# Baru v. State of U.P

- **Citation:** (2022) 8 ILRA 33
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-06
- **Case number:** Criminal Appeal No. 7552 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/baru-v-state-of-u-p-48767
- **Pages:** 6

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 106 - Burden of Proof - The
impugned judgment of the Court below of
Section 106 of Indian Evidence Act, 1872,
which cannot be made applicable in the
facts and circumstances of this case. The
burden cannot be shifted on the accused
to prove his innocence. This is a case of
direct evidence that PW1 and PW2 are
eye-witness and they saw the occurrence.
Hence, this is not the fact which was in
special
knowledge
of
accused
Baru.
Hence, Section 106 of Indian Evidence Act
has no applicability in this case.

Settled law that the prosecution can shift the
burden on the accused only where the facts are
especially within the knowledge of the accused
in a case, which rests on circumstantial
evidence, but Section 106 of the Evidence Act
cannot be made applicable in a case of direct
ocular evidence.

Indian Evidence Act, 1872 - Section 3 - If
the
trial
court
has
disbelieved
the
recovery of iron rods on the pointing out
of the accused persons, it has also broken
the chain of circumstances because the
prosecution based its case on the fact that
the three accused persons inflicted blows
to the deceased by iron rods.

Where the court proceeds on the premise that
the case rests on circumstantial evidence and
the recovery of the weapon is disbelieved then
the chain of the circumstances stands broken.

Indian Evidence Act, 1872- Section 3 -
Learned trial court has committed gross
error and illegality by convicting the Baru
34 INDIAN LAW REPORTS ALLAHABAD SERIES
on the same set of evidence on which the
other accused persons were acquitted.

Settled law that the conviction of an accused
cannot be secured when on the same set of
evidence the co-accused have been acquitted.
(Para 11, 14)

Criminal Appeal allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

8 All. Baru Vs. State of U.P.
33
period of 13 years which he spent is
enough punishment in the facts of this case.
The minor contradictions will have to be
ignored and they cannot for the dent in the
prosecution of the husband. Medical
evidence is quite clear and corroborates the
facts and circumstances. Punishment would
be 12 years incarceration, the fine and
default sentence are also maintained.

14. Recent judgment of State of M.P
Vs. Jogendra, (2022) 5 SCC 401.
Paragraph-20 of the said judgment can be
followed, however, instead of seven years
period undergone would be more than
relevant the facts and circumstances of this
case.

15. Accordingly, the appeal is partly
allowed with the modification of the
sentence
as
above.
Record
and
proceedings be sent back to the Court
below forthwith.

16. A copy of this order be sent to the
jail authorities for following this order and
doing the needful.

17. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2022) 8 ILRA 33
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.07.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 7552 of 2008

Baru ...Appellant
Versus
State of U.P. ...Respondent
Counsel for the Appellant:
Sri Rajiv Kumar Saini, Sri Amit Kumar
Chaudhary, Sri Brijendra Singh Khokher, Sri
Chandra
Shekhar
Mishra,
Sri
G.S.
Chaturvedi, Sri Harish Chandra Singh, Sri
Noor Mohammad, Sri Onkar Singh, Sri
Rajesh Ji Verma, Sri Vinod Tripathi

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Indian Evidence Act, 1872-
Section 106 - Burden of Proof - The
impugned judgment of the Court below of
Section 106 of Indian Evidence Act, 1872,
which cannot be made applicable in the
facts and circumstances of this case. The
burden cannot be shifted on the accused
to prove his innocence. This is a case of
direct evidence that PW1 and PW2 are
eye-witness and they saw the occurrence.
Hence, this is not the fact which was in
special
knowledge
of
accused
Baru.
Hence, Section 106 of Indian Evidence Act
has no applicability in this case.

Settled law that the prosecution can shift the
burden on the accused only where the facts are
especially within the knowledge of the accused
in a case, which rests on circumstantial
evidence, but Section 106 of the Evidence Act
cannot be made applicable in a case of direct
ocular evidence.

Indian Evidence Act, 1872 - Section 3 - If
the
trial
court
has
disbelieved
the
recovery of iron rods on the pointing out
of the accused persons, it has also broken
the chain of circumstances because the
prosecution based its case on the fact that
the three accused persons inflicted blows
to the deceased by iron rods.

Where the court proceeds on the premise that
the case rests on circumstantial evidence and
the recovery of the weapon is disbelieved then
the chain of the circumstances stands broken.

Indian Evidence Act, 1872- Section 3 -
Learned trial court has committed gross
error and illegality by convicting the Baru
34 INDIAN LAW REPORTS ALLAHABAD SERIES
on the same set of evidence on which the
other accused persons were acquitted.

Settled law that the conviction of an accused
cannot be secured when on the same set of
evidence the co-accused have been acquitted.
(Para 11, 14)

Criminal Appeal allowed. (E-3)

Judgements/ Case law relied upon:-

1. Daulat Ram & Daulati Para 11, 14 Vs St. of
Har., 2015 (2) AII JIC 446

2. Sharad Vs St. of Mah., AIR 1984 SC 1622
(Delivered by Hon'ble Ajai Tyagi, J.)

1. Heard Sri Noor Mohammad,
learned counsel for the appellant and Sri
N.K. Srivastava, learned A.G.A. for the
State.

2. This appeal challenges the
judgment and order dated 25.10.2008
passed by the Additional District &
Sessions Judge, Saharanpur in Sessions
Trial
No.56
of
2008
convicting
&
sentencing Baru, appellant, for commission
of offence under Sections 302 of Indian
Penal Code, 1860 (hereinafter referred to as
'I.P.C.') to undergo rigorous imprisonment
for life with fine of Rs.10,000/- and in case
of default of payment of fine, further to
undergo two years' imprisonment. The
accused has undergone more than 14 years
of incarceration. He is the sole convict of
the above offence.

3. Brief facts of the case are that a
first information report was lodged by
complainant -Ashok Kumar, brother of the
the deceased Brahm Dutt, averring that on
30.07.2007 deceased was siting in his
village with his brother Mage Ram and
complainant Ashok Kumar. At about 9:00
pm, Titu son of Pandit Om Prakash came
there and asked Brahm Dutt that Baru and
Vinod are calling him on the roof of Baru
because he wants settlement with him, in
this way Titu took away Bhram Dutt on the
roof
of
Baru.
After
five
minutes
complainant and his brother Mage Ram
heard the voice of Brahm Dutt, who was
crying to save him. Complainant and his
brother Mage Ram went on to the roof of
Baru by having torch in their hands and in
the light of torch they saw that Titu S/o Om
Prakash, Baru S/o Thakur Ram Singh and
Vinod were beating the deceased Brahm
Dutt with iron rods in their hands by hitting
on the head of the deceased. When these
persons saw the complainant and his
brother they ran away by jumping east
wall. It is also averred that the dead body of
the deceased is lying on the roof of Baru
and in his murder Ex-Pradhan Pandit
Ramesh was also conspirator.

4. On the basis of the aforesaid
written report, a first information report
was lodged and investigation was taken up
by
the
I.O. During
the
course
of
investigation post mortem of deceased was
conducted. I.O. recovered three iron rods
on the pointing out of accused Baru, Titu
and Vinod. Accused Titu, Baru and Vinod
were charged under Section 302 read with
Section 34 IPC. Accused Ramesh Pandit
was charged of offence under Section 120B
IPC. After the trial learned court below
acquitted accused Titu, Vinod and Ramesh
and convicted Baru for the offence under
Section 302 of IPC.

5. This F.I.R. culminated into
recording of statements of the witnesses
and charge-sheet was laid against four
accused-persons. The accused was alleged
to have committed murder, hence, he was
committed to the Court of Sessions. The
8 All. Baru Vs. State of U.P.
35
accused being summoned, pleaded not
guilty and wanted to be tried.

6. The accused denied the charge and
claimed to be tried. The prosecution so as
to bring home the charge, examined seven
witnesses, who are as under:-:

1
Ashok Kumar
PW1
2
Mage Ram
PW2
3
Brahma Singh
PW3
4
Dr. Krishna Kumar
PW4
5
Shravan Kumar
PW5
6
Shravan Kumar
PW6

7. In support of ocular version
following documents were filed:

1
First Information Report
Ex.Ka.
2
Written Report
Ex.Ka.
3
Recovery Memo of blood-stained
& plain earth
Ex.Ka.
4
Recovery Memo of Iron 'Bariya'
Ex.Ka.
5
Postmortem Report
Ex.Ka.
6
Site Plan
Ex.Ka.

