# Babloo @ Virendra and others v. State of U.P

- **Citation:** (2012) 1 ILRA 452
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-25
- **Case number:** Criminal Appeal No. 6952 of 2010
- **Bench:** Amar Saran, P.K.S. Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babloo-virendra-and-others-v-state-of-u-p-42194
- **Pages:** 10

## Headnote

Code of Criminal Procedure-Section 374
(2)-Criminal
Appeal-conviction
U/S
302/34 I.P.C.-burden of proof wrongly
shifted on appellant in terms of Section
106 of evidence Act-in the fact and
circumstances of the case prosecution
can not creave from burden of proofTrail Court placed much reliance upon
recovery of country made pistol from
accuse Babloo-while recovery memodisclose place of recovery from the field
of Baran Singh-apart from so many
diversity in prosecution evidence-heldprosecution failed to prove its case
beyond
reasonable
doubt-not
sustainable.

Held: Para 20 and 27

What
emerges
from
the
above
mentioned
cases
are
that
the
prosecution is not absolved from its duty
of discharging its general or primary
burden of proving the prosecution case
beyond
reasonable
doubt
and
the
Section 106 of the Evidence Act is
attracted in exceptional cases.

Having regard to the circumstances of
the case, we are satisfied that that the
prosecution has failed to prove its case
against the accused beyond reasonable
doubt and the findings of the trial court
are not sustainable for the reasons given
hereinabove.
Case law discussed:
AIR 1956 SC 404; AIR 1992 SC 2100; AIR
2000 SC 2988; AIR 2005 SC 2345; 1956 SCR
199; (1960) 1 SCR 452; (1974) 4 SCC 193;
AIR 2005 SC (2345); (2012) 1 SCC 10; 1991
CRI.L.J. 1235; 1988 CRI.L.J. 1583

## Text

452 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
not followed the procedure prescribed for
imposing major penalty of dismissal on
the petitioner.

23. I am of the considered opinion
that the order impugned for the reasons
given above, is not sustainable. As such
the order dated 31.12.2001, a copy of
which is annexed as Annexure No. 10 to
the writ petition, is hereby quashed with
liberty to the opposite parties to hold
afresh enquiry from the stage of issuance
of the charge sheet. In case the enquiry
proceedings are held, the same shall be
concluded and final order shall be passed
within a period of five months. The
petitioner shall be reinstated in service
forthwith. However, the consequential
benefits would depend on the outcome of
the enquiry.

24. The writ petition is allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.04.2012

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE P.K.S. BAGHEL, J.

Criminal Appeal No. 6952 of 2010

Babloo @ Virendra and others

 ...Petitioner
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri P.S. Pundir
Sri R.B. Yadav

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure-Section 374
(2)-Criminal
Appeal-conviction
U/S
302/34 I.P.C.-burden of proof wrongly
shifted on appellant in terms of Section
106 of evidence Act-in the fact and
circumstances of the case prosecution
can not creave from burden of proofTrail Court placed much reliance upon
recovery of country made pistol from
accuse Babloo-while recovery memodisclose place of recovery from the field
of Baran Singh-apart from so many
diversity in prosecution evidence-heldprosecution failed to prove its case
beyond
reasonable
doubt-not
sustainable.

Held: Para 20 and 27

What
emerges
from
the
above
mentioned
cases
are
that
the
prosecution is not absolved from its duty
of discharging its general or primary
burden of proving the prosecution case
beyond
reasonable
doubt
and
the
Section 106 of the Evidence Act is
attracted in exceptional cases.

Having regard to the circumstances of
the case, we are satisfied that that the
prosecution has failed to prove its case
against the accused beyond reasonable
doubt and the findings of the trial court
are not sustainable for the reasons given
hereinabove.
Case law discussed:
AIR 1956 SC 404; AIR 1992 SC 2100; AIR
2000 SC 2988; AIR 2005 SC 2345; 1956 SCR
199; (1960) 1 SCR 452; (1974) 4 SCC 193;
AIR 2005 SC (2345); (2012) 1 SCC 10; 1991
CRI.L.J. 1235; 1988 CRI.L.J. 1583

(Delivered by Hon'ble P.K.S. Baghel,J.)

1. The appellants Babloo @
Virendra, Sandeep and Dharmvir have
preferred this Criminal Appeal under
Section 374 (2) Cr.P.C. against the
judgment and order dated 15.10.2010
passed by the First, learned Additional
Sessions Judge, F.T.C. No.1, Bijnor in
S.T. No. 242 of 2010, Crime no. 1101 of
2009 and S.T. No. 243 of 2010, Crime
1 All] Babloo @ Virendra and others V. State of U.P.
453
No. 1103 of 2009. The appellants were
put to trial and the trial court convicted
them for the offences under Sections
302/34 IPC sentencing them to undergo
life imprisonment with fine of Rs.
20,000/- each. The appellant no. 1-
Babloo @ Virendra has also been
convicted under Section 25 of the Arms
Act for two years R.I. in S.T. No. 243 of
2010, Crime no. 1103 of 2009.

2. Facts of the appeal are these: The
appellant no.1 Babloo, resident of village
Bhogpur,
police
station
Chandpur,
District Bijnor was married with Meenu,
the daughter of deceased Satpal Singh.
Satpal Singh's house is 6 km. away from
his daughter's house. On 29.11.2009 at
about 4.00 p.m. the deceased's daughter
Meenu had made a phone call to her
father and complained that her husband,
the appellant no. 1-Babloo, appellant no.
2 Sandeep and the appellant no. 3-
Dharmvir, all residents of village Bhogpur
were beating her in connection with their
demand for a new Maruti car. They also
threatened to kill her and when she was
talking to her father she was crying on the
phone. Her father after receiving the said
phone call immediately proceeded to her
in-law's house along with Rambir and
Vipin. They reached there at 5.00 p.m.
and found that her husband Babloo- the
appellant no. 1, Sandeep-the appellant no.
2 and Dharmvir- the appellant no. 3 were
still beating his daughter Meenu. The
deceased Satpal Singh tried to save his
daughter but Dharmbir and Sandeep
caught hold of him and Babloo, the
appellant no. 1 fired at Satpal Singh with
a country made pistol. He was fataly
wounded. Rambir and Vipin who had
accompanied Satpal Singh were present
all through and later on during trial they
became eye witnesses of the said incident.
The critically injured Satpal Singh was
taken to the hospital at Chandpur, where
the doctor referred him to Bijnor hospital.
In Bijnor also the doctor having regard to
his precarious condition referred him to
Meerut. While he was on the way to
Meerut, he succumbed to his injuries. On
30.11.2009 Shyam Bir son of deceased
Satpal Singh lodged an FIR ( Ex Ka-1) at
9.15. a.m., which was recorded at police
station
Chandpur
district
Bijnor
implicating appellants Babloo, Sandeep
and their father Dharamvir. On the basis
of allegation made therein a case crime
no. 1101 of 2009 under section 498-A,
323, 302/34 IPC and 3 /4 D.P. Act was
registered against the appellant. On the
same day viz. 30.11.2009 an empty
cartridge was recovered from the spot (
Ex-ka -4).

3. Sri Anil Kumar Singh, S.I. Police
was nominated as I.O. of the case, who
commenced investigation in the matter
and prepared site plan. The I.O. arrested
Babloo @ Virendra and recovered a
country made pistol of 315 bore along
with one live cartridge from the field of
one
Baran
Singh.
Another
First
Information Report (Ex Ka-16) was
lodged on 2.12.2009 at 7.25 a.m. the case
crime no. 1103 of 2009 under Section 25
Arms Act was registered against Babloo.

4. The inquest on the dead body was
conducted and inquest memo, Chick No.
485 of 2009 was written by Head Moharir
Daulatram. He had also made entries in
G.D. ( Ka-10). The Site plan was prepared
by Gyanendra Singh (Ka-17). The dead
body of the deceased was sent for
postmortem. The autopsy on the dead
body of the deceased was conducted by
the doctor concerned. The postmortem
report reveals that cause of death was due
454 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
to shock and hemorrhage as a result of
anti mortem injuries. The following
observations were made by the doctor in
the postmortem report, (i) gun shot wound
of entry 3.0 x 2.0, entry deep oval in
shape, wound of exit 1.5 x 1.00 entry.

5. On 2.12.2009 the I.O. sent the
cartridge for forensic examination, which
was found at the spot. After completion of
investigation,
the
I.O.
Submitted
chargesheet ( Ka-18) against appellantsaccused under section 498-A, 323, 302
IPC and Section 3 / 4 D.P. Act. All the
three accused appellants were put up for
trial.

6. The prosecution examined five
eye witnesses namely, PW-1 Shyamveer
son of deceased Satpal, PW-2 Meenu d/o
Satpal Singh, PW-3 Vipin son of
deceased Satpal Singh, PW-4 Rajvir
Singh, the eye witness of the incident and
PW-5 Jaishankar who was the pairokar of
the prosecution.

7. PW-1, PW-2, PW-3 and PW-4
were declared hostile as they did not
support the case of the prosecution. PW-1
Shyamveer Singh in his examination-in-
chief had proved the contents of the FIR.
However, in the cross examination he
changed his version and did not support
the case of the prosecution. In his
deposition, he has stated that he did not
see the incident and whatsoever the facts
were mentioned in the FIR were on the
basis of information of Rambir and Vipin.
He had also denied the fact that in-law's
of his sister had ever tortured her for
demand of dowry. The PW-2 Meenu, the
daughter
of
Satpal
Singh,
in
her
statement, stated that she was married two
years before the incident. Her husband or
her in-laws never made any demand of
dowry. They were completely satisfied
with the dowry whatsoever was given by
her
parents.
She
also
denied
the
allegations made in the FIR that she had
made a phone call to her father on
29.11.2009. She further denied that she
asked him to come to her in -law's house
on that date. When she was confronted
with her statement under section 161
Cr.P.C., she flatly denied that she had
made any such statement to the I.O. She
further stated that she is living in her inlaw's house. The PW-3 Vipin, the son of
the
deceased
Satpal
Singh
in
his
examination in chief, stated that the
allegations against the appellant Babloo
@ Virendra and his family members with
regard to demand of dowry were incorrect
and false. He has also stated that on
29.11.2009, there was no phone call from
his sister. He also denied his alleged
statement under section 161 Cr.P.C. He
proved his signature on the inquest report.
This witness was also declared hostile by
the prosecution. PW-4 Rambir denied the
allegation made in the FIR that he had
accompanied
late
Satpal
Singh
on
29.11.2009 to the Meenu's house. He was
also declared hostile by the prosecution.
In his cross-examination he denied all the
allegations made in the FIR. The PW- 5
Jaishankar as a pairokar in the police
station Chandpur, has proved various
exhibits such as FIR exhibit- 16 and site
plan etc. It is pertinent to mention here
that in S.T. No.. 243 of 2010 under
section 25 Arms Act, the sole accused
Babloo @ Virendra-the appellant no. 1
had admitted his guilt. The said document
is exhibit ka -26 and it is noteworthy that
the said document is undated. The perusal
of exhibit -ka-26 indicates that hand
written application is undated and the
accused had not signed it at the place
where his name as an applicant is
1 All] Babloo @ Virendra and others V. State of U.P.
455
mentioned. From perusal of the document
it is evident that some other person has
written it and Babloo @ Virendra had
signed it. It is also mentioned that since
his mother is ill and he is in jail for the
last 9 months, therefore, he may be given
lesser punishment.

