# Arvind Bajpai v. State of U.P

- **Citation:** (2019) 3 ILRA 570
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-01
- **Case number:** Jail Appeal No. 3231 of 2015
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-bajpai-v-state-of-u-p-44847
- **Pages:** 9

## Headnote

Evidence
Law-Indian
Evidence
Act,1872
-
Section
32
-
Dying
declaration - Statement under section
161 Cr.P.C - Only evidence against the
accused-appellant
is
the
statement
recorded under Section 161 Cr.P.C. of
the victim. It does not find support from
any other evidence - statement under
Section 161 Cr.P.C. that was relied upon
as the dying declaration, does not fulfill
the requirement of law and fact - Dying
declaration was not recorded by the
Investigating Officer before two reliable
witnesses,
therefore,
statement
recorded under Section 161 Cr.P.C. does
not qualify as a 'dying declaration'.

B. Indian Penal Code, 1860 - Conviction
-
Where
on
the
evidence,
two
possibilities are available or open one
which goes in favour of prosecution and
other which benefits an accused, the
accused
is
undoubtedly
entitled
to
benefit of doubt - no iota of evidence to
hold
accused-appellant
guilty
-
No
incriminating circumstances and cogent
evidence - Trial Court has convicted and
sentenced accused-appellant in a serious
offence on the basis of statement of
victim
under
Section
161
Cr.P.C
assuming it 'dying declaration' without
any corroboration - accused-appellant is
entitled to benefit of doubt and deserves
acquittal. (Para 26,33,34,35,39,40,41 )

Jail appeal allowed (E-7)

List of cases cited:-

## Text

570 INDIAN LAW REPORTS ALLAHABAD SERIES

74. Let a copy of the judgment be
certified and sent along with the lower court
record to the court below immediately for
compliance and necessary entry be made in
the relevant register.
----------

(2019)11ILR A570

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 3231 of 2015

Arvind Bajpai ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri A.N. Mishra, Sri Lal Chandra
Mishra (A.C.)

Counsel for the Opposite Party:
Sri Syed Ali Murtaza (A.G.A.)

A.
Evidence
Law-Indian
Evidence
Act,1872
-
Section
32
-
Dying
declaration - Statement under section
161 Cr.P.C - Only evidence against the
accused-appellant
is
the
statement
recorded under Section 161 Cr.P.C. of
the victim. It does not find support from
any other evidence - statement under
Section 161 Cr.P.C. that was relied upon
as the dying declaration, does not fulfill
the requirement of law and fact - Dying
declaration was not recorded by the
Investigating Officer before two reliable
witnesses,
therefore,
statement
recorded under Section 161 Cr.P.C. does
not qualify as a 'dying declaration'.

B. Indian Penal Code, 1860 - Conviction
-
Where
on
the
evidence,
two
possibilities are available or open one
which goes in favour of prosecution and
other which benefits an accused, the
accused
is
undoubtedly
entitled
to
benefit of doubt - no iota of evidence to
hold
accused-appellant
guilty
-
No
incriminating circumstances and cogent
evidence - Trial Court has convicted and
sentenced accused-appellant in a serious
offence on the basis of statement of
victim
under
Section
161
Cr.P.C
assuming it 'dying declaration' without
any corroboration - accused-appellant is
entitled to benefit of doubt and deserves
acquittal. (Para 26,33,34,35,39,40,41 )

Jail appeal allowed (E-7)

List of cases cited:-

1. Paniben Vs St. of Guj. (1992) 2 SCC 474

2. Bhagwan Singh & ors. Vs St. of M.P. (2002)
4 SCC 85

3. Sharad Birdhichand Sarda Vs St. of Mah.
AIR (1984) SCC 1622

4. Kali Ram Vs St. of H.P. (1973) AIR 2773

(Delivered by Hon'ble Rajendra KumarIV, J.)

1. Accused-appellant stood for trial in
Sessions Trial No. 762 of 2012 (State v.
Arvind Bajpai, Crime No. 464 of 2012),
under Section 302, Police Station Barra,
district Kanpur Nagar, pending in the Court
of Additional District and Sessions Judge,
Court No.6, Kanpur Nagar and came to be
decided by the said Court vide judgment and
order dated 09.04.2015 convicting and
sentencing him under Section 302 IPC to
undergo imprisonment for life and fine of
Rs. 5,000/-. Appellant sought interference of
this Court by filing this Jail Appeal from Jail
through Jail Superintendent concerned.

2. Prosecution story, in brief, is that
PW-1 Vishal Bajpai, submitted a written
3 All. Arvind Bajpai Vs. State of U.P.
571
Tehrir Ex. Ka-1 getting it scribed by PW2 in the Police Station Barrar stating that
his mother Smt. Aneeta Bajpai was
present in the house at 8:00 a.m. on the
fateful day i.e. 25.05.2012. Accused (his
father) came there and set her at fire by
pouring kerosene oil on her. PW-1 and 2
went to take water at that time. When
they came back to house, came to know
that accused (father) set victim at fire.
Accused started to abuse PW-1 and 2
also. Ex.Ka-1 further recites that incident
was witnessed by Vinod Tiwari and
Kalka
Prasad
(both
unexamined),
residents of same vicinity. Victim was
taken to hospital, where she was admitted
for medical treatment.

3. On the basis of written Tehrir,
chick First Information Report (herein
after referred to as 'FIR') was registered
by Head Constable clerk, Arvind Kumar,
PW-4, as Case Crime No. 464 of 2012
under Sections 307, 323, 504 IPC against
accused-appellant and entry of case was
made by him in General Diary, copy
whereof is Ex. Ka-4. During course of
treatment, victim Smt. Aneeta Bajpai
succumbed
to
burn
injuries
on
07.06.2012.

4. PW-3, Dr. Sanjeev Kumar, who
was posted on 03.06.2012, as Medical
Officer in District Hospital, Kanpur
Nagar, conducted autopsy over dead body
of Smt. Aneeta Bajpai, aged about 40
years, wife of Arvind Bajpai and prepared
postmortem report Ex. Ka-2. Doctor
opined that Smt. Aneeta Bajpai died due
to burn injuries and infection.

5. PW-6, SI Chandra Prakash Bhatt,
held inquest over dead body of deceased,
prepared panchayat-nama, Ex. Ka-6, and
case was converted to Sections 304, 323
and 504 IPC. Later on, Court directed it to
be converted in Section 302 IPC.

6. PW-5, SI Ghanshyam Yadav,
undertook investigation and during the
course
of
investigation
recorded
statements of Panch witnesses and other
witnesses.
After
completing
entire
formalities of investigation, he submitted
charge-sheet Ex.Ka-7 against accused.

7. Case, being exclusively triable by
Court of Sessions, was committed to
Sessions
Judge,
wherefrom,
it
was
transferred to Additional Sessions Judge,
Court No. 6, Kanpur Nagar for disposal in
accordance with law.

8. Trial Court framed charge on
10.01.2013 against accused under Section
302 IPC, which reads as under :-

"eSa] vejthr f=ikBh vfrfjDr ftyk
,oa l= U;k;k/kh'k] ^U;k;ky; d{k la[;k&6^] dkuiqj
uxj vki vjfoUn cktisbZ ds fo:) v/kksfyf[kr
vkjksi fojfpr djrk gwW %&

;g fd fnukad 25-05-2012 dks lel 8-00
cts iwokZUg] LFkku e-ua- bZ-MCyw-,l- 285 xqTtu fogkj]
djZgh] pkSdh o Fkkuk {ks= cjkZ] tuin dkuiqj uxj esa
vkius viuh iRuh vuhrk cktisbZ dh gR;k djus dh
fu;r ls feV~Vh dk rsy ml ij Mkydj tyk fn;k]
ftlls mldh e`R;q gks xbZ vkSj vkius gR;k dk vijk/k
dkfjr fd;kA rn~uqlkj vki mijksDr dk ;g d`R;
Hkkjrh; n.M lafgrk dh /kkjk 302 ds vUrxZr n.Muh;
,oa bl U;k;ky; ds izlaKku esa gSA

vr% eSa ,rn~}kjk funsZf'kr djrk gwW fd
mDr vkjksi ds fy, vki mijksDr dk fopkj.k bl
U;k;ky; }kjk fd;k tk;sA

"I,
Amarjeet
Tripathi,
Additional District and Sessions Judge,
Court Room No. 6, Kanpur Nagar, frame
you, Arvind Bajpeyee, with the following
charge:-
572 INDIAN LAW REPORTS ALLAHABAD SERIES

That on 25.05.2012 at 8:00 a.m.
at the House No. EWS 285, Gunjan Vihar,
Karrahi, Police Outpost and PS - Barra,
District - Kanpur Nagar, you, with the
intention to kill your wife, poured her
with kerosene and set her a fire, resulting
in her death, thereby you committed an
offence of murder. Accordingly, this act of
yours is an offence punishable under
Section 302 IPC and is in the cognizance
of this court.

I hereby direct you that for the
aforesaid charges, you be tried by this
court.

The aforesaid charges were
read over and explained to the witnesses
who pleaded not guilty and sought trial."

(English Translation by Court)

9. Accused denied charges leveled
against and claimed trial.

10. In order to substantiate its case,
prosecution examined as many as seven
witnesses in the following manner :-

Sr. No. Name
of
PWs
Nature
of
witnes
s
Paper proved
1
Vishal
Bajpai
Fact
Ex. Ka-1
2
Vikas
Bajpai
Fact
Ex.Ka-12
3
Dr.
Sanjeev
Kumar
Forma
l
Ex.Ka-2
4
HC Arvind
Kumar
Forma
l
Ex.Ka-3 and 4
5
SI
Ghanshya
m Yadav
Forma
l
Ex.Ka-7, 8, 9, 10 and
14
6
SI Chandra
Prakash
Bhatt
Forma
l
Ex.Ka-5

11. On closure of prosecution
evidence statement of accused under
Section 313 Cr.P.C. was recorded by
Court
explaining
all
incriminating
evidence and circumstances. Accused
denied prosecution story in toto and all
formalities of investigation were said to
be wrong. He claimed false implication
and statement of witnesses is said to be
wrong. He did not choose to adduce
evidence in defence. In response of
question no.9, he answered that his wife
herself died.

12. After hearing counsel for the
parties and analyzing entire evidence led
by prosecution on record, Trial Court has
found
accused-appellant
guilty
and
convicted him, as stated above. Feeling
aggrieved and dissatisfied with impugned
order of conviction and sentence, present
appeal has been filed through Jail.

13. We have heard Sri Lal Chandra
Mishra, Advocate (Amicus Curiae) for
appellant and Sri Syed Ali Murtaza,
learned A.G.A for State-respondent at
length and have gone through the record
carefully with valuable assistance of
learned Counsel for parties.

14. Learned Amicus Curiae assailed
order
of
conviction
and
sentence
advancing following submissions :-

i. There is no motive to
accused-appellant to commit murder of
his wife.

ii. PW-1 and PW-2 are not eyewitnesses. As per FIR, they were not
present in the house at the time of
incident. Later, they both turned hostile.

iii. Witness named in FIR
namely Vinod Kumar and Kalka were not
produced from the side of prosecution.
3 All. Arvind Bajpai Vs. State of U.P.
573

iv. Victim is said to be admitted
in the Hospital for medical treatment but
eventually her dying declaration under
Section 32 of Indian Evidence Act has not
been recorded till her death with no
proper explanation.

v. It is a case of no evidence but
Trial Court has wrongly convicted accused
relying on statement under Section 161 Cr.P.C.
made by victim before Investigating Officer
during investigation.

vi. Prosecution has failed to
establish its case beyond reasonable doubt.

15. Learned A.G.A. opposed the
submission of learned counsel for accusedappellant and submitted that accusedappellant is named in FIR, Investigating
Officer recorded statement of victim under
Section 161 Cr.P.C., in which she has given
statement against her husband, which is
admissible in evidence under Section 32 of
Indian
Evidence
Act,1872
(hereinafter
referred to as 'Act,1872,) after her death.
Incident took place in the house of accusedappellant and accused-appellant has been
rightly convicted by Trial Court.

16. Although place, time and date of
occurrence, death of victim due to burn
injuries could not be disputed from the
side of prosecution but according to
learned counsel counsel for accusedappellant, he is not responsible for the
present crime. Even otherwise PW-1 and
PW-2, though have turned hostile but
they proved that their mother got injured
by burn injuries in the house and evidence
of doctor shows that victim died due to
burn injuries. In this way, time, date and
place of incident and death of Smt.
Aneeta Bajpayee due to burn injuries
stand established.

17. Thus, only two questions remain
for consideration of this Court are
"Whether
accused-appellant
is
responsible for causing burn injuries to
victim-Aneeta Bajpayee due to which, she
succumbed to death" and "Whether Trial
Court rightly convicted him or not?"

18. We may now proceed to
consider the rival submissions of learned
counsel for parties and briefly consider
evidence of prosecution.

19. PW-1, Vishal Bajpayee, Informant,
did not support prosecution case and turned
hostile. He deposed in his statement that on
25.05.2012, at about 8:00 am, his father
(accused) neither entered the house, nor
assaulted her mother, nor poured kerosene
oil on her. In his cross-examination, he
deposed that he submitted written report,
Ex.Ka-1, against her father at the behest of
other people and signed it without reading.
His mother herself was burnt with oil.
Witness was declared hostile on the request
of prosecution and was subjected to lengthy
cross-examination.

20. PW-2, Vikash Bajpayee, also
did not support prosecution case. Witness
was declared hostile on the request of
State Counsel. In his cross examination,
he deposed that he did not see the incident
by his own eyes and he was not present in
the house at the time of incident.

21. Both the witnesses withstood
lengthy cross-examination by prosecution
but nothing could be brought so as to
support
prosecution
case
and
their
statement could be disbelieved. As per
FIR itself, both witnesses did not appear
to be eye-witnesses.

22. PW-3, Dr. Sanjeev Kumar
deposed that on 3.6.2012 he was posted in
District Hospital, Kanpur Nagar and on
574 INDIAN LAW REPORTS ALLAHABAD SERIES
postmortem duty, at about 2:50 pm, he
conducted autopsy over the dead body of
Smt.
Aneeta
Bajpayee
and
found
superficial deep burn injuries over her
body. Line of redness was also present.
He noted ante-mortem injuries as under :-

"About 60% superficial to deep
burn injury our back, abdomen."

23. Doctor opined that death was
possible one day prior to postmortem and
might have occurred due to Coma and
infection due to ante mortem burn
injuries.

24. PW-5, SI Ghanshyam Yaday,
deposed
that
on
24.6.2010,
he
commenced
investigation,
recorded
statements of Vishal Bajpayee, victimAneeta Bajpayee, witness Vikas Bajpayee
under Section 161 Cr.P.C., visited spot on
pointing out of Vishal and prepared site
plan, Ex.Ka-5. In statement under Section
161 Cr.P.C., victim told him that her
husband poured kerosene oil and set her
at fire. He arrested accused and recorded
his statement. On the death of Aneeta
Bajpayee on 7.6.2012, PW-6, SI Chand
Prakash, held inquest, prepared inquest
report Ex. Ka-6, case was converted into
under Section 302 IPC and he submitted
charge-sheet under Section 302 IPC
against the accused-appellant. In his
cross-examination, he deposed that victim
remained alive 12-13 days after the
incident and her dying declaration could
not be recorded for the reason that she
died before he took investigation.

25. PW-6, SHO Chand Prakash
Bhatt, deposed that on 26.5.2012, he was
posted as In-charge, outpost, PS Barrar,
District
Kanpur
Nagar.
He
took
investigation of case Crime No. 364 of
2012 under Section 307 IPC, recorded
statement of Smt. Aneeta Bajpayee, in
which, she stated that on 25.5.2012, at
about 8:00 am, her husband entered the
house, started abusing, poured kerosene
oil and set her at fire. She rushed out of
her house and jumped into a dirty canal to
save herself. People of the same vicinity
took out her from the Canal. She
sustained burn injuries on her body. He
visited spot, prepared site plan and on
receiving information of her death, he
held inquest over the dead body of Aneeta
Bajpayee.

26. It is thus evident from record
that victim died after 12-13 days from the
incident due to burn injuries. It is said that
her statement under Section 161 Cr.P.C.
has been recorded by PW-6 but no
statement under Section 32 of Act, 1872
was recorded where as victim remained
alive 12-13 day after the incident took
place. Only evidence against accusedappellant is statement under Section 161
Cr.P.C. of victim said to have been made
before Investigating Officer, which does
not find support from any other evidence.
Reason shown by prosecution for not
recording statement under Section 32 of
Act, 1872 does not appear to be cogent
and convincing. Apart from that, PW-2
specifically
stated
in
his
crossexamination that it was wrong to say that
his mother told Investigating Officer that
her husband set her at fire.

27. Before us, it was contended on
behalf of appellant that the said statement
of victim under Section 161 Cr.P.C.
cannot be accepted as dying declaration
for the reason that it was recorded by
Investigator as statement under Section
161 Cr.P.C. and not as statement under
Section 32 of Act, 1872 and admittedly
3 All. Arvind Bajpai Vs. State of U.P.
575
statement of victim was not attested by
two respectable witness as required in
Police Regulation.

28. Paragraph 115 of Police
Regulations reads as under :-

"The officer investigating a case
in which a person has been so seriously
injured that he is likely to die before he
can reach a dispensary where his dying
declaration can be recorded should
himself record the declaration at once in
the
presence
of
two
respectable
witnesses, obtaining the signature or
mark of the declarant and witnesses at the
foot
of
the
deceleration."
(Emphasis added)

29. Section 32(1) of Act, 1872,
provides as under:-

"32. Cases in which statement
of relevant fact by person who is dead or
cannot be found, etc., is relevantStatements, written or verbal, of relevant
facts made by a person who is dead, or
who cannot be found, or who has become
incapable of giving evidence, or whose
attendance cannot be procured without
an amount of delay or expense which,
under the circumstances of the case,
appears to the Court unreasonable, are
themselves relevant facts in the following
cases:-

(1) When it relates to cause of
death.- When the statement is made by a
person as to the cause of his death, or as
to any of the circumstances of the
transaction which resulted in his death, in
cases in which the cause of that person's
death comes into question.

Such statements are relevant
whether the person who made them was
or was not, at the time when they were
made, under expectation of death, and
whatever may be the nature of the
proceeding in which the cause of his
death comes into question."

30. Going by Section 32(1) of Act,
1872, it is quite clear that such statement
would be relevant even if the person who
made statement was or was not at the time
when he made it under the expectation of
death. Having regard to extraordinary
credence attached to such statement fall
under Section 32(1) of Act, 1872 time and
again Court has cautioned as to the
extreme care and caution to be taken
while
relying
upon
such
evidence
recorded as a 'dying declaration'.

31. As far as implication of 162 (2)
of Cr.P.C. is concerned, as a proposition
of law, unlike the excepted circumstances
under which 161 statement could be
relied upon, as rightly contended by
learned senior counsel for the respondent,
once the said statement though recorded
under Section 161Cr.P.C. assumes the
character of dying declaration falling
within the four corners of Section 32(1)
of Act, 1872, then whatever credence
would apply to a declaration governed by
Section
32(1),
should
automatically
deemed to apply with all force to such a
statement though recorded under Section
161 Cr.P.C. The above statement of law
would result in a position that a purported
recorded statement under Section 161
Cr.P.C. of a victim having regard to the
subsequent event of death of the person
making statement who was a victim
would enable prosecuting authority to
rely upon the said statement having
regard to the nature and content of the
said statement as one of dying declaration
as deeming it and falling under Section
32(1) of Act, 1872 and thereby commend
576 INDIAN LAW REPORTS ALLAHABAD SERIES
all the credence that would be applicable
to a dying declaration recorded and
claimed as such.