8. On the witnesses being examined
and the prosecution having concluded its
evidence, the accused was put to questions
under Section 313 Cr.P.C. On hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted the accused-appellant only and
acquitted the other three accused as
mentioned aforesaid. Being aggrieved by
and
dissatisfied
with
the
aforesaid
judgement and order passed by the
Sessions Court the appellant has preferred
the present appeal.

9. Learned counsel for the appellant
has placed heavy reliance on the decision
of the Apex Court in Daulat Ram &
Daulati vs. State of Haryana, 2015 (2)
AII JIC 446 and has contended that in
similar facts, three named accused in the
F.I.R. have been acquitted. Same role has
been ascribed to the present appellant also.
There
is
conviction
only
based
on
incriminating
evidence
given
by
the
accused himself. There is no specific role
ascribed to the appellant. The main two
eye-witnesses, who according to the
prosecution have witnessed the incident
have not supported the prosecution case.
P.W.1 and P.W.2 have not supported the
prosecution case. P.W.5 has also not
supported the prosecution case and has
been declared person not supporting
prosecution and has been cross examined
by the learned counsel for the State.

10. Learned A.G.A. for the State has
contended that the accused has been named
in the F.I.R., the weapon of crime has been
recovered at his instance and P.W.1 before
declared
hostile,
has
supported
the
prosecution case. Moreover, it is submitted
by learned A.G.A. that the judgment of the
Apex Court in Daulat Ram & Daulati
(Supra) will not apply to the facts of this
case.

11. Having considered the facts and
submissions, three things emerges. One,
there are three injuries as per postmortem
report but none of the witnesses has
deposed as to which injuries has been
caused by the accused-appellant. Two,
weapon (iron rods) have been used by three
accused persons who got them required but
the judgement is silent on the role of other
two accused. Post mortem report has three
ante mortem injuries. If all the three
injuries are inflicted by Baru, then what
was done by other two with iron rods
which were recovered on their pointing
out? Three, the impugned judgment of the
36 INDIAN LAW REPORTS ALLAHABAD SERIES
Court below of Section 106 of Indian
Evidence Act, 1872, which cannot be made
applicable in the facts and circumstances of
this case. The burden cannot be shifted on
the accused to prove his innocence. This is
a case of direct evidence that PW1 and
PW2 are eye-witness and they saw the
occurrence. Hence, this is not the fact
which was in special knowledge of accused
Baru. Hence, Section 106 of Indian
Evidence Act has no applicability in this
case. If the evidence of this case is analysed
with the angle of circumstantial evidence
then the chain of circumstances should be
completed while in this case, the only
circumstance against the accused Baru is
that the dead body of the deceased was
found on the roof of his house. Learned
trial court has stated in the judgement that
the dead body of the deceased was found
on the roof of the house of the accused
Baru because the deceased was called upon
by co-accused Titu to the roof of the house
of Baru for some settlement, but this
observation does not hold good because the
contents of first information report were
denied by PW2 as well as complainant and
they have not supported the prosecution
case. Hence, the first information report has
itself become highly suspicious. This
finding itself is perverse. We find that the
judgment is based on what can be said to be
moral conviction.

12. Recently the Apex Court has held
that where there are no credible witnesses
who
deposed
and
the
chain
of
circumstances is not complete to prove the
offence of the accused, the accused cannot
be convicted. Hence, if we analyse the
evidence from the angle of circumstance
also then following settled law is to be kept
in mind. Three Judge Bench in the case of
Sharad Vs. State of Maharashtra, [AIR
1984 SC 1622] held as under:

"152. Before discussing the cases
relied upon by the High Court we would
like to cite a few decisions on the nature,
character and essential proof required in a
criminal case which rests on circumstantial
evidence alone. The most fundamental and
basic decision of this Court is Hanumant v.
State of Madhya Pradesh. This case has
been uniformly followed and applied by
this Court in a large number of later
decisions up-to-date, for instance, the cases
of Tufail (alias) Simmi v. State of Uttar
Pradesh
and Ramgopal
v.
State
of
Maharashtra. It may be useful to extract
what Mahajan, J. has laid down in
Hanumant case:

"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 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."

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
8 All. Baru Vs. State of U.P.
37
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 v. State
of Maharashtra where the observations
were made: [SCC para 19, p. 807: SCC
(Cri) p. 1047] "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.

154. These five golden principles,
if we may say so, constitute the panchsheel
of the proof of a case based on
circumstantial evidence."

13. In this case, motive is not
proved by the prosecution. Recovery of
so called weapon i.e. iron rod is also very
doubtful and makes the prosecution case
highly
suspicious.
Hence,
chain
of
circumstances is not complete in a way
which could point out that the offence is
committed by the appellant only and none
else.

14. Moreover, learned trial court has
also stated that the so called eye-witness,
namely, PW1 and PW2 had turned
hostile. Hence, in such a situation the
recovery of iron rods on the pointing out
of the accused persons lost importance.
We have failed to understand if the trial
court has disbelieved the recovery of iron
rods on the pointing out of the accused
persons, it has also broken the chain of
circumstances because the prosecution
based its case on the fact that the three
accused persons inflicted blows to the
deceased by iron rods. Learned trial court
has committed gross error and illegality
by convicting the Baru on the same set of
evidence on which the other accused
persons were acquitted. The case of the
prosecution is shattered by the eyewitnesses PW1 and PW2 with regard to
all the accused persons. Hence, it cannot
be altogether ignored by us that the other
co-accused persons, with the similar role
on the basis of the same evidence, have
been acquitted from the charges of
murder. The other witnesses are formal
witnesses and their evidence is not
incriminating against the appellant.

15. For the reasons, as discussed
above, we are of the opinion that although
this is the case of direct evidence and the
case is not proved against the accusedappellant
by
the
evidence
led
by
prosecution and even if as we have
analysed the evidence from the angle from
circumstantial evidence also, we are of the
view that the chain of circumstances is not
at all completed to prove the charges
levelled against the accused-appellant.

16. In view of the above, we have no
other option but to reverse the conviction.
The accused is acquitted. Judgment and
order passed by the learned Sessions Judge
is set aside. This appeal is allowed. As he
has been already enlarged on bail, he need
38 INDIAN LAW REPORTS ALLAHABAD SERIES
not surrender and if the fine has been paid
by him, the State shall refund the amount of
fine.

17. Record and proceedings be sent
back to the Court below forthwith.

18. This Court is thankful to both the
learned Advocates for ably assisting the
Court.
----------
(2022) 8 ILRA 38
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 4470 of 2013

Nanak Chand Gautam ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rahul Chaturvedi, Sri Jitendra Kumar, Sri
Prasoon Tomar

Counsel for the Respondents:
Govt. Advocate, Sri Suresh Chandra Pandey

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 256 & 302 -
Complainant died in a complaint case filed
u/s 138 N.I. Act - Effect - While legal
heirs
of
the
complainant
sought
permission u/s 302 to continue the
prosecution,
the
accused
moved
application
u/s
256
to
dismiss
the
complaint - Application u/s 256 was
rejected and permission u/s 302 was
allowed - Validity challenged - In case of
death of the complainant, the legal heirs
of the complainant could be allowed to
continue
the
prosecution
and
the
complaint cannot be dismissed on the
aforesaid ground - Chand Devi Daga's
case relied upon - High Court found no
error in the impugned order of the trial
court in rejecting the application u/s 256
Cr.P.C. and allowing the legal heirs of the
complainant to prosecute the complaint
under Section 138 N.I. Act. (Para 13 and
14)
Application dismissed. (E-1)
Cases relied on :-
1. Ashwin Nanubhal Vyas Vs St. of Mah.; AIR
1967 SC 983
2. Jimmy Jahangir Madan Vs Bolly Cariyappa
Hindley; (2004) 12 SCC 509
3. Balasaheb K. Thackeray & anr. Vs Venkat @
Babru; (2006) 5 SCC 530
4. Chand Devi Daga & ors. Vs Manju K.
Humatani & ors.; (2018) 1 SCC 71
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Prasoon Tomar, learned
counsel for the applicant, Mr. Suresh
Chandra Pandey, learned counsel for the
opposite party no.2 and Mr. Pankaj Kumar
Srivastava and Amit Singh Chauhan,
learned A.G.A for the State and perused the
material available on record.

2. The present application under
Section 482 Cr.P.C. has been filed to quash
the impugned order dated 08.11.2012 by
which the learned Magistrate has rejected
the application No.115B U/s 256 Cr.P.C. in
Criminal Case No.1336/IX/2008 (Radhey
Shyam Agarwal Vs. Nanak Chand Gautam)
U/s 138 N.I. Act, Police Station-Kotwali,
Mathura, pending in the Court of VIth
Judicial Magistrate, Mathura.

3. The records go to show that a
complaint under Section 138 N.I. Act was
filed by Late Radhey Shyam Agrawal