8. Trial court vide impugned
judgment dated 15.10.2010 has found that
all the appellants Babloo, Dharmbir and
Sandeep were guilty under section 302/34
IPC and sentenced them to undergo
imprisonment for life with fine of Rs.
20,000/- each. The appellant no. 1,
Babloo @ Virendra was also found guilty
under section 25 Arms Act and he was
sentenced two years R.I. However, the
accused were not found guilty for the
offences under section 323/34, 498-A and
3/ 4 D.P. Act

9. We have heard Sri P.S.Pundir,
learned counsel for the appellants and
learned AGA for the State.

10. Learned counsel for the
appellants Sri P.S. Pundir has taken us
through the impugned judgment of the
trial court, the statement of the witnesses
and the various other materials placed
before us. Learned counsel for the
appellants submitted that there was no
evidence on record to prove beyond
reasonable doubt about the incident itself
as there was not a single eye witness of
the alleged incident which took place at
5.00 p.m. on 29.11.2009 at the house of
the appellant no. 1. The two eye witnesses
namely Rambir and Vipin have also been
declared hostile and they have denied
there presence at the time of the alleged
incident. He has further urged that
daughter
of
Satpal
Singh
in
her
examination-in-chief as well as in cross
examination had denied the fact that she
has ever been tortured in connection with
demand of dowry and she has also denied
the alleged occurrence which took place
at her home on 29.11.2009 wherein her
husband Babloo @ Virendra has been
made accused under section 302/34 IPC.

11. Learned counsel for the
appellants strenuously urged that finding
of the trial court with regard to the
admission of the appellant Babloo @
Virendrain in support of S.T. No. 243 of
2010 has been illegally read by the trial
court in S.T. No.. 242 of 2010. He has
submitted that trial court has erred in
placing the burden of proof on the
accused in terms of Section 106 of the
Evidence Act. He place reliance on the
judgment report in AIR 1956 SC 404
Shambhu Nath Mehra Vs. State of
Ajmer, AIR 1992 SC 2100 State of
Maharashtra Vs. Sukhdeo Singh and
another, AIR 2000 SC 2988 State of
West Bengal Vs. Mir Mohammad
Omar and others etc, AIR 2005 SC
2345 Murlidhar Vs. State of Rajsthan.

12. Before adverting to the legal
submissions made by the learned counsel
for
the
appellants,
it
would
be
advantageous to refer the findings of the
trial court for holding appellants guilty.
The trial court has based its finding on
four material facts; ( i ) There is no direct
evidence and as such on the basis of
circumstantial evidence, the accused have
been held to be guilty ( ii ) The burden of
proof is on the accused in terms of
Section 106 of the Evidence Act ( iii) The
accused Babloo @ Virendra has admitted
his guilt in another S.T. No. 343 of 2010
and as such he is guilty in S.T. No. 242 of
2010 also. (iv) The Forensic report exhibit
Ka-30 dated 6.10.2010 indicates that the
456 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
cartridge which was found at the house of
the appellant no. 1 ( Babloo) was fired
from the country made pistol which was
recovered from the possession of Babloo.
The assailant had used the said pistol to
kill Satpal Singh.

13. Indisputably, there is no
substantive evidence to support the
prosecution case. The trial court itself has
recorded the finding that in absence of
any substantive or direct evidence, only
on the basis of circumstantial evidence,
the accused have been found guilty.

14. The eye witnesses mentioned in
the FIR have denied there presence at the
time of occurrence. The I.O. of the case
has not collected the blood from where
the deceased was alleged to have been
shot. There is no eye witness of the
incident when the appellant no. 1 alleged
to have fired at late Satpal Singh. The two
important witnesses have turned hostile
and they denied their presence. The trial
court has also erred in shifting the burden
of proof on the accused in terms of
Section 106 of the Evidence Act.

15. Section 106 as used the word "
especially within the knowledge of the
accused". In the present case, the
ingredient of the section 106 of the
Evidence Act is not attracted at all,
inasmuch as the body of Satpal Singh was
not recovered from the house of Babloo.
No blood was found at his house. There
was no eye witness of occurrence. The
two alleged eye witness turned hostile and
denied their presence at the spot. The
object of Section 106 of the Evidence Act
is not to relieve the prosecution of its
burden of proof. The aid of Section 106 of
the Act can be available only in those
exceptional cases where it would be well
neigh impossible for the prosecution to
prove certain facts which are especially in
knowledge
of
the
accused.
For
illustration, if a crime is committed in the
bed room of a person during night, then
there can not be any possibility for the
presence of an eye witness. In such
situation the fact of the crime may be
especially in knowledge of the person
who was present in the house with the
deceased.
The
Supreme
Court
has
considered
the
ingredients
and
the
applicability of the Section 106 of the
Evidence Act in series of decisions. In the
case of Shambhu Nath Mehra v. State of
Ajmer, 1956 SCR 199, the Supreme
Court held:-

"9. This lays down the general rule
that in a criminal case the burden of proof
is on the prosecution and Section 106 is
certainly not intended to relieve it of that
duty. On the contrary, it is designed to
meet certain exceptional cases in which it
would be impossible, or at any rate
disproportionately
difficult,
for
the
prosecution to establish facts which are
"especially" within the knowledge of the
accused and which he could prove
without difficulty or inconvenience. The
word "especially" stresses that. It means
facts
that
are
pre-eminently
or
exceptionally within his knowledge. If the
section were to be interpreted otherwise,
it would lead to the very startling
conclusion that in a murder case the
burden lies on the accused to prove that
he did not commit the murder because
who could know better than he whether
he did or did not. It is evident that that
cannot be the intention and the Privy
Council has twice refused to construe this
section, as reproduced in certain other
Acts outside India, to mean that the
burden lies on an accused person to show
1 All] Babloo @ Virendra and others V. State of U.P.
457
that he did not commit the crime for
which he is tried. These cases are
Attygalle v. Emperor and Seneviratne v.
R."

16. In the case of Krishan Kumar
Vs. Union of India, (1960) 1 SCR 452,
the Supreme Court had occasion to deal
with the same issue. The relevant part of
the judgment is extracted herein below:-

"It is not the law of this country that
the prosecution has to eliminate all
possible defences or circumstances which
may exonerate him. If these facts are
within the knowledge of the accused then
he has to prove them. Of course the
prosecution has to establish a prima facie
case in the first instance. It is not enough
to establish facts which give rise to a
suspicion and then by reason of Section
106 of the Evidence Act to throw the onus
on him to prove his innocence."

17. In the case of Sawal Das Vs.
State of Bihar, (1974) 4 SCC 193, at
page 197, the Supreme Court has laid
down the law in the following terms:-

"10. Neither an application of
Section 103 nor of 106 of the Evidence
Act
could,
however,
absolve
the
prosecution from the duty of discharging
its general or primary burden of proving
the prosecution case beyond reasonable
doubt. It is only when the prosecution has
led evidence which, if believed, will
sustain a conviction, or, which makes out
a prima facie case, that the question arises
of considering facts of which the burden
of proof may lie upon the accused. The
crucial question in the case before us is:
Has the prosecution discharged its initial
or general and primary burden of proving
the
guilt
of the
appellant
beyond
reasonable doubt?"

18. In the case of Murlidhar Vs.
State of Rajasthan reported in 2005
(11) SCC 133 and AIR 2005 SC (2345)
in paragraph no. 20 of the Judgment the
Supreme Court has followed its earlier
judgment of Mir Mohammad Omar and
others which is extracted here in below:-

"20. In Mir Mohd. Omar1 it was
established that the accused had abducted
the victim, who was later found murdered.
The abductors had not given any
explanation as to what happened to the
victim after he was abducted by them.
The
Sessions
Court
held
that the
prosecution had failed to establish the
charge of murder against the accused
persons beyond any reasonable doubt as
there was "a missing link in the chain of
events after the deceased was last seen
together with the accused persons and the
discovery of the dead body of the
deceased at Islamia Hospital". Rejecting
the said contention this Court observed
(vide SCC p. 392, para 31):

"31. The pristine rule that the burden
of proof is on the prosecution to prove the
guilt of the accused should not be taken as
a fossilised doctrine as though it admits
no process of intelligent reasoning. The
doctrine of presumption is not alien to the
above rule, nor would it impair the temper
of the rule. On the other hand, if the
traditional rule relating to burden of proof
of the prosecution is allowed to be
wrapped
in
pedantic
coverage,
the
offenders in serious offences would be the
major beneficiaries and the society would
be the casualty."
458 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

19. In a recent case of Prithipal
Singh Vs. State of Punjab, (2012) 1
SCC 10, Supreme Court has highlighted
the said proposition as follows;

"53. In State of W.B. v. Mir
Mohammad Omar this Court held that if
fact is especially in the knowledge of any
person, then burden of proving that fact is
upon him. It is impossible for the
prosecution
to
prove
certain
facts
particularly within the knowledge of the
accused. Section 106 is not intended to
relieve the prosecution of its burden to
prove the guilt of the accused beyond
reasonable doubt. But the section would
apply to cases where the prosecution has
succeeded in proving facts from which a
reasonable inference can be drawn
regarding the existence of certain other
facts, unless the accused by virtue of his
special knowledge regarding such facts,
failed to offer any explanation which
might drive the court to draw a different
inference. Section 106 of the Evidence Act
is designed to meet certain exceptional
cases, in which, it would be impossible for
the prosecution to establish certain facts
which
are
particularly
within
the
knowledge of the accused. (See also
Shambhu Nath Mehra v. State of Ajmer,
Sucha Singh v. State of Punjab and
Sahadevan v. State)."

20. What emerges from the above
mentioned cases are that the prosecution
is not absolved from its duty of
discharging its general or primary burden
of proving the prosecution case beyond
reasonable doubt and the Section 106 of
the
Evidence
Act
is
attracted
in
exceptional cases.

21. As regard to the finding of the
trial court on the admission of Babloo @
Virendra in another S.T. No. 243 of 2010,
the said admission cannot be relevant in
the present case and on the basis of the said
admission accused Babloo @ Virendra
cannot be held guilty under Section 302/34
IPC. In the said confession, he had
admitted his guilt in respect of the offence
under Section 25 of the Arms Act. It is
significant to mention that the trial court
has recorded the finding that the weapon
was recovered from the house of Babloo
@ Virendra, the said finding is incorrect.
The weapon was found from the field of
one Baran Singh, which is evident from
siteplan of S.T. No. 243 of 2010 ( Exhibit
Ka- 1). From a perusal of the confession, it
is evident that Babloo @ Virendra was
already in jail for the last 9 months and his
mother was keeping indifferent health and
as such he has made a request for lesser
punishment. The trial court has made the
admission of Babloo @ Virendra in S.T.
No. 243 of 2010, Crime No. 1103 of 2009,
under Section 25 of the Arms Act main
ground for conviction in S.T. No. 242 of
2010, Crime no. 1101 of 2009. We are
unable to agree with the view of the trial
court, as the said admission cannot be
treated
as
a
missing
link
of
the
circumstantial evidence.

22. Learned counsel appearing for
the appellants has placed reliance on the
judgment of Supreme Court in the case of
State of Maharashtra Vs. Sukhdeo
Singh reported in AIR 1992 SC 2100. He
submitted that the trial court has grievously
erred in misconstruing the admission made
by the accused in another S.T. No. 242 of
2010, Crime no. 1101 of 2009. He
submitted that the court cannot act on the
admission or confession made by the
accused in another case and his statement
recorded under Section 312 Cr.P.C.
without complying with the provision and
1 All] Babloo @ Virendra and others V. State of U.P.
459
ingredients of Section 229 of the Cr.P.C.
The relevant portion of the judgment is
extracted herein below:-

"Section 229 next provides that if the
accused pleads guilty, the judge shall
record the plea and may, in his discretion,
convict him thereon. The plain language of
this provision shows that if the accused
pleads guilty the judge has to record the
plea and thereafter decide whether or not to
convict the accused. The plea of guilt
tantamounts to an admission of all the facts
constituting the offence. It is, therefore,
essential that before accepting and acting
on the plea the judge must feel satisfied
that the accused admits facts or ingredients
constituting the offence. The plea of the
accused
must,
therefore,
be
clear,
unambiguous and unqualified and the
Court must be satisfied that he has
understood the nature of the allegations
made against him and admits them. The
Court
must
act
with
caution
and
circumspection before accepting and acting
on the plea of guilt."

23. With regard to the findings of the
trial court that the Ballistic report shows
that the cartridge which was found at the
spot was fired from the same country made
pistol which was recovered from the
accused Babloo. We find from the record
that there are obvious discrepancies for the
following reasons, (i) In the charge sheet
of S.T. No. 243 of 2010, it is mentioned
that the country made pistol was recovered
from the possession of the accused Babloo,
when he was arrested from his house on
2.12.2009 at 9.05 a.m., whereas in the
siteplan (exhibit Ka-1) the country made
pistol and one live cartridge were shown to
be recovered from a field of one Baran
Singh, behind the house of the accused
Babloo. We have perused the recovery
memo of the country made pistol dated
2.12.2009 ( exhibit Ka-16). It has not been
signed by any independent witness and in
the said recovery memo, it is mentioned
that country made pistol and one live
cartridge were found from the field of
Baran Singh. This material discrepancy has
escaped the notice of the trial court. Thus,
its finding on this issue is perverse. The
trial court has also relied on the Ballistic
report ( exhibit Ka -30). The recovery of
the country made pistol and the live
cartridge
was
made
on
2.12.2009,
however, the same was sent for forensic
report on 4.2.2010 after two months. In the
report, it is mentioned that along with
country made pistol one missed fired
cartridge was also sent for its examination.
In Ballistic report, it is mentioned that the
missed fire cartridge was compared with
two cartridges which were test fired by the
Ballistic expert. There was no case of
prosecution that any missed fire cartridge
was found, only one live cartridge was
found on 2.12.2009. In the report of
Ballistic expert, only his conclusion has
been mentioned, no reason has been given.
In the case of Gopal Singh Gorkha, Vs.
State of U.P. reported in 1991 CRI.L.J.
1235, this Court has observed as follows:

"Para 22. An expert opinion in fire
arms identification case should produce
facts and not opinion which can not be
checked. Being the Head of the Forensic
Science Laboratory, the expert should
know his responsibility towards the
administration of criminal justice. He
should give up the habit of producing his
bald opinion. The expert should, if he
expects his opinion to be accepted, put
before the court, all the material which
induced him to come to his conclusion so
that the court, although not an expert may
from its own judgment on these materials.
460 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Bald opinions are of no use to the court
and often lead to the breaking of very
import important links of prosecution
evidence which are led for the purpose of
corroboration."

24. A Division Bench of Madhya
Pradesh High Court, reported in 1988
CRI.L.J. 1583, Santokh Singh and
others Vs. State of Madhya Pradesh, has
taken the following view;

"Para-14- No doubt, the Ballistic
expert J.K. Agarwal (PW-17) has stated
that the empty cartridge, Art. C, has been
fired from the gun, Art. A ( vide his report
Exp. P-32), but he stated no reasons for his
opinion. The opinion was dogmatic rather
than explanatory. In view of Adam's case,
1971 Cri. App Rep 349 ( SC), such
dogmatic opinion of the Ballistic experted
has to be discarded. That apart, the fact
that the recovery of the empty cartridge
Art. C, is highly suspicious and that the
gun Art. A before being sent to the
Ballistic expert was kept in police custody
for a long period for two months and ten
day, make this evidence very unreliable.
Hence, fit to be ignored."

25. The facts of the said case say that
the gun was sent for examination to
Ballistic expert after two months and ten
days. In the said case also the opinion of
Ballistic expert was only a conclusion
without support of detail reasons. In the
said case although the Ballistic expert was
examined, however, the court discarded
the evidence of the Ballistic expert
following the judgment of Supreme Court,
in Adam's case 1971 Cri App Rep 349 SC.

26. In view of the above discussions,
the finding of the trial court on this issue is
not sustainable.

27.

Having
regard
to
the
circumstances of the case, we are satisfied
that that the prosecution has failed to prove
its case against the accused beyond
reasonable doubt and the findings of the
trial court are not sustainable for the
reasons given hereinabove.

28. In the result, the appeal against
the S.T. No. 242 of 2010 ( State Vs.
Babloo @ Virendra and others) under
Sections 302/34 IPC, Police Station
Chandpur, District Bijnor succeeds and the
same is allowed.

29. The judgment of conviction and
order of sentence passed by the First
learned Additional Sessions Judge, F.T.C.
No. 1, Bijnor is hereby set aside.

30. Now coming to S.T. No. 243 of
2010, ( Crime No. 1103 of 2009), in this
matter the accused Babloo had admitted
his guilt. In his statement under section
213 Cr.P.C. also he has admitted the fact
regarding recovery of a county made pistol
of 315 bore and one live cartridge of 315
bore at his home on 2.12.2009 at 9.05 a.m.
He has also admitted that he had made an
application admitting his guilt and prayed
for lesser punishment on the ground that
his mother is keeping indifferent health.

31. Learned counsel appearing for
the appellants has not made any other
argument in this matter.

32. In view of the aforesaid facts, we
do not find any infirmity in the order of the
trial court. The judgment and order of the
trial
court
does
not
warrant
any
interference, therefore, we affirm the same.
The appeal of Babloo @ Virendra against
the judgment and order arising out of S.T.
1 All] Ram Kumar Verma V. State of U.P. and others
461
No. 243 of 2010 ( Crime Case No. 1103 of
2009) is dismissed.

33. All the appellants are acquitted
from the charges of which they have been
found guilty in S.T. No. 242 of 2010. The
appellant no. 2 and 3 Sandeep and
Dharmvir are on bail, they need not to
surrender. The appellant no. 1 Babloo, who
is in jail shall be released after completing
his sentence in S.T. No. 243 of 2009, (
Case Crime No. 1103 of 2009), unless
wanted in some other case. All the
appellants shall stand discharged from the
liabilities of their respective bail bonds.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.04.2012

BEFORE
THE HON'BLE RITU RAJ AWASTHI,J.

Writ Petition No. - 9272 (S/S) of 2011

Ram Kumar Verma

 ...Petitioner
Versus
State of U.P. through Secy. Intermediate
Edu. Lko. and others
 ...Respondents

Counsel for the Petitioner:
Sri Som Kartik

Counsel for the Respondent:
C.S.C.
Sri H.S. Jain
Sri S.P. Shukla

U.P.
Secondary
Education
Service
Selection
Board
1982-Section-16appointment of Head Master by Transferchallenged-petitioner being Senior most
L.T. Grade Teacher working on Ad-Hoc
basis-requisition send to Board-and once
Selection Process started-appointment
by Transfer illegal-held-misconceivedwhen transfer of R-6 approved after
completing
all
requirement-selection
process
automatically
canceledcancellation order name of petitioner
institution placed at serial no. 19petition dismissed.

Held: Para 28

This Court has come to the conclusion
that
since
the
advertisement
dated
29.6.2011 was cancelled by subsequent
notification dated 26.8.2011 issued by
the Board as such it cannot be said that
the process of selection was started or
was in progress when the opposite party
no. 6 was transferred on the post in
question,
therefore,
the
judgments
aforesaid in the case of Asha Singh
(supra) and Smt. Amita Sinha (supra)
will be of no assistance to the petitioner
as in the said case, the vacancies were
advertised and applications were invited
but
the
same
had
neither
been
withdrawn nor cancelled by the Board
but in the present case, the vacancy for
the post of Headmaster which was
earlier invited was withdrawn and the
advertisement made by the Board was
cancelled as such there was no legal
bottle neck in finalizing the transfer
proposal of the opposite party no. 6.
Moreover, the transfer of opposite party
no. 6 was accorded final approval by the
Additional Director of Education, who is
said to be the competent authority. The
opposite party no. 6 thereafter has
submitted his joining on the post in
question on 27.12.2011.
Case law discussed:
2007 (3) UPLBEC 2497; 2009 (1) ALJ 611

(Delivered by Hon'ble Ritu Raj Awasthi,J. )

1. Heard Mr. Som Kartik, learned
counsel for petitioner, learned Standing
Counsel for opposite party nos. 1 to 3,
Mr. H.S Jain, learned counsel for opposite
party no. 5 as well as Mr. S.P. Shukla,
learned counsel for opposite party nos. 4
& 6 and perused the record.