LexDURBAL versus STATE OF U.P.
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[2011) 1 S.C.R. 1062 A DUR BAL v. STATE OF U.P. (Criminal Appeal No. 1398 of 2008) B JANUARY 25, 2011 [B. SUDERSHAN REDDY AND SURINDER SINGH NIJJAR, JJ.] ~ Penal Code, 1860- s.302- Testimony of PW-1 that the c accused persons assaulted his father and nephew with knives and spears (bhalas), which led to their death - Three accused - Suggested previous enmity between the accused and PW1 - Incident occurred in the dead of night during mid winter - Witnesses claimed to have identified the accused with the aid D of lantern and torches - Trial court acquitted all the accused - High Court, however, relied upon the evidence of PW-1, and ..\"'. reversed the order, of acquittal - Meanwhile A-1 and A-3 accused died - Conviction of A-2 challenged before Supreme Court - Held: When the suggested enmity, if at all, was E between the accused and PW 1, there was no reason as to why the accused should attack the deceased and leave PW- 1 unscratched - If PWs 1, 2 and 3 were present at the scene of offenee as stated by PW 1, there was no explanation forthcoming as to why three of them put together could not F resist the accused in attacking the deceased - The lantern and the torch lights though allegedly seized were not produced in the Court - The seizure memos did not contain the crime number and other recovery particulars - In the circumstances, it became highly doubtful as whether PWs 1, G 2 and 3 actually had torch lights in their hands as stated by them - The evidence of PW 1 did not inspire any confidence ..... and the presence of PWs 2 and 3 at the scene of offence was doubtful - . The trial Court rightly gave the b~nefit of doubt to the accused - The view taken by trial Court was plausible and H 1062 DURBAL v. STATE OF U.P. 1063 could not be held perverse - High Court ought not to have A interfered with the judgment of the trial Court merely because there was a possibility of taking a different view - A-2 entitled to benefit of doubt and acquitted. According to the prosecution, pursuant to an earlier B altercation between the accused and PW-1 over fishery rights in respect of the village pond, the accused persons assaulted the father and nephew of PW-1 with knives +- and spears (bhalas), which led to their death. The incident allegedly occurred in the dead of night during the mid c winter. PW 8, the Investigating Officer, recorded statements of the witnesses and collected lantern and torches which were the alleged source of light in which the witnesses claimed to have seen the occurrence. The accused were charged of having committed offences D under Sections 147, 148, 302/149, IPC. ~ The trial Court found the evidence of PW-1 to be highly doubtful since he was not atta,c;ked by the accused; and also doubted the presence of 'PW-2 at the scene of offence. The trial Court also disbelieved the E evidence of PW-3 who is a close relative of PW 1. The trial Court further found that the lantern and torch lights were not produced in the Court and the seizure memos of lantern, torches did not contain the crime number and came to the conclusion that since the offence occurred F in the dead of night in the last week of December, the witnesses could not have identified the assailants except with the aid of lantern and torches, whose seizure itself was doubtful and accordingly acquitted all the accused. .J _..,. The High' Court, however, relied upon the evidence G of PW-1, and r-eversed the order of acquittal and sentenced the: accused to life imprisonment, holding that non-production of the lantern and the torch lights in the Court was inconsequential. H 1064 SUPREME COURT REPORTS (2011) 1 S.C.R. A During pendency of appeal filed by the State in the B High Court, A-1 and A-3 died and the appeal against them was ordered to be abated. The instant appeal was preferred by A-2. Allowing the appeal, the Court HELD:1. Though the whole prosecution case is that on account of the dispute over fishery rights, the accused bore a grudge against PW 1 and even threatened him with dire consequences, it is highly doubtful that there was C any dispute over the fishery rights itself. The. only person apart from PW 1 who speaks about the dispute is PW 4 who was examined by the police after more than two months of the occurrence. It is true, motive for committing the crime pales into insignificance in a case where the D prosecution story rests upon the evidence o
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