# Ashok v. State

- **Citation:** (2019) 3 ILRA 615
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-24
- **Case number:** Jail Appeal No. 4842 of 2011
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-v-state-44876
- **Pages:** 9

## Headnote

Evidence
Law-Indian
Evidence
Act,1872 - Time, date and place of
incident and murder of victim stand
established - PW-5 is only the alleged
eye witness - Conduct of PW-5 like not
informing the owner or Police about
incident till PW-8 arrived is not natural -
Explanation submitted by him is not
cogent and convincing - PW-5 has failed
to
establish
the
guilt
of
accusedappellant - no other evidence on record
to connect accused-appellant with the
present crime - it can be said that crime
could have been committed by someone
else - prosecution failed to prove its case
beyond
reasonable
doubt
against
accused-appellant - Trial Court has not
appreciated the entire evidence in right
prospective and committed manifest
error
in
convicting
the
accusedappellant.(Para 21,39,40)

B. Evidence Law-Indian Evidence Act,
1872
-
Section
134
-
Number of
witnesses - No particular number of
witnesses required for the proof of any
fact." - conviction can be based on single
and sole testimony but it must be
cogent, natural and reliable - if there are
doubts about the testimony, Court will
insist on corroboration - Time-honoured
principle is that evidence has to be
weighed and not counted - It is,
therefore, open to a competent court to
fully and completely rely on a solitary
witness and record conviction - where
on the evidence, two possibilities are
available or open which goes in favour of
the prosecution and other which benefits
an accused, the accused is undoubtedly
entitled
to
benefit
of
doubt.(Para
29,30,31, 35)

Jail appeal allowed (E-7)

List of cases cited: -

## Text

3 All. Ashok Vs. State
615
(2019)11ILR A615

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. 4842 of 2011

Ashok ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Noor Mohammad, Sri Uttar
Kumar
Goswami
(A.C.),
Sri
Yogesh
Srivastava

Counsel for the Opposite Party:
Sri Ratan Singh (A.G.A.)

A.
Evidence
Law-Indian
Evidence
Act,1872 - Time, date and place of
incident and murder of victim stand
established - PW-5 is only the alleged
eye witness - Conduct of PW-5 like not
informing the owner or Police about
incident till PW-8 arrived is not natural -
Explanation submitted by him is not
cogent and convincing - PW-5 has failed
to
establish
the
guilt
of
accusedappellant - no other evidence on record
to connect accused-appellant with the
present crime - it can be said that crime
could have been committed by someone
else - prosecution failed to prove its case
beyond
reasonable
doubt
against
accused-appellant - Trial Court has not
appreciated the entire evidence in right
prospective and committed manifest
error
in
convicting
the
accusedappellant.(Para 21,39,40)

B. Evidence Law-Indian Evidence Act,
1872
-
Section
134
-
Number of
witnesses - No particular number of
witnesses required for the proof of any
fact." - conviction can be based on single
and sole testimony but it must be
cogent, natural and reliable - if there are
doubts about the testimony, Court will
insist on corroboration - Time-honoured
principle is that evidence has to be
weighed and not counted - It is,
therefore, open to a competent court to
fully and completely rely on a solitary
witness and record conviction - where
on the evidence, two possibilities are
available or open which goes in favour of
the prosecution and other which benefits
an accused, the accused is undoubtedly
entitled
to
benefit
of
doubt.(Para
29,30,31, 35)

Jail appeal allowed (E-7)

List of cases cited: -

1. Namdeo Vs St. of Mah. (2007) 14 SCC 150

2. Kunju @ Balachandran Vs St. of T. N. AIR
(2008) SC 1381

3. Jagdish Prasad Vs St. of M.P., AIR (1994)
SC 1251

4. Vadivelu Thevar Vs St. of Mad. AIR (1957) SC 614

5. Yakub Ismailbhai Patel Vs. St. of Guj.
(2004) 12 SCC 229

6. St. of Har. Vs Inder Singh & ors. (2002) 9
SCC 537

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

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

9. Kali Ram Vs St. of H.P.

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

1. This jail appeal under Section 383
Cr.P.C. has been filed by accusedappellant Ashok through Superintendent
of
District
Jail,
Ghaziabad
against
616 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment and order dated 13.07.2011
passed by Sri Mohammad Ibrahim,
Additional District and Sessions Judge,
Court No. 05, Gautambudh Nagar in
Session Trial No. 441 of 2010, (State
versus Ashok), Crime No.450 of 2010,
Police Station Kasna, District Gautam
Budh Nagar, under Section 302 IPC. By
the impugned judgment accused-appellant
has been convicted under Section 302 IPC
and
sentenced
to
undergo
life
imprisonment with a fine of Rs.5000/-. In
the event of default in payment of fine, he
has to undergo further six months
imprisonment.

2. Prosecution case in short is that
informant, PW-1, Indrajeet @ Pintu
resident of Village Parwana, Police
Station Khanpur, District Bulandsahar,
was residing in Sirsa, Police Station
Greater Noida, District Gautam Budh
Nagar. His brother (victim) Raju Sharma
was engaged in service at a hotel,
Tikaram, Deepu and accussed-appellant
Ashok also worked in Hotel. On fateful
night 03.05.2010 at about 11:00 PM there
was a quarrel between accussed Ashok
and Raju (victim) over making more
breads. After a while, when victim Raju
sat on the cot, Ashok inflicted a blow
with danda, on his head, due to which
Informant's brother died. On receiving
information in the morning of 4th May,
2010, Informant went to the place of
occurrence and found his brother dead on
cot. PW-1 got a written report Ex.Ka-1
scribed by one Munna Bhai, PW-4, and
presented the same to the Officer Incharge, Police Station Kasna, District
Gautam Budh Nagar.

3. On the basis of written report
Ex.Ka-1, chick First Information Report
(hereinafter referred to as "FIR") Ex.Ka10 was registered at case Crime No.450
of 2010, under Section 302 IPC by
Constable Clerk PW-7 Jeet Singh who
made an entry of case in the General
Diary (hereinafter referred to as "GD"),
copy whereof is Ex.Ka-11.

4. PW-6 SI Ram Sewak held inquest
over the dead body of deceased Raju,
prepared inquest report Ex.Ka-2 and other
papers relating thereto. Dead body was
sealed and sent for postmortem.

5. PW-3 Dr. Dinesh Mohan Saxena
conducted autopsy on the dead body of
Raju on 04.05.2010 at 05:10 PM and
prepared postmortem report Ex.Ka-3.
According to him deceased was aged
about 40 years; and at the time of
postmortem, Rigor mortis was present;
and body of deceased was thin built. On
external
examination
Doctor
found
following ante mortem injuries on the
person of deceased:-

i. Lacerated wound 3cm x 1cm
left side of forehead, extending left eye
brow. It is surrounded by abraded
contusion 10cm x 4cm extending left side
of face.

ii. Lacerated wound 1cm x
0.5cm, left side of face 2cm medial to left
ear x bone deep.

6. On internal examination, left
temporal bone and frontal bone were
fractured; membrances were lacerated;
brain were lacerated, temporal lobe, large
hematoma over and in between brain; in
heart some blood was present; stomach
contained 150ml semisolid material.

7. In the opinion of PW-3 Dr.
Dinesh Mohan Saxena, victim died due to
3 All. Ashok Vs. State
617
ante mortem head injuries. Death was
possible 3⁄4 day prior to postmortem.

8. PW-9 Inspector Arun Kumar
Singh, undertook investigation of case,
took copy of FIR and other relevant
papers relating to investigation, recorded
statements of PW-7 and PW-1, proceeded
to spot and visited spot, prepared site plan
Ex.Ka-13, thereafter he collected blood
stained, simple earth and string of cot,
prepared fard thereof, Ex.Ka-12, recorded
statement of PW-8. On 05.05.2010 PW-9
arrested accused-appellant at Parichowk
at about 13:40 PM, recorded disclosure
statement
of
accused-appellant
and
recovered danda (stick) allegedly used in
the commission of offence at the pointing
out of accused-appellant from the sand,
prepared recovery memo thereof Ex.Ka-4
and site plan Ex.Ka-14 place of recovery
of the weapon.

9. PW-9 after completing entire
formalities of investigation submitted
charge-sheet Ex.Ka-5 against accusedappellant under Section 302 IPC in the
Court concerned.

10. Chief Judicial Magistrate,
Gautam Budh Nagar took cognizance of
offence under Section 302 IPC against
accused-appellant. Case being exclusively
triable by Court of Sessions, was
committed to the Sessions Judge.

11. Trial Court framed the charge
against the accused-appellant which reads
as under :-

"eSa] ekS0 bczkghe] vij ftyk ,oa l=
U;k;k/kh'k ,Q0Vh0lh0&2 xkSrecq} uxj vki
vfHk;qDr v'kksd dks fuEu vkjksi ls vkjksfir djrk
gwW&

1& ;g fd fnukad 3-5-2010 dks le;
23%00 cts LFkku 'kekZ gksVy dkluk Fkkuk dkluk
xkSrecq}uxj esa vkius oknh ds HkkbZ jktw ds vkSj
vki vfHk;qDr ds e/; jksVh cukus ds Åij >xM+k
gksus ds dkj.k mlds flj ij MaMk ekj fn;k ftlls
mldh e`R;q gks x;hA bl izdkj vkius Hkk0n0la0 dh
/kkjk 302 ds vUrxZr n.Muh; vijk/k dkfjr fd;k
tks fd bl U;k;ky; ds izLkaKku esa gSA

,rn~ }kjk vkidks funsZf'kr fd;k tkrk
gS fd mijksDr vkjksi esa vkidk fopkj.k bl
U;k;ky; esa fd;k tk;sxkA"

"I, Mohd. Ibrahim, Additional
District and Sessions Judge, F.T.C.-2,
Gauram Budh Nagar charge you accused
Ashok with the following charge:-

Firstly - That on 03.05.2010 at
about 23:00 hours consequent upon an
altercation which took place between you
and deceased Raju brother of informant
on the issue of making bread at Sharma
Hotel, Kasna, Police Station Kasna,
District Gautam Budh Nagar you inflicted
on his head with danda which resulted in
his (Raju) death. Thereby you have
committed
offence
punishable
under
Section 302 IPC which is within the
cognizance of this Court.

You hereby direct that you will
be tried by this Court for the aforesaid
charge.

(English Translation by Court)

12. Accused-appellant pleaded not
guilty and claimed trial.

13. In order to prove guilt of
accused-appellant, prosecution examined
as many as nine witnesses, in the
following manner:-

Sr. No. Name
of
PW
Nature of
witness
Paper proved
1
Indrajeet
Fact
Ex.Ka-1
2
Constable
Satish
Kumar
Formal
Ex.Ka-2
3
Dr. Dinesh
Mohan
Formal
Ex.Ka-3
618 INDIAN LAW REPORTS ALLAHABAD SERIES
Saxena
4
Munna
Bhai
Formal
Ex.Ka-1
5
Teeka Ram Fact
Ex.Ka-4
6
S.I.
Ram
Sewak
Formal
Ex.Ka-9
7
Constable
Jeet Singh
Formal
Ex.Ka- 10 & 11
8
Murli Dhar
Sharma
Fact
Ex.Ka-12
9
S.I.
Arun
Kumar
Singh
Formal
Ex.Ka-15

14. PW-1 Indrajeet is brother of
deceased Raju and informant but he is not
eye witness; PW-2 Constable Satish
Kumar is witness of inquest who was
present at the time of inquest, Body was
handed over to him for postmortem; PW3 Dr. Dinesh Mohan Saxena conducted
autopsy on the dead body of deceased and
prepared postmortem report Ex.Ka-3;
PW-4 Munna Bhai is a scribe of written
tehreer Ex.Ka-1, he scribe Ex.Ka-1 at the
dictation of PW-1; PW-5 Teeka Ram is
eye witness of incident; PW-6 SI Ram
Sweak is a formal witness and held
inquest over the dead body of Raju; PW-7
Constable Jeet Singh registered chick FIR
Ex.Ka-11 and made an entry in G.D. PW8 Murli Dhar Sharma, owner of Hotel, is
witness of fard of blood stained and
simple earth, he is not eye witness; and
PW-9
SI
Arun
Kumar
Singh
is
Investigating Officer of the case and
arrested accused-appellant and recorded
his disclosure statement and on his
pointing out, recovered Danda allegedly
used in commission of crime and
submitted charge sheet against accused
Ashok.

15. Subsequent to closure of
prosecution
evidence,
statement
of
accused-appellant under Section 313
Cr.P.C. was recorded by the Trial Court
on 07.06.2011, explaining entire evidence
and other incriminating circumstances
and evidence. Accused-appellant in his
statement under Section 313 Cr.P.C.
claimed false implication and denied the
prosecution
story
in
toto,
entire
proceeding of investigation was said to be
wrong and he did not choose to lead any
evidence in his defence.

16. Ultimately case came to be
heard and decided by Additional Sessions
Judge, Court No.5, Gautam Budh Nagar.
On appreciation of evidence available on
record and after hearing both the parties,
Trial Court recorded verdict of conviction
and
sentence
against
the
accusedappellant as stated above.

17.

Feeling
aggrieved
and
dissatisfied with the impugned judgement
and order, accused-appellant approached
this Court through Superintendent of
District Jail, Ghaziabad, assailing the
impugned judgement.

18. We have heard Sri Uttar Kumar
Goswami, learned Amicus Curiae for
appellant and Sri Ratan Singh, learned
AGA for State at length and have gone
through the record carefully with the
valuable assistance of learned Counsel for
parties.

19. Learned Amicus Curiae for
accused-appellant
assailing
impugned
judgement and order of conviction and
sentence, took us through the record and
advanced following submissions :-

1. It is a case of direct evidence
but no cogent and convincing evidence
has come against the accused.
3 All. Ashok Vs. State
619

2. Except PW-5, no other eye
witness has been produced from the side
of prosecution. PW-5 is not reliable
witness and his evidence is not worthy to
credence.

4. Evidence of PW-5 is self
contradictory.

5. Prosecution has failed to
prove its case beyond reasonable doubt.

6.
Trial
Court
did
not
appreciated
the
evidence
in
right
prospective and wrongly convicted the
accused-appellant.

20. Learned AGA opposed the
submissions and submitted that accusedappellant is named in the FIR, evidently
he was present on spot with victim and
some quarrel has taken place between
accused-appellant and deceased Raju
before the incident which lead to incident;
Danda allegedly used in the commission
of offence has been recovered at the
pointing
out
of
accused-appellant;
Prosecution successfully established its
case and Trial Court has rightly convicted
the accused-appellant.

21. Although time, date, place of
incident and death of victim Raju could
not be challenged from the side of the
defence but according to Advocate he is
not responsible of murder of Raju. Even
otherwise from evidence of PW-3 Dr.
Dinesh Mohan Saxena, PW-5 Teeka Ram
and PW-6 SI Ram Sweak. Time, date and
place of incident and murder of victim
stand established.

22. Thus the only question remains
for consideration of Court is "whether
accused-appellant committed murder of
Raju by inflicting blunt object injury on
his head and Trial Court has rightly
convicted him or not?"

23. Now we may proceed to
consider rival contentions made by
learned Counsel for parties and briefly
evidence of prosecution witnesses.

24. PW-1 Indrajeet happens to be
brother of deceased Raju, deposed that
victim Raju worked in Sharma Hotel;
Teekaram, Deepu and Ashok also worked
there. On the fateful night i.e. 03.05.2010
at about 11:00 PM there was quarrel
between accused-appellant Ashok and
victim Raju over making much bread in
the Hotel whereupon accused-appellant
Ashok attacked Raju with Danda. He was
told this fact by Teekaram and Deepu.
Thus it is very clear that PW-1 is not eye
witness of the incident, hence his
statement required no much scrutiny.

25. PW-5 Teekaram is only alleged
eye witness, deposed that on 23.05.2010,
he, accused-appellant Ashok, victim Raju
and one Deepu were present in the Hotel
which belonged to Murli Dhar Sharma,
PW-8. Accused-appellant Ashok used to
make bread on Tandoor and victim Raju
cooked other material; Raju was close to
owner of the Hotel; On the fateful night
i.e. 03.05.2010, owner of the Hotel and
his son went to his house at about 10:00
PM taking entire money; he (PW-5),
victim Raju, accused-appellant Ashok and
Deepu remained in Hotel; In the night
there was a quarrel between accusedappellant Ashok and victim Raju over
making more breads; both used to drink.
Victim Raju had taken liquor, accusedappellant started abusing Raju who
objected and laid on the cot and was
mumbling. Both were lying close by; he
and Deepu laid on the roof of Leelawati
Dharamkanta at the distance of 100 yards
620 INDIAN LAW REPORTS ALLAHABAD SERIES
from place of incident; accused-appellant
Ashok went towards Jungle and took a
Danda from there and attacked on the
head of Raju three times with Danda and
fled away from there with Danda, they
could not speak anything due to fear of
evil; in the morning they narrated entire
story to owner of Hotel when he came
with his son; 2nd or 3rd day of incident
police
apprehended
accused-appellant
Ashok and took Hotel by vehicle and on
his pointing out, recovered a thick Danda
with
blood
allegedly
used
in
the
commission of offence from the sand at
about 04:00 PM on 05.05.2010; and
recovery memo thereof Ex.Ka-4 was
prepared before him, he signed over it.

26. In the cross-examination, he
(PW-5) deposed that Accused-appellant
took out the danda (stick) from the pile of
sand and Leelawati Dharamkanta is at the
distance of 100 yards from Hotel. Raju
and Ashok used to sleep in the Varanda of
Hotel while he and Deepu used to sleep at
Leelawati
Dharamkanta.
Accusedappellant Ashok and Raju slept on the cot
in the fateful night and there was dark at
11:00 PM in the night but there was two
lighting in the Hotel, he saw accusedappellant going towards western side of
jungle, after
five minutes
accusedappellant returned with danda; the said
danda was made of Eucalyptus having
three nails; he does not know where
owner owner's of Hotel resides and Hotel
was on the main road; they went to sleep
to Leelawati Dharamkanta at about 10:45
PM; accused-appellant Ashok ran away
from spot and head of victim Raju was
bleeding, he was in the Hotel till Ashok
was arrested, at the time of incident
Deepu was also awake. Thus it is
apparent from the evidence of this witness
(PW-5) that at the time of incident he was
on the roof of Leelwati Dharamkanta
which is at 100 yards far from the place
of incident and there was dark and it was
not possible to him to witness how many
nails were fixed in the danda. He further
admitted that he did not see touching it
and it was of old wood. Accusedappellant ran away from spot with Danda.

27. More so other witness Deepu
did
not
come
forward
to
support
prosecution story and prosecution did not
give any proper explanation for not
producing him in evidence. It has also
come in the evidence of this witness that
deceased Raju, among other servants, was
very close to owner of the Hotel. There is
no explanation to this witness, why he did
not inform Police or owner of Hotel, until
owner of Hotel arrived in the morning.
The witness further states that there was
nobody except victim and accusedappellant in Varanda and after the
incident, he came in the Hotel when
owner arrived.

28. PW-5 is only eye witness who
has been produced from the side of
prosecution in support of its case.
Evidence of this witness found no
corroboration with any other evidence. It
has come in the statement of this witness
that Deepu and two other persons were
also present in Leelawati Dharamkanta
but he could not tell the name of those
persons who are said to be present in
Leelawati Dharamkanta in the fateful
night. In absence of any corroboration
evidence of PW-5 inspires no confidence.

29. It is settled legal position that
conviction can be based on single and
sole testimony but it must be cogent,
natural and reliable. In view of Section
134
of
Indian
Evidence
Act,1872
3 All. Ashok Vs. State
621
(hereinafter referred to as 'Act,1872').
Section 134 of Act, 1872, reads as under:-

"134. Number of witnesses.--No
particular number of witnesses shall in
any case be required for the proof of any
fact."

30. Law is well-settled that as a general
rule, Court can and may act on the testimony
of a single witness provided he/she is wholly
reliable. There is no legal impediment in
convicting a person on the sole testimony of a
single witness. That is the logic of Section 134
of Act, 1872. But if there are doubts about the
testimony, Court will insist on corroboration.
In fact, it is not the numbers, the quantity, but
the quality that is material. Time-honoured
principle is that evidence has to be weighed
and not counted. Test is whether evidence has
a ring of truth, cogent, credible and
trustworthy or otherwise.

31. In Namdeo v. State of
Maharashtra (2007) 14 SCC 150, Court
re-iterated the view observing that it is the
quality and not the quantity of evidence
which is necessary for proving or
disproving a fact. The legal system has
laid emphasis on value, weight and
quality of evidence rather than on
quantity, multiplicity or plurality of
witnesses. It is, therefore, open to a
competent court to fully and completely
rely on a solitary witness and record
conviction. Conversely, it may acquit the
accused inspite of testimony of several
witnesses if it is not satisfied about the
quality of evidence.

32. In Kunju @ Balachandran vs.
State of Tamil Nadu, AIR 2008 SC
1381 a similar view has been taken
placing reliance on earlier judgments
including Jagdish Prasad vs. State of
M.P., AIR 1994 SC 1251; and Vadivelu
Thevar vs. State of Madras, AIR 1957
SC 614.

33. In Yakub Ismailbhai Patel Vs.
State of Gunjrat reported in (2004) 12
SCC 229, Court held that :-

"The legal position in respect of
the testimony of a solitay eyewitness is
well settled in a catena of judgments
inasmuch as this Court has always
reminded that in order to pass conviction
upon it, such a testimony must be of a
nature which inspires the confidence of
the Court. While looking into such
evidence this Court has always advocated
the
Rule
of
Caution
and
such
corroboration from other evidence and
even in the absence of corroboration if
testimony of such single eye-witness
inspires confidence then conviction can
be based solely upon it."

34. In State of Haryana v. Inder
Singh and Ors. reported in (2002) 9
SCC 537, Court held that it is not the
quantity but the quality of the witnesses
which matters for determining the guilt or
innocence of the accused. The testimony
of a sole witness must be confidenceinspiring and beyond suspicion, thus,
leaving no doubt in the mind of the Court.

35. It is well settled that where on
the
evidence,
two
possibilities
are
available or open which goes in favour of
the 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
622 INDIAN LAW REPORTS ALLAHABAD SERIES
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......."

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 the poison (potassium cyanide)
to Manju but at the same time a fair
possibilitiy that she herself committed suicide
cannot be safely excluded or eliminated.
Hence, on this ground alone the appellant is
entitled to the 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
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."

39. In the present case, PW-5 is only
the alleged eye witness. Conduct of PW-5
like not informing the owner or Police
about incident till PW-8 arrived is not
natural. Explanation submitted by him is
not cogent and convincing. Thus PW-5
has failed to establish the guilt of
accused-appellant. There is no other
evidence on record to connect accusedappellant with the present crime. Hence it
can be said that crime could have been
committed by someone else.

40. Considering the entire fact and
evidence produced by prosecution, in its
entirety and legal proposition discussed
herein before, in our considered view,
prosecution failed to prove its case beyond
reasonable doubt against accused-appellant
and Trial Court has not appreciated the entire
evidence in right prospective and committed
manifest error in convicting the accusedappellant, hence the appeal succeed and
liable to be allowed.

41. Present jail appeal is hereby
allowed. Impugned judgment and order
dated
13.07.2011
passed
by
Sri
Mohammad Ibrahim, Additional District
and Sessions Judge, Court No. 05,
Gautambudh Nagar in Session Trial No.
441 of 2010 arising out of Case Crime
No. 450 of 2010, Police Station Kasna,
District Gautam Budh Nagar, under
Section 302 IPC is set aside. He shall be
released forthwith, if not wanted in any
other
crime.
3 All. Ram Kailash Tripathi & Ors. Vs. State of U.P. & Ors.
623

42. 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.

43. Lower Court record along-with a
copy of this judgment be sent back
immediately to District Court concerned
and also copy of this judgment be sent to
Superintendent Jail concerned through
District Judge concerned for immediate
compliance and further necessary action.

44. Before parting, we provide that
Sri Uttar Kumar Goswami, Advocate,
who has appeared as Amicus Curiae for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 10,000/-. 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.
----------

(2019)11ILR A623

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE
THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE SURESH KUMAR GUPTA, J.

Crl. Misc. Writ Petition No. 21113 of 2019

Ram Kailash Tripathi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Chandra Pal Singh

Counsel for the Respondents:
A.G.A.

A. Criminal Law -Code of Criminal
Procedure,1973 - Section 482 - quashing
of criminal proceeding in respect of noncompoundable
offences-heinous
and
serious offences cannot be quashed on
the
basis
of
settlement/compromise
under section 482 Cr.P.C./Article 226only offences which are private in nature
having no impact on the society can be
quashed-exercise
of
power
under
Section 482Cr.P.C./Article 226 can not
be permitted, when the matter is under
investigation. (Para 3,4,5,6)

Writ petition dismissed (E-6)

List of cases cited:-

1. Gian Singh Vs. State of Punjab, 2012(10)
SCC 303

2. Narinder Singh Vs. State of Punjab (2014) 6
SCC 466

3. State of M.P. Vs. Laxmi Narayan & Ors.(3
Judges),AIR 2019 SC 1296

4. State of Rajasthan Vs. Shambhu Kewat
(2014) 4 SCC 149

(Delivered by Hon'ble Pankaj Naqvi, J.
Hon'ble Suresh Kumar Gupta, J.)

1. Heard Sri Chandra Pal Singh,
learned counsel for the petitioners and the
learned A.G.A.

2. This writ petition has been filed,
seeking a writ of mandamus, directing the
respondent concerned, not to arrest the
petitioners, with a further prayer for