32. We now propose to deal the
validity of the dying declaration. Court in
Paniben vs. State of Gujarat, (1992) 2
SCC 474, laid down certain principles
regarding dying declaration, which are as
under :-

"Though a dying declaration is
entitled to great weight, it is worthwhile
to note that the accused has no power of
cross-examination. Such a power is
essential for eliciting the truth as an
obligation of oath could be. This is the
reason the Court also insists that the
dying declaration should be of such a
nature as to inspire full confidence of the
Court in its correctness. The Court has to
be on guard that the statement of
deceased was not as a result of either
tutoring, prompting or a product of
imagination. The Court must be further
satisfied that the deceased was in a fit
state of mind after a clear opportunity to
observe and identify the assailants. Once
the Court is satisfied that the declaration
was true and voluntary, undoubtedly, it
can base its conviction without any
further corroboration. It cannot be laid
down as an absolute rule of law that the
dying declaration cannot form the sole
basis
of
conviction
unless
it
is
corroborated.
The
rule
requiring
corroboration is merely a rule of
prudence. this Court has laid down in
several
judgments
the
principles
governing dying declaration, which could
be summed up as under:-

(i) There is neither rule of law
nor of prudence that dying declaration
cannot
be
acted
upon
without
corroboration. (Mannu Raja v. State of
M.P.).

(ii) If the Court is satisfied that
the dying declaration is true
and
voluntary it can base conviction on it,
without corroboration. (State of M.P. v.
Ram Sugar Yadav, Ramawati Devi vs.
State of Bihar).

(iii) This Court has to scrutinise
the dying declaration carefully and must
ensure that the declaration is not the
result
of
tutoring,
prompting
or
imagination.
The
deceased
had
opportunity to observe and identify the
assailants and was in a fit state to make
the declaration. (Ram Chandra Reddy v.
Public Prosecutor).

(iv) Where dying declaration is
suspicious it should not be acted upon
without corroborative evidence. (Rasheed
Beg v. State of Madhya Pradesh).

(v) Where the deceased was
unconscious and could never make any
dying declaration the evidence with
regard to it is to be rejected. (Kake Singh
v. State of M.P).

(vi) A dying declaration which
suffers from infirmity cannot form the
basis of conviction. (Ram Manorath v.
State of U.P.).

(vii) Merely because a dying
declaration does not contain the details
as to the occurrence, it is not to be
rejected. (State of Maharashtra v.
Krishnamurthi Laxmipati Naidu).

(viii) Equally, merely because it
is a brief statement, it is not be discarded.
On the contrary, the shortness of the
statement
itself
guarantees
truth.
(Surajdeo Oza v. State of Bihar).

(ix) Normally the court in Order
to satisfy whether deceased was in a fit
mental condition to make the dying
declaration look up to the medical
opinion. But where the eye witness has
3 All. Arvind Bajpai Vs. State of U.P.
577
said that the deceased was in a fit and
conscious state to make this dying
declaration, the medical opinion cannot
prevail. (Nanahau Ram and Anr. v. State
of M.P.).

(x)
Where
the
prosecution
version differs from the version as given
in the dying declaration, the said
declaration cannot be acted upon. (State
of U.P. v. Madan Mohan).

33. In the case in hand we thus found
that statement under Section 161 Cr.P.C.
which was relied upon as dying declaration,
does not fulfill the requirement of every
provisions of law and fact.

34. PW-6, Chandra Prakas Bhatt,
deposed that on 26.05.2012, he undertook
investigation, recorded statement of Smt.
Aneeta Bajpai (injured). He further
deposed in cross-examination that dying
declaration was not got recorded because
she had come to her house after getting
cured from hospital. He did not take
container and Match box in his possession
from spot; she died after five days from
the date of incident. Thus, it is very clear,
when Investigator recorded statement of
victim under Section 161 Cr.P.C., she was
not under the expectation of death and she
remained
alive
about
two
weeks.
Evidently, dying declaration was not
recorded by Investigating Officer before
two
reliable
witnesses,
therefore,
statement under Section 161 Cr.P.C. does
not fall under the category of 'dying
declaration' under Section 32 of Act,1872.

