# Raj Kumar & Anr v. State Of U.P - **Citation:** (2016) 6 ILRA 24 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-06-03 - **Bench:** Vikram Nath, Pratyush Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-anr-v-state-of-u-p-44060 - **Pages:** 5 ## Text 24 INDIAN LAW REPORTS ALLAHABAD SERIES 19. Copy of this order to be placed before the Registrar General to do the needful as he may deem fit. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 03.06.2016 BEFORE THE HON'BLE VIKRAM NATH, J. THE HON'BLE PRATYUSH KUMAR, J. Criminal Appeal No.- 1450 Of 2012 Raj Kumar & Anr. ...Appellants Versus State Of U.P. ...Respondent Counsel for Appellants: Ajay Vikram Yadav, R.D. Dauholia Counsel for Respondent: Govt. Advocate Present appeal was filed under section 374 (2) Cr.P.C. has been filed assailing the correctness of the judgment and order dated 30.03.2012, passed by the Additional Sessions Judge, Khurja, Bulandshahr in Sessions Trial No.1125 of 2011, State of U.P. vs Raj Kumar and another, under sections 302/34 IPC, P.S. Chhatari, District Bulandshaahar convicting and sentencing the appellants to undergo life imprisonment under section 302/34 IPC and a fine of Rs.10,000/- each and in default of fine amount they have to further undergo 1 year's additional rigorous imprisonment. Court observed that apex court in several judgement laid while exercising appellate jurisdiction the High Court is expected to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution case can be said to have been proved beyond reasonable doubt by the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. The prosecution did not discharge its full burden of proving the charge against the appellants. The law in the county is well settled that the prosecution had to prove the charge beyond any reasonable doubt which may result in recording of conviction, as the accused is presumed to be not guilty unless and until established by the prosecution by leading cogent evidence fixing the liability of the guilt. It is possible that the prosecution witnesses may have turned hostile for the reasons best known to them. But nevertheless recording conviction and sentencing the appellants by placing entire burden on them would be contrary to the settled principles of criminal jurisprudence. Court accordingly extend the benefit of doubt to the appellants and acquit them of the charges. The appeal is accordingly allowed. List of Cases Cited 1. Padam Singh vs. State of U.P. reported in 2000 (1) SCC 621 2. Rama & others vs. State of Rajasthan reported in 2000 (4) SCC 571 3. Majjal vs. State of Haryana, 2013 (6) SCC 798 6 All. Raj Kumar & Anr. Vs State Of U.P. 25 4. Kamlesh Prabhudas Tanna and Anr vs. State of Gujarat reported in 2014 Cr.L.J. 443 (Delivered by Hon'ble Vikram Nath, J. & Hon'ble Pratyush Kumar, J.) 1. This appeal under section 374 (2) Cr.P.C. has been filed by the appellants Raj Kumar and Tinkoo, assailing the correctness of the judgment and order dated 30.03.2012, passed by the Additional Sessions Judge, Khurja, Bulandshahr in Sessions Trial No.1125 of 2011, State of U.P. vs Raj Kumar and another, under sections 302/34 IPC, P.S. Chhatari, District Bulandshaahar convicting and sentencing the appellants to undergo life imprisonment under section 302/34 IPC and a fine of Rs.10,000/- each and in default of fine amount they have to further undergo 1 year's additional rigorous imprisonment. 2. Preetam Singh, Village Chawkidar of Village Chauganapur, P.S. Chhatri, District Bulandshahar submitted a written complaint on 02.08.2011 at 02.30 p.m. He stated therein that one Malkhan Singh, resident of his village had 2 sons namely Raj Kumar and Tinkoo. Raj Kumar was married. There were frequent altercations between the father on one side and 2 sons on other side relating to partition of the property. That day in the morning also there was an altercation. In the afternoon at about 1.30 p.m. a heated discussion was continuing between the father on one side and the 2 sons on the other side and at that time Raj Kumar who had a Takuva (a metal piece pointed at both the ends) in his hand assaulted his father on the left side of the forehead and the other son Tinkoo assaulted him with fist therefrom Malkhan Singh suffered injuries and died on the spot. The sons were trying to carry the dead body for cremation. A large group of villagers had collected at the spot. The report might be registered and appropriate action be taken. 3. On this complaint a check FIR was prepared and registered as Case Crime No.159 of 2011 (Ex. Ka 7). The Investigating Officer collected plain earth and blood stained earth from the place of occurrence, put them in different boxes and sealed them. He also prepared a fard (Ex. Ka 3). The Investigating Officer also recovered the Takuva, said to have been used in the crime, which had blood stains on it measuring about 2 Balist and 5 fingers long, pointed at both the ends and was wrapped in a piece of cloth, sealed and a fard was prepared (Ex. Ka 4). The Investigating Officer also recovered 5 cakes of cow dung from the place of occurrence which were likely to be used for burning the dead body. The cakes of cow dung were also wrapped in a piece of cloth, sealed and a fard was prepared (Ex. Ka 5). The Investigating Officer also recovered one piece of Dupatta of black colour which contained blood stains on it, one piece of bed-sheet of while colour which also contained blood stains and a towel of white colour containing blood stains. They were also wrapped in a piece of cloth, sealed and a fard was prepared (Ex. Ka 6). The inquest proceedings were completed by the Investigating Officer at 5.00 p.m. on the same day. The dead body was sent for postmortem which was carried out on 03.08.2011 at 12.30 p.m. by Dr. Preetam Singh and the following ante-mortem injuries were noticed on the body of the deceased in the postmortem report : 1. Lacerated wound 2 cm x 1 cm x Ms deep on the left external ear. 26 INDIAN LAW REPORTS ALLAHABAD SERIES 2. Lacerated wound 1 cm x 1⁄2 cm x brain cavity deep 3 cm in front of left ear on exploration left temporal bone found fractured, membrane & brain lacerated and 40 ml of clotted blood present in cranial cavity. 3. Abrasion 3 cm x 1⁄2 cm on the right side forehead 4 cm above from Rt. ear. Cause of death was opined to be due to shock and haemorrhage as result of ante mortem injures. 4. After completing the investigation the Investigating Officer submitted a charge sheet on 21.09.2011 (Ex. Ka 12). The Trial Judge framed and read out the charges to the accused on 23.11.2011 to which the accused pleaded not guilty and claimed to be tried. 5. The prosecution examined the informant Preetam Singh as PW 1, Suresh Chandra as PW 2 who was also said to be an eye-witness and a witness to the recovery and the inquest and Sri Amar Singh, son of the sister of the deceased as PW 3. No other witnesses were examined by the prosecution. The statements of the accused were recorded under section 313 Cr.P.C. in which they stated that they had been falsely implicated on account of enmity. 6. The Trial Judge after considering the evidence on record came to the conclusion that the prosecution had fully proved the charge and accordingly convicted the accused and sentenced them vide judgment and order dated 29.03.2012. 7. We have heard Sri Rajeev Lochan Shukla & Sri Neeraj Sharma, learned counsels for the appellants and Sri A.N. Mulla, learned AGA for the State and also perused the material on record. 8. It has consistently been laid down by the Hon'ble Apex Court that while exercising appellate jurisdiction the High Court is expected to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution case can be said to have been proved beyond reasonable doubt by the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubts as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court. Above proposition has been propounded by the Apex Court in cases of (1) Padam Singh vs. State of U.P. reported in 2000 (1) SCC 621, (2) Rama & others vs. State of Rajasthan reported in 2000 (4) SCC 571, (3) Majjal vs. State of Haryana, 2013 (6) SCC 798, and (4) Kamlesh Prabhudas Tanna and Anr vs. State of Gujarat reported in 2014 Cr.L.J. 443. 6 All. Raj Kumar & Anr. Vs State Of U.P. 27 9. In view of above proposition now we have to examine the rival contention of learned counsel for the parties in light of evidence and material available on record. 10. Sri Shukla, learned counsel for the appellants has very vehemently submitted that all the 3 witnesses produced by the prosecution had turned hostile and therefore in the absence of any evidence which could prove the guilt of the appellants, the Trial Judge seriously erred in recording the conviction and awarding sentence to the appellants. He further submitted that neither the Medical Officer who conducted the autopsy nor the Investigating Officer was produced by the prosecution. In the circumstances he submitted that the appellants were entitled to be acquitted. 