# State of U.P v. Ajai Mishra @ Taini & Ors

- **Citation:** (2023) 5 ILRA 1965
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-19
- **Case number:** Government Appeal No. 1624 of 2004
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-ajai-mishra-taini-ors-50187
- **Pages:** 24

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 378 - de facto Complainant
has preferred revision under Sections 397
r/w 401 under Cr.P.C. against order of
acquittal of all four accused- Sessions Trial
under Sections 302, 302/34 IPC- murder
of one Prabhat Gupta alias Raju- FIR
lodged by father- occurrence probable in
the background of some political rivalry
and enmity-commission of offence and
complicity of offenders are two different
realities-acquittal order cannot be lightly
interfered
by
the
Appellate
Courtpresumption
of
innocence
is
further
strengthened by the acquittal of an
accused-if two views are possible on the
evidence
adduced
in
the
case-view
favourable to the accused should be
adopted- St.ment of hostile witness can
be examined by the court to reach a
correct
conclusion-
St.ment
of
star
witness PW-3 cannot be believed to be
true-inordinate delay in recording the
St.ment of PW-10 is unexplainable-FIR is
ante-timed-gun-shot
fired
from
a
distance-not from the range of one stepno blackening and charring on the body of
the
deceased-presence
of
the
eye
witnesses
on
the
spot
of
incident
doubtful- trial court judgement upheld -
Appeal dismissed. (Paras 20,21,23, 43,
59,61, 62, 66, 70, 72, 74 and 75)

HELD:
This Court while dealing with the case is
conscious of the fact that the commission of an
offence and complicity of the offenders are two
different realities. The complicity of an offender
must provenly be established connected to the
commission of charged offence, then only it is
permissible for a court of law to derive the
product of conviction failing which the acquittal
is the rule. (Para 20)

The law stands settled that any acquittal order
cannot be lightly interfered with by the
Appellate Court, though this Court has wide
powers to review the evidence and to come to
its own conclusion. However, the power to grant
leave must be exercised with care and caution
because the presumption of innocence is further
strengthened by the acquittal of an accused.
(Para 21)

Further, it is a cardinal principle of criminal
jurisprudence that the guilt of the accused must
be proved beyond all reasonable doubt. The
burden of proving its case beyond all reasonable
doubt lies on the prosecution and it never shifts.
Another golden thread which runs through the
web of the administration of justice in criminal
cases is that if two views are possible on the
evidence adduced in the case, one pointing to
the guilt of the accused and the other to his
innocence, the view which is favourable to the
accused should be adopted. (Para 23)

On a careful analysis of the evidence available
on records, we do not find that the St.ment of
star witnesses PW-3 about the meeting of PW-2
at his house can be believed to be true,
therefore the testimony of PW-3 to have met at
home and accompanied with PW-2 by following
the deceased, a

## Text

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5 All. State of U.P. Vs. Ajai Mishra @ Taini & Ors.
1965
intimidation or coercion or otherwise, I am
of the view that first information report
registered against the applicant under
Section 3(1) of the Act cannot be sustained.
Further the words "or otherwise" used in
the first part of section 2(b) of the Act,
shall derive its meaning from the preceding
words and it shall not include all general
acts/offences which are trivial in nature, for
the purpose of the Section 2(b) of the Act.
So far as the contention of learned A.G.A.
that on a solitary case, the gangsters can be
invoked is concerned, there is no quarrel on
this point. The law is settled. The Apex
Court has already settled the controversy in
the case of Shraddha Gupta (supra)
wherein in para 10 it has been held that
there can be prosecution against a person
even
in
a
case
of
a
single
offence/F.I.R./charge sheet for any of the
antisocial activities mentioned in Section
2(b) of the Act provided such antisocial
activity is by violence or threat or by show
of violence or intimidation or coercion or
otherwise with the object of disturbing
public order or of gaining any undue
temporal pecuniary material or advantage
for himself or any other person. In the
present case, it is alleged that the petitioner
herein was apprehended with 2 kg meat in
his right hand. There is no allegation of any
of the antisocial activities mentioned in
Section 2 of the Act such as violence,
threat, show of violence, intimidation,
coercion etc., therefore, it cannot be said
that the said offence was committed by the
applicant for object of disturbing public
order or of gaining undue temporal
pecuniary material or other advantage for
himself or any other person.

14. It is settled that for a solitary case,
the gangster can be imposed against the
accused persons, if the offence is found to
have been committed for any of the
antisocial activity mentioned in Section
2(b) of the Act. It is not the case here. In
the present case, there is nothing on the
record to suggest that the charge sheet has
been filed for any of the antisocial activities
mentioned in Section 2(b) of the Act as
discussed above. The accused may commit
such kind of offence just once or he may
commit several offences and could face
more than one F.I.R.s in that connection,
the numbers of the F.I.R.s are irrelevant.
The motive behind the offence and the
object has to be seen in order to arrive at a
conclusion whether the provision of the
gangsters act can be invoked in a given
case or not. The motive and the object are
clearly missing, thus, the case could not
have been brought under the provision of
the Act.

15. In view of the aforesaid reasons,
the entire criminal proceedings as well as
charge sheet under the Act as well as
consequential proceedings are quashed.
The application is allowed.

Let copy of this order sent to the
learned trial court forthwith
----------
(2023) 5 ILRA 1965
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.05.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Government Appeal No. 1624 of 2004
AND
Criminal Revision No. 221 of 2004

State of U.P. ...Appellant
Versus
Ajai Mishra @ Taini & Ors.
 ...Accused-Respondents
1966 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
A.H. Rizvi, Avanindra Singh Parihar, Govt.
Advocate, Nagendra Mohan, Sushil Kumar
Singh

Counsel for the Respondents:
S.K. Shukla, Armendra Pratap Singh, Brij
Mohan Sahai, Pradeep Chaurasia, Parnendu
Chakravarty, Salil Kumar Srivastava, Sumit
Kumar Singh

Criminal Law - Criminal Procedure Code,
1973 - Section 378 - de facto Complainant
has preferred revision under Sections 397
r/w 401 under Cr.P.C. against order of
acquittal of all four accused- Sessions Trial
under Sections 302, 302/34 IPC- murder
of one Prabhat Gupta alias Raju- FIR
lodged by father- occurrence probable in
the background of some political rivalry
and enmity-commission of offence and
complicity of offenders are two different
realities-acquittal order cannot be lightly
interfered
by
the
Appellate
Courtpresumption
of
innocence
is
further
strengthened by the acquittal of an
accused-if two views are possible on the
evidence
adduced
in
the
case-view
favourable to the accused should be
adopted- St.ment of hostile witness can
be examined by the court to reach a
correct
conclusion-
St.ment
of
star
witness PW-3 cannot be believed to be
true-inordinate delay in recording the
St.ment of PW-10 is unexplainable-FIR is
ante-timed-gun-shot
fired
from
a
distance-not from the range of one stepno blackening and charring on the body of
the
deceased-presence
of
the
eye
witnesses
on
the
spot
of
incident
doubtful- trial court judgement upheld -
Appeal dismissed. (Paras 20,21,23, 43,
59,61, 62, 66, 70, 72, 74 and 75)

HELD:
This Court while dealing with the case is
conscious of the fact that the commission of an
offence and complicity of the offenders are two
different realities. The complicity of an offender
must provenly be established connected to the
commission of charged offence, then only it is
permissible for a court of law to derive the
product of conviction failing which the acquittal
is the rule. (Para 20)

The law stands settled that any acquittal order
cannot be lightly interfered with by the
Appellate Court, though this Court has wide
powers to review the evidence and to come to
its own conclusion. However, the power to grant
leave must be exercised with care and caution
because the presumption of innocence is further
strengthened by the acquittal of an accused.
(Para 21)

Further, it is a cardinal principle of criminal
jurisprudence that the guilt of the accused must
be proved beyond all reasonable doubt. The
burden of proving its case beyond all reasonable
doubt lies on the prosecution and it never shifts.
Another golden thread which runs through the
web of the administration of justice in criminal
cases is that if two views are possible on the
evidence adduced in the case, one pointing to
the guilt of the accused and the other to his
innocence, the view which is favourable to the
accused should be adopted. (Para 23)

On a careful analysis of the evidence available
on records, we do not find that the St.ment of
star witnesses PW-3 about the meeting of PW-2
at his house can be believed to be true,
therefore the testimony of PW-3 to have met at
home and accompanied with PW-2 by following
the deceased, after having meal, remains
doubtful. The facts of dharna was introduced to
make the presence of PW-2 at the house of the
informant as natural but the truth of the matter
is that no such dharna was called on 08.07.2000
as is corroborated by the St.ment of PW-8.
(Para 59)

Moreover, it has come in evidence that one
bullet was found inside the body of deceased. If
bullet could not pass through the body, this
shows that velocity of bullet was not very high.
This further shows that it was not possible to
cause such injury from a distance of 1 step or
for that matter from 3-4 steps. Apparently, if
fire is made from a close range of one step, the
entrance wound would be big whereas a fire
made from distant range the wound would be
smaller in size. In the present case, as per
St.ment of P.W.9, the entry wound is of two
5 All. State of U.P. Vs. Ajai Mishra @ Taini & Ors.
1967
categories, one being of 0.5 x 0.5 cm & anr. of
1 cm x I cm in size which demonstrates that
story of firing from a distance of merely one
step is highly unlikely and impossible. The test
regarding close range gunshot wound was
considered in catena of judgments. (Para 66)

In the instant case, the entry wound of
deceased does not show of any blackening, the
doctor had opined that gunshot must have been
caused from a distance. If we examine this
finding on the basis of analysis made by the
Apex Court, we will not be able to hold that the
story of prosecution that gunshot injury was
caused from a distance of merely one step to be
trustworthy. Thus keeping in view the aforesaid
observations of the apex court vis-a-vis the
opinion of the doctor, the gunshots must have
been made from a distance of more than six
feet. (Para 70)

This court finds that all the aforesaid aspects
have been considered threadbare by the Trial
Court. The evidence recorded in the present
case has been appreciated in its correct
perspective and the Trial court has at no point
of time missed the woods of the tree. Thus, we
do not find any perversity in the order of
acquittal passed by the Trial Court and in any
case, the law presumes double presumption in
favour of the accused after a due adjudication
by the trial Court. Further, on recording of the
findings as aforesaid, we find that the
prosecution has utterly failed to establish the
chain of events which can be said to exclusively
lead to the one and only conclusion, i.e., the
guilt of the accused persons. In that view of the
matter, we find that the judgment and order of
the learned Sessions Judge to be a plausible
and sustainable view, especially when the Trial
Court had the advantage of seeing and
assessing the demeanour of witnesses. (Para
74)

This court has also recorded its independent
finding and holds that the theory put forth by
prosecution that the four accused persons were
liable for causing death of the deceased is
unconvincing and shorn of evidence proved
beyond reasonable doubt. (Para 75)

Appeal dismissed. (E-14)

List of Cases cited:

1. Chandrappa & ors. Vs St. of Karn. (2007) 4
SCC 415

2. Ravi Sharma VS St. (Government of NCT of
Delhi & Anr. (2022 SCC Online 859)

3. Mohan @ Srinivas @ Seena @ Taialor Seena
VS St. of Karn. (2021 SCC Online SC 1233)

4. N. Vijayakumar VS St. of T. N. (2021) 3 SCC
687

5. Kali Ram Vs St. of H. P., (1973) 2 SCC 808

6. Upendra Pradhan Vs St. of Orissa, (2015) 11
SCC 124

7. Golbar Hussain & Ors. Vs St. of Assam & anr.,
(2015) 11 SCC 242

8. Rajesh Yadav & anr. Vs St. of U.P., reported in
2022 SCC OnLine SC 150

9. Arjun & anr. Vs St. of Chhattisgarh reported
in (2017) 3 SCC 247

10. Masalti Vs St. of U. P., AIR 1965 SC 202

11. Balaka Singh Vs St. of Pun., AIR 1975 SC
1962

12. Ugar Ahir & Ors. Vs St. of Bihar, AIR 1965
SC 277

13. Arvind Kumar @ Nemichand & ors. Vs St. of
Raj. (2021 SCC Online SC 1099

14. (1971) 3 SCC 192 (Balakrushna Swain Vs St.
of Orissa)

15. (1976) 4 SCC 288 (St. of Orrisa Vs Mr.
Brahmananda Nanda

16. (1978) 4 SCC 371 (Ganesh Bhavan Patel &
anr.Vs St. of Mah.)

17. (2016) 16 SCC 418 (Harbeer Singh & anr.Vs
Sheeshpal & ors.)

18. Noor Khan Vs St. of Raj. (1964) 4 SCR 521
1968 INDIAN LAW REPORTS ALLAHABAD SERIES
19. Janak Singh Vs St. of U.P. (1973) 3 SCC 50

20. A.N. Chandra Vs St. of U.P. (1990, Supp SCC
717)

21. Swaran Singh Vs St. of Pun.(2000) 5 SCC
668

22. Criminal Appeal No. 25 of 2012 (Ram Niwas
Vs St. of Haryana).

23. Krishnegowda & ors. Vs St. of Karn., (2017)
13 SCC 98

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

A. Introduction

1. Both the State and the de-facto
Complainant
are
before
this
court
challenging the order of acquittal of all the
four accused/ respondents by the Trial
Court in Sessions Trial No. 518/2001,
under section 302, 302/34 IPC, wherein the
Trial Court, while acquitting these accused
persons of all the charges concluded vide
an order dated 29.03.2004, as inter-alia:

"123. On the basis of above
attempted
discussion, prosecution has
utterly failed to prove its case and it does
not inspire any confidence. Presence of the
eye witnesses on the spot is not proved and
prosecution story had been developed from
stage to stage to give colour to the
prosecutions story. Prosecution story is
inconsistent to medical evidence and
prosecution story which has come later, is
not in support of the FIR and for these
reasons, I am of the opinion that
prosecution story and evidence led in this
support at all not credible and all the
accused persons in this case must be
acquitted of all the charges levelled against
them in this case."

While the state has filed Criminal
Appeal No. 1624 of 2004 under section 378
of the Criminal procedure Code, the defacto complainant has preferred Criminal
revision No. 221 of 2004 under section 397
r/w 401 of the Criminal procedure Code.

Since,
both
the
proceedings
engaging the attention of this court, arise
out of the same impugned order and lead to
the same facts & circumstances, they are
being dealt and disposed of vide this
common judgment.

B. Facts of the case

2. The appeal at hand filed by the
State under Section 378 CrPC relates to the
murder of one Prabhat Gupta alias Raju of
which FIR was lodged by one Santosh
Gupta (father) at Tikonia Police Station,
District Lakhimpur Kheri on 8.7.2000 at
3.30 pm. The hearsay information giving
rise to the FIR shows presence of four
culprits at the time of incident mentioned in
the FIR who were identified by two eye
witnesses named therein. The information
states that the deceased had left from the
house of the informant at 3 pm on 8.7.2000
for going to the shop. On reaching the main
road, the deceased was done to death by the
two named culprits and the death occurred
on the spot.

3. The eye witnesses in the FIR were
stated to have seen the occurrence in broad
day light which according to the informant
was probable in the background of some
political
rivalry
and
enmity.
The
registration of the FIR by the scribe Shri
Krishna (HM-53) on 8.7.2000 at 3.30 pm
had set the machinery of law in motion.

4.

The
action
that
followed
immediately after lodging of the FIR was
visiting the scene of occurrence by
5 All. State of U.P. Vs. Ajai Mishra @ Taini & Ors.
1969
Investigating Officer and drawing up the
site plan with reference to the dead body,
noticing recovery of some articles inclusive
of two empty cartridges, a pair of footwear
and thereafter inquest report was prepared
from 3.40 pm to 5 pm in presence of
panchas. The inquest report significantly
notices the injuries on the dead body and
takes note of the site plan from where two
empty cartridges etc were recovered. The
oozing blood and the direction of fire arm
injuries from right to left was also
mentioned. The inquest report mentions
handing over of the sealed dead body at 5
pm on 8.7.2000 to two police personnel for
obtaining the postmortem report to definite
the cause of death which according to the
panchas had occurred due to fire arm
injuries.

5. The postmortem was conducted on
9.7.2000 at 11 am and the report was
accordingly drawn. The deceased had
sustained two gunshot wounds of entry and
only one exit wound. Besides the deceased,
who lost his life, no one was injured.

6. According to the doctor, death
occurred due to shock and haemorrhage as
a result of ante mortem injuries and one
bullet was recovered from the dead body.

7. The investigation was conducted in
piecemeal by different officers. SI T.B.
Singh conducted the investigation of the
case from 8.7.2000 to 15.7.2000 and from
16.7.2000 to 18.7.2000 investigation was
done by the team constituted under the
order of the IG Zone and investigation was
headed by Balvir Singh SIS (Security and
Investigation Services). On assumption of
investigation by the SIS team, on one day
i.e. 19.7.2000 investigation was done by
Hemant Singh, member of SIS team,
however, from 20.7.2000 to 28.9.2000
investigation was conducted by R.P Tiwari
of
CBCID.
The
proceedings
of
investigation, if any, conducted between
28.9.2000 to 6.11.2000 are not clear from
the record available before this Court. It is
though apparent from the record that from
6.11.2000 to 13.12.2000 another R.P.
Tiwari of SIS who after collection of
evidence concluded the investigation with
the submission of charge sheet against the
accused persons.

8. Until the stage of investigation
many aspects shock to normal prudence
like if the timing of FIR was so prompt
then why the postmortem report was
prepared a day later and why the recording
of statements under Section 161 CrPC was
delayed.

9. The delay in the arrest of culprits
and shifting of investigation from one
agency to another speak large. The
investigation officer in order to bring
accuracy in the matter of place of
occurrence prepared a second site plan on
26.11.2000 but the recovery made was not
taken aid of to explore the truth for the two
cartridges and one bullet recovered were
not subjected to any ballistic report. The
measured distance in footsteps from the
house of informant upto the point of
occurrence in the two site plans stands at
variance and the directional route also
varies.

10. After cognizance, when it came to
the stage of framing the charge before the
court of session, charge simplicitor under
Section 302 IPC was framed only against
the two accused persons attributed the role
of fire arm injuries whereas, the other two
were tried for the same offence with the aid
of Section-34 IPC. The place of occurrence
in the frame of charge is mentioned within
1970 INDIAN LAW REPORTS ALLAHABAD SERIES
the limits of Tikonia town and is not
circumscribed within either of the two site
plans.

