# State of U.P v. Badri Lodhi

- **Citation:** (2023) 3 ILRA 1134
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-23
- **Case number:** Government Appeal No. 650 of 1993
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-badri-lodhi-49785
- **Pages:** 8

## Headnote

Criminal Law - Indian Penal Code, 1860--
Section
302--Murder--Criminal
Procedure Code, 1973--Section 378(3)--
Appeals against acquittal--Scope of interference
by appellate court--Principles reiterated-If view
taken by trial court in acquitting accused is one
of possible reasonable views - appellate court
should generally not interfere with order of
acquittal--Prosecution failed to establish a
complete chain of circumstances--Evidence
scanty-No substantial and compelling reasons
to interfere with acquittal order-.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

1134 INDIAN LAW REPORTS ALLAHABAD SERIES
M/s Shri Ram Gen. Insurance Company
Ltd. and another, 2021(4) T.A.C. 687 (
S.C.) as it is proved that the claimant was
employee of the employer and was engaged
as a cleaner, the said factual finding cannot
be interfered by this Court.

14. In that view of the matter this
appeal fails and is dismissed. The so called
questions of law framed by the Insurance
Company are answered against it. In fact
the substantial questions of law raised are
the questions of fact.

15. Interim relief shall stand vacated
forthwith. The Registry will forward this
order to the W.C. Commissioner who shall
immediately summon the claimants and
disburse the amount kept in fixed deposit
with interest accrued on the said amount till
date within 30 days from today.
----------
(2023) 3 ILRA 1134
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Government Appeal No. 650 of 1993

State of U.P. ...Appellant
Versus
Badri Lodhi ...Opposite Party

Counsel for the Appellant:
A.G.A.

Counsel for the Opposite Party:
Sri C.B.Singh, Sri Avdhesh Narayan Tiwari,
Sri Surendra Singh

Criminal Law - Indian Penal Code, 1860--
Section
302--Murder--Criminal
Procedure Code, 1973--Section 378(3)--
Appeals against acquittal--Scope of interference
by appellate court--Principles reiterated-If view
taken by trial court in acquitting accused is one
of possible reasonable views - appellate court
should generally not interfere with order of
acquittal--Prosecution failed to establish a
complete chain of circumstances--Evidence
scanty-No substantial and compelling reasons
to interfere with acquittal order-.

Appeal dismissed. (E-9)

List of Cases cited:
1. M.S. Narayana Menon @ Mani Vs St. of Kerala
& anr., (2006) 6 S.C.C. 39

2. St. of Goa Vs Sanjay Thakran & anr., (2007) 3
S.C.C. 75

3. Chandrappa Vs St. of Karn. (2007) 4 S.C.C.
415

4. St. of Uttar Pradesh Vs Ram Veer Singh &
ors., 2007 A.I.R. S.C.W. 5553

5. Girja Prasad (Dead) by L.R.s Vs St. of M.P.,
2007 A.I.R. S.C.W. 5589

6. Luna Ram Vs Bhupat Singh & ors., (2009)
SCC 749

7. Mookkiah & anr. Vs St. Representatives by the
Inspector of Police, T. N., reported in AIR 2013
SC 321

8. St. of Karnataka Vs Hemareddy, AIR 1981, SC
1417

9. Shivasharanappa & ors. Vs St. of Karn., JT
2013 (7) SC 66

10. St. of Pun. Vs Madan Mohan Lal Verma,
(2013) 14 SCC 153

11. Jayaswamy Vs St. of Karn., (2018) 7 SCC
219
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
3 All. State of U.P. Vs. Badri Lodhi
1135
Hon'ble Ajit Singh, J.)

1. This appeal under Section 378 (3)
of Criminal Procedure Code (in short
'Cr.P.C.'), at the behest of the State, has
been preferred against the judgment and
order dated 7.1.1993, passed by learned
IInd Additional Sessions Judge, Jalaun, at
Orai, in Criminal Case No.145 of 1992
(State of Uttar Pradesh vs. Badri Lodhi ),
under Sections 302 of Indian Penal Code (
hereinafter referred to as 'I.P.C.') and also
under Section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes ( Prevention
of Atrocities ) Act, 1989, Police Station-
Kotwali Orai, District Jalaun, whereby the
learned trial-court acquitted the accusedrespondent.

2. The brief facts of this case are that
in the night intervening between May 7 &
8, 1992 at about mid-night in village
Dhamni, Police Station Kotwali Orai,
District Jalaun the accused Badri Lodhi
shot dead by fire arm the son of the
informant when the deceased was sleeping
on cot in the front of his shop.

3. The case was registered at Police
Station Kotwali Orai on 8.5.1992 at 3:30
a.m. The written report is said to have been
scribed by Sukh Lal Chamar of village
Dhamni. It is claimed by the prosecution
that at that time the first informant Tundey
reached the police station to make over the
said written FIR to the police on the basis
of which the chik was scribed being Ex.Ka.
3 and the case was registered in the G.D.
Vide Ex.Ka. 4. It was alleged by Tundey in
Ex.Ka. 2 that he was Chamar by caste and
that in the village there were complaints of
easy virtues of the wife of Maheshwari
Lodhi and it was generally said by the
persons in the village that the said wife of
Maheshwari Lodhi was maintaining illicit
illusion
relation
with
the
son
of
complainant and due to this the accused
was having enmity with the deceased, the
son of Tundey. It was averred in the FIR
that on account of this reason accused
Badri Lodhi was harbouring animosity
against the deceased and therefore, in the
relevant night of the incident at about dead
of night when the deceased was sleeping on
a cot infront of his shop where the
electricity
was
burning,
the
accused
holding a gun in his hand came from
eastern
direction
and
with
a
view
eliminating the deceased discharged a fire
on the deceased injuring him in the right
side of abdomen. The version in the FIR
onwards was that on the outcries of the
deceased, Tundey, his wife and his younger
brother Sant Ram as also witness Chhakki
immediately reached the spot and saw that
the accused was running away towards
west having shot at the deceased, who
could not be apprehended despite efforts
being made by Tundey and others. After
the incident, the injured was taken to
hospital but he breathed his lost on the way
at Orai. It was alleged that the dead body
was kept in the hospital and villagers were
present.

4. On the basis of this written report, a
case was registered against the accused by
by the informant-Tundey (PW-2) at Police
Station Kotwali Orai on 8.5.1992 at 3:30
a.m.. After registration of the case, the
investigation followed. The Investigating
Officer recorded the statements of the
complainant and other witnesses, visited
the site and prepared the site-plan. After
investigation, the Investigating Officer of
the case submitted charge-sheet against the
accused-Badri Lodhi.

5. Accused-Badri Lodhi was charged
under Sections 302 of the Indian Penal
Code and also under Section 3(2)(v) of the
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
Scheduled Castes and Scheduled Tribes (
Prevention of Atrocities) Act. The case
being exclusively triable by court of
session was committed for trial to the court
of
session
by
competent
Magistrate.
Accused
person
denied
charges
and
claimed to be tried.

6. To bring home the charges, the
prosecution produced following witnesses,
namely:

1.
Dr. A.K. Saxena PW 1
2.
Tunde
PW2
3.
Chakki
PW3
4.
Sant Ram
PW4
5.
Subhash
Chandra Sakya
PW5

7. In support of the ocular version of
the witnesses, following documents were
produced and contents were proved by
leading evidence:

1.
Postmortum
Report
Ex.ka 1
2.
Written report
Ex.ka 2
3.
First Information
Report
Ex.ka 3
4.
General Diary
Ex.ka 4
5.
G.D. Report
Ex.ka 5
6.
Panchayatnama
and
connected
papers
Ex.ka 6 to Ka
10
7.
Site Plan with
index
Ex.ka 11
8.
Recovery memo
of Blood Stained
Ex.ka 12
& plain earth

8. After prosecution evidence, the
accused person was examined under
Section 313 Cr.P.C. in which he told that
false evidence has been led against him.

9. We have heard Patanjali Mishra,
learned AGA for the State-appellant, Sri
Surendra
Singh,
learned
counsel
for
accused- respondent and perused the
record.

10. Before we embark on testimony
and the judgment of the Court below, the
contours
for
interfering
in
Criminal
Appeals where accused has been held to be
non guilty would require to be discussed.

11. The principles, which would
govern and regulate the hearing of an
appeal by this Court against an order of
acquittal, passed by the trial Court, have
been very succinctly explained by the Apex
Court in catena of decisions. In the case of
M.S. Narayana Menon @ Mani vs. State
of Kerala and another, (2006) 6 S.C.C. 39,
the Apex Court has narrated the powers of
the High Court in appeal against the order
of acquittal. In para 54 of the decision, the
Apex Court has observed as under:

"54. In any event the High Court
entertained an appeal treating to be an
appeal against acquittal, it was in fact
exercising the revisional jurisdiction. Even
while exercising an appellate power
against a judgment of acquittal, the High
Court should have borne in mind the
well settled principles of law that where
two view are possible, the appellate
Court should not interfere with the
finding of acquittal recorded by the
Court below."
3 All. State of U.P. Vs. Badri Lodhi
1137

12.

Further,
in
the
case
of
Chandrappa vs. State of Karnataka,
reported in (2007) 4 S.C.C. 415, the Apex
Court laid down the following principles;

"42. From the above decisions, in
our considered view, the following general
principles
regarding
powers
of
the
appellate Court while dealing with an
appeal against an order of acquittal
emerge:

[1] An appellate Court has full
power
to
review,
re-appreciate
and
reconsider the evidence upon which the
order of acquittal is founded.

[2]
The
Code
of
Criminal
Procedure,
1973
puts
no
limitation,
restriction or condition on exercise of such
power and an appellate 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
curtain extensive powers of an appellate
Court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasis 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."

13. Thus, it is a settled principle that
while exercising appellate powers, even if
two
reasonable
views/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.

14. Even in the case of State of Goa
vs. Sanjay Thakran and another, reported in
(2007) 3 S.C.C. 75, the Apex Court has
reiterated the powers of the High Court in
such cases. In para 16 of the said decision,
the Court has observed as under:

"16.
From
the
aforesaid
decisions, it is apparent that while
exercising the powers in appeal against the
order of acquittal the Court of appeal
would not ordinarily interfere with the
order of acquittal unless the approach of
the lower Court is vitiated by some
manifest illegality and the conclusion
arrived at would not be arrived at by any
reasonable person and, therefore, the
decision is to be characterized as perverse.
Merely because two views are possible, the
Court of appeal would not take the view
which would upset the judgment delivered
by the Court below. However, the appellate
Court has a power to review the evidence if
it is of the view that the conclusion arrived
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
at by the Court below is perverse and the
Court has committed a manifest error of
law and ignored the material evidence on
record. A duty is cast upon the appellate
Court, in such circumstances, to reappreciate the evidence to arrive to a just
decision on the basis of material placed on
record to find out whether any of the
accused is connected with the commission
of the crime he is charged with."

15. Similar principle has been laid
down by the Apex Court in cases of State
of Uttar Pradesh vs. Ram Veer Singh and
others, 2007 A.I.R. S.C.W. 5553 and in
Girja Prasad (Dead) by L.R.s vs. State of
MP, 2007 A.I.R. S.C.W. 5589. Thus, the
powers, which this Court may exercise
against an order of acquittal, are well
settled.

16. In the case of Luna Ram vs.
Bhupat Singh and others, reported in
(2009) SCC 749, the Apex Court in para 10
and 11 has held as under:

"10. The High Court has noted
that the prosecution version was not clearly
believable. Some of the so called eye
witnesses stated that the deceased died
because his ankle was twisted by an
accused.
Others
said
that
he
was
strangulated. It was the case of the
prosecution that the injured witnesses were
thrown out of the bus. The doctor who
conducted the postmortem and examined
the witnesses had categorically stated that
it was not possible that somebody would
throw a person out of the bus when it was
in running condition.

11. Considering the parameters
of appeal against the judgment of acquittal,
we are not inclined to interfere in this
appeal. The view of the High Court cannot
be termed to be perverse and is a possible
view on the evidence."

17. Even in a recent decision of the
Apex Court in the case of Mookkiah and
another vs. State Representatives by the
Inspector of Police, Tamil Nadu, reported
in AIR 2013 SC 321, the Apex Court in
para 4 has held as under:

"4. It is not in dispute that the
trial Court, on appreciation of oral and
documentary evidence led in by the
prosecution and defence, acquitted the
accused in respect of the charges leveled
against them. On appeal by the State, the
High Court, by impugned order, reversed
the said decision and convicted the accused
under Section 302 read with Section 34 of
IPC and awarded RI for life. Since counsel
for the appellants very much emphasized
that the High Court has exceeded its
jurisdiction in upsetting the order of
acquittal into conviction, let us analyze the
scope and power of the High Court in an
appeal filed against the order of acquittal.
This Court in a series of decisions has
repeatedly laid down that as the first
appellate court the High Court, even while
dealing with an appeal against acquittal,
was also entitled, and obliged as well, to
scan through and if need be reappreciate
the entire evidence, though while hoosing
to interfere only the court should find an
absolute assurance of the guilt on the basis
of the evidence on record and not merely
because the High Court could take one
more possible or a different view only.
Except the above, where the matter of the
extent and depth of consideration of the
appeal is concerned, no distinctions or
differences in approach are envisaged in
dealing with an appeal as such merely
because one was against conviction or the
other against an acquittal. [Vide State of
3 All. State of U.P. Vs. Badri Lodhi
1139
Rajasthan vs. Sohan Lal and Others,
(2004) 5 SCC 573]"

18. It is also a settled legal position
that in acquittal appeals, the appellate Court
is not required to rewrite the judgment or to
give fresh reasonings, when the reasons
assigned by the Court below are found to
be just and proper. Such principle is laid
down by the Apex Court in the case of
State of Karnataka vs. Hemareddy, AIR
1981, SC 1417, wherein it is held as under:

" ... This Court has observed in
Girija Nandini Devi V. Bigendra Nandini
Choudhary (1967) 1 SCR 93:(AIR 1967 SC
1124) that it is not the duty of the Appellate
Court on the evidence to repeat the
narration of the evidence or to reiterate the
reasons given by the trial Court expression
of general agreement with the reasons
given by the Court the decision of which is
under appeal, will ordinarily suffice."

19. In a recent decision, the Hon'ble
Apex Court in Shivasharanappa and
others vs. State of Karnataka, JT 2013 (7)
SC 66 has held as under:

"That
appellate
Court
is
empowered to reappreciate the entire
evidence, though, certain other principles
are also to be adhered to and it has to be
kept in mind that acquittal results into
double presumption of innocence."

20. Further, in the case of State of
Punjab vs. Madan Mohan Lal Verma,
(2013) 14 SCC 153, the Apex Court has
held as under:

"The law on the issue is well
settled that demand of illegal gratification
is sine qua non for constituting an offence
under the 1988 Act. Mere recovery of
tainted money is not sufficient to convict
the accused when substantive evidence in
the case is not reliable, unless there is
evidence to prove payment of bribe or to
show that the money was taken voluntarily
as a bribe. Mere receipt of the amount by
the accused is not sufficient to fasten guilt,
in the absence of any evidence with regard
to demand and acceptance of the amount as
illegal gratification. Hence, the burden
rests on the accused to displace the
statutory presumption raised under Section
20 of the 1988 Act, by bringing on record
evidence, either direct or circumstantial, to
establish with reasonable probability, that
the money was accepted by him, other than
as a motive or reward as referred to in
Section 7 of the 1988 Act. While invoking
the provisions of Section 20 of the Act, the
court
is
required
to
consider
the
explanation offered by the accused, if any,
only on the touchstone of preponderance of
probability and not on the touchstone of
proof
beyond
all
reasonable
doubt.
However, before the accused is called upon
to explain how the amount in question was
found in his possession, the foundational
facts
must
be
established
by
the
prosecution.
The
complainant
is
an
interested and partisan witness concerned
with the success of the trap and his
evidence must be tested in the same way as
that of any other interested witness. In a
proper case, the court may look for
independent
corroboration
before
convincing the accused person."

21. The Apex Court recently in
Jayaswamy vs. State of Karnataka,
(2018) 7 SCC 219, has laid down the
principles for laying down the powers of
appellate court in re-appreciating the
evidence in a case where the State has
preferred an appeal against acquittal,
which read as follows:
1140 INDIAN LAW REPORTS ALLAHABAD SERIES

"10. It is by now well settled that
the Appellate Court hearing the appeal
filed against the judgment and order of
acquittal will not overrule or otherwise
disturb the Trial Court's acquittal if the
Appellate Court does not find substantial
and compelling reasons for doing so. If the
Trial Court's conclusion with regard to the
facts is palpably wrong; if the Trial Court's
decision was based on erroneous view of
law; if the Trial Court's judgment is likely
to result in grave miscarriage of justice; if
the entire approach of the Trial Court in
dealing with the evidence was patently
illegal; if the Trial Court judgment was
manifestly unjust and unreasonable; and if
the Trial Court has ignored the evidence or
misread the material evidence or has
ignored material documents like dying
declaration/report of the ballistic expert
etc. the same may be construed as
substantial and compelling reasons and the
first appellate court may interfere in the
order of acquittl. However, if the view
taken by the Trial Court while acquitting
the accused is one of the possible views
under the facts and circumstances of the
case, the Appellate Court generally will not
interfere with the order of acquittal
particularly
in
the
absence
of
the
aforementioned factors.

.........................It is relevant to
note the observations of this Court in the
case of Ramanand Yadav vs. Prabhu Nath
Jha & Ors., (2003) 12 SCC 606, which
reads thus:

"21.There is no embargo on the
appellate court reviewing the evidence
upon which an order of acquittal is based.
Generally, the order of acquittal shall not
be interfered with because the presumption
of innocence of the accused is further
strengthened by acquittal. The golden
thread which runs through the web of
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. The
paramount consideration of the court is to
ensure that miscarriage of justice is
prevented. A miscarriage of justice which
may arise from acquittal of the guilty is no
less than from the conviction of an
innocent. In a case where admissible
evidence is ignored, a duty is cast upon the
appellate
court
to
re-appreciate
the
evidence in a case where the accused has
been
acquitted,
for
the
purpose
of
ascertaining as to whether any of the
accused committed any offence or not."

22. The Apex Court recently in
Shailendra Rajdev Pasvan v. State of
Gujarat, (2020) 14 SC 750, has held that
the appellate court is reversing the trial
court's order of acquittal, it should give
proper weight and consideration to the
presumption of innocence in favour of
accused, and to the principle that such a
presumption sands reinforced, reaffirmed
and strengthened by the trial court and in
Samsul Haque v. State of Assam, (2019) 18
SCC 161 held that judgment of acquittal,
where two views are possible, should not
be set aside, even if view formed by
appellate court may be a more probable
one, interference with acquittal can only be
justified when it is based on a perverse
view.

23. We have perused the depositions
of prosecution witnesses, documentary
evidence
supporting
ocular
versions,
arguments advanced by learned counsel for
the parties. We have been taken through the
record. We are unable to accept the
3 All. Ram Naresh & Anr. Vs. Board of Revenue, U.P. & Anr.
1141
submissions of the State counsel for the
following reasons and the judgments of the
Apex Court which lay down the criteria for
consideration of appeals against acquittal.
The chain has been found to be incomplete.
While going through the judgment it is very
clear that the court below has given a
categorical finding that the evidence is so
scanty that the accused cannot be punished
/convicted for the offences for which he
was charged. The factual scenario in the
present case will not permit us to take a
different view then that taken by the court
below. In that view of the matter we are
unable to satisfy ourselves. Thus we concur
the findings of the court below.

24. After considering the facts and
circumstances of the present case and
appraisal of the evidence available on
record and on the contours laid down by
the judgment of the Apex Court, we have
no other option but to concur with the
reasoning of acquittal recorded by the
learned Sessions Judge for the aforesaid
reasons.

25. The appeal sans merits and is
dismissed. The record and proceedings be
sent back to the Court below. The bail and
bail bonds are cancelled.
----------
(2023) 3 ILRA 1141
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 4678 of 1989

Ram Naresh & Anr. ...Petitioners
Versus
Board of Revenue, U.P. & Ors.
 ...Respondents
Counsel for the Petitioners:
Sri S.N. Singh, Sri A.N. Bhargava. Sri Ajay
Kumar Banerjee, Sri Anil Kumar Rai, Sri R.N.
Singh, Sri Vishnu Singh

Counsel for the Respondents:
C.S.C., Sri A.P. Srivastava, Sri Ajay Kumar
Banerjee, Sri Anil Pathak, Sri Manoj Kumar
Singh, Sri Prabhakar Singh, Sri Rakesh Pathak,
Sri S.P. Singh

A. Civil Law - U.P. Zamindari Abolition and
Land Reforms Act,1950 - Section 229B -
Declaratory Suit - Surrender - petitioner
filed a suit u/s 229B of the UP Z.A. & L.R.
Act claiming co-tenancy right, alleging
that plot in dispute is ancestral and after
death of common ancestor plaintiff and
defendant
no.
1
become
owner
in
possession of the plot in dispute -
Defendant
alleged
that
plaintiff
has
surrendered the land & that plaintiff's
rights has been extinguished - Held -
plaintiff and defendant are member of the
family and possession of one co-sharer is
possession of all, as such merely by
living/residing in the Sasural, the plaintiff
will not be deprived of his right in the plot
in dispute - the plea of surrender set up by
the defendant not proved - plaintiff
entitled to the decree of 1⁄2 share in the
plot - (Para 10, 16)

B. U.P. Zamindari Abolition and Land
Reforms
Act,1950
-
Section
229B
-
Limitation for filing suit - there is no
limitation for filing suit under Section
229B of U.P.Z.A. & L.R. Act (Para 16)

C. U.P. Consolidation of Holdings Act,
1953 - Section 49 - right of co-sharer
will not be defeated due to non-claiming
of partition of joint share and separate
chak
in
joint
property
during
consolidation proceeding and even the
right of co-sharer will not come to an
end under Section 49 of the U.P.
Consolidation of Holdings (Para 13)

Allowed. (E-5)

List of case cited: