# Hari Shankar v. State of U.P. & Ors

- **Citation:** (2020) 8 ILRA 499
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-24
- **Case number:** Application U/S 378 No. 15 of 2020
- **Bench:** Mrs. Sunita Agarwal, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-shankar-v-state-of-u-p-ors-46056
- **Pages:** 9

## Headnote

500 INDIAN LAW REPORTS ALLAHABAD SERIES
G.A.

Appeal against acquital order-u/s 395
and
397
IPC
-
Contradictions
in
statement
of
witnesses-as
to
chronology of events-involvement of
accused
persons-and
presence
of
witnesses at place of occurrence-if two
views possible-High Court should not
reverse the order of acquittal-Appeal
dismissed.

Held,
There
are
no
substantial
and
compelling reasons to reverse the order of
acquittal passed by the trial court. Thus, we
find no good ground to interfere in the finding
of fact returned by the court below in favour
of the accused persons. No case made out for
granting special leave to appeal against the
order of acquittal. (para 24)

Appeal dismissed. (E-9)

List of Cases cited:-

## Text

8 All. Hari Shankar Vs. State of U.P. & Ors.
499

15. Judicial officers can discharge
their judicial functions without fear or
favour, affection or ill will only if a
conducive environment is built around
them. For this it is essential to protect
judicial officers, from the menace of false
and frivolous complaints by disgruntled
litigants or motivated lawyers or interested
parties. No judicial officer can discharge her
judicial functions in accord with her
obligations to the constitution and the laws,
if she is under constant threat of roving
enquiries on the foot of vague allegations.
There is a noticeable proclivity to make
such vague and frivolous allegations against
judicial officers, by litigants and even
lawyers who are dissatisfied by adverse
verdicts.
Irresponsible
institution
or
unfettered prosecution of false and frivolous
complaints,
impedes
the
effective
functioning of the judicial system, and
undermines the administration of justice.

16. Such complaints paired with
litigation against the officers pose a
systemic threat to the independence of
the judiciary. Judicial officers have to be
secured against false and malafide
complaints by creating a system of
deterrence and penalties. To curb this
evil of false and frivolous complaints
effectively, it is imperative to create a
deterrent regime which may include
imposition of costs on the complainants.
This is apart from other processess
known to law, like drawing contempt
proceedings. In the absence of such
deterrent regime false and frivolous
complaints
would
be
made
with
impunity, the complainants would harbor
a sense of immunity and the judges
would become perpetually vulnerable.

17. In the facts of this case as found
earlier in the preceding part of the
judgment, the complaints against the
judicial officer do not disclose any act of
misconduct. Also as stated earlier, in case
he is aggrieved by the orders, the petitioner
can take recourse to remedies as per law.
Equally the malafide intent of the petitioner
who seems to be a disgruntled litigant
stands established. The complaint has put
the learned judge to untold harassment,
which has interfered in the faithful
discharge of her judicial duties. Her
reputation was sought to be tarnished. She
has been forced to privately engage a
counsel to defend her reputation. In these
facts this court feels that interest of justice
would be served by imposing costs
quantified at Rs. 10,000/- upon the
petitioner. The costs shall be recovered by
the Chief Judicial Magistrate, Moradabad
as arrears of land revenue and deposited
with the High Court Legal Services
Committee, Allahabad. A copy of this
order shall be provided to the Chief
Judicial Magistrate, Moradabad.

18. The petition is dismissed.
----------
(2020)08ILR A499
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.02.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DINESH PATHAK, J.

Application U/S 378 No. 15 of 2020

Hari Shankar ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri K.C. Tripathi, Sri M.S. Ansari

Counsel for the Opposite Parties:
500 INDIAN LAW REPORTS ALLAHABAD SERIES
G.A.

Appeal against acquital order-u/s 395
and
397
IPC
-
Contradictions
in
statement
of
witnesses-as
to
chronology of events-involvement of
accused
persons-and
presence
of
witnesses at place of occurrence-if two
views possible-High Court should not
reverse the order of acquittal-Appeal
dismissed.

Held,
There
are
no
substantial
and
compelling reasons to reverse the order of
acquittal passed by the trial court. Thus, we
find no good ground to interfere in the finding
of fact returned by the court below in favour
of the accused persons. No case made out for
granting special leave to appeal against the
order of acquittal. (para 24)

Appeal dismissed. (E-9)

List of Cases cited:-

1. St. of Karn. Vs. K. Gopalkrishna reported in
(2005) 9 SCC 291

2.Sudershan Kumar V. St. of Himachal
reported in (2014) 15 SCC 666

3.Dilawar Singh Vs. St. of Hary., (2015) 1 SCC
737

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Shri M.S.Ansari holding brief
of Shri K.C.Tripathi, learned counsel for the
applicant on leave to appeal.

2. Present criminal application for
special Leave to file Appeal under
Section
378(4)
Cr.P.C.,
has
been
preferred by the present applicant for
challenging the judgment and order dated
03.12.2019 passed by the Special Judge,
U.P.
Dacoity
Affected
Areas
Act/Additional Sessions Judge, Court
No. 4, Chitrakoot in Complaint No. 02 of
2016 (Hari Shankar vs. Jhandilal &
Others), acquitting all five accused
persons (respondents no.2 to 6) of the
charges under Sections 395 & 397 IPC.

3. By means of the present
application, the applicant is beseeching
for special leave to appeal arising out of
Complaint No. 02 of 2016 (Hari Shankar
vs. Jhandilal & Others) moved by Hari
Shankar, complainant/applicant herein,
against his brother Jhandilal (respondent
no.2) and three nephews namely Anantu
s/o
Jhandilal
(respondent
no.3),
Mahendra
s/o
Jhandilal
(respondent
no.4),
Uma
Shankar
s/o
Jhandilal
(respondent no.5) and brother's wife
namely,
Besaniya
w/o
Jhandilal
(respondent no.6) respectively, levelling
allegations that his brother is keeping
vulture eye over his landed property,
money and bank balance and to grab it,
often harass him and beaten him up many
times by hired goons and intending to kill
him. The complainant is aged about 75
years, having two wives and has adopted
one Prabhakar as his son.

4. On 26.05.2016 at about 8:00 p.m.
while he was inside the house with his
wives, all the accused persons have
latched the north door of his house and
set upon them with lethal arms, with
intention to kill them and tried to broke
the door with Axe to commit robbery.
When his family members raised alarm,
their neighbours namely Pappu s/o.
Siddha Gopal, Baleshwar s/o. Chunni Lal
and other persons came on the spot and
saw the incident. The applicant herein
along with his family members went to
the Police Station to inform about the
incident but they did not pay any heed to
his grievances. Thereafter, he moved
representation, through registered post, to
8 All. Hari Shankar Vs. State of U.P. & Ors.
501
the Superintendent of Police, Chitrakoot
and the District Magistrate, Chitrakoot but
no action was taken against the accused
persons. Ultimately, he filed complaint
before the competent court to ventilate his
grievances. After considering the statement
of complainant-Hari Shankar under Section
200 Cr.P.C. and his witnesses namely
Guddi (PW-1) and Chanda (PW-3) given
under Section 202 Cr.P.C., learned court
below has taken cognizance of the matter
and issued summons against all five
accused persons and framed charges
against them under Section 395 & 397 IPC.

5. In order to substantiate its
accusation, prosecution has examined as
many as three witnesses.

6. PW-1, Guddi (w/o complainant),
deposed that on 26.05.2016 at about 8:00
p.m. she along with husband and Chanda
were present in the house. Accused persons
namely Jhandilal, Anantu, Mahendra, Uma
Shankar and Besaniya latched the north
door of the house and attacked on the house
armed with theft gun and other lethal arms,
attempted to broke the door of house with
intention to kill all family members and to
commit dacoity. It is further stated by PW-1
that the accused persons always threatened
to kill her family members in the greed of
landed
property
and
bank
balance.
Moreover, they can kill her adopted son at
any time. She further stated that the accused
persons always intimidated her husband for
transferring his entire landed property and
bank balance in favour of Jhandilal and to
fulfil their greed, they came in the night at
around 8:00 p.m. on 26.05.2016 and
attempted to kill and caused grievous hurt to
her family members.

7.

PW-2,
Hari
Shankar
(Complainant) has stated that the incident
took place about 3-4 years back.
Jhandilal,
who
wanted
to
grab
everything,
along
with
Anantu,
Mahendra, Uma Shankar and Besaniya
(w/o Jhandilal) had broke the door and
forcibly entered into his house. He
further states that Jhandilal was armed
with gun and Mahendra was having Axe
and Besaniya (w/o Jhandilal) was pelting
stones. All the accused persons did such
offence to grab his property and became
reactionary due to adoption of a son.
Accused Jhandilal is the real brother of
Hari Shankar (complainant). Previously,
Jhandilal
had
scuffled
with
the
complainant and often beaten him up by
hired goons. On raising alarm by his
wife, Baleshwar and other person came
on the spot. Thereafter, all accused
persons fled away. He went to the police
station to get the report registered and
also
moved
representation,
through
registered
post
to
the
Senior
Superintendent of Police, Chitrakoot but
nothing happened. In absence of any
action being taken, he moved a complaint
before the competent court.

8. PW-3, Chanda (second wife of
complainant) has stated that the incident took
place three years ago in the night at about 8:00
p.m. Accused persons had broke the door of her
house. Jhandilal was armed with gun and
Anantu was armed with Tamancha (country
made pistol), Uma Shankar was armed with
Sabbal, Mahendra was armed with Axe and
Besaniya had stones. Besaniya had threatened
to cut the family of the complainant into pieces.
Anyhow, life of Prabhakar (adopted son) could
be saved. At the time of incident, co-villager
namely Urmiliya came there but she was
threatened by the accused.

9. The accused persons have made
their statement under Section 313 Cr.P.C.
502 INDIAN LAW REPORTS ALLAHABAD SERIES
showing their innocence and state that
they have been falsely implicated in the
present case and due to enmity, false
statement
has
been
given by
the
complainant and his family members.
Jhandilal stated that he is a teacher in a
High School in District-Umaria, M.P.
and is residing there. Mahendra and
Umashankar have stated that they are
crippled and living outside.

10. On behalf of the accused, some
documentary
evidence
have
been
adduced relating to medical certificate of
disability of Mahendra Kumar and Uma
Shankar etc.

11.

After
considering
the
documentary evidence as well as the
surrounding circumstances, the Trial
Court had rejected the complaint vide
impugned
order
dated
03.12.2012
acquitting all five accused persons for the
offences under Sections 395 and 397
IPC.

12. Learned counsel for appellant
had submitted that the Trial Court had
not properly weighed the evidences
adduced on behalf of complainant and
based its judgment and order only on
surmises
and
conjectures.
Minor
contradictions in the statements of
witnesses ought not have led to acquittal
of accused persons. He further contended
that Trial Court had failed to consider
that complainant's younger brother along
with his family members had committed
the offence with ill-will to grab the
property
of
his
elder
brother
(complainant), who is issueless and had
adopted a son. Further submission is that
the
statements
of
the
prosecution
witnesses namely, PWs-1, 2 and 3 are
sufficient to hold the accused persons
guilty.
He
further
submitted
that
Jhandilal
(younger
brother
of
complainant) is a greedy man and with
an intention to grab the property of
complainant, he had committed the said
offence.

13. We have carefully considered
the submissions advanced by learned
counsel for appellant and perused the
impugned order.

14. As per the complaint version,
Jhandilal, younger brother of Hari
Shankar (complainant), was keeping
vulture eyes over the property of his
elder brother (complainant), who is a
senior citizen aged about 75 years, and
having two wives. The complainant had
adopted one son namely, Prabhakar.
Accused Jhandilal was not happy with
that adoption. With an intention to grab
the entire property of Hari Shankar
(complainant), while he was present
inside the house along with his wives,
Jhandilal along with his wife and sons,
broke
the
door
and
entered
the
complainant's house, and attacked with
an intention to kill them and to perpetrate
robbery. On alarm being raised by
complainant and his wivesm some
neighbours
including
Pappu
and
Baleshwar came on the spot and
witnessed the said incident.

15. After considering the statements
of
prosecution
witnesses
and
circumstances of the case, learned Trial
Court found no ground to hold the
accused guilty and pointed out several
discrepancies and contradictions in the
statements
of
witnesses
and
circumstantial evidences with respect to
manner
and
place
of
occurrence,
presence of witnesses and specific role of
8 All. Hari Shankar Vs. State of U.P. & Ors.
503
the accused persons, which are being
detailed as follows :-

(1) In complaint, it is averred
that the accused persons did not enter the
house, but in the statement recorded
under Section 244 Cr.P.C., complainant
had stated that the accused persons
forcibly entered into the house and
punched him. Apart from that, in the
statement recorded under Section 246
Cr.P.C., the complainant had stated that
after entering into the house, for half an
hour they thrashed the complainant and
his wives.

(2)
First
wife
of
the
complainant namely, Guddi (PW-1)
stated that the accused did not enter the
house and had not scuffled with her.
Same thing has been stated by the
complainant's second wife, Chanda (PW3), in her cross-examination, that the
accused did not enter the house and had
not scuffled.

(3) With respect to the injuries,
it has been stated by PW-2 that he and
his both wives had sustained injuries and
they were medically treated. PW-1 stated
that the complainant had sustained injury
while trying to stop a stone, thrown on
him, but he did not get any medical
treatment.
Whereas,
PW-3
in
her
statement supported the version of PW-1,
that
the
complainant
(PW-2)
had
sustained injury while stopping a stone,
but he did not get any medical treatment.

(4) PW-3 stated that they were
inside the house and the accused persons
were outside the house, at the relevant
date and time of incident. On the
contrary, PW-2 (complainant) stated that
the accused broke the door and entered
the house and scuffled with them about
half an hour. He had identified the
accused persons in the electricity light.
Apart from that, PW-3 stated that she
peeped through the hole of door and
identified the accused.

(5)
In
complaint,
it
is
mentioned that Baleshwar and Pappu
have seen the incident, who came on the
spot on hearing alarm raised by the
complainant's wives. During his crossexamination, the complainant had stated
that Baleshwar and Pappu came on the
spot, but out of fear they returned back
and they came again in the next morning.
PW-1 stated that at the time of the
incident Baleshwar was not present at the
place of occurrence, rather he and Pappu
came in the next morning. PW-3 stated
that Baleshwar and Pappu were not
present at the time of the incident and
they had not seen the incident.

(6) PW-1 and 3 stated that
several villagers had seen the incident but
PW-2 stated that no person of the village
had seen the incident.

16. In this view of the matter,
learned Trial Court has pointed out
several discrepancies in the statements of
witnesses with respect to the place of
incident, sequence of incident, witnesses
of incident and involvement of the
accused persons in the incident. After
considering the statements of prosecution
witnesses
and
entire
fact
and
circumstances of the case, learned Trial
Court has come to a conclusion that no
case is made out against the accused
persons for commission of the offences
under Section 395 and 397 IPC.

17. After carefully scrutinizing the
impugned judgment, we express our
agreement with the findings of the Trial
Court that there are contradictions in the
statements of PWs-1, 2 and 3 with
respect to the chronology of events,
504 INDIAN LAW REPORTS ALLAHABAD SERIES
involvement of accused persons in the
offence and presence of witnesses at the
place of occurrence. Statements of PW-1
(complainant), recorded at different stages
of the proceeding i.e. under Sections 200,
244 and 246 Cr.P.C; respectively, and the
complaint version, are self contradictory. As
per complaint version, accused persons had
tried to break the door with an Axe, which
was seen by the witnesses, Pappu and
Baleshwar, who came on the spot on
hearing alarm raised by the complainant's
wives. Meaning thereby, the accused could
not enter the house, but on the contrary, in
his statement recorded under Section 244
Cr.P.C., the complainant had categorically
stated that at the time of occurrence, accused
persons had broke the door with an Axe,
forcibly entered his house and scuffled with
him and his both wives. He further stated
that he fell down on being punched by
accused Jhandilal. He further stated that
while his wives had raised alarm, Baleshwar
and another person came inside the house,
and thereafter, accused persons fled away.
In his statement recorded under Section 246
Cr.P.C., the complainant had stated that
Baleshwar and Pappu came on the next
morning at 8.00 A.M. In his crossexamination, he stated that Baleshwar was
inside the house. There were six more
persons, armed with deadly weapons, along
with accused Jhandilal and he had identified
them in the electricity light. He further
stated that he and his family members had
sustained injuries and got medical treatment.
In his cross-examination, he had further
stated that no co-villager had seen the
incident, inasmuch as, no one dared to come
there due to fear of the accused persons.

18. Testimony of PW-2 is not
corroborated
by
other
prosecution
witnesses. PW-1 and PW-3 have made
contradictory statements to that of PW-2.
PW-1 stated that Baleshwar was husband
of her sister and he was not present at the
time
of
incident.
In
her
crossexamination, she stated that there has
been dispute between two brothers i.e.
complainant and accused Jhandilal for
the last 10-15 years. At the time of the
incident, neither the accused barged into
the house nor did assault anyone, or
looted the household articles. They had
hit the door with an Axe only once. At
the time of the incident, the victim party
was inside the house and accused persons
were outside. She had further stated that
Pappu and Baleshwar had opened the
door while they came in the next
morning. PW-3 Chanda had stated in her
cross-examination that the incident did
not take place in the presence of
Baleshwar
and
Pappu.
During
the
incident, accused did not barge into the
house and there was no scuffle between
the parties. Door of the house was not
opened rather, there was some scratch on
it due to the alleged single hit by an Axe.
No one had sustained any injury but at a
subsequent stage, she stated that Hari
Shankar (complainant) had sustained
injury by pelting of a stone on him.

19. While considering the scope of
interference in an appeal or revision
against acquittal, it has been held by the
Supreme Court that if two views on
appreciation
of
the
evidence
are
reasonably possible, one supporting the
acquittal and other indicating conviction,
the High Court should not, in such a
situation, reverse the order of acquittal
recorded by the Trial Court. In the matter
of
State
of
Karnataka
vs.
K.
Gopalkrishna reported in (2005) 9 SCC
291, the Hon'ble Supreme Court, while
dealing with an appeal against acquittal,
observed as under:
8 All. Hari Shankar Vs. State of U.P. & Ors.
505

"In
such
an
appeal
the
Appellate Court does not lightly disturb
the findings of fact recorded by the Court
below. If on the basis of the same
evidence, two views are reasonably
possible, and the view favouring the
accused is accepted by the Court below,
that is sufficient for upholding the order
of acquittal. However, if the Appellate
Court comes to the conclusion that the
findings of the Court below are wholly
unreasonable or perverse and not based
on the evnidence on record, or suffers
from
serious
illegality
including
ignorance or misreading of evidence on
record, the Appellate Court will be
justified in setting aside such an order of
acquittal."

20. In Sudershan Kumar v. State
of Himachal reported in (2014) 15 SCC
666,
the
Hon'ble
Supreme
Court
observed thus:-

"31. It has been stated and
restated that a cardinal principle in criminal
jurisprudence
that
presumption
of
innocence of the accused is reinforced by an
order of the acquittal. The appellate court,
in such a case, would interfere only for very
substantial and compelling reason. There is
plethora of case laws on this proposition
and we need not burden this judgment by
referring to those decisions. Our purpose
would be served by referring to one
reasoned pronouncement entitled Dhanapal
v. State which is the judgment where most of
the earlier decisions laying down the
aforesaid principle are referred to. In para
37, propositions laid down in an earlier
case are taken note of as under:

"37. In Chandrappa v. State of
Karnataka reported in (2005) 9 SCC
291, this Court held:

(1) An appellate court has full
power to review, re-appreciate and
reconsider the evidence upon which the
order of acquittal is founded.

(2) The Code of Criminal
Procedure, 1973 puts no limitation,
restriction or condition on exercise of
such power and an appellate court on the
evidence before it may reach its own
conclusion, both on questions of fact and
of law.

(3) Various expressions, such
as, "substantial and compelling reasons",
"good and sufficient grounds", "very
strong
circumstances",
"distorted
conclusions", "glaring mistakes", etc. are
not intended to curtail extensive powers
of an appellate court in an appeal
against acquittal. Such phraseologies are
more in the nature of "flourishes of
language" to emphasise the reluctance of
an appellate court to interfere with
acquittal than to curtail the power of the
court to review the evidence and to come
to its own conclusion.

(4)
An
appellate
court,
however, must bear in mind that in case
of acquittal, there is double presumption
in favour of the accused. Firstly, the
presumption of innocence is available to
him under the fundamental principle of
criminal jurisprudence that every person
shall be presumed to be innocent unless
he is proved guilty by a competent court
of law. Secondly, the accused having
secured his acquittal, the presumption of
his innocence is further reinforced,
reaffirmed and strengthened by the trial
court.

(5)
If
two
reasonable
conclusions are possible on the basis of
the evidence on record, the appellate
court should not disturb the finding of
acquittal recorded by the trial court."
506 INDIAN LAW REPORTS ALLAHABAD SERIES

32. Thereafter, in para 39, the
Court curled out five principles and we
would like to reproduce the said para
hereunder:

"39. The following principles
emerge from the cases above:

(1) The accused is presumed to
be innocent until proven guilty. The
accused possessed this presumption when
he was before the trial court. The trial
court's acquittal bolsters the presumption
that he is innocent.

(2) The power of reviewing
evidence is wide and the appellate court
can re-appreciate the entire evidence on
record. It can review the trial court's
conclusion with respect to both facts and
law, but the Appellate Court must give
due weight and consideration to the
decision of the trial court.

(3) The appellate court should
always keep in mind that the trial court
had the distinct advantage of watching
the demeanour of the witnesses. The trial
court is in a better position to evaluate
the credibility of the witnesses.

(4) The appellate court may
only overrule or otherwise disturb the
trial court's acquittal if it has "very
substantial and compelling reasons" for
doing so.

(5)
If
two
reasonable
or
possible views can be reached - one that
leads to acquittal, the other to conviction
- the High Courts/appellate courts must
rule in favour of the accused."

21. In Dilawar Singh v State of
Haryana, (2015) 1 SCC 737, the
Supreme Court reiterated the same in
paragraphs 36 and 37 as under:

"36. The court of appeal would
not ordinarily interfere with the order of
acquittal unless the approach is vitiated
by manifest illegality. In an appeal
against acquittal, this Court will not
interfere with an order of acquittal
merely because on the evaluation of the
evidence, a different plausible view may
arise and views taken by the courts below
is not correct. In other words, this Court
must come to the conclusion that the
views taken by the learned courts below,
while acquitting, cannot be the views of a
reasonable person on the material on
record."

22. In this view of the matter, we
find that the prosecution had failed to
make out the true genesis of the crime.
There is inconsistency in the statements
of the prosecution witnesses, who had
given
contradictory
statements
with
respect to the chronology of events
relating to the incident. For instance, they
were not sure with respect to the place of
presence of the accused persons as to
whether they were inside the house or
outside the house and as to whether both
parties were involved in the scuffling or
not? There is also some confusion with
respect to the presence of witnesses at the
place of occurrence on the relevant date
and time. PW-1 once stated that on
hearing alarm raised by his wives, Pappu
and Baleshwar came on the spot, but
quite surprisingly at another place, he
had stated that Pappu and Baleshwar
went back due to fear and they again
came back in the next morning. PW-2
and PW-3 have clearly worded that
Baleshwar and Pappu were not present
on the spot and they came in the next
morning and opened the door of their
house. Prosecution is also not sure with
regard to the presence of co-villagers at
the place of occurrence. It is very
astonishing and ridiculous that the
prosecution had not produced Baleshwar
8 All. Smt. Sugara @ Subara Vs. State of U.P. & Ors.
507
and Pappu, who have been named as
independent
eye
witnesses
of
the
incident, in the witness box. It is
admitted case of the prosecution that Hari
Shankar and Jhandilal are real brothers,
therefore, possibility of dispute between
them with regard to property cannot be
ruled out, but in the present matter,
genesis of occurrence as created by the
prosecution appears to be vague and
cloudy. As per prosecution, younger
brother Jhandilal was trying to kill his
elder brother Hari Shankar (complainant)
with a clear intention to grab his property
despite the fact that the complainant had
already adopted a son namely, Prabhakar,
who as per statements of PWs-2 and 3
was the son of Baleshwar. At the time of
occurrence, Prabhakar was kept behind
the doors in the house to save his life. It
is very astonishing that Baleshwar, who
is natural father of Prabhakar, did not
even bother to come in the witness box to
support his own son. Apart from that,
Prabhakar, who could have been a very
important witness as he was stated to be
present at the place of occurrence i.e. house
of complainant, on the relevant date and
time of incident, had also not been produced
in the witness box. No independent witness
had been produced to corroborate the
statement of PW-2. On the contrary, PW-3
had admitted that the accused persons did
not enter into their house and had not looted
anything therefrom.

23. After careful consideration of
the impugned judgment and entirety of
facts and circumstances of the case as
available on record, we are of the
considered view that the prosecution had
failed to discharge its burden to prove its
accusation beyond reasonable doubt.
There
are
inconsistencies
in
the
statements of the prosecution witnesses.
The deposition of prosecution witnesses
are not worthy of credibility and are
explicitly unreliable.

24.

From
the
facts
and
circumstances of the case, it cannot be
inferred that the accused persons entered
the house of the complainant and
perpetrated the crime attempting to cause
death
and
grievous
hurt
to
the
complainant and his family members. In
such a situation of fact, accused persons
i.e. respondents no.2 to 6 are entitled to
get benefit of doubt and their innocence
could easily be inferred. There are no
substantial and compelling reasons to
reverse the order of acquittal passed by
the trial court. Thus, we find no good
ground to interfere in the finding of fact
returned by the court below in favour of
the accused persons. No case made out
for granting special leave to appeal
against the order of acquittal.

25. In the light of aforesaid reasons
and observations, this application for
Leave to Appeal, is hereby refused. In
the result, present criminal appeal is
dismissed in limine.
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(2020)08ILR A507
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.02.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DINESH PATHAK, J.

Application U/S 378 Defective No. 19 of 2020

Smt. Sugara @ Subara ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant: