# Akloo Chauhan & Ors v. The State of U.P

- **Citation:** (2022) 12 ILRA 960
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-23
- **Case number:** Capital Cases No. 1 of 2022
- **Bench:** Pritinker Diwaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akloo-chauhan-ors-v-the-state-of-u-p-48079
- **Pages:** 9

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence-Except
the evidence of alleged last seen of P.W.2
Kanhaiya Gupta and P.W.3 Sanjay Gupta,
there is no other legally admissible
evidence showing the involvement of the
appellants in commiting the offence- No
FSL report supporting the case of the
prosecution that those weapons have
been used for causing injuries to the
deceased- Suspicion, howsoever strong it
may be, cannot take the place of proof
beyond reasonable doubt and an accused
cannot be convicted on the ground of
suspicion, no matter how strong it is. An
accused is presumed to be innocent unless
proved guilty beyond a reasonable doubt.

Settled
law that in a case resting
on
circumstantial evidence the prosecution has to
connect all the links of the incriminating
circumstances in a single whole which unerringly
establishes the guilt of the accused but where
the prosecution fails in the same then the
accused cannot be convicted on the basis of
suspicion as suspicion cannot take the place of
proof.
12 All. Akloo Chauhan & Ors. Vs. The State of U.P.
961
Criminal Appeal allowed. (E-3) (Para
20, 21, 26)

Case Law/ Judgements relied upon:-

1.Sattatiya @ Satish Rajanna Kartalla Vs St. of
Maha., (2008) 3 SCC 210

## Text

960 INDIAN LAW REPORTS ALLAHABAD SERIES

28. As far as, the version of PW-7 &
PW-8, is concerned it is alos not believable
because as per PW-8, when the Jute bag was
thrown into canal, he was told by the
accused persons that Sri Nivas is a criminal
and they are being chased by the police,
there is stolen goods in jute bag, hence it is
thrown into the canal. It cannot be believe
that any criminal, committing such act,
would told anybody that they are criminal
and having stolen goods in jute bag, whereas
PW-7 has stated that at about 11.00 PM. on
same night, he saw all the four accused
persons and asked them where they were
going then they told that we are going to
Etah for handing over the goods of daughter
of Kavlendra Singh and in the morning they
will come back with their own goods. This
is entirely different version given by PW- 7
and PW-8 in their statements.

29. This case is partly based on
circumstantial evidence and partly based on
destroying the evidence. No motive of
committing
offences
Is
proved
by
prosecution. The evidence of last seen is
not worth believing and the evidence with
regard to destruction of evidence by
throwing the dead body does not inspire
evidence. In view of the above, we are of
considered opinion that no two views are
possible in this matter and we cannot take
different view from that taken by the
learned trial court. We are also do not find
any infirmity in the impugned judgment
and order, therefore, we have no other
option but to conquer with the findings
recorded by the learned trial court judge.

30. The appeal lacks merit and is
dismissed, accordingly.

31. The records and proceedings be
sent back to the court below.
----------
(2022) 12 ILRA 960
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Capital Cases No. 1 of 2022
with
Reference No. 01 of 2022

Akloo Chauhan & Ors. ...Appellants
Versus
The State of U.P. ...Respondent

Counsel for the Appellants:
Sri Jitendra Kumar, Sri Srinivas Yadav

Counsel for the Respondent:
Sri Ankit Prakash, AGA, Sri Debee Shanker
Pandey, Sri Shivendra Nath Singh

Criminal Law- Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence-Except
the evidence of alleged last seen of P.W.2
Kanhaiya Gupta and P.W.3 Sanjay Gupta,
there is no other legally admissible
evidence showing the involvement of the
appellants in commiting the offence- No
FSL report supporting the case of the
prosecution that those weapons have
been used for causing injuries to the
deceased- Suspicion, howsoever strong it
may be, cannot take the place of proof
beyond reasonable doubt and an accused
cannot be convicted on the ground of
suspicion, no matter how strong it is. An
accused is presumed to be innocent unless
proved guilty beyond a reasonable doubt.

Settled
law that in a case resting
on
circumstantial evidence the prosecution has to
connect all the links of the incriminating
circumstances in a single whole which unerringly
establishes the guilt of the accused but where
the prosecution fails in the same then the
accused cannot be convicted on the basis of
suspicion as suspicion cannot take the place of
proof.
12 All. Akloo Chauhan & Ors. Vs. The State of U.P.
961
Criminal Appeal allowed. (E-3) (Para
20, 21, 26)

Case Law/ Judgements relied upon:-

1.Sattatiya @ Satish Rajanna Kartalla Vs St. of
Maha., (2008) 3 SCC 210

2. Devi Lal Vs St. of Raj., (2019) 19 SCC 447

3. Ramanand alias Nandlal Bharti Vs St. of U.P,
2022 SCC OnLine SC 1396 dec. on 13.10.2022.

4. Ram Niwas Vs St. of Har., 2022 SCC OnLine
SC 1007 dec. on 11.08.2022.

5. Jaikam Khan Vs St. of U.P, 2021 SCC OnLine
SC 1256, dec. on 15.12.2021.

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. This death reference was made to
this Court under Section 366 of the
Criminal Procedure Code, 1973 (in short
'Cr PC') for confirmation of death sentence
passed against the appellants. The appeal of
accused preferred under Section 374 (2)
Cr.P.C and the death reference are heard
together and this judgment will govern the
disposal of both the death reference and the
appeal preferred by the appellants.

2. This death reference and the capital
case arise out of the judgment and order dated
06.12.2021 passed by the Court of Additional
District & Sessions Judge/FTC, Court No.1,
Mau in Sessions Trial No. 209/2009 arising out
of Crime No. 437 of 2009 & Sessions Trial No.
210 of 2009 arising out of Crime No. 485 of
2009 in which, accused/appellants herein were
tried, found guilty, convicted and sentenced to
undergo death sentence with a fine of
Rs.10,000/-, in default of payment of fine, the
same was to be recovered as arrears of land
revenue.

3. As per prosecution case, on or
about 17.03.2009, some goats belonging to
accused appellant Akloo Chauhan, entered
the agricultural field of complainant Tulsi
Gupta and damaged his crops. Those goats
were driven out by the complainant by
throwing some stones towards them. It is
said that some of the goats got injured and
out of them, one died as a result of which
accused Akloo Chauhan and his son Jai
Chand got annoyed with the complainant
and he was held responsible for the death
of the said goat. That apart, there was some
land dispute also between the two families.

On 17.03.2009 in the evening, when Ram
Sanehi father of the was sleeping near the village
tube well and the second deceased Pabbar
Maurya was also sleeping near his tube well,
accused appellant Akloo Chauhan, Jai Chand,
Befu Chauhan (since deceased) and Ram Saran
Chauhan, who were relatives amongst each
others, reached there and caused the death of his
father Ram Sanehi and Pabbar Maurya by
causing gun shot injuries. A strong suspicion has
been shown by the complainant upon accused
persons and when he reached to the place of
occurrence, he found two dead bodies lying
there. Based on this offence, FIR under Sections
302 & 404 of I.P.C. was registered against the
accused Akloo Chauhan, Jai Chand, Befu
Chauhan and Ram Saran Chauhan.

4. Inquest on the dead body of the
deceased was conducted, vide Ex.Ka.6 &
Ex.Ka.11 on 18.03.2009 and the bodies
were sent for postmortem, which was
conducted on the same day, vide Ex.Ka.2 &
Ex.Ka.3 by PW-5 Dr. S. P. Yadav.

As per Autopsy Surgeon, deceased
Ram Sanehi suffered four injuries vide
Ex.Ka.2, whereas other deceased Pabbar
Maurya suffered ten injuries vide Ex.Ka.3.
As per Autopsy Surgeon, cause of death of
the two deceased was coma as a result of
ante mortem injuries.
962 INDIAN LAW REPORTS ALLAHABAD SERIES

5. While framing charge, trial Judge
has framed charge against the accusedappellants under Sections 302/34 & 404 of
IPC, whereas separate charge under Section
4/25 of Arms Act has also been framed
against the accused Jai Chand.

