# Netrapal v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 599
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-21
- **Case number:** Criminal Appeal No. 67 of 2022
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/netrapal-v-state-of-u-p-ors-48922
- **Pages:** 13

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 372 - Indian Penal Code,
1860 - Sec 302 -The chain to link the accusedthoroughly missing and the evidences adduced
are weak. Nonetheless presumption of double
innocence is already attached to the accused -
acquittal is liable to be affirmed.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,839 of 40,445. This is a partial read: ask again with offset=39839 for what follows._

8 All. Netrapal Vs. State of U.P. & Ors.
599
amendment (adding the proviso in the year
2009 with effect from 31.12.2009) is
clearly not maintainable.

12. Present appeal is accordingly
dismissed as not maintainable.

Re:
Order
on
Delay
Condonation Application

13. Since the appeal itself is not
maintainable, the question of consideration
of delay condonation application, which
was filed with delay of 6228 days, does not
arise.

14. Delay condonation application is
accordingly rejected.

15.

Resultantly,
appeal
stands
dismissed as not maintainable.
----------
(2022) 8 ILRA 599
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 67 of 2022
(U/S 372 Cr.P. C.)

Netrapal ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Garun Pal Singh, Sri Vikas Sharma

Counsel for the Opposite Parties:
Govt. Advocate

Criminal Law - Criminal Procedure Code,
1973 - Section 372 - Indian Penal Code,
1860 - Sec 302 -The chain to link the accusedthoroughly missing and the evidences adduced
are weak. Nonetheless presumption of double
innocence is already attached to the accused -
acquittal is liable to be affirmed.

Appeal dismissed. (E-9)

List of Cases cited:

1. Guru Dutt Pathak Vs St. of U.P. (2021) 6
Supreme Court Cases 116

2. Babu Vs St. of Ker. SCC pp. 196-199

3. Sheo Swarup Vs King Emperor (SCC OnLine
PC : IA p. 404)

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Occasioning dissatisfaction the
present criminal appeal purported to be
under Section 372 of
the
Criminal
Procedure Code, 1973 (Cr.P.C.) has been
instituted
by
the
appellant-informant
against the judgment and order dated
6.1.2018 passed by Additional District &
Sessions Judge, Court No.3, Hathras in
Session Trial No.615 of 2005, (State Vs.
Lekhraj & others) in Case Crime No.254 of
2004, P.S. Sikandarau, District Hathras
purported to be under Section 302 IPC
acquitting the accused herein, who are four
in number.

2. The present appeal was presented
before this Court on 4.4.2018 and on
6.4.2018 the records were summoned.

3.

On
23.5.2018,
8.11.2021,
31.1.2022, 7.2.2022 and 11.2.2022, this
Court passed the following orders:-

On 23.5.2018

"Passed over on the illness slip of
Sri Garun Pal Singh, learned counsel for
the applicant.
600 INDIAN LAW REPORTS ALLAHABAD SERIES

List after two weeks."

On 8.11.2021

"On the request of learned
counsel for the applicant, list this case on
29.11.2021."

On 31.1.2021

"Perusal of the order sheet
reflects that lower court record has been
received.

Sri Garun Pal Singh, learned
counsel for the applicant states that he was
under the impression that the lower court
record has not been received as yet. He is
praying for adjournment of the case.

On his request, the case is passed
over for the day.

List this appeal on 7.2.2022 in the
additional cause list."

On 7.2.2022

"A prayer for adjournment has
been made on behalf of Sri Mukesh Kumar
Verma, Advocate holding brief of Sri
Garun Pal Singh, learned counsel for the
applicant.

We find that on the earlier
occasions, the case was passed over on the
prayer made by learned counsel for the
applicant.

In the interest of justice, case is
passed over for the day.
Lit this case again in the next cause
list."

On 11.2.2022

No one is present on behalf of the
applicant even in the revised call of
additional cause list.

From perusal of the order sheet,
we find that on most of the occasions the
case was passed over on the illness slip
sent by the learned counsel for the
applicant or on his request.

As already held by this Court in
number of cases that leave application filed
under Section 378(3) Cr.P.C. is not
required in the appeal filed by the victim
under Section 372 Cr.P.C. like the present
appeal. A reference may be made to the
order dated 4.8.2021 passed in Criminal
Appeal U/S 372 Cr.P.C. No. 123 of 2021
(Rita Devi vs. State of U.P. and another).
As such, the application for leave to appeal
stands rejected as not maintainable and /
or not required.

List this case peremptorily on
22.2.2022 for admission.

It is made clear that in case on
the next date no one is present on behalf of
the applicant, this Court may proceed with
the appeal with the assistance of learned
AGA.

4. Perusal of the order so passed as
extracted herein above reveals that the
appellant is a avoiding hearing of the
matter despite the fact that the appeal is yet
to be admitted. Even on 11.2.2022 this case
was marked peremptorily and it was made
clear that in case on next date fixed nobody
is present on behalf of appellant, this Court
would proceed with the assistance of
learned AGA.

5. Notably today also nobody appears
to press the appeal and thus this Court has
8 All. Netrapal Vs. State of U.P. & Ors.
601
option but to proceed with the appeal with
the assistance of the learned AGA.

6. Briefly stated facts as unfolded in
the prosecution story are that the first
informant being Sri Kamal Singh had
submitted a written complaint with an
allegation that his mother being Smt. Goma
Devi resident of village Garhiya on the
intervening night on 25/26.6.2004 had gone
to the field for answering the nature's call
and about 10.00 p.m. in the night, the
accused, who are four in number resorted
to gun shot firing which was penetrated
into the ears of the first informant his uncle
being Chob Singh and Munna Lal son of
Devi Ram and Hoti Lal son of Jahiri Singh
along with the others and they thereafter
proceeded to save her in the moonlight and
they could easily recognise the faces of the
accused therein.

7. As per the written complaint the
aforesaid four accused while running away
from
the
place
of
occurrence
had
threatened that they will not permit the
complainant side to live in the village and
after receiving gunshot injuries Smt. Goma
Devi (since deceased) was taken to
Malikhan Singh Hospital, district Aligarh
for
medication, however,
as
she
is
sustained grievous injury and she was
suffering from critical situation she was
referred to one of the hospital in New Delhi
and thereafter the mother of the first
informant along with his brother Lekhpal
and other family members proceeded to
New Delhi. However, it was further alleged
that the mother of the deceased succumbed
to gunshot injuries on 27.6.2004.

8. In between on the basis of the
complaint so lodged by the first informant a
first information report was lodged under
Section
307
of
the
IPC.
However,
consequent to the death of the deceased, the
same transformed into Section 302 IPC in
Case Crime No.254 of 2004, Police Station
Sikandrarau, District Hathras.

9. As per the prosecution the deceased
suffered the following injuries:-

1. Multiple firearm wounds size -
.5 cm x.5 cm .to .5 c.m. x .3 cm with
traumatic swelling in an area of 10 cm x 6
cm on left side neck.

2.
Multiple
firearm
wounds
............charring 0.5x0.5 c.m. to 0.2x0.2 cm
in arm area of 30x12 c.m. a post aspect of
left arm.

3. Multiple firearm wounds of
only 0.5x0.5 c.m. to 0.2x0.2 c.m. ....laing
charring in area of 27x20 cm as scapular
area & adjacent area of chest below and
right including right scapular region.

Pain : all injuries .............xray.
All an afresh... All caused by fire arm.

10. A postmortem was also conducted
on 28.6.2004 wherein the cause of the
death was shown to be

A. Shotgun pellet wound in area
of 36x 36 present over the back of chest on
left size back of left arm and on left side of
the neck. The pellets have pierced the lungs
and left common candid in the neck of
described in neck structure.

b. Abrasion 1X0.5 cm present
over lower on the part of left side of chest.

Opinion
-Death
is
due
to
hemorrhage and shock consequent upon
injury to the neck structure via injury no.1.
Injury no.1 is antemortem, around one day
602 INDIAN LAW REPORTS ALLAHABAD SERIES
old and is earned by smooth boned firearm.
Injury no.1 is sufficient to cause death in
ordinary course of nature.

11. Consequent to the lodging of the
first information report one S.I. Netrapal
Singh
PW9
was
nominated
as
the
Investigating Officer. It is alleged that he
conducted investigation while preparing site
plan proceeded with recording of the
statement of the prosecution witnesses and
other independent witnesses while taking
affidavits also and thereafter submitted the
charge sheet against the accused herein, who
are four in numbers under Section 302 of the
IPC in Case Crime No.254 of 2004. The case
was committed to trial before sessions
charges were read over to the accused herein.
The accused denied charges and claimed to
be tried.