35. It is well settled that where on
the
evidence,
two
possibilities
are
available or open one which goes in
favour of prosecution and other which
benefits an accused, the accused is
undoubtedly entitled to benefit of doubt.

36. In Bhagwan Singh & Others v.
State of M.P. (2002) 4 SCC 85, Court
repeated one of the fundamental principles of
criminal jurisprudence that if two views are
possible on the evidence adduced in the case,
one pointing to the guilt of the accused and
the other to his innocence, the view which is
favourable to the accused should be adopted.
Court observed as under:-

"7. The golden thread which runs
through the web of administration of justice
in criminal case is that if two views are
possible on the evidence adduced in the case,
one pointing to the guilt of the accused and
the other to his innocence, the view which is
favourable to the accused should be
adopted. Such is not a jurisdiction limitation
on the appellate court but a Judge made
guidelines
for
circumspection.
The
paramount consideration of the court is to
ensure that miscarriage of justice is
avoided." (Emphasis added)

37. In Sharad Birdhichand Sarda
vs. State of Maharashtra AIR 1984
SCC 1622, Court said that at any rate, the
evidence clearly shows that two views are
possible - one pointing to the guilt of the
accused and the other leading to his
innocence. It may be very likely that the
appellant may have administered poison
(potassium cyanide) to Manju but at the
same time a fair possibility that she
herself committed suicide cannot be
safely excluded or eliminated. Hence, on
this ground alone appellant is entitled to
benefit of doubt resulting in his acquittal.

38. In Kali Ram v. State of
Himachal Pradesh, 1973 AIR 2773,
Court made following observations:

"Another golden thread which
runs
through
the
web
of
the
578 INDIAN LAW REPORTS ALLAHABAD SERIES
administration of justice in criminal cases
is that if two views are possible on the
evidence adduced in the case one pointing
to the guilt of the accused and the other to
his
innocence,
the
view
which
is
favourable to the accused should be
adopted. This principle has a special
relevance in cases where in the guilt of
the accused is sought to be established by
circumstantial evidence."
(Emphasis added)

39. We have deeply considered
entire evidence available on record to
connect accused-appellant with present
crime but find no iota of evidence to hold
accused-appellant guilty.

40. We are surprised as to how
without any incriminating circumstances
and cogent evidence, Trial Court has
convicted
and
sentenced
accusedappellant in a serious offence on the basis
of statement of victim under Section 161
Cr.P.C assuming it 'dying declaration'
without any corroboration. Sentencing of
accused-appellant in this manner erodes
public faith on judicial system.

41. Considering the entire facts and
circumstances and evidence led by the
prosecution, in entirety, we do not find
any cogent and convincing evidence
against accused-appellant to connect him
with present crime and, in our considered
opinion, accused-appellant is entitled to
benefit of doubt and deserves acquittal.

42. Appeal is, accordingly, allowed.
Impugned judgment and order dated
09.04.2015 passed, in Sessions Trial No.
Sessions Trial No. 762 of 2012 (State v.
Arvind Bajpai, Crime No. 464 of 2012),
by Additional District and Sessions
Judge, Court No.6, Kanpur Nagar, is
hereby set aside. Appellant is acquitted of
charges levelled against him. He is in jail
and shall be released forthwith, if not
wanted in any other case.

43. Keeping in view provisions of
Section 437-A Cr.P.C., appellant is
directed to furnish a personal bond and
two sureties before Trial Court to its
satisfaction, which shall be effective for a
period of six months, along with an
undertaking that in event of filing of
Special Leave Petition against instant
judgment or for grant of leave, appellant
on receipt of notice thereof shall appear
before Hon'ble Supreme Court.

44. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court concerned
for compliance and further necessary
action.

45. Before parting, we provide that
Sri Lal Chandra Mishra, Amicus Curiae
for appellant in present Jail Appeal, shall
be paid counsel's fee as Rs. 11,500/-.
State Government is directed to ensure
payment
of
aforesaid
fee
through
Additional Legal Remembrancer, posted
in the office of Advocate General at
Allahabad, without any delay and, in any
case, within one month from the date of
receipt of copy of this judgment.
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(2019)11ILR A578

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 3345 of 2012