6. During trial, accused Befu Chauhan
had expired and the trial court proceeded
with the trial in respect of appellants Akloo
Chauhan, Jai Chand and Ram Saran
Chauhan.

7. So as to hold accused appellants
guilty, prosecution has examined seven
witnesses, whereas one Court witness has
also been examined. Statement of the
accused-appellants were recorded under
Section 313 of Cr.P.C. in which, they
pleaded
their
innocence
and
false
implication.

8. By the impugned judgment and
order, the trial Judge has convicted the
appellants under Sections 302/34 of I.P.C.
and has awarded death sentence, as
mentioned in paragraph-2 of this judgment,
whereas accused appellant Jai Chand has
been acquitted of the offence under Section
4/25 of Arms Act. Hence this appeal.

9. Counsel for the appellants submits:

(i) that there is no eyewitness account
to the incident and the appellants have been
convicted solely on the basis of so called
evidence of last seen.

(ii) that disbelieving the recovery part,
accused-appellant Jaichand has already
been acquitted by the trial court of the
offence under Section 4/25 of the Arms
Act.

(iii)
that
there
is
material
contradictions between the ocular evidence
and
the
postmortem
reports
of
the
deceased.

(iii) that, at least, no case for death
sentence has been made out by the
prosecution and the trial court has erred in
law in awarding the death sentence to the
appellants.

(iv) that the basic principles governing
the law of awarding death sentence have
been completely ignored by the trial judge.

(v) that during trial, the appellants
were on bail and now they are in jail since
the date of judgment.

10. On the other hand, supporting the
impugned judgment and order of the trial
Court, it has been argued by the State
Counsel:-

(i) that the conviction of the appellants
is in accordance with law and there is no
infirmity in the same.

(ii) that the evidence of last seen by
PW-2 Kanhaiya Gupta and PW-3 Sanjay
Gupta is good enough to uphold the
conviction of the appellants as has been
done by the trial Judge.

(iii) that after seeing the murder of
first deceased Ram Sanehi but for no fault
of other deceased Pabbar Maurya, he has
been killed.

(iv) that the trial court was justified in
awarding the death sentence to the accused
persons.

11. We have heard learned counsel for
the parties and perused the record.

12. PW-1 Tulsi Gupta, is the son of
deceased Ram Sanehi and he is also the
informant. He has stated that about a week
prior to the date of incident, goat of
accused Akloo Chauhan had entered his
agricultural field and damaged the crop. He
threw sand stones towards the said goat,
12 All. Akloo Chauhan & Ors. Vs. The State of U.P.
963
resulting its death. On account of this
incident, accused Akloo Chauhan and his
son Jai Chand were making allegations
against him that it is because of his beating,
the said goat has died. He states that even
prior to this incident also, there was land
dispute between his family and accused
Akloo, Befu and Ram Saran. He states that
it is he who lodged the FIR Ex.Ka.-4. In the
cross examination, this witness remained
firm and nothing could be elicited from
him, which may be of any help to the
accused persons.

13. PW-2 Kanhaiya Gupta, is a
chance witness, has seen the accused
persons near the place of occurrence.
However, he had not seen the appellants
killing the two deceased.

14. P.W-3 Sanjay Gupta, has stated
that when he was returning from his field
near tube well, he heard scream and in the
light of tube well, he saw the accused
persons beating the deceased by knife, club
and, rod. He states that on account of fear,
he did not interfere and that he was
subjected to threat by the accused persons.
In the cross examination, this witness has,
however, stated that he had not seen the
appellants killing the two deceased and
merely saw them coming out from the tube
well.

15. P.W-4 Indu, wife of the first
informant, is a hearsay witness and has
admitted the fact that she had not seen
anything.

16. P.W-5 Dr. S.P. Yadav, conducted
the post mortem on the body of the two
deceased vide Ex.Ka-2 and Ex. Ka-3. As
per Autopsy Surgeon, cause of death of the
two deceased was coma as a result of ante
mortem injuries.

17. P.W.6 Dhurendhar Prasad is a
scribe of the FIR and G.D. P.W.7 Yashpal
Singh, is the Investigating Officer, who has
duly supported the prosecution.

18. It is relevant to note that recovery
part has been disbelieved by the trial Judge.

19. Court witness No.1 Aadesh
Srivastava has been examined to confirm
the death of accused Befu Chauhan.

20. Close scrutiny of the evidence makes it
clear
that
in
the
night
invervening
17/18.3.2009, Ram Sanehi and Pabbar
Maurya were done to death by some
persons, causing various injuries on their
body. Though an attempt has been made by
the prosecution to establish a case against
the appellants for committing the said
offence, but except the evidence of alleged
last seen of P.W.2 Kanhaiya Gupta and
P.W.3 Sanjay Gupta, there is no other
legally admissible evidence showing the
involvement of the appellants in commiting
the offence. Even the statement of P.W.2
and P.W.3 does not make it very clear as to
the involvement of the appellants in
committing the offence.

21. P.W.2 Kanhaiya Gupta, has been
examined as chance witness and his
presence at the place of occurrence has not
been established by the prosecution beyond
all reasonable doubt, whereas P.W.3 Sanjay
Gupta, who is said to be an eye witness
account to the incident, has categorically
denied the fact that he saw the accused
persons killing the two deceased, namely,
Ram Sanehi and Pabbar Maurya. He says
that he merely saw the accused persons
coming out from the tube well. He further
states that he never informed the family
members of Pabbar Maurya that it is the
accused appellants, who killed him. Even
964 INDIAN LAW REPORTS ALLAHABAD SERIES
the seizer of sabbal and knife has not been
proved by the prosecution as per law. This
apart, there is no FSL report supporting the
case of the prosecution that those weapons
have been used for causing injuries to the
deceased.

22. Taking cumulative effect of the
evidence, we are of the view that the
prosecution has failed to prove its case
beyond all reasonable doubt that it is the
appellants, who committed the murder of
Ram Sanehi and Pabbar Maurya.

23. The law in respect of conviction,
based on circumstantial evidence, is very
clear. In Sattatiya @ Satish Rajanna
Kartalla Vs. State of Maharashtra1, the
Supreme
Court,
while
dealing
with
circumstantial evidence, observed as under:

"11. In Hanumant Govind Nargundkar
v. State of M.P. [AIR 1952 SC 343], which
is one of the earliest decisions on the
subject, this court observed as under:

"10. ...... It is well to remember that in
cases
where
the
evidence
is
of
a
circumstantial nature, the circumstances
from which the conclusion of guilt is to be
drawn should be in the first instance be
fully established and all the facts so
established should be consistent only with
the hypothesis of the guilt of the accused.
Again, the circumstances should be of a
conclusive nature and tendency and they
should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not to
leave
any
reasonable
ground
for
a
conclusion consistent with the innocence of
the accused and it must be such as to show
that within all human probability the act
must have been done by the accused."

12. In Padala Veera Reddy v. State of
AP [(1989) Supp (2) SCC 706], this court
held that when a case
rests upon
circumstantial evidence, the following tests
must be satisfied:

"(1) the circumstances from which an
inference of guilt is sought to be drawn,
must be cogently and firmly established;

(2) those circumstances should be of a
definite
tendency
unerringly
pointing
towards guilt of the accused;

(3)
the
circumstances,
taken
cumulatively, should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by the
accused and none else."

13. In Sharad Birdhichand Sarda v.
State of Maharashtra [(1984) 4 SCC 116],
it was held that the onus was on the
prosecution to prove that the chain is
complete and falsity or untenability of the
defence set up by the accused cannot be
made basis for ignoring serious infirmity or
lacuna in the prosecution case. The Court
then proceeded to indicate the conditions
which must be fully established before
conviction can be based on circumstantial
evidence. These are:

(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully
established.
The
circumstances
concerned must or should and not may be
established;

(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty;
12 All. Akloo Chauhan & Ors. Vs. The State of U.P.
965

(3) the circumstances should be of a
conclusive nature and tendency;

(4) they should exclude every possible
hypothesis except the one to be proved; and

(5) there must be a chain of evidence
so complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and must
show that in all human probability the act
must have been done by the accused."

24. In Devi Lal vs. State of
Rajasthan2 the Supreme Court, while
dealing
with
circumstantial
evidence,
observed as under:

16. The classic enunciation of law
pertaining to circumstantial evidence, its
relevance and decisiveness, as a proof of
charge of a criminal offence, is amongst
others traceable decision of the Court in
Sharad Birdhichand Sarda Vs. State of
Maharashtra 1984 (4) SCC 116. The
relevant excerpts from para 153 of the
decision is assuredly apposite:

153. A close analysis of this decision
would show that the following conditions
must be fulfilled before a case against an
accused can be said to be fully established:

(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.

It may be noted here that this Court
indicated that the circumstances concerned
"must or should" and not "may be"
established.
There
is
not
only
a
grammatical but a legal distinction between
"may be proved" and "must be or should be
proved" as was held by this Court in
Shivaji Sahabrao Bobade & Anr. Vs. State
of Maharashtra [(1973) 2 SCC 793 where
the observations were made: (SC p.807,
para 19)

"Certainly, it is a primary principle
that the accused must be and not merely
may be guilty before a court can convict
and the mental distance between 'may be'
and 'must be' is long and divides vague
conjectures from sure conclusions."

(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,

(3) the circumstances should be of a
conclusive nature and tendency,

(4) they should exclude every possible
hypothesis except the one to be proved, and

(5) there must be a chain of evidence
so complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and must
show that in all human probability the act
must have been done by the accused."

17. It has further been considered by
this Court in Sujit Biswas Vs. State of
Assam 2013(12) SCC 406 and Raja alias
Rajinder Vs. State of Haryana 2015(11)
SCC 43. It has been propounded that while
scrutinising the circumstantial evidence, a
Court has to evaluate it to ensure the chain
of events is established clearly and
completely to rule out any reasonable
likelihood of innocence of the accused. The
underlying principle is whether the chain is
complete or not, indeed it would depend on
the facts of each case emanating from the
evidence and there cannot be a straight
jacket formula which can be laid down for
the purpose. But the circumstances adduced
when considered collectively, it must lead
only to the conclusion that there cannot be
a person other than the accused who alone
is the perpetrator of the crime alleged and
the circumstances must establish the
conclusive nature consistent only with the
hypothesis of the guilt of the accused.

18. On an analysis of the overall fact
situation
in
the
instant
case,
and
966 INDIAN LAW REPORTS ALLAHABAD SERIES
considering the chain of circumstantial
evidence relied upon by the prosecution
and noticed by the High Court in the
impugned judgment, to prove the charge is
visibly incomplete and incoherent to permit
conviction of the appellants on the basis
thereof without any trace of doubt. Though
the
materials
on
record
hold
some
suspicion
towards
them,
but
the
prosecution has failed to elevate its case
from the realm of "may be true" to the
plane of "must be true" as is indispensably
required in law for conviction on a criminal
charge. It is trite to state that in a criminal
trial, suspicion, howsoever grave, cannot
substitute proof.
19. That apart, in the case of circumstantial
evidence, two views are possible on the
case of record, one pointing to the guilt of
the accused and the other his innocence.
The accused is indeed entitled to have the
benefit of one which is favourable to him.
All the judicially laid parameters, defining
the
quality
and
content
of
the
circumstantial evidence, bring home the
guilt of the accused on a criminal charge,
we find no difficulty to hold that the
prosecution, in the case in hand, has failed
to meet the same."

25. Recently, the Supreme Court in
Ramanand alias Nandlal Bharti Vs. State
of Uttar Pradesh3 while referring to the
previous judgements on the question of
circumstantial evidence, observed in paras
105, 106 and 117 as under:-

"105. Addressing this aspect, however,
is the following extract also from the same
treatise "The Law of Evidence" fifth edition
by Ian Dennis at page 483:

"Where the case against the accused
depends wholly or partly on inferences
from circumstantial evidence, fact-finders
cannot logically convict unless they are
sure that inferences of guilt are the only
ones that can reasonably be drawn. If they
think that there are possible innocent
explanations for circumstantial evidence
that are not "merely fanciful", it must
follow that there is a reasonable doubt
about guilt. There is no rule, however, that
judges must direct juries in terms not to
convict unless they are sure that the
evidence bears no other explanation than
guilt. It is sufficient to direct simply that
the burden on the prosecution is to satisfy
the jury beyond reasonable doubt, or so that
they are sure.

The very high standard of proof
required in criminal cases minimises the
risk of a wrongful conviction. It means that
someone whom, on the evidence, the factfinder believes is "probably" guilty, or
"likely" to be guilty will be acquitted, since
these judgments of probability necessarily
admit that the fact-finder is not "sure". It is
generally accepted that some at least of
these acquittals will be of persons who are
in fact guilty of the offences charged, and
who would be convicted if the standard of
proof were the lower civil standard of the
balance of probabilities. Such acquittals are
the price paid for the safeguard provided by
the "beyond reasonable doubt" standard
against wrongful conviction."

[Emphasis supplied]

106. We must remind ourselves of
what this Court observed in the case of
Shankarlal Gyarasilal Dixit v. State of
Maharashtra reported in (1981) 2 SCC 35.
We quote as under:

"32. .....But, while formulating its own
view the High Court, with respect, fell into
an error in stating the true legal position by
saying that what the court has to consider is
whether the cumulative effect of the
circumstances establishes the guilt of the
accused beyond the "shadow of doubt". In
the first place, "shadow of doubt", even in
12 All. Akloo Chauhan & Ors. Vs. The State of U.P.
967
cases which depend on direct evidence is
shadow of "reasonable" doubt. Secondly, in
its practical application, the test which
requires the exclusion of other alternative
hypotheses is far more rigorous than the
test of proof beyond reasonable doubt."

[Emphasis supplied]

xxx xxx xxx

117. Thus, none of the pieces of
evidence relied on as incriminating by the
courts
below,
can
be
treated
as
incriminating
pieces
of
circumstantial
evidence against the accused. Realities or
truth apart, the fundamental and basic
presumption in the administration of
criminal law and justice delivery system is
the innocence of the alleged accused and
till
the
charges
are
proved
beyond
reasonable doubt on the basis of clear,
cogent,
credible
or
unimpeachable
evidence, the question of indicting or
punishing an accused does not arise, merely
carried away by heinous nature of the crime
or the gruesome manner in which it was
found to have been committed. Though the
offence is gruesome and revolts the human
conscience but an accused can be convicted
only on legal evidence and if only a chain
of circumstantial evidence has been so
forged as to rule out the possibility of any
other reasonable hypothesis excepting the
guilt of the accused. In Shankarlal
Gyarasilal (supra), this Court cautioned -
"human nature is too willing, when faced
with brutal crimes, to spin stories out of
strong suspicions". This Court has held
time and again that between "may be true"
and "must be true" there is a long distance
to travel which must be covered by clear,
cogent and unimpeachable evidence by the
prosecution
before
an
accused
is
condemned a convict. [See Ashish Batham
v. State of M.P., (2002) 7 SCC 317]."

26. Likewise, law in respect of
suspicion is also clear. In Ram Niwas Vs.
State of Haryana4, it has been held by the
Supreme Court that suspicion, howsoever
strong it may be, cannot take the place of
proof beyond reasonable doubt and an
accused cannot be convicted on the ground
of suspicion, no matter how strong it is. An
accused is presumed to be innocent unless
proved guilty beyond a reasonable doubt.

27. In Jaikam Khan Vs. State of
Uttar Pradesh5, the Supreme Court
observed as under:

"85. ... ... ... The law, however, that is
fully settled, is that, it is the duty of the
prosecution to prove the case beyond
reasonable doubt.

86. We may gainfully refer to the
following observations of this Court in the
case of Anand Ramchandra Chougule v
Sidarai Laxman Chougala (2019) 8 SCC
50:

"10.
The
burden
lies
on
the
prosecution to prove the allegations beyond
all reasonable doubt. In contradistinction to
the same, the accused has only to create a
doubt about the prosecution case and the
probability of its defence. An accused is not
required to establish or prove his defence
beyond all reasonable doubt, unlike the
prosecution. If the accused takes a defence,
which is not improbable and appears likely,
there is material in support of such defence,
the accused is not required to prove
anything further. The benefit of doubt must
follow unless the prosecution is able to
prove its case beyond all reasonable doubt.

11. The fact that a defence may not
have been taken by an accused under
Section 313 CrPC again cannot absolve the
proscution from proving its case beyond all
reasonable doubt. If there are materials
which the prosecution is unable to answer,
968 INDIAN LAW REPORTS ALLAHABAD SERIES
the weakness in the defence taken cannot
become the strength of the prosecution to
claim that in the circumstances it was not
required to prove anything. In Sunil Kundu
v. State of Jharkhand [Sunil Kundu v. State
of Jharkhand, (2013) 4 SCC 422 : (2013) 2
SCC (Cri) 427], this Court observed: (SCC
pp. 433-34, para 28)

"28. ... When the prosecution is not
able to prove its case beyond reasonable
doubt it cannot take advantage of the fact
that the accused have not been able to
probabilise their defence. It is well setttled
that the prosecution must stand or fall on its
own feet. It cannot draw support from the
weakness of the case of the accused, if it
has not proved its case beyond reasonable
doubt.""

87. We, therefore, find that the
prosecution has utterly failed to prove the
case
beyond
reasonable
doubt.
The
conviction and death sentence imposed on
the accused is totally unsustainable in law."

28. Considering the above proposition
of law and in the facts and circumstances of
the present case, we are of the view that the
appellants are entitled for the benefit of
doubt and, therefore, they are acquitted of
all the charges.

29. For the foregoing reasons, we
have no hesitation in holding that the
prosecution has failed to prove the charges
beyond reasonable doubt for which the
accused-appellants was tried and, therefore,
the judgment and order of the court below
is liable to be set aside. As a result whereof,
the reference to affirm the death penalty is
rejected. The appeal of the appellants is
allowed. The judgment and order of the
trial court is set aside. The appellants are
acquitted of all the charges for which he
has
been
tried
and
convicted.
The
appellants shall be released from jail
forthwith, unless wanted in any other case,
subject to compliance of the provisions of
437-A Cr.P.C. to the satisfaction of the trial
court below.

30. Let a copy of this order along with
the record be sent to the court below for
information and compliance.
----------
(2022) 12 ILRA 968
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.12.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 635 of 2009

Lakhan @ Lakhan @ Akash & Ors.
 ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Aditya Prasad Mishra, Sri Akhilesh Srivastava, Sri
Asheesh Mani Tripathi, Ms. Manju Pandey, Sri Ram
Chandra Uttam, Sri Vivek Singh, Manu Mishra

Counsel for the Respondent:
Govt. Advocate

Indian Evidence Act, 1872- Section 9- Test
Identification Parade- Requirement to
identify the alleged culprit at the earliest
possible opportunity after the occurrence
so as to ensure justice and fair play both
to the accused and to the prosecution-
The identification proceedings during the
police investigation is not substantive
evidence in law and it can only be used for
corroborating or contradicting evidence of
the witness concerned as given in court.
The identification of the accused in Court
constitutes substantive evidence and the
test
identification
parade
may
lend
corroboration to the identification of the
witnesses in Court, if so required. As a rule
of prudence, the Court would look for