12. In order to bring home the charges
the prosecution produced following witnesses
namely PW1 Hotilal S/o Jahri, PW2 Chob
Singh s/o Devi Ram, PW3 Netrapal s/o
Dharmjeet, PW4 Munna Lal s/o Devi Ram,
PW5 Panna Lal, PW6 Amar Singh PW7
Inspector Man Singh Yadav, PW8 S.I. Iqbal
Ahmad, Delhi Police, PW9 S.I. Netrapal
Singh and PW10 Dr. V.K. Gupta.

13. So far as the defence is concerned
they submitted paper no. 216 along with an
affidavit and paper no.217 being a sale deed.

14. The learned Trial Court by virtue of
the judgment and order dated 6.1.2018 passed
in Session Trial No.615 of 2005, (State Vs.
Lekhraj and 3 others) acquitted the accused
under Section 302 IPC in Case Crime No.254
of 2004.

15. Challenging the same now the
appellant who happens to be the son of the
deceased and the real brother of first
informant is before this Court due to the
reason being that the first informant who
happens to be a real brother of appellant
expired before the commencement of the
trial.

16. This Court at the present moment
is surrounded with a situation wherein the
judgment
of
the
acquittal
is
under
challenge. Cautious approach is to be
adopted
while
exercising
appellate
jurisdiction as the accused herein is
benefited with double presumption of
innocence. In other words this Court while
re-appreciating evidence so sought to be
adduced by the prosecution as well as
ocular testimony is to find out the fact
whether the learned trial court had
committed
palpable
illegality
while
misreading the evidence and proceeds
towards
wrong
direction
nutritions
perversity.

17. Without burdening the present
judgment with the plethora of decision of
the Hon'ble Apex Court, this Court finds
necessary
to
only
refer
to
certain
paragraphs of the judgment in the case of
Guru Dutt Pathak Vs. State of U.P. (2021)
6 Supreme Court Cases 116, wherein the
Hon'ble Apex Court had summed up the
extent of interference while exercising
appellate jurisdiction. The Hon'ble Apex
Court in paragraphs 14, 15, 16 have
observed as under:-

14. We are conscious of the fact
that this is a case of reversal of acquittal by
the High Court. Therefore, the first and
foremost thing which is required to be
considered is, whether in the facts and
circumstances of the case, the High Court
is justified in interfering with the order of
acquittal passed by the learned C trial
court?
8 All. Netrapal Vs. State of U.P. & Ors.
603

15. In Babu v. State of Kerala3,
this Court has reiterated the principles to
be followed in an appeal against acquittal
under Section 378 CrPC. In paras 12 to 19,
it is observed and held as under: (SCC pp.
196-199)

"12. This Court time and again
has laid down the guidelines for the High
Court to interfere with the judgment and
order of acquittal passed by the trial court.
The appellate court should not ordinarily
set aside a judgment of acquittal in a case
where two views are possible, though the
view of the appellate court may be the more
probable one. While dealing with a
judgment of acquittal, the appellate court
has to consider the entire evidence on
record, so as to arrive at a finding as to
whether the views of the trial court were
perverse or otherwise unsustainable. The
appellate court is entitled to consider
whether in arriving at a finding of fact, the
trial court had failed to take into
consideration admissible evidence and/ or
had taken into consideration the evidence
brought on record contrary to law.
Similarly, wrong placing of burden of proof
may also be a subject matter of scrutiny by
the appellate court.

13. In Sheo Swarup v. King
Emperor14, the Privy Council observed as
under: (SCC OnLine PC : IA p. 404)

".... the High Court should and
will always give proper weight and
consideration to such matters as (1) the
views of the trial Judge as to the credibility
of the witnesses; (2) the presumption of
innocence in favour of the accused, a
presumption certainly not weakened by the
fact that he has been acquitted at his trial;
(3) the right of the accused to the benefit of
any doubt; and (4) the slowness of an
appellate court in disturbing a finding of
fact arrived at by a Judge who had the
advantage of seeing the witnesses."

14. The aforesaid principle of law
has consistently been followed by this
Court. (See Tulsiram Kanu v. State 15,
Balbir Singh v. State of Punjab16, M.G.
Agarwal v. State of Maharashtra17, Khedu
Mohton v. State of Bihar18, Sambasivan v.
State of Kerala 19, Bhagwan Singh v. State
of M.P.20 and State of Goa v. Sanjay
Thakran21.) C

15. In Chandrappa v. State of
Karnataka22, this Court reiterated the
legal position as under: (SCC p. 432, para
42)

'42.... (1) An appellate court has
full power to review, reappreciate 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
e 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,
604 INDIAN LAW REPORTS ALLAHABAD SERIES
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.'

16. In Ghurey Lal v. State of
U.P.23, this Court reiterated the said view,
observing that the appellate court in
dealing with the cases in which the trial
courts have acquitted the accused, should
bear in mind that the trial court's acquittal
bolsters the presumption that he is
innocent. The appellate court must give due
weight and consideration to the decision of
the trial court as the trial court had the
distinct
advantage
of
watching
the
demeanour of the witnesses, and was in a
better position to evaluate the credibility of
the witnesses.

17. In State of Rajasthan v.
Naresh24, the Court again examined the
earlier judgments of this Court and laid
down that: (SCC p. 374, para 20)

'20. ... An order of acquittal
should not be lightly interfered with even if
the Court believes that there is some
evidence pointing out the finger towards
the accused."

18. In State of U.P. v. Banne25,
this
Court
gave
certain
illustrative
circumstances in which the Court would be
justified in interfering with judgment of
acquittal
by
the
High
Court.
The
circumstances include: Banne case 25,
SCC p. 286, para 28)

i) The High Court's decision is
based on totally erroneous view of law by
ignoring the settled legal position;

(ii) The High Court's conclusions
are contrary to evidence and documents on
record;

(iii) The entire approach of the
High Court in dealing with the evidence
was patently illegal leading to grave
miscarriage of justice;

(iv) The High Court's judgment is
manifestly unjust and unreasonable based
on erroneous law and facts on the record of
the case; a

(v) This Court must always give
proper weight and consideration to the
findings of the High Court;

(vi)
This
Court
would
be
extremely reluctant in interfering with a
case when both the Sessions Court and the
High Court have recorded an order of
acquittal.'

A
similar
view
has
been
reiterated by this Court in Dhanapal v.
State26. 19. Thus, the law on the issue can
be summarised to the effect that in
exceptional
cases
where
there
are
compelling
circumstances,
and
the
judgment under appeal is found to be
perverse, the appellate court can interfere
with the order of acquittal. The appellate
court should bear in mind the presumption
of innocence of the accused and further
8 All. Netrapal Vs. State of U.P. & Ors.
605
that the trial court's acquittal bolsters the
presumption of his innocence. Interference
in a routine manner where the other view is
possible should be avoided, unless there
are
good
reasons
for
interference."
(emphasis supplied) C

16. When the findings of fact
recorded by a court can be held to be
perverse
has
been
dealt
with
and
considered in para 20 of the aforesaid
decision, which reads as under: (Babu
case3, SCC p. 199) d

"20. The findings of fact recorded
by a court can be held to be perverse if the
findings have been arrived at by ignoring
or excluding relevant material or by taking
into consideration irrelevant/inadmissible
material. The finding may also be said to
be perverse if it is "against the weight of
evidence", or if the finding so outrageously
defies logic as to suffer from the vice of
irrationality. (Vide Rajinder Kumar Kindra
v. Delhi Admn. 27, Excise & Taxation
Officer-cum-Assessing Authority v. Gopi
Nath & Sons 28, Triveni Rubber & Plastics
v. CCE29, Gaya Din v. Hanuman Prasad30,
Arulvelu v. Statell and Gamini Bala
Koteswara Rao v. State of A.P.31)"

It is further observed, after
following the decision of this Court in
Kuldeep Singh v. Commr. of Police32, that
if a decision is arrived at on the basis of no
evidence or thoroughly unreliable evidence
and no reasonable person would act upon
it, the order would be perverse. But if there
is some evidence on record which is
acceptable and which could be relied upon,
the conclusions would not be treated as
perverse and the findings would not be
interfered with."

18. Heard Sri Ratan Singh, learned
AGA, who appears for the State of U.P.
and with his assistance the present appeal is
being decided.

19. Before driving into the present
proceedings in order to determine as to
whether the judgment of the acquittal
passed by the court below is correct or not,
the testimony of the prosecution witnesses
is to be first analyzed.

20. One Sri Hoti Lal son of Jahri
appeared as PW1, according to him he is
the resident of the same village where the
deceased resided and on the fateful day he
had gone to the shop of Brhamchari for
purchasing certain items and there at he
heard a gunshot fire which was coming
from western side and at that point of time,
PW2 Chob Singh son of Devi Ram also
shouted that firing has been resolved to and
then PW1 proceeded towards the house of
the PW2 Chob Singh and then he saw the
accused who are four in numbers being
present therein and so far as the accused
opposite party no.3 Durjan Singh and
accused opposite party no.5 being Yadram
are concerned, they were in possession of
cuddle and so far the rest of the accused
opposite party No.2 and 4 are concerned,
they were armed with country-made pistol.

21. According to PW1 the accused
herein fired two times and administered
threat that they will chase away PW1 and
on account of resorting to gunshot fire the
deceased fell down and from there she was
taken to Malikhan hospital and referred to
Delhi and he also accompanied the
deceased till Aligarh from where he
returned back and after 2 to 3 days he was
apprised that the deceased died.
606 INDIAN LAW REPORTS ALLAHABAD SERIES

22. As PW2 Sri Chob Singh son of
Devi Ram presented himself and according
to him the incident took place in the
intervening night of 25/26.6.2004 around
11-12 in the night when he was in his house
along with one Sri Munna Lal and Kamal
Singh and one Smt. Tara Devi was lying
down in a separate Varanda and at that
point of time the deceased had gone to
answer nature's call and he was sleeping
but he heard screams of the deceased when
gunshot firing was resorted to which were
2-3 in number. However, he is not aware
and who made firing and when he
proceeded towards the place of occurrence,
he found deceased lying down.

23. PW3 being Netrapal son of
Dharmjeet and the real son of the deceased
appeared as PW3 and according to him the
incident took place around 10-12 in the
intervening night of 25/26.6.2004 when his
mother had gone to answer nature's call.
According to PW3 litigation is going on
regarding piece of land between him and
the accused Lekhraj in which 26.6.2004 of
the next date fixed and the accused herein
had murdered her mother and Lekhraj
along with Chandrapal resorted to gunshot
fire and the other two accused were also
present but he is not aware as to which
weapon they were holding in their hand and
the injuries through gunshot firing was
witnessed by Hoti Lal, Kamal Singh,
Munna Lal and Amar Singh. He has further
deposed his mother had been taken to
hospital in Aligarh then Delhi wherein she
died.

24. PW4 Munna Lal also stepped into
witness box and according to him on the
fateful day at 10-11 hours he had gone to
Hoti Lal, Kamal Singh's house and and he
listened to the noise of gunshot firing from
the agricultural field owned by Om Prakash.
It was a moonlight night and Lekhraj,
Chandrapal had administered gunshot firing
and Durjan and Yadram were also there, they
had in their hand country-made pistol
(Chandrapal and Lekhraj).

25. PW5 Panna Lal also came in the
deposition box and he proved the FIR as he is
the scriber of the FIR.

26. PW6 Amar Singh in his
examination-in-chief had deposed that the
deceased had gone to answer nature's call and
12 in the night and she was subjected to
gunshot firing and injury was sustained by
the deceased herein and she was taken to the
hospital at Aligarh from where she was
referred to Delhi and wherein she died on
27.6.2004.

27. PW7 Inspector Man Singh
conducted
the
investigation
took
the
statement of the witnesses and he proved the
site plan and constable Suresh Mishra proved
the written Chik FIR.

28. PW8 S.I. Iqbal Ahmad Delhi Police
has come up with a stand that he had gone to
the to Lok Nayak Jai Prakash hospital
whereat the body was taken for postmortem.
He is also a formal witness.

29. PW9 SI Netrapal Singh is also a
Investigating
Officer
who
conducted
investigation being a successor of the earlier
investigating officer and according to him he
took statements and also made physical
presence while going to the place whereof the
site plan was also prepared.

30. PW10 Dr. V.K. Gupta had proved
the medico legal injury report.

31.

Undisputedly
the
entire
prosecution case hinges upon being alleged
8 All. Netrapal Vs. State of U.P. & Ors.
607
commission of crime in the intervening
night of 25/26.4.2004 wherein accused
have been marked to have committed
offence while resorting to gunshot fire.

32. As per first information report so
lodged by the first informant the time of the
occurrence has been shown to be 22 hours
i.e. 10.00 p.m. in the intervening night on
25/26.6.2004. According to PW1 being Sri
Hoti Lal the time of the incident was 10.00
p.m.
in
the
intervening
night
on
25/26/6.2004 when he had gone to
purchase
certain
articles
being
local
cigarette (Bidi). According to him at that
point of time he noticed the gunshot firing.
However, in his cross-examination PW1
Hoti Lal come up with a stand that the
incident took place 10-11 in the intervening
night dated 25/26.6.2004.

