# Brijesh @ Bhola v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 192
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-21
- **Case number:** Criminal Misc. Writ Petition No. 7632 of 2022
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-bhola-v-state-of-u-p-ors-47703
- **Pages:** 3

## Headnote

A. Criminal Law-Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Sections 302/34 - Arms Act,1959 -
Section 25 -Challenge to-Conviction-death
of deceased was caused with fire arm-FIR
ante-time-no motive-PW-1 & PW-2 were
relatives,
interested
witnesses,
their
testimony
was
full
of
contradictionsPresence of PW-1 is not mentioned in the
FIR-PW-2 statement was not recorded by
the I.O. u/s 161 Cr.P.C. but she was
introduced by the prosecution for the first
time before the trial court so her testimony
cannot be relied upon-Witnesses those were
named in the FIR had not been examined by
the
prosecution-Hence,
the
whole
prosecution story becomes doubtful and the
benefit of doubt is to be extended to the
accused appellants-Thus, the prosecution
could not proved its case beyond reasonable
doubt-Appellants
are
entitled
for
acquittal.(Para 1 to 51)

B. As a general rule, the Court can and
may act on the testimony of a single eye
witness provided he is wholly reliable.
There is no legal impediment in convicting
a person on the testimony of a solitary
witness. That is the logic of Section 134 of
the Evidence Act, 1872. It is observed that
in first two category there may be no
difficulty in accepting or discarding the
testi

## Text

192 INDIAN LAW REPORTS ALLAHABAD SERIES
home and later on, her dead body was
recovered.

29. Since the dead body of Rani was
not recovered from the house of appellant,
Rajendra
Sharma,
but
according
to
prosecution, from mustard field in village-
Bhadesi, which is situated about 2-4 kms.
away from Vikasnagar where the appellant
was living with deceased Rani, the principle
of house murder as propounded by Hon'ble
Supreme Court in aforesaid case will not be
applicable and in the absence of any
convincing explanation by the appellant, no
presumption can be drawn that he committed
the murder of deceased Rani. The provisions
of Section 106 of the Indian Evidence Act
becomes appealable only after prosecution
has discharged its initial duty of proving that
the offence was committed by the accused
(here appellant) but since the prosecution has
not discharged its duty of proving the charge
against the accused by legal, convincing and
clinching evidence, there is no burden on
appellant, Rajendra Sharma, to explain out
the circumstances under which deceased Rani
went missing from his house and later her
dead body was recovered from mustard field
of village- Bhadesi.

30. Taking the cumulative effect of the
evidence, we find it difficult to uphold the
conviction of the appellant, Rajendra Sharma.
He is entitled to get the benefit of doubt.

31. Accordingly, the appeal succeeds
and is allowed and the impugned judgement
is set-aside.

32. The appellant, Rajendra Sharma, is
in jail. He be set free forthwith, if not
required in any other case.

33. The appellant, Rajendra Sharma,
is further directed to file personal bond and
two sureties each in the like amount to the
satisfaction of the court concerned in
compliance of Section 437-A of the Code
of Criminal Procedure, 1973.

34. Let a copy of this judgment and
the original record be transmitted to the
trial
court
concerned
forthwith
for
necessary information and compliance.
----------
(2022) 10 ILRA 192
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.06.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Misc. Writ Petition No. 7632 of 2022

Brijesh @ Bhola ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pankaj Goswami

Counsel for the Respondents:
G.A.

Criminal Law - Constitution of India,1950
- Article 226 - Criminal Procedure Code,
1973 - Section - 165(3) - Copy Right Act
(Amendment), 1957 - Sections 63 & 65, -
Trade Marks Act, 1999 - section - 103,
104, Indian Penal Code, 1860 - Sections
420, 468, 469, 481, 482, 483, 485, 486,
487
&
488:-
Criminal
Writ
Petition
-
challenging the FIR - Informant/respondent
alleged that petitioner has used the name of
Panchi Petha - which is denied by the petitioner
by stating that since he was Ex-manager of
respondent firm and running his own business
of petha dalmoth as such he was falsely
implicated
-
appreciation
of
documentary
evidence - court held that since prima facia case
is made out as such instant petition cannot be
10 All. Brijesh @ Bhola Vs. State of U.P. & Ors.
193
entertain - in the light of judgment of Hon'ble
Apex Court in matter of Arun Bhandari' Case
writ petition is devoid of merit liable to be
dismissed. (Para - 4)

Writ Petition Dismissed. (E-11)

List of Cases cited:

Arun Bhandari v. St. of U.P. & ors. (2013 SCC
vol. 2 )

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Gautam Chowdhary, J.)

1. Heard learned counsel for the
petitioner and learned A.G.A. for the
State.

2. By way of this petition, the
accused-petitioner prays for quashment of
the impugned first information report
dated 15.01.2022 registered in Case
Crime No.0028 of 2022 under Sections
420, 468, 469, 481, 482, 483, 485, 486,
487, 488 I.P.C., Section 63, 65 of Copy
Right
Act
(Amendment)
1957
and
Sections 103, 104 of Trade Mark Act,
1999, Police Station Tajganj, District
Agra and also for staying his arrest in
respect of the aforesaid first information
report.

3. Learned counsel for the petitioner
submits that neither there is infringement
of Copy Right (Amended) Act 1957 nor
Trade Marks Act, 1999 and due to
business rivalry, the respondent no.4 has
lodged the F.I.R. when in fact, the
petitioner has nowhere used the name of
Panchi Petha, which is the firm of the
respondent no.4. He further submits that
the learned Magistrate has allowed the
application under Section 156 (3) Cr.P.C.
which has resulted into lodgement of the
impugned F.I.R. He further argued that
the petitioner has been falsely implicated
on the ground that he is running a
business of Petha and Dalmoth in the
name and style of Petha Dalmoth
without using the trademark of Panchi
Petha. Learned counsel has next argued
that prior to running of aforesaid
business by the petitioner, the petitioner
was working as a Manager in the firm of
Panchi Petha since 2015 to 2020,
whereas the petitioner started his own
business after the lockdown in the
country. It is lastly argued that since the
petitioner was working as Manager in
the firm of Panchi Petha, thereafter
started his own business, due to which
the petitioner has been falsely implicated
in the present case.

4. We have perused the documentary
evidence. Panchi logo on the petitioner's
firm before the word "Petha" give us
impression that the firm is representing
"Panchi Petha", which is the firm of the
respondent no.4. This fact prima facie can
very well be ascertained with
the
photograph annexed at page 30 and 32 of
the paper book. Therefore, we cannot
entertain this petition, as it cannot be said
that no prima facie case is made out. The
exercise
of
extra-ordinary
writ
jurisdiction under Article 226 of the
Constitution of India cannot be exercised
against the petitioner.We fortified our
view in view of the judgement of Hon'ble
Apex Court in the matter of Arun
Bhandari Vs. State of U.P. and others
reported in 2013 (2) S.C.C.

5. In that view of the matter, the
present writ petition is devoid of merit
and is dismissed.
----------
194 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 10 ILRA 194
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 1419 of 2009
With
Criminal Appeal No. 1313 of 2009

Kripa Shanker Dubey ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.K. Singh Yadav, Sri Jitendra Singh, Sri
Manvendra Singh, Sri S.P. Srivastava

Counsel for the Respondent:
Govt. Advocate, Sri S.K. Srivastava

A. Criminal Law-Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Sections 302/34 - Arms Act,1959 -
Section 25 -Challenge to-Conviction-death
of deceased was caused with fire arm-FIR
ante-time-no motive-PW-1 & PW-2 were
relatives,
interested
witnesses,
their
testimony
was
full
of
contradictionsPresence of PW-1 is not mentioned in the
FIR-PW-2 statement was not recorded by
the I.O. u/s 161 Cr.P.C. but she was
introduced by the prosecution for the first
time before the trial court so her testimony
cannot be relied upon-Witnesses those were
named in the FIR had not been examined by
the
prosecution-Hence,
the
whole
prosecution story becomes doubtful and the
benefit of doubt is to be extended to the
accused appellants-Thus, the prosecution
could not proved its case beyond reasonable
doubt-Appellants
are
entitled
for
acquittal.(Para 1 to 51)

B. As a general rule, the Court can and
may act on the testimony of a single eye
witness provided he is wholly reliable.
There is no legal impediment in convicting
a person on the testimony of a solitary
witness. That is the logic of Section 134 of
the Evidence Act, 1872. It is observed that
in first two category there may be no
difficulty in accepting or discarding the
testimony of single witness. The difficulty
arises in the third category of cases. The
Court has to be circumspect and has to
look
for
corroboration
in
material
particulars by reliable testimony, direct or
circumstantial, before acting upon the
testimony of a single witness. (Para 42 to
44)

The appeals are allowed. (E-6)

List of Cases cited:

1. Ram Lakhan Singh & ors.. Vs St. of U.P
(1977) AIR SCC 1996

2. Piara Singh & ors.. Vs St. of Punj. (1977) AIR
SC 2274 (1977) 4 SCC 452
3. Darya Singh Vs St. of Punj.(1965) AIR SC
328

4. Rammi @ Rameshwar Vs St. of M.P. (1999) 8
SCC 649

5. Leela Ram (dead) thru Duli Chand Vs St. of
Har. & anr.. (1999) 9 SCC 525

6. Bihari Nath Goswami Vs Shiv Kumar Singh &
ors..(2004) 9 SCC 186

7. Vijay @ Chinee Vs St. of M.P. (2010) 8 SCC
191

8. Sampath Kumar Vs Inspr of Police, Krishnagiri
(2012) 4 SCC 124

9. Shyamal Ghosh Vs St. of W.B. (2012) 7 SCC
646

10. Mritunjoy Biswas Vs Pranab @ Kuti Biswas &
anr..(2013) 12 SCC 796

11. Vadivelu Dhevar Vs St. of Madras (1957)
AIR SC 614