# Bilendra @ Virendra & Anr. (In Jail) v. State of U.P. 18 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 7 ILRA 17
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-03
- **Case number:** Criminal Appeal No. 1848 of 2001
- **Bench:** B. Amit Sthalekar, Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bilendra-virendra-anr-in-jail-v-state-of-u-p-18-indian-law-reports-allahabad-45866
- **Pages:** 9

## Headnote

Criminal Law-Code of Criminal Procedure,
1973 - Section 154-First Information Report-
Evidentiary Value- FIR in a criminal case and
particularly in a murder case is an extremely
vital and valuable piece of evidence for the
purpose of corroborating/ appreciating the oral
evidence led at the trial. Oral testimony of PW1
Bholu with regard to witnessing the appellant at
the time of incident is not corroborated with the
FIR-Testimony of P.W.1 Bholu does not inspire
confidence- In FIR PW2 has shown Bhura as an
accused and during investigation finding his
involvement false casts a serious doubt upon
him to be a trustworthy witness and that he
launched the prosecution with true facts as the
incident had happened. It indicates that actually
he did not see the incident and he is not the
witness of the incident.

F.I.R itself has no evidentiary value but the
same is vital for the purpose of corroborating
the oral evidence led during trial and if the F.I.R
fails to corroborate the oral testimony and also
contradicts the same then such oral evidence
cannot inspire confidence of the Court.

Criminal
Law
-Indian
Penal
Code,
1860-
Section
34-
Acts
done
in
furtherance of common intention- In case of
role of catching hold and exhortation-
allegations of catching hold of a victim or of
exhortation are invariably made in an
attempt
to
falsely
implicate
as
many
persons as possible from the other side-No
iota of evidence against the appellant for
sharing common intention with the main
accused for committing the offence.

Invariably, in cases where the medical evidence
does not support the ocular evidence, the FIR
fails to corroborate the oral testimony then
persons from the accused side are falsely roped
in by assigning the role of exhortation or
catching hold of the victim.

Evidence Law- Indian Evidence Act, 1872
- Section 101- Burden of Proof- Suspicion can
not take the place of legal proof and burden of
proof squarely rests on the prosecution and the
general burden never shifts.

It is settled law that that the burden of proving
it's case beyond all reasonable doubt rests on
the prosecution and suspicion, howsoever
strong, cannot take place of proof.
(Para 18, 19, 20, 25, 29)

Criminal Appeal allowed. (E-3)

Case law relied upon/ Discussed:-

## Text

7 All. Bilendra @ Virendra & Anr. Vs. State of U.P.
17
also by preventing the guilty party from
repeating the offence; it is also designed to
reform the offender and reclaim him as a
law abiding citizen for the good of the
society as a whole.

 Reformatory,
deterrent
and
punitive aspects of punishment thus play
their due part in judicial thinking while
determining this question. In modern
civilized societies, however, reformatory
aspect is being given somewhat greater
importance. Too lenient as well as too
harsh
sentences
both
lose
their
efficaciousness. One does not deter and the
other may frustrate thereby making the
offender a hardened criminal. In the present
case, after weighing the considerations
already noticed by us and the fact that to
send the appellant back to jail now after 7
years of the annoy and harassment of these
proceedings when he is also going to lose
his job and to earn a living for himself and
for his family members and for those
dependent on him, we feel that it would
meet the ends of justice if we reduce the
sentence of imprisonment to that already
undergone but increase the sentence of fine
from Rs- 200/- to Rs. 400/-. Period of
imprisonment in case of default will remain
the same."

16. In view of the facts and
circumstances of the case and as substantial
period already has undergone in prison by
the appellant in this case and the fact that
the appellant is an old person; he is
suffering from age related ailments; that
there is no bread earner in the family of the
appellant and that he has realized the
mistake
committed
by
him
and
is
remorseful of his conduct to the society to
which he belongs and now he wants to
transform himself, I am of the considered
opinion that he should be given a chance to
reform himself. This Court considers that
ends of justice would be served, if the
sentence of appellant is reduced to the
period already undergone by the appellant
in this case and the amount of fine be
enhanced to Rs. 20,000/-.

17. Accused-appellant is directed to
deposit the fine of Rs. 20,000/- before learned
lower court within six months from the date
of passing of the judgement, which shall be
paid to the injured as compensation. In case
the
accused-appellant
fails
to
deposit
compensation within stipulated time, the
Court below shall proceed against him in the
light of judgment of the Hon'ble Apex Court
reported in Kumaran vs. State of Kerala and
another (2017) 7 SCC 471.

18. Appeal is partly allowed in the
above terms.

19. The accused is in jail. He shall be
released from jail forthwith, if he is not
wanted in any other case.

20. Copy of this order be transmitted to
the concerned lower court for compliance.

21. Office is also directed to send back
the record of the trial court immediately.
----------
(2020)07ILR A17
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE ALI ZAMIN, J.

Criminal Appeal No. 1848 of 2001

Bilendra @ Virendra & Anr.
 ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party
18 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri Onkar Singh, Sri Irfan Chaudhary, Sri
Swetashwa Agarwal

Counsel for the Opposite Party:
A.G.A.

Criminal Law-Code of Criminal Procedure,
1973 - Section 154-First Information Report-
Evidentiary Value- FIR in a criminal case and
particularly in a murder case is an extremely
vital and valuable piece of evidence for the
purpose of corroborating/ appreciating the oral
evidence led at the trial. Oral testimony of PW1
Bholu with regard to witnessing the appellant at
the time of incident is not corroborated with the
FIR-Testimony of P.W.1 Bholu does not inspire
confidence- In FIR PW2 has shown Bhura as an
accused and during investigation finding his
involvement false casts a serious doubt upon
him to be a trustworthy witness and that he
launched the prosecution with true facts as the
incident had happened. It indicates that actually
he did not see the incident and he is not the
witness of the incident.

F.I.R itself has no evidentiary value but the
same is vital for the purpose of corroborating
the oral evidence led during trial and if the F.I.R
fails to corroborate the oral testimony and also
contradicts the same then such oral evidence
cannot inspire confidence of the Court.

Criminal
Law
-Indian
Penal
Code,
1860-
Section
34-
Acts
done
in
furtherance of common intention- In case of
role of catching hold and exhortation-
allegations of catching hold of a victim or of
exhortation are invariably made in an
attempt
to
falsely
implicate
as
many
persons as possible from the other side-No
iota of evidence against the appellant for
sharing common intention with the main
accused for committing the offence.

Invariably, in cases where the medical evidence
does not support the ocular evidence, the FIR
fails to corroborate the oral testimony then
persons from the accused side are falsely roped
in by assigning the role of exhortation or
catching hold of the victim.

Evidence Law- Indian Evidence Act, 1872
- Section 101- Burden of Proof- Suspicion can
not take the place of legal proof and burden of
proof squarely rests on the prosecution and the
general burden never shifts.

It is settled law that that the burden of proving
it's case beyond all reasonable doubt rests on
the prosecution and suspicion, howsoever
strong, cannot take place of proof.
(Para 18, 19, 20, 25, 29)

Criminal Appeal allowed. (E-3)

Case law relied upon/ Discussed:-

1. Thulia Kali Vs St. of T.N (1972) 3 SCC 393

2. Mehraj Singh Vs St. of U.P. (1994) 5 SCC 188

3. Balwant Bhai B. Patel Vs St. of Guj. & anr.
(2009) 10 SCC 684

4. Digambar Vaishno & anr. Vs St. of Chattis.
(2019) 4 SCC 522

(Delivered by Hon'ble Ali Zamin, J.)

1. Heard Sri Irfan Chaudhary, learned
counsel for the appellants and learned
A.G.A for the State.

2. This appeal has been preferred
being aggrieved from the judgment and
order dated 08.06.2001 passed in Session
Trial No. 873/1998, arising out of Case
Crime No. 104 of 1994 (State vs. Bilendra
@ Virendra and another) by which learned
Additional Sessions Judge, (Court No. 3),
Muzaffarnagar
has
convicted
the
appellants, under Section 302 I.P.C. read
with Section 34 I.P.C. and has sentenced
them to undergo life imprisonment.

3. The appellant no. 1 Bilendra @
Virendra died during the pendency of the
appeal and appeal against him has been
dismissed as abated vide order date
7 All. Bilendra @ Virendra & Anr. Vs. State of U.P.
19
03.04.2019. Hence, this appeal is confined
only for the appellant No. 2 Sukhpal.

4. According to prosecution version
Bijendra, brother of the informant Rajendra
had gone to irrigate his field in the evening
of
25/26.05.1994.
In
the
night
the
informant and his father Bholu reached the
tube-well carrying dinner of Bijendra.
Bijendra was sleeping on a cot in front of
the tube-well. Informant and his father at
about 3:00 A.M. in the night had gone to
look after the irrigation in the adjoining
field, where they heard a sound of fire at
the tube-well, upon which they rushed to
the tube well and saw that Bilendra @
Virendra and Bhura sons of Ramsewak and
Sukhpal son of Nirmal were standing close
to the cot of the deceased having countrymade pistol in their hands. In the mean time
Tara Chand son of Behu Gujar also came
from the adjoining tube-well. On their
exhortation Bilendra fired a shot on the
chest of Bijendra from a close range and all
the three accused fled away towards west
side. They saw very well and identified
them, in the torch and moon light.
Regarding daul (Medh, plot boundary),
deceased had an altercation with Bijendra,
Bhura and Sukhpal 8-10 days before the
incident.

On the basis of written report Ext
Ka-1 Case Crime No. 104 of 1994, under
Section 302 I.P.C against the accusedappellants and another Bhura under chik
F.I.R. Ext. Ka-12 was registered on
26.5.1994 at 5.30 A.M. Investigation of the
case was entrusted to S.H.O. Ashok Kumar
Singh
(P.W.4).
Investigating
Officer
reached the spot and got prepared inquest
memo Ext. Ka-2 and relevant papers i.e
letter to C.M.O. Ext. Ka-3, letter to R.I.
Ext. Ka-4, photo lash Ext. Ka-5, chalan
lash Ext. Ka-6 by S.I. P.M. Kashyap, in his
presence and thereafter, dispatched the
dead body for post mortem.

5. Dr. V.K. Shukla (P.W.3) conducted
autopsy on the dead body at 4.50 P.M. on
26.5.1994 and prepared a report (Ext. Ka2A). According to the postmortem report
following injuries were found on the dead
body:-

1. Gun shot wound of entry 1.5
cm x 1 cm x cavity deep in front of chest
left side 6.5cm from nipple in 11. O'clock
position blackening present in an area of 6
cm x 5 cm around the wound.

2. Gun shot wound of exit 3 cm x
2 cm on the back of chest right side
scapular region.

In internal examination 2nd and
3rd ribs were found fractured, both lungs
were lacerated. In opinion of the doctor
cause of death of the deceased was found
shock and haemorrhage as a result of ante
mortem injuries and death was possible at
3.00 A.M. in the morning of 25/26.5.1994.

6. Investigating Officer recorded the
statement of complainant Rajendra, Bholu
and other witnesses, inspected the place of
occurrence and prepared site plan Ext. Ka7. He collected the blood stained and plain
earth from the place of occurrence and
prepared recovery memo Ext. Ka-8. He
also took into possession the torch from
which incident was seen by the witnesses
and prepared memo Ext Ka-10. The
woollen sheet (chadar) etc. were also taken
into possession and memo Ext.Ka-11 was
prepared.
After
completing
the
investigation, charge sheet (Ext. Ka-13),
under Section 302 I.P.C. was filed against
the accused-appellants before the court of
C.J.M., Muzaffarnagar.
20 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Since offence u/s 302 IPC is
exclusively triable by the court of Sessions
therefore, learned C.J.M., Muzafarnagar
committed accused to the court of sessions
for trial where Case Crime No. 104 of
1994, under Section 302 I.P.C. was
registered as Session Trial No. 873 of 1998.
Learned Sessions judge framed charge
against
the
appellants-accused
under
Section 302 I.P.C. read with Section 34
I.P.C., who denied the charge and claimed
trial. Thereafter learned Sessions Judge
made over the case for trial to the court of
Additional Sessions Judge court No 3,
Muzaffarnagar.

8. Prosecution to prove the charge against
the appellants-accused produced four witnesses.
P.W.1 Bholu and P.W.2 Rajendra informant are
witnesses of fact. P.W.3 Dr. V.K. Shukla
conducted postmortem and P.W.4 Ashok
Kumar Singh Investigating Officer are the
formal witnesses of the case. After examination
of prosecution witnesses, statements of the
appellants-accused were recorded under Section
313 Cr.P.C. In his statement appellant-accused
Sukhpal has stated that due to enmity the case
proceeded against him. He has further stated
that deceased Bijendra was son of his elder
father. Neither his land was adjoining to the
land of Bijendra nor was there any dispute with
him, he had cordial relation with the family of
Bilendra, perhaps due to this reason he has been
implicated in the present case. The appellantsaccused led no evidence in their defence.