33. So far as PW3 being Netrapal, who
happens to be son of the deceased in his
examination-in-chief has come up with a
stand that the time of the occurrence is 10-12
in the intervening night of 25/26.6.2004.
PW3 has further deposed that he had given
his statement at Lok Nayak Jai Prakash
Hospital before the doctor whereat he had
given the time of the incident 10-12 hours in
the
intervening
night
of
25/26.6.2004
however, he is not aware as to why the doctor
has written the time of the occurrence being
12.00 p.m. in the night.

34. PW4 being Munna Lal son of Devi
Ram, who is also one of the close relative of
the deceased has stated that the time of the
occurrence was 10-11 in the intervening night
of 25/26.6.2004. Further, PW4 in internal
page 2 of his cross-examination dated
24.1.2014 has further come up with a stand
that the deceased had gone to answers
nature's call at 11.00 p.m. in the intervening
night of 25/26.6.2004.

35. Net analyses of the deposition of the
prosecution witnesses itself show that there
are material contradictions in the statement of
prosecution witness with respect to the time
of the occurrence as in the first information
report the time of the occurrence has been
shown 10 p.m. in the intervening night of
25/26.6.2004
whereas
the
prosecution
witnesses have given different time in this
regard.

36. Moreso, it is come on record that so
far as the PW1 Hoti Lal is concerned he
claims himself to be a eyewitness of the
entire incident. As according to him at 10 in
the night he had gone to purchase certain
articles and the shop in the subject village
closes at between 9-10 in the night.
According to PW1 Hoti Lal near the house of
Amar Singh and the accused Lekhraj in
between there is a wall and from the place of
occurrence at about 40 meters there exist
shop of Gyan Singh whereat he had gone to
purchase local cigarette (Bidi) and he noticed
gunshot firing. In the cross-examination PW1
has come up with a stand that he is not aware
as to who had resorted to gunshot firing.
However, subsequently, they were two round
of gunshot firing. According to PW1 he was
standing in the shop but firing was done by
the accused Chandra Pal and Lekhraj which
he was witnessing from shop in question.

37. It is has further come on record
that between the place of occurrence and
the shop of Gyan Singh, there is a room
constructed therein from where the place of
occurrence is not visible.

38. In cross-examination a further
statement has been made by the PW1 that
in the shop of Gyan Singh a Chakki is also
established and the boundary is 10 feet high
and between the Chakki of Gyan Singn and
the shop in question house belong to PW2
608 INDIAN LAW REPORTS ALLAHABAD SERIES
Chob Singh is there and in front of the shop
Kanchan and Om Prakash have built their
houses and the road towards Kanchan is 15
feet long. However, there is no wall but a
Chabootra is there and the house also
which is 10-12 feet high.

39. Further In cross-examination PW1
Hoti Lal has stated that when he was going
to purchase local cigarette then he saw
Satya Prakash the son of Gyan Singh and
Gyan Singh and in between on road he met
Ramchandra, Parsadi and Itwari. However,
he did not have any conversation with
them.
Even
further
in
the
crossexamination PW1 has come up with a stand
that he had not seen the deceased going for
answering nature's call and he is not aware
as to who is the husband of Goma Devi.
PW1 has further stated that when he went
to the place of occurrence, he found the
deceased lying down and the accused was
standing but they were not resorting to
gunshot firing. He has further deposed that
he did not see the accused resorting to first
gunshot fire however he could see the
second and the third gunshot fire being
administered by the accused that too from
60-70 feet.

40. The learned trial court has
disbelieved the deposition of PW1 Hoti
Lal while observing that on one hand in
cross-examination dated 28.7.2009 the
PW1 has come up with a stand that he did
not see the accused firing upon the
deceased but on the other hand a
contradictory statement is being sought to
be made that though he had not seen the
first gunshot fire but so far as second and
third gunshot fire is concerned he had
seen. The trial court has further analysed
the said aspect of the matter while
recording a categorical finding that as per
the statement of the PW1 their happens to
be a wall and constructions so raised
from where the PW1 while standing in
the shop in question could not see
anybody standing or committing some act
in the agricultural field particularly 10 in
the night itself as the boundary wall is 10
feet high.

41. Contradictions in the statement
of
PW1
also
assume
significance
particularly in the fact that the PW1 as
per his own admission has stated that he
had not seen the deceased going to
answer nature's call and once according
to his statement if taken into face value,
he could see the deceased lying down
from 20 meters away and the accused
standing there and not firing. The Trial
Court has further observed that as per the
statement of PW1 the second and the
third firing was witnessed by him from
60-70 feet.

42. The court below has analysed
the deposition of PW1 Hotilal while
observing that it is highly improbable that
in case the story so built up by the PW1 if
taken its face value then it will result to
inconceivable situation as a culprit who
has resorted the gunshot firing will
remain at a place and wait for the
villagers to come and to catch them.

43. More so as per the statement of
PW1 Hoti Lal, he met Gyan Singh, his
son Satya Prakash, Ramchandra, Parsadi
and Itwari, however none of these
whiteness came to give their statement
and further as per the statement of PW1
he did not narrate the said incident to any
of them.

44. Similarly, so far as PW2 Chob
Singh is concerned, he in his examinationin-chief has come up with a stand that he is
not aware as to who had administered firing
8 All. Netrapal Vs. State of U.P. & Ors.
609
and when he went to the place of
occurrence huge rush of villagers were
there, as according to him he was sleeping
in his house and he became hostile witness
while not supporting the prosecution case.

45. PW3 Netrapal being the son of the
deceased and the brother of the first
informant has supported the prosecution
theory as according to him he had gone to
Lok Nayak Jai Prakash Hospital wherein he
had given statement that too before a
doctor. He has further admitted in his
statement that he has not named Amar
Singh, Munna Lal and others who had
witnesses the gunshot firing by the accused.
He has further deposed in his crossexamination that his brother Kamal Singh
in the FIR has not narrated the fact that
Munna Lal, Chob Singh, Amar Singh and
Tara Devi were not present at the time of
the commission of the crime. He has
further stated that the first information
report has not been lodged by the husband
of the deceased Amar Singh and according
to him no litigation is going on between
him and accused Lekhraj and no statement
has been taken by police from him.

46. Thus, PW3 who happens to be the
real son of the deceased has not proved the
prosecution story so as to put a nail of
conviction against the accused.

47. PW4 being Munna Lal has
deposed that Chob Singh is his real brother
and Amar Singh happens to be the husband
of the deceased, who is also a real brother
of him. PW4 in his cross-examination has
further deposed that from the shop in
question whereat PW1 Hoti Lal was
standing the visibility is zero in so far as
the place of occurrence is concerned as
there happens to be a house in between.

48. Though PW4 Munna Lal had
deposed that Hoti Lal PW1, Chob Singh
PW2 and Kamal Singh since deceased (first
informant) had seen the deceased going to
the field for answering the nature's call,
however PW1 Hoti Lal in his crossexamination has come up with a stand that
he is not seen the deceased going to the
field for answering nature's call. PW4 in his
cross-examination had further stated that he
was lying down in the cot on the fateful day
and was sleeping and he heard gunshot
firing and thereafter he proceeded towards
the place of the incident and he did not call
PW2 Chob Singh, PW3 Netrapal and Amar
Singh. According to him when he rushed to
the place of occurrence and the accused ran
away and he witnessed the same. He has
further deposed that the place where he was
standing the visibility of the place of
occurrence was not clear.

49. So far as PW6 Amar Singh is
concerned though he has come up with a
stand that the deceased had gone to answers
nature's call at 12 but he also does not
support the prosecution theory.

50. Meticulous analyses of the
statement of the prosecution witnesses puts
a serious cloud over the prosecution case
particularly in view of the fact that not only
there is material contradictions in the
statements vis-a-vis the time of occurrence
but also the fact that the place from where
PW1 Hoti Lal is stating to have witnessed
the commission of the crime from his own
eyes
is
highly
improbable
as
the
intervening night 25/26.6.2004 was a
moonlight night where the visibility is quiet
poor i.e. 10-10-30. Meaning thereby the
visibility was opaque and nobody from 6070 feet can see or identify a person
standing that too in a agricultural field.
610 INDIAN LAW REPORTS ALLAHABAD SERIES

51 . Nonetheless the case if it is taken
into its face value though disputed is the case
referable to circumstantial evidence. In order
to link the accused with respect to the
commission of the crime the chain of the
events should be in such a position so as to
pointedly mark that the accused herein had
committed crime and none else beyond doubt
and nobody else.

52. Here in the present case, this Court
finds that there are not only material
contradictions as discussed herein above but
also the fact that in case the deceased had
gone to answer nature's call then a vessel
(Lota) ought to have been recovered from the
place of occurrence particularly when the
prosecution witnesses are coming up with a
stand that the accused were standing near the
injured lady (deceased) when PW1 Hoti Lal
went there. Additional fact also need to be
noticed at this stage is that none of the
villagers came in support of the prosecution
theory particularly when as per statement
PW1 Hoti Lal, Gyan Singh, Satya Prakash,
Ram Chandra, Parsadi, Itwari were also
present after hearing the noise of gunshot
firing proceeded there at. More so in the first
information also no names of the witnesses
who had seen the commission of the crime
finds place.

53. Notable the Hon'ble Apex Court in
the case of Chandrapal Vs. State of
Chhattisgarh AIR 2022 SC 2542 in paragraph
14, 15, 16, 17 have observed as under:-

"14. In this regard it would be also
relevant to regurgitate the law laid down by
this court with regard to the theory of "Last
seen together".

15. In case of Bodhraj and Ors. v.
State of Jammu and Kashmirs, this court
held in para 31 that:

"31. The last-seen theory comes
into play where the time-gap between the
point of time when the accused and the
deceased were last seen alive and when the
deceased is found dead is so small that
possibility of any person other than the
accused being the author of the crime
becomes impossible...."

16. In Jaswant Gir v. State of
Punjab', this court held that in absence of
any
other
links
in
the
chain
of
circumstantial
evidence,
the
accused
cannot be convicted solely on the basis of
"Last seen together", even if version of the
prosecution witness in this regard is
believed.

17. In Arjun Marik and Ors. v.
State of Bihar 10, It was observed that the
only circumstance of last seen will not
complete the chain of circumstances to
record the finding that it is consistent only
with the hypothesis of the guilt of the
accused, and therefore no conviction on
that basis alone can be founded."

54. Considering the case in totality
this Court finds that the chain to link the
accused with respect commission of crime
itself is thoroughly missing and the
evidences so sought to be pressed into
service which obviously includes testimony
of the prosecution witnesses and the
documents so adduced therein are itself
weak. This Court further finds its inability
to take a different view from the view so
taken by the trial court as obviously while
deciding the appeal under Section 372 of
the Cr.P.C. from an order of acquittal once
the view taken by the learned trial court is
possible and plausible view then it will be
highly unjustifiable to take another view.
Nonetheless
presumption
of
double
innocence is already attached to the
8 All. Putan Vs. State of U.P.
611
accused herein and thus this Court finds the
order of acquittal is liable to be affirmed.

55. In view of foregoing discussion,
the present appeal is liable to be dismissed
and is accordingly dismissed.

55. The records be sent back to the
court-below.
----------
(2022) 8 ILRA 611
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.07.2022

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 138 of 2019

Putan ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Soniya Mishra, Sri O.P. Tiwari, Sri Rajendra
Singh, Sri Rajiv Mishra

Counsel for the Opposite Party:
G.A.

Criminal Law- Dowry Prohibition Act,
1961- Section 2 - In the present case,
there is alleged demand of tractor -
Interpretation of the word "dowry"- The
demand of tractor certainly come within
the purview of dowry.

Dowry is giving or receiving of any property or
valuable
security
in
connection
with the
marriage of the parties would include a tractor
also.

Indian Penal Code, 1860- Section 304- B -
Indian Evidence Act, 1872- Section 113-B-
The word "soon before" - It is not denied
that the deceased was married to the
accused-appellant barely, two months
before the alleged incident. Thus, in a
brief period of about two months' marital
life, any demand of tractor by the
accused-appellant is necessarily a demand
"soon before" the death of the deceased.

The expression "soon before" contemplates a
reasonable time and does not mean immediately
before. Hence demand of dowry two months
before the death of the wife would come within
the purview of the expression "soon before".

Indian Penal Code, 1860 - Section 304- B -
On the basis of cogent and reliable
testimonies of P.W.-1, P.W.-2 and P.W.-4,
the prosecution has been able to prove
that the accused-appellant used to make
demand of tractor and due to nonfulfillment of such demand, he treated the
deceased with cruelty and ultimately
caused her death. The cause of death of
deceased,
according
to
post-mortem
report, is strangulation and her hyoid
bone is also found to be fractured. The
death of the deceased occurred in the
house of the accused-appellant within a
period of two months from the date of
marriage
of
the
deceased
with
the
accused-appellant.