# Bhanu Pratap Singh Yadav v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-22
- **Bench:** Mrs. Sunita Agarwal, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhanu-pratap-singh-yadav-v-state-of-u-p-ors-45387
- **Pages:** 14

## Headnote

A. Criminal Law - Indian Penal Code -
Section 307 - Ingredients - "Intention" or
"knowledge" are two alternative statutory
elements to hold any person guilty for the
commission of offence u/s 307 IPC - one
should
have
mens-rea
intending
to
commit
murder
or
should
possess
knowledge
that
overt
act,
in
all
probability, would cause death of victim -
bodily injury - Mere bodily injury capable
of causing death or not, are not sufficient
to hold any person guilty for committing
crime
under
aforesaid
sections
-
blameworthy condition of mind could be
gathered
from
the
direct
evidence,
circumstantial
evidence,
conduct
of
accused etc (Para 41)

B. Evidence Law - Evidence Act (1 of
1872)
-
Section
3
-
Evidence
-
Appreciation of - Discrepancies - minor
discrepancies
vis-à-vis
-
glaring
contradictions and discrepancies - Over
importance cannot be given to minor
discrepancies - Discrepancies which do
not go to the root of the matter and shake
the basic version of the witnesses, not
important
-
however
where
glaring
contradictions & discrepancies exists and
such discrepancies affect the genesis of
the crime - totters basic version of the
witnesses, affects the accusation made by
prosecution and the occurrence of crime,
it become relevant. (Para 32)

C. Criminal Law - Criminal Procedure Code
(2 of 1974) , S.372 - Appeal against
acquittal - power of appellate court to
interfere with acquittal - cardinal principle
- if two views on appreciation of evidence
are reasonably possible, one supporting
acquittal & other conviction, Appellate
Court should not reverse the order of
acquittal - appellate court may overrule or
disturb trial court's acquittal only if it has
"very substantial and compelling reasons"
for doing so - and for that Appellate Court
must come to the conclusion that the
findings of the Court below are not based
on the evidence on record, or suffers from
misreading of evidence - or that the view
taken by the court below, while acquitting
cannot be the view of a reasonable person
(Para 43, 44, 45)

Criminal Law - Indian Penal Code (45 of
1860) - Section 307 - Attempt to murder -
Proof - Allegation that accused shot fire at the
informant, due to which his motorcycle
tottered down towards the right side - No
recovery of firearm - I.O. neither found any
empty cartridge on spot nor recovered any
used cartridge - Timing of inflicting injuries to
victim is different as mentioned in FIR,
examination-in-chief and cross-examination of
informant - medical report, all the injuries are
shown to be superficial and simple in nature -
no retrieval of pellets or bullets from the
wound
-
considering
medical
report,
circumstances in totality, it cannot be said that
the accused made attempt to murder - no such
circumstances to suggest the intention of the
accused persons for committing homicidal
death of the informant or his wife - Acquittal,
proper. (Para 22, 24, 39, 40 42)

Dismissed (E-5)

## Text

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11 All. Bhanu Pratap Singh Yadav Vs. State of U.P. & Ors.
229
(2020)11ILR A229
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.10.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DINESH PATHAK, J.

Criminal Misc. Application U/S 372 Cr.PC (Leave
to Appeal) No. 4 of 2019

Bhanu Pratap Singh Yadav ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Ram Prakash Patel

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Indian Penal Code -
Section 307 - Ingredients - "Intention" or
"knowledge" are two alternative statutory
elements to hold any person guilty for the
commission of offence u/s 307 IPC - one
should
have
mens-rea
intending
to
commit
murder
or
should
possess
knowledge
that
overt
act,
in
all
probability, would cause death of victim -
bodily injury - Mere bodily injury capable
of causing death or not, are not sufficient
to hold any person guilty for committing
crime
under
aforesaid
sections
-
blameworthy condition of mind could be
gathered
from
the
direct
evidence,
circumstantial
evidence,
conduct
of
accused etc (Para 41)

B. Evidence Law - Evidence Act (1 of
1872)
-
Section
3
-
Evidence
-
Appreciation of - Discrepancies - minor
discrepancies
vis-à-vis
-
glaring
contradictions and discrepancies - Over
importance cannot be given to minor
discrepancies - Discrepancies which do
not go to the root of the matter and shake
the basic version of the witnesses, not
important
-
however
where
glaring
contradictions & discrepancies exists and
such discrepancies affect the genesis of
the crime - totters basic version of the
witnesses, affects the accusation made by
prosecution and the occurrence of crime,
it become relevant. (Para 32)

C. Criminal Law - Criminal Procedure Code
(2 of 1974) , S.372 - Appeal against
acquittal - power of appellate court to
interfere with acquittal - cardinal principle
- if two views on appreciation of evidence
are reasonably possible, one supporting
acquittal & other conviction, Appellate
Court should not reverse the order of
acquittal - appellate court may overrule or
disturb trial court's acquittal only if it has
"very substantial and compelling reasons"
for doing so - and for that Appellate Court
must come to the conclusion that the
findings of the Court below are not based
on the evidence on record, or suffers from
misreading of evidence - or that the view
taken by the court below, while acquitting
cannot be the view of a reasonable person
(Para 43, 44, 45)

Criminal Law - Indian Penal Code (45 of
1860) - Section 307 - Attempt to murder -
Proof - Allegation that accused shot fire at the
informant, due to which his motorcycle
tottered down towards the right side - No
recovery of firearm - I.O. neither found any
empty cartridge on spot nor recovered any
used cartridge - Timing of inflicting injuries to
victim is different as mentioned in FIR,
examination-in-chief and cross-examination of
informant - medical report, all the injuries are
shown to be superficial and simple in nature -
no retrieval of pellets or bullets from the
wound
-
considering
medical
report,
circumstances in totality, it cannot be said that
the accused made attempt to murder - no such
circumstances to suggest the intention of the
accused persons for committing homicidal
death of the informant or his wife - Acquittal,
proper. (Para 22, 24, 39, 40 42)

Dismissed (E-5)

1. Bharwada Ghoginbhai Hirjibhai Vs St. of Guj.
AIR 1983 SC 753
230 INDIAN LAW REPORTS ALLAHABAD SERIES
2. St. of Karn. Vs K. Gopalkrishna (2005) 9 SCC
291

3. Sudershan Kumar Vs St. of Himachal (2014)
15 SCC 666

4. Dilawar Singh Vs St. of Har. (2015) 1 SCC
737

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Shri Ram Prakash Patel,
learned counsel appearing for the appellant
on admission.

2. The instant appeal under Section
372 Cr.P.C. has been preferred by the
informant/appellant
challenging
the
judgment and order dated 25.09.2018
passed
by
the
Additional
Sessions
Judge/Fast Track Court (Offences against
Women), Rampur in Sessions Trial No.306
of 2012, acquitting the accused persons
namely, Chhattrapal (respondent no.2) and
Rakesh (respondent no.3) for commission
of the alleged offence under Section 307
IPC, arising out of Case Crime No. 1141 of
2012, Police Station-Civil Lines, DistrictRampur.

3. As per the version of the First
Information Report (hereinafter referred to
as "FIR"), on 12.04.2012 at 4:00 P.M., the
informant-Bhanu Pratap Singh Yadav (PW1) along with his wife Vimla Devi (PW-2)
went to Guddu's house at Punjab Nagar,
Rampur to know the well being of his
mother and son. He left his wife there and
went away Vijaeeya to attend reception of
the daughter of Operator Bulakhi Ram and
to collect the installment from Kamal
Singh. Therefrom, he came back to Punjab
Nagar, took his wife and gave receipt to
Vijay at Wajinagar. Thereafter, his wife
asked him to go via his village so that they
could meet his mother and to know her
well being. At about 7:30 PM, while they
were coming comfortably towards the
village, he saw two persons standing on the
road adjacent to the agricultural plot of
Kewal and recognized them as Chhattrapal
son of Swaraj and Rakesh son of
Chandrapal in the light of his motorcycle's
headlight. Two more unknown persons
were also standing there at some distance.
Chhattrapal shot fire at the informant, due
to which his motorcycle tottered down
towards the right side in the agricultural
plot of Kewal, but the fired bullet hit on the
temple region of his wife. In retaliation, the
informant, after balancing himself, fired
three shots from his service revolver.
Thereafter, the accused persons opened
indiscriminate firing and fled away towards
the forest. The informant saw his wife lying
down on the road in unconscious condition.
He rang to his family members. Sunil son
of Pappu immediately rushed to him and
asked as to who had shot fire, then the
informant took the name of the aforesaid
two accused persons. Sunil told him that he
saw Chhattrapal and Rakesh on the culvert
while they were running towards forest. On
his information to the police by phone,
police force reached there and took him and
his wife to the hospital through police
vehicle and got her admitted. The police
left the informant to look after her.

4. On the written report dated 12.04.2012
(Exhibit Ka-1) submitted by Bhanu Pratap Singh
Yadav (PW-1), FIR dated 12.04.2012 (Exhibit
Ka-7) has been lodged at about 23:40 hours
registered as Case Crime No. 1141 of 2012
under Section 307 IPC, Police Station Civil
Lines, District Rampur against Chhattrapal
(respondent no. 2), Rakesh (respondent no. 3)
and also against two unknown persons.

5. On 12.04.2012, the victim (w/o
informant) was medically examined at
11 All. Bhanu Pratap Singh Yadav Vs. State of U.P. & Ors.
231
about 8:30 p.m. in the District Hospital,
Rampur by Dr. Lalit (PW-3), Medical
Officer (EMG), District Hospital, Rampur
who had prepared and signed the medical
report dated 12.04.2012 (Exhibit Ka-2)
showing three injuries on the body of the
victim. Dr. Lalit had also submitted
supplementary
medical
report
dated
14.04.2012
(Exhibit
Ka-3),
after
considering the X-ray report of the victim.
First medical report dated 12.04.2012 and
the supplementary medical report dated
14.04.2012 are as follows :-

First
Medical
Report
dated
12.04.2012 :-

(1) Multiple firearm wound of
entry of size ranging from 0.4 cm x 0.4 cm
to 0.3 cm x 0.3 cm x depth not probed on
right side of fact and right side back of
head in an area of 13 cm x 4 cm collor of
abrasions present oozinal of blood present.
KUO advised X-rays.

(2) Fire wounds of entry (two in
number) of size 0.3 cm x 0.3 cm x depth not
probed on dorsal aspect of right forearm
and right hand 07 cm aparts of each other
KUO oozinal of blood present.

(3) Abraded contusion 3 cm x 2
cm on top of right shoulder

Opinion

Injury No.(1) and (2) are KUO
Advised X-ray of skull AP/Lat fal. Injury
No.(1) for Injury No.(2) advised X-ray of
Right forearm c Rt. Head AP/Lat injury
no.(3) KUO Advised X-ray of Rt. Shoulder
AP/Lat. Injury no.(1) and (2) caused by
firearm and Injury no.(3) is caused by hard
and blunt object. Duration about fresh Sd.
(Dr. Lalit) Attested Sd. Ashish Medical
Officer (EMO) Dist. Hospital.

Supplementary Medical Report
dated 14.04.2012 :-

Supplementary Report of Vimla
Devi aged about 35 years/F, wife of Bhanu
Yadav R/o Sai Vihar Colony Jawala Nagar
P/S Civil Line, Rampur who was examined
by me on dated 12.04.2012 at 8:30 PM in
D.H.R.

Injury no.(1), (2) and (3) were
KUO Advised X-Rays Skull, Right forearm
Right hand and Right shoulder.

X-Ray
Report
no.453
dated
13.04.2012 by Radiologist D.H. Rampur
shows that

X-Ray Skull-Six Small Radioopeque

X-Ray Rt. Forearm

c Rt. Hand-Two

Shadows of metallic density seen

X-Ray Rt. Shoulder-NAD

Opinion: Hence injury no.(1), (2),
(3) which were KUO are simple in nature."

6.

After
investigation,
the
Investigating Officer (hereinafter referred
to as "I.O.") has submitted the charge-sheet
dated 10.05.2012 (Exhibit Ka-5) against
Chhattrapal and Rakesh under Section 307
IPC. On the said charge-sheet, learned
Magistrate took cognizance vide order
dated 11.07.2012 and committed to the
Sessions Court for trial.

7. Vide order dated 10.04.2013, the
learned Court has framed charges against
both the accused persons under Section 307
IPC.

8. As to hold guilty, the prosecution
has produced as many as five witnesses.

9. PW-1, Bhanu Pratap Singh Yadav
(Informant), had stated that he was residing
in Sai Vihar since last 13-14 years and his
other family members were residing in the
village Raipur. On 12.04.2012 at about
4:00 P.M., he and his wife went to the
residence of Guddan at Punjab Nagar.
While returning along with his wife by
232 INDIAN LAW REPORTS ALLAHABAD SERIES
motorcycle, at about 7:30 P.M., he reached
near the agricultural plot of Kewal and saw
Chhattrapal and Rakesh standing on the
road to whom he recognized in the light of
his motorcycle's headlight. Besides them,
two more unknown persons were also
standing there. Chhattrapal shot fire at him
and his wife with an intention to kill them
due to political antipathy. The fired bullet
hit on the temple region of his wife.
Thereafter, the informant had opened fire
and discharged three shots from his service
revolver. Thereafter, the accused persons
fled away by opening indiscriminate firing.
He saw his wife lying on the road in
unconscious condition. Sunil and other
persons reached on the spot after receiving
a telephone call from the informant. Sunil
told him that on the same day he saw
Chhattrapal and Rakesh running away
through a culvert. On his information,
police personnel reached there, took the
informant and his wife to the District
Hospital. He had proved the written report
as Exhibit Ka-1.

10. PW-2, Vimla Devi, wife of
Informant, had supported the version of FIR.
She had deposed that on being hit by firearm,
she and her husband fell down on the ground.
The accused persons ran away towards the
village and her husband had followed them
with his service revolver. She further stated
that due to election antipathy, the accused
persons were intending to kill them, but she
alone had sustained gun shot injury. She had
also stated that after 05-06 months, it came to
their knowledge that Satyapal and Pappu @
Jai Singh were also involved in the incident.
They challenged her husband that he could
not do anything.

11. PW-3, Dr. Lalit had accepted that
the medical examination of victim, Vimla
Devi was conducted by him and proved her
medical report dated 12.04.2012, prepared
and signed by him, as Exhibit Ka-2 and also
proved the supplementary medical report
dated 14.04.2012, as Exhibit Ka-3, which
was also prepared and signed by him after
perusing the X-Ray report dated 13.04.2012.
It is stated by Dr. Lalit (PW-3) that there was
no letter written by police for medical
examination of victim. Even after completion
of medical examination, no permission of
Chief Medical Officer (hereinafter referred to
as "C.M.O.") had been obtained and
submitted by injured.

12. PW-4, Ram Khiladi Solanki
(Retired Inspector) is the Investigating
Officer of the case and had proved the Site
Map dated 13.04.2012 as Exhibit Ka-4 and
the Charge Sheet dated 10.05.2012 as
Exhibit Ka-5.

13. PW-5, Narendra Kumar Sharma
(Constable No.258) had proved that he had
prepared the original Chik FIR and
endorsed in General Diary No.64. He had
proved the General Diary as Exhibit Ka-6.
He had also proved the Chik FIR as Exhibit
Ka-7.

14. In reply to questions put to them,
while recording their statements under
Section 313 Cr.P.C. by Court below,
accused
persons
had
denied
their
involvement in the incident in question,
pleaded their innocence and claimed for
trial on merits.

15. After considering the facts and
circumstances of the case and the evidence
available on record, learned Trial Court,
vide impugned judgment and order dated
25.09.2018 has acquitted both accused
persons from the charge under Section 307
IPC, which is under challenge in the instant
criminal appeal.
11 All. Bhanu Pratap Singh Yadav Vs. State of U.P. & Ors.
233

16. Learned counsel for appellant had
submitted that the Court below had passed
the order without considering the material
evidence available on record. Bhanu Pratap
Singh (PW-1) is the ocular witness of the
crime in which his wife Vimla Devi
(victim/PW-2) had sustained gun shot
injury but the learned trial Court had
illegally disbelieved the statement of PW-1
and ignored the injuries sustained by the
victim. It is also submitted that accused
persons had criminal intention to kill the
informant due to political rivalry, inasmuch
as, both the parties had antipathy due to
election
of
Pradhan.
He
has
also
emphasized the medical report showing
several injuries on the body of victim from
where blood was oozing out, which had
been caused due to firearm. Learned Court
below had passed the impugned judgment
and order in a cursory manner, without
applying judicial mind, only on the basis of
conjectures
and
surmises.
Witnesses
adduced on behalf of appellant have fully
corroborated prosecution case whereas
defence failed to produce any credible
evidence in their support. Learned counsel
for the appellant has submitted that the
Court
below
had
misread
and
misinterpreted the evidence available on
record and illegally acquitted the accused
on
technical
ground,
which
is
not
sustainable in the eyes of law.

17. We have carefully considered the
submissions advanced by the learned
counsel for the appellant, perused the
impugned judgment passed by the Trial
Court and the Lower Court's record, which
was summoned in pursuance of the order
dated 04.01.2019 passed by this Court.

18. The present appellant/informant
(PW-1) has made opposite party nos. 2 and
3 as accused of attempt to murder with an
allegation that they had intentionally shot
fire at him, but unfortunately his wife (PW2) had sustained gun shot injuries. The
aforesaid incident allegedly took place on
12.04.2012 at about 7:30 p.m., while he
was returning back along with his wife
from Punjab Nagar to his village. Just after
three kilometers from Punjab Nagar, he
saw two persons standing on the road,
whom he recognized in light of his
motorcycle's
head
light,
as
present
respondents no. 2 and 3. At the time of
incident, it was quite dark and the road was
desolate. Chhattrapal (accused) had shot
single fire inflicting injuries to the wife of
the appellant/informant. In retaliation, the
appellant had also opened three fires but by
that time the accused fled away by making
indiscriminate firing. Thereafter, he saw
that his wife was injured and lying on the
road. On his telephonic information one
Sunil and other persons reached there.
Sunil had informed that he saw Chhattrapal
and Rakesh while they were running
through
culvert.
On
his
telephonic
information about the incident the police
personnel
reached
on
the
place
of
occurrence and took them to the hospital by
official jeep. After getting his wife
admitted in the hospital, he went to the
police station to lodge FIR.

19.

During
trial,
the
appellant/informant
had
moved
an
application dated 27.05.2014 being Paper
No. 40-Ka under Section 319 Cr.P.C. to
summon Satyapal and Pappu @ Jai Singh
alleging therein that these two persons were
also present on the spot but could not be
named in the FIR. The learned Trial Court
had rejected the application vide order
dated 20.04.2015.

20. The learned Trial Court has raised
doubt qua facts and circumstances of the
234 INDIAN LAW REPORTS ALLAHABAD SERIES
present
case
wherein
the
appellant/informant and his wife had been
attempted to be killed by the accused/
respondents no. 2 and 3. The learned Trial
Court has pointed out several discrepancies
and contradictions in the statement of
prosecution
witnesses
and
the
circumstantial evidence and found it
appropriate to acquit both the accused
persons.

21. The version of FIR could be
discussed
in
two
perspectives.
First,
occurrence of crime under which fire was
shot by the accused persons inflicting the
injuries to PW-2 (i.e. wife of informant).
Second, information of the crime under
which informant, PW-1 had telephonically
informed his family members and the
police, who took them to the hospital.

22. So far as the first part of FIR,
regarding the occurrence of crime, is
concerned, there are several discrepancies
and contradictions in the statements of
witnesses of fact, namely, PWs-1 and 2
respectively, which creates doubt with
respect to the facts and circumstances of the
case in which alleged crime said to have been
occurred. No recovery of firearm is shown
which was allegedly used by accused persons
in the crime scene. That apart, service
revolver of PW-1 and three empty cartridges,
as stated by PW-1, has also not been
recovered by the police. The non-recovery of
gun or pistol or country made pistol, which is
not made clear in the FIR, and used cartridges
from the said firearm, creates doubt with
respect to happening of the occurrence. I.O.
(PW-4) had categorically stated that he had
not found any empty cartridge on the spot,
neither he recovered any used cartridge from
the barrel of licensee revolver. He had also
denied the presence of blood stain on the
place of occurrence.

23. As per prosecution case, informant
was going by motorcycle from Punjab Nagar
to his village and road was running from west
to east. Incident took place after three
kilometers beside the agricultural field of
Kewal, which is situated on the southern side.
PW-1, in his cross-examination, has stated
that the accused persons were standing fifteen
steps away towards the south side from the
place where he received bullet injury. Such
event of bullet injury received by the
appellant has neither been mentioned in the
FIR nor deposed by him in his examinationin-chief. Even there is no medical report
available on the record to corroborate his
statement in this respect. In his crossexamination, PW-1 has stated that while he
had been challenged by the accused persons,
his motorcycle was tottered and he fell down
along with his motorcycle towards southern
side in the agriculture field of Kewal but his
wife remained standing on the road just four
steps away from the agriculture field of
Kewal. While he fell down, the accused
Chhattrapal
shot
one
fire
on
the
appellant/informant whereas, in the FIR and
in the examination-in-chief, it has been
mentioned that he and his wife were coming
by motorcycle, Chhattrapal shot fire at him
which inflicted injury to his wife who fell
down on the road and he saw his wife injured
lying on the road.

24. Timing of inflicting injuries to the
victim is different as mentioned in the FIR,
examination-in-chief
and
the
crossexamination of PW-1. In examination-inchief, PW-1 stated that his wife sustained
gun shot injury on the way while she was
sitting on the motorcycle and coming to the
village, but in cross-examination he stated
that his wife had sustained gun shot injury
when she was standing on the road. PW-1
deposed that while he received bullet
injury, the accused persons were standing
11 All. Bhanu Pratap Singh Yadav Vs. State of U.P. & Ors.
235
fifteen steps away towards south whereas
later on, he had deposed he was not injured
rather his wife had sustained injury.

25. As per deposition made by PW-1,
his wife was unconscious due to bullet
injury and had been taken by the police to
the
hospital
where
she
regained
consciousness at about 2:30 A.M., whereas,
on the other hand, the I. O. has stated that
he could not find any evidence that the
injured victim (PW-2) had been carried by
the police jeep to the hospital for medical
examination. That apart, sequence of events
as narrated by PW-2, i.e. after sustaining
gun shot injury until her admission in the
District Hospital, indicates that she was
fully conscious even after sustaining injury
and she had observed all activities from the
beginning
of
the
incident until her
discharge from the hospital. There is
nothing on record to prove that at the time
of medical examination i.e. 8:30 P.M.,
victim was brought to the hospital in
unconscious
condition.
No
such
endorsement, regarding her unconscious
state, is depicted in the medical report.

26. Deposition made by PW-2 is also
full of contradiction and hard to believe. In
her cross-examination, she had stated that
she was in her house at Sai Vihar, Rampur,
till 4:00 P.M., and thereafter, she had
reached
house
of
Guddu
in
dark
atmosphere. On the contrary, PW-1 had
stated that it was not dark, while he started
from the house of Guddu, about 7:00 P.M.,
with his wife to his village-Raipur.
According to PW-2, from the house of
Guddu, she along with her husband
departed to her house at Sai Vihar, Rampur,
whereas, PW-1 has stated that they were
going to their village-Raipur. Therefore,
according to PW-2 they were not going to
Raipur.

27. As per deposition made by PW-2
agriculture field of Kewal was situated
hardly about 1⁄2 km from the house of
Guddu, whereas, during his examinationin-chief at page-5, PW-1 had deposed that
place of incident is situated near agriculture
field of Kewal, was about 3 km far away
from the house of Guddu. There is an
absolute difference between 1⁄2 km and 3
km, which creates doubt with respect to the
place of occurrence. As per deposition of
PW-2, road was unpaved and there was
darkness on the desolated road and the
motorcycle was being driven towards east
side of the road. In the Site Map (i.e.
Exhibit Ka 4) road coming from Punjab
Nagar to Raipur is shown running from
west to east. Towards south, adjacent to the
road, agriculture field of Kewal has been
shown to be situated, where the incident
took place. As per deposition of PW-1,
while he was coming back on the
motorcycle, his wife (PW-2) was sitting on
the back seat with joint knees facing
towards north. According to Site Map
(Exhibit Ka 4) and as per version of
prosecution, accused persons were standing
on the south side and therefrom they shot
fire, meaning thereby, accused persons
were standing towards right side of the
running motorcycle (i.e. west-east) and face
of victim was towards left side of running
motorcycle. On the contrary, PW-2 has
deposed at page-6 that she was sitting on
the motorcycle with her joint knees towards
right side and her husband was driving the
bike facing east side. Therefore, as per her
statement, she was facing right side
(towards south) and the motorcycle was
running from west to east. Therefore,
according to her statement, accused persons
were standing towards left side of the
motorcycle and on instigation of Rakesh,
Chhattrapal had shot fire from left side. On
single fire, she sustained injury on her
236 INDIAN LAW REPORTS ALLAHABAD SERIES
head, thereafter, accused persons fled away
towards
the
village
by
opening
indiscriminate firing. According to her
deposition, she fell down on the right side
of
the
motorcycle
immediately
after
sustaining bullet injury and was little bit
conscious. Learned trial court has observed
that though PW-1 is a lady, who belongs to
rural area, but she was well acquainted
about all the four directions.

28. PW-2 has deposed that her
husband went towards east chasing the
accused
persons,
whereas
as
per
prosecution case as well as the Site Map
(Exhibit Ka 4), accused persons fled away
towards south direction. PW-2 has stated
that on the spot where she fell down, blood
oozed out from her wound. On the
contrary, PW-4 I.O. has deposed in his
cross-examination that he did not find any
blood stains on the spot. As per statement
of PW-2, one pellet injury was inflicted on
her back side below the waist, but in the
injury report, no injury has been shown on
that part of her body. Later on, she stated
that she sustained said injury because of
falling down on the earth. At page-'8', she
has deposed that she had nowhere stated
that after chasing the accused persons, her
husband returned back after 10-15 minutes
and till he returned the motorcycle was
lying there, beside her. She stated that her
husband did not sustain any injury even
after falling down from the motorcycle.
But, later on she deposed that her husband
had made balance, of motorcycle, with his
legs, therefore, the motorcycle had not
fallen down rather, she alone fell down
from the motorcycle.

29. As per prosecution, while PW-2
sustained injury on her temple region, the
motorcycle fell down towards right side in
the agriculture field of Kewal. As per
statement of PW-1, he and his motorcycle
fell down in the agriculture field of Kewal
and his wife remained standing on the road.
Therefore, there is major contradiction with
respect to the physical position of PW-1
and PW-2 on the spot. Even position of the
motorcycle is also doubtful in the light of
statements made by PW-1 and PW-2. PW-1
deposed that after sustaining bullet injury,
his wife became unconscious and remained
in that condition till 2:30 A.M. in the night,
whereas, statement of PW-2 shows that she
was conscious. At page-'3', she stated that
she was lying on the road for 15-20
minutes, thereafter, his Jethh (brother-inlaw) came on the spot and after half an
hour, police reached on the spot and took
her along with her husband to the Rampur
Hospital. From there, they reached hospital
within 15 minutes and doctor had examined
her injuries and she was admitted there.
However, she was not sure about the time
by which she reached the hospital.

30. Surrounding circumstances as
deposed by PW-2 and the statement/reply
of accused under Section 313 Cr.P.C.
reveal that political rivalry existed between
both the parties. Victim (PW-2) and wife of
Satyapal (brother of Chhatrapal/accused)
had contested the election of Pradhan and
wife of Satyapal had won the election,
since then PW-1 informant bears enmity. In
this backdrop of fact, it seems improbable
that Chhatrapal committed the crime out of
enmity, whereas his sister-in-law had won
the election of Pradhan. On the other side,
informant could have chance to bear the
political antipathy and had got the motive
to falsely implicate the accused persons in
criminal case, inasmuch as, his wife (PW2) was defeated in the said election.

31. Though the minor discrepancies
or contradictions are not of much relevance
11 All. Bhanu Pratap Singh Yadav Vs. State of U.P. & Ors.
237
in examining the facts and circumstances
responsible for the commission of the
crime, inasmuch as, with the passage of
time when witnesses are called in the
witness box, they may have some problem,
for many reasons, in recollecting the exact
happening which took place on the date of
occurrence.
In
this
respect,
Hon'ble
Supreme Court in Bharwada Ghoginbhai
Hirjibhai v. State of Gujrat, AIR 1983
SC 753, has expounded the law showing
several
conditions
wherein
minor
discrepancies could be occurred and same
should be ignored. The relevant portion of
paragraph 5 and paragraph 6 are being
quoted below :

"5. ..............................Over much
importance cannot be attached to minor
discrepancies. The reasons are obvious:

(1) By and large a witness cannot
be expected to possess a photographic
memory and to recall the details of an
incident. It is not as if a video tape is
replayed on the mental screen.

(2) Ordinarily it so happens that
a witness is overtaken by events. The
witness could not have anticipated the
occurrence which so often has an element
of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb
the details.

(3) The powers of observation
differ from person to person. What one may
notice, another may not. An object or
movement might emboss its image on one
person's mind whereas it might go
unnoticed on the part of another.

(4) By and large people cannot
accurately recall a conversation and
reproduce the very words used by them or
heard by them. They can only recall the
main purport of the conversation. It is
unrealistic to expect a witness to be a
human tape recorder.

(5) In regard to exact time of an
incident, or the time duration of an
occurrence, usually, people make their
estimates by guess work on the spur of the
moment at the time of interrogation. And
one cannot expect people to make very
precise or reliable estimates in such
matters. Again, it depends on the time-
sense of individuals which varies from
person to person.

(6) Ordinarily a witness cannot
be expected to recall accurately the
sequence of events which take place in
rapid succession or in a short time span. A
witness is liable to get confused, or mixed
up when interrogated later on.

(7) A witness, though wholly
truthful, is liable to be overawed by the
court atmosphere and the piercing cross
examination made by counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up
details from imagination on the spur of the
moment. The sub-conscious mind of the
witness sometimes so operates on account
of the fear of looking foolish or being
disbelieved though the witness is giving a
truthful
and
honest
account
of
the
occurrence witnessed by him-Perhaps it is
a
sort
of
a
psychological
defence
mechanism activated on the spur of the
moment.

6. Discrepancies which do not go
to the root of the matter and shake the
basic version of the witnesses therefore
cannot be annexed with undue importance.
More
so
when
the
all
important
"probabilities-factor" echoes in favour of
the version narrated by the witnesses."

32. In the present matter, as discussed
above,
glaring
contradictions
and
discrepancies have been found and such
discrepancies affected the genesis of the
crime. All discrepancies, totters basic
238 INDIAN LAW REPORTS ALLAHABAD SERIES
version of the witnesses, which affects the
accusation made by prosecution and the
occurrence of crime.

33. So far as second perspective qua
information of the crime is concerned, we
are not satisfied with its correctness in the
light of chronology of events as portrayed
by the prosecution. It is mentioned in the
FIR that when informant rang his family
members by his mobile phone, one Sunil
immediately rushed to the place of
occurrence, but unfortunately Sunil, who is
informant's relative, had not been brought
in the witness box to corroborate the
prosecution case. Sunil appears to be an
important witness to authenticate the
presence of PWs-1 and 2 at the place of
occurrence, injury of PW-2 and the
presence of the police, who reached on the
spot after him.

34. Perusal of FIR evinces that in
presence of Sunil, informant dialled his
mobile phone to call the police for help
who, in turn, reached on the spot and took
them
to
the
hospital
for
medical
examination. Statement of I.O. (PW-4)
does not corroborate the prosecution case
with respect to arrival of the police on the
informant's call and taking the victim and
her husband (informant) to the hospital.
Factum of arrival of the police on the spot
and phone call of PW-1 has been denied by
the I.O. (PW-4), who has stated in his
cross-examination that there is no evidence
on the record to prove that victim had been
carried to the hospital by the police jeep.
The relevant portion of statement of PW-4
is being quoted below :-

"प्ववेचना के िौरान ऐसा कोई साक्ष्य
मुझे नह िं प्मला प्क घटनास्थल से चुटैल प्वमला
िेव को उठाकर थाने क पुप्लस ि प में
डालकर डाक्टर मुआयने के प्लए पुप्लस ले गय
हो।"

35. In case, the incident was informed
by the informant to the police, who reached
on the spot at informant's phone call, there
should be an endorsement in the general
diary (G.D.) with regard to movement of
the police on the call of informant and
carrying them to hospital. There is no such
entry in the G.D. to show the movement of
the police on the call of informant and took
them to the hospital for medical treatment.

36. It is also very astonishing that
there is no documentary evidence on the
record to prove that victim had been
medically examined on the instructions of
the
police.
No
letter
for
medical
examination of victim (majruvi chithhi) had
been issued by the police. In the light of the
aforesaid
facts,
case
of
prosecution
regarding the telephonic information to the
relative of informant namely Sunil and
thereafter to the police, who allegedly took
them to hospital, is under cloud and no
credence could be given to it.

37. It is pertinent to point out that
medical report indicates that the victim had
been brought by Bhanu Yadav (i.e.
husband of victim/informant). Aforesaid
endorsement
in
the
medical
report
contradicts the prosecution case that PW-1
and his victim wife (PW-2) were brought to
the hospital by the police. Dr. Lalit (PW-3)
has clearly stated that there was no letter
(majruvi chithhi) issued by the police for
medical examination of the victim. He has
further deposed that in absence of any letter
from the police for examination of injuries,
there is a requirement of permission from
the concerned Chief Medical Officer
(hereinafter referred to as "C.M.O.") but
11 All. Bhanu Pratap Singh Yadav Vs. State of U.P. & Ors.
239
there is nothing on the record to show that
the prosecution had obtained permission
from the concerned C.M.O. either prior to,
or after, the medical examination.

38. Perusal of the record revealed that
original Medical Report was missing from
the medical register, which was allocated
for the same purpose. PW-3, Dr. Lalit
clearly stated that original Medical Report
was the victim is not available on the
record and only the photostat copy of that
report was available, which had not been
copied by him. He had further deposed that
he does not know the person concerned,
who has attested the photocopy of the
medical report. Perusal of record revealed
that photocopy of the medical report, which
had been said to be prepared and signed by
Dr. Lalit (PW-3) on 12.04.2012, is marked
as Exhibit Ka 2. On the rear side of the
certificate there is seal of a Medical Officer
and just above the seal there is an initial of
someone with an endorsement "attested".
Original copy of Supplementary Medical
Report dated 14.04.2012 is available on the
record. It is pertinent to point out that in
fourth line of front page, where the date of
medical examination is mentioned; a
tampering appears to have been made over
the month of report which has been tried to
be made '4' by running the pen repeatedly
in the same direction for making it '4'. PW3, Dr. Lalit had admitted the medical
examination
of
victim
but
refused
attestation of photostat copy of the medical
report.

39. Even assuming the correctness of
the medical report, we are not in a position
to convince ourselves, after appreciation of
the medical report and the deposition of Dr.
Lalit (PW-3) that the wounds inflicted to
the victim are attributable to single gun
shot, as hammered by the prosecution.
Inflicted wounds could be examined under
two perspectives i.e. nature of wound and
use of firearm. In the medical report, all the
injuries are shown to be superficial and
simple in nature. After X-Ray report,
nothing had been found in the wound
except
an
observation-"Shadows
of
metallic density". In the Supplementary
Medical Report, Dr. Lalit (PW-3) opined as
under :-

"Opinion: Hence injury no.(1),
(2), (3) which were KUO are simple in
nature."

40. In the first Medical Report, only
shape and size of wound have been
mentioned, but depth of the wound has not
been mentioned. There is no retrieval of
pellets or bullets from the wound. Dr. Lalit
(PW-3) deposed that injury no.(1) could be
caused because of use of different types of
firearms. Aforesaid deposition of Dr. Lalit
had not corroborated the prosecution case
with respect to the single shot fired by
accused. It has not been made clear,
anywhere, as to which type of firearm had
been used by the accused in commission of
the crime. Dr. Lalit had categorically stated
that collar of abrasion, as mentioned in first
injury, could be emerged, in case, fire is
shot from a distance of 1 and 1 1⁄2 feet and
it would not emerge when fire was shot
from the distance of 8-10 feet. In his crossexamination, PW-1 has deposed that while
accused Chhattrapal challenged PW-1, he
was standing 15 steps away from him
towards south side and therefrom he shot
fire at him which inflicted wounds to his
wife (PW-2). As per rough calculation one
step could be counted as two feet,
therefore, 15 steps would be reckoned
about 30 feets. In this view of the matter,
depositions of Pws-1, 2 and 4 are
contradictory qua cause of injury.
240 INDIAN LAW REPORTS ALLAHABAD SERIES

41. In the facts and circumstances of
the present case, statutory element of
Section
307
IPC
are
not
attracted.
"Intention"
or
"knowledge"
are
two
alternative statutory elements to hold any
person guilty for the commission of offence
u/s 307 IPC. Therefore, one should have
mens-rea intending to commit murder or
should have possess knowledge that overt
act, in all probability, would cause death of
victim. Term "attempt" as embodied in the
aforesaid sections could stem from the
specific intention to commit murder and
such blameworthy condition of mind could
be
gathered
from
the
direct
or
circumstantial
evidence,
including
the
conduct of accused. Mere bodily injury
capable of causing death or not, are not
sufficient to hold any person guilty for
committing crime under aforesaid sections.

42. After considering the medical
report and circumstances in totality, it
cannot be said that the accused have made
attempt to murder as defined under Section
307 IPC. There are no such circumstances
to suggest the intention of the accused
persons for committing homicidal death of
the informant or his wife.

43. Instant appeal is preferred against
judgment of acquittal. While considering
the scope of interference in an appeal or
revision against acquittal, it has been held
by the Supreme Court that if two views on
appreciation of the evidence are reasonably
possible, one supporting the acquittal and
other indicating conviction, the High Court
should not, in such a situation, reverse the
order of acquittal recorded by the Trial
Court. In the matter of State of Karnataka
vs. K. Gopalkrishna reported in (2005) 9
SCC 291, the Hon'ble Supreme Court,
while dealing with an appeal against
acquittal, observed as under:

"In such an appeal the Appellate
Court does not lightly disturb the findings
of fact recorded by the Court below. If on
the basis of the same evidence, two views
are reasonably possible, and the view
favouring the accused is accepted by the
Court below, that is sufficient for upholding
the order of acquittal.