9. After hearing the parties and
perusal of the record, learned Additional
Sessions
Judge,
(Court
No.
3),
Muzaffarnagar
passed
the
impugned
judgment and order, hence this appeal.

10. Learned counsel for the appellant
submits that according to prosecution
version appellant Sukhpal was present at
the time of incident along with the main
accused Bilendra having country-made
pistol in his hand. Accused Bilendra, Bhura
and Sukhpal were named in the FIR. Role
of causing injury to the deceased has been
assigned to accused Bilendra. As per
prosecution and postmortem report a single
fire arm injury was caused to the deceased.
At the time of the incident accused Bhura
was in jail and Investigating Officer has not
charge sheeted Bhura finding him in jail at
the time of incident. Appellant had no
dispute with the deceased Bijendra nor he
has any field adjoining to the field of the
deceased. Appellant accused had cordial
relation with the family members of
accused Bilendra and on the basis of
suspicion he has been implicated in the
case. Evidence of PW1 Bholu and PW2
Rajendra, the informant, indicate that they
have not witnessed the incident and learned
court below without proper appreciation of
evidence has convicted and sentenced him.

11. On the other hand learned AGA
for the respondent state submits that from
the evidence adduced by the prosecution
charge
is
fully
proved
and
learned
Additional
Sessions
Judge
properly
appreciating the evidence has rightly
convicted and sentenced him. Therefore, no
interference is required by this court and
appeal is liable to be dismissed.

12. From the evidence, it is evident
that Bijendra died of homicidal violence. It
is evident from the medical evidence
adduced in the case. PW3 Dr V K Shukla
has conducted postmortem and prepared
report Ext K-2A, according to which a gun
shot wound of entry on left chest and it's
exit wound on back of right chest have
been found. In internal examination 2nd
and 3rd ribs have been found fractured and
both lungs were lacerated. Cause of death
7 All. Bilendra @ Virendra & Anr. Vs. State of U.P.
21
was shock and haemorrhage as result of
antemortem injuries. From the above, it is
clear that Bijendra died due to injury
sustained by him.

13. As per prosecution case appellantaccused was present at the time of incident
having country-made pistol in his hand,
when co-accused Bilendra fired a shot over
the deceased Bijendra and after the incident
he also fled away along with him.

14. In this appeal the only question
for our consideration is whether from the
evidence led by prosecution charge against
appellant
for
committing
murder
of
deceased Bijendra with common intention
of co-accused Bilendra is proved and trial
court properly appreciating the evidence on
record has rightly convicted and sentenced
him.

15. As per FIR Ext Ka -12 in the
intervening night of 25/26.5.1994 deceased
was sleeping in front of the tube well on a
cot and at about 3.00 AM in the night, PW1
Bholu and PW2 Rajendra had gone to look
after irrigation of adjoining field, at that
time they heard a sound of fire at the tube
well whereupon they rushed to the tube
well and saw that Bilendra @Virendra,
Bhura and Sukhpal were standing close to
the cot of the deceased having country
made pistol in their hand. In the meantime
Tara Chand also came there. On their
exhortation Bilendra fired a shot which hit
the chest of the deceased Bijendra and all
the accused fled away towards west side.
The witnesses saw very well and identified
the accused in the torch and moonlight.

16. Before adverting to the evidences,
it will be apposite to refer the law laid
down by Hon'ble Supreme Court regarding
evidentiary value of F.I.R.

17. In para 12 of the judgment in the
case of Thulia Kali v/s State of Tamil
Naidu (1972) 3 SCC 393, Hon'ble
Supreme Court has held as under :

"12...First information report in a
criminal case is an extremely vital and
valuable piece of evidence for the purpose
of corroborating the oral evidence adduced
at the trial. The importance of the above
report can hardly be overestimated from
the standpoint of the accused. The object of
insisting upon prompt lodging of the report
to the police in respect of commission of an
offence is to obtain early information
regarding the circumstances in which the
crime was committed, the names of the
actual culprits and the part played by them
as well as name of eye witnesses present at
the scene of occurrence."

Again in Mehraj Singh v/s State
of U.P. (1994) 5 SCC 188, in para 12 of
the judgment Hon'ble Supreme Court has
considered regarding evidentiary value of
FIR of which relevant part for appreciation
of present case is referred as under:

"12. FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose
of appreciating the evidence led at the trial.
The object of insisting upon prompt lodging
of the FIR is to obtain the earliest
information regarding the circumstance in
which the crime was committed, including
the names of the actual culprits and the
parts played by them, the weapons, if any,
used, as also the name of the eyewitnesses,
if any."

18. From the law laid down by
Hon'ble Supreme Court in the above
referred cases, it is well settled that FIR in
a criminal case and particularly in a murder
22 INDIAN LAW REPORTS ALLAHABAD SERIES
case is an extremely vital and valuable
piece of evidence for the purpose of
corroborating/
appreciating
the
oral
evidence led at the trial.

19. PW1 Bholu in cross examination
has stated that after hearing sound of fire
son and father, both rushed to the tube well.
When they reached the tube well Bijendra
was not alive. He has further stated that
even he did not see him wriggling. He saw
him in a dead condition. He has clearly
stated that when they arrived at the tube
well the three accused were fleeing towards
west side. While as per FIR hearing sound
of fire PW1 Bholu along with his son PW2
Rajendra reached the tube well, saw the
appellant Sukhpal and other accused close
to the cot of the deceased very well and
identified them in the torch and moon light
and
on
their
exhortation
co-accused
Bilendra fired a shot on the chest of
deceased Bijendra. If really this witness
was present on the spot at the time of
incident then such contradiction would not
have crept. Thus, oral testimony of PW1
Bholu with regard to witnessing the
appellant at the time of incident is not
corroborated with the FIR. In crossexamination he has clearly stated that he
saw the accused fleeing from a distance of
50 to 100 meter. As per spot map Ext. Ka-7
the witnesses have been shown at place B
which is towards east side of the place of
incidence and accused persons have been
shown fleeing towards west side from the
place of the incidence. According to FIR
also after incident accused fled towards
west side. Thus, with regard to fleeing of
accused towards west side prosecution
evidence is consistent. In view of the
evidence that after the incident accused fled
towards west side and at that time
witnesses were towards east side from the
accused, in that situation on witnessing
only back of accused will be seen and
witnessing back in the night from a
distance of 50 to 100 meter, accused cannot
be identified. This view is fortified from
the fact that in FIR including the appellants
one Bhura was also named but during
investigation his involvement was found
false as he was in jail at the time of incident
and he has not been charge-sheeted.

20. Thus, keeping in view, the law
laid down by Hon'ble Supreme Court in the
cases of Thulia Kali v/s State of Tamil
Naidu and Mehraj Singh v/s State of
U.P. (supra), on consideration of the
evidence available on record as discussed
above we find that testimony of P.W.1
Bholu does not inspire confidence that he
saw the appellant-accused at the time of
incident.

21. P.W.2 Rajendra is the informant
and alleged eye witness of the incident. In
cross examination he has stated that name
of Bhura is clearly mentioned in the report
which he himself has written, no other
person has written it. He has also stated that
he did not see Bhura on the spot by face but
saw his back who was appearing like
Bhura, third person was appearing like
Bhura. He has further stated that before
today this fact was not mentioned in the
report nor disclosed to the Investigating
Officer, while as per FIR hearing sound of
fire he reached the tube well, saw Bilendra,
Bhura and Sukhpal very well and identified
them in the torch and moonlight as well as
on their exhortation Bilendra fired the shot
which hit the chest of deceased Bijendra.
Thus, his oral testimony with regard to
witnessing Bhura is contradictory to the
FIR. If P.W.2 Rajendra was present, saw
and identified the accused persons then he
would not have named Bhura whose
involvement has been found false during
7 All. Bilendra @ Virendra & Anr. Vs. State of U.P.
23
investigation. It appears that when during
investigation involvement of Bhura was
found false as he was in jail at the time of
incident then with regard to witnessing
Bhura he has changed his stand by saying
that the third person was looking like Bhura
so as to justify himself to be eye-witness
for the remaining accused. In FIR showing
Bhura
as
an
accused
and
during
investigation finding his involvement false
casts a serious doubt upon him to be a
trustworthy witness and that he launched
the prosecution with true facts as the
incident had happened. It indicates that
actually he did not see the incident and he
is not the witness of the incident.

22. There is another aspect also in the
case, according to FIR at the time of
incident the witnesses i.e. Rajendra and
Bholu were looking after irrigation in the
adjoining field and hearing the sound of
fire they rushed to the tube-well and saw
that Bilendra @Virendra, Bhura and
Sukhpal were standing close to the cot of
the deceased having country made pistol in
their hand. On their exhortation Bilendra
fired a shot on the chest of the deceased
Bijendra. As per spot map Ext. Ka-7 at the
time of first fire they were at a distance of
54 steps, naturally in covering the distance
of 54 steps some time will be spent. If
during odd hours of night accused persons
came for committing murder and that too in
agricultural field certainly by firing in the
air they will not invite attention of other
persons and wait for coming of the persons
of the locality to come and see the incident.
It also does not appear natural that when a
fire is made close to a sleeping person he
will not awake hearing the sound of fire
and try to save himself and persons at a
distance of 54 steps hearing the sound will
come and exhort the accused then they will
cause the incident. For the reasons
discussed above also a doubt is created in
the mind as to whether the witnesses saw
appellant-accused at the time of incident.

23.

P.W.2
Rajendra
in
cross
examination has also stated that the second
fire on his brother was made when we both
were 7-8 steps away from the cot. At that
time assailants had not fled towards west
side, while P.W.1 Bholu has stated that he
saw the assailants fleeing towards west
from a distance of 50-100 meters. They
entered into a sugarcane field thereafter
they were not seen. Thus, the place, where
assailants were seen, the evidence of P.W.1
Bholu and P.W.2 Rajendra is not consistent
while both had reached together after
hearing sound of fire. If the witnesses were
present at the time of incident then such
contradiction would not have crept in their
statement, which further creates a doubt as
to them being witness of the incident.

24. Thus, keeping in view, the law laid
down by Hon'ble Supreme Court in the cases
of Thulia Kali v/s State of Tamil Naidu
and Mehraj Singh v/s State of U.P.
(supra), on consideration of the evidence
available on record, as discussed above we
find that testimony of PW2 also does not
inspire confidence that he saw the incident as
well as appellant-accused at the time of
incident.

25. It is the prosecution version that
accused Bilendra fired a shot on the chest of
deceased and at that time appellant was
present there. On going through the evidence
on record we find that there is no iota of
evidence against the appellant with regard to
sharing common intention with the coaccused Bilendra in causing the incident.

26. Even in case of role of catching
hold and exhortation Hon'ble Supreme
24 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in the case of Balwant Bhai B. Patel
vs State of Gujrat & Another (2009) 10
SCC 684, in para 5 of the judgement has
held as under :

"...We are also not unmindful of
the fact that allegations of catching hold of
an attack victim or of an exhortation are
invariably made when the number of
injuries on the injured party do not corelate to the number of accused or in the
alternative in an attempt to rope in as many
persons as possible from the other side."

27. As per FIR 8-10 days before the
incident an altercation had taken place
between deceased Bijendra and accused
Bilendra, Bhura and Sukhpal which has
been supported by P.W.1 Bholu and P.W.2
Rajendra, the informant through their oral
testimony. It appears that on the basis of
suspicion because altercation had taken
place 8-10 days before the incident
between deceased and accused persons,
appellant has been implicated in the case.

28. In Digambar Vaishno &
Another vs State of Chattisgarh (2019) 4
SCC 522, Hon'ble Supreme Court in para
15 of it's judgment has held as under:

"14. One of the fundamental
principles of criminal jurisprudence is
undeniably that the burden of proof
squarely rests on the prosecution and that
the general burden never shifts. There can
be no conviction on the basis of surmises
and conjectures or suspicion howsoever
grave it may be. Strong suspicion, strong
coincidences and grave doubt cannot take
the place of legal proof. The onus of
prosecution
can't
be
discharged
by
referring to very strong suspicion and
existence of highly suspicious factors to
inculpate the accused nor falsity of defence
could take the place of proof which the
prosecution has to establish in order to
succeed, though a false plea by the defence
at best, be considered as an additional
circumstance
if
other
circumstances
unfailingly point to the guilt."

29. In view of the opinion of the
Hon'ble Supreme Court in the above
referred case, it is a settled principle of law
that suspicion can not take the place of
legal proof and burden of proof squarely
rests on the prosecution and the general
burden never shifts.

30. Considering the facts of the case,
attending circumstances, evidence available
on record as discussed above and law laid
down by Hon'ble Supreme Court, we come
to a conclusion that the evidence of P.W.1
Bholu and P.W.2 Rajendra, father and
brother of the deceased respectively, is not
inspiring
confidence
with
regard
to
witnessing the appellant-accused at the
time of incident. There is no iota of
evidence against the appellant for sharing
common intention with the main accused
Bilendra for committing the offence.
Prosecution has failed to prove the charge
against appellant. Finding of learned trial
court is not based on proper evaluation of
evidence on record as such finding of trial
court is perverse. Therefore, judgment and
order passed by learned trial court is not
sustainable and is liable to set aside.

31. Appeal is allowed. The impugned
judgment and order passed by learned trial
court is set aside. Consequently, appellant
is acquitted of the charge under Section
302/34 I.P.C. Appellant is on bail, his bail
bond is discharged. Appellant is directed to
file personal bond and two sureties to the
satisfaction
of
court
concerned
in
compliance of Section 437-A Cr.P.C.
7 All. Nazeer Vs. State of U.P.
25

32. Registry is directed to send a copy
of this order and original record to the court
concerned for compliance.
----------
(2020)07ILR A25
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.06.2020

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 1886 of 2017

Nazeer ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Anjali Dubey, Rajiv Mishra, Rehan Ahamad
Siddiqui, Soniya Mishra

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860-
Section 375/ 376, POCSO Act 2012-
Section 3 & 4 - Rape- Consent - If sexual
intercourse is committed by any person with any
woman who is under eighteen years of age
even with her consent, the prosecution has to
prove only the sexual intercourse and such
intercourse shall be treated as rape and if such
woman is above eighteen years of age, the
prosecution has to prove that such sexual
intercourse was committed without free consent
or will of that woman as required in section 375
IPC.

Where sexual intercourse is committed with a
minor even with her consent, the same will
constitute the offence of rape and if sexual
intercourse is committed with a major without
her consent then that too will amount to an
offence of rape.

Civil Law - Juvenile Justice (Care and
Protection of Children) Rules, 2007 - Rule
12- Determination of victim's age- Neither Code
nor IPC or POCSO Act 2012 provides procedure
for determination of victim's age. Rule 12 of the
Juvenile
Justice
(Care
and
Protection
of
Children) Rules, 2007 (hereinafter referred to as
the '2007 Rules') framed under Section 67 of
the Juvenile Justice (Care and Protection of
Children) Act 2000 provides procedure for
determination of juvenile's age.

Since neither the IPC, the Cr.Pc or POCSO Act
provide for the determination of age of a victim,
hence the same can be determined as per Rule
12 of the Juvenile Justice (Care and Protection
of Children) Rules, 2007.

Civil Law - Juvenile Justice (Care and
Protection of Children) Rules, 2007 - Oral
evidence
or
any
other
document
for
determination of age is impermissible - Trial
Court
while
discarding
medical
evidence
produced by the prosecution, has relied on the
ocular testimony of (P.W.-1) and of victim
(P.W.-2) who had stated that victim's age, at
the time of occurrence was about to sixteen
years and also relied on the educational
document (photocopy of Mark sheet, issued by
Principal, Junior High School), collected by
Investigating Officer-Thus document produced
by the prosecution is neither proved nor
relevant to prove the DoB of the victim.
Preparation of this document one day prior to
the
recovery
further
creates
doubts
in
prosecution story. The prosecution has failed to
produce a document, as required by 2007 Rules
(supra) and also in view of law laid down by
Supreme Court in Jarnail Singh (supra) and
Rajak Mohammad (supra) to prove the DoB of
victim.

The provisions of Rule 12 of the 2007 Rules are
mandatory and have to be strictly complied with
for the purpose of determination of age of the
victim and neither any oral evidence or any
other document, not proved in accordance with
law, can be relied for determination of age.
Hence, no reliance can be placed upon the
photocopy of the mark sheet of class eight of
the victim produced by the investigating officer
which was not proved in accordance with law.

Civil Law - Juvenile Justice (Care and
Protection of Children) Rules, 2007 -