Supreme Court – Daily Orders
The State Of Uttar Pradesh vs Survendra Kumar @ Sunil Kumar on 16 January, 2025
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.386 of 2017
THE STATE OF UTTAR PRADESH Appellant(s)
VERSUS
SURVENDRA KUMAR @ SUNIL KUMAR & ANR. Respondent(s)
O R D E R
1. This appeal is at the instance of the State of Uttar Pradesh
and is directed against the Judgment and Order passed by the High
Court of Judicature at Allahabad dated 17-9-2015 in Criminal Appeal
No.2376/2011, by which the High Court allowed the appeal filed by
the respondents – herein – original accused and thereby set aside
the Judgment and Order of conviction passed by the Additional
Sessions Judge, Fast Track Court No.4, Fatehpur in Sessions Trial
No.620/2005, 621/2005 and 622/2005 respectively, arising from the
First Information Report bearing Crime No.30/2005, Crime No.31/2005
and Crime No.32/2005 registered for the offence punishable under
Section 302 of the Indian Penal Code (for short the `IPC’) and
Section 25 of the Arms Act.
2. The case of the prosecution may be summarized as under:-
3. The deceased were husband and wife. They were agriculturists.
They
Signature Not Verified
earned their livelihood from agricultural operations. The
Digitally signed by
VISHAL ANAND
Date: 2025.02.10
respondents – herein (original accused persons) are brothers. They
19:27:03 IST
Reason:
are also agriculturists and they also earn their livelihood from
agricultural operations. It appears from the materials on record
2that there was a long standing dispute between the deceased persons
and the accused persons relating to a property.
4. It is the case of the prosecution that on the date of
incident, i.e., 27-3-2005 at about 11.30 a.m., the accused persons
picked up an altercation with the deceased and at the end of it the
two accused fired from their respective fire arms resulting in
serious injuries to the husband and wife who later succumbed.
5. According to the prosecution, at the time of the incident the
two sons of the deceased persons were present. `PW 1’ – Subhash
Kumar, and the `PW 2’ – Suddu claim to be the eye-witnesses to the
incident.
6. The First Information Report came to be resisted at around
1.50 p.m. in Thariyav Police Station, District Fatehpur, U.P. by
`PW 1. The First Information Report reads thus:-
“PS: Thariav (Paper Torn) Chandrabhan Prasad Tiwari, R/o
Village: Aurayi, District: (Paper Torn) resident. Today on
27.03.2005 at about (Paper Torn) in the day time, when my
mother by name: Kunti Devi aged about 50 years and my
father: Chandrabhan (Paper Torn) Tiwari, aged about 55
years were present in our Lentil Fields to cut the harvest,
at that itself, our villagers Sukhendra Kumar and Chulli
Tiwari – both sons of Krishna Gopal Tiwari with whom we
have previous land dispute already armed with illegal fire
arms came to the field at about 11.30 AM to my parents and
objected them from cutting the standing crop to which we
told them -“This field belong to us and this crop too
belongs to us.” This enraged them as a result of which they
fired with their aforesaid firearms in a random manner
resulting in the wounds upon my parents who died
instantaneously at the spot itself. On witnessing this
ghastly incident the agricultural workers working in the
field got scared ran away from there and even passers too
abandoned their normal road route and fled away from the
spot towards the village by walk ways path due to the scare
and commotion and terror created by these assailants
resulting in chaos and atmosphere of terror in the whole
area meanwhile this incident has been witnessed by the
neighbourhood workers present nearby at that moment. The
dead bodies of my deceased parents are still lying on the
3spot. Applicant: Subhash Kumar, S/o: Chandrabhan Prasad
Tiwari, Village: Aurayi, PS: Thariyav, Fatehpur, Date
27.03.2005. Written by: Md. Waheed, S/o: Bhullu, R/o:
Bahrampur, PS: Thariyav, Fatehpur.
Note: I, H. M. 482: (Paper torn) Gautam do hereby certify
that the copy of the FIR is true and correct word by word.
Ex.A-2
HM Sd/- (illegible)/-
27.03.2005”
7. We take notice of the fact that the Police Station in which
the FIR came to be registered is at a distance of about 7 kms. from
the place of the incident. It seems to be the case of `PW 1’ that
he walked all the way to the Police Station for the purpose of
lodging the FIR.
8. Upon FIR being registered, the Police started with the
investigation. The inquest panchnamas of the two dead-bodies were
drawn. Clothes worn by the two deceased were collected in the
presence of independent witnesses for the purpose of sending them
to the forensic science laboratory for chemical analysis. The
dead-bodies were sent for postmortem. The two postmortem reports on
record reveal that the cause of death was due to firearm injuries.
It appears that in the course of investigation, the fire arms were
discovered at the instance of the accused persons by drawing
panchnamas under Section 27 of the Indian Evidence Act, 1872 (for
short, ‘the Evidence Act’). The fire arms were also sent to the
Forensic Science Laboratory for the purpose of seeking opinion of
the Ballistic expert. However, the Investigating Officer was not
able to procure any report from the ballistic expert.
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9. At the end of the investigation, police filed charge-sheet for
the offence enumerated above.
10. The case came to be committed to the Court of Sessions under
the provisions of Section 209 of the Code of Criminal Procedure,
1973 (for short, `the Code’).
11. The Trial Court framed charge for the offence enumerated above
to which both the accused pleaded not guilty and claimed to be
tried.
12. In the course of the trial, the prosecution examined the
following witnesses:-
PW 1 Complainant Subhash Kumar
PW 2 Suddu
PW 3 Surendra Kumar Shukla, witness for recovery of
weapon
PW 4 SI Ram Swarup, prepared Chik report and GD
PW 5 Doctor Gupta, Performed post mortem
PW 6 SI Suresh, I.O
PW 7 Constable Prasad, Prepared chik report and GD
PW 8 Initial I.O Pandey
PW 9 SI Kalpanath Chaudhary, conducted inquest
proceedings
PW 10 I.O Rajesh Kumar, arms act
13. The prosecution also led the following pieces of documentary
evidence:-
1. Ex.A-1 : the Written Complaint Report;
2. Ex. A-2 : the Draft Copy of FIR filed u/s 302 of IPC;
3. Ex. A-3 : Carbon copy of the G.D.;
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4. Ex. A-4 & 5 : Post Mortem Reports of the deceased
Chandrabhan and Smt. Kunti respectively;
5. Ex. A- 6 : the Confiscation Memo of the Country gun;
6. Ex.A-7 : the draft copy of the FIR u/s 25 of Arms Act;
7. Ex.A-8 : the Carbon Copy of G. D. u/s 25 of Arms Act;
8. Ex. A-9 & 10 : the confiscation memo of blood soaked
earth and controlled earth samples as well as empty
cartridges;
10. Ex. A-11 : the site plan;
11. Ex. A-12 : the Charge Sheet u/s 302 of IPC;
12. Ex. A-13 & 14 : dead body Panchanama of deceased
Chandrabhan and Smt. Kunti respectively;
13. Ex. A-15 to 22 : the letter of C.M.O., letter of R. I,
photographs and challan of deceased Chandrabhan and Smt.
Kunti,
14. Ex.A-23 : the site plan of the incident spot;
15. Ex.A-24 & 25 : the Charge Sheets u/s 25 of Arms Act, and
16. Ex. A-26 & 27 : the description of admittance by the
prosecution respectively.
14. On closure of the recording of the oral evidence, the further
statements of the two accused came to be recorded under Section 313
of the Code, in which both the accused persons pleaded to be
innocent.
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15. The Trial Court upon appreciation of the oral as well as
documentary evidence on record held both the accused persons guilty
of the offence they were charged with and sentenced them to
undergo life imprisonment with fine.
16. The judgment and order of conviction passed by the Trial Court
came to be challenged before the High Court and the High Court by
its impugned judgment and order allowed the Criminal Appeal and
acquitted both the accused.
17. In such circumstances, referred to above, the State is here
before us with the present appeal.
SUBMISSIONS ON BEHALF OF THE STATE :-
18. Ms. Garima Prasad, the learned Additional Advocate General
appearing for the State of U.P. vehemently submitted that the High
Court committed a serious error in acquitting the two accused.
19. According to her, there was no good reason for the High Court
to disturb a very well-reasoned Judgment of the Trial Court holding
both the accused persons guilty of alleged offence. She would
submit that the High Court fell in error in disbelieving the two
eye-witnesses, i.e., `PW 1’ & `PW 2’ respectively.
20. She further submitted that both the firearms were discovered
at the instance of the two accused by drawing panchnamas under
Section 27 of the Evidence Act. However, the High Court
disbelieved such discovery only on the ground that the panch
witnesses failed to support the case of the prosecution and thereby
failed to prove the contents of the panchnama.
21. According to her, even if the panch witnesses turned hostile,
the contents of the panchnamas can always be proved through the
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oral evidence of the Investigating Officer. The Investigating
Officer has in fact proved the discovery of the two firearms at the
instance of the accused persons in accordance with law.
22. In the last, Ms. Prasad submitted that it is true that there
is no opinion of the ballistic expert on record, however, the same,
by itself, is no reason to disbelieve the two eye-witnesses.
According to her, perfunctory investigation cannot be a ground to
acquit the accused persons charged with a serious offence like
double murder.
23. In such circumstances, referred to above, Ms. Garima Prasad
submitted that there being merit in her appeal, the same may be
allowed and the Judgment and Order passed by the Trail Court may be
restored.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS :-
24. On the other hand, Ms. Sonia Mathur, the learned Senior
counsel appearing for the respondents, i.e., the two accused
persons vehemently submitted that no error not to speak of any
error of law could be said to have been committed by the High Court
in passing the impugned Judgment and Order.
25. According to Ms. Mathur, it is always open for the High Court
to re-appreciate the evidence on record and take a different view
if necessary.
26. Ms. Mathur would submit that the entire case of the
prosecution hinges on the oral evidence of the so-called
eye-witnesses, i.e., `PW 1’ & `PW 2’ respectively, the two sons of
the deceased persons.
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27. According to Ms. Mathur, both these witnesses are
unbelievable. The oral evidence of both these witnesses does not
inspire any confidence.
28. In fact, according to Ms. Mathur, the `PW 2’ in his oral
evidence has admitted that he had not witnessed anything. The
`PW 1’ who lodged the FIR also does not say anything as regards the
presence of his brother at the time of the incident.
29. In such circumstances, according to Ms. Mathur, the two
witnesses were rightly disbelieved by the High Court.
30. As regards the discovery of the firearms at the instance of
the two accused persons is concerned, she submitted that once the
oral evidence of the two eye-witnesses is found to be unreliable,
then even if the discovery of the two firearms at the instance of
the accused persons is to be believed, the same is not sufficient
to hold the accused persons guilty of a serious offence like
murder.
31. In the last Ms. Mathur submitted that unless and until this
Court finds the reasoning assigned by the High Court to be
absolutely perverse or contrary to the evidence on record,
ordinarily, the Judgment and Order of acquittal should not be
disturbed.
32. In the circumstances, referred to above, she prayed that there
being no merit in this appeal, the same may be dismissed.
ANALYSIS :-
33. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question
that falls for our consideration is whether the High Court
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committed any error in passing the impugned Judgment and Order of
acquittal.
34. If we take the view that `PW 2’ was not present at the scene
of occurrence and had not witnessed anything, then we are left with
only one eye-witness, i.e., `PW 1’ .
35. We proceed on the footing that the entire case now rests on
the evidence of a solitary eye-witness. If the evidence of a
solitary eye-witness is found to be true, trustworthy and reliable,
then it is open for the Court to rely upon the same for the purpose
of holding the accused persons guilty of alleged offence.
Ordinarily the evidence of a solitary witness can be classified
into three categories, (i) wholly reliable (ii) wholly un-reliable
and (iii) neither wholly reliable nor wholly unreliable.
36. If the evidence of a solitary eye-witness is found to be
wholly reliable, there is no problem in accepting the same, if he
is found to be wholly unreliable, the court should discard it in
toto. If a situation arises wherein the court finds the evidence of
a solitary eye-witness neither wholly reliable nor wholly
un-reliable, in such circumstances, the court insists for
corroboration in material particulars.
37. In the case on hand, the High Court was justified in taking
the view that neither `PW 1’ nor `PW 2’ could be said to be
reliable eye-witnesses.
38. The High Court has entertained a genuine doubt having regard
to the nature of the evidence on record as regards the very
presence of the eye-witnesses at the place of occurrence. This is
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evident from the discussion in Para Nos. 21, 22, 24, 25 and 29
respectively of the judgment:-
“21. It is true that it is a broad day light murder wherein
two persons have lost their lives and the complainant is
the unfortunate son of these two deceased persons.
22. Law is settled on the point that seriousness of the
offence is by itself not the ground to hold that the
accused persons have committed the offence. But the
involvement of the accused persons must stand proved by the
evidence on record. On this point reference may be made to
the pronouncement of Hon’ble Apex Court in the case of
Dilaver Hussain S/o Mohammadibhai Laliwala etc Vs. State of
Gujarat and another reported in (1991) 1 SCC 253,
particularly paragraph no. 3 of the aforesaid judgment has
been referred, which reads as under:-
“3. All this generated a little emotion during
submissions. But sentiments or emotions, howsoever
strong, are neither relevant nor have any place in a
court of law. Acquittal or conviction depends on proof
or otherwise of the criminological chain which
invariably comprises of why, where, when, how and who.
Each knot of the chain has to be proved, beyond shadow
of doubt to bring home the guilt. Any crack or
loosening in it weakens the prosecution. Each link,
must be so consistent that the only conclusion which
must follow is that the accused is guilty. Although
guilty should not escape (sic). But on reliable
evidence, truthful witnesses and honest and fair
investigation. No free man should be amerced by framing
or to assuage feelings as it is fatal to human dignity
and destructive of social, ethical and legal norm.
Heinousness of crime or cruelty in its execution
however abhorrent and hateful cannot reflect in
deciding the guilt.” (emphasis added)
23. FIR in every criminal trial is very important document
around which the entire case of prosecution revolves. Now
the first point to be considered is whether the FIR came
into existence at the time and in the manner as alleged by
PW-1 and whether the evidence of PW-1 falls within the
purview of wholly reliable or not.
24. The incident of this case is alleged to have taken
place on 27.03.2005 at 11.30 a.m. and the FIR of this case
was lodged at 1:50 p.m. i.e. after about 2 hours and 20
11minutes of the occurrence. The distance of the police
station from the place of occurrence, as per chik report,
was 7 kms. The FIR was scribed by one Waheed who is
resident of different village Bahrampur. On the point of
FIR the complainant in his evidence has stated that on the
date of occurrence he reached the police station at about
2.00 p.m. he went on foot and he disclosed the incident to
some police officer and the said police officer called
Waheed. The other persons who had accompanied him were also
present there. The manner in which he had disclosed the
incident to the police officer he directed Waheed to scribe
the FIR and Waheed scribed the FIR and his signature was
obtained on the said report. He has further stated that the
said report was given by him to the police officer and the
police officer went alongwith the said report to the place
of occurrence. Darogaji went separately and he came back to
the place of occurrence on foot. He reached the place of
occurrence at about 4.00 p.m. at that time police personnel
were present on the place of occurrence. When he reached
the place of occurrence then his signature was obtained on
his report which was proved as Exhibit Ka-1. He has further
confirmed this fact by saying that he was asked to sign the
only paper on the place of occurrence which was Exhibit
Ka-1. He has also stated that by the time he left the
village to go to police station by that time one police
jeep had reached the place of occurrence and in the said
jeep the police officer who had recorded his statement was
also present. By the time he came back from the police
station to the place of occurrence by that time the second
officer and the other police constables also reached the
place of occurrence. Thus this statement of this witness
gives rise to the inference that the police got some
information of this incident on which it came into action
and before the complainant started for the police station
to lodge the FIR the police had reached the place of
occurrence. But what was that information on which the
police came into action has been withheld by the
prosecution. Keeping in view the evidence of PW-1 regarding
the origin of the FIR, in the peculiar facts of this case,
this fact assumes importance.
Learned counsel for the appellants has drawn our
attention of this Court towards the provision of Section
154 sub clause II Cr.P.C: which reads as under:-
“154. Information in cognizable cases- (1) Every
information relating to the commission of a cognizable
offence. If given orally to an officer in charge of a
police station, shall be reduced to writing by him or
under his direction, and be read over to the informant;
and every such information, whether given in writing or
reduced to writing as aforesaid, shall be signed by the
person giving it, and the substance thereof shall be
12entered in a book to be kept by such officer in such
form as the State Government may prescribe in this
behalf.
(2) As copy of the information as recorded under subsection
(1) shall be given forthwith, free of cost, to the
informant.
(3) Any person aggrieved by a refusal on the part of an
officer in charge of a police station to record the
information referred to in sub-section (I) may send the
substance of such information, in writing and by post, to
the Superintendent of Police concerned who, if satisfied
that such information discloses the commission of a
cognizable offence, shall either investigate the case
himself or direct an investigation to be made by any police
officer subordinate to him, in the manner provided by this
Code, and such officer shall have all the powers of an
officer in charge of the police station in relation to that
offence.”
According to the aforesaid provision of Section 154 sub
clause II Cr.P.C. the copy of the FIR, after registration
of the case, must be handed over to the complainant
forthwith. But in the instant case it is admission of the
complainant himself that he signed the said information
after his arrival at the place of occurrence. Thus the
provision of Section 154 sub clause II Cr.P.C. were not
complied with. It also proves that FIR was not registered
at the time as is alleged by the prosecution.
Keeping in view the statement of PW-1 that he signed it at
the place of occurrence, the FIR must have been registered
after arrival of the police party back to the police
station, We would like to mention here that this fact, by
itself, cannot be treated to be fatal for prosecution
because this is a lapse on the part of the police agency
and not on the part of the complainant but the fact remains
that the police had reached the place of occurrence before
the complainant could lodge the FIR. In the facts of this
case, when the appellants are coming with a definite
defence that the incident had taken place in isolation and
no one has witnessed the incident, therefore, this aspect
assumes importance. It transpires that some information
regarding recovery of two dead bodies was sent to the
police then police came into action and thereafter the
complaint was sent to the police station and under the
supervision of a police officer the FIR of this case was
prepared which was scribed by one Waheed. Thus the origin
of the FIR in these circumstances comes under a shadow of
doubt. Law is settled on the point that even if the origin
of the FIR is under a shadow of doubt even then the same,
by itself, would not be the sole ground to discard the
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entire prosecution case but definitely a duty is cast upon
the Court to scrutinize the evidence with extra care and
caution.
25. As stated earlier, only two witnesses of fact have been
produced by the prosecution. At the cost of repetition we
would say that PW-1 has admitted in his cross-examination
that no other person except him had witnessed the incident.
This statement of PW-1 the complainant rules out the
presence of PW-2 who happens to be his real brother. PW-2
in the very beginning of his cross-examination has admitted
that he reached the place of occurrence after the incident.
Thus their remains the sole evidence of PW-1, As discussed
earlier, the conviction can be recorded on the basis of
sole evidence of a witness when evidence of such witnesses
is found to be wholly reliable. Now in this perspective
evidence of PW-1 has to be considered. According to the
version of the FIR both the deceased died on the spot. PW-1
has given similar statement in his examination-in-chief
wherein he has stated that his mother and father both died
on the spot and thereafter the appellants ran away. He was
also attacked by the appellants. In his cross examination
this witness has stated that first of all the police
personnel brought the dead body of his mother from the
field to a grove. The said field was at a distance of about
1 km. and dead body was sealed in the grove. The dead body
of his father was also brought from the said field to the
grove and the inquest was conducted there. Perusal of the
two inquest reports shows that inquest proceedings of the
two dead bodies started at 15:00 hours and concluded on
5:00 p.m. Both the inquest reports were conducted in the
field within the area of village Aurai, and not in any
grove land. PW-9 S.I. Kalpnath Chaudhary has denied this
statement of the complainant and has stated that inquest
proceedings were conducted in the field and the dead bodies
were not brought by him to any grove. Perusal of the site
plan, which according to the prosecution case was prepared
on the pointing out of the complainant himself, shows that
the dead body of Chandrabhan Tiwari was found in the vacant
field of Sri Keshav Yadav while he received gun shot injury
at place B which was situated in his own field. The
distance between points B and B1 has been shown in the site
plan to be about 100 meters. It is nowhere the case of the
prosecution that the deceased ran after receiving gun shot
injury and fell at a distance of about 100 meters. PW-1 in
his evidence has specifically stated that his parents died
on the spot and this is the initial averment of the
prosecution case as disclosed in the FIR that both the
persons died on the spot.
29. The very glaring defect in the evidence of PW-1 is that
he has specifically stated in his examination-in-chief that
accused Surevndra Kumar @ Sunil Kumar was armed with SBBL
Gun and the other appellant was armed with double barrel
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gun. He has not stated that these guns were country made.
It is nowhere the statement of this witness that any of the
appellants was armed with a country made weapon of 315
bore. While from the place of occurrence one empty
cartridge of 315 bore was also recovered. The weapons used
in the commission of offence were not disclosed in the FIR
and this discrepancy assumes importance in the background
that the police went to the extent of recovering country
made pistols of 12 bore and 315 bore on the pointing out of
the two appellants. In the FIR it was mentioned that
appellants came with fire arm. PW-1 Subhash Kumar is a well
grown up boy of 20 years and his statement was recorded
after about 3 years of the incident. So no discrepancy was
expected on the point of weapon used in the offence. This
contradiction goes to the root of the case because it not
only creates doubt regarding presence of PW-1 on the scene
of occurrence but it also goes on to show that the police
has falsely shown the recovery on the pointing out of the
appellants. Difference between country made pistol and gun
is well defined and any person can very well notice the
same. It is not expected that there may be any
contradiction on this point while the incident is alleged
to have taken place in the broad day light. It appears that
because of this inconsistent statement of PW-1, the
prosecution in the statement of PW-2 tried to repair the
dent caused by such statement of PW-1 and PW-2 has stated
that the accused persons were armed with country-made
pistols. But as stated earlier, he has also admitted that
he was not present at the place of occurrence at the time
of incident. So his statement does not help the prosecution
to explain this major contradiction which goes to the root
of the prosecution case.”
39. The evidence on record gives an impression that neither `PW 1’
nor `PW 2’ had actually witnessed the incident but it is only when
they came to know that the dead-bodies of their parents were lying
in the field, they got into action.
40. In such circumstances, we find it difficult to take the view
that the High Court committed a serious error in disbelieving the
eye-witnesses to the incident.
41. We enquired with Ms. Prasad that if we had to discard the oral
evidence of the two eye-witnesses, then whether any other evidence
15
is on record to connect the two accused persons with the alleged
crime.
42. According to Ms. Prasad, the two firearms alleged to have been
used in the commission of the crime were discovered at the instance
of the accused persons by drawing panchnamas under Section 27 of
the Evidence Act.
43. There is a problem as regards the aforesaid also. Discovery of
weapon of offence can definitely be taken into consideration as one
of the incriminating circumstances pointing towards the guilt of
the accused. However, evidence in the form of discovery should also
inspire confidence. In the case on hand, unfortunately, the panch
witnesses turned hostile and failed to prove the contents of the
panchnama.
44. The law in this regard is well-settled. If an independent
witness turns hostile that does not mean that the evidence in the
form of panchnama is to be outright rejected or discarded. The
Investigating Officer can definitely prove the contents of the
panchanama.
45. However, the law expects the Investigating Officer to prove
the contents of the panchnama in accordance with law. It is not
just enough for the Investigating Officer to depose that he had
drawn the panchnama in the presence of panch witnesses duly signed
by the said witnesses and he himself.
46. We may extract some portion of his examination-in-chief as
regards the discovery:-
“On 31.3.2005, (1) arrested accused Survendra and Chulli
and recorded their statements. They confessed their
offence. At their instance, I recovered the weapons used in
16the incident and prepared the recovery memo thereof. The
memo is available in the file. It is in my handwriting and
signature. It has already been marked as Exhibit Ka-6. I
copied the memo in the CD, and on the basis of the recovery
memo, I got a case registered against accused Survendra
alias Sunil Kumar and Chulli alias Rajendra Prasad us. 25
Arms Act, and case crime number thereof is 31/05 and
32/05.”
47. The aforesaid can hardly be said to be proving the contents of
the panchnama in accordance with law.
48. The prosecution also examined `PW 6’ – Suresh Chandra, the
second Investigating Officer.
49. In his examination-in-chief, he has deposed as regards the
discovery as under:-
“At this stage, one sealed bundle was opened from which one
country pistol 315 bore and one country pistol 12 bore were
taken out and 3 empty cartridges 12 bore, 3 cartridges 315
bore and one live missed cartridge 12 bore were taken out
from a brown envelope. On seeing these articles, the
witness stated that EC 1 315 bore E C 2 and E C 3 12 bore
empty cartridges seem to have been recovered from the
spot of 302(?) which have been showed as E C 1 E C 2 and C
3 by Ballistic expert and T C-1, T C-2, 315 bore empty
cartridge and T C-3 missed cartridge 12 bore TC-4 empty
cartridge 12 bore seem to have been tested by Ballistic
expert which have been showed as T C-1 T C-2 and T C-3 and
T C-4 by Ballistic expert, have been marked as Material
Exhibit 1 to Material Exhibit-7. On seeing the country
pistols of 12 bore and 315 bore respectively, the witness
stated that they had been recovered from the accused
persons. Out of them, pistol of 12 bore was got recovered
by Chulli and 315 bore was got recovered by Sukhendra
from wheat crop field, had been marked as Material Exhibit
8 and 9 respectively. And from the same bundle one
container of blood stained and plain earth(illegible) was
taken out which may have been recovered from the spot of
302 (?). The accused persons had told to have murdered
Chandrabhan and Kunti by these country pistols?”
50. The evidence of `PW 6’ also does not help the State in any
manner.
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51. Thus, we have no hesitation in discarding the evidence of
discovery. As noted above, there is no report of the ballistic
expert as to whether the cartridges recovered from the place of
occurrence were fired from the two firearms said to have been
discovered at the instance of the accused persons.
52. Once we disbelieve the evidence of discovery of the weapon of
offence, then what we are left with is the conduct of the accused.
Even if we disbelieve the discovery, the Court can say that the
fact that the two accused persons led the police party along with
the panch witnesses to a particular place may reflect on his
conduct which is a relevant fact under Section 8 of the Evidence
Act.
53. Time and again this Court has said in number of its decisions
that howsoever relevant the conduct of the accused may be under
Section 8 of the Evidence Act, the same is not sufficient to hold
the accused guilty of a serious offence like murder.
54. In the overall view of the matter, we are convinced that no
case is made out for our interference. The appeal of the State
fails and is hereby dismissed.
…………………………………………J
(J.B. PARDIWALA)
…………………………………………J
(R. MAHADEVAN)
NEW DELHI
16TH JANUARY, 2025.
18
ITEM NO.101 COURT NO.14 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No.386/2017
THE STATE OF UTTAR PRADESH Appellant(s)
VERSUS
SURVENDRA KUMAR @ SUNIL KUMAR & ANR. Respondent(s)
Date : 16-01-2025 This appeal was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE J.B. PARDIWALA
HON’BLE MR. JUSTICE R. MAHADEVANFor Appellant(s) :
Mrs. Garima Prashad A.A.G,
Mr. Adarsh Upadhyay, AOR
Ms. Pallavi Kumari, Adv.
Mr. Shashank Pachauri, Adv.
For Respondent(s) :
Mrs. Sonia Mathur, Sr. Adv.
Ms. Shubhi Bhardwaj, Adv.
Mr. Nikhil Chandra Jaiswal, Adv.
Ronika T., Advocate
Ms. Madhusmitha Kesavan, Adv.
Mr. Anuj Bhandari, AOR
UPON hearing the counsel the Court made the following
O R D E R
1. The appeal of the State fails and is hereby dismissed, in
terms of the signed order.
2. Pending applications, if any, shall also stand disposed of.
(VISHAL ANAND) (POOJA SHARMA)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
(Signed Order is placed on the file)
19
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