STATE OF U.P. versus NANDU VISHWAKARMA & ORS.

Citation: [2009] 10 S.C.R. 185 · Decided: 06-07-2009 · Supreme Court of India · Bench: MUKUNDAKAM SHARMA · Disposal: Dismissed

Judgment (excerpt)

J 
. [2009] 10 S.C.R. 185 
. 
v 
STATE OF U.P. 
A 
-
v. 
NANDU VISHWAKARMA & ORS. 
(Criminal Appeal No. 786 of 2001) 
JULY 6, 2009 
B 
[DR. MUKUNDAKAM SHARMA AND DR. B.S. 
CHAUHAN, JJ.] 
"., 
Penal Code, 1860 - s.302 rlw s.34 and s.367 rlw s.34 -
Armed assault resulting in death of one person and injuries c 
to two persons - Conviction of accused-respondents by trial 
. 
Court - Set aside by High Court - On appeal, held: The 
-
number of contradictions, referred to by High Court in its 
judgment, in respect of all the witnesses definitely make out 
a case of plausible view - Moreover, the High Court gave 
D 
detailed reasons for disbelieving the prosecution case and for 
acquitting the respondents - When on basis of evidence on 
record, two views could be taken, one in favour of accused and 
the other <~gainst the accused, the one favouring the accused 
should always be accepted - On facts, there were two po~sible E 
views, one taken by trial court and the other taken by High 
Court - View taken by High Court being a plausible view, no 
i 
ground to interfere with the order of acquittal passed by High 
Court - Appeal - Appeal against acquittal - Scope for 
Interference. 
F 
' 
Acco.rding to the prosecution, the respondents 
assaulted PW1's brother with various weapons such as 
gandasa, lathi and spear and when PW1 and his wife, 
PW2, tried to save him, they too were assaulted and that 
G 
consequent to the said assault, PW1's brother died while 
.., 
.j 
PW1 and PW2 sustained injuries. The trial court 
convicted the respondents under s.302 rlw s.34 IPC and 
under s.367 rlw s.34 IPC. The High Court, however, 
-
disbelieved the prosecution case and acquitted the 
185 
H 
186 
SUPREME COURT REPORTS 
[2009] 10 S.C.R. 
} 
A respondents. Henc~ the present appeal. 
0 
Dismissing the appeal, the Court 
-
HELD: 1.1. PW-1 and PW-2 stated that they were 
B 
assaulted by the respondents with lathi and Gandasa. 
The said fact is, however, not mentioned in the FIR. [Para 
12] [192-B-C] 
1.2. PW-1 had two plots in the village where the 
incident took place. There is no mention in the FIR to 
c indicate in which of the two plots the alleged incident had 
taken place. What is mentioned in the FIR is that the 
incident had taken place at the disputed land. The 
Investigating Officer also could not enlighten and state 
and clarify in his deposition in which of the two plots the 
D incident had actually taken place. [Para 13] [192-E-G] 
1.3. Why PW-2 was not brought to the hospital along 
with PW1's brother and why the Investigating Officer did 
not take any step to get PW-2 admitted to the hospital has 
E 
not been explained at all in his statement although he had 
stated that he visited the place of occurrence. No thumb 
impression of PW1 was obtained on the FIR or in the 
Entry made at the time of the registration of the case. In 
view of the aforesaid position, the High Court came to the 
finding that the FIR of the case was transcribed on the 
F next date, that is, after the Investigation Officer visited the 
site and not at the time when the prosecution alleged to 
have done. [Para 14] [192-G-H; 193-A-C] 
1.4. Evidence of PW-2 was not accepted by the High 
G Court for various reasons. One of the grounds on which 
her statement was not accepted was that she made 
contradictory statement in the trial inasmuch as she had 
~ 
.... 
stated at one stage that the Investigating Officer stayed 
at the spot of occurrence for two hours after fall of 
H 
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' STATE OF U.P. v. NANDU VISHWAKARMA & ORS. 
187 
; 
r 
darkness and then again stated that he stayed there 
A 
-L 
throughout the night. The aforesaid statement of PW-2 is 
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also contradictory to the statement made by PW-1, her 
husband. There are many other vital contradictions in her 
deposition which are pointed out and noted by the High 
Court. [Para 15) [193-C-F] 
B 
1.5. Similarly, the deposition of PW-3 was also not 
believed by the High Court on the ground that his 
statement is also full of contradictions. He had stated at 
one stage in his statement that at the time of the incident, c 
PW-1 and PW-2 were harvesting the field and cutting the 
crops but at the later stage he stated that deceased 
..,.,, 
(PW1's brother) was leveling his field for collecting 
harvesting crop. If PW-1 and PW-2 were harvesting the 
crop they were using some instruments and doing the 
D 
same with the help of their respective instruments and, 
therefore, the evidence of PW-1 and PW-2 that they had 
no

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