COURT REPORTS [2022] 12 S. C. R. A murders was recovered in the raid, except one licensed DBBL gun of 12 bore, four cartridges and a licensed Mauser gun with 8 cartridges.

These were seized in the presence of independent witnesses and a copy of the same was provided to Anand Purwar. These weapons were not sent for forensic examination. B 15. On 29. 01. 1997, statements of witnesses to the panchnama were recorded. Section 161, Cr. P. C statement of Bhagwati Saran Nayak who was present on the day of the incident was recorded, however statement of victims Vipul and Chandan could not be recorded as they were very young. The Investigating Officer (PW-12) also recorded the statement of Hardayal on 16. 02. 1997. C 16. Upon obtaining information about the presence of accused Raghuvir Singh (A1), Dabbu (A2), Pradeep (A4) and Uttam (A3), in a Maruti car near city forest, they were perused and arrested on 01. 02. 1997. 17. Another raid was conducted at Ashok Kumar Chandel’s Kanpur residence however no weapons were recovered.

Upon receipt D of information about the weapons used by Raghuvir (A1) and Dabbu (A2), their Moradabad residence was raided but nothing could be recovered. Later, even a Court witness was again sent to Moradabad for recovery of the weapons, but nothing was recovered. 18. On 21. 02. 1997, accused Jhandu (A9) was arrested and his E Section 313 Cr. P. C statement was recorded. As accused Rukku was absconding, his trial was separated from the present case. Ultimately, 13 he was convicted by the Trial Court on 12. 04. 2007 and sentenced to life imprisonment. His conviction and sentence was confirmed by the 14 High Court by judgment dated 24. 05. 2019. He has not filed a Special F Leave Petition before us. 19. On completion of the investigation, a charge-sheet, Exb. Ka- 58, was filed against 10 accused on 22. 02. 1997 and the case was set for trial. The Trial: G 20. The Trial Court framed charges against the accused persons on 25. 01.

2002 under sections 147, 148 and 302 read with section 149, 13 Sessions Trial number 127/2003. 14 Criminal Appeal No. 2617/2017. H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1049 [PAMIDIGHANTAM SRI NARASIMHA, J. ] IPC against all the 10 accused and under Sections 25 and 30, Arms Act A against Sahab Singh and Ashok Kumar Chandel respectively. The Trial Court also framed charges against Ashok Kumar Chandel under Sections 379 and 404 IPC. While prosecution examined fourteen witnesses being PW-1 to PW-14, the defence examined three witnesses being DW-1 to DW-3. There was also one Court witness being CW-1. B 21. The following are the prosecution witnesses with an indication about the purpose for which they were examined. C D E F 22. The following are the defence witnesses. G 23. 1 Of all the witnesses, the prosecution strongly relied on the evidence of PW-1 and PW-2 who are examined as injured eye-witnesses. H 1050 SUPREME COURT REPORTS [2022] 12 S. C. R. A 23.

2 PW-1 in his testimony gave a detailed description of the events at the place of incident. He deposed about the first as well as the second incident including the position at which the deceased as well as the eye-witnesses were situated at the time of the incident. He also deposed about the weapons used by the accused persons, injuries sustained by the deceased persons and the bullet marks on the jonga. PW-1 also B recounted the events that followed the incidents including the lodging of the FIR, medical treatment at the hospital and recording of his statement by the IO at the place of occurrence. 23. 3 The other ocular witness presented by the prosecution is Ravi Kant Pandey, PW-2. He testified about his presence during the C second incident and his involvement in rescuing the children from the jonga. He gave a detailed description about his position during the incident and the injury sustained by him.

He also detailed the deceased persons in the jonga, including his brother Sri Kant Pandey while naming all the accused and the firing. He further mentioned about his treatment in the D hospital and also that of the children who he accompanied. 24. Other witnesses are the police officers and the doctors who treated the deceased persons as well as the injured witnesses as mentioned in the table above. The defence witnesses were examined only to contradict the statements of PW-1 and PW-2. E Judgment of the Trial Court: 25. By its judgment dated 15. 07. 2002, the Trial Court acquitted all the accused. As this is a case of reversal in an appeal against acquittal, it is extremely important to examine the reasoning and the findings of the Trial Court in minute detail. This is for the reason that in an appeal F against acquittal, the appellate court must exercise its jurisdiction only for very substantial and compelling reasons.

For determining whether substantial, compelling and sufficient reasons existed for the High Court to reverse a finding of acquittal, we will first scrutinize the judgment of the Trial Court in detail. The decision of the Trial Court is based on its conclusions on the (a) motive, (b) place of occurrence, (c) contradictions G in the statement of PW-1 and PW-2, (d) recovery of weapons (e) and the illegality with respect to the FSL report. 26. 1 Motive: The Trial Court found that the prosecution failed to establish any motive for the accused to commit the offence. The conclusions were based on three grounds: H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1051 [PAMIDIGHANTAM SRI NARASIMHA, J. ] 26. 2 Firstly, the Trial Court held that the motive based on the A alleged involvement of Shyam Singh (A7) in a past murder case in which the deceased and his associates assisted the prosecution is ‘insufficient’ and ‘far-fetched’. 26.

3 Secondly, the Trial Court dismissed the alleged opposition of the deceased party to the election of Ashok Kumar Chandel in the B Assembly Elections of 1996 as not convincing enough. Trial Court also held that PW-1 could not clearly articulate the political animosity. 26. 4 Thirdly, the alleged animosity between the Chandel group and the Shukla group based on the competing interests of the educational institutions run by Naseem –Islamia Inter College, Hamirpur and those C supported by Shukla group – Vidya Mandir is not based on any evidence. 27. Place of occurrence: The Trial Court recorded that the incident occurred in two parts. As far as the first part is concerned, it returned a finding that “this place of occurrence has not been challenged by the defence and from the questions by Naseem himself during the D cross-examination of the witness it is clear that the incident had taken place.

” With respect to the second incident, the Trial Court again returned a finding to the effect that “the investigation officer during inspection of the place of occurrence found blood but he did not collect blood stained soil from here. This is his mistake but this does E not 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 three different routes by which the deceased party could reach their residence from their sister’s house. In view of this, the Trial Court held that there was no certainty about PW-1 and Lallan on the one hand and Rakesh F Shukla 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 this meeting could not have been expected by the accused party to lay an ambush. 29.

Differences in the contents FIR copied from the Tehreer: G The Trial Court examined the tehreer and compared it with the FIR. The discrepancies were highlighted to come to a conclusion of improbability of scribing the tehreer within ‘10-15 minutes’ and for coming to a conclusion that the FIR is ante-dated and fragmented. In this context; H 1052 SUPREME COURT REPORTS [2022] 12 S. C. R. A i. The Trial Court doubted the FIR for the reason that certain words and phrases in the tehreer did not appear in the FIR. For the reason that words such as ‘tatha’ in the tehreer was replaced with ‘aur’ and the sentence ‘tatha mere per me goliya lagi’ was omitted in the FIR, the Trial Court concluded that the FIR was ante-dated and fragmented. It B was also noted that while the tehreer ends with a prayer for police protection, the FIR is silent on the same. ii. Taking into account the time at which PW-1 was medically examined (8.

30 PM), followed by his narration of the incident to PW-3 for scribing the tehreer, the Trial Court held that C the tehreer could not have been prepared within 10-15 minutes. This conclusion was based on a calculation made by the Trial Court on the statement of PW-1 with respect to his medical examination and the lodging of the FIR. Further, the Trial Court considered that the tehreer is D meticulously written without any mistake, which is not possible to be done in less than 30 minutes. For this reason, the Trial Court concluded that the tehreer itself is doubtful and, therefore, even the FIR is doubtful. 30. Contradictions in the timings of lodging the FIR: The Trial Court came to the conclusion that there are inconsistencies in the E statements of PW-1 about the lodging of the FIR. This finding led to the conclusion that the prosecution has not proved the fact beyond a reasonable doubt. The conclusion was based on the following grounds: i.

While the FIR states that the incident took place at 7:30 PM, the fax sent by the Superintendent of Police mentions F the incident as 7. 45 PM. This contradiction cast a doubt on the story of the prosecution, particularly the veracity of the statement of PW-1. ii. Based on the statement of PW-1 that he left the place of occurrence 10- 15 minutes after the incident and reached G the hospital within 3-4 minutes after which he was examined by PW-8 at 8. 30 PM, the Trial Court concluded that the incident could have taken place only at 8. 00 PM and not 7. 30 PM. Yet another reason for the Trial Court to disbelieve the statement of PW-1. H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1053 [PAMIDIGHANTAM SRI NARASIMHA, J. ] 31. Fax sent by Superintendent of Police, Hamirpur: The Trial A Court heavily relied on the fax message sent from the office of the Superintendent of Police, Hamirpur to the higher authorities informing them of the occurrence of the incident.

This fax message, though not part of the investigation was introduced by the defence through DW-3. The description of the events in the FIR are in stark contradiction with B the events narrated in the fax. Relying on the fax and accepting the evidence of DW-3, the Trial Court came to the conclusion that the prosecution failed to prove beyond reasonable doubt, the occurrence of the event at the time mentioned in the FIR, the motive, presence of the accused persons etc. As the fax contradicts the statement of PW-1 his entire evidence must be rejected. C 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 an eyewitness is based on its conclusions about the following inconsistencies in his statement: D i.

The veracity of statement of PW-1 based on the bullet marks on the jonga: Taking note of the bullet marks on the jonga, the Trial Court came to the conclusion that the version of PW-1 that there was indiscriminate firing is unbelievable. The Trial Court held that there was only one bullet hole on the back side of the jonga while the other E parts of the jonga were intact, except a partially broken mirror on driver’s side. On this basis, the Trial Court disbelieved that there was indiscriminate firing towards the jonga by the accused persons. ii. The veracity of statement of PW-1 as it contradicts the F injuries sustained by him: Based on the statement of PW- 1 that he was on the non-driver side of the jonga, the Trial Court came to the conclusion that this version cannot be believed as the injuries sustained by him do not match his own description as if that were true, he would have been in G the direct line of firing and could not have escaped with just one bullet injury on his leg.

iii. The veracity of the statement of PW-1 based on injuries sustained by the deceased persons: The Trial Court came to the conclusion that the gun shot injuries on the body of Rakesh Kumar Shukla do not match the description of PW- H 1054 SUPREME COURT REPORTS [2022] 12 S. C. R. A 1. Similarly, the gunshot wounds received by Sri Kant, Ved Prakash and Gudda were contrasted with the narration of events by PW-1 to disbelieve his version. Further, in view of the fact that there were no independent witnesses to vouchsafe for the incident, the Trial Court concluded that the prosecution failed to establish PW-1’s presence and in B turn the event. iv. The veracity of PW-1’s statement based on the documentary evidence relating to the treatment at the hospital: The Trial Court concluded that the entries made in the medical register were back-dated as there was no C record with respect to any payment made in furtherance of the treatment.

The injury report prepared by PW- 8 indicated that the injuries on PW-1 were on the left knee, whereas the G. D. entry noted that the bandage was on his left calf. This led the Trial Court to disbelieve the injury on PW-1. D Further, with respect to the medical examination of PW-1, it was observed that the Bed Head Ticket, as well as the medical examination report, had certain discrepancies with regard to the timing, date, parental name as well as the place of injury which had over-writing and cuttings. Due to these factors, PW-1’s injuries as well as the medical E evidence were disbelieved. v. Unnatural behaviour by PW-1 during the second incidence: PW-1’s presence at the second incident was also disbelieved by the Trial Court on the ground that his behaviour is unnatural. The reason for such a conclusion is this. The F Trial Court felt that PW-1 should have in the natural course narrated the incident to Rajesh Shukla and Ravi Kant Pandey as they reached the place of occurrence.

Further, the Trial Court held that if the firing was indiscriminate, he could not have narrated the incident with minor details as to who used which gun. In this context, the Trial Court also noted that G PW-1 could not remember the persons who took the children Vipul and Chandan home at the time of the incident. vi. The veracity of PW-1’s statement with respect to electricity connection at the time of the incident: The Trial Court believed the evidence of DW-1, Executive H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1055 [PAMIDIGHANTAM SRI NARASIMHA, J. ] Engineer at the Electricity Distribution Division, Hamirpur A that there was no electricity between 7. 50 PM to 8. 45 PM. In view of this, the Trial Court concluded that PW-1 could not be an eye- witness of the incident as he could neither have identified the accused nor clearly seen the incident. 33.

Trial Court on the testimony eyewitness, PW-2: The Trial B Court disbelieved the presence of PW-2 at the second place of the incident based on its conclusion that the injury on his body was not that of a firearm. The Trial Court held that this witness cannot be believed as there is a contradiction in his statement about who had actually taken the children, Vipul and Chandan home. Further, the Trial Court concluded C that the conduct and behaviour of PW-2 is unnatural as he did not immediately go to the hospital after receiving bullet injuries and also did not accompany his brother who died during the incident. 34. Recovery of weapons: i. The Trial Court disbelieved the story of the prosecution D about the recovery of an 8x60 bore rifle from Sahab Singh during his arrest, as it contradicted the fax message sent by the Superintendent of Police which mentioned the recovery of a 0. 315 bore rifle from Sahab Singh.

Based on this contradiction, the Trial Court concluded that the recovery E from Sahab Singh is false as there are two different rifles mentioned in two different documents. ii. Trial Court found it strange that PW-12 searched only Ashok Kumar Chandel and Raghuvir’s Moradabad house for the murder weapons, and none of the houses of the other accused persons were searched. F iii. In view of the fact that the Court Witness (CW-1) could not recover any weapon from the Moradabad house, the Trial Court concluded that the whole investigation was mala-fide and was intended to implicate Ashok Kumar Chandel. G iv. The Trial Court discredited the seizure of the weapon and the bullet cartridges from Sahab Singh as the statement of PW-14Dy. Superintendent of Police, CBCID that PW-11 and 12 mentioned to him that they recovered 18 bullets, contradicts with evidence PW-11 and 12 who stated that they recovered 10 bullets. H 1056 SUPREME COURT REPORTS [2022] 12 S. C. R. A 35.

Ballistic Report: The Trial Court held that the ballistic report is not admissible in evidence as the requirements of Section 293, Cr. P. C were not followed. 36. Recovery of Railway Manarth Card belonging to Ashok Chandel from the place of occurrence: The Trial Court came to the B conclusion that the Manarth Card recovered from the place of occurrence had expired way back on 12. 01. 1994 which is more than three years prior to the incident. The Trial Court also found that the said Manarth Card was not sealed and stamped like other pieces of evidence. While the Trial Court did not dispute that the Railway Manarth Card belonged to Ashok Kumar Chandel it doubted the recovery from the C place of occurrence. 37. In view of the above findings and conclusions, the Trial Court acquitted all the accused of all the charges. 38. Challenging the judgment of the Trial Court, the State preferred D a criminal appeal and the informant (PW-1) filed a criminal revision before the High Court.

Judgment of the High Court: 39. We have undertaken a detailed description of the reasons and conclusions adopted by the Trial Court only to see if the High Court E while reversing an order of acquittal has sufficient and cogent reasons to interfere with the reasoning of the Trial Court. A strict scrutiny of the judgment of the High Court is necessary as an order of acquittal can be interfered with only for substantial and compelling reasons. Following the same structure adopted by the Trial Court, we will consider and examine the reasons adopted by the High Court with respect to each F and every finding of the Trial Court. 40. As stated earlier, the High Court in appeal convicted all the accused under Sections 148, 302 read with 149, 307 read with 149 IPC and acquitted the accused Ashok Kumar Chandel under Sections 379 and 404 IPC and Section 30 Arms Act. Sahab Singh was also acquitted G of 25 of the Arms Act. The High Court’s findings are as under: 41.

Motive: The High Court held that there is sufficient evidence to conclude that there existed a motive for the Chandel group for committing the offences against the deceased and their men. The High Court concluded on the basis of evidence on record that Rakesh Kumar H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1057 [PAMIDIGHANTAM SRI NARASIMHA, J. ] Shukla along with Rama Kant Pandey (brother of deceased Sri Kant A Pandey) lobbied against Shyam Singh (A7), who was involved in a criminal case. Further, it also came on record that the deceased party opposed Ashok Kumar Chandel in the Assembly Elections. All this, according to the High Court establishes that Shyam Singh and Ashok Kumar Chandel were on hostile terms with the Shukla family. As regards Sahab Singh, it B was held that he was Ashok Kumar Chandel’s private gunner and therefore, he also had the same motive.

In so far as Naseem (A6) is concerned, he was supported by the Chandel group because Naseem’s Educational Institution – Islamia Inter College was in competition with Vidya Mandir, supported by the Shukla Family. In view of all these factors, as indicated above, the High Court concluded that there is sufficient C motive. At the same time, the plea of Ashok Kumar Chandel that he was falsely implicated and that one Alok Purwar alias Titu who is the owner of a petrol pump was responsible for the murders was discarded by the High Court as there was no evidence. 42. High Court’s analysis of the approach adopted by the Trial D Court in drawing its conclusions on the evidence of witnesses and the documentary evidence: Apart from reversing the findings given by the Trial Court on specified issues such as motive, the contradiction in the timing of lodging the FIR, its inconsistencies with the tehreer, reliability on the fax message, recoveries of firearms etc.

, which are being E recounted hereinbelow, the High Court noted a fundamental problem. The problem related to the approach adopted by the Trial Court, the High Court was of the opinion that much of the conclusions drawn by the Trial Court were based on a very technical and pedantic approach in analysing the evidence of witnesses or drawing inferences from the documentary evidence. The technical approach adopted by the Trial F Court has according to the High Court caused grave miscarriage of justice. This is explained by the High Court while dealing with each issue in the following manner. 43. FIR and Tehreer discrepancies: The High Court was of the opinion that the approach adopted by the Trial Court in construing G the tehreer and the FIR were super technical.

The High Court found that the explanation proffered by the prosecution for omissions in the FIR to be genuine as the investigating officer was pressurizing PW-9 who prepared the FIR to provide a copy of the report and therefore, it is reasonable to assume that such omissions could have taken place. H 1058 SUPREME COURT REPORTS [2022] 12 S. C. R. A Moreover, the possibility of a few words being left out while writing a long report cannot be ignored and hence the mistakes were considered bonafide. Rejecting the allegation that FIR is ante-timed, the High Court observed that after PW-1 was treated in the hospital at 8. 30 PM he could go to the police station to lodge an FIR and that there is nothing unnatural about it, considering the nature of his injuries. The High Court B examined the spot map as per which the hospital and the police station were in close proximity.

The documentary evidence supported the statement of PW-1 that he returned to the hospital for proper treatment and was discharged the next day at 09. 00 AM. 44. Testimonies of PW-1 and PW-2: The High Court was of C the opinion that the approach adopted by the Trial Court in discarding the 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 not doubted by the Trial Court. The evidence of PW-1 and PW-2 being injured witnesses cannot be discarded based on minor inconsistencies. D The High Court examined each of the contradictions and inconsistencies found by the Trial Court and concluded that the same was drawn on a speculative premise. The High Court held that, “a perusal of above analysis made by the Trial Court appears to have been done over meticulously with lot of guess work made on this part”. In this context, the High Court relied on the decision of the Supreme Court in E 15 the case of State of U. P. v.

Gokaran and ors . In this case, Supreme Court had interfered with the order of acquittal by the High Court stating that – “it becomes the duty of the Court to interfere with the acquittal in order to redeem the course of justice. the High Court has adopted a hyper-technical approach to the entire prosecution F case. “ 45. Reversing the finding of the Trial Court based on the evidence of DW-1, Executive Engineer, Electricity Distribution Division, Hamirpur suggesting that there was no power during the time of occurrence of the incident, the High Court held that even according to DW-1, he was not G sure as to which phase the electricity connection to the Subhash Market was connected. Yet again, the High Court felt that the Trial Court judgment is based on surmises and conjectures, particularly when there were direct injured eye-witnesses. 15 (1984) Supp SCC 482. H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1059 [PAMIDIGHANTAM SRI NARASIMHA, J. ] 46.

On the question of contradictions in the statements of PW-1 A and PW-2 with regard to their position and injuries sustained, it was held that the Trial Court was incorrect in discarding their testimonies as in a situation of indiscriminate firings, it becomes very difficult for any witness to recollect as to who exactly was shooting at whom and from which exact direction. It was also observed that it is too much to expect an B injured witness to depose distinctly about each and every injury received by the deceased and other injured persons. The High Court went on to observe that the Trial Court paid more attention to ascertain as to which particular injury was caused in what sitting position to the injured and the deceased rather than looking at the incident as a whole. The findings of the Trial Court doubting the presence of the witness on technical grounds C was 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 look after the injured children Vipul and Chandan and hence he went home, and this is completely natural. D 48. Recovery of Weapons: The High Court rejected the findings of the Trial Court with respect to (a) the fax message sent by the Superintendent of Police mentioning the arrest of Sahab Singh with a 0. 315 bore rifle as opposed to the recovery memo which mentioned 8x60 bore rifle recovered from Sahab Singh (b) non-examination of a E public witness during the arrest and recoveries (c) the search made during the arrest of the accused for the following reasons. 49. The High Court came to the conclusion that the Trial Court erred in arriving at the decision that there was no recovery made from Sahab Singh on the basis of the fax message. The High Court found that F the conclusions of the Trial Court were perverse as the 0.

315 bore rifle in 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 seizure was not corroborated by an independent witness and therefore it G proceeded 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 of Manarth Card (railway travel card) belonging to Ashok Kumar Chandel is concerned, the Trial Court’s decision to discard the same as the card had expired long before the incident was rejected by the High Court for H 1060 SUPREME COURT REPORTS [2022] 12 S. C. R. A the reason that it is not uncommon that people carry passes or ID cards even after the date of expiry. According to the High Court, the recovery of the card cannot be rejected just because the validity of the card expired before the incident.

The High Court also observed that the Investigating Officer has nothing against Ashok Kumar Chandel to falsely implicate him. B 51. Ballistic Report: Accepting the ballistic report, the High Court observed that the report was forwarded by one of the Director/ Deputy Director/ Assistant Director of the said lab under the seal. This is in compliance with the statutory requirement under Section 239 Cr. P. C and hence the report was not discarded and was considered admissible. C 52. In support of its conclusions, the High Court relied on the 16 decisions of this Court in Masalti v. State of U. P. ; Praveen Kumar v. 17 18 State of Karnataka ; State of U. P v. Gokaran and ors ; Menoka 19 Malik and ors v. State of West Bengal and ors . Submissions on Behalf of the Appellants: D 53. In this batch of appeals, we heard Mr. Harin P Raval, Mr. Siddharth Dave, Mr. Jayant Muthuraj, Mr. Ratnakar Dash, Mr. Basava Prabhu Patil, Mr. Vishvajit Singh, Senior Advocates, followed by Ms.

Bansuri Swaraj, Advocate for the Appellants. We have also heard, Ms. Aishwarya Bhati, Learned Additional Solicitor General and Mr. A. K. E Mishra, Additional Advocate General for the State of U. P. and Ms. Sonia Mathur, Senior Advocate for the Informant. 54. The senior counsels were assisted by S/Shri Shiv Kumar Pandey, Abhay Raj Singh Chandel, Chandrashekhar A. Chakalabbi, Awanish Kumar, Abhinav Garg, D. Girish Kumar, Kumar Vinayakam F Gupta, 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 Singh Saluja, Ms. Prerna Dhall, Ms. Noor Rampal, Ms. Aastha Mehta, Ms. Ishita Sinha, S/Shri Rohit Pandey, Murari Tiwari, Advocates, Ramjee G Pandey, 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. 19 H (2019) 18 SCC 721.

ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1061 [PAMIDIGHANTAM SRI NARASIMHA, J. ] Ms. Shreyase Aggrwal, Shri Ashiwan Mishra, Advocates, S/Shri A Kamlendra Mishra, Shashank Singh, AOR, Anupam Chaudhary, Manoj Kumar Dwivedi, Mrinal Kumar Sharma, Ms. Ana Upadhyay, Shri Akash Singh, 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. B 55. We will encapsulate the submission of the learned counsels for the Appellants as well as the State before we proceed to analyze and answer the same. 56. Leading the arguments on behalf of the Appellants, Mr. Harin Raval for A5 submitted that in case of an appeal against acquittal, there C is a double presumption in favour of the accused. As having secured an acquittal from one of the courts, the presumption of his innocence is reinforced and reaffirmed.

Therefore, if two conclusions are possible on the basis of the evidence on record, then the appellate court should not disturb the finding of acquittal recorded by the trial court. He relied on 20 D the decision of this Court of N. Vijaykumar v. State of Tamil Nadu . He also submitted that the High Court has reversed the findings of the Trial Court without providing any reasons and has simply supported its findings by stating that the Trial Court decision was based on assumptions and speculations. E 57. As the substantial part of the case of the prosecution is dependent on the evidence of PW-1, he rightly focused on the credibility and veracity of the evidence of this witness. He argued that the following features of the case would make it clear that PW-1 was not present at the 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 F (non-driver side) when he was speaking to deceased Rakesh Shukla at which point the alleged ‘indiscriminate’ firing began from Naseem’s gun shop. If this were true, in this positioning PW-1 would have been in the direct line of firing and could not have escaped with one bullet injury on G his leg. Further, as per the evidence of PW-8, the bullet injury on PW-1 was on the upper portion of his left leg, which would only be possible if his back was facing the assailants. 20 (2021) 3 SCC 687. H 1062 SUPREME COURT REPORTS [2022] 12 S. C. R. A ii. Since, PW-1 had stated that he was on the non-driver side and so was deceased Gudda in the jonga who received fatal injuries, it is highly improbable that PW-1 did not receive any injuries in the first incident while being present on the non-driver side. B iii. As per PW-1’s evidence, he was standing in front of the jonga during the first incident when there were bystanders.

