# State of U.P v. Chandra Pal & Ors

- **Citation:** (2024) 5 ILRA 334
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Government Appeal No. 1809 of 1984
- **Bench:** Rajiv Gupta, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-chandra-pal-ors-52104
- **Pages:** 12

## Headnote

Criminal Law-Indian Penal Code-1860Sections 302/34)- Government Appeal against
the impugned judgment and order whereby
accused-Respondents acquitted for the charge
under
Section
302/34
I.P.C-
Factum
of
conversation between the deceased and his wife
is too far-fetched and is highly doubtful-Material
inconsistency in the St.ment of the witnesses
P.W.-1 & P.W.-2 regarding the catching hold of
the victim, whether after the assault has been
made by the knife or before inflicting the knife
blow on the chest of the deceased-The
testimonies of P.W.-1 and P.W.-2 assigning the
role of catching hold qua accused-respondent the
same has been St.d for the first time in court and
not been disclosed to the Investigating Officer at
the time of recording their St.ment under Section
161 Cr.P.C., which shows that there is a clear
improvement in the St.ment of both the
witnesses regarding the role of catching hold.

The scope of interference by an appellate court
for reversing the judgment of acquittal
recorded by the trial court in favour of the
accused has to be exercised within the four
corners of the following principles:- (i). That
the judgment of acquittal suffers from patent
perversity; (ii)That the same is based on a
misreading/omission
to
consider
material
evidence on record; (iii)That two reasonable
views are possible and only the view consistent
with the guilt of the accused is possible from
the evidence available on record.

Government Appeal dismissed. (E-15)

List of Cases cited:

## Text

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334 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh and Ashok @ Ranjit of all the charges
levelled against them, we are in full
agreement with the findings recorded by the
trial court. The trial court has fully examined
the evidence led by the prosecution in
correct perspective and the finding returned
by it that the prosecution has not succeeded
in proving its case beyond reasonable doubt
against the accused-respondents can be
legally sustained. The prosecution has not
fully established the guilt of the accusedrespondents on the basis of evidence led at
the stage of trial by the prosecution. The
acquittal
of
the
accused-respondents,
Sughar Singh, Nagendra Singh, Sahdeo
Singh and Ashok @ Ranjit of all the charges
framed against them, is consequently,
affirmed.

66. Consequently, in view of the
deliberations held above the Government
Appeal filed on behalf of the State stands
dismissed.

67. There shall be no order as to costs.
----------
(2024) 5 ILRA 334
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Government Appeal No. 1809 of 1984

State of U.P. ...Appellant
Versus
Chandra Pal & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Prakash Gupta
Criminal Law-Indian Penal Code-1860Sections 302/34)- Government Appeal against
the impugned judgment and order whereby
accused-Respondents acquitted for the charge
under
Section
302/34
I.P.C-
Factum
of
conversation between the deceased and his wife
is too far-fetched and is highly doubtful-Material
inconsistency in the St.ment of the witnesses
P.W.-1 & P.W.-2 regarding the catching hold of
the victim, whether after the assault has been
made by the knife or before inflicting the knife
blow on the chest of the deceased-The
testimonies of P.W.-1 and P.W.-2 assigning the
role of catching hold qua accused-respondent the
same has been St.d for the first time in court and
not been disclosed to the Investigating Officer at
the time of recording their St.ment under Section
161 Cr.P.C., which shows that there is a clear
improvement in the St.ment of both the
witnesses regarding the role of catching hold.

The scope of interference by an appellate court
for reversing the judgment of acquittal
recorded by the trial court in favour of the
accused has to be exercised within the four
corners of the following principles:- (i). That
the judgment of acquittal suffers from patent
perversity; (ii)That the same is based on a
misreading/omission
to
consider
material
evidence on record; (iii)That two reasonable
views are possible and only the view consistent
with the guilt of the accused is possible from
the evidence available on record.

Government Appeal dismissed. (E-15)

List of Cases cited:

1. Darshan Singh Vs St. of Pun. (2024) 3 SCC
164

2. Gadadhar Chandra Vs St. of W. B.l (2022) 6
SCC 576

3. Ramashish Yadav & ors.Vs St. of Bihar (1999)
8 SCC 555

4. Sadhu Saran Singh Vs St. of U.P. (2016) 4
SCC 397

5. Harljan Bhala Teja Vs St. of Guj. (2016) 12
SCC 665
5 All. State of U.P. Vs. Chandra Pal & Ors.
335
6. Rajesh Prasad Vs St. of Bihar & anr.Criminal
Appeal No. 111113 of 2015 (SC)

(Delivered by Hon'ble Rajiv Gupta, J.)

1. Heard Shri J.P. Tripathi, learned
AGA for the State/ appellant, Shri Ravi
Pandey, holding brief of Shri Rahul Kumar
Sharma, learned counsel for the accusedrespondents and perused the record.

2. The instant government appeal has
been filed against the judgment and order
dated 20.03.1984 passed by Special Judge/
Additional Sessions Judge, Aligarh in
Sessions Trial No. 291 of 1983 (State of
U.P. Vs. Yad Ram and 3 Others), arising out
of Case Crime No. 96 of 1983, under
Section 302 IPC, Police Station Sasani,
District Aligarh, by which the accusedrespondents have been acquitted for the
charge under Section 302 read with Section
34 IPC.

3. During the pendency of the said
government appeal, accused-respondent
no.2 Hira Lal has already passed away on
06.03.2005 and as such, the instant
government appeal qua accused-respondent
no.2 Hira Lal has been abated and now, it
survives only for accused-respondent no.1
Chandra Pal.

4. The prosecution story as unfurled
in the FIR is that a litigation regarding
partition of land was pending between the
first informant Lala Ram, Raghubir and
Ram Prasad, on one hand and Chandra Pal,
Hira Lal, Yad Ram and Babu, on the other.

5. It is further alleged that on the joint
land, a grove of mango and guava,
measuring 16 bigha, was under the control
and use of Yad Ram, Babu, Chandra Pal
and Hira Lal, whereas on the joint land,
measuring 10 bigha, there was another
grove, which was in the possession and
use of the first informant Lala Ram and his
nephew Raghubir (Deceased).

6. It is further alleged that on
14.04.1983 at about 8:00 AM, Lala Ram
alongwith his son Ganga Saran and Leela
and his nephew Raghubir were present in
the grove, where Yad Ram, armed with
knife and Babu, armed with lathi, Chandra
Pal and Hira Lal, who were unarmed,
reached the grove and asked the first
informant Lala Ram and his nephew
Raghubir as to why they are keeping a
watch on the grove and started hurling
abuses. In the meantime, Hira Lal and
Chandra Pal caught hold of his nephew
Raghubir. Babu, who was armed with
lathi, exhorted Yad Ram to kill Raghubir,
who poses to be very arrogant, consequent
thereto, Yad Ram, with an intention to kill
Raghubir, assaulted him with a knife blow
below his left armpit in the chest. On the
alarm being raised, all the four assailants
ran away towards Champa Bagh. After
some time, his sons Dalbir and Karan
Singh also reached the place of incident
and took the injured Raghubir on a cot
towards Government Hospital, Sasani,
where Raghubir succumbed to his injuries.

7. On the basis of the said allegations,
a written report, which has been proved and
marked as Exhibit Ka-1, was scribed by one
Satya Dev, which was taken to the Police
Station Sasani and handed over to the
Head Moharrir Ram Swaroop Singh,
who, on the basis of said written report,
lodged a first information report, which
has been proved and marked as Exhibit
Ka-16, corresponding G.D. entry of
which was drawn vide G.D. Report
No.14, which has been proved and
marked as Exhibit Ka-17.
336 INDIAN LAW REPORTS ALLAHABAD SERIES

8. After registration of the first
information report, the investigation of the
said case was entrusted to S.I. Ram Murti
Yadav, who was present at the Police
Station. He reached the spot and prepared
the inquest report alongwith other relevant
documents, including photo lash, challan
lash, chitthi R.I., chitthi C.M.O. and sealed
samples, which have been proved and
marked as Exhibit Ka-11 to Exhibit Ka-13.
The investigating Officer also collected the
blood-stained earth and plain earth from the
place of incident and kept it in a container
and prepared its fard recovery memo, which
has been proved and marked as Exhibit Ka14. Thereafter, the corpse was wrapped in a
cloth by preparing sample seal and
thereafter, dispatched the dead body for the
post-mortem. An autopsy was conducted on
the person of the deceased by Dr. G.P.
Varshney (PW-4). The Doctor has noted
following injuries on the person of the
deceased :-

(i). Stab wound 1" x 1/2" x cavity
deep on the left side of chest in axillary line,
5" below and downward to left nipple. Dry
blood sticking to the wound and on chest
side.

(ii). Abrasion 1/4" x 1/4" on the
inner side of left leg, 6" below knee joint.

In the opinion of the Doctor, the
death was due to shock and haemorrhage, as
a result of ante-mortem injuries mentioned
above.

9. The Investigating Officer thereafter
collected the relevant material and after
recording the statement of the witnesses and
concluding the investigation, submitted
charge-sheet against the accused persons,
which has been proved and marked as
Exhibit Ka-10. On submission of the said
charge-sheet, learned Magistrate had taken
cognizance, however, since the case was
exclusively triable by the court of Sessions,
committed the case to the court of Sessions,
where it was registered as Sessions Trial No.
291 of 1983 (State of U.P. Vs. Yad Ram and
3 Others).

10. The trial court thereafter framed
the charges under Section 302 read with
Section 34 IPC against the accusedrespondents and the said charges were read
out to them, who abjured the charges, did
not plead guilty and claimed to be tried.

11. In order to prove the guilt against
the accused persons, the prosecution
examined as many as six witnesses; Lala
Ram (PW-1), Ganga Saran (PW-2) and Smt.
Shakuntala (PW-3), wife of the deceased
Raghubir as witnesses of fact, while PW-4
Dr. G.P. Varshney was the Medical Officer,
who conducted the post-mortem, PW-5
S.H.O.
Vijay
Singh,
the
second
Investigating Officer, PW-6 S.I. Ram Murti
Yadav, being the first Investigating Officer
and PW-7 Constable Brij Mohan, who
proved
the
first
information
report
alongwith its corresponding G.D. entry.

12. After recording of the entire
evidence, the statement of the accused
persons was recorded under Section 313
CrPC and thereafter, the trial court vide
impugned judgment and order dated
20.03.1984 has acquitted both the accused
persons, against which, present government
appeal has been filed with the prayer to
reverse the acquittal of the accusedrespondents and to convict them for the
offence charged with.

13. In order to appreciate the
controversy, in question, involved in the
present government appeal, it would be apt
to discuss the statement of the witnesses, in
brief, recorded during the course of trial.
5 All. State of U.P. Vs. Chandra Pal & Ors.
337

14. PW-1 Lala Ram is the uncle of the
deceased as well as first informant of the
case. From his testimony, we find that the
first informant as well as accusedrespondents belongs to one and the same
family and their inter-se relationship is quite
clear.

15. PW-1 has further stated that about
seven months back at about 8:00 AM, he
alongwith his son Ganga Saran (PW-2) and
his nephew Raghubir were present at their
grove, where accused persons Yad Ram,
Chandra Pal, Babu and Hira Lal came.
Accused Babu was armed with lathi, Yad
Ram was armed with knife, whereas
Chandra Pal and Hira Lal were empty
handed. Accused persons Chandra Pal and
Yad Ram questioned him as to why they are
keeping a watch over the grove, to which,
Raghubir replied that they are the owner of
the grove and therefore, they are keeping a
watch over it, consequent to which, accused
persons started hurling abuses. Meanwhile,
accused Babu asked Yad Ram that Raghubir
is posing to be very arrogant, then Chandra
Pal and Hira Lal held his nephew Raghubir
by his hands and Yad Ram inflicted a knife
blow and ran away. On alarm being raised,
the assailants threatened him by flashing his
knife and made their escape good towards
Champa Bagh. The said knife blow was
given at the instigation of Babu. After
accused persons had left the place of
incident, Smt. Shakuntala Devi, wife of the
deceased Raghubir, also reached there.
Thereafter, Dalbir and Karan Singh reached
the place of incident and there was some
conversation between Raghubir and his wife
Shakuntala. The injured Raghubir thereafter
was kept in a cot and taken to the hospital,
however, he succumbed to his injuries and
then, he was brought to the Police Station,
where the first information report was
scribed by one Satya Dev, which was read
out to him and thereafter, the first
information report was registered.

16. During cross-examination, he
stated that when Yad Ram reached the place
of incident, he was having a knife in his
pocket, however, he had not disclosed this
fact to the Investigating Officer. He further
stated that he had seen Yad Ram taking out
the knife from his pocket, the blade of which
was five inch long. He further stated that
when Hira Lal and Chandra Pal caught hold
of Raghubir, he did not expect that they
would quarrel with them to this extent. The
victim tried to get released. Yad Ram gave
only one knife blow to the deceased but did
not attempt the second blow and ran away
towards Champa Bagh and thereafter,
Shakuntala reached at the spot. He further
stated that he had disclosed to the
Investigating Officer in his statement under
Section 161 CrPC about the factum of
reaching of Shakuntala at the place of
incident but could not state as to why the
Investigating Officer had not mentioned the
said fact in his statement. He further denied
the suggestion that incident took place in the
dark and further denied the suggestion that
he has not witnessed the incident and
Raghubir was killed by some unknown
338 INDIAN LAW REPORTS ALLAHABAD SERIES
person and that he was not present at the
time of incident.

17. PW-2 Ganga Saran is the son of
PW-1 Lala Ram. He, in his testimony, has
stated that on the fateful day at about 8:00
AM in the morning, he alongwith his father
Lala Ram were present in the grove, where
Chandra Pal, Hira Lala, Babu and Yad Ram
came and started hurling abuses. The
deceased Raghubir stated that they are
keeping a watch over the grove and the
grove belongs to them, on which, Babu
instigated to kill him by the knife as he poses
to be very arrogant. He further stated that
Hira Lal and Chandra Pal were empty
handed, whereas Babu was armed with lathi
and Yad Ram was armed with a knife. Yad
Ram gave a knife blow to the deceased. Hira
Lal and Chandra Pal then held him by his
hands. The knife blow hit him below the left
armpit in the chest. After inflicting the knife
injury, they ran away towards Champa
Bagh, thereafter, Shakuntala, wife of the
deceased Raghubir, reached there followed
by Dalbir and Karan Singh.

18. During cross-examination, he
stated that he alongwith Raghubir reached at
the grove at 5:30 in the morning. After
lodging of the report, the Investigating
Officer had recorded his statement. He
further stated that due to fear, he did not
make any attempt to save the victim. When
Yad Ram entered in the grove, the knife was
in his pocket or in his hands was not seen by
him. After Hira Lal and Chandra Pal caught
hold of the victim, Babu exhorted to kill
Raghubir, then Yad Ram took out the knife
from his pocket and gave a knife blow. He
further stated that before taking out the knife
from the pocket, he had not seen it, however,
he has not touched Raghubir. On being
questioned, if he, in his statement to the
Investigating Officer, had disclosed the fact
that after the knife blow, the victim was
speaking or not, to which, he replied that "he
was already dead". He had further denied
the suggestion that he had not seen the
incident and before his reaching at the
grove, Raghubir was dead.

19. PW-3 Smt. Shakuntala Devi is the
wife of the deceased Raghubir. She, in her
statement, has categorically stated that she
was going from her house to give the food to
her husband and had seen Yad Ram, Babu,
Chandra Pal and Hira Lal running away
from the place of incident towards Chamba
Bagh. She further stated that on questioning,
her husband informed her that Chandra Pal
and Hira Lal caught hold of him and Yad
Ram at the instigation of Babu, inflicted a
knife blow to him.

20. During cross-examination, she
stated that it is wrong to state that she had
not seen Chandra Pal, Babu, Yad Ram and
Hira Lal running away from the place of
incident and that there was no conversation
with her husband. She further denied the
suggestion that incident had taken place in
the dark and she is falsely implicating the
accused persons.

21. PW-4 Dr. G.P. Varshney is the
Medical Officer, who had conducted an
autopsy on the person of the deceased, who
had noted the injuries and the post-mortem
examination report has also been proved by
him, which has been marked as Exhibit Ka2.

22. During cross-examination, he
stated that injury no.2 could be caused by
fall and the injury No.1 was sufficient in the
ordinary course of nature to cause death.

23. PW-5 S.H.O Vijay Singh is the
second Investigating Officer. Earlier, the
5 All. State of U.P. Vs. Chandra Pal & Ors.
339
investigation was done by PW-6 S.I. Ram
Murti Yadav, however on 24.04.1983, he
had taken over the investigation and
interrogated one of the accused persons. He
collected the relevant documents relating to
copies of Khasra and Khatauni and had sent
the blood-stained earth and plain earth for
the
chemical
examination
and
after
concluding the investigation, submitted the
charge-sheet.

24. PW-6 S.I. Ram Murti Yadav is the
first Investigating Officer and in whose
presence, the first information report was
registered at 9:15 AM on 14.04.1983. He
conducted the inquest on the person of the
deceased and prepared the other relevant
papers and thereafter, despatched the dead
body for the post-mortem.

25. During cross-examination, he
categorically stated that PW-1 Lala Ram in
his statement under Section 161 CrPC did
not disclose. To quote :- लालाराम ने मुझे दनमनदलदखत
ब्यान नहीं दिया "इ पर मृतक रघुवीर ने कहा दक बाग हमारा है हम
रखायेगें। न ये बयान दिया दक मृतक का एक हाथ चन्द्रपाल मुदल्जमान
ने पकडा व एक हाथ हीरा लाल मुदल्जम ने पकडा" न यह ब्यान दिया।
लाला राम ने मुझे यह भी नहीं बताया "दक मौके पर शकुन्तला
मुदल्जमान के जाने के बाि खाना लेकर आई थी।"

"रघुवीर मृतक व उ की बीवी की बातचीत ह ई थी।
मुझे यह भी ब्यान नहीं दिया। चारपाई चमपा बाग े लाये थे।"

"गवाह निं० 2 यानी गिंगा शरण ने भी उपरोक्त ारी
बातें अपने ब्यान में नहीं बताई थी।"

26. PW-7 Brij Mohan is the Constable,
who has proved the chik FIR and the
corresponding G.D. entry, which was drawn
by Head Moharrir Ram Swaroop Singh at
the relevant date and time, however, he has
not been cross-examined.

27.

Learned
AGA
for
the
State/appellant has submitted that evidence
of P.W.1 Lala Ram and P.W.2 Ganga Saran
coupled with medical evidence would show
that the prosecution has proved its case
beyond all reasonable doubt, yet the trial
court, on the basis of surmises and
conjectures, has illegally recorded the
finding of acquittal against the accusedrespondents, which is bad in law and is
liable to be reversed.

28. Learned AGA has further
submitted that from the evidence adduced
during the course of trial, it is proved beyond
all reasonable doubt that the accusedrespondent Chandra Pal in furtherance of the
common intention with all the accused, has
committed the instant offence and therefore,
he is liable to be convicted under Section
302 read with Section 34 IPC, however, the
trial court completely misjudged the
evidence on record and has illegally
recorded the finding of acquittal against the
accused-respondents, which is bad in law
and is liable to be reversed.

29. Per contra, learned counsel for the
accused-respondents has submitted that trial
court has appreciated the material and
evidence available on record in right
perspective. He has further submitted that
from the entire evidence adduced during the
course of trial, the role of catching hold
assigned to the accused-respondents, is
highly doubtful, which is further fortified
from the circumstance that role of "catching
hold" assigned to the accused-respondent
Chandra Pal has been stated for the first time
in court by P.W.1 Lala Ram and P.W.2
Ganga Saran and they had not disclosed the
said factum to the Investigating Officer, who
recorded their statements under Section 161
Cr.P.C. and as such, there is clear
improvement in the statement of P.W.1 Lala
Ram and P.W.2 Ganga Saran qua the role of
catching hold assigned to the accused-
340 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents, which makes their testimony
highly unreliable and creates serious dent in
the prosecution story as held by the trial
court in the impugned judgment and order,
which finding is just, proper and legal and
do not call for any interference.

30. Learned counsel for the accusedrespondents has further submitted that
Section 34 of IPC qua accused-respondent is
not attracted in the present case. He has
further submitted that prior concert or prearranged plan to kill the deceased has not
been established and only act assigned to the
accused-respondent is of catching hold,
which too is highly doubtful. It was coaccused Babu, who had exhorted the coaccused Yad Ram to kill the deceased and
on his exhortation, Yad Ram had given a
knife blow to the deceased causing his
death.

31. Learned counsel for the accusedrespondents has further submitted that
accused-respondents were unarmed and
from the testimony of P.W.1 Lala Ram and
P.W.2 Ganga Saran, it is borne out that
accused-respondent Yad Ram suddenly took
out the knife from his pocket and gave a
single knife blow to the deceased, which
was not within the knowledge of the
accused-respondent and thus, it is urged that
by no stretch of imagination, Section 34 of
IPC would be applicable to the accusedrespondent and the finding recorded by the
trial court in this respect is just, proper and
legal and do not call for any interference.

32. Having considered the rival
submissions made by the parties and having
gone through the record, we find that the
instant case was a result of dispute between
the two parties, who were relatives amongst
themselves, over the control and use of the
grove, Accused persons reached at the place
of incident and started hurling abuses and
thereafter, it is alleged that accusedrespondents Hira Lal and Chandra Pal
caught hold of the deceased Raghubir by his
hands and on the exhortation of co-accused
Babu, accused Yad Ram gave a knife blow
to the deceased Raghubir on his chest
causing his death.

33. In support of its case, the
prosecution has produced P.W.1 Lala Ram
and his son P.W.2 Ganga Saran to be the
eye-witnesses of the incident. It is further
stated that after the incident of assault, when
the
assailants
had
run
away,
Smt.
Shakuntala Devi, wife of the deceased
Raghubir, also reached there and had a
conversation with the deceased Raghubir.

34. When we go through the
testimonies of PW-1 Lala Ram and PW-2
Ganga Saran, we find that presence of PW3 Smt. Shakuntala Devi, wife of the
deceased Raghubir, at the time of incident is
highly doubtful, which finds corroboration
from the fact that PW-1 Lala Ram, in his
statement under Section 161 CrPC, has not
disclosed to the Investigating Officer about
the presence of Smt. Shakuntala at the time
of incident.

35. Further, the testimony of PW-3
Smt. Shakuntala Devi that her husband had
a conversation with her is falsified from the
statement of PW-2 Ganga Saran, wherein,
on being questioned as to whether he had
disclosed to the Investigating Officer, that
the victim was speaking after being inflicted
with a knife blow, to which, he stated that he
had already died. To quote :- "प्रश्न- क्या आपने
िरोगा जी को अपने ब्यान में यह बात बताई थी दक चाकू लगने के
तुरन्त बाि बोलता था या नही? उत्तर- वह तो मर गया था।"

36. Even from the statement of PW-4
Dr. G.P. Varshney, who had conducted the
5 All. State of U.P. Vs. Chandra Pal & Ors.
341
post-mortem, it is clear that after receiving
the said injury, a man may become
unconscious and looking to the nature of the
injury caused to the deceased, we are of the
opinion that factum of conversation between
the deceased Raghubir and his wife Smt.
Shakuntala Devi is too far-fetched and is
highly doubtful. Even P.W.-6 S.I. Ram
Murti Yadav, in his cross-examination, has
categorically stated that neither P.W-1 Lala
Ram nor P.W.-2 Ganga Saran had disclosed
to him that there was a talk between the
deceased and his wife. To quote: "लालाराम ने मुझे
यह भी नहीं बताया दक मौके पर शकुन्तला मुदल्जमान के जाने के बाि
खाना लेकर आई थी रघुवीर मृतक व उ की बीबी की बातचीत ह ई
थी। मुझे यह ब्यान भी नही दिया था। गवाह निं० 2 गिंगाशरण ने भी
उपरोक्त ारी बाते अपने ब्यान में नही बताई थी। "

37. Thus, from the said statement, it is
evident that the presence of P.W.-3 Smt.
Shakuntala Devi at the time of incident is
highly doubtful. Her testimony, in the
backdrop of the said circumstance, is not
worth credence and in our opinion, she is a
wholly unreliable witness and rightly
discarded by the trial court.

38. Now, coming to the testimony of
P.W.1 Lala Ram and P.W.2 Ganga Saran,
we find that they are father and son and
highly partisan and interested witnesses
and related to the deceased also. Even, as
per the statement of P.W.-1 Lala Ram and
P.W.-2 Ganga Saran, the only role
assigned to the accused-respondents is that
of catching hold. Even, while assigning
the
said
role,
there
is
apparent
inconsistency in their statements. As per
the statement of P.W.-1 Lala Ram,
accused Chandra Pal along with Hira Lal,
first of all caught hold of the deceased by
his
hands
and
thereafter,
on
the
exhortation of Babu, Yad Ram gave a
knife blow to the deceased. To quote: "बाबू
मुदल्जम ने यािराम े कहा िेख क्या रहा है यह बह त हेकड बन
रहा है और एक हाथ रघुबीर मृतक का चन्द्रपाल मुदल्जम ने पकडा
और एक हाथ हीरा लाल मुदल्जम ने पकडा। याि राम ने रघुवीर
के चाकू मारा और दफर यह भागे हमने हल्ला गुल्ला मचाया। इ
पर हमे चाकू दिखाते ह ये कहा दक खत्म कर िेंगे। यह चारो लोग
चमपा बाग में भाग गये। यह चाकू बाबू के कहने े मारा था।

39. While, P.W.-2 Ganga Saran, in
his examination-in-chief, has stated that
"बाबू ने कहा मार िो ाले को चाकू यही िम में िम भरता है।
हीरा लाल व चन्द्र पाल खाली हाथ थे बाबू पर लाठी थी और
यािराम पर चाकू था।

यािराम ने चाकू मार दिया हीरा लाल और चन्द्र
पाल ने मृतक रघुवीर के हाथ पकडे। चाकू बाई बगल के नीचे
लगा। चाकू मारने के बाि ये लोग चमपा बाग की तरफ भाग गये।"

40. Thus, from the statement of
P.W.2 Ganga Saran, it is borne out that on
the exhortation of Babu, Yad Ram had
given a knife blow to the deceased
Raghubir, whereas Chandra Pal and Hira
Lal were empty handed and after the
assault by a knife, they are said to have
held the victim by his hands.

41.

Thus,
there
is
material
inconsistency in the statement of P.W.-1
Lala Ram and P.W.-2 Ganga Saran
regarding the catching hold of the victim,
whether after the assault has been made by
the knife or before inflicting the knife
blow on the chest of the deceased.

42. Furthermore, the role assigned to
the accused-respondents of catching hold is
falsified from the statement made by P.W.-
6 S.I. Ram Murti Yadav, Investigating
Officer, wherein it has been categorically
stated that " लालाराम ने मुझे दनमन दलदखत ब्यान दिया " इ
पर मृतक रघुवीर ने कहा दक बाग हमारा है। हम रखायेंगे। न यह ब्यान
दिया था दक मृतक का एक हाथ चन्द्रपाल मुदल्जम ने पकडा व एक
हाथ हीरा लाल मुदल्जम ने पकडा। लालाराम ने मुझे ये भी नही बताया
था दक मौके पर शकुन्तला, मुदल्जमान के जाने के बाि, खाना लेकर
342 INDIAN LAW REPORTS ALLAHABAD SERIES
आई थी। गवाह निं०2 गिंगा रन ने अपने ब्यान में ये ारी बात नही
बताई थी। "

43. Thus, from the said testimonies of
P.W.-1 Lala Ram and P.W.-2 Ganga Saran
assigning the role of catching hold qua
accused-respondent
Chandra
Pal
is
concerned, it is evident that the same has
been stated for the first time in court and has
not been disclosed to the Investigating
Officer at the time of recording their
statement under Section 161 Cr.P.C., which
shows that there is a clear improvement in
the statement of both the witnesses P.W.-1
Lala Ram and P.W.-2 Ganga Saran
regarding the role of catching hold assigned
to the accused-respondent Chandra Pal,
which
makes
their
testimony
highly
doubtful and unreliable.

44. The Hon'ble Apex Court in a
recent decision reported in (2024) 3 SCC
164 Darshan Singh Vs. State of Punjab, has
held that if the prosecution witnesses fail to
mention in their statement under Section
161 Cr.P.C. about the involvement of an
accused, their subsequent statement before
the court during trial, regarding involvement
of that particular accused cannot be relied
upon and, similarly, prosecution cannot seek
to prove a fact during trial through eyewitness, which such witness had not stated
to police during investigation and, thus,
evidence of that witness regarding the said
improved fact is of no significance as in the
present case, which we have discussed
above.

45. In the light of the principles laid
down by the Hon'ble Apex Court in the
aforesaid decision, we are of the opinion that
role of catching hold assigned to the
accused-respondent Chandra Pal is highly
doubtful as rightly held by the trial court and
his participation in the incident as alleged in
the prosecution story becomes highly
unreliable and not worth credence.

46. Now, only question, which is left
for our consideration is whether in the facts
and circumstances of the present case,
accused-respondent Chandra Pal can be
convicted under Section 302 with the aid of
Section 34 IPC as submitted by the learned
AGA for the State.

47. It is well settled principle of law as
held by the Hon'ble Apex Court in the case
reported in (2022) 6 SCC 576, Gadadhar
Chandra Vs. State of West Bengal, wherein
it has been held that the common intention
pre-supposes prior concert, it requires
meeting of minds, a pre-arranged plan
before a man can vicariously be convicted
for the criminal act of another. The criminal
act must have been done in furtherance of
the common intention of all the accused.

48. Now, applying the said principle of
law, as laid down by the Hon'ble Apex
Court in the case of Gadadhar Chandra
(Supra), we find that from the testimonies of
P.W.-1 Lal Ram and P.W.-2 Ganga Saran, it
is clearly borne out that they were unarmed
and both the aforesaid two eye-witnesses
P.W.-1 Lala Ram and P.W.-2 Ganga Saran
in their statement has categorically stated
that Yad Ram at the time of assaulting the
deceased, suddenly took out the knife from
his pocket and gave a knife blow to the
deceased after being exhorted by the coaccused Babu. Even, the role of exhorting
Yad Ram to kill Raghubir has not been
assigned to him, rather only role of catching
hold the victim by his hands is alleged to be
made against them. In support of which,
there is material inconsistency in the
statement of two eye-witnesses P.W.-1 Lala
Ram and P.W.-2 Ganga Saran, as to whether
they held the deceased after the knife blow
5 All. State of U.P. Vs. Chandra Pal & Ors.
343
was given to the deceased or held him before
the knife blow was given, which has already
been discussed above.

49. Thus, from the attending facts and
circumstances of the case and the settled
principle of law laid down by the Hon'ble
Apex Court, we find that the accusedrespondent Chandra Pal at the relevant point
of time, did not have the common intention
to cause the death of the deceased and
therefore, in our opinion, he has rightly been
acquitted by the trial court, which order, in
our opinion, is just, proper and legal and do
not call for any interference, more so, by
reversing the acquittal.

50. Moreover, the Hon'ble Apex Court
in the case reported in (1999) 8 SCC 555
Ramashish Yadav and Others Vs. State of
Bihar, has held that for common intention,
prior concert of meeting of minds is
essential. Even, if an offence is committed
at the spur of the moment, prior concert must
be there. Merely because two persons had
held the deceased while other two, had given
gandasa blows to the deceased, it cannot be
held that the two persons, who had held the
deceased, shared common intention with the
other two, to murder the deceased. Even, on
the aforesaid principles of law laid down by
the Hon'ble Apex Court, the accusedrespondent, in our opinion, is entitled for
acquittal.

51. It is well settled principle of law
that there is a presumption of innocence in
favour of the accused-respondent Chandra
Pal, which further has been concretised by
recording the finding of acquittal against the
accused-respondents.

52. The law with regard to interference
by the appellate court is very well
crystallized. Unless the finding of acquittal
is found to be perverse or impossible,
interference with the same would not be
warranted. Though, there are a catena of
judgments on the issue, we will only refer to
two judgments, which are as reproduced
below:-

(i). In the case of Sadhu Saran
Singh Vs. State of U.P. (2016) 4 SCC 397,
the Hon'ble Apex Court has held that:-

"In an appeal against acquittal
where the presumption of innocence in
favour of the accused is reinforced, the
appellate Court would interfere with the
order of acquittal only when there is
perversity of fact and law. However, we
believe that the paramount consideration of
the Court is to do substantial justice and
avoid miscarriage of justice which can arise
by acquitting the accused who is guilty of an
offence. A miscarriage of justice that may
occur by the acquittal of the guilty is no less
than from the conviction of an innocent.
Appellate Court, while enunciating the
principles with regard to the scope of powers
of the appellate Court in an appeal against
acquittal, has no absolute restriction in law
to review and re-look the entire evidence on
which the order of acquittal is founded."

(ii). Similarly, in the case of
Harljan Bhala Teja Vs. State of Gujarat
(2016) 12 SCC 665, the Hon'ble Apex Court
has held that:-

"No doubt, where, on appreciation
of evidence on record, two views are
possible, and the trial court has taken a view
of acquittal, the appellate court should not
interfere with the same. However, this does
not mean that in all the cases where the trial
court has recorded acquittal, the same
should not be interfered with, even if the
view is perverse. Where the view taken by
the trial court is against the weight of
evidence on record, or perverse, it is always
open far the appellate court to express the
344 INDIAN LAW REPORTS ALLAHABAD SERIES
right conclusion after re-appreciating the
evidence if the charge is proved beyond
reasonable doubt on record, and convict the
accused."

53. The Hon'ble Apex Court in
Criminal Appeal No. 111113 of 2015
(Rajesh Prasad Vs. State of Bihar and
Another) has encapsulated the legal position
covering the field after considering various
earlier judgments and held as under:-

"29. After referring to a catena of
judgments, this Court culled out the
following general principles regarding the
powers of the appellate court while dealing
with an appeal against an order of acquittal
in the following words: (Chandrappa case
[Chandrappa v. State of Karnataka, (2007) 4
SCC 415].

"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:-

(i) An appellate court has full
power
to
review,
re-appreciate
and
reconsider the evidence upon which the
order of acquittal is founded.

(ii) The Criminal Procedure Code,
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.

(iii) 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.

(iv) 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.

(v) 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."

54. Thus, it is beyond the pale of doubt
that the scope of interference by an appellate
court for reversing the judgment of acquittal
recorded by the trial court in favour of the
accused has to be exercised within the four
corners of the following principles:-

(i). That the judgment of acquittal
suffers from patent perversity;

(ii). That the same is based on a
misreading/omission to consider material
evidence on record;

(iii). That two reasonable views
are possible and only the view consistent
with the guilt of the accused is possible from
the evidence available on record.

55. The appellate court, in order to
interfere with the judgment of acquittal,
would have to record pertinent findings on
the above factors, if it is inclined to reverse
the judgment of acquittal rendered by the
trial court.
5 All. State of U.P. Vs. Hariprasad & Anr.
345

56. In our opinion, the trial court has
passed a well reasoned and detailed order,
which, in view of settled principle of law
regarding reversal of acquittal, needs no
interference by this Court. The view taken
by the trial court cannot be said to be
perverse, impossible and illegal and as such,
present Government Appeal filed by the
State has no force and is accordingly
dismissed.

57. Let a copy of this judgment and
order be forwarded to the court concerned
alongwith trial court record for information
and necessary compliance.
----------
(2024) 5 ILRA 345
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Government Appeal No. 3433 of 1985

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

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
N.K. Saxena, Rakesh Kr. Verma

Criminal Law-Indian Penal Code-1860Sections 307 - The Arms Act-1959-Section
25 - The Code of Criminal Procedure, 1973-
Section 313 & 378-- Government Appeal
against the judgment and order whereby the
accused-respondents have been acquitted of all
the charges- Police constables were in plain dress
and not in police uniform at the time of alleged
incident and were armed with 12 bore guns and
not with their rifles as alleged in the F.I.R which
adversely effects the very genesis of the
prosecution story that the police personnels had
gone to discharge their picketing duties in the
village- Victim-deceased being in plain clothes is
further fortified from the inquest report wherein
it has been pointed out that the investigating
officer has not found any clothes on his person.

Accused-respondent Lal Diwan suffered pellet
injuries on his person and his injuries has been
proved by D.W.-2, however the prosecution has
miserably failed to tender any explanation in
respect of the said injuries received by Lal Diwan-
Pellets injuries could not be caused by a rifle
shot- Testimony of the pocket witnesses of the
police cannot be said to be of impeccable nature-
The St.ment of the accused u/s 313 Cr.P.C.
cannot be read in evidence so as to convict him

Appeal Dismissed. (E-15)

List of Cases cited:

1. Rajesh Prasad Vs St. of Bihar & anr.

2. H.D. Sundara & ors. Vs St. of Karn.

(Delivered by Hon'ble Rajiv Gupta, J.)

1. Heard Sri Arun Kumar Pandey,
learned AGA assisted by Sri Kamlesh
Kumar Nishad, learned brief holder for the
State-appellant and Sri Sanjeev Kumar
Khare, learned counsel for the accusedrespondents.

2. The instant Government Appeal has
been filed against the judgment and order
dated 4.9.1985 passed by 4th Addl. Sessions
Judge, Hamirpur in Session Trial No. 246 of
1978 (State Vs.