- (1.) Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court allowing the appeal filed by the State of U.P. questioning the judgment of acquittal passed by learned Additional Sessions Judge, Special Judge (E.C. Act), Mainpuri in Sessions Trial No.169 of 1993. Two persons i.e. the present appellant and his wife Smt. Kapoori Devi were tried for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC') for the murder of one Jagat Singh (hereinafter referred to as the 'deceased'). The trial Court directed acquittal of the appellant primarily on the ground that there was discrepancy between the ocular evidence and the medical evidence, independent witnesses were not examined. In appeal filed by the State, the High Court held that while the acquittal of Smt. Kapoori Devi (A-2) was correct, the same was not sustainable so far as the present appellant is concerned.
(2.) Background facts in a nutshell are as follows: The incident took place on 23.9.1992 at about 12.20 p.m. at the house of the deceased Jagat Singh and the accused persons situated in village Chhibkaria, P.S. Bhongaon, District Mainpuri. The report was lodged on 23.9.1992 at 1.45 p.m. by the eye- witness Jaivir Singh (PW-1-who was nephew of the deceased). The accused are also close relatives of the deceased. Suraj Singh is son of Ram Sahai Yadav who was real brother of father of the deceased. Suraj Singh was a police constable and was posted at Aligarh. He was in shadow duty of an Ex-M.L.A. On the day of incident, he was going from his house to join his duty. The deceased Jagat Singh asked him to go after constructing the earth partition of the agricultural plot. Accused Suraj Singh abused him. His wife Kapoori Devi exhorted him to go after finishing him. Suraj Singh and his wife then climbed up their roof. Suraj Singh fired two shots from his gun whereas his wife Kapoori Devi fired three shots from a revolver which hit Jagat Singh who died instantaneously. The incident was seen by Sant Saran (PW.2) as also by Dafedar Singh, Gajraj Singh, Atar Sri- wife of Jagat Singh and other villagers. Consequent upon the registering of the case, investigation was taken up by S.S.I. S.K. Dixit (PW.5.) The postmortem over the dead body of the deceased was conducted by Dr. D.S.Rathore (PW.4) on 24.9.1992 at 1.45 P.M. The following ante-mortem injuries were found on his person who aged about 50 years. 1. Lacerated wound 0.5 cm x 0.3 cm x muscle deep on front aspect of left ear pinna middle part. 2. Firearm wound 0.5 cm x 0.3 bone deep on right and front aspect of upper part of nose 1.00 cm below root of nose, underlying nasal bone fractured. Margins charred. 3. Lacerated wound 1.00 cm x 0.4 cm x muscle deep on outer and front aspect of right upper arm, 11.00 cm above the right elbow joint. 4. Two firearm wounds 0.5 cm x 0.3 cm x skin deep anterior outer aspect of right upper, arm, placed 3 cm apart, just above the right elbow. Margins charred. 5. Firearm wound of entry 0.4 cm x 0.3 cm x muscle deep on front of neck 2.5 cm right to midline just above the clavicle. Margins inverted and charred. 6. Firearm wound of entry 0.3 cm. x 0.3 cm. x muscle deep on right side of neck 3.00 cm away from injury No.5 just 3.00 cm above the clavicle. Margins charred and inverted. 7. Multiple firearm wounds of entry 0.4 cm x 0.3 cm x chest cavity deep to 0.4 cm x 0.4 cm muscle deep in size in an area of 7.00 cm x 6.00 cm on front of chest midline on both sides in middle part of front chest. Margins charred and inverted. 8. Firearm wound of entry 0.4 cm x 0.4 cm x chest cavity deep on lower part front and outer aspect of right side of chest 11.00 cm away from right nipple, at 7 O'clock position. Margins inverted and charred. On internal examination, two metallic pieces were recovered from the soft tissues of the neck, two from left ventricle, one pellet from right chest cavity and one from abdomen cavity. The death had occurred due to shock and haemorrhage owing to ante-mortem injuries. Apart from the medical and formal evidence including that of investigation, the prosecution relied upon the testimony of Jaivir Singh (PW-1) and Sant Saran (PW-2) as eye-witnesses. The defence was of denial. Trial Court held that there were discrepancies and accusations have not been established. An appeal was filed by the State. The High Court found that there was no discrepancy so far as the medical evidence and the ocular evidence is concerned. It was also held that non examination of other persons did not adversely affect the credibility of the evidence tendered, and when there is direct evidence of eye witnesses the alleged inconsistency relating to distance from which the gunshots were fired is of no consequence particularly when the prosecution version relating to assault by guns and pistol substantially tallied with the medical evidence. Accordingly, appellant was found guilty of offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life.
(3.) In support of the appeal, learned counsel for the appellant submitted that the High Court had not kept in view the parameters of an appeal against acquittal. It is submitted that when two views are possible on the basis of the evidence on record and the one favourable to the accused is taken by the trial Court, same should not be disturbed.;