# State of U.P v. Ashok Kumar & Anr

- **Citation:** (2021) 9 ILRA 891
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-12
- **Case number:** U/S 378 CR. P.C. No. 22 of 2021
- **Bench:** Ramesh Sinha, Mrs.Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-ashok-kumar-anr-47413
- **Pages:** 8

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 378 (3),313 -
Indian Penal Code, 1860 - Section 302
read with Section 34 I.P.C. - leave to
appeal against order of acquittal -
murder - plea of alibi - surmises and
conjectures
-
illicit
relations
-
circumstantial evidence - In a case
based on circumstantial evidence, the
court has to examine the evidence more
cautiously and more carefully - To
record a conviction on the basis of
circumstantial evidence, it is necessary
that all the links of the circumstantial
evidence should be intact - Absence of
notice in a case based on circumstantial
evidence
weakens
the
case
of
prosecution and goes in favour of the
accused .(Para - 10,15)

(B) Criminal Law - Code of Criminal
Procedure, 1973 - No bar on the High
Court's power to re-appreciate evidence
in an appeal against acquittal - Cr.P.C
does not differentiate in the power,
scope, jurisdiction or limitation between
appeals against judgments of conviction
or acquittal - appellate Court is free to
consider on both fact and law, despite
the
self-restraint
that
has
been
ingrained into practice while dealing
with orders of acquittal where there is a
double presumption of innocence of the
accused.(Para - 21)

Complainant mentioned in F.I.R. - his brother
left the house in the night - received phone
call from someone - did not come back -
used to sit on the Tea shop daily - dead body
of his brother found in morning - lying on the
roadside near the tea shop - doubt that
somebody killed his brother - kept body on
the roadside - accused not named as an
author of the crime - prosecution failed to
prove the charges against the accused
persons beyond reasonable doubts - trial
court acquitted accused persons - appellant
State preferred this appeal.(Para - 7,9)

HELD:-No factual or legal error in the
appreciation of evidences by the trial court
for the reasons that there is no direct
evidence of the offence and the chain of
circumstantial evidence is not complete.
Motive
of
the
crime
has
not
been
established. Nothing on record to connect
the accused persons with crime. Mobile
numbers from which call was given and on
which call was received have not been
892 INDIAN LAW REPORTS ALLAHABAD SERIES
disclosed. Weapon of offence i.e. axe
allegedly recovered at the pointing out of
accused persons has not been produced
and proved in court. No injury of 'axe' was
found on cadaver. View taken by the court
below is a possible view. Court below has
given cogent, convincing and satisfactory
reasons
while
passing
the
order
of
acquittal.(Para - 22)

Application for leave to appeal U/S 378(3)
Cr.P.C. rejected. (E-7)

List of Cases cited:-

## Text

9 All State of U.P. Vs. Ashok Kumar & Anr.
891
the prosecutrix at every stage, made the
evidence of prosecutrix unreliable and
untrustworthy. In these circumstances the
deposition / evidence of prosecutrix does not
inspire the confidence to place implicit
reliance to act on its basis to record the
conviction of the respondents.

27. In the light of the above discussions
and the principles of law laid down by the
Hon'ble Apex Court cited above, there is no
perversity and reasonable ground to interfere
with the acquittal recorded by the trial court.

28. Hence the application for leave to
appeal against the acquittal moved under
Section 378(3) Cr.P.C. is rejected, therefore
no order requires to be passed on the memo
of appeal filed alongwith the application to
grant leave to file the appeal.
----------
(2021)09ILR A891
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.08.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS.SAROJ YADAV, J.

U/S 378 CR. P.C. No. 22 of 2021

State of U.P. ...Appellant
Versus
Ashok Kumar & Anr. ...Respondents

Counsel for the Appellant:
Shri
Arunendra,
Additional
Government
Advocate

Counsel for the Respondents:

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 378 (3),313 -
Indian Penal Code, 1860 - Section 302
read with Section 34 I.P.C. - leave to
appeal against order of acquittal -
murder - plea of alibi - surmises and
conjectures
-
illicit
relations
-
circumstantial evidence - In a case
based on circumstantial evidence, the
court has to examine the evidence more
cautiously and more carefully - To
record a conviction on the basis of
circumstantial evidence, it is necessary
that all the links of the circumstantial
evidence should be intact - Absence of
notice in a case based on circumstantial
evidence
weakens
the
case
of
prosecution and goes in favour of the
accused .(Para - 10,15)

(B) Criminal Law - Code of Criminal
Procedure, 1973 - No bar on the High
Court's power to re-appreciate evidence
in an appeal against acquittal - Cr.P.C
does not differentiate in the power,
scope, jurisdiction or limitation between
appeals against judgments of conviction
or acquittal - appellate Court is free to
consider on both fact and law, despite
the
self-restraint
that
has
been
ingrained into practice while dealing
with orders of acquittal where there is a
double presumption of innocence of the
accused.(Para - 21)

Complainant mentioned in F.I.R. - his brother
left the house in the night - received phone
call from someone - did not come back -
used to sit on the Tea shop daily - dead body
of his brother found in morning - lying on the
roadside near the tea shop - doubt that
somebody killed his brother - kept body on
the roadside - accused not named as an
author of the crime - prosecution failed to
prove the charges against the accused
persons beyond reasonable doubts - trial
court acquitted accused persons - appellant
State preferred this appeal.(Para - 7,9)

HELD:-No factual or legal error in the
appreciation of evidences by the trial court
for the reasons that there is no direct
evidence of the offence and the chain of
circumstantial evidence is not complete.
Motive
of
the
crime
has
not
been
established. Nothing on record to connect
the accused persons with crime. Mobile
numbers from which call was given and on
which call was received have not been
892 INDIAN LAW REPORTS ALLAHABAD SERIES
disclosed. Weapon of offence i.e. axe
allegedly recovered at the pointing out of
accused persons has not been produced
and proved in court. No injury of 'axe' was
found on cadaver. View taken by the court
below is a possible view. Court below has
given cogent, convincing and satisfactory
reasons
while
passing
the
order
of
acquittal.(Para - 22)

Application for leave to appeal U/S 378(3)
Cr.P.C. rejected. (E-7)

List of Cases cited:-

1. Shivaji Chintappa Patil Vs St. of Mah. , (2021)
5 SCC 626

2. Anwar Ali and another Vs The St. of H.P.
,(2020) 10 SCC 166

3. Suresh Chandra Bahri Vs St. of Bihar, 1995
Supp (1) SCC 80

4. Achhar Singh Vs St. of H.P. , (2021) 5 SCC 543

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This appeal alongwith application
under Section 378 (3) of the Code of
Criminal Procedure, 1973( in short
'Cr.P.C.')
has
been
filed
by
the
State/appellant with the prayer that leave
to appeal may be granted against the
judgement and order dated 8.12.2020
passed by Additional Sessions Judge,
Court No.1, Ambedkar Nagar in Sessions
Trial No.211 of 2011, under Section 302
of the Indian Penal Code ( in short
'I.P.C.'),
Police
Station
Kotwali
Akbarpur,
District
Ambedkar
Nagar
whereby the trial court acquitted the
accused persons/ respondents.

2. Heard Shri Arunendra, learned
Additional Government Advocate (in
short 'A.G.A.') for the appellant-State of
U.P., perused the impugned judgement
and order and record of the trial court.

3. Shorn of unnecessary details, the
facts necessary for the disposal of this
appeal are as under :-

4. A First Information report (in
short 'F.I.R.') was registered on the basis of
a written report presented by Awadh
Bihari, at Case Crime No.350 of 2011,
under Section 302 I.P.C., Police Station
Kotwali Akbarpur, District Ambedkar
Nagar. In the written report, it was stated
that on the previous night at about 10.00
p.m., somebody gave a ring on the mobile
phone of his elder brother Jitendra Kumar,
on it he (Jitendra Kumar) said that he was
reaching in five minutes. He left the house
and did not come back. On the next day
i.e. 5.6.2011 at about 5-6 O' Clock in the
morning, when the complainant went to
defecate, he saw a crowd of some persons
near the road at Tea Shop of Ashok
Kumar. When the complainant reached
there, he saw that the dead body of his
brother Jitendra was lying on the roadside.
His brother Jitendra used to go on the shop
of Ashok everyday. He had doubt that his
brother was killed and dead body kept on
the roadside. On the basis of these
allegations, investigation was made and a
chargesheet under Section 302 I.P.C. was
submitted in the court against Ashok
Kumar
and
Agya
Ram.
The
court
concerned took cognizance of the crime
and committed the same to the court of
Sessions for trial. The learned Sessions
Court framed charges against the accused/
respondents under Section 302 read with
Section 34 I.P.C. The accused persons
denied the charge and claimed to be tried.

5. In order to prove the charges
against
the
accused
persons,
the
prosecution examined Awadh Bihari the
complainant as P.W.-1, Shakuntala Devi,
the mother of the deceased as P.W.-2, Shri
9 All State of U.P. Vs. Ashok Kumar & Anr.
893
Santoshi Ram as P.W.-3,Shri Ram Shakal
as P.W.-4, Shri Raj Narayan as P.W.-5 and
Dr. Pradeep as P.W.-6.

6. The statements of the accused
persons were recorded under Section 313
of the Cr.P.C.. They denied the crime and
stated that they have been implicated
falsely due to enmity. The accused Agya
Ram also took the plea of alibi and he got
examined himself as D.W.-1 and Vinod
Kumar as D.W.-2 in order to prove that he
was elsewhere on the date of the incident.

7. After analysing the evidences
available on record, the learned trial court
came to the conclusion that the prosecution
has failed to prove the charges against the
accused
persons
beyond
reasonable
doubts. The case is based on circumstantial
evidence and the prosecution could not
prove all the links to connect the accused
persons with the crime. Hence, the trial
court acquitted the accused persons. Being
dissatisfied with this acquittal, the appellant
State has preferred this appeal.

8. The learned A.G.A. has assailed
the impugned judgement and order by
submitting that the learned trial court has
not appreciated the evidence in a right
perspective and the impugned judgment
and order is legally not sustainable as it is
based on surmises and conjectures. The
learned A.G.A. also submitted that the
witnesses have stated that the accused
Ashok had doubt that his wife had illicit
relations with the deceased and the wife of
Ashok Kumar called the deceased to eat
fish by giving ring on his mobile phone.
The wife of Ashok Kumar had illicit
relations with Agya Ram co-accused and
the deceased is becoming a hurdle. So both
the accused killed the deceased. P.W.-4
Ram Shakal had stated that he heard the
accused persons talking that they killed
Jitendra. Learned trial court has ignored
this evidence. Learned A.G.A. has further
submitted that all the six witnesses have
supported
the
prosecution
case. Postmortem report also corroborates
the same. The weapon of the crime was
recovered at the pointing out of the accused
persons. The prosecution has also proved
all the documents filed on the record hence
the prosecution has proved the case beyond
reasonable doubt yet the learned trial court
has acquitted the accused persons and
committed a grave error.

9. Admittedly, the case is based on
circumstantial evidence. There is no eye
witness of the crime. In the F.I.R., the
complainant has mentioned that his brother
left the house in the night when he received
a phone call from someone and did not
come back. He used to sit on the Tea shop
of Ashok Kumar, daily. In the morning he
found that dead body of his brother was
lying on the roadside near the shop of
Ashok. He had doubt that somebody killed
his brother and kept the body on the
roadside. Even in the F.I.R., the accused
was not named as an author of the crime or
the complainant did not even averred that
he has doubt that Ashok killed his brother
and put the body on roadside.

10.

In
a
case
based
on
circumstantial evidence, the court has to
examine the evidence more cautiously and
more carefully. To record a conviction on
the basis of circumstantial evidence, it is
necessary that all the links of
the
circumstantial evidence should be intact.
There should be no gap in the links.

11. Recently, in the case of Shivaji
Chintappa Patil Vs. State of Maharashtra
reported in (2021) 5 SCC 626, the Hon'ble
894 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court has laid down as under (
para 12 ) :-

"12. The law with regard to
conviction on the basis of circumstantial
evidence has been very well crystalised in
the judgment of this Court in Sharad
Birdhichand Sarda v. State of Maharashtra
:-(SCC p.185, paras 153-54)

"153. A close analysis of this
decision would show that the following
conditions must be fulfilled before a case
against an accused can be said to be fully
established:

(1) the circumstances from which
the conclusion of guilt is to be drawn
should be fully established.

It may be noted here that this
Court indicated that the circumstances
concerned "must or should" and not "may
be" established. There is not only a
grammatical
but
a
legal
distinction
between "may be proved" and "must be or
should be proved" as was held by this
Court in Shivaji Sahabrao Bobade v. State
of Maharashtra where the observations
were made : [SCC p. 807 : para 19, SCC
(Cri) p. 1047]

"19. .....Certainly, it is a primary
principle that the accused must be and not
merely may be guilty before a court can
convict and the mental distance between
"may be" and "must be" is long and
divides vague conjectures from sure
conclusions."

(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.

154. These five golden principles,
if we may say so, constitute the panchsheel
of the proof of a case based on
circumstantial evidence."

12. Now in the light of these
principles, we have to examine the facts
and evidences of the case and also the
impugned judgement.

13. First of all, if we peruse the
F.I.R., it comes out that in the F.I.R.,
nobody was named as author of the crime,
only it was written that the deceased used
to go on the tea shop of Ashok everyday.
He left the house on getting a phone call of
someone and on the next day in the
morning, when the complainant the brother
of the deceased, went to defecate, he saw a
crowd of some people near the tea shop of
Ashok. When he reached there, he found
the dead body of his brother, the deceased,
was lying on the roadside. In the F.I.R.,
there is no mention about the fact as to who
called his deceased brother on his mobile
phone. There is no mention of motive of
the crime even there is no mention about
the alleged illicit relations of the deceased
with the wife of the accused Ashok. The
complainant has been examined as P.W.-1.
9 All State of U.P. Vs. Ashok Kumar & Anr.
895
In his examination-in-Chief, he has stated
that the incident took place on 4.6.2011.
In the night at about 10.00 O' Clock, Kesha
Devi (wife of Ashok) called on mobile
phone of his deceased brother. He has
stated that at that time, he had no
knowledge that Kesha Devi called his
brother. Next day, he came to know about
the phone call. He has also stated that his
brother used to sell milk on the shop of
Ashok Kumar. He started selling the milk
about 12 days prior to the incident. In the
night of incident, his brother went there and
in the morning, he came to know that his
brother was killed and his dead body is
lying just 50 metres away from the tea
shop on the roadside. He also saw that
there was injury on the head of his
deceased brother. He has also stated that
his brother might be murdered by Ashok
Kumar and Agya Ram because Ashok
Kumar had doubt that his deceased brother
had illicit relations with the wife of Ashok
Kumar. This witness has lodged the F.I.R.
on the next date and he did not mention that
Kesha Devi called on the mobile phone of
his deceased brother. Even any mobile
phone has not been disclosed in the F.I.R.
from which mobile no., call was made and
on which mobile no. the call was received.
In his statement before the court, this
witness has stated that he came to know
about the phone call made by Kesha Devi
on the next date in the morning. The report
was lodged on the next day at 7.45 a.m. but
in the F.I.R., it was not there that Kesha
Devi called his brother. In the F.I.R., even
there was no whisper about the motive of
the crime which has been stated in the court
by the complainant that the accused Ashok
had doubt that the deceased had illicit
relations with his wife. The F.I.R. was
lodged when the dead body was found. In
such circumstances, it was expected from
the complainant that he mentioned the
phone number from which call was made
and also the mobile number of his brother
on which the call was received. Even the
investigating officer did not try to do that
as there is nothing on the record to show
that any attempt was made to connect the
links of the alleged call made on the mobile
number of the deceased.

14. In the cross examination, the
complainant
has
stated
that
nobody
informed him about the murder of his
brother but he himself went there and he
was alone. No family member came there
on the road alongwith him.

 The mother of the deceased has
been examined as P.W.-2. She has also
stated that Kesha Devi the wife of Ashok
Kumar called his son to eat fish but there is
nothing in her statement how she came to
know that Kesha Devi called her son
because P.W.-1 has not mentioned the
name of Kesha Devi in his F.I.R.

 P.W.-2 has also stated in her
cross examination that she went to the spot
after getting the information of the murder
of her son and remained there alongwith
her family members till 10-11 O'Clock.
There is no eye witness of the crime.

P.W.-4 Ram Shakal has been
examined who has stated that he knows
accused persons very well as they all
belong to his village. He has further stated
that Kesha Devi, the wife of Ashok had
illicit relations with Agya Ram. The
deceased Jitendra used to work on the shop
of Ashok Kumar. Jintendra had no
relations with the wife of Ashok. Agya
Ram was feeling inconvenient due to
presence of Jitendra, so Agya Ram and
Ashok killed Jitendra. He has further
stated that Agya Ram and
896 INDIAN LAW REPORTS ALLAHABAD SERIES

Ashok told him that everything
has gone messed as it is open now that they
have killed Jitendra. By examining this
witness, the prosecution has tried to prove
extra judicial confession of the accused
persons but the motive disclosed by this
witness and also the complainant in itself is
very shaky. The complainant has stated
that Ashok had doubt that the deceased had
illicit relations with his wife while this
witness has stated that the wife of Ashok
had illicit relations with Agya Ram and the
deceased is creating hurdles so Ashok and
Agya Ram killed Jitendra. There is no
cogent and reliable evidence to prove this
motive.

15. No doubt, to prove a motive is
not a sine qua non, but if the case is based
on circumstantial evidence, then a strong
motive
should
be
established
for
commission of the crime. In the present
case, the motive disclosed and the evidence
to prove that motive is of very weak type
that too has not been proved. Absence of
notice in a case based on circumstantial
evidence weakens the case of prosecution
and goes in favour of the accused.

16. Hon'ble Apex Court in the case of
Anwar Ali and another Vs. The State of
Himanchal Pradesh :(2020) 10 SCC 166,
has held as under (Paragraph 24 ) :-

"24. Now so far as the submission
on behalf of the accused that in the present
case the prosecution has failed to establish
and prove the motive and therefore the
accused deserves acquittal is concerned, it is
true that the absence of proving the motive
cannot be a ground to reject the prosecution
case. It is also true and as held by thisCourt
in Suresh Chandra Bahri v. State of Bihar
1995 Supp (1) SCC 80 that if motive is
proved that would supply a link in the chain
of circumstantial evidence but the absence
thereof cannot be a ground to reject the
prosecution case. However, at the same time,
as observed by this Court in Babu (supra),
absence of motive in a case depending on
circumstantial evidence is a factor that
weighs in favour of the accused. In paras 25
and 26, it is observed and held as under
(Babu's case SCC pp.200-01) :

"25. In State of U.P. v. Kishanpal,
this Court examined the importance of motive
in cases of circumstantial evidence and
observed: (SCC pp. 87-88, paras 38 -39)

"38. ... the motive is a thing which
is primarily known to the accused themselves
and it is not possible for the prosecution to
explain what actually promoted or excited
them to commit the particular crime.

39. The motive may be considered
as a circumstance which is relevant for
assessing the evidence but if the evidence is
clear
and
unambiguous
and
the
circumstances prove the guilt of the accused,
the same is not weakened even if the motive is
not a very strong one. It is also settled law
that the motive loses all its importance in a
case where direct evidence of eyewitnesses is
available, because even if there may be a
very strong motive for the accused persons to
commit a particular crime, they cannot be
convicted if the evidence of eye witnesses is
not convincing. In the same way, even if there
may not be an apparent motive but if the
evidence of the eyewitnesses is clear and
reliable, the absence or inadequacy of motive
cannot stand in the way of conviction."

26. This Court has also held that
the absence of motive in a case depending
on circumstantial evidence is a factor that
9 All State of U.P. Vs. Ashok Kumar & Anr.
897
weighs in favour of the accused. (Vide
Pannayar v. State of T.N."

Further prosecution has stated
that the weapon of offence i.e. an axe was
recovered at the pointing out of the accused
persons. The alleged recovered weapon has
neither been presented in the court nor
proved as required.

Furthermore, no injury of axe was
found on the cadaver by the doctor
conducting postmortem. In the cross-
examination, the doctor has stated that no
injury found on the body was caused by
axe.

17. There is nothing on record to
show that the investigating officer had tried to
trace mobile phone number of the deceased
on which call was received and the phone
number from which the call was made on the
mobile phone of the deceased but how the
accused persons were connected with the
crime has not been established. It has not
been proved that Kesha Devi called the
deceased on his mobile phone number. The
person before whom the extra judicial
confession was allegedly been made i.e.
P.W.-4 has stated in his cross examination
that he lives in Delhi since 1983. He came to
the village after hearing about the incident. It
is noteworthy that when the alleged extra
judicial confession was made the accused
persons were already enlarged on bail. So it
is unnatural that a person after getting the
bail, will make extra judicial confession to a
person who was residing in Delhi at the time
of the incident that the accused persons have
committed the crime. There is no last seen
evidence and no evidence to connect the
accused persons with the crime.

18. In short, the prosecution has
failed to prove the motive to commit the
crime, to prove the fact that there was illicit
relations between the deceased and the wife
of accused Ashok or the illicit relations
between Agya Ram and the wife of
Ashok. Even if it is assumed that

Agya Ram and the wife of Ashok
had illicit relations and Jitendra is creating
hurdles, then why Ashok would have killed
the deceased.

The alleged recovery of weapon
also appears to be false as no injury of the
recovered weapon was found on the dead
body of the deceased and the recovered
weapon has not been presented and proved
before the court.

19. Furthermore, the mother of the
deceased has admitted in her cross
examination that her son used to consume
liquor.
He
developed
the
habit
of
consuming liquor due to the bad company.
She has also admitted that she did not know
in what circumstances, her son died. As far
as accused Agya Ram is concerned, he has
examined himself as D.W.-1 and stated that
he was in the village Dalpatpur on the date
of the incident as there was some function
in the house of the sister of his wife. He
alongwith his wife, went to Dalpatpur to
attend the function and came back to his
own village on 6.6.2011. On 9.6.2011,
police called him and sent to jail. As
D.W.-2, the brother-in-law of Agya Ram
has been examined, he has also proved the
fact that Agya Ram alongwith his wife was
at his place on the date of incident.

20. There is no evidence on record to
establish the guilt of the accused persons.
The chain of circumstance is not only
incomplete but can be said as broken at
many points. In fact no evidence is there to
connect the accused persons with the
898 INDIAN LAW REPORTS ALLAHABAD SERIES
crime. In order to convict an accused
person, it is necessary that prosecution has
to prove the guilt of the accused beyond
reasonable doubt.

21. In this regard, the Hon'ble Apex
Court in the case of Achhar Singh Vs.
State of Himachal Pradesh reported in
(2021) 5 SCC 543, has laid down as under (
para 16) :-

"16. It is thus a well crystalized
principle that if two views are possible, the
High Court ought not to interfere with the
trial Court's judgment. However, such a
precautionary
principle
cannot
be
overstretched to portray that the "contours
of appeal" against acquittal under Section
378 CrPC are limited to seeing whether or
not the trial Court's view was impossible. It
is equally well settled that there is no bar
on the High Court's power to re-appreciate
evidence in an appeal against acquittal.
This Court has held in a catena of
decisions (including Chandrappa v. State
of Karnataka, State of Andhra Pradesh v.
M. Madhusudhan Rao, And Raveen
Kumar v. State of Himachal Pradesh) that
the Cr.P.C does not differentiate in the
power, scope, jurisdiction or limitation
between appeals against judgments of
conviction or acquittal and that the
appellate Court is free to consider on both
fact and law, despite the self-restraint that
has been ingrained into practice while
dealing with orders of acquittal where
there is a double presumption of innocence
of the accused".

22. In the light of the above
discussions and the law laid down by
Hon'ble Apex Court referred above, we do
not find any factual or legal error in the
appreciation of evidences by the trial court
for the reasons that there is no direct
evidence of the offence and the chain of
circumstantial evidence is not complete.
The motive of the crime has not been
established. There is nothing on record to
connect the accused persons with crime.
The mobile numbers from which call was
given and on which call was received have
not been disclosed. The weapon of offence
i.e. axe allegedly recovered at the pointing
out of accused persons has not been
produced and proved in court. Furthermore,
no injury of 'axe' was found on cadaver.
Moreover, the view taken by the court
below is a possible view. The court below
has
given
cogent,
convincing
and
satisfactory reasons while passing the order
of acquittal.

23. We therefore, do not consider it to
be a fit case for grant of leave to appeal to
the appellant. The application seeking
leave to appeal is, accordingly rejected and
the appeal is also dismissed.
----------

(2021)09ILR A898
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.08.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

U/S 378 CR. P.C. No. 44 of 2021

State of U.P. ...Appellant
Versus
Chhote Verma & Anr. ...Respondents

Victim ...Complainant

Counsel for the Appellant:
Ms. Nand Prabha Shukla, Additional Government
Advocate

Counsel for the Opposite Parties: