# State of U.P v. Brijesh & Anr

- **Citation:** (2022) 3 ILRA 446
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-18
- **Case number:** Government Appeal No. 306 of 2021
- **Bench:** Vivek Kumar Birla, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-brijesh-anr-48204
- **Pages:** 7

## Headnote

A. Criminal Law - The Court neither find any
clear motive for the accused to administer
poison to the deceased nor has it been proved
that the accused has the poison in his
possession and therefore, there is no sufficient
evidence to prove that the accused persons
committed
murder
of
the
deceased
by
administering poison to him. (Para 25)
Appeal Rejected. (E-10)

List of Cases cited:

## Text

446 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)03ILR A446
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.02.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Government Appeal No. 306 of 2021

State of U.P. ...Appellant
Versus
Brijesh & Anr. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:

A. Criminal Law - The Court neither find any
clear motive for the accused to administer
poison to the deceased nor has it been proved
that the accused has the poison in his
possession and therefore, there is no sufficient
evidence to prove that the accused persons
committed
murder
of
the
deceased
by
administering poison to him. (Para 25)
Appeal Rejected. (E-10)

List of Cases cited:

1. Sharad Birdhichand Sarda Vs St. of Mah.
(1984) 4 SCC 116

2. Jaipal Vs St. of Har. (2003) 1 SCC 169

3. Jayamma Vs St. of Karn. (2021) 3 SCC 213
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Shri Ratan Singh, learned
Additional Government Advocate for the
Appellant - State of U.P., on the application
under Section 378 (3) of the Criminal
Procedure Code (herein after referred to as
"Cr.P.C.") seeking leave to file appeal
against the judgment and order dated
18.03.2021
passed
by
the
learned
Additional Sessions Judge, Court No. 8,
Bulandshahar in Sessions Trial No. 352 of
2016, acquitting the accused-respondents of
the
charges
of
committing
offences
punishable under Sections 302/34, 328/34
of the Indian Penal Code (hereinafter
referred to as "IPC") in Case Crime No.
265 of 2014, Police Station Chhataari,
District Bulandshahr.

2. Briefly stated, the prosecution case
is that on 16.08.2014 Ashok Kumar gave
information (Exhibit A-1) to the police that
his son (Sanna) had committed suicide at
his home on the same day. No one is guilty
for it, yet to ascertain the cause of his
death, a post-mortem examination be
conducted. On 25.08.2014, the informant
filed an application under Section 156
(3) Cr.P.C. (Exhibit A-2) stating that his
son Sanna used to work in Gujarat
alongwith Brijesh (the respondent no. 1) of
the same village and they used to do
painting jobs in factories. About one month
prior to the date of the incident i.e.
16.08.2014, Sanna had told the informant
on phone that Brijesh has made illicit
relations with a girl at Surat and upon being
forbidden, Brijesh threatened him of dire
consequences. The informant had told him
that he will talk to Brijesh when he would
come to the village.

3. The informant's son Sanna and
Brijesh were visiting the village on the
occasion of 'Rakshabandhan'. On 16.08.2014
at 10:00 a.m. Brijesh and his relative Praveen
had come to the informant's home. At that
time the informant, his wife and other son
Tota Ram were present there. In their
presence, Brijesh called and took away the
informant's son Sanna saying that they will
3 All. State of U.P. Vs. Radhey Shyam & Ors.
447
go to the market to eat and drink something.
Although, the informant objected to it,
Brijesh and Praveen took away his son Sanna
on a motorcycle to the tube-well of Praveen's
uncle Laloo near the cremation ground in the
village. They put some poisonous substance
in liquor and made Sanna drink it and they
took away Rs.6,000/- and a mobile from
Sanna's pocket. At that very time, the
informant's other son Tota Ram reached there
to call his brother Sanna and he saw that
Brijesh and Praveen were offering liquor to
Sanna, but Brijesh and Praveen did not send
him and asked Tota Ram to leave else they
would kill him also. After killing Sanna by
making him consume some poisonous
substance in liquor and after causing injuries
to his legs, they dropped him home on their
motorcycle at about 4:00 p.m. Tota Ram sent
an information of the incident to the police on
'Dial 100', upon which a constable visited his
home and took Tota Ram to the police station
for lodging an FIR. At a short distance from
Pandawal Chowki, the said motorcycle met
with an accident with another motorcycle,
due to which Tota Ram and the constable
suffered injuries and the report could not be
lodged
in
Police
Station
Chhataari.
Afterwards, police came to the informant's
house and prepared an inquest report of the
dead body of the deceased Sanna and got a
post mortem examination done. Thus, the
accused-respondent committed murder of the
informant's son Sanna.

4. On the aforesaid application, on
16.09.2014, an FIR (Ex.K-4) was registered
as Case Crime No. 265 of 2014 under
Sections 302, 328 IPC in the concerned
Police
Station
against
the
accusedrespondents.

5. The cause of death of the deceased
could not be ascertained by the post
mortem examination and his viscera was
preserved and sent to the Forensic Science
Laboratory. As per the Laboratory's report,
Aluminium Phosphide, which is commonly
known as Salphas, was found in the parts of
viscera.

6. After examining the evidence on
record and taking into consideration the
rival contentions, the learned Court below
recorded a finding that the deceased died
due to consumption of poison. Regarding
the informant's allegation that the accused
persons took away his son Sanna, the Court
below held that when the accused Brijesh
(respondent
No.
1)
was
allegedly
threatening the deceased Sanna of dire
consequences, the fact that the informant
let his son to go with the accusedrespondents for eating and drinking is
unnatural and against common human
behaviour. The Court below further held
that the prosecution could not establish the
motive for commission of the offence. The
FIR of the incident was lodged with a delay
of 9 days whereas in the application given
to the police on 16.08.2014 (Ex. K-1), the
informant himself had stated that his son
has committed suicide. The fact of earlier
report (Ex.Ka-1) was concealed in the
application under Section 156 (3) Cr.P.C.
On the basis of the aforesaid findings, the
learned Court below gave a judgment and
order dated 18.03.2021 acquitting the
accused-respondents
of
charges
of
commission of offences punishable under
Sections 302/34 and 328/34 IPC.

7. The State has filed this appeal
against the aforesaid order alongwith an
application under Section 378 (3) Cr.P.C.
seeking leave to file appeal mainly on the
ground that the learned trial court has not
properly appreciated the evidence of the
prosecution and has committed a gross
error in disbelieving the testimony of the
448 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution
witnesses.
The
order
of
acquittal of the accused-respondent is
perverse and the learned trial court did not
weigh and assess the case in its proper
perspective.

8. We have examined the lower court
record
to
go
through
the
evidence
available on record of the case to examine
the aforesaid grounds taken by the learned
A.G.A.

9. PW-1 Ashok Kumar-the informant,
has narrated the FIR version.

10. PW-2 Tota Ram said that he was
at his home alongwith his parents and his
deceased brother Sanna. The accusedrespondents came to his house and called
and took away Sanna with them at about
10:00 a.m. on the date of the incident. PW2 was going to the fields. When he went to
Laloo's tube-well near the cremation
grounds. He asked Sanna to come home but
the accused-respondents asked the PW-2 to
leave saying that Sanna will come later on.
At
about
4:00
p.m.,
the
accusedrespondents dropped his brother Sanna at
his home. When he reached home, he found
his brother dead.

11. PW-3 Kumari Sheetal, aged about
12 years, is the sister of the deceased. She
stated that she has not gone to any school.
She does not know counting. She does not
know the date of the incident. However,
she stated that on the date of the incident at
about 3:30 p.m., the accused-respondents
had brought his brother Sanna home after
killing him.

12. PW-4 Rajpal stated that on the
date of the incident between 10:00 to 11:00
a.m., he had seen the accused persons and
the deceased sitting in the cremation
ground consuming liquor. Between 4:005:00 p.m., he saw Praveen driving a
motorcycle.
Sanna
was
sitting
between Praveen and Brijesh and Brijesh
was holding Sanna. Upon returning from
the fields, he came to know that Sanna had
died.

13. The accused-persons produced
Veer Pal Singh as DW-1, who was the real
mama (maternal uncle) of the deceased
Sanna. He stated that on 16.08.2014 at
about 3:00 p.m., his brother-in-law i.e. the
Informant Ashok Kumar, had informed him
on phone that Sanna had committed suicide
by consuming poison at home. Upon
receiving this information, came to Ashok's
house alongwith his wife and children. He
reached there at about 5:30 p.m. Ashok
asked him to give the information of
Sanna's suicide and dictated a report and
DW-1 scribed the report as per Ashok's
dictation, which was marked as Ex.7A and
proved by DW-1. He also proved the
inquest report (Ex.Ka-10) prepared by the
Police.

14. The learned Court below has
referred the statement of PW-1 that one
month prior to the incident, the deceased
had informed the informant that Brijesh
had entered into a relation with a girl at
Surat. When Sanna forbade Brijesh, he
threatened
the
former
with
dire
consequences. In spite of the aforesaid
alleged threats, the informant let his son go
with the accused persons, which conduct is
against normal human behaviour. If a
person's son is being threatened by
someone with dire consequences, he will
not let his son to go with that person for
eating and drinking.

15. PW-2 Tota Ram, who is stated to
have seen the deceased with the accused
3 All. State of U.P. Vs. Radhey Shyam & Ors.
449
persons at the Laloo's tube-well, has not
made any statement about anything having
been offered by the accused-respondents to
the deceased for eating and drinking and he
has not stated that they were eating and
drinking together.

16. Another witness PW-4 said that
the accused persons and the deceased were
drinking together in the cremation ground.
This statement is contradictory to the
statement of PW-2 who stated the place of
seeing the accused persons with the
deceased at Laloo's tube-well.

17. Although PW-4 stated that he
saw the accused persons taking the
deceased on a motorcycle, no averment to
this effect was made in the application
under Section 156 (3) Cr.P.C. which was
filed after 9 days after the occurrence of the
incident, obviously after obtaining legal
advice and after due consultation.

18. As per the statement of PW-3
(Kumari Sheetal), she had her lunch at
12:00 Noon and at that time her parents and
Tota Ram were in the fields. Half an hour
after she had her lunch, the deceased asked
her to bring fodder. When she returned
with the fodder after another half an hour,
the deceased was not there at his home.
This indicates that the deceased was at his
home even after the informant (PW-1), his
other son Tota Ram (PW-2) and the
informant's wife went to the fields.

19.

Thus,
there
were
serious
discrepancies in the statement of the
prosecution witnesses regarding presence of
the deceased at the home or at the place of the
incident.

20. The Court below also took into
consideration the fact that the informant had
alleged that the accused-respondents dropped
the deceased home after killing him, which
too is against the normal human behaviour. If
a person commits murder of any other
person, he would not take the dead body on
the motorcycle to deliver it at the deceased's
home.

21. The informant - PW-1 had
submitted an information of the incident on
the date of the incident itself i.e. 16-08-2014,
stating that his son had committed suicide in
his home and nobody was guilty for it, yet a
post mortem examination be conducted for
ascertaining the reason of his death. A
mention of this fact was recorded in the
general diary on 16-08-2014 at 18:45 p.m.
and on the basis of this report, the police went
to the spot and prepared an inquest report
(Ex.Ka-10),
which
mentions
that
the
informant Ashok Kumar and the informant's
brother-in-law Veer Pal were also present at
the time of inquest. Veer Pal Singh has
appeared as DW-1 and has stated that on 1608-2014, the informant had informed him on
phone that Sanna has committed suicide by
consuming poison at home. When he reached
the informant's house at about 5:30 p.m., the
informant dictated a report to him, thereafter,
the informant put his thumb impression on
the report scribed by the DW-1 on his
dictation. The DW-1 was also a witness of
the inquest.

22. In the present case, there is no
direct evidence of the incident and the case
is based on the circumstantial evidence that
the deceased had allegedly been last seen
with the accused-persons drinking alcohol
and thereafter he died and ALP (sulphas)
was found in the examination of his
viscera.

23. In Sharad Birdhichand Sarda v.
State of Maharashtra, (1984) 4 SCC 116,
450 INDIAN LAW REPORTS ALLAHABAD SERIES
the Hon'ble Supreme Court laid down the
following
conditions
which
must
be
fulfilled before a case can be said to be
established on the basis of circumstantial
evidence: -

"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 para 19,
p. 807: SCC (Cri) p. 1047]

"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."

24. In the same judgment, the Hon'ble
Supreme Court explained the mode and
manner of proof of cases of murder by
administration of poison, in the following
words: -

"164. We now come to the mode
and manner of proof of cases of murder by
administration of poison. In Ramgopal
case18 this Court held thus: (SCC p. 629,
para 15)

"Three questions arise in such
cases, namely (firstly), did the deceased die
of the poison in question? (secondly), had
the accused the poison in question in his
possession? and (thirdly), had the accused
an opportunity to administer the poison in
question to the deceased? It is only when
the motive is there and these facts are all
proved that the court may be able to draw
the
inference,
that
the
poison
was
administered by the accused to the
deceased resulting in his death."

165. So far as this matter is
concerned, in such cases the court must
carefully scan the evidence and determine
3 All. State of U.P. Vs. Radhey Shyam & Ors.
451
the four important circumstances which
alone can justify a conviction:

(1) there is a clear motive for an
accused to administer poison to the
deceased,

(2) that the deceased died of
poison said to have been administered,

(3) that the accused had the
poison in his possession,

(4) that he had an opportunity to
administer the poison to the deceased."

25. In the present case, there is neither
any clear motive for the accused to
administer poison to the deceased, nor has
it been proved that the accused had the
poison in their possession and, therefore,
there is no sufficient evidence to prove that
the accused persons committed murder of
the deceased by administering poison to
him.

26. In Jaipal v. State of Haryana,
(2003) 1 SCC 169, the Hon'ble Supreme
Court held that ALP on account of its very
pungent smell (which can drive out all
inmates from the house if left open) cannot
be taken accidentally. Therefore, the
learned Court below held that Aluminum
Phosphoid could not be administered
deceitfully or accidentally. The only
possibility
remains
that
the
accused
administered it forcibly, but neither any
witness has given any evidence to this
effect nor the post mortem report mentions
any injury on the person of the deceased
which could indicate any resistance made
by him against this forcible act.

27. Keeping in view the aforesaid
facts which emerge from the statement of
witnesses as well as other material
available
on
record,
particularly
the
application
given
to
the
police
on
16.08.2014 (Ex. K-1) and the application
filed by the informant under Section 156
(3) Cr.P.C. (Ex.K-2), we find that the
prosecution
has
miserably
failed
to
establish that the accused-respondents have
committed murder of the deceased by
administering poisonous substance.

28. In Jayamma Vs. State of
Karnataka (2021) 3 SCC 213, the Hon'ble
Supreme Court was pleased to reiterate the
well settled law that the power of scrutiny
exercisable by the High Court under
Section 378 Cr.P.C. should not be routinely
invoked where the view formed by the trial
court was a "possible view". The Hon'ble
Supreme Court held that unless the High
Court
finds
that
there
is
complete
misreading of the material evidence which
has led to miscarriage of justice, the view
taken by the trial court which can also
possibly be a correct view, need not be
interfered with.

29.

Examining
the
impugned
judgment and order passed by the learned
court below, we are of the view that the
findings of the Court below forming basis
of its judgment are based on a correct
evaluation of the evidence available on the
record of the case. The judgment dated
18.03.2021
passed
by
the
learned
Additional Sessions Judge, Court No. 8,
Bulandshahr in Sessions Trial No. 352 of
2016 does not suffer from any illegality or
infirmity so as to warrant a further
scrutiny by this Court in exercise of its
appellate jurisdiction. There is no good
ground for grant of leave to appeal to the
State-appellant. The application seeking
leave to file an appeal is, accordingly
rejected.
452 INDIAN LAW REPORTS ALLAHABAD SERIES

(Order on Appeal)

30. Since the application seeking
leave to file an appeal is rejected, the
appeal also stands dismissed summarily at
the admission stage.
----------
(2022)03ILR A452
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.12.2021

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Government Appeal No. 1653 of 2002

State of U.P. ...Appellant
Versus
Radhey Shyam & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:

A. Criminal Law - The Court on finding
serious contradictions in the statements of
P.W. 1 and P.W. 2 rejected the appeal.
Appeal Rejected. (E-10)

(Delivered by Hon'ble Brij Raj Singh, J.)

1. This government appeal has been
preferred against a common judgment dated
23 January 2002 passed by the Special
Judge/Additional District & Sessions Judge,
Bijnor in Sessions Trial No. 39 of 1994 (State
Vs. Radheyshyam and others) for offences
under Sections 302 read with Section 34
I.P.C., Sessions Trial No. 181 of 1994 (State
Vs. Jogendra) only for offences under Section
25 of the Arms Act and in Sessions Trial No.
182 of 1994 (State Vs. Radheyshyam) only
for offences under Section 25 of the Arms
Act, Police Station Kotwali Dehat, District
Bijnor, by which the accused respondents
have been acquitted.

2. As per the prosecution case, it is
stated that Rajesh along with Radheyshyam,
Ram Kumar and Jeet Singh with an intention
to kill, earlier made an attempt to murder the
complainant Dinesh Singh on 01.10.1993. A
report was lodged by the father of the
complainant in the police station alleging that
the accused attempted earlier to kill his father
but they were unsuccessful. The father of the
complainant (Phool Singh) had gone outside
the house on the call of nature on 16.11.1993
at 5.A.M., and on way back in front of
Dharmvir's house, he was apprehended by
Radheyshyam,
Jitendra,
Yogendra
and
Rakesh. Radheyshyam had 315 Bore Rifle
and others had country-made pistol and all
the four accused fired at his father. Hearing
the sound of fire shots, the complainant and
his uncle Suresh and some villagers reached
the spot. The accused threatened them to dire
consequences, in case they come to save the
deceased or anyone who dares to lodge F.I.R.
or comes forward as witness. The father of
the complainant died on the spot. The
villagers did not accompany the complainant
to
lodge
the
report,
thereafter,
the
complainant went to his brother Brijpal Singh
residing in Village Kiratpur. He took him to
the police station and thereafter the report
was lodged.

3. The charge sheet was submitted
before the C.J.M., under Section 302 I.P.C.
The accused denied the charge. The charge
sheet was also filed under Section 25 of the
Arms Act.

4. Prosecution, in order to prove the
charge, produced P.W. -1 (Dinesh) (the
complainant), P.W. -2 (Suresh Chandra, the