11. On the other hand learned AGA has submitted that merely because the prosecution witnesses had turned hostile, the appellants could not claim to be innocent. Their father died in the house and it was incumbent upon them to have explained the circumstances under which he had died. He further submitted that it was not a natural death but on account of injuries sustained by the deceased. The dead body was recovered from the house. The conduct of the appellants that they absconded from the place of occurrence instead of first lodging a complaint with the police regarding the murder of their father. They should have participated in the investigation and should have performed the last rites of their father but they absconded. Appellant Raj Kumar was arrested in the early hours on 03.08.2011 whereas appellant Tinkoo surrendered before the Magistrate on 23.08.2011. Their conduct is indicative of the fact that in fact they had committed the crime and were avoiding facing the police. He has further submitted that as the defense had admitted all the prosecution papers including the postmortem report as such it was not incumbent upon the prosecution to have produced the Medical Officer who conducted the autopsy and also the Investigating Officer who had conducted the investigation and submitted the charge sheet. 12. After considering the submissions we are of the view that the appellants would be entitled to the benefit of doubt. We are also of the view that the prosecution did not discharge its full burden of proving the charge against the appellants. The reasons for the same are recorded herein under. 13. The reason given for committing the crime was the dispute relating to partition of the property. No documentary evidence has been placed on record to show that there was any litigation between the father and sons about the property, its possession or partition. The informant PW 1, eyewitness of the recovery and inquest PW 2 Suresh Chandra and the relative of the deceased as also of the appellants PW 3 Amar Singh all have denied that there was any dispute between the father on one side and the 2 sons on the other side relating to the property or its partition. The motive thus does not stand established as set up by the prosecution. 14. All the 3 witnesses produced by the prosecution have not supported the prosecution story in their examination in chief. Further the dead body of the deceased Malkhan Singh was not recovered from inside the house but from the open Chabutra as such there could be no presumption that the appellants had committed the crime. The recovery of 5 cakes of cow dung (Kandis) was a completely inadequate source of fuel for cremating the dead body which had been shown to be 28 INDIAN LAW REPORTS ALLAHABAD SERIES recovered from the place of occurrence. Cakes of cow dung are normally found in all houses in the villages and is normally used for cooking food. 15. The Trial Judge apparently proceeded on the assumption that the appellants had failed to discharge their burden or furnish explanation as to in what manner their father had been done to death. It also weighed in the mind of the Trial Court that the conduct of the appellants in not being present at the last rites of their father and instead making good their escape and absconding from the place was indicative of the fact that they were involved in crime and out of fear and guilt they had run away. In our opinion the Trial Judge erred in placing the entire burden on the appellants to record a finding of conviction. The law in the county is well settled that the prosecution had to prove the charge beyond any reasonable doubt which may result in recording of conviction, as the accused is presumed to be not guilty unless and until established by the prosecution by leading cogent evidence fixing the liability of the guilt. It is possible that the prosecution witnesses may have turned hostile for the reasons best known to them. But nevertheless recording conviction and sentencing the appellants by placing entire burden on them would be contrary to the settled principles of criminal jurisprudence. We accordingly extend the benefit of doubt to the appellants and acquit them of the charges. 16. The appeal is accordingly allowed. The impugned judgment and order of the Trial Court dated 30.03.2012 is set aside. The appellant Tinkoo is on bail. His bail bonds are cancelled and sureties are discharged whereas the appellant Raj Kumar is in jail, he shall be set at liberty forthwith. 17. A copy of the judgment be sent to the Trial Court. Record of the case be returned to its parent Court. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 23.06.2016 BEFORE THE HON'BLE RAMESH SINHA, J. THE HON'BLE VINOD KUMAR SRIVASTAVA-III, J. Criminal Appeal No.- 2654 Of 2004 Riyasat ...Appellant Versus State Of U.P. ...Respondent Counsel for Appellant: Nadeem Murtaza, Alok Kumar, Jitendra Kr. Singh, Manish Kumar Pandey, Prashant Singh Atal Counsel for Respondent: