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

- **Citation:** [2022] 12 S.C.R. 1035
- **Court:** Supreme Court of India
- **Decided:** 2022-11-04
- **Case number:** Criminal Appeal Nos. 946-947 of 2019
- **Bench:** Uday Umesh Lalit, S. Ravindra Bhat, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ashok-kumar-singh-chandel-v-state-of-u-p-35707
- **Pages:** 78

## Headnote

Penal Code, 1860 - s. 302 r/w s.149, s.307 r/w s.149 and
s.148 - Arms Act, 1959 - ss.25 and 30 - Code of Criminal
Procedure, 1973 - s.293 - Murder of five persons - Seven accused
- The deceased belonged to or were associated with the same family;
two of them were brothers, the third was their minor son and the
other two were their close family friends - Trial Court acquitted all
the accused - Appeal against acquittal - High Court reversed the
findings of the trial court and convicted all the accused under ss.148,
302 read with 149, 307 read with 149 of the IPC, and sentenced
them to life imprisonment - Propriety of - Held: High Court was
justified in exercising its appellate jurisdiction in reversing the order
of acquittal as there were certain glaring mistakes, and distorted
conclusions in the decision of the Trial Court - High Court was
duty-bound to reverse the decision as there existed very substantial
and compelling reasons to do so, failing which it would have caused
a grave miscarriage of justice - Prosecution proved the presence
of PW-1 at the place of occurrence and of him being an injured
eye-witness to the incident - Facts narrated in the FIR were fully
corroborated by much of the documentary evidence and were fully
in consonance with the testimony of the prosecution witnesses -
The High Court was correct in rejecting the submission that the
prosecution failed to prove a common object and unlawful assembly
- The arrests of A6, A10, A7 and A8 were concurrently and
consistently spoken by all the witnesses, PW-10, PW-11 and PW-12
- Conclusion drawn by trial court that the arrest and recovery were
doubtful were glaring mistakes - Rejection of the FSL (ballistic)
report was another grave mistake of the Trial Court - Conclusion
of Trial Court that the ballistic report was inadmissible as it is not in
consonance with the requirement of s.293 Cr.P.C. was entirely wrong
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
- The ballistic report was in complete compliance of the statutory
provision - High Court had to necessarily step in to prevent a grave
miscarriage of justice.
Appeal - Appeal against acquittal by trial court - Jurisdiction
of the High Court - Discussed.
Criminal Law - Motive - Sufficiency or insufficiency of motive
does not have a direct bearing on the actual evidence against the
accused, particularly when the prosecution relies on direct evidence
of injured eyewitnesses.
Criminal Law - Investigation - Defective investigation by
investigating authorities by itself does vitiate the case of the
prosecution when there are credible eye-witness testimonies as well
as other compelling pieces of evidence.
Evidence - Witness - Testimony of injured eye-witness -
Appreciation - Held: When there are credible ocular witnesses whose
statements are corroborated by other contemporaneous evidence,
certain minor variations, such as non-recovery of blood-stained
clothes, certain other weapons etc. will not be fatal to the case of
the prosecution.
Code of Criminal Procedure, 1973 - s.293 - Statutory
requirement under - Compliance - FSL (ballistic) report - On facts,
the report came from the office of the Assistant Director of a Forensic
Lab bearing his seal - Conclusion of the Trial Court that the ballistic
report was inadmissible as it was not in consonance with the
requirement of Section 293 Cr.P.C., is entirely wrong - Ballistic report
was in complete compliance of the statutory provision - Trial Court
erred in rejecting the ballistic report.
Dismissing the appeals, the Court
HELD: 1. In the instant case, the High Court was justified
in exercising its appellate jurisdiction in reversing the order of
acquittal as there were certain glaring mistakes, and distorted
conclusions in the decision of the Trial Court. The High Court
was duty-bound to reverse the decision as there existed very
substantial and compelling reasons to do so, failing which it would
have caused a grave miscarriage of justice. [Para 174][1109-C]
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1035
[2022] 12 S.C.R. 1035
1035
ASHOK KUMAR SINGH CHANDEL
v.
STATE OF U.P.
(Criminal Appeal Nos. 946-947 of 2019)
NOVEMBER 04, 2022
[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT
AND PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Penal Code, 1860 - s. 302 r/w s.149, s.307 r/w s.149 and
s.148 - Arms Act, 1959 - ss.25 and 30 - Code of Criminal
Procedure, 1973 - s.293 - Murder of five persons - Seven accused
- The deceased belonged to or were associated with the same family;
two of them were brothers, the third was their minor son and the
other two were their close family friends - Trial Court acquitted all
the accused - Appeal against acquittal - High Court reversed the
findings of the trial court and convicted all the accused under ss.148,
302 read with 149, 307 read with 149 of the IPC, and sentenced
them to life imprisonment - Propriety of - Held: High Court was
justified in exercising its appellate jurisdiction in reversing the order
of acquittal as there were certain glaring mistakes, and distorted
conclusions in the decision of the Trial Court - High Court was
duty-bound to reverse the decision as there existed very substantial
and compelling reasons to do so, failing which it would have caused
a grave miscarriage of justice - Prosecution proved the presence
of PW-1 at the place of occurrence and of him being an injured
eye-witness to the incident - Facts narrated in the FIR were fully
corroborated by much of the documentary evidence and were fully
in consonance with the testimony of the prosecution witnesses -
The High Court was correct in rejecting the submission that the
prosecution failed to prove a common object and unlawful assembly
- The arrests of A6, A10, A7 and A8 were concurrently and
consistently spoken by all the witnesses, PW-10, PW-11 and PW-12
- Conclusion drawn by trial court that the arrest and recovery were
doubtful were glaring mistakes - Rejection of the FSL (ballistic)
report was another grave mistake of the Trial Court - Conclusion
of Trial Court that the ballistic report was inadmissible as it is not in
consonance with the requirement of s.293 Cr.P.C. was entirely wrong
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
- The ballistic report was in complete compliance of the statutory
provision - High Court had to necessarily step in to prevent a grave
miscarriage of justice.
Appeal - Appeal against acquittal by trial court - Jurisdiction
of the High Court - Discussed.
Criminal Law - Motive - Sufficiency or insufficiency of motive
does not have a direct bearing on the actual evidence against the
accused, particularly when the prosecution relies on direct evidence
of injured eyewitnesses.
Criminal Law - Investigation - Defective investigation by
investigating authorities by itself does vitiate the case of the
prosecution when there are credible eye-witness testimonies as well
as other compelling pieces of evidence.
Evidence - Witness - Testimony of injured eye-witness -
Appreciation - Held: When there are credible ocular witnesses whose
statements are corroborated by other contemporaneous evidence,
certain minor variations, such as non-recovery of blood-stained
clothes, certain other weapons etc. will not be fatal to the case of
the prosecution.
Code of Criminal Procedure, 1973 - s.293 - Statutory
requirement under - Compliance - FSL (ballistic) report - On facts,
the report came from the office of the Assistant Director of a Forensic
Lab bearing his seal - Conclusion of the Trial Court that the ballistic
report was inadmissible as it was not in consonance with the
requirement of Section 293 Cr.P.C., is entirely wrong - Ballistic report
was in complete compliance of the statutory provision - Trial Court
erred in rejecting the ballistic report.
Dismissing the appeals, the Court
HELD: 1. In the instant case, the High Court was justified
in exercising its appellate jurisdiction in reversing the order of
acquittal as there were certain glaring mistakes, and distorted
conclusions in the decision of the Trial Court. The High Court
was duty-bound to reverse the decision as there existed very
substantial and compelling reasons to do so, failing which it would
have caused a grave miscarriage of justice. [Para 174][1109-C]
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2. Even though the prosecution placed material to establish
the existence of a motive on the part of the accused party to
murder five members of the Shukla family and associates, the
motive part is treated secondary in view of the fact that this is a
case of direct evidence of injured eye-witnesses. [Para 174][1109D-E]
3. The place of the incident is not disputed. In fact, the Trial
Court itself returned findings about the first as well as the second
event of the incident. These findings were affirmed by the High
Court. Therefore, the only question related to the persons
involved and the manner of commission of the offence. [Para
174][1109-E-F]
4. Having examined the contentions relating to (a)
discrepancies in the number of dead bodies brought to the hospital
(b) improbability of the time taken to prepare the tehreer (c)
alleged omissions in the FIR (d) and the discharge timing
mentioned in the Bed Head Ticket, casting doubt on the time of
lodging the FIR, it is found that the prosecution has explained all
the discrepancies beyond a reasonable doubt. The conclusions
of the Trial Court were based on surmises and conjectures, and
therefore, the High Court is justified in reversing the judgment
of the Trial Court. [Para 174][1109-G-H; 1110-A]
5. Having considered the four submissions in support of
the contention that PW-1 and PW-2 are not the eyewitnesses to
the incident, being (a) discrepancy on the bullets marks on the
jonga, (b) bullet injuries on the deceased and eyewitnesses on
the basis of PW-1 statement, (c) timing of the X-ray and Bed Head
Ticket, and (d) evidence relating to the failure of electricity at
the time of the incident, it is found that these submissions are
contrary to evidence on record. The prosecution has proved the
presence of PW-1 at the place of occurrence and of him being an
injured eye-witness to the incident. The inferences drawn by the
Trial Court were based on a misreading of the evidence, and
therefore, the High Court was obliged to reverse the finding to
prevent a grave miscarriage of justice. [Para 174][1110-B-C]
6. Having examined the alternative story of the defence
based on the fax, said to have been sent from the office of the SP
ASHOK KUMAR SINGH CHANDEL v. STATE OF U.P.
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
and introduced through the defence witness DW-3, it is clear that
the facts mentioned in the fax are not supported by any evidence.
On the contrary, the facts narrated in the FIR are fully
corroborated by much of the documentary evidence and are fully
in consonance with the testimony of the prosecution witnesses.
As there is no evidence to corroborate the events mentioned in
the fax and the evidence of DW-3 does not inspire confidence, to
say the least. The conclusion of the Trial Court that the
prosecution could not prove the case is totally erroneous. Such a
finding is a glaring mistake as held by this Court in Chandrappa
and Ors. v. State of Karnataka obligating the High Court to interfere
with an order of acquittal. [Para 174][1110-D-F]
7. The High Court was correct in rejecting the submission
that the prosecution failed to prove a common object and the
unlawful assembly. The decision of the High Court on this issue
is unexceptionable on fact and law. [Para 174][1111-A-B]
8. The conclusion of the Trial Court about the recovery of
the weapon is based on a perverse finding as it misunderstood
the 8x60-bore rifle to be distinct from a 0.315 bore rifle. The
technical material prove beyond doubt that there is no difference
at all. The distinction is only in the measurement system, one
being British and the other being the Continental system. In view
of such a perverse finding, the High Court had very substantial
and compelling reasons to reverse the findings of the Trial Court.
[Para 174][1111-B-D]
9. The arrests of Naseem (A6), Bhan Singh (A10), Shyam
Singh (A7) and Sahab Singh (A8) were concurrently and
consistently spoken by all the witnesses, PW-10, PW-11 and PW12. The conclusion drawn by the Trial Court that the arrest and
recovery were doubtful were glaring mistakes. The High Court
was, therefore, completely justified in reversing the decision of
the Trial Court. [Para 174][1111-D-E]
10. The rejection of the FSL (ballistic) report is another
grave mistake of the Trial Court. The conclusion of the Trial Court
that the ballistic report is inadmissible as it is not in consonance
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with the requirement of Section 293 Cr.P.C. is entirely wrong.
The ballistic report is in complete compliance of the statutory
provision. The High Court had to necessarily step in to prevent
a grave miscarriage of justice. [Para 174][1111-F-G]
M.G.Agarwal v. State of Maharashtra [1963] 2 SCR
405 - followed.
Chandrappa and Ors v. State of Karnataka (2007) 4
SCC 415 : [2007] 2 SCR 630; Ghurey Lal v. State of
UP (2008) 10 SCC 450 : [2008] 11 SCR 499; Amzad
Ali Alias Amzad Kha and Ors v. State of Assam (2003) 6
SCC 270; Bhargavan and Ors v. State of Kerala (2004)
12 SCC 414 : [2003] 5 Suppl. SCR 535; Bhupendra
Singh and Ors v. State of U.P. (2009) 12 SCC 447 :
[2009] 6 SCR 262 and State of Himachal Pradesh v.
Mast Ram (2004) 8 SCC 660 : [2004] 4 Suppl. SCR 269
- relied on.
State of U.P. v. Gokaran and Ors (1984) Supp SCC
482; Masalti v. State of U.P. [1964] 8 SCR 133; Praveen
Kumar v. State of Karnataka (2003) 12 SCC 199;
Menoka Malik and Ors v. State of West Bengal and Ors
(2019) 18 SCC 721 : [2018] 10 SCR 707; N.
Vijaykumar v. State of Tamil Nadu (2021) 3 SCC 687;
Nawab Ali v. The State of U.P. (1974) 4 SCC 600 :
[1974] 3 SCR 734; State of Rajasthan v. Shiv Charan
and Ors. (2013) 12 SCC 76 : [2013] 8 SCR 336; Shivaji
Genu Mohite v. The State of Maharashtra (1973) 3 SCC
219; State of Uttar Pradesh v. Kishanpal and Others
(2008) 16 SCC 73: [2008] 11 SCR 1048; Sheo Shankar
Singh v. State of Jharkhand and Anr. (2011) 3 SCC
654 : [ 2011] 4 SCR 312; Darbara Singh v. State of
Punjab (2012) 10 SCC476 : [2012] 7 SCR 541; Rammi
Alia Rameshwar v. State of M.P. (1999) 8 SCC 649 :
[1999] 3 Suppl. SCR 1; Abdul Sayeed v. State of
Madhya Pradesh (2010) 10 SCC 259 : [2010]
13 SCR 311; Rajendra Alia Rajappa & Ors v. State of
Karnataka (2021) 6 SCC 178; Rana Pratap and Ors.
v. State of Haryana (1983) 3 SCC 327; Karnel Singh v.
ASHOK KUMAR SINGH CHANDEL v. STATE OF U.P.
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
State of M.P.(1995) 5 SCC 518 : [1995] 2 Suppl.
SCR 629; C. Muniappan and Others v. State of Tamil
Nadu (2010) 9 SCC 567 : [2010] 10 SCR 262; Saddik
alias Lalo Gulam Hussein Shaikh and Ors v. State of
Gujarat (2016) 10 SCC 663 : [2016] 5 SCR 421;
Lakshman Singh v. State of Bihar (2021) 9 SCC 191
and M Nageswara Reddy v. State of AP 2022 SCC
OnLine SC 268 - referred to.
W.H.B. Smith, Mauser Rifles and Pistols (The
Stackpole Company, Pennsylvania, United States of
America, 4th edn, 1954, pg nos. 156,157) - referred
to.
Case Law Reference
(1984) Supp SCC 482
referred to
Para 44
[1964] 8 SCR 133
referred to
Para 52
(2003) 12 SCC 199
referred to
Para 52
[2018] 10 SCR 707
referred to
Para 52
(2021) 3 SCC 687
referred to
Para 56
[1974] 3 SCR 734
referred to
Para 60.2
[2013] 8 SCR 336
referred to
Para 60.2
[2007] 2 SCR 630
relied on
Para 74
[1963] 2 SCR 405
followed
Para 75
[2008] 11 SCR 499
relied on
Para 76
(1973) 3 SCC 219
referred to
Para 82
[2008] 11 SCR 1048
referred to
Para 83
[2011] 4 SCR 312
referred to
Para 84
[2012] 7 SCR 541
referred to
Para 84
[1999] 3 Suppl. SCR 173
referred to
Para 100
[2010] 13 SCR 311
referred to
Para 115
(2021) 6 SCC 178
referred to
Para 116
(1983) 3 SCC 327
referred to
Para 134
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[1995] 2 Suppl. SCR 629
referred to
Para 140
[2010] 10 SCR 262
referred to
Para 141
(2003) 6 SCC 270
relied on
Para 143
[2003] 5 Suppl. SCR 535
relied on
Para 144
[2009] 6 SCR 262
relied on
Para 145
[2016] 5 SCR 421
referred to
Para 146
(2021) 9 SCC 191
referred to
Para 164
[2004] 4 Suppl. SCR 269
relied on
Para 170
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 946-947 of 2019.
From the Judgment and Order dated 19.04.2019 of the High Court
of Judicature at Allahabad in Government Appeal No.5123 of 2002 and
Criminal Revision No.1548 of 2002.
With
Criminal Appeal Nos. 1030-1031, 1046-1047, 1269-1270, 18041805, 1980-1981, 1279-1280 of 2019, slp (crl) no.10742 of 2019, w.p.
(crl) no. 57 of 2022.
Harin P. Raval, Siddhartha Dave, Ms. Sonia Mathur, Ms.
Aishwarya Bhati, Vishvajit Singh, Jayant Muthuraj, Ratnakar Dash, Sr.
Advs., Shiv Kumar Pandey, Abhay Raj Singh Chandel, Chandrashekhar
A. Chakalabbi, Awanish Kumar, Abhinav Garg, D. Girish Kumar, Kumar
Vinayakam Gupta, Kartikey Kanojiya, M/s. Dharmaprabhas Law
Associates, Sandeep Jha, Arjun D. Singh, Ashish Singh, Dharmendra
Kumar Sinha, Uday Prakash Yadav, Simarjeet Singh Saluja, Ms. Prerna
Dhall, Noor Rampal, Ms. Aastha Mehta, Ms. Ishita Sinha, Rohit Pandey,
Murari Tiwari, Ramjee Pandey, Ms. Manisha Chava, Rustam Singh
Chauhan, Ms. B.L.N. Shivani, Rajeev Kumar Dubey, Ms. Harshita
Raghuvanshi, Ms. Shreyase Aggrwal, Ashiwan Mishra, Kamlendra
Mishra, Shashank Singh, Anupam Chaudhary, Manoj Kumar Dwivedi,
Mrinal Kumar Sharma, Ms. Bansuri Swaraj, Ms. Ana Upadhyay, Akash
Singh, Ms. Manya Hasija, Prem Sunder Jha, Pankj Bist, Krishnanand
Pandeya, Manish Kumar, Anshuman Srivastava, Naresh Kumar, Advs.
for the appearing parties.
ASHOK KUMAR SINGH CHANDEL v. STATE OF U.P.
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
The Judgment of the Court was delivered by
PAMIDIGHANTAM SRI NARASIMHA, J.
1. These Criminal Appeals are by seven accused convicted and
sentenced to life by the High Court of Judicature at Allahabad for the
murder of five persons. The deceased belonged to or were associated
with the same family; two of them were brothers, the third was their
minor son and the other two were their close family friends. Apart from
these criminal appeals, there is also a Special Leave Petition filed by the
informant (PW-1), who is the sole surviving brother in the family, praying
for enhancement of the sentence from life to death and also a Writ
Petition seeking transfer of accused no. 5 to a jail outside Uttar Pradesh
for serving out the sentence in lieu of his influence in the State.
2.1 The judgment of the High Court was rendered in an appeal
against acquittal of all the accused by the Trial Court1. The High Court
by its judgment2 impugned herein reversed the findings of the Trial Court
and convicted all the accused for the offences under Sections 148, 302
read with 149, 307 read with 149 of the Indian Penal Code, 18603 and
sentenced them to life imprisonment. The details of the conviction and
sentences are as under.
2.2 All these accused were sentenced to undergo life imprisonment
for the offence under Section 302 read with Section 149 IPC and to pay
a fine of Rs. 20,000/- each, in default to undergo six months additional
simple imprisonment. The accused were sentenced to undergo rigorous
imprisonment for three years for the offence under Section 148 IPC and
to pay a fine of Rs. 5000/- each and in default to undergo simple
imprisonment of six months. All the accused were sentenced to undergo
ten years rigorous imprisonment for the offence under Section 307 read
with149 IPC and to pay a fine of Rs. 10,000/- each, in default to undergo
six months simple imprisonment.
2.3 The acquittal of Ashok Kumar Singh Chandel(A5) under
Sections 379 and 404 IPC by the Trial Court was upheld. Further, the
1 Court of the Upper Sessions Judge, Hamirpur; ST No. 145/2000, 146/2000 and 147/
2000 dated 15.07.2002.
2 In Government Appeal No. 5123/2002 and Criminal Revision No. 1548/2002 dated
19.04.2019.
3 hereinafter referred to as 'IPC'.
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acquittal of accused Sahab Singh (A8) for an offence under Section 25
of the Arms Act, 19594 and the acquittal of accused Ashok Singh
Chandel(A5) for an offence under Section 30 of the Arms Act was also
confirmed by the High Court without any variation. With these findings,
the Criminal Appeal of the State and the Criminal Revision of the
informant (PW-1) were substantially allowed.
3. Challenging the judgment of the High Court, the present criminal
appeals are filed by the accused Raghuvir Singh (A1) in Crl. A Nos.
1046- 1047/2019, Ashutosh Singh @ Dabbu (A2) in Crl. A. Nos. 10301031/2019, Uttam Singh (A3) and Pradeep Singh (A4) in Crl. A Nos.
1269-1270/2019, Ashok Kumar Singh Chandel (A5) in Crl. A Nos. 946947/2019, Naseem (A6) in Crl. A Nos. 1279-1280/2019, Sahab Singh
(A8) in Crl. A No. 1980- 1981/2019, and Bhan Singh (A10) in Crl. A
Nos. 1804-1805/2019.
The Incident:
4. The prosecution case as it unfolds in the First Information
Report5 is that there has been a long-standing factional dispute between
two groups in Hamirpur, U.P. The group represented by Ashok Chandel
(A5) and the group represented by Shukla family were inimically disposed
against each other for a long time. The FIR is about the incident that has
occurred at 09.10 P.M. on 26.01.1997 at Mohalla Subhash Bazar, Kasba,
Hamirpur as two events occurring one after another in quick succession.
The first incident is in front of the gun shop owned by accused no. 6,
referred to as 'Naseem's gun shop' and the second incident is near the
residence of Parma Pandit which is about 50-75 meters from Naseem's
gun shop. The two incidents are as follows.
5.1 First part of the incident: On 26.01.1997, Rajiv Shukla (PW1) along with his servant Lallan went to the market Mohalla Subhash
Bazaar, Kasba, Hamirpur in the evening of 26.01.1997 at around 07.30
PM to buy some articles. As they were returning from the market, they
saw PW-1's elder brother, Rakesh Kumar Shukla, his two sons, Gudda
and Chandan, Sri Kant Pandey, Vipul (PW-1's son) and Ved Prakash,
returning home in a vehicle, all through referred to as a 'jonga'.
5.2 On seeing the jonga, PW-1 and Lallan stopped to speak to
Rakesh Kumar Shukla and others in the jonga. As the jonga was parked
4 hereinafter referred to as the 'Arms Act'.
5 hereinafter referred to as 'FIR'.
ASHOK KUMAR SINGH CHANDEL v. STATE OF U.P.
[PAMIDIGHANTAM SRI NARASIMHA, J.]
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[2022] 12 S.C.R.
in the middle of the road, facing east direction in front of Naseem's (A6)
gun shop, six accused, namely Ashok Kumar Chandel (A5), Naseem
(A6), Shyam Singh (A7), Sahab Singh (A8), Jhandu (A9) and Rukku
(driver of A5) came out of Naseem's gun shop, all armed with rifles and
guns and suddenly started firing indiscriminately at the jonga.
5.3 It is stated in the FIR that immediately after hearing the sound
of fire from the side of the market, Raghuvir Singh, liquor contractor
(A1), his son Ashutosh alias Dabbu Singh (A2), Pradeep Singh (A4),
Uttam Singh (A3) and Bhan Singh (A10) arrived at the spot in another
vehicle and started firing at the jonga. Due to the firing, Sri Kant (since
deceased) and Ved Prakash (since deceased), who were sitting on the
rear side of the jonga, received bullet injuries. Rakesh Kumar Shukla
(since deceased), Gudda (since deceased), Chandan and Vipul also
received bullet injuries. Because of the firing, panic gripped, and the
market was shut down.
6.1 Second part of the incident: Immediately on getting
information about the occurrence, Rajesh Kumar Shukla, elder brother
of PW-1, Ravi Kant Pandey (PW-2), Bhagwati Sharan Nayak, Sri
Prakash Nayak, Anil and many others reached the place of the incident.
As the children Chandan and Vipul sustained minor injuries, they were
immediately taken out of the jonga and sent home with the help of some
people in the area.
6.2 Rajesh Shukla reversed the jonga from in front of Naseem's
gun shop and started driving it towards the hospital, which is on the west
side of the Subhash Bazar Road. However, as they reached Parma
Pandit's house, which is just 50-75 meters from Naseem's gun shop, the
accused, having already reached the spot. At that moment, Ashok Chandel
(A5) exhorted that "no one from the Shukla Family should escape
alive", and on hearing that, all the accused again started firing
indiscriminately. At this point, Rajesh Shukla got out of the jonga with his
rifle to take aim and fire back at the accused persons. However, during
the cross-fire, Rajesh Shukla sustained fatal injuries and fell down on
the spot. PW-1, who was standing on the driver's side (right side) of the
jonga, also received bullet injuries on his leg. Similar is the position of
PW- 2, who also received bullet injuries on his leg. As PW-1 and his
companions took cover to conceal themselves, PW-1 saw the assailants
snatch the rifle from Rajesh Kumar Shukla (since deceased), who had
fallen due to bullet injuries and escaped from the scene of offence, towards
'chowraha' in their vehicles.
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6.3 Having seen Rajesh Kumar Shukla also succumb to bullet
injuries like Gudda and Rakesh Kumar Shukla, hoping to save Srikant
Pandey and Ved Prakash, PW-1 put them in the jonga and drove to the
hospital.
At the hospital:
7.1 PW-1 reached the hospital at around 07.50 P.M, and he was
immediately examined by Dr. N.K. Gupta, PW-8 who gave the injury
report- Exb. Ka-13 which records injuries on his left thigh (back portion)
caused by firearms. Dr. S.R. Gupta, PW-7, who was the Radiologist on
duty that day, got his X-Ray-Exbs. Ka-44-46 done.
7.2 While PW-1 was being treated, Dr. P.N Paya, PW-5, examined
the bodies of deceased Rakesh Kumar Shukla, Rajesh Kumar Shukla
and Sri Kant Pandey and declared them dead. Dr. R.S. Gupta, PW-6,
examined Gudda and Ved Prakash and declared them dead. One Mr.
Hardayal was also injured in the firing was examined by PW-8 Dr. N.K.
Gupta. His injury report, Exb. Ka-14 was prepared at 8.45 P.M. PW-8
also examined PW-2 at 10 P.M. and gave the injury report, marked as
Exb. Ka-15. Vipul and Chandan were also examined at 10.30 P.M., and
their injury reports were marked and exhibited as Exbs. Ka- 16 and Ka17, respectively.
Filing of the FIR:
8.1 After obtaining immediate medical attention, PW-1's statement
('tehreer') was recorded at the hospital by Saraswati Sharan, the scribe
who was examined as PW-3. Upon completion of the tehreer, at around
09.10 PM, PW-1 went to the police station to report the incident and to
lodge the FIR. At the Police Station, Constable Mahesh Singh, examined
as PW-9 prepared the FIR6, Exb. Ka-20, in his own handwriting, by
copying the contents from the tehreer under Sections 147, 148, 149, 307,
302, 34 & 395 IPC.
8.2 In the FIR, PW-1 mentioned about the two incidents, first in
front of Naseem's gun shop and second near Parma Pandit's house and
named ten accused and two unknown persons. The motive behind the
attack was stated to be a political rivalry between Ashok Kumar Chandel
and the Shukla family. In this context, the informant mentioned about a
criminal case involving Shyam Singh (A7). In that case, Rakesh Kumar
6 FIR no. 33/1997.
ASHOK KUMAR SINGH CHANDEL v. STATE OF U.P.
[PAMIDIGHANTAM SRI NARASIMHA, J.]
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Shukla and Rama Kant Pandey (brother of Sri Kant Pandey) assisted
the prosecution against Shyam Singh (A7). He also mentioned about the
Assembly Elections, where the Shukla family opposed Shyam Singh (A7)
and Ashok Kumar Chandel (A5), leading to a political rivalry.
8.3 The FIR was thereafter copied into the General Diary by the
Investigating Officer, Lalman Verma, PW-12. After copying the FIR,
PW-12 proceeded to the place of occurrence in furtherance of the
investigation.
9. It is important to mention at this stage that on the next day, i.e.
on 27.01.1997, at 7.50 P.M. two more FIRs7, were registered against
Sahab Singh and Ashok Kumar Chandel under Sections 25 and 30 of the
Arms Act, 1959 respectively.
Investigation:
10. After lodging the FIR, PW-1 returned to the hospital where
the panchayatnama8 of the deceased was being conducted. Thereafter,
PW-1 went to the place of occurrence in the jonga, which was driven by
Lallan, where he met the Investigating Officer, PW-12. The Investigating
Officer, recorded the statement of PW-1 in the presence of an
independent witness and also prepared a site map-Exb. Ka-25. Having
noticed a pool of blood on the road near Naseem's gun shop, PW-12
collected samples of bloodstained soil and grass- Exb. Ka-26. The
Investigating Officer also collected 12 blank cartridges (6 bore and 6
brass)- Exb. Ka-27 in front of Parma Pandit's house. An expired Manarth
Card (Railway travel card), issued by the Indian Railways Board, New
Delhi-Exb. Ka-28 was also recovered by him in front of Naseem's gun
shop, the card bore the name of Ashok Kumar Chandel. The jonga by
which PW-1 went to the place of occurrence was also seized along with
a piece of the footrest which had blood on it, a sample of the broken
piece of the front glass of the jonga and some pieces of glass lying at the
spot, all of them later marked as -Exb. Ka- 29.
11. After the investigation at the place of occurrence, PW-12 went
to the hospital where Sub-Inspector R.N. Singh Pal and ASI
7 FIR no. 34/1997 and FIR no. 35/1997.
8 Panchnama has been referred to as 'Panchayatanama' in the High Court as well as the
Trial Court Judgment. For the purposes of the present appeals, we will use the word
'Panchnama'.
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Harishchandra Singh were present and preparing the panchnamas9 of
the dead bodies. All the dead bodies were sealed separately and sent for
post-mortem. The post-mortems of the bodies of Rakesh Shukla, Rajesh
Shukla and Sri Kant Pandey were conducted on 27.01.1997 the following
day between 10 AM to 12.30 PM by PW-510. Similarly, the post-mortems
of Gudda and Ved Prakash were also done on 27.01.1997 between 2
PM and 2.30 PM by PW-611.
Arrests:
12. The next day, that is on 27.01.1997, the Investigating Officer
proceeded to Laxmibai Tiraha after finding out that some of the accused
were at Naseem's house. Upon reaching the place, the police party
found Naseem (A6), Shyam Singh (A7), Sahab Singh (A8) and Bhan
Singh (A10) trying to flee through the backdoor of Naseem's house
leading to River Betwa. They were arrested and a rifle along with 10
brass bullets tied in a green belt was recovered from the possession of
Sahab Singh(A8). On being questioned about the rifle, Sahab Singh stated
that the rifle belonged to Ashok Kumar Chandel. The seized rifle and
the bullets were marked as Exb. Ka-24 and they were sent for FSL
Report. A copy of the seizure memo was provided to Sahab Singh. On
the basis of the seizure memo, cases under Sections 25 and 30 of the
Arms Act were registered against accused Sahab Singh (A8) and Ashok
Kumar Chandel (A5).
13. A search for the rest of the other accused was made, however,
as they could not be found a report under Sections 82 and 83 (proclamation
of person absconding) of the Code of Criminal Procedure, 197312 was
presented to the court on 28.01.1997. On the very same day, on receiving
information regarding the looted rifle of Rajesh Kumar Shukla at the
residence of Ashok Kumar Chandel, at Mohalla Vivek Nagar, his house
was raided and a country-made pistol and one licensed Double Barrel
Breach Loading (DBBL) gun were recovered.
14. There was another lead regarding the looted rifles at the
residence of one Mr. Anand Purwar. However, nothing in relation to the
9 Rakesh Shukla (Exb. Ka-30); Rajesh Shukla (Exb. Ka-37); Sri Kant Pandey (Exb. Ka
43); Guddu (Exb. Ka-48); Ved Prakash (Exb Ka-53).
10 Rakesh Shukla (Exb. Ka-3); Rajesh Shukla (Exb. Ka-4); Sri Kant Pandey (Exb. Ka-5).
11 Gudda (Exb. Ka-6); Ved Prakash (Exb. Ka-7).
12 hereinafter referred to as 'Cr.P.C'
ASHOK KUMAR SINGH CHANDEL v. STATE OF U.P.
[PAMIDIGHANTAM SRI NARASIMHA, J.]
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murders was recovered in the raid, except one licensed DBBL gun of
12 bore, four cartridges and a licensed Mauser gun with 8 cartridges.
These were seized in the presence of independent witnesses and a copy
of the same was provided to Anand Purwar. These weapons were not
sent for forensic examination.
15. On 29.01.1997, statements of witnesses to the panchnama
were recorded. Section 161, Cr.P.C statement of Bhagwati Saran Nayak
who was present on the day of the incident was recorded, however
statement of victims Vipul and Chandan could not be recorded as they
were very young. The Investigating Officer (PW-12) also recorded the
statement of Hardayal on 16.02.1997.
16. Upon obtaining information about the presence of accused
Raghuvir Singh (A1), Dabbu (A2), Pradeep (A4) and Uttam (A3), in a
Maruti car near city forest, they were perused and arrested on 01.02.1997.
17. Another raid was conducted at Ashok Kumar Chandel's
Kanpur residence however no weapons were recovered. Upon receipt
of information about the weapons used by Raghuvir (A1) and Dabbu
(A2), their Moradabad residence was raided but nothing could be
recovered. Later, even a Court witness was again sent to Moradabad
for recovery of the weapons, but nothing was recovered.
18. On 21.02.1997, accused Jhandu (A9) was arrested and his
Section 313 Cr.P.C statement was recorded. As accused Rukku was
absconding, his trial was separated from the present case. Ultimately,
he was convicted by the Trial Court13 on 12.04.2007 and sentenced to
life imprisonment. His conviction and sentence was confirmed by the
High Court14 by judgment dated 24.05.2019. He has not filed a Special
Leave Petition before us.
19. On completion of the investigation, a charge-sheet, Exb. Ka58, was filed against 10 accused on 22.02.1997 and the case was set for
trial.
The Trial:
20. The Trial Court framed charges against the accused persons
on 25.01.2002 under sections 147, 148 and 302 read with section 149,
13 Sessions Trial number 127/2003.
14 Criminal Appeal No. 2617/2017.
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IPC against all the 10 accused and under Sections 25 and 30, Arms Act
against Sahab Singh and Ashok Kumar Chandel respectively. The Trial
Court also framed charges against Ashok Kumar Chandel under Sections
379 and 404 IPC. While prosecution examined fourteen witnesses being
PW-1 to PW-14, the defence examined three witnesses being DW-1 to
DW-3. There was also one Court witness being CW-1.
21. The following are the prosecution witnesses with an indication
about the purpose for which they were examined.
22. The following are the defence witnesses.
23.1 Of all the witnesses, the prosecution strongly relied on the
evidence of PW-1 and PW-2 who are examined as injured eye-witnesses.
ASHOK KUMAR SINGH CHANDEL v. STATE OF U.P.
[PAMIDIGHANTAM SRI NARASIMHA, J.]
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23.2 PW-1 in his testimony gave a detailed description of the events
at the place of incident. He deposed about the first as well as the second
incident including the position at which the deceased as well as the eyewitnesses were situated at the time of the incident. He also deposed
about the weapons used by the accused persons, injuries sustained by
the deceased persons and the bullet marks on the jonga. PW-1 also
recounted the events that followed the incidents including the lodging of
the FIR, medical treatment at the hospital and recording of his statement
by the IO at the place of occurrence.
23.3 The other ocular witness presented by the prosecution is
Ravi Kant Pandey, PW-2. He testified about his presence during the
second incident and his involvement in rescuing the children from the
jonga. He gave a detailed description about his position during the incident
and the injury sustained by him. He also detailed the deceased persons
in the jonga, including his brother Sri Kant Pandey while naming all the
accused and the firing. He further mentioned about his treatment in the
hospital and also that of the children who he accompanied.
24. Other witnesses are the police officers and the doctors who
treated the deceased persons as well as the injured witnesses as
mentioned in the table above. The defence witnesses were examined
only to contradict the statements of PW-1 and PW-2.
Judgment of the Trial Court:
25. By its judgment dated 15.07.2002, the Trial Court acquitted all
the accused. As this is a case of reversal in an appeal against acquittal,
it is extremely important to examine the reasoning and the findings of
the Trial Court in minute detail. This is for the reason that in an appeal
against acquittal, the appellate court must exercise its jurisdiction only
for very substantial and compelling reasons. For determining whether
substantial, compelling and sufficient reasons existed for the High Court
to reverse a finding of acquittal, we will first scrutinize the judgment of
the Trial Court in detail. The decision of the Trial Court is based on its
conclusions on the (a) motive, (b) place of occurrence, (c) contradictions
in the statement of PW-1 and PW-2, (d) recovery of weapons (e) and
the illegality with respect to the FSL report.
26.1 Motive: The Trial Court found that the prosecution failed to
establish any motive for the accused to commit the offence. The
conclusions were based on three grounds:
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26.2 Firstly, the Trial Court held that the motive based on the
alleged involvement of Shyam Singh (A7) in a past murder case in which
the deceased and his associates assisted the prosecution is 'insufficient'
and 'far-fetched'.
26.3 Secondly, the Trial Court dismissed the alleged opposition of
the deceased party to the election of Ashok Kumar Chandel in the
Assembly Elections of 1996 as not convincing enough. Trial Court also
held that PW-1 could not clearly articulate the political animosity.
26.4 Thirdly, the alleged animosity between the Chandel group
and the Shukla group based on the competing interests of the educational
institutions run by Naseem -Islamia Inter College, Hamirpur and those
supported by Shukla group - Vidya Mandir is not based on any evidence.
27. Place of occurrence: The Trial Court recorded that the incident
occurred in two parts. As far as the first part is concerned, it returned a
finding that "this place of occurrence has not been challenged by
the defence and from the questions by Naseem himself during the
cross-examination of the witness it is clear that the incident had
taken place." With respect to the second incident, the Trial Court again
returned a finding to the effect that "the investigation officer during
inspection of the place of occurrence found blood but he did not
collect blood stained soil from here. This is his mistake but this does
not draw any adverse inference on the prosecution case."
28. The prosecution's contention that the entire incident was preplanned did not impress the Trial Court because there were three
different routes by which the deceased party could reach their residence
from their sister's house. In view of this, the Trial Court held that there
was no certainty about PW-1 and Lallan on the one hand and Rakesh
Shukla and others in the jonga meeting in front of Naseem's gun shop,
i.e. the place of occurrence on the other. The Trial Court held that this
meeting could not have been expected by the accused party to lay an
ambush.
29. Differences in the contents FIR copied from the Tehreer:
The Trial Court examined the tehreer and compared it with the FIR.
The discrepancies were highlighted to come to a conclusion of
improbability of scribing the tehreer within '10-15 minutes' and for
coming to a conclusion that the FIR is ante-dated and fragmented. In
this context;
ASHOK KUMAR SINGH CHANDEL v. STATE OF U.P.
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i.
The Trial Court doubted the FIR for the reason that certain
words and phrases in the tehreer did not appear in the FIR.
For the reason that words such as 'tatha' in the tehreer
was replaced with 'aur' and the sentence 'tatha mere per
me goliya lagi' was omitted in the FIR, the Trial Court
concluded that the FIR was ante-dated and fragmented. It
was also noted that while the tehreer ends with a prayer
for police protection, the FIR is silent on the same.
ii.
Taking into account the time at which PW-1 was medically
examined (8.30 PM), followed by his narration of the incident
to PW-3 for scribing the tehreer, the Trial Court held that
the tehreer could not have been prepared within 10-15
minutes. This conclusion was based on a calculation made
by the Trial Court on the statement of PW-1 with respect
to his medical examination and the lodging of the FIR.
Further, the Trial Court considered that the tehreer is
meticulously written without any mistake, which is not
possible to be done in less than 30 minutes. For this reason,
the Trial Court concluded that the tehreer itself is doubtful
and, therefore, even the FIR is doubtful.
30. Contradictions in the timings of lodging the FIR: The Trial
Court came to the conclusion that there are inconsistencies in the
statements of PW-1 about the lodging of the FIR. This finding led to the
conclusion that the prosecution has not proved the fact beyond a
reasonable doubt. The conclusion was based on the following grounds:
i.
While the FIR states that the incident took place at 7:30
PM, the fax sent by the Superintendent of Police mentions
the incident as 7.45 PM. This contradiction cast a doubt on
the story of the prosecution, particularly the veracity of the
statement of PW-1.
ii.
Based on the statement of PW-1 that he left the place of
occurrence 10- 15 minutes after the incident and reached
the hospital within 3-4 minutes after which he was examined
by PW-8 at 8.30 PM, the Trial Court concluded that the
incident could have taken place only at 8.00 PM and not
7.30 PM. Yet another reason for the Trial Court to disbelieve
the statement of PW-1.
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31. Fax sent by Superintendent of Police, Hamirpur: The Trial
Court heavily relied on the fax message sent from the office of the
Superintendent of Police, Hamirpur to the higher authorities informing
them of the occurrence of the incident. This fax message, though not
part of the investigation was introduced by the defence through DW-3.
The description of the events in the FIR are in stark contradiction with
the events narrated in the fax. Relying on the fax and accepting the
evidence of DW-3, the Trial Court came to the conclusion that the
prosecution failed to prove beyond reasonable doubt, the occurrence of
the event at the time mentioned in the FIR, the motive, presence of the
accused persons etc. As the fax contradicts the statement of PW-1 his
entire evidence must be rejected.
32. Trial Court on the testimony of injured eye-witness PW-1:
The Trial Court's reason for rejecting the evidence of PW-1 as an
eyewitness is based on its conclusions about the following inconsistencies
in his statement:
i.
The veracity of statement of PW-1 based on the bullet
marks on the jonga: Taking note of the bullet marks on
the jonga, the Trial Court came to the conclusion that the
version of PW-1 that there was indiscriminate firing is
unbelievable. The Trial Court held that there was only one
bullet hole on the back side of the jonga while the other
parts of the jonga were intact, except a partially broken
mirror on driver's side.