11. The accused persons abjured their
guilt and claimed trial. The case was
thereafter transferred to the court of Addl
Sessions Judge/Fast Track Court No. 4 and
by order of this Court passed on 23.2.2004,
the trial was transferred to the court of
Sessions Judge where day to day hearing
was done and the same concluded on
24.3.2004.

12. The prosecution in order to prove
the guilt, has examined as many as 12
witnesses. The informant, Santosh Gupta
(PW-1), father of the deceased; the eye
witnesses mentioned in the FIR Vinod
Gupta, (PW-2) and Sanjeev Gupta (brother
of the deceased i.e. PW-3). The other eye
witnesses discovered during investigation
viz. Shiv Kumar (PW-4) and Jagdish
Prasad Yadav (PW-10); Gopal Verma
(PW-5) and Atul Gupta (PW-6) were
examined as witnesses of Panchayatnama.
Dr S.K. Maneer (PW-7) who conducted
postmortem, HC 53 Sri Krishna (PW-8)
who prepared chik, T.B. Singh (PW-9) IO,
R.P. Tiwari-I (PW-11) IO and another R.P.
Tiwari (PW-12) who also investigated the
case were examined as official witnesses.

13. In their statements recorded under
Section 313 CrPC the accused respondents
denying the charges of murder, stated that
they have been implicated due to political
rivalry
and
enmity
erupted
due
to
panchayat elections. They denied the
prosecution story and submitted that the
witnesses have given false statements in
order to implicate them in the case.

14. The case set out by defence in
extenuation of the charges, as already
stated, is that the accused-respondents have
been falsely roped in the case. They,
however, adduced no evidence in support
of their defence.

C. Appeal / Revision

15.
 The Sessions
Judge
after
scrutinizing and appraisal of evidence,
recorded the verdict of acquittal of the
accused-respondents of the charge under
Section 302 IPC read with Section 34 IPC,
giving rise to this State appeal under
Section 378 CrPC which on leave being
granted was admitted by order dated
3.2.2005.

16. Sri Umesh Chandra Verma,
learned AGA has argued this appeal for the
State whereas the complainant who had
instituted the criminal revision no. 221 of
2004 against the same very judgment
having passed away during the pendency of
criminal revision, was heard through his
legal representatives as victims. This
opportunity was granted by passing an
order on the connected criminal revision on
13.2.2023 and the relevant part of the same
is reproduced as under:

"...................In
the
present
case, however, the connected appeal i.e.
Criminal
Appeal
No.1624
of
2004
instituted by the State is pending against
the same very judgment, therefore, the
consequence of abatement of the present
revision is inconsequential and does not
leave the legal heirs of the revisionist as
remediless.
The
legal
heirs
of
the
revisionist
have
an
opportunity
of
participating in the pending criminal
appeal instituted by the State as victim, for
which, a similar application has been made
by the applicants in the connected criminal
appeal.
5 All. State of U.P. Vs. Ajai Mishra @ Taini & Ors.
1971

Having regard to the scope of
Section 397 read with Section 401 CrPC
juxtaposed to Section 394 CrPC, we
dispose of this application permitting the
legal heirs or any one of them to
participate in the connected criminal
appeal as victims to which there is no
objection by the accused respondents."

17. Learned AGA for the State argued
the matter very ably and taking us through
the material on record, has reprehended the
trial court for not having proceeded with
the case in the correct perspective. The
appreciation of evidence according to the
prosecution being seriously faulty, renders
the acquittal of the accused respondents as
illegal and perverse.

18. According to the learned counsel
for the State, it was a case of broad day
light murder, duly witnessed by eye
witnesses and the prosecution having
successfully proved the evidence as wholly
reliable, therefore, the acquittal recorded by
the trial court is against the weight of
evidence.

Learned
counsel
for
the
prosecution, however, conceded to the
preposition that an acquittal through the
process of law safeguards the presumption
of innocence doubly and the prosecution in
order to make out a case for conviction, is
duty bound to prove its stand beyond a
reasonable doubt and show that the
acquittal recorded by the trial court was
not a possible view.

19. The frame of the prosecution case
having been set on the testimony of starwitness Sanjeev Gupta (PW-3) brother of
the deceased, it is argued that the
corroborative evidence when read correctly
does not leave any doubt in the pyramid of
prosecution case and the resultant opinion
in any view of the matter is none other than
the conviction of culprits spotted at the
place
of
occurrence,
therefore,
the
judgement of the trial court deserves
reversal.

20. Elaborating on the foundational
testimony of Sanjeev Gupta (PW-3) who
was the real brother of the deceased, it was
argued that his oral testimony being natural
was wholly reliable and the corroborative
evidence fully supports the case of
prosecution.

This Court while dealing with
the case is conscious of the fact that the
commission
of
an
offence
and
complicity of the offenders are two
different realities. The complicity of an
offender must provenly be established
connected to the commission of charged
offence, then only it is permissible for a
court of law to derive the product of
conviction failing which the acquittal is
the rule.

D. Analysis of evidence

21. The law stands settled that any
acquittal order cannot be lightly interfered
with by the Appellate Court, though this
Court has wide powers to review the
evidence and to come to its own
conclusion. However, the power to grant
leave must be exercised with care and
caution
because
the
presumption
of
innocence is further strengthened by the
acquittal of an accused. The Apex Court in
Chandrappa & Others v. State of
Karnataka (2007) 4 SCC 415, this Court
held:

"(1) An appellate court has full
power
to
review,
reappreciate
and
1972 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

22. The Hon'ble Apex Court recently
in the case of Ravi Sharma V. State
(Government of NCT of Delhi & Anr.
(2022 SCC Online 859) and Jafarudheen
and Others V. State of Kerala (2022 SCC
Online SC 495), which was passed after
following earlier precedents like (i) Mohan
alias Srinivas aliwas Seena Alias Taialor
Seena V. State of Karnataka (2021 SCC
Online SC 1233), (ii) N. Vijayakumar V.
State of Tamil Nadu (2021) 3 SCC 687),
reiterated the scope of section 378 of the
Code of Criminal Procedure while dealing
an appeal against acquittal by the High
Court in the following words;

"25. While dealing with an
appeal against acquittal by invoking
Section 378 of the Cr.PC, the Appellate
Court has to consider whether the Trial
Court's view can be termed as a possible
one, particularly when evidence on record
has been analyzed. The reason is that an
order of acquittal adds up to the
presumption of innocence in favour of the
accused. Thus, the Appellate Court has to
be relatively slow in reversing the order of
the
Trial
Court
rendering
acquittal.
Therefore, the presumption in favour of the
accused does not get weakened but only
strengthened. Such a double presumption
that enures in favour of the accused has to
be disturbed only by thorough scrutiny on
the accepted legal parameters."

23. Further, it is a cardinal principle
of criminal jurisprudence that the guilt of
the accused must be proved beyond all
reasonable doubt. The burden of proving its
case beyond all reasonable doubt lies on the
prosecution and it never shifts. Another
golden thread which runs through the web
of the administration of justice in criminal
cases is that if two views are possible on
the evidence adduced in the case, one
pointing to the guilt of the accused and the
other to his innocence, the view which is
favourable to the accused should be
adopted. [Vide Kali Ram Vs. State of
5 All. State of U.P. Vs. Ajai Mishra @ Taini & Ors.
1973
Himachal Pradesh, (1973) 2 SCC 808;
State of Rajasthan Vs. Raja Ram, (2003) 8
SCC 180; Chandrappa & Ors. vs. State of
Karnataka, (2007) 4 SCC 415; Upendra
Pradhan Vs. State of Orissa, (2015) 11
SCC 124 and Golbar Hussain & Ors. Vs.
State of Assam and Anr., (2015) 11 SCC
242].

24. Keeping in mind the aforesaid
position of law, we shall examine the
arguments advanced by the parties as also
the evidence and the materials on record
and see whether in view of the nature of
offence alleged to have been committed by
the Respondents, the findings of fact by the
Trial Court call for interference in the facts
and circumstances of the case.

25. Now coming to the case at hand it
is to be noted that the very presence of the
eye witnesses for the purposes of proving
complicity of the accused at the place of
incident begins from the residential place
of the informant. The star witness (PW-3)
according to the story of prosecution shows
his presence started from his father's
residence alongwith Vinod Gupta (PW-2)
and were following the deceased Prabhat
Gupta alias Raju who had left the same
house, after having meal, for shop nearly
about the same time in the afternoon. It was
from a close distance from the place of
occurrence that they spotted all the four
accused possessed with small fire arms and
saw two of them firing on the body of the
deceased in the day light at 3 pm on
8.7.2000. For proving the presence of these
two eye witnesses, the prosecution owes a
burden of proof not only to establish that
the two witnesses were present at the place
of occurrence but they were also present at
the residential place of the informant where
they joined together. The definite allegation
of togetherness of two witnesses in the FIR
read with the examination in chief of PW-3
shows that both of them started together
from the house of informant and had
followed the deceased up to the place of
occurrence when they saw the deceased
shot at by the two named accused and
thereafter
brandishing
their
weapons
alongwith two more known accused, all ran
away from the place of incident towards
old kotwali in the west. It is significant to
note that when the two eye witnesses
reached the deceased, they found him dead.

26. It was nowhere stated by the
witness PW-3 in his examination in chief
that any other person had witnessed the
occurrence and no such person was named.

27. The whole story of complicity of
the accused persons revolves around the
oral evidence of PW-1, PW-2, PW-3, PW-4
and PW-10 who are the witnesses of facts
to establish the complicity of the four
accused. The rest of evidence is the
corroborative evidence.

28. The togetherness of the informant
(PW-1), the eye witness (PW-3) and the
deceased at their home on the date of
occurrence is natural as they all were
residing in the same house but once it is
stated that PW-3 accompanied Vinod
Gupta (PW-2) from the same very house
upto the place of incident, the burden of
proof multiplies and accords equal respect
to the testimony of PW-2.

29. The informant in the first place
altered his version in his examination-inchief regarding the purpose of going out of
the deceased. The statement of going to
shop was altered and to attend the 'dharna'
instead of shop was introduced but such a
diversion deserves scrutiny and the purpose
thereof needs to be understood. This
1974 INDIAN LAW REPORTS ALLAHABAD SERIES
diversion was introduced to establish the
presence
of
Pw-2
whose
presence
otherwise at the house of the informant was
unnatural. The informant in order to
explain the presence of PW-2 at his house
on 8.7.2000 introduced this fact of which
there is no explanation by PW-3 in his
testimony. It is in order to justify the
contradiction that a new version was
introduced by the informant contrary to
what
was
stated
in
the
FIR.
The
improvement of 'dharna' was liable to be
proved to free the testimony from being
untruthful. This contradiction has a bearing
on the movement and presence of witnesses
PW-2 & PW-3 together which clouds the
truthfulness of testimony of PW-1 and PW3 both. The presence of PW-2 and PW-3
when analysed from the oral testimony of
PW-3 in depth does not give any clue as to
how PW-2 reached the place of informant
and as to when the two witnesses joined
each other so as to follow the deceased on
that fateful day.

30. As per the case of the prosecution,
the statement of PW-4 and PW-10 was
significant to prove the guilt but there is no
justification as to what prevented the eye
witnesses named in the FIR to disclose the
identity of above witnesses before lodging
the FIR and to introduce them at the time
when, prima facie it appeared to the
prosecution that the evidence on record was
not strong enough to bring home the guilt.
It is though trite that an eye witness is not
necessarily to be named in the FIR but the
circumstances in which these two witnesses
have been introduced put a question mark
on the manner of investigation and it may
clearly be inferred that these witnesses
have been brought in to strengthen the
prosecution case which otherwise may have
weakened the story set up by them and the
same could not be of any assistance to get
the accused implicated and convicted. Such
an act cannot be said to have been taken in
natural course in a bona fide manner as the
same goes to the root of the matter with an
intention to fill the loopholes in the
investigation.

31. Having focused on the aforesaid
fact, it is extremely doubtful that the
alleged eye witnesses have either seen the
occurrence or were present at the spot.

32. PW-3 Sanjeev Gupta, brother of
the deceased, who is the star witness and
whose evidence alongwith PW-1 and PW10 has been heavily relied upon by the
prosecution, deposed in his statement that
on the date of occurrence i.e. 8.7.2000,
there was 'dharna' organised by a political
party (Samajwadi Party) alongwith the
Vyapar Mandal and he alongwith the
deceased brother (Prabhat Gupta) left the
home at about 3 pm after having meals.
The deceased was ahead proceeding
towards his shop whereas he alongwith
Vinod Gupta were walking behind while
having a chat. When the deceased reached
the main road from the lane (Gali), he
suddenly saw all the four accused there. All
of them were holding in their hands small
size weapons which either were revolver or
pistol. At the spur of moment Ajay Misra
Teni fired gunshot on the temple of the
deceased.
Immediately
Subhash
alias
Mama fired on Kokh (between stomach
and chest). Deceased collapsed after
sustaining two gunshots and succumbed to
death on the spot. Rakesh alias Dalu,
Shashibhushan alias Pinki displaying their
weapons uttered, let Prabhat be not spared
and if anyone comes in between, fire
gunshot on him too. The assailants ran
towards old Kotwali. When he and Vinod
Gupta reached upto the deceased, he had
already died. Thereafter he alongwith
5 All. State of U.P. Vs. Ajai Mishra @ Taini & Ors.
1975
Vinod Gupta came back to his house and
informed his father that Prabhat has been
killed by Teni and went to the place of
incident alongwith his father and narrated
him the entire incident on the way.

33. He also deposed that on the date
of incident his shop was closed due to
dharna. He, however admitted that there
was no call for closing the market by the
Traders' Association. He also stated that he
had informed this fact to IO T.B. Singh but
had no idea as to why this fact was not
mentioned
in
his
statement.
Though
holding of dharna on the date of incident
was a crucial fact, he submitted that he
does not remember as to whether he stated
this fact before the CBCID officers when
the investigation was taken over by them,
or not. He also expressed his inability to
recollect as to whether he informed the
CBCID officer that his shop was closed
that day and that he was going towards the
place of demonstration from his house.
With regard to the presence of Vinod Gupta
at his place on the date of incident, he
deposed that Vinod Gupta had come to his
house at 1-2 pm and after having meals he,
Vinod Gupta and deceased Prabhat left
together. Vinod Gupta was residing at
Lakhimpur city and that he had not met
Vinod Gupta before the date of incident.

34. Replying to the query made by the
Court PW-3 stated that the site of dharna
was at a distance of 40-50 steps from the
place where gunshot was fired and the
place of dharna was partially visible from
the place of gunshot. He further stated that
at the protest site 100-150 persons were
present.
Regarding
audibility
of
the
gunshot, he prudently deposed that the
sound of fire shot was neither very loud nor
low. According to the learned counsel for
the appellant, to strengthen his stand that
the sound of gunshot could not have
reached the place of protest. he has also
deposed during his statement that all the
assailants immediately after firing left the
scene and ran towards one and the same
direction and that no one chased or went
after them. It is no where mentioned that
any person tried to raise alarm so as to
reach to the place of dharna where
according to the own statement of PW3,100-150 people were present and was at a
distance of 40-50 steps, moreso when most
of the persons belonged to the same
political party of which the deceased was a
designatory. Even a man of ordinary
prudence would have raised an alarm in
order to gather some people and defend
himself particularly when, as is the case of
the prosecution, a dharna at a very short
distance was being staged by a large
number
of
persons.
In
the
above
background the very holding of dharna on
the date of occurrence becomes doubtful.
The fact regarding dharna being held on the
date of occurrence also stands specifically
belied by the statement of PW-8 HC 53
Shri Krishna discussed onwards.

35. It is thus clear that PW-3 while
replying the query of the court has stated
that he was at a distance of 40-50 steps
from the place of occurrence whereas in the
cross examination he has stated that he was
at a distance of 20-25 steps from the place
of occurrence which though may be said to
be a minor discrepancy but since both the
versions were recorded on the same day
and during a continued statement hence
such an anomaly cannot be a natural
variation of guess but may be due to
pressure and zeal of making the statement
in order to prove his case.

36. Likewise, the statement of PW-8
HC 53 Shri Krishna who prepared chik
1976 INDIAN LAW REPORTS ALLAHABAD SERIES
may also be relevant for unraveling the
intricate evidence and bring home the true
facts. PW-8 in his statement has clearly
stated that on 8.7.2000 i.e. the date of
occurrence he was posted as Head Moharrir
at PS Tikonia and that on the same day he
registered the chik FIR as Case Crime No.
41-200 under Section 302 against the
accused persons on the basis of written
complaint of Santosh Gupta but has not
stated anything about protest or dharna
being organised on the date of occurrence.
He, however, during cross examination has
stated in unambiguous terms that the Rail
Roko Dharna (protest) was called at
Tikonia Railway station on a day before i.e.
7.7.2000 and in order to ensure law and
order, SI R.N. Singh, SI C.P. Bahuguna,
Manoj Pandey etc were deputed for duty at
the place of protest. To buttress his
statement, he stated that this fact is stated
by him by duly verifying and going through
Report No. 12 registered at 10.05 on
7.7.2000 which is a part of the original GD.
He further clarifies the scenario by stating
that after the protest at Tikonia railway
station was concluded, he had registered his
return on the same day i.e. 7.7.2000 in
Report no. 19, at 18.30. He denied the
suggestion that FIR was registered after
long gap of time and was shown after
making improvement therein.

37. The above statement of witness of
prosecution itself which is proved by
documentary evidence, encompasses the
entire story set up by the prosecution in the
zone of strong suspicion regarding holding
of dharna on the date of occurrence.

38. Now coming to the testimony of
PW-1, if it is believed that the inquest
report was drawn on 8.7.2000 at 5 pm
whereafter the dead body was handed over
to two police constables who alongwith the
said witness left by tractor to reach the
District Hospital at a distance of 80 km, the
witness has revealed surprises in response
to the queries in the cross examination than
truth.

39. The untruthfulness multiplies
when we look at the statements of hostile
witnesses viz. PW-2, PW-4 and the
statements of the inquest witnesses.

40. PW-2 Vinod Gupta the hostile
witness in his deposition has stated that he
was acquainted with the accused Ajay
Misra alias Teni, Subhash alias Mama,
Dalu and Pinky before the occurrence in
question took place. He stated that Ajay
Misra was a worker of Bhartiya Janta Party
and other three persons were engaged in
business at Tikonia.