STATE OF U.P.versusGURU CHARAN & OTHERS

                / , // [2610] 2 S.C.R. 1110


A                         STATE OF U.P.
                                  v.
                   GURU CHARAN & OTHERS
              (Criminal Appeal No. 297-298 of 2002)
                       FEBRUARY 23, 2010
B
         [B. SUDERSHAN REDDY AND SURINDER SINGH
                        NIJJAR, JJ.]

        Constitution of India, 1950 - Article 136 - Appeal against
C acquittal - Scope of interference - Allegation of murder of two
  and murderous assault on one - Conviction of two accused
  u/s. 302134 and sentenq,ed to death, and other u/s. 307 and
  sentenced to life imprisonment - Acquittal by High Court -
  Interference with - Held: Scope of interference under Article
D 136 in an appeal against acquittal is rather limited - View
  taken by High Court was plausible and possible one - On
  basis of the evidence, High Court concluded that the
  prosecution failed to prove the guilt of assailants - Thus, the
  findings recorded by High Court does not warrant any
E interference -Penal Code, 1860 - ss. 302134 and s. 307.
       According to the prosecution case, RN, his son-in-
  law J, VK-PW 1 and N-PW 2 were traveling in a private
  bus. RN was carrying his licensed double barrel gun and
F bandolier of cartridges. When the bus stopped on the
  way, S, P, GC and BP armed with weapons boarded the
  bus. They fired sever&I shots at RN, resulting in his death.
  J tried to run out of the bus but he was caught and killed
  by the assailants. When PW2 tried to save J, BP inflicted
  knife injuries on him. The driver of the bus was also
G attacked with a knife. Motive for the offence was the
  enmity between the two parties. The trial court convicted
  S, P and GC uls. 302134 and sentenced to death whereas
  BP was convicted uls. 307 and sentenced to life
  imprisonment. The High Court acquitted all the accused
H                               1110

    ''
     STATE OF U.P. v. GURU CHARAN & ORS.                1111


of all the charges and rejected the Reference made by the       A
Sessions Judge for confirmation of death sentence
awarded to S, P and GC. Hence the present appeals.

    Dismissing the appeals, the Court
     HELD: 1. On examining the evidence as well as the B
findings recorded by the courts below, the view taken by
the High Court is both plausible and possible. The scope
of interference in Article 136 of the Constitution of India,
1950 in an appeal against acquittal is rather limited.
Applying the principles with regard to the scope of C
interference by this Court under Article 136, to the facts
and circumstances of the instant case, the findings
recorded by the High Court does not warrant any
interference. [Paras 26 and 30] [1129-F-G; 1132-F]
                                                             D
     State of Uttar Pradesh vs. Banne alias Baijnath and Ors.
2009 (4) SCC 271; State of U.P. vs. Harihar Bux Singh and
Anr. 1975 (3) SCC 167; State of U.P. vs. Gopi and Ors. 1980
Supp. SCC 160; State of Uttar Pradesh vs. Ashok Kumar and
Anr. 1979 (3) SCC 1, relied on.
                                                                E
     2.1. In its well reasoned and detailed judgment, the
High Court re-examined the entire evidence. While
considering the evidence of PW 1-VK, it is noticed that
GC who is said to be the main assailant did not have any
motive to commit the murder of the deceased. He was             F
simply a witness in the murder case against deceased
RN. PW1 in the evidence had stated that GC armed with
a licensed .315 bore rifle had entered the bus and fired
7-8 rounds on his uncle i.e. deceased RN; that due to the
injuries his uncle died there and then, in the bus itself;      G
t~at his brother-in-law J immediately got down from the
bus and started running in order to save himself but the
respondent fired upon. him and he too was killed outside
the bus; and that when PW 2 came forward to save G,
                                                                H
    1112   SUPREME COURT REPORTS              [2010] 2 S.C.R.


A BP stabbed him with his knife. He emphatically stated that
  no other person received any injuries. But then it is stated
  that when the driver of the bus tried to move the bus he
  too was stabbed. It is noticed that according to the
  witness PW 1, he was sitting at the back of the bus. When
s his uncle was being shot at, he hid behind the seat. Every
  other person tried to get o_ff the bus. Even people in the
  nearby fields ran away for fear of the assailants. The
  assault was so ferocious that two persons were killed,
  two were injured. The two injured had no enmity with the
c respondents. On the other hand, PW1 was a co-accused
  in the murder of V, yet he suffered no injury. He made no
  effort to save his uncle RN. His account of the incident
  is so graphical that he could only do this if he was visible
  to the respondents. In that case, he would not have been
  spared. Therefore, the High Court doubts his presence
0
  at the scene of the crime. On an analysis of his evidence,
  the High Court concluded that the evidence of this
  witness was unbelievable for a number of reirsons.
  [Paras 16 and 17] [1125-C-H; 1126-A-C]

E      2.2. High Court noticed that even the inquest report
  was specially prepared-to show the presence of PW1 at
  the place of occurrence, when the investigating officer
  visited the spot. But PW1, in his cross-examination stated
  that after handing over written report to the Head
F Constable at the police station, he went to sleep and did
  not know what happened after that. However, he admitted
  his signature on the inquest report of the deceased RN.
  He also stated that his signatUre was obtained at the
  police station. Thus, according to PW 1, he never went
G to the spot during the night after reporting the crime. On
  the other hand, the investigating officer states-that he was
  present at the spot between 9-10 p.m. Thus, according
  to the High Court, the investigating officer has been over
  enthusiastic to ensure the presence of PW 1 which was,
H
      STATE OF U.P. v. GURU CHARAN & ORS.                1113


to say the least, doubtful. The High Court also found the        A
evidence of PW 1 about injuries on VR, bus driver, was
contrary to the medical evidence. PW 5-doctor stated that
VR had suffered a lacerated wound caused with a blunt
weapon, whereas PW 1 stated that he was stabbed with
the knife. [Para 18] [1126-D-H; 1127-A]                          B

     2.3. PW 1 stated that GC caught hold of J and made
him fall down. Then P and S fired at him from a distance
of about two feet. There is no mention of any knife injury
but the post mortem report shows that J had sustained            c
one incised wound 3.5 x 12.5 cm on right side of the
chest. Thus,_ the version is contradicted by medical
evidence. Then PW 1 stated that GC had fired a number
of shots at his uncle RN deceased from his licensed .315
bore rifle. The empty cartridges had fallen in the bus.          0
These were collected by the Investigating Officer. The
licensed rifle of GC was taken into possession. The
empty cartridges recovered from tfle spot and the rifle of
GC was sent to forensic Science laboratory for
comparison. The test report shows that the cartridges            E
were not fired from the licensed gun of GC. [Paras 19 and
20] [1127 -B-0]

     2.4. High Court noticed that PW 2 who had been
seriously injured and was in need of urgent medical
attention was not taken in the jeep when VR and VK PW            F
1 proceeded to the police station. This casts a doubt on
the version given by PW 1. PW 2 claims to be in the bus.
He stated that RN was shot dead by all the accused, who
fired at him from their respective weapons; that J was
pulled down to the ground and being shot; and that when          G
he tried to intervene, BP caused injuries on him with a
knife. He still carries the marks of the injuries. His version
of when he got the injuries is not supported by the
medical examination. High Court noticed the evidence
                                                                 H
    1114   SUPREME COURT REPORTS              [2010] 2 S.C.R.


A given by P.W.6-doctor who had examined the injuries of
  PW 2 at place A at 3.50 a.m. PW 6 in his evidence stated
  that it was a fresh case of stab injuries and injuries were
  fresh in duration and by fresh injuries he meant the
  injuries caused within 6 to 10 hours. He also found that
B injuries 1 and 3 were bleeding and caused by one
  weapon. Fresh injuries are the injuries which are caused
  within 6 hours. No doubt there may be variation of two
  hours on either side. Thus the fresh injuries could be
  termed injuries within 4 to 8 hours and not more than 8
c hours. On the basis thereof, the High Court was of the
  opinion that since PW 2 was examined about 12 hours
  after the injuries were caused, they could not be
  described as fresh injuries. [Paras 21, 22 and 23] [1127-
  E-H; 1128-A-C]
D       2.5. High Court noticed the claim of P.W.2 that after
  the occurrence he was brought to the police station. He
  was medically examined at place S and thereafter shifted
  to place E. From place E he was further shifted to place
  A. But P.W.6-doctor who had_ examined PW 2 at place A
E stated that no reference slip was shown to him. The
  prosecution also did not file any injury report on the
  reference slip prepared at place S or place E. Although
  PW 2 claims to have been brought to the police station
  by the police personnel he did not identify any particular
F police officer who helped him. In fact, the investigating
  officer-BS in his evidence stated that PW 2 did not meet
  him on the date of the occurrence. High Court also
  noticed that although PW 2 had stated that appellant GC
  had fired at RN from his licensed .315 bore rifle, the empty
G cartridges recovered from the bus had not been fired
  from the licensed rifle of GC. High Court noticed that PW
  2 failed to explain the circumstances in which J sustained
  knife injuries, as according to PW 2, the respondents P,S
  and GC had fired at J. [Para 24] [1128-E-H; 1129-A]
H
      STATE OF U.P. v. GURU CHARAN & ORS.              1115


     2.6. Upon the thorough examination of the entire          A
witness, the High Court concluded that the evidence of
PW 2 is falsified by the evidence of PW 6-doctor.
Consequently, PW 2 was held to be unreliable witness.
After examination of the eye witnesses who testified for
the prosecution, the High Court noticed another relevant       B
omission in the case of the prosecution. According to the
prosecution witnesses, the driver sustained injuries in the
same incident and by the same assailants. He was also
an eye witness. He was alleged to have taken P.W.1 to
the police station. Yet he was not examined by the             c
prosecution. The witnesses stated that there were
numerous other passengers in the bus. These
passengers were said to have quickly got off the bus.
Although there was sustained firing by the assailants in
the bus, none of the other passengers were injured. The        0
prosecution also did not care to examine any other
passenger who would have been the eye witness to the
whole transaction. In this state of the evidence, the High
Court concluded that the prosecution miserably failed to
prove the guilt of the respondents for the murder of RN        E
and J and the murderous assault of PW 2. [Para 25] [1129-
A-E]

                     Case Law Reference:
    2009 (4) sec 211           Relied on.          Para 26
                                                               F
    1915 (3) sec 167           Relied on.          Para 27
    1980 Supp. sec 160         Relied on.          Para 28
    1919 (3) sec 1             Relied on.          Para 29
                                                               G
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 297-298 of 2002.

    From the Judgment & Order dated 3.7.2000 of the High
Court of Judicature at Allahabad in Criminal,Appeal No. 1795
and 2018 of 1999.                                              H
    1116     SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A       Pramod Swarup, Prashant Chaudhary, Alka Sinha, Anuvrat
    Sharma for the Appellant.
                       I


        H.C. Kharbanda, Jyoti Saxena, M.P. Shorawala, J.P.
    Dhanda, Vineet Dhanda, Raj Rani Dhanda, Amrendra Kumar
    Singh, N.A. Usdmani for the Respondents.
8
         The Judgment of the Court was delivered by

         SURINDER SINGH NIJJAR, J. 1. These two appeals
    have been filed by the State of U.P. challenging the common
c Judgment of the High Court of Judicature at Allahabad in the
    Judgment in Criminal Appeal 1795/99 and Criminal Appeal
    No.2018/99 and Reference No.8 of 1999. By the aforesaid
    judgment, the two appeals by the convicts Guru Charan, Sunil
    and Pramod and Brahma Pal have been allowed and they have
0 · been acquitted of all the charges. At the same time the
  ' reference made by the Sessions Judge for confirmation of
    de~ti sentence awarded to Guru Charan, Sunil and Pramod
    has been rejected.
          2. We may notice here the relevant facts, culled out from
E    the judgments of the Trial Court and the High Court and the
     evidence on record. On 20.7.1997 Ramesh Narain, deceased
  1
     alc;mg with his son-in-law Jitendra alias Guddu deceased and
     Vijay Kumar (PW1) were returning to village Yakoot Ganj,
     Police Station Sahawar, district Etaah in a private bus No.PB-
F 12-0148. Ramesh Narain, deceased was having his licensed
     double barrel gun and bandolier of cartridges. Nathu (PW2)
     was also traveling in the same bus. Ramesh Narain was sitting
     in the third row in the front side of the bus. Vijay Kumar (PW1)
     was sitting towards the rear end of the bus. Jitendra alias Guddu
G·· deceased was sitting beside Ramesh Narain, deceased.
   , Nathu (PW 2) was sitting on the seat beside the bonnet. At
     about 4.15 pm when the bus reached near Tali Village and
     made a temporary stop, Sunil, Pramod, Guru Charan and
     Brahma Pal boarded. the bus. Sunil and Pramod were having
H
      STATE OF U.P. v. GURU CHARAN & ORS.                      1117
           [SURINDER SINGH NIJJAR, J.]

country-made pistols. Guru Charan was having licensed rifle of            A
0.315 bore and Brahma Pal was having a knife. On entering
the bus they fired several shots at Ramesh Narain. As a result
of gun fire, he died on the spot. Other passengers in the bus
started running helter-skelter due to fear. It is stated that even
the people working in the fields nearby ran away from there due           B,
to fear of the assailants. Jitendra alias Guddu tried to run out
of the bus. He was however caught, thrown on the ground and
killed by the assailants by shooting at him from their unlicensed
arms. It is further the case of the prosecution that when PW2
tried to save Jitendra alias Guddu, Brahma Pal inflicted knife            c
injuries on him. Similarly, when the driver of the bus namely
Virendra tried to take the bus away he was attacked with a
knife. It is further stated that while leaving the scene of the crime
the assailants took away the double barrel gun and bandolier
of cartridges of Ramesh Narain deceased.                                  0
                                                                   , ..

     3. The motive for the assault on the deceased is stated' to
be old enmity between the deceased and the assailants
(hereinafter referred to as the respondents). According to the                 •
prosecution about two years prior to the date of the occurren<;:e
one Vi nod Kumar brother of respondent No.1, Sun ii,. was                 E
murdered. Ramesh Narain, Vijay Kumar (PW1) and
Vishwanath were accused of murdering Vined. They were,
however, acquitted in the murder trial. Therefore the
respondents were having a grudge against the deceased as
well as Vijay Kumar (PW1 ).                                               F

     4. Some time after the incident, Vijay Kumar (PW1) along
with the driver of the bus went to PS Sahawar in a jeep and
lodged a written report Ex.Ka1 at 5.20 pm. On the basis of this,
FIR (Ex.Ka16) was prepared by constable Brijesh Kumar, who                G
made an endorsement of the same at GD Report (Ex.Ka17)
and registered the case against the respondents u/s. 302, 307,
324, 404 IPC. The investigation was conducted by S.I. Bhag·wan
Sahai. The Investigation Officer prepared the inquest of
deceased Ramesh Narain Upadhyay, Ex. Ka 3 and deceased
                                                                          H



                                                                                   --,
    1118    SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A Jitendra alias Guddu Ex. Ka. 3a at the site. He also prepared
  photo of the dead body Ex.Ka. 4, and photo of the dead body
  of deceased Jitendra alias Guddu Ex. Ka.9, wrote letter to
  C.M.O. Ex. Ka.7 and Ka.5 regarding deceased Ramesh Narain
  and d.eceased Jitendra, prepared challan of deceased
B Ramesh Narain Ex. Ka.6, challan of deceased Jitendra alias
  Guddu Ex. Ka. 8, recorded statements of the witnesses,
  prepared site plan Ex. Ka. 10. The Investigation Officer collected
  blood stained and ordinary soil and prepared memos. Ex. Ka.
  11. He prepared Ex. Ka. 12 for taking empty cartridge shells
c and tickles, Ex. Ka. 13 for taking a blood stained piece of the
  bus seat and a stove which deceased Ramesh Narain was
  carrying with him from Sahawar after getting it repaired and left
  it in the custody vide memo Ex. Ka. 14. The Investigation
  Officer sent injured Nathu Singh (PW 2) and Virendra for
D medical examination and their injury reports are Ex. Ka 18 and
  Ka.19 respectively. The Investigation Officer sent dead bodies
  of deceased Ramesh Narain and Jitendra alias Guddu duly
  sealed for postmortem and their postmortem reports are Ext.
  Ka.2 and Ka.3 respectively.

E        5. The Special Judge (Dacoits Infested Area) Etah, framed
    charges u/s. 302 read with 34, 307 read with 34, and 392 l.P.C.
    against the respondents Sunil, Pramod, Brahma Pal and Guru
    Charan on 10.2.1998. All the accused pleaded not guilty and
    they were sent up for trial.
F
       6. The prosecution examined PW1, Vijay Kumar, PW2
  Nathu, both injured eye-witnesses, PW3, Dr. Narendra Babu
  Katiyar, Radiologist, who conducted the post mortem on the
  deceased persons, PW4, sub-Inspector Bhagwan Sahai,
G Investigation Officer. PW.5 Dr. Girish Chandra, Medical Officer,
  CH.C. Sahawar, who examined the injured persons, PW.6 Dr.
  Ram Babu, Medical Officer, casualty department, Sarojini
  Naidu Medical College, Agra.

        7. We may now notice the medical evidence. It appears
H that, Virendra Singh driver of the bus, had been sent to the
     STATE OF U.P. v. GURU CHARAN & ORS.                   1119
          [SURINDER SINGH NIJJAR, J.]

Community Health Centre, Sahawar where he was medically             A
examined on 20.7.1997 at 5.40 pm by Dr. Girish Chandra
PW5. The doctor (PW5) found the following injuries on the
driver, Virendra:

         Lacerated wound 2.5 cm x 5 cm on the top of skull
                                                                    B
    11 cm above from the ear and 18 cm from bridge of nose.
    Deep bone uncoverage.

          General condition of the patient was poor advised
    X-ray and referred to District Hospital, Etaah for treatment.
    The injury was kept under observation, caused by blunt and      C
    hard object and was fresh in duration.

Autopsy on the dead body of Ramesh Narain deceased was
conducted on 21-7-1997 at 11.30 AM. by Dr. Narendra Babu
Katiyar (PW.3) who found following ante mortem injuries on his      D
person:-

     1.    Gun shot wound through and through lacerated on
           front of head and middle of head 17 cm x 3 cm x
           brain cavity deep (brain matter coming out) 4 cm
           above left ear, 12 cm above right ear from base of       E
           nose and including both eye brows. Bleeding
           present.

     2.    Gun shot wound of entry 1 cm x 1 cm x left lateral
           abdomen cavity (through) lacerated, margins              F
           inverted with blackening and tattooing in area of 5
           cm x 4 cm, on left iliac crest, 19 cm from umbilicus.

     3.    Gun shot wound of exit 1 cm x 1 cm x
           communicating to injury No.2 on right lateral            G
           abdomen 18 cm from umbilicus at 1O 'O' clock.
           Lacerated. Direction left to right.

     4.    Gun shot wound of entry 1.5 cm x 1 cm left chest
           cavity deep. Margins lacerated and inverted 10 cm
           from nipple at 7 'O' clock position. Tattooing           H
    1120        SUPREME COURT REPORTS                [201 O] 2 S.C.R.


A                 present, direction downward to right.

           5.     Gun shot wound of entry 1 cm x 1 cm x right back
                  (Abdomen) 4 cm from mid line, 8 cm above right
                  iliac crest. Lacerated inverted. Blackening present.
B          6.     Gun shot wound of entry 1 cm x % cm x through on
                  outer aspects of left knee lacerated, inverted.

           7.     Gun shot wound of entry 1 cm x 1 cm x
                  communicating to injury No.6 on front and upper
c                 part of left knee. Lacerated, inverted.

         On internal examination brain matter was found coming out.
    Peritoneum was lacerated. Cavity contained 2 liters clotted
    bloorl. Stomach contained about 15 ounce pasty food in
D   process of digestion. Small intestine and large intestine, gall
    bladder and right kidney were lacerated.

        Two yellow colored bullets were recovered from abdomen.

         According to the opinion of Doctor, cause of death was
E   due to coma and shock as a result of injuries noted above. The
    Doctor prepared post mortem report. (Ext. Ka2)

       Autopsy on the dead body of Jitendra alias Guddu was
  conducted on same day at 12.00 noon by Dr. Narendra Babu
  Katiyar (PW.3), who found following ante mortem injuries on his
F person:-

           1.     Gun shot wound of entry 1.5 cm x 1.5 cm x left chest
                  cavity deep on left chest, 3 cm from left nipple at 2
                  'O' clock position. Lacerated, inverted. Blackening
G                 present. Direction left to right.

           2.     Gun shot wound of entry 2.5 cm x 2.5 x left chest
                  cavitydeep on left upper chest below mid end of left
                  clavicle. Lacerated inverted. Blackening present.
                  Direction left to right.
H
      STATE OF U.P. v. GURU CHARAN & ORS.                  1121
           [SURINDER SINGH NIJJAR, J.]

      3.    Gun shot wound of exit (pellets) four in no. 0.5 cm    A
            x 0.5 cm x communicating to injury No.2 on right
            lateral chest, 4 cm below axilla in an area of 5 cm
            x 3 cm. Lacerated inverted, two wad pieces and
            one Gatta (wad) recovered from right lateral wall of
            chest below axilla with pellets 15 in number.          B

      4.    Incised wound 3.5 cm x 3.5 cm x right chest cavity
            deep on right chest 13 cm above right iliac crest
            lateral. Margins clean cut.

     On internal examination 4th, 5th, and 7th ribs on left side   C
and 5th, 6th and 10th ribs on right side were fractured. Pleura
was lacerated. Both lungs were lacerated. Thoracic cavity
contained about 1 liters fresh and clotted blood. Peritoneum
was lacerated. Cavity contained about 1 liters of clotted blood.
Stomach contained about 1.15 ml of semi digested food. Large       D
intestine contained gasses and faecal matters. Gall bladder
was lacerated.

    One yellow colour pellet recovered from right back of chest.
One Gatta (wad) and two wad pieces and 15 pellets were             E
recovered from right lateral chest wall.

    In the opinion of Doctor, cause of death was shock and
haemorrage as a result of injuries noted above. The doctor
prepared postmortem report (Ext. Ka3).
                                                                   F
     Nathu Singh (PW.2) was shifted to S.R.N. Medical College,
Agra and his injuries were examined on 21-7-1997 at 3.50 AM.
by Dr. Ram Babu (PW.6) who found the following injuries on
his person:-

     1.    One stab wound elliptical in shape 1-1/2" x %" x        G
           abdominal cavity deep 1-1 /2" away from left
           umbilicus at 11 'O' clock position. Loop of intestine
           coming out, bleeding present.

     2.    One horizontal elliptical wound 1" x %"x depth not      H
    1122        SUPREME COURT REPORTS                [2010] 2 S.C.R.


A                 probed. 3" away left to umbilicus at 3 'O' clock
                  position.

           3.     One elliptical wound present 6" away at 10 '()' clock
                  position in right AS.I. spine. Placed vertically.
B          4.     One stab wound on scalp over occipital are %" x
                  X" x not proven size %" x X" x not proven. Bleeding
                  present.

         Margins of all wounds were clear. The doctor opined that
c   it was fresh case of stabbed injuries. All injuries were kept
    under observation and fresh in duration. Patient admitted and
    police informed for dying declaration.

       8. On 22.7.1997 Guru Charan, respondent was arrested
  at 12.10 pm in village Jamalpur near Temple. At that time he
D was carrying .315 bore rifle and six cartridges which were taken
  into possession. Thereafter Bhagwan Sahai was transferred
  and remaining investigation was conducted by SO Rajpal Singh
  who on completion of investigation submitted chargesheet
  (Ex.Ka15) against the respondents. Fired cartridges recovered
E from the spot and licensed gun of Guru Charan, respondent was
  sent to Joint Director Forensic Science Laboratory, Lucknow,
  Uttar Pradesh for comparison and report. Report dated
  23.12.1997 (Ex. Ka.20) was submitted by the Asst. Director of
  the laboratories.
F
       9. The Trial Court on examination of the evidence came
  to the conclusion that the evidence given by the Vijay Kumar
  (PW1) \;an not be brushed aside only on ground of the enmity
  against the respondent. He was present in the bus at the time
G of the incident. He filed the report against the accused at the
  Police Station immediately after the incident. He was cross-
  examined at length but nothing favourable to the accused could
  be elicited from him. Trial Court also came to the conclusion
  that Vijay Kumar (PW1) has given consistent evidence without
H any material contradiction. He had no motive to depose falsely
      STATE OF U.P. v. GURU CHARAN & ORS.                  1123
           [SURINDER SINGH NIJJAR, J.]

 against the respondents as he along with his uncle Ramesh         A
 Narain, deceased were in fact acquitted of the murder charge
 in the earlier case. The Trial Court further holds that the
 evidence of Nathu (PW2) fully supported the prosecution
version. He was an injured eye-witness. He was neither a friend
 of the prosecution nor an enemy of the accused. He was an         B
 independent and impartial witness and there was no reason to
 disbelieve his evidence. The Trial Court did not accept the
 suggestions of the defence that Vijay Kumar (PW1) and Nathu
 (PW2) were procured witnesses. The injuries suffered by the
witnesses were self-inflicted. Numerous contradictions in the      c
evidence of PW1 Vijay Kumar and PW 2 Nathu were held to
be not material. The Trial Court also found that the version of
injuries given by PW1 and PW2 is corroborated by the medical
evidence as well as the ocular evidence given by PW3, PW5
and PW6 .. PW3 Dr. Narendra Babu Katiyar had conducted the         D
post mortem on the deceased Ramesh Narain He had found
6 fire arm injuries on his body. He had also conducted post
mortem on Jitendra who had three fire arm injuries on his body.
PW5, Dr. Girish Chandra had examined the injuries on Virendra
and found an incise wound on his body. Similarly PW6, Dr. Ram      E
Babu examined Nathu (PW 2) and found the knife injuries on
his stomach. The cross examinations of these doctors proved
totally ineffective for the respondents.

     10. Upon consideration of the entire evidence, the Trial
Court held that the prosecution has successfully proved that the   F
respondents Sunil, Pramod and Guru Charan in furtherance of
their common intention committed murder of Ramesh Narain
and Jitendra alias Guddu. It was further held that respondent
Brahma Pal committed murderous assault on Nathu Singh
(PW2). Accordingly respondents Sunil,. Pramod and Guru             G
Charan were convicted u/s. 302 read with Section 34 IPC
whereas Brahma Pal was convicted under Section 307 IPC.
Upon conviction Sunil, Pramod and Guru Charan were
sentenced to death whereas Brahma Pal was sentenced to life
imprisonment.
                                                                   H
    1124    SUPREME COURT REPORTS                 [2010] 2 S.C.R.


A        11. The respondents-convicts, aggrieved by the judgment
    of the Additional Sessions Judge, challenged the same in
    separate appeals before the High Court.

         12. The High Court re-examined the entire evidence and
B came to the conclusion that the prosecution story is
    unbelievable. Consequently, Criminal Appeal 1795/99 and
    Criminal Appeal No.2018/99 by the convicts Guru Charan, Sunil
    and Pramod and Brahma Pal have been allowed and they have
    been acquitted of all the charges and Reference No.8 of 1999
    made by the Sessions Judge for confirmation of death
C - sentence awarded to Guru Charan, Sunil and Pramod has been
    rejected.

       13. Mr. Pramod Swarup, learned senior counsel for the
  appellant submitted that the High Court has erred in accepting
D the appeals filed by the respondents. He has taken us through
  the evidence, as well as the judgments of both the courts below.
  He submits that the evidence given by P.W.1 Vijay Kumar and
  P.W.2 Nathu Singh, could not be discarded, as they are injured
  witnesses. Nathu Singh, P.W.2, had no reason to falsely
E implicate the respondents, being an independent witness. The
  medical evidence is consistent with the oral testimony.
  Therefore, few minor discrepancies would not be material to
  discredit the testimony of the eye witnesses. According to the
  learned counsel, this is a case of pre- planned assault, by one
F group on the other. It is a clear case of revenge killing.
  Therefore, the trial court verdict as well as sentence were legal
  and ought to be restored.

        14. On the other hand, Mr. H.C. Kharbanda, learned
  counsel for the respondents submits that this is a clear case
G where an incident of dacoity has been twisted to falsely involve
  the respondents in a crime they did not commit. He emphasized
  that the presence of Vijay Kumar (P.W.1) is very doubtful. Nathu
  Singh (P.W.2) also can not be believed, in view of the medical
  evidence, as well as the statement of Dr. Ram Babu (P.W.6).
H Enmity existed between the two parties. He further emphasized
      STATE OF U.P. v. GURU CHARAN & ORS.                   1125
           [SURINDER SINGH NIJJAR, J.]

that Vijay Kumar (P.W.1) has given a fabricated version. Driver     A
of the bus Virendra, though injured, has been deliberately
withheld by the prosecution. He submitted that such firing in a
bus was bound to injure some other passengers. He submits
that the High Court has correctly disbelieved the prosecution
version. According to the learned counsel, the State has failed     B
to make out any exceptional case to warrant interference with
the judgment of the High Court.

    15. We have considered the submissions of the learned
counsel.
                                                                    c
      16. In its well reasoned and detailed judgment, the High
 Court has re-examined the entire evidence. While considering
the evidence of Vijay Kumar (P.W.1), it is noticed that Guru
Charan who i.s said to be the main assailant did not have any
motive to commit the murder of the deceased. He was simply          D
a witness in the murder case against deceased Ramesh
Narain. Vijay Kumar (PW1) in the evidence had stated that
Guru Charan armed with a licensed .315 bore rifle had entered
the bus and fired 7-8 rounds on his uncle i.e. deceased
Ramesh Narain. He further stated that due to the injuries his       E
uncle died there and then, in the bus itself. He further stated
that his brother-in-law Jitendra alias Guddu immediately got
down from the bus and started running in order to save himself
but the respondent fired upon him and he too was killed outside
the bus. This witness further stated when Nathu (PW 2) came         F
forward to save Guddu, Brahma Pal stabbed him with his knife.
Vijay Kumar (PW1) emphatically stated that no other person
received any injuries. But then it is stated that when the driver
of the bus tried to move the bus he too was stabbed. On an
analysis of his evidence, the High Court concluded that the         G
evidence of this witness was unbelievable for a number of
reasons. We may notice here only the prominent reasons given
by the High Court.

   ,17. It is noticed that according to the witness Vijay Kumar
(PW 1), he was sitting at the back of the bus. When his uncle       H
    1126     SUPREME COURT REPORTS                   [2010] 2 S.C.R.


A was being shot at, he hid behind the seat. Every other person
  tried to get off the bus. Even people in the nearby fields ran
  away for fear of the assailants. The assault was so ferocious .
  that two persons were killed, two were injured. The two injured
  had no enmity with the respondents. On the other hand, Vijay
8 Kumar (PW1) was a co-accused in the murder of Vinod. Yet
  he suffered no injury. He made no effort to save his uncle
  Ramesh Narain deceased. His account of the incident is so
  graphical that he could only do this if he was visible to the
  respondents. In that case, he would not have been spared. The
C High Court, therefore, doubts his presence at the scene of the
  crime.

         18. It is then noticed by the High Court that even the inquest
    report has been specially prepared to show the presence of
    Vi jay Kumar (PW1) at the place of occurrence, when the
D   investigating officer visited the spot. But Vijay Kumar (PW1 ),
    in his cross-examination states that after handing over written
    report to the Head Constable at the police station, he went to
    sleep and did not know what happened after that. This report
    was handed over to the Head Constable at 5.20 p.m. He woke
E   up only at about 9-10 p.m. By that time, the investigating officer
    had returned to the police station. He did not know whether the
    investigating officer had gone to the spot on the night of the
    occurrence. He did not know when or where documents were
    prepared regarding the dead body. However, he admitted his
F   signature on the inquest report of the deceased Ramesh
    Narain. He also stated that his signature was obtained at the
    police station. Thus, according to Vijay Kumar (PW 1), he never
    went to the spot during the night after reporting the crime. On
    the other hand, the investigating officer states that he was
G   present at the spot between 9-10 p.m. Thus, according to the
    High Court, the investigating officer has been over enthusiastic
    to ensure the presence of Vijay Kumar (PW 1) which was, to
    say the least, doubtful. The High Court also found the evidence
    of Vijay Kumar (PW 1) about injuries on Virendra, bus driver,
H   was contrary to the medical evidence. Dr. Girish Chandra
      STATE OF U.P. v. GURU CHARAN & ORS.                   1127
           [SURINDER SINGH NIJJAR, J.]

(P.W.5) says that Virendra had suffered a lacerated wound            A
caused with a blunt weapon, whereas Vijay Kumar (PW 1) says
he was stabbed with the knife.

     19. Again Vijay Kumar (PW 1) states that Guru Charan
caught hold of Jitendra alias Guddu and made him fall down.
                                                                     8
Then Pramod and Sunil fired at him from a distance of about
two feet. There is no mention of any knife injury but the post
mortem report shows that Jitendra alias Guddu had sustained
one incised wound 3.5 x 12.5 cm on right side of the chest. Thus
the version is contradicted by medical evidence.
                                                                     c
      20. Then Vijay Kumar (PW 1) says that Guru Charan had
fired a number of shots at his uncle Ramesh Narain (deceased)
from his licensed .315 bore rifle. The empty cartridges had
fallen in the bus. These were collected by the Investigating
Officer. The licensed rifle of Guru Charan was taken into            o
possession. The empty cartridges recovered from the spot and
the rifle of Guru Charan was sent to forensic Science laboratory
for comparision. The test report shows that the cartridges were
not fired from the licensed gun of Guru Charan.

     21. The High Court then noticed that Nathu (PW 2), who          E
had been seriously injured and was in need of urgent medical
attention was not taken in the jeep when Virendra and Vijay
Kumar (PW 1) proceeded to the police station. This again
casts a doubt on the version given by Vijay Kumar (PW 1).
                                                                     F
     22. Having virtually destroyed the credibility of Vijay Kumar
(PW 1), the High Court then proceeds to examine the eye
witness account of Nathu Singh(PW 2) (injured witness). Nathu
(PW 2) also claims to be in the bus. He also talks of Ramesh
Narain being shot dead by all the accused, who fired at him          G
from their respective weapons. He also talks of Jitendra alias
Guddu being pulled down to the ground and being shot. Then
he says, when he tried to intervene, Brahma Pal caused injuries
on him with a knife. He still carries the marks of the injuries.
His version of when he got the injuries is not supported by the      H
     1128    SUPREME COURT REPORTS                   [2010] 2 S;C.R.


A medical examination.
  23.     The High Court noticed the evidence given by Dr. Ram
  Babu (P.W.6) who had examined the injuries of Nathu Singh
  (P.W.2) on 21.7.1997 in S.N. Medical College, Agra at 3.50
  a.m. Dr. Ram Babu (P.W.6) in his evidence stated that it was
B a fresh case of stab injuries and injuries were fresh in tluration.
  He further stated that by fresh injuries he meant the injuries
  caused within 6 to 10 hours. He also found that injuries 1 and
  3 were bleeding and caused by one weapon. Fresh injuries are
  the injuries which are caused within 6 hours. No doubt there
C may be variation of two hours on either side. Thus the fresh
  injuries could be termed injuries within 4 to 8 hours and not
  more than 8 hours. On the basis of the aforesaid, the High Court
  was of the opinion that since Nathu (PW 2) was examined about
  12 hours.after the injuries were caused, they could not be
  described as fresh injuries.
D
          24. The High Court further noticed the claim of Nathu
    (P.W.2) that after the occurrence he was brought to the police
    station. He was medically examined in Sahawar and thereafter
    shifted to Etaah. From Etaah he was further shifted to Agra.
E But Dr. Ram Babu (P.W.6) who had examined Nathu (P.W.2)
    at S.N. Medical College, Agra stated that no reference slip was
    shown to him. The prosecution also did not file any injury report
    on the reference slip prepared at Sahawar or Etaah. Although
    Nathu Singh (PW 2) claims to have been brought to the police
F station by the police personnel he did not identify any particular
    police officer who helped him. In fact, the investigating officer
    Bhagwan Sahai (Sub Inspector) in his evidence stated that
    Nathu Singh (P.W.2) did not meet him on the date of the
    occurrence. The.High Court also noticed that although Nathu
G Singh (PW 2) had stated that appellant Guru Charan had fired
    at Ramesh Narain from his licensed .315 bore rifle, the empty
    cartridges recovered from the bus had not been fired from the
    licensed rifle of Guru Charan. It is also noticed by the High Court
  . that Nathu (PW 2) had failed to explain the circumstances in
    which Jitendra alias Guddu (deceased) sustained knife injuries,
.H
      STATE OF U.P. v. GURU CHARAN & ORS.                 1129
           [SURINDER SINGH NIJJAR, J.]

as according to Nathu (PW 2), the respondents Pramod, Sunil      A
and Guru Charan had fired at Jitendra alias Guddu.

      25. Upon this thorough examination of the entire witness,
the High Court has concluded that the evidence of Nathu Singh
(P.W.2) is falsified by the evidence of Dr. Ram Babu (P.W.6).. 8
Consequently, Nathu Singh (PW 2) has also been held to be
unreliable witness. After examination of the eye witnesses who
testified for the prosecution, the High Court noticed another
relevant omission in the case of the prosecution. According to
the prosecution witnesses, the driver, Virendra, sustained G
injuries in the same incident and by the same assailants. He
was also an eye witness. He was alleged to have taken Vijay
Kumar (P .W.1) to the police station. Yet he has not been
examined by the prosecution. It has also come in the evidence
of the witnesses that there were numerous other passengers
in the bus. These passengers were said to have quickly got off D
the bus. Although there was sustained firing by the assailants .·
in the bus, none of the other passengers were injured. The
prosecution also did not care to examine any other passenger
who would have been the eye witness to the whole transaction.
In this state of the evidence, the High Court has concluded that E
the prosecution has miserably failed to prove the guilt of the
respondents for the murder of Ramesh Narain, and Jitendra
alias Guddu and the murderous assault of Nathu Singh (PW.2).

      26. With the able assistance of the learned counsel for the F
parties, we have carefully examined the evidence as well as
the findings recorded by the courts below. We are of the
considered opinion that the view taken by the High Court is both
plausible and possible. The scope of interference in Article 136
in an appeal against acquittal is rather limited. The position with G
regard to circumstances in which the appellate court would
interfere with an acquittal has been recently restated by this
court in the case of State of Uttar Pradesh vs. Banne alias
Baijnath & Ors. [2009 (4) SCC 271]. In this case, the settled ·
legal position which has been crystallized in a number of H .


                                                                        ...
                                                                        ' \.
                1130    SUPREME COURT REPORTS                   [2010] 2 S.C.R.


       A        judgments has been reconsidered and reiterated. The
                principles emerging are restated in the following words:

                    "27. The following principles emerge from the
                    aforementioned cases:
       B            1. The appellate court may review the evidence in appeals
                    against acquittal under Sections 378 and 386 of the
                    Criminal Procedure Code, 1973. Its power of reviewing
                    evidence is wide and the appellate court can reappreciate
                    the entire evidence on record. It can review the trial court's
       c            conclusion with respect to both facts and law.

                    2. The accused is presumed to be innocent until proved
                    guilty. The accused possessed this presumption when he
                    was before the trial court. The High Court's acquittal
       D            bolsters the presumption that he is innocent.

                    3. There must also be substantial and compelling reasons
                    for reversing an order of acquittal.

           1'
                    This Court would be justified in interfering with the judgment
       E            of acquittal of the High Court only when there are very
                    substantial and compelling reasons to discard the High
                    Court's decision.

                    28. Following are some of the circumstances in which
                    perhaps this Court would be justified in interfering with the
                    judgment of the ,High Court, but these are illustrative not
                    exhaustive:

                    (1) The High Court's decision is based on totally erroneous
                    view of law by ignoring the settled legal position;
       G
                    (ii) The High Court's conclusions are contrary to evidence
                    and documents on record;

                    (iii) The entire approach of the High Court in dealing with

       H


....
     STATE OF U.P. v. GURU CHARAN & ORS.                   1131
          [SURINDER SINGH NIJ°JAR, J.]
    the evidence was patently illegal leading to g )Ve              A
    miscarriage of justice;

    (iv) The High Court's judgment is manifestly unjust and
    unreasonable based on erroneous law and facts on the
    record of the case;
                                                                    B
     (v) This-Court must always give proper weight and
     consideration to the findings of the High Court;

     (v1) This Court would be extremely reluctant in interfering
    with a case when both the Sessions Court and the High           c
    Court have recorded an order of acquittal."

      27. We may also notice here the observations made by
this Court in the case of State of U.P. vs. Harihar Bux Singh
& Anr. [975 3 sec 167) with regard to the scope of
interference by this Court under Article 136 of the Constitution.   D
It is observed as follows:-

           "In an appeal under Article 136 of the Constitution,
    this Court does not interfere with the finding of acquittal
    recorded by the High Court unless that finding is vitiated.     E
    by some glaring infirmity in the appraisement of evidence.
    The fact that another view could also have been taken on
    the evidence on record would not justify interference with
    the judgment of acquittal. The judgment of the High Court
    in the present case has not been shown to suffer from any       F
    such weakness as might induce us to interfere. The appeal
    consequently fails and is dismissed."

     28. The same view has been reiterated by this Court in
the case of State of U.P. vs. Gopi & Ors. [1980 Supp. SCC
160] wherein it is observed as follows:                             G

          "There may be something to be said for this view of
    the High Court and, if we were sitting as a court of appeal,
    we may have taken a different view and may have
    accepted the statements of PWs 4 and 6. But that is no          H
    ·1132      SUPREME COURT REPORTS                   [2010] 2 S.C.R.


A          reason to set aside the judgment of the High Court for after
           consideration of the various aspects of the case it cannot
           be said that the view taken by the High Court was not
           reasonably possible."

         29. In the case of State of Uttar Pradesh vs. Ashok Kumar
B   & Anr. [1979 (3) SCC 1], the same view has been again
    reiterated as follows:-

                  "The facts of the case have been set out in the
           judgment of the High Court and it 1s not necessary for us
c          to repeat them again. It is well-settled that this Court would
           not normally interfere with an order of acquittal in special
           leave unless there are cogent reasons for doing so or
           unless there is a gross violation of any procedure of law
           which results in serious miscarriage of justice. We have
D          heard Counsel for the parties and have gone through the
           judgment of the Sessions Judge and of the High Court. It
           is true that High Court has not made an attempt to discuss
           the intrinsic merits of the evidence of the eyewitnesses but
           having regard to the glaring defects appearing in the
E          prosecution case we are in agreement with the ultimate
           view taken by the High Court."             ·

          30. Applying the aforesaid principles to the facts and
    circumstances of this case, we are of the considered opinion
    that the findings recorded by the High Court do not warrant any
F   interference by this Court. In view of the above, the appeals are
    dismissed.

    N.J.                                          Appeals dismissed.