However, none of them were made witnesses and examined by the prosecution. iv. During the second incident, when deceased Rajesh Kumar C Shukla was injured by 16 bullets as per the post-mortem report, it is highly improbable that PW-1 would receive minor injuries on the lower part of the body while standing adjacent to Rajesh. v. As per the evidence of PW-5 (Dr. PN Paya), Rakesh Shukla received injuries on his left side which contradicts D his position in the jonga on the right side. vi. PW-9 had stated that when PW-1 reached the police station to lodge the FIR, the bandage was on his calf, however, as per PW-1’s injury report, his injuries were on his thigh. If he had received immediate medical treatment from PW-8 E then his bandage would have been on the thighs. vii. PW-2 sustained a 2x2 CM wound which cannot be caused by a rifle, DBBL or an SBBL gun. Therefore, the description of the firearms as deposed by PW-1 cannot be believed.

Moreover, no firearms were recovered expect F for the one recovered from Sahab Singh which is also not proved to be used in the incident. 58. 1 Referring to the contradictions arising out of the treatment of PW-1 in the hospital the learned counsel tried to establish that the presence of PW-1 is doubtful for the following reasons: G i. The Bed Head Ticket of PW-1 does not mention an X-Ray recommendation. ii. There is no entry in the cash register of any money being deposited regarding any X-Ray or treatment being done. H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1063 [PAMIDIGHANTAM SRI NARASIMHA, J. ] iii. It was deposed by PW-1 that the X-Ray took place at 10 A PM 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, B Ravi Kant, Hardayal and Vipul to the hospital for X-Ray on 28. 01.

1997 and he also brought them back home. Thus, the statement of PW-1 regarding the X- Ray is doubtful. Moreover, a material witness, Srideen was never examined by the prosecution. C 58. 2 It was argued that if PW-1 was admitted to the hospital on 26. 01. 1997 and was discharged only on 27. 01. 1997 at 9 AM, his statement that he went to the police station at 09. 10 PM to register the FIR and then returned to the hospital and then to the place of occurrence at 10 PM cannot be believed. PW- 1 stated that he took all the dead bodies to the hospital, however, the police memo initially recorded four D bodies and the fifth dead body was received after 9 PM. If PW-1 left to lodge the FIR at 9 PM and at the same time if the hospital records received the fifth body at 9 PM then how was PW-1 aware of this fact to mention it in the tehreer which was written at 8. 30 PM. In light of this, it was contended that the FIR is ante-timed.

The learned Senior E Counsel submitted that there is only one hole on the left side of the windscreen of the jonga and the remaining parts were intact. If this is true, then the version of PW-1 that the incident was of indiscriminate firing cannot be believed. Further, as per the evidence of PW-4, there was no diesel in the jonga and this is directly in line with the defence theory put up that, the incident was a result of a quarrel with one Titu F regarding moving the jonga which according to Rakesh Shukla had no diesel. In this context, the fax message sent by S. P. Mathur was relied on. It is submitted that Hardayal was treated in the hospital at 8. 30 P. M and therefore, the statement of PW-1 that he did not see Hardayal cannot be believed. G 58. 3 Mr. Raval submits that the fax sent by S. P. Mathur to the higher authorities mentions arrest of Sahab Singh on 26. 01. 1997 with 315 bore rifle and what is shown in the recovery memo is an 8x60 bore rifle.

The High Court’s findings that rifle of 8x60 bore and 315 bore are the same is fallacious as the conversion comes to 480 bore. H 1064 SUPREME COURT REPORTS [2022] 12 S. C. R. A 59. 1 Questioning the presence of PW-2 at the scene of the offence Mr. Raval submitted that: i. The conduct of PW-2 was very unnatural as he reached the hospital only at 10 PM even though he had allegedly received a bullet injury. Moreover, his brother Sri Kant B Pandey has also died. ii. PW-2 stated that Chandan and Vipul were sent home with someone from the Mohalla but they were neither produced nor examined by the prosecution. There is also a material contradiction as to whether PW-2 took Vipul and Chandan C home or not. 59. 2 Mr. Raval also relied on the evidence of the defence witness DW-1, to discredit prosecution witnesses, PW-1 and PW-2 on the ground that there was no electricity at the place of occurrence when the incident happened. D 60. 1 Mr.

Siddharth Dave, learned Senior Advocate appearing for Ashutosh Singh alias Dabbu (A2), argued that no evidence was led by the prosecution to prove how two groups of accused gathered at one place by forming an unlawful assembly in pursuance of a common object to fire indiscriminately at the persons sitting in the jonga. It is the case of the prosecution that at around 7. 30 PM on 26. 01. 1997, PW-1 along with E his servant Lallan who had gone to purchase some articles from the market met Rakesh Shukla in the jonga. If the said meeting was a chance meeting, then the formation of an unlawful assembly with a common object would stand disproved. Moreover, there were no allegations as to at 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 and therefore, it was incumbent upon the prosecution to lead evidence as to when the unlawful assembly in the first part dispersed and when it gathers again during the second incident. In light of this, it was argued that offence under Section 149 was not made out by the Appellants as there was no G evidence to prove the formation of an unlawful assembly with a common object. The Counsel placed reliance on the judgments of this Court in 21 22 Nawab Ali v. The State of U. P. , Masalti v. State of U. P. and State 21 (1974) 4 SCC 600. 22 (1964) 8 SCR 133. H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1065 [PAMIDIGHANTAM SRI NARASIMHA, J. ] 23 of Rajasthan v. Shiv Charan and ors to say that it is incumbent upon A the prosecution to show that the person concerned was a member of the unlawful assembly at the time of the commission of the offence.

Moreover, mere presence or association with other members alone is not per se sufficient to hold that each member is criminally liable for the offence committed by the others, unless, there is sufficient evidence on B record to show that each member intended to or knew the likelihood of commission of such an offending act, being a member of the unlawful assembly as provided for under Section 149, IPC. 61. Mr. Jayanth Muthuraj, learned Senior Advocate, appearing for Pradeep Singh (A4), submitted on the improbabilities of the first as C well as the second incident. With respect to the first incident, he would say that PW-1 sustained no injury and it has remained unexplained how the new vehicle comprising of five people comes all of a sudden and starts firing, and even after that PW-1 was not injured. So far as the second incident is concerned, he took us to the inquest report and argued that the prosecution is not able to explain interpolation and cutting D in many places.

He argued in similar lines as that of Mr. Raval about the non-examination of certain witnesses, he also submitted that there were contradictions about sending Vipul and Chandan to the house. Who took them to the residence is a mystery. He also touched upon the issue relating to the delay in FIR, the fax message sent by the E Superintendent of Police and the recovery of Manarth card bearing the name of Ashok Kumar Chandel near Naseem’s shop and the evidence of DW-1 establishing that there was no electricity at the time of the incident. 62. Mr. Ratnakar Dash, learned Senior Counsel appearing for F Uttam Singh (A3) and Bhan Singh (A10) commenced with U. P. Police Regulation 97 about the recording of the FIR. He, however, did not pursue this submission. He adopted the same line of submission as that of Mr. Raval about the credibility of the PW-1 in view of the uncertainty about the injuries. Mr. Dash argued that there was no motive attributable to his clients Uttam Singh and Bhan Singh.

He adopted the same G argument as that of Mr. Siddharth Dave with respect to the second incident and concluded by stating that there are no recoveries from Uttam Singh as well as Bhan Singh. 23 (2013) 12 SCC 76. H 1066 SUPREME COURT REPORTS [2022] 12 S. C. R. A 63. Mr. Basava Prabhu Patil, learned Senior Advocate, appeared on behalf of Sahab Singh (A8) submits that his client’s name appears in the 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 his client is prosecuted as accused no. 8. He submits that his client is a farmer and he is falsely implicated. Mr. Patil also questioned the veracity B of the evidence of PW-1 and PW-2. He argued that the prosecution has taken the Government gunner out and substituted him instead. He has nothing to do with Chandel and the recovery of the rifle, for this he relied on 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 sent C by Mr. S. K. Mathur, SP to his superior officers. In the fax, it is alleged that Ashok Singh Chandel’s private gunner Sahab Singh was arrested while carrying a 0. 315 bore rifle before the alleged arrest on 27. 01. 1997. Mr. Patil submitted that though his client was acquitted of the charge under Section 25 of the Arms Act, in view of the fact that the recovery was not based on any independent witness he was convicted under D Section 302, IPC along with all others only on the basis of evidence given by PW-1. 64. Ms. Bansuri Swaraj, learned Advocate made submissions on behalf of Naseem (A6) who is referred to as the Bandukwala. She submitted that Naseem is 70 years old and has no motive to indulge in E the crime at all. She joined the other counsels in making the common argument about the contradictions in statement of PW-1 and PW-2.

Questioning the arrest memo, she argued that if the fax mentions Sahab Singh’s arrest before 27. 01. 1997, then Naseem’s arrest along with Sahab Singh as evidenced by the arrest memo dated 27. 01. 1997 is a forged F document. Finally, she concluded by stating that no recovery of weapons was made from his client. Submissions by the State: 65. The State was represented by the Learned Additional Solicitor General, Ms. Aishwarya Bhati. The learned ASG commenced her G submission with the occurrence of the incident on 26. 01. 1997 which is not disputed. The death of 5 persons was also not disputed. With the aid of a pictographic depiction of the site map and injuries on the body, she explained the incident in the context of place, time, and persons involved. Recounting the relationship between the parties, from the very beginning she states that there is sufficient evidence to conclude that there is a H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1067 [PAMIDIGHANTAM SRI NARASIMHA, J.

] longstanding rivalry between the group of Chandel, Raghuvir Singh, A Naseem, and other members as against the group comprising of the Shukla family. 66. Learned ASG identified the injuries of the witnesses and the deceased and compared them with the documentary evidence and the statements of doctors to emphasize the veracity of the eyewitnesses. B She has also referred to the post-mortem report of Rakesh Shukla, Rajesh Shukla, Srikant Pandey, Gudda, and Ved Prakash and again co-related it to the evidence of the doctors who were examined with the corresponding exhibits. This is another factor, according to the learned ASG to add credence to the statement of the eyewitnesses. C 67. Learned ASG referred to the evidence of PW-1 in detail and sought to correct the statements made by the witness with the evidence on record.

She would further submit that there is no reason to disbelieve the evidence of the eyewitnesses and if their version is accepted then the various possibilities and contradictions that the Appellants have suggested have to be discarded. The learned ASG laid emphasis on the D approach adopted by this Court in dealing with an appeal against acquittal and submitted that there is no inviolable rule that an Appellate Court would refrain from interfering with the judgment of acquittal even if there is grave miscarriage of justice. 68. Referring to the submission of the Appellants that non- E examination of witnesses would be fatal for the prosecution, she has referred to certain decisions of this Court indicating the correct approach that needs to be adopted. The reasoning adopted by the High Court in reversing the decision of the Trial Court was brought to our notice.

The learned ASG emphasized that the Trial Court had adopted a super F technical approach in analyzing the statement of the eyewitnesses and rejected them without appreciating the principles on the basis of which an injured eyewitness evidence is to be considered. It is her submission that the Trial Court has committed a serious error in acquitting all the accused in the teeth of clear evidence of the eyewitnesses. The learned ASG concludes by saying that the High Court has not committed any G error, in fact or in law while reversing the decision of the Trial Court. For this reason, she had prayed dismissal of these appeals. Submissions by the Informant: 69. Ms. Sonia Mathur learned Senior Counsel supporting the learned ASG has submitted that there is sufficient proof of the presence of PW- H 1068 SUPREME COURT REPORTS [2022] 12 S. C. R. A 1 in the first as well as the second incident.

She referred to the 1995 murder involving Shyam Singh, where Rakesh Kumar Shukla and Rama Kant Pandey assisted the prosecution. These incidents coupled with the Shukla family and associates opposing Ashok Chandel in the Assembly Election are a strong motive for killing five members of the Shukla family. In the alternative, she has submitted that in view of the presence of B injured eyewitnesses the need to prove motive becomes irrelevant. Ms. Sonia Mathur took us through the compilation comprising important pieces of evidence and explained the position in which the witnesses and the deceased got bullet injuries and corroborated them with the medical evidence. She has also supported the prosecution on all the points that C were taken up by the ASG. Analysis and Findings: 70. Preliminary: We will commence with dealing with three preliminary submissions, commonly urged by all the learned counsels for the Appellants.

First of this submission relates to the error committed by D the High Court in interfering with the judgment of the Trial Court while exercising jurisdiction of a criminal appellate court against an order of acquittal. The second common submission relates to the alleged failure on the part of the prosecution to establish a clear motive for the accused to commit the offences. The third submission advanced by some of the counsels relates to the lack of evidence regarding the occurrence of the E event and that too at two places. 71. After the preliminary submissions, we will deal with the arguments advanced by the defence to impeach the veracity of the testimonies of PW-1 and PW-2 as the injured eye-witnesses.

These arguments relate to the discrepancies in the timing of lodging of the FIR F and contradictions about the presence of PW-1 at the place of incidence because 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 the deceased at the time of the incident (c) the contradictions arising out of the timing of X-Ray reports and issuance of the Bed Head Ticket (d) G and the absence of electricity at the time of the incident. With respect to PW-2, we will examine the submissions (a) regarding his presence at the place of the incident (b) injuries sustained by him (c) his unnatural behaviour at the time of the incident. 72. We will then deal with the submission questioning the conviction under Section 149 IPC. Thereafter, we will deal with the contradictions H ASHOK KUMAR SINGH CHANDEL v. STATE OF U. P. 1069 [PAMIDIGHANTAM SRI NARASIMHA, J. ] in the FIR on the basis of the fax message.

Then, dealing with the A submission 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 will finally deal with the submission about the admissibility of the ballistic report. B I. Jurisdiction of the High Court in Appeals Against Acquittals 73. This is the first preliminary submission and it is based on a principle laid down by this Court that in an appeal against acquittal, the criminal appellate court will not interfere with the acquittal unless there are substantial and compelling reasons. The common submission of C all the counsels appearing for the Appellants is, therefore, that the High Court was not justified in reversing the order of acquittal. 74. The position of law with respect to the jurisdiction of the High Court in cases of appeals against acquittals is well established.

After reviewing the judgments on this subject, this Court clarified in D 24 Chandrappa and Ors v. State of Karnataka that: “3. Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an E appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. ” F 75. It is sufficient to note the principle laid down in the Constitution 25 Bench of this Court in M. G. Agarwal v. State of Maharashtra : “16.

…But the true legal position is that however circumspect and cautious the approach of the High Court may be in G dealing with appeals against acquittals, it is undoubtedly entitled to reach its own conclusions upon the evidence adduced by the prosecution in respect of the guilt or innocence 24 (2007) 4 SCC 415. 25 (1963) 2 SCR 405. H 1070 SUPREME COURT REPORTS [2022] 12 S. C. R. A of the accused. This position has been clarified by the Privy Council in Sheo Swarup v. King Emperor and NurMohammad v. Emperor [AIR 1945 PC 151] ... 17. …Similarly in Ajmer Singh v. State of Punjab [(1953) SCR 418] it was observed that the interference of the High Court B in an appeal against the order of acquittal would be justified only if there are “very substantial and compelling reasons to do so”. In some other decisions, it has been stated that an order of acquittal can be reversed only for “good and sufficiently cogent reasons” or for “strong reasons”.

In appreciating the effect of these observations, it must be C remembered that these observations were not intended to lay down a rigid or inflexible rule which should govern the decision of the High Court in appeals against acquittals. They were not intended, and should not be read to have intended to introduce an additional condition in clause (a) of Section D 423(1) of the Code. All that the said observations are intended to emphasise is that the approach of the High Court in dealing with an appeal against acquittal ought to be cautious because as Lord Russell observed in the case of Sheo Swarup, the presumption of innocence in favour of the accused “is not certainly weakened by the fact that he has been acquitted at E his trial”. Therefore, the test suggested by the expression “substantial and compelling reasons” should not be construed as a formula which has to be rigidly applied in every case.

That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan [AIR 1961 F SC 715] and Harbans Singh v. State of Punjab [AIR 1962 SC 439] and so, it is not necessary that

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