# Ram Naresh, Rajesh @ Baniya Dinesh @ Tunnu Gaur v. State

- **Citation:** (2019) 2 ILRA 403
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-02
- **Case number:** Jail Appeal No. 4573 of 2011
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-naresh-rajesh-baniya-dinesh-tunnu-gaur-v-state-44752
- **Pages:** 10

## Headnote

A. Indian Penal Code, 1860 - Section
302/34, 394, 411 - Appeal is against
conviction.
There is no eye witness. None has seen the
accused-appellants murdering deceased. The
witness of fact failed to establish last seen
theory. There is no complete chain of
circumstances
to
indicate
that
accusedappellants are the only person who murdered
deceased. (Para 32)
Trial Court has not marshalled entire evidence
on record with care and caution and is not
correct in convicting appellants are entitled to
benefit of doubt. (Para 33)
Jail Appeal allowed (E-2)
List of Cases Cited: -

## Text

2 All. Yogendra @ Teetu Vs State of U.P.
403
in
the
mind,
simultaneously
the
principle of proportionality between
the crime and punishment cannot be
totally brushed aside. The principle of
just punishment is the bedrock of
sentencing in respect of a criminal
offence. A punishment should not be
disproportionately
excessive.
The
concept of proportionality allows a
significant discretion to the Judge but
the same has to be guided by certain
principles. In certain cases, the nature
of culpability, the antecedents of the
accused,
the
factum of age,
the
potentiality of the convict to become a
criminal in future, capability of his
reformation and to lead an acceptable
life in the prevalent milieu, the effect -
propensity to become a social threat or
nuisance, and sometimes lapse of time
in the commission of the crime and his
conduct in the interregnum bearing in
mind the nature of the offence, etc.
etc."

26 . Though in a case of rape, when
an adult commits rape on a girl of tender
age, deterrent punishment is called for,
taking a lenient view is out of question.
Once a person is convicted for offence of
rape, he should be treated with heavy
hands and undeserved indulgence or
liberal attitude in not awarding adequate
sentence is improper. As per law laid
down by Apex Court in State of U.P. vs.
Babu Lal, AIR 2008 SC 582, the
adequate and proper sentencing is to be
made. In the present case, convictappellant has been sentenced with ten
years rigorous imprisonment whereas
award of eight years and fine of Rs.
10,000/-, and in default two years
rigorous imprisonment will proved to be
adequate sentence under Section 376 of
I.P.C.

27. Accordingly, this appeal is to be
partly allowed regarding conviction for
setting aside conviction and sentence for
offence punishable under Section 366
I.P.C., hence, the conviction and sentence
awarded by trial Court is being amended
as follows:-

Order

(1)
Convict-appellant
Yogendra @ Teetu is being convicted
for offence punishable under Section
363 and 376 I.P.C. He is being
sentenced with three years rigorous
imprisonment and fine of Rs. 3,000/-,
and in default six months additional
rigorous
imprisonment
for offence
punishable under Section 363 I.P.C. He
is further being sentenced with rigorous
imprisonment of eight years and fine of
Rs. 10,000/-, and in default two years
rigorous
imprisonment
for offence
punishable under Section 376 I.P.C.

(2) Both of above sentences
shall run concurrently and convictappellant
will
be
benefited
with
adjustment of previous imprisonment in
this case crime number under Section 428
of I.P.C. He is being acquitted of the
charge leveled for offence punishable
under Section 366 of I.P.C.

(3) Copy of the judgment along
with lower Court record be transmitted to
trial Court for amendment of warrant of
conviction and sentence as per above
conviction and sentence and for follow up
action.
----------
(2019)10ILR A 404

APPELLATE JURISDICTION
CRIMINAL SIDE
404 INDIAN LAW REPORTS ALLAHABAD SERIES
DATED: ALLAHABAD 02.08.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 4573 of 2011

Ram Naresh, Rajesh @ Baniya Dinesh @
Tunnu Gaur ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Noor Mohammad

Counsel for the Opposite Party:
Sri M.C. Dixit (A.G.A.)

A. Indian Penal Code, 1860 - Section
302/34, 394, 411 - Appeal is against
conviction.
There is no eye witness. None has seen the
accused-appellants murdering deceased. The
witness of fact failed to establish last seen
theory. There is no complete chain of
circumstances
to
indicate
that
accusedappellants are the only person who murdered
deceased. (Para 32)
Trial Court has not marshalled entire evidence
on record with care and caution and is not
correct in convicting appellants are entitled to
benefit of doubt. (Para 33)
Jail Appeal allowed (E-2)
List of Cases Cited: -
1. Hanumant Govind Nargundkar & anr. Vs St.
of M.P. AIR 1952 SC 343
2. Hukam Singh Vs St. of Raj. AIR 1977 SC 1063
3. Sharad Birdhichand Sarda Vs St. of Mah.
AIR 1984 SC 1622
4. Ashok Kumar Chatterjee Vs St. of M. P. AIR
1989 SC 1890,
5. C. Chenga Reddy & ors. Vs St. of A. P. 1996
(10) SCC 193,
6. Bodh Raj @ Bodha & ors. Vs St. of J.& K.
2002(8) SCC 45,
7. Shivu & anr. Vs Registrar General H. C. of
Kar. & anr. (2007) 4 SCC 713
8. Tomaso Bruno Vs St. of U.P. (2015) 17 SCC 178
(Delivered by Hon'ble Rajendra Kumar-IV, J.)

1. This Jail Appeal has been filed by
accused-appellant-Ram
Naresh
alias
Chunnu Gaur, Dinesh alias Tunnu Gaur and
Baniya
alias
Rajesh
through
Jail
Superintendent, Bijnor against judgement
and order dated 08.07.2011 passed by
Additional Sessions Judge / Special Judge,
Bijnor, in Sessions Trial No. 987 of 2010
(State v. Ram Naresh alias Chunnu Gaur
and Others, Case Crime No. 97 of 2010)
under Sections 302/34, 394, 411 IPC, Police
Station Nangal, District Bijnor convicting
all three accused-appellants under Sections
302/34, 394, 411 IPC and sentenced them
under Section 302/34 IPC to undergo for
life imprisonment and Rs. 10,000/-. In
default of fine, they shall further undergo
six months' imprisonment; under Section
394 IPC for R.I. of five years and fine of
Rs. 2,000/-; in default of fine, they shall
further undergo two months R.I.; and under
Section 411 IPC for R.I. of two years and
fine of Rs. 1000/- and in default of fine,
they shall further undergo one month.

2. Prosecution story, in brief, is that
on 22.09.2010, PW-1 Katar Singh made a
written Tehrir Ex. Ka-1 in the Police
Station concerned stating that a dead body
2 All. Ram Naresh, Rajesh @ Baniya Dinesh @ Tunnu Gaur Vs State
405
of one young unknown person was seen,
lying in the Sugarcane field near tubewell of PW-1. Its head was bleeding.
There was a stone nearby the body. PW-1
suspected that he was killed by someone.

3. On the basis of Written Tehrir Ex
Ka-1,
chick
FIR,
Ex.
Ka-19
was
registered in Police Station concerned by
Constable Clerk as Case Crime No. 97 of
2010, under Section 302 IPC against
unknown accused person, entry whereof
was made in General Diary, copy whereof
is Ex. Ka-20 on record.

4. PW-7 commenced investigation,
proceeded to spot, visited the same and
prepared Site Plan Ex.Ka-13, collected
blood stained and simple earth, prepared
memo Ex.Ka-15. After completing entire
formalities of investigation, he submitted
charge-sheet Ex. Ka-17 against accused
persons.

5. PW-6, under the dictation of PW7, held inquest over dead body of
unknown person, later on identified as
Ajay, and prepared inquest report Ex.Ka6 and other relevant papers thereto, body
was duly sealed and sent for postmortem.

6. PW-5 Dr. Anil Kumar Agarwal
conducted autopsy of dead body of Ajay,
aged about 24 years, son of Ramlal
Jaiswal and prepared postmortem report
Ex. Ka-2, expressing his opinion that
death was possible at about 1-2 days prior
to
postmortem
due
to
coma
and
hemorrhage on account of ante-mortem
injuries, Doctor found following antemortem injuries on the body of deceased,
which read as under :-

i. Lacerated wound 2cm x 1cm
on the right eyebrow.

ii. Lacerated wound 3cm x 1cm
on the right side of the head above 6 cm
right ear.

iii. Lacerated wound 6cm x 2cm
on the ocipital region.

iv. Lacerated wound 3 cm x1 cm on
the left side of face on the mandible region.

7. Case, being exclusively triable by
Court of Sessions, was committed to
Sessions Judge. After making compliance
under Section 207 Cr.P.C. by Chief
Judicial Magistrate concerned, case was
committed to Sessions Judge, Bijnor.

8. Trial Court framed charges on
29.01.2011 against accused Ramnaresh
and Baniya alias Rajesh under Sections
302/34 and 394 IPC and accused-Dinesh
under Sections 302/34, 394 and 411 IPC
respectively, which reads as under :-

(A) "I, S.C. Batra, Sessions
Judge, Bijnor, do hereby charge you
Ramnaresh @ Chunnu Gaur, and Baniya
@ Rajesh @ Mohan @ Babu as follows :

Firstly-That both of you along
with co-accused Dinesh @ Dunnu Gaur
on the intervening night of 21/22.9.2010
at some unknown time in the sugarcane
field of one Katar Singh of Jangal village
Jeetpur Khas, P.S. Nangal, District Bijnor
in furtherance of your common intention
knowingly in intentionally did commit
murder by causing the death of Ajay and
thereby
you
committed
an
offence
punishable under Section 302 read with
Section
34
I.P.C.
and
within
the
cognizance of this Court.

Secondly- That both of you
along co-accused Dinesh @ Dunnu Gaur
406 INDIAN LAW REPORTS ALLAHABAD SERIES
on the aforesaid date, time and place
committed loot of mobile phone (Nokia),
and Rs. 1000/- cash from Ajay in
committed murder of said Ajay and
thereby
you
committed
an
offence
punishable under Section 394 I.P.C. and
within the cognizance of this Court.

And I hereby direct that you be
tried on the said charge."

(B) I, S.C. Batra, Sessions
Judge, Bijnor, do hereby charge you
Dinesh @ Dunu Gaur as follows :

Firstly-That you along with coaccused Ramnaresh @ Chuunu Gaur and
Baniya @ Rajesh @ Mohan @ Babu on
the intervening night of 21/22.9.2010 at
some unknown time in the sugarcane field
of one Katar Singh of Jangal village
Jeetpur Khas, P.S. Nangal, District Bijnor
in furtherance of your common intention
knowingly and intentionally did commit
murder by causing the death of Ajay and
thereby
you
committed
an
offence
punishable under Section 302 read with
Section
34
I.P.C.
and
within
the
cognizance of this Court.

Secondly-That you along coaccused Ramnaresh @ Chunnu Gaur and
Baniya @ Rajesh @ Mohan @ Babu on
the aforesaid date, time and place
committed loot of mobile phone (Nokia),
and Rs. 1000/- cash from Ajay and
committed murder of said Ajay and
thereby
you
committed
an
offence
punishable under Section 394 I.P.C. and
within the cognizance of this Court.

Thirdly-That on 27.9.2010 at
about 8:00 a.m at platform of Railway
Station
Najibabad,
P.S.
Najibabad,
District Bijnor you dishonestly retained
stolen property viz Rs. 440/- and mobile
phone (Nokia-1209) belonging to Ajay
(deceased), knowing the same, to have
been transferred in commission of loot
and thereby you committed an offence
punishable under Section 411 I.P.C. and
within the cognizance of the is Court.

And I hereby direct that you be
tried on the said charge."

9. Accused-appellants pleaded not
guilty and claimed trial.

10. In order to substantiate its case,
prosecution examined as many as seven
witnesses in the following manner :-

Sr.
No.
Name of PW Nature of
witness
Paper
proved
1
Katar Singh
Formal
Ex.Ka-1
2
Babu
Lal
Jaiswal

Fact
-
3
Amit
Kumar
Jaiswal
Fact
-
4
Chandra
Prakash
Formal
Panchnam
a
5
Dr.
Anil
Kumar
Agarwal
Formal
Ex.Ka-2
6
Madan
Pal
Singh
Formal
Ex. Ka-6
7
Nanak Chand

Formal
-

11. In the statement under Section
313 recorded by Trial Court, explaining
entire evidence and other incriminating
circumstances, accused -appellants denied
prosecution story in toto. Entire story is
said to be wrong, they claimed false
2 All. Ram Naresh, Rajesh @ Baniya Dinesh @ Tunnu Gaur Vs State
407
implication but did not choose to lead any
defence evidence.

12. Ultimately, case came to be
heard and decided by Additional Sessions
Judge / Special Judge, Bijnor, who after
hearing learned counsel for parties and
analysing entire evidence (oral and
documentary) led by prosecution, found
accused-appellants guilty, convicted and
sentenced, as stated above.

13. We have heard Sri Noor
Mohammad,
learned
Advocate
for
appellant 1-Ram Naresh and learned
Amicus Curiae for appellants 2 and 3, and
Sri M.C. Dixit, learned AGA for State and
traveled through record with valuable
assistance of learned counsel for parties.

14. Learned counsel for accusedappellants assailed order of conviction
and sentence, took us through the record
and advanced following submissions :-

i. There is no eye witness of
occurrence.
Case
rests
upon
the
circumstantial evidence i.e. last seen
theory and recovery of Mobile.

ii.
Accused-appellants
have
been implicated in the present crime on
the basis of disclosure statement of coaccused and recovery of one Mobile
allegedly belong to deceased.

iii. There is no motive of incident to
accused-appellants to commit present crime.

iv.
Prosecution
failed
to
establish the recovery of Mobile allegedly
belong to deceased.

v.
There
are
several
contradictions
in
the
statements
of
prosecution witness, which may dent
prosecution case.

vi. Prosecution has failed to
establish its case beyond reasonable doubt
against accused-appellants and they are
entitled to get benefit of doubt.

15. Learned A.G.A. vehemently
opposed submissions made by learned
counsel for accused-appellants, submitted
that prosecution case rests upon the
circumstantial evidence based on last seen
theory and recovery of one Mobile
allegedly belong to deceased; there is no
reason to witnesses PW-2 and PW-3 to
connect accused-appellants falsely in the
present
case,
This
is
a
case
of
circumstantial evidence, in which, Ajay
was
assaulted
and
assassinated
by
accused-appellants,
thus
prosecution
proved its case beyond all shadow of
reasonable doubt and appeal is liable to be
dismissed.

16. Although place, time and date of
occurrence, nature of injuries found on
body of deceased, have not been disputed
from the side of accused-appellants but
according to learned Advocate they are
not responsible for murder of Ajay. Even
otherwise from evidence of PW-1, 4, 5, 6
and 7, it is established that Ajay was
assassinated at the time, date, place and in
the manner, as stated by prosecution.

17. Thus the only question remains
for consideration is "whether accusedappellants committed murder of Ajay and
Trial Court rightly convicted them or
not?"

18. We may now briefly consider
evidence led by prosecution. PW-1 is not
witness of incident. He deposed that on
408 INDIAN LAW REPORTS ALLAHABAD SERIES
22.09.2010 at about 2-2:30 p.m. he went
to his tube-well where he saw a dead body
of young unknown person in Sugarcane
field near Tube-well with a blood stained
Danda, one blood stained stone and head
was bleeding. He suspected that he was
killed by someone with stone, which was
lying there. He wrote a Tehrir Ex. Ka-1
and presented in Police Station concerned
for information. PW-2 Babulal Jaiswal
happens to be Uncle of deceased Ajay,
deposed that on 19.09.2010, his nephew
Ajay
went
along
with
accused
Ramnaresh, Dinesh and Baniya to work
as labour. Amit told him that on
22.09.2010, Ajay informed him that he
along with three accused arrived at
Najibabad. Later on, Amit was informed
by Police that dead body of Ajay was kept
in the district hospital Bijnor. Thereafter,
he along with PW-3 and one Kailash
came to District Hospital Bijnor and
identified the dead body as Ajay and
received it. Witness withstood crossexamination in which he admitted that he
did not see anybody assaulting Ajay. He
did not have any receipt of Mobile, which
is alleged to be of Ajay.

19. PW-3, Amit Jaiswal, happens to
be younger brother of deceased Ajay,
deposed that on 19.09.2010 his brother
(victim) came to Chandela from his house
along with accused Ramnaresh, Dinesh
and Baniya. Thereafter, they came to
Najibabad. At that time victim was having
Rs. 3,000/-, one Mobile Nokia Type1269, No. 9977563773. He received the
information by Police regarding murder
of his brother through telephone on
21.09.2010 whereupon, he along with his
uncle Babulal, PW-2, and one Kailash
reached in the intervening night of
23/24.09.2010 at District Hospital, Bijnor
through Max (a four wheeler vehicle). In
District Hospital, he and his uncle
identified dead body as that of Ajay. This
witness withstood cross-examination in
which, he stated that accused Ramnaresh,
Dinesh and Baniya took Ajay from his
house on 19.09.2010 at about 6:00 a.m.
when there was nobody in his house. He
did not leave his brother at Railway
Station. Nobody has assaulted his brother
Ajay before him.

20. According to Advocate for
defence, PW-2 and 3 did not see victim
Ajay in the association of accusedappellants. PW-2 and 3 are only the
witnesses of last seen but they did not
clearly state that accused-appellant took
victim in their presence or they have last
seen victim in the association of accused
persons.

21. We are also of the view that both
the witnesses PW-2 and 3 did not see
Ajay in the company of accusedappellants last time. There is no other
evidence to establish the theory of last
seen.

22.

PW-6
deposed
that
on
22.09.2010, he was posted in Police
Station Nangal. On that day, at about 4:00
p.m., he under the direction of PW-7 held
inquest over the dead body of one
unknown person, prepared inquest report
Ex. Ka-6, handed over dead body to
Constable Vijendra and Jaiveer for
postmortem. At the time of inquest, two
railway
tickets,
from
Allahabad
to
Najibabad dated 20.09.2010, along with
one plain paper containing Mobile No.
9685731879 belonged to PW-3, Amit
Jaiswal, were recovered from the right
pocket of Pant of deceased. Mobile
number was contacted through the Mobile
number of S.O., PW-7, and found it
2 All. Ram Naresh, Rajesh @ Baniya Dinesh @ Tunnu Gaur Vs State
409
belonged to Amit Jaiswal. He was
informed whereabouts of deceased who
was identified as Ajay. Amit told that
victim had gone to Haridwar with Dinesh
and his two other colleague for doing
service, 3-4 days ago. Thereafter, he
along with other Police Officials on the
information of Informer, arrived at
Najibabad Railway Station and arrested
accused-Dinesh
and
on
his
search,
recovered one Nokia-1209 of blackcocacola colour allegedly belong to
deceased without any SIM from right
pocket of his Pant. It is further deposed by
PW-6 that accused-Dinesh confessed his
guilt admitting assassination of Ajay by
him along with other two accusedappellants. In cross-examination, witness
admitted that during the course of inquest,
Amit was contacted by PW-7 and that
kind of Mobile can easily be available in
market.

23. According to Advocate for
defence,
Mobile
recovered
from
possession of accused-Dinesh could not
be got identified by any witness or any
family member of deceased. There is no
cogent evidence that Mobile which is said
to be recovered from the possession of
accused
belonged
to
deceased-Ajay.
Witness of recovery of Mobile have also
not been produced in the Court, therefore,
recovery could not be established by
prosecution. We find substance in the
submission
of
learned
counsel
for
accused-appellants for the reasons that
Mobile could not be got identified by any
of the witness led by prosecution so as to
prove that it belong to Ajay. Witness of
recovery
could
be
produced
by
prosecution but not.

24. In case in hand there is no eye
witness of occurrence. Case of prosecution
rests on circumstantial evidence. There
cannot be any dispute as to the well settled
proposition that the circumstances from
which the conclusion of guilt is to be drawn
must or "should be" and not merely "may be"
fully established. The facts so established
should be consistent only with the guilt of the
accused, that is to say, they should not be
explicable through any other hypothesis
except
that
the
accused was guilty.
Moreover, the circumstances should be
conclusive in nature. There must be a chain
of evidence so complete so as to not leave
any reasonable ground for a conclusion
consistent with the innocence of the accused,
and must show that in all human probability,
the offence was committed by the accused.

25. In Hanumant Govind Nargundkar
& Anr. v. State of M.P., AIR 1952 SC 343, a
basic judgment of Supreme Court on
appreciation of evidence, when a case
depends only on circumstantial evidence,
where Court said:

"... circumstances should be of
a conclusive nature and tendency and
they should be such as to exclude every
hypothesis but the one proposed to be
proved...... it must be such as to show that
within all human probability the act
must have been done by the accused."

26. In Hukam Singh v. State of
Rajasthan, AIR 1977 SC 1063, Court
said, where a case rests clearly on
circumstantial evidence, inference of guilt
can be justified only when all the
incriminating facts and circumstances are
found to be incompatible with innocence
of accused or guilt of any other person.

27. In Sharad Birdhichand Sarda
v. State of Maharashtra, AIR 1984 SC
1622, Court, while dealing with a case
410 INDIAN LAW REPORTS ALLAHABAD SERIES
based on circumstantial evidence, held
that onus is on prosecution to prove that
chain is complete. Infirmity or lacuna, in
prosecution, cannot be cured by false
defence or plea. Conditions precedent
before conviction, based on circumstantial
evidence, must be fully established. Court
described following condition precedent :-

(1) the circumstances from
which the conclusion of guilt is to be
drawn should be fully established. The
circumstances
concerned
'must
or
should' and not 'may be' established

(2) the facts so established
should be consistent only with the
hypothesis of the guilt of the accused,
that is to say, they should not be
explainable on any other hypothesis
except that the accused is guilty.

(3) the circumstances should be
of a conclusive nature and tendency.

(4) they should exclude every
possible hypothesis except the one to be
proved, and

(5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done
by the accused. (emphasis added)

28. In Ashok Kumar Chatterjee v.
State of Madhya Pradesh, AIR 1989 SC
1890, Court said:

"...when a case rests upon
circumstantial evidence such evidence
must satisfy the following tests :-

(1) the circumstances from
which an inference of guilt is sought to
be drawn, must be cogently and firmly
established;

(2) those circumstances should
be of a definite tendency unerringly
pointing towards guilt of the accused;

(3) the circumstances, taken
cumulatively; should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by
the accused and none else; and,

(4) the circumstantial evidence
in order to sustain conviction must be
complete and incapable of explanation
of any other hypothesis than that of the
guilt of the accused and such evidence
should not only be consistent with the
guilt of the accused but should be
inconsistent with his innocence."
 (emphasis added)

29. In C. Chenga Reddy and Others
v. State of Andhra Pradesh, 1996(10)
SCC 193, Court said:

"In
a
case
based
on
circumstantial evidence, the settled law is
that the circumstances from which the
conclusion of guilt is drawn should be
fully proved and such circumstances
must be conclusive in nature. Moreover,
all the circumstances should be complete
and there should be no gap left in the
chain of evidence. Further, the proved
circumstances must be consistent only
with the hypothesis of the guilt of the
accused and totally inconsistent with his
innocence." (emphasis added)

30. In Bodh Raj @ Bodha and
Ors. v. State of Jammu and Kashmir,
2002(8) SCC 45 Court said :
2 All. Ram Naresh, Rajesh @ Baniya Dinesh @ Tunnu Gaur Vs State
411

"(1) the facts alleged as the
basis of any legal inference must be
clearly proved and beyond reasonable
doubt
connected
with
the
factum
probandum;

(2) the burden of proof is
always on the party who asserts the
existence of any fact, which infers legal
accountability;

(3) in all cases, whether of
direct or circumstantial evidence the best
evidence must be adduced which the
nature of the case admits;

(4) in order to justify the
inference of guilt, the inculpatory facts
must be incompatible with the innocence
of
the
accused
and
incapable
of
explanation, upon any other reasonable
hypothesis than that of his guilt,

(5) if there be any reasonable
doubt of the guilt of the accused, he is
entitled as of right to be acquitted."
 (emphasis added)

31. The above principle in respect of
circumstantial
evidence
has
been
reiterated in subsequent authorities also in
Shivu and Another v. Registrar General
High Court of Karnataka and Another,
2007(4) SCC 713 and Tomaso Bruno v.
State of U.P., 2015(7) SCC 178.

32. In the present case, there is no
eye witness. None has seen the accusedappellants murdering deceased-Ajay. PW2 and 3 failed to establish last seen theory.
Mobile recovered could not be got proved
to be of deceased-Ajay. There is no other
evidence on record to connect accusedappellants with the present crime. Hence
it can be said that crime could have been
committed by somebody else. There is no
complete chain of circumstances to
indicate that accused-appellants are the
only person who murdered Ajay.

33. Looking into entirety of facts
and circumstances of the case, as
discussed above, we are of the view that
Trial Court has not marshalled entire
evidence on record with care and caution
and is not correct in convicting accusedappellants, solely relying on last seen
theory and recovery of Mobile, as stated
by prosecution, that too not supported by
any other witnesses, overlooking other
major contradictions in their evidence and
missing chain of circumstantial evidence.
In our view, accused-appellants are
entitled to benefit of doubt and it cannot
be said that prosecution has been
successful in proving guilt of accusedappellants beyond reasonable doubt.

34. In the result, appeal succeeds and
is allowed. Impugned judgment and order
dated 08.07.2011 passed by Additional
Sessions Judge / Special Judge, Bijnor, in
Sessions Trial No. 987 of 2010 is hereby set
aside. Accused-appellants are acquitted of
charges leveled against them. They are in jail
and shall be released forthwith, if not wanted
in any other case.

35. Keeping in view provisions of
Section
437-A
Cr.P.C.,
accusedappellants are directed to furnish a
personal bond and two sureties before
Trial Court to its satisfaction, which shall
be effective for a period of six months,
along with an undertaking that in event of
filing of Special Leave Petition against
instant judgment or for grant of leave,
appellants on receipt of notice thereof
shall appear before Hon'ble Supreme
Court.
412 INDIAN LAW REPORTS ALLAHABAD SERIES

36. Lower Court record along with a
copy
of
this
judgment
be
sent
immediately to District Court concerned
for compliance and further necessary
action.

 37. Before parting, we provide that
Sri Noor Mohammad, Advocate, who has
appeared as Amicus Curiae for appellants
2 and 3 in present Jail Appeal, shall be
paid counsel's fee as Rs. 10,000/-. State
Government is directed to ensure payment
of aforesaid fee through Additional Legal
Remembrancer, posted in the office of
Advocate General at Allahabad, without
any delay and, in any case, within one
month from the date of receipt of copy of
this judgment.
----------

(2019)10ILR A 412

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAM KRISHNA GAUTAM, J.

Jail Appeal No. 2314 of 2013

Mubarak Ali ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Araf Khan, Sri Brijesh Chand Kaushik,
Sri Lihazur Rahman Khan, Sri Noor
Mohammad

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

A. Indian Penal Code, 1860 -Sections
302, 504 and 506 - Appeal against
conviction - Ocular testimony of the
injury caused by the appellant upon
informant cannot be said to be incorrect
are discredit worthy and on the other
hand entire evidence is consistent and
duly corroborated the FIR version.

B. Indian Evidence Act, 1872 - Section 27 -
How much information received from
accused may be proved Section 27Sections 25 and 26 provide that no
confession made to the police officer
whether in custody or not can be proved
against the accused. Section 27, is proviso
to above Sections and statement even by
way of confession, which distinctly relates
to the fact discovered is admissible as
evidence
against
accused
in
the
circumstances stated in Section 27.
It is settled law that not the number of
witnesses, but their quality which is material.
Non examination of one or more witnesses will
not help an accused if the evidence adduced
by prosecution is sufficient to prove the charge
leveled against the accused. (Para 35)
Jail Appeal dismissed (E-2)
List of Cases Cited: -
1. Delhi Administration Vs Bal Krishan & ors.
1972(4) SCC 659
2. Mohmed Inayatullah Vs The St. of Mah.
1976 (1) SCC 828
3. Bodh Raj @ Bodha & ors. Vs St. of J&K
2002(8) SCC 45
4. Criminal Appeal No. 1333 of 2009 Raju
Manjhi Vs St. of Bihar
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This Jail Appeal under Section 383
Cr.P.C. has been preferred by accusedappellant
Mubarak
Ali
through
Jail
Superintendent, Aligarh against judgment
and order dated 23.10.2012 passed by Sri
Vinod
Kumar-II,
Additional
Session