# State of U.P v. Gaya Singh & Ors

- **Citation:** (2022) 9 ILRA 977
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-04
- **Case number:** Government Appeal No. 200 of 2020
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-gaya-singh-ors-49292
- **Pages:** 19

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections - 161, 378 & 378(3) -
Indian Penal Code,1860 - Sections - 34,
201 & 302 - Indian Evidence Act,1872 -
Section 65-B (iv) - Government Appeal -
against order of Acquittal - unnamed FIR -
offence of murder - allegation that when
accused was going to bed in the night, while
receiving 2-3 mobile phone calls he stepped out
from the house but did not returned, his dead
body was found near a pond in next morning
outside the village - accused were charged - no
eye witness - entire prosecution theory hinges
upon the receiving phone calls - call details was
not supported by a certificate under section 65B(iv) as it is mandatory - prosecution could not
link the accused for committing crime - there is
nothing on the record which complete the chain
- investigation so conducted is not only
defective but in a causal manner - trial court
acquitted all the accused - Appeal - prosecution
has completely failed to prove beyond doubt
that accused were committed offence - held -
leave to appeal rejected even though same is
not a case worth granting leave to appeal -
accordingly, application for granting leave to
appeal
rejected
-
the
Appeal
stands
dismissed.(Para -33, 35, 39, 48, 51, 54, 56)

Appeal dismissed. (E-11)

List of Cases cited:
978 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,725 of 64,095. This is a partial read: ask again with offset=39725 for what follows._

9 All. State of U.P. Vs. Gaya Singh & Ors.
977
conduct of the first informant in leaving the
dead body of the deceased even after
quiting of the accused from the place of
occurrence without even taking any step for
providing
medication
to
the
injured
deceased and isolating the body of the
deceased at the mercy of nature and staying
in the house and non sustaining of a
hairline injury shows that the entire
prosecution case is a concocted one and
encompasses with weak evidence so as to
link
the
accused
with
respect
to
commission of crime.

40. Thus, we are of the considered
opinion that the judgment of the learned
trial court acquitting the accused is a well
reasoned judgment considering each and
every aspect of the matter lacking any
perversity or miscarriage of any justice and
also coupled with the fact that the view
taken by the learned trial court is a possible
and a plausible view which needs no
interference while converting acquittal into
conviction particularly in absence of any
illegality shown to have committed by the
court below.

41. We therefore, have no option but
to concur the judgment of the learned trial
court by affirming it.

42. Resultantly, no ground is made as
to accord leave to appeal and accordingly,
the same is rejected.

43. As the leave to file the present
appeal stands rejected thus, the present
appeal so instituted at the behest of the
State-appellant u/s 378 (3) of the Cr.P.C.
stands dismissed.
----------
(2022) 9 ILRA 977
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Government Appeal No. 200 of 2020

State of U.P. ...Appellant
Versus
Gaya Singh & Ors. ...Respondents

Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondents:

Criminal Law - Criminal Procedure Code,
1973 - Sections - 161, 378 & 378(3) -
Indian Penal Code,1860 - Sections - 34,
201 & 302 - Indian Evidence Act,1872 -
Section 65-B (iv) - Government Appeal -
against order of Acquittal - unnamed FIR -
offence of murder - allegation that when
accused was going to bed in the night, while
receiving 2-3 mobile phone calls he stepped out
from the house but did not returned, his dead
body was found near a pond in next morning
outside the village - accused were charged - no
eye witness - entire prosecution theory hinges
upon the receiving phone calls - call details was
not supported by a certificate under section 65B(iv) as it is mandatory - prosecution could not
link the accused for committing crime - there is
nothing on the record which complete the chain
- investigation so conducted is not only
defective but in a causal manner - trial court
acquitted all the accused - Appeal - prosecution
has completely failed to prove beyond doubt
that accused were committed offence - held -
leave to appeal rejected even though same is
not a case worth granting leave to appeal -
accordingly, application for granting leave to
appeal
rejected
-
the
Appeal
stands
dismissed.(Para -33, 35, 39, 48, 51, 54, 56)

Appeal dismissed. (E-11)

List of Cases cited:
978 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Rajesh Prasad Vs St. of Bihar & anr. (2022 (3)
SCC 471),

2. Arjun Panditrao Khotkar Vs Kailash Kushanrao
Gorantayal & ors. (2020 (7) SCC 1),

3. Ravinder Singh @ Kaku Vs St. of Punj.
(Criminal Appeal No. 1307/2019),

4. Sharad Birdhichand Sarda Vs St. of Mah.
(1984 (4) SCC 16),

5. Padala Veera Reddy Vs St. of A.P. (1989
(Suppl. 2) SCC 706),

6. C. Chenga Reddy & ors. Vs St. of A.P. (1996
(10) SCC 193),

7. St. of Raj. Vs Raja Ram (2003 (8) SCC 180),

8. Shailendra Rajdev Rasvan& ors. Vs St. of Guj.
etc. (Criminal Appeal No. 333-334 of 2017),

9. Raj Kumar Singh @ Raju @ Batya Vs St. of
Raj. (2013 (5) SCC 722).

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Present government appeal, under
Section 378(3) Code of Criminal Procedure (
hereinafter referred to as "Cr.P.C.) has been
preferred against the judgement and order
dated 10.06.2020, passed by the Additional
District and Sessions Judge, Court No.1,
Gorakhpur in Session Trial No. 158 of 2012
(State of U.P. vs. Gaya Singh and others),
arising out of Case Crime No. 163 of 2011,
under
Section
302/34,201
I.P.C,
P.S.
Sahjanwa, District Gorakhpur, whereby the
accused, who are four in number, have been
acquitted from the charges under Sections
302/34, 201 IPC.

2. Factual matrix of the case as worded
in the present appeal are that the first
informant Gulab S/o Suryabali-PW1 had
submitted a written report before the Station
House Officer, Police Station Sahjanwa,
district Gorakhpur on 24.04.2011 with
allegation that on 23.4.2011 his younger son
Om Narayan after eating his meals and taking
the bed cover and mattress had proceeded
towards the roof of the house and thereafter,
he received 2-3 calls on his mobile phone and
he after receiving the mobile phone call came
down from the roof and stepped out of the
house. At that point of time, the family
members who witnessed him going out asked
him why he was proceeding from the house
in question during the night then he assured
that though he was going out from the house
but he would returned back soon and despite
the assurance so given to return back, he did
not return back and at 5.30 a.m. on
24.04.2011, the dead body of deceased Om
Narain was found in the eastern part of the
pond in the village. After receiving the
aforesaid information, the family members
including the first informant proceeded
towards the place whereat the dead body of
Om Narain was found and they saw injuries
being inflicted upon the body of the deceased
and thus the family members took out the
dead body from the pond. Prosecution further
alleges that they proceeded to lodge an FIR
against
unknown
persons,
which
was
registered as case Crime No.163 of 2011,
purported to be under section 302, 201 IPC.

3. One Pradeep Kumar Singh was
nominated as Investigating Officer, he claims
to have reached the place of occurrence and
conducted the proceedings, which were to be
adhered to, post lodging of first information
report while preparing panchnama, sending
the dead body for postmortem, preparation of
site plan and recording of the statement,
under sections 161 Cr.P.C.

4. It is come on record that the
postmortem of the deceased was conducted
on 24.04.2011 by Dr. J.K.Sinha who was
9 All. State of U.P. Vs. Gaya Singh & Ors.
979
posted in Community Health Centre,
Sahjanwa, district Gorakhpur.

5. The Investigating Officer after
conducting investigation, submitted the
charge sheet against the accused herein
under section 302/34, 201 IPC.

6. Case was committed to Session.

7. Charges were readover to the
accused who are four in numbers, they
pleaded innocence and claimed to be
tried.

8. The trial court by virtue of
judgment and order under challenge
acquitted the accused.

9. Challenging the judgment and
order of the acquittal now the State of
U.P.
is
before
this
Court
in
the
proceedings under section 378(3) of the
Cr.P.C.

10. In support of prosecution case,
PW-1- Gulab Kahar, PW-2-Shiv Narayan,
PW-3 Meera Devi, PW-4-Jang Narayan,
PW-5
Head
Constable
Rameshwar
Prasad, PW-6 Sub Inspector Pradeep
Kumar Singh, PW-7 Dr. J.K.Sinha, PW-8-
Vindhyachal, PW-9, Ram Milan Singh
and PW-10, Suraj Singh were produced
got themselves examined before the
Court below.

11. Besides occular testimony the
prosecution also produced documentary
evidence in order to bring home the
charges which is being discussed little
later.

12. This Court indeed is oblivious of
the fact that the present proceedings is at
the behest of the State against the
judgment and order of acquittal thus it is
confronted that certain limitations which
have to be not only noticed but kept in
mind while deciding the present case.

13. The Hon'ble Apex Court right
from very inception has cautioned the
Appellate Court while entertaining and
adjudicating the appeal against conviction
that it should not substitute its own views
viz.-a-viz. the view taken by the learned
Trial Court acquitting the accused in a
routine and cursory manner until and unless
the judgment of the acquittal proceeds in a
wrong direction while being palpably
perverse and there has been complete
misreading of the evidence so as to
occasion mis-carriage of justice to the
partin.

14. Recently, the Hon'ble Apex Court
has occasion to consider the limit in
extending of power of the Appellate Court
in dealing with the judgment of the
acquittal in exercise of the jurisdiction,
under section 378 of Cr.P.C. In the case of
Rajesh Prasad Vs. State of Bihar and
another, 2022 (3) SCC 471, the Hon'ble
Apex Court in paragraph nos. 19, 20, 21,
22, 23, 24, 25, 26, 27, 28, 29 to 31.2.2 are
quoted as under:

"19. In the appeals filed by the
accused and in the Death

Reference No.13/2008, the High
Court, on considering the

submissions made on behalf of
the accused as well as the

State, noted at the outset as
under:

"It is trite law that acquittal of a
coaccused cannot simpliciter be a ground for
acquittal of other accused. There may be
factors
distinguishing
the
two
cases.
980 INDIAN LAW REPORTS ALLAHABAD SERIES
Alternately, an erroneous acquittal and
absence of any challenge to the same cannot
be a ground to demand similar treatment by
others. Likewise, the testimony of an
interested witness cannot be discarded on
that ground alone. It would only require the
Court to be more cautious and scrutinize the
evidence
carefully.
Evidence,
otherwise
cogent and convincing cannot be rejected on
the ground that there was no independent
witness, though the occurrence had taken
place on a busy road. But, there may be
circumstances where the witnesses are
interested and the manner of occurrence as
described
requires
corroboration
by
independent
witness
also.
Ultimately,
therefore, it shall all depend on the facts and
circumstances of the case. It has also to be
kept in mind that it shall be those close to the
deceased, who shall be most keen that the
real culprits be booked."

20.
With
the
aforesaid
observations, the High Court set aside the
judgment of conviction of the accused who
were convicted by the FastTrack Court as
well as sentence imposed upon them and
accordingly,
allowed
the
appeals
by
acquitting all the accused.

21. Before proceeding further, it
would be useful to review

the approach to be adopted while
deciding an appeal against acquittal by the
trial court as well as by the High Court.
Section 378 of the Cr.P.C deals with appeals
in case of acquittal. In one of the earliest
cases on the powers of the High Court in
dealing with an appeal against an order of
acquittal the Judicial Committee of the Privy
Council in Sheo Swarup vs. R. Emperor, AIR
1934 PC 227(2) considered the provisions
relating to the power of an appellate court in
dealing with an appeal against an order of
acquittal and observed as under:

"16. It cannot, however, be
forgotten that in case of acquittal, there is a
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 should be
presumed to be innocent unless he is
proved to be guilty by a competent court of
law. Secondly, the accused having secured
an acquittal, the presumption of his
innocence is certainly not weakened but
reinforced, reaffirmed and strengthened by
the trial court.

"....But in exercising the power
conferred by the Code and before reaching
its conclusions upon fact, the High Court
should and will always give proper weight
and consideration to such matters as (1)
the views of the trial Judge as to the
credibility of the witnesses; (2) the
presumption of innocence in favour of the
accused, a presumption certainly not
weakened by the fact that he has been
acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4)
the slowness of an appellate court in
disturbing a finding of fact arrived at by a
judge who had the advantage of seeing the
witnesses. To state this,however, is only to
say that the High Court in its conduct of the
appeal should and will act in accordance
with rules and principles well known and
recognised in the administration of justice."

It was stated that the appellate
court has full powers to review and to
reverse the acquittal.

22. In Atley vs. State of U.P., AIR
1955 SC 807, the approach of the appellate
court while considering a judgment of
acquittal was discussed and it was
observed that unless the appellate court
comes to the conclusion that the judgment
of the acquittal was perverse, it could not
set aside the same. To a similar effect are
the following observations of this Court
speaking through Subba Rao J., (as His
9 All. State of U.P. Vs. Gaya Singh & Ors.
981
Lordship then was) in Sanwat Singh vs.
State of Rajasthan, AIR 1961 SC 715:

"9. The foregoing discussion
yields the following results:
(1) an
appellate court has full power to review the
evidence upon which the order of acquittal
is founded; (2) the principles laid down in
Sheo Swarup case afford a correct guide
for the appellate court's approach to a case
disposing of such an appeal; and (3) the
different phraseology used in the judgments
of this Court, such as, (i) ''substantial and
compelling
reasons',
(ii)
''good
and
sufficiently cogent reasons', and (iii)
''strong reasons' are not intended to curtail
the undoubted power of an appellate court
in an appeal against acquittal to review the
entire evidence and to come to its own
conclusion; but in doing so it should not
only consider every matter on record
having a bearing on the questions of fact
and the reasons given by the court below in
support of its order of acquittal in its
arriving at a conclusion on those facts, but
should also express those reasons in its
judgment, which lead it to hold that the
acquittal was not justified."

The need for the aforesaid
observations arose on account

of observations of the majority in
Aher Raja Khimavs. State of Saurashtra,
AIR 1956 SC 217 which stated that for the
High Court to take a different view on the
evidence "there must also be substantial
and compelling reasons for holding that the
trial court was wrong."

23. M.G. Agarwal vs. State of
Maharashtra, AIR 1963 SC

200 is the judgment of the
Constitution Bench of this Court, speaking
through
Gajendragadkar,
J.
(as
His
Lordship then was). This Court observed
that the approach of the High Court
(appellate court) in dealing with an appeal
against acquittal ought to be cautious
because the presumption of innocence in
favour of the accused "is not certainly
weakened by the fact that he has been
acquitted at his trial."

24. In Shivaji Sahabrao Bobade
vs. State of Maharashtra,

Krishna Iyer, J., observed as
follows: (SCC p.799, para 6)

"6.
.....In
short,
our
jurisprudential enthusiasm for presumed
innocence must be moderated by the
pragmatic need to make criminal justice
potent and realistic. A balance has to be
struck between chasing chance possibilities
as good enough to set the delinquent free
and chopping the logic of preponderant
probability to punish marginal innocents."

25. This Court in Ramesh Babulal
Doshi vs. State of Gujarat, (1996) 9 SCC
225, spoke about the approach of the
appellate court while considering an
appeal against an order acquitting the
accused and stated as follows: (SCC p.229,
para 7)

"7....While sitting in judgment
over an acquittal the appellate court is first
required to seek an answer to the question
whether the findings of the trial court are
palpably wrong, manifestly erroneous or
demonstrably
unsustainable.
If
the
appellate court answers the above question
in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate
court holds, for reasons to be recorded, that
the order of acquittal cannot at all be
sustained in view of any of the above
infirmities it can thenand then only
reappraise the evidence to arrive at its own
conclusions."

The object and the purpose of the
aforesaid approach is to ensure that there
is no miscarriage of justice. In another
words, there should not be an acquittal of
the guilty or a conviction of an innocent
person.
982 INDIAN LAW REPORTS ALLAHABAD SERIES

26. In Ajit Savant Majagvai vs.
State of Karnataka, (1997) 7 SCC 110, this
Court set out the following principles that
would regulate and govern the hearing of
an appeal by the High Court against an
order of acquittal passed by the Trial
Court:(SCC pp.116017, para 16)

"16.
This
Court
has
thus
explicitly and clearly laid down the
principles
which
would
govern
and
regulate the hearing of appeal by the High
Court against an order of acquittal passed
by the trial court. These principles have
been set out in innumerable cases and may
be reiterated as under:

(1) In an appeal against an order
of acquittal, the High Court possesses all
the powers, and nothing less than the
powers it possesses while hearing an
appeal against an order of conviction.

(2) The High Court has the power
to reconsider the whole issue, reappraise
the evidence and come to its own
conclusion and findings in place of the
findings recorded by the trial court, if the
said findings are against the weight of the
evidence on record, or in other words,
perverse.

(3) Before reversing the finding of
acquittal, the High Court has to consider
each ground on which the order of
acquittal was based and to record its own
reasons for not accepting those grounds
and not subscribing to the view expressed
by the trial court that the accused is
entitled to acquittal.

(4) In reversing the finding of
acquittal, the High Court has to keep in
view the fact that the presumption of
innocence is still available in favour of the
accused and the same stands fortified and
strengthened by the order of acquittal
passed in his favour by the trial court.

(5) If the High Court, on a fresh
scrutiny and reappraisal of the evidence
and other material on record, is of the
opinion that there is another view which
can be reasonably taken, then the view
which favours the accused

should be adopted.

(6) The High Court has also to
keep in mind that the trial court had the
advantage of looking at the demeanour of
witnesses and observing their conduct in
the Court especially in the witness-box.

(7) The High Court has also to
keep in mind that even at that stage, the
accused was entitled to benefit of doubt.
The doubt should be such as a reasonable
person would honestly and conscientiously
entertain as to the guilt of the accused."

27. This Court in Ramesh Babulal
Doshi vs. State of Gujarat, (1996) 9 SCC
225 observed visàvis the powers of an
appellate court while dealing with a
judgment of acquittal, as under:

"7. ... While sitting in judgment
over an acquittal the appellate court is first
required to seek an answer to the question
whether the findings of the trial court are
palpably wrong, manifestly erroneous or
demonstrably
unsustainable.
If
the
appellate court answers the above question
in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate
court holds, for reasons to be recorded, that
the order of acquittal cannot at all be
sustained in view of any of the above
infirmities it can then--and then only--
reappraise the evidence to arrive at its own
conclusions."

28. This Court in Chandrappa &
Ors. vs. State of Karnataka, (2007) 4 SCC
415,
highlighted
that
there
is
one
significant difference in exercising power
while hearing an appeal against acquittal
by the appellate court. The appellate court
would not interfere where the judgment
impugned is based on evidence and the
view taken was reasonable and plausible.
9 All. State of U.P. Vs. Gaya Singh & Ors.
983
This is because the appellate court will
determine the fact that there is presumption
in favour of the accused and the accused is
entitled to get the benefit of doubt but if it
decides to interfere it should assign reasons
for differing with the decision of acquittal.

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:

"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,
reappreciate
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
curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere
with acquittal than to curtail the power of
the court to review the evidence and to
come to its own conclusion.

(4) An appellate court, however,
must bear in mind that in case of acquittal,
there is double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person shall be
presumed to be innocent unless he is
proved guilty by a competent court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence
is further reinforced, reaffirmed
and
strengthened by the

trial court.

(5) If two reasonable conclusions
are possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal recorded by
the trial court."

30. In Nepal Singh vs. State of
Haryana- (2009) 12 SCC

351, this Court reversed the
judgment of the High Court which had set
aside the judgment of acquittal pronounced
by the trial court and restored the judgment
of the trial court acquitting the accused on
reappreciation of the evidence.

31. The circumstances under
which an appeal would be entertained by
this Court from an order of acquittal
passed
by
a
High
Court
may
be
summarized as follows:

31.1. Ordinarily, this Court is
cautious in interfering with an order of
acquittal, especially when the order of
acquittal has been confirmed upto the High
Court. It is only in rarest of rare cases,
where the High Court, on an absolutely
wrong process of reasoning and a legally
erroneous and perverse approach to the
facts of the case, ignoring some of the most
vital facts, has acquitted the accused, that
the same may be reversed by this Court,
exercising jurisdiction under Article 136 of
the Constitution. [State of U.P. v. Sahai,
AIR 1981 SC 1442] Such fetters on the
right to entertain an appeal are prompted
by the reluctance to expose a person, who
984 INDIAN LAW REPORTS ALLAHABAD SERIES
has been acquitted by a competent court of
a criminal charge, to the anxiety and
tension of a further examination of the
case, even though it is held by a superior
court. [Arunachalam v. Sadhananthan, AIR
1979 (SC) 1284] An appeal cannot be
entertained against an order of acquittal
which has, after recording valid and
weighty reasons, has arrived at an
unassailable, logical conclusion which
justifies acquittal. [State of Haryana v.
Lakhbir Singh, (1990) CrLJ 2274 (SC)]

31.2. However, this Court has on
certain occasions, set aside the order of
acquittal passed by a High Court. The
circumstances under which this Court may
entertain an appeal against an order of
acquittal and pass an order of conviction,
may be summarised as follows:

31.2.1. Where the approach or
reasoning of the High Court is perverse:

a)
Where
incontrovertible
evidence has beenrejected by the High
Court based on suspicion and surmises,
which are rather unrealistic. [State of
Rajasthan v. Sukhpal Singh, AIR 1984 SC
207] For example, where direct, unanimous
accounts
of
the
eyewitnesses,
were
discounted
without
cogent
reasoning;
[State of UP v. Shanker, AIR

1981 SC 879]

b) Where the intrinsic merits of
the testimony of relatives, living in the same
house as the victim, were discounted on the
ground
that
they
were
''interested'
witnesses; [State of UP v. Hakim Singh,
AIR 1980 SC 184]

c) Where testimony of witnesses
had been disbelieved by the High Court, on
an unrealistic conjecture of personal
motive on the part of witnesses to implicate
the accused, when in fact, the witnesses had
no axe to grind in the said

matter. [State of Rajasthan v.
Sukhpal Singh, AIR 1984 SC 207]

d) Where dying declaration of the
deceased victim was rejected by the High
Court on an irrelevant ground that they did
not explain the injury found on one of the
persons present at the site of occurrence of
the crime. [Arunachalam v.Sadhanantham,
AIR 1979 SC 1284]

e) Where the High Court applied
an unrealistic standard of ''implicit proof'
rather
than
that
of
''proof
beyond
reasonable doubt' and therefore evaluated
the evidence in a flawed manner.[State of
UP v. Ranjha Ram, AIR 1986 SC 1959]

f) Where the High Court rejected
circumstantial evidence, based on an
exaggerated and capricious theory, which
were beyond the plea of the accused; [State
of Maharashtra v. ChampalalPunjaji Shah,
AIR 1981 SC 1675] or where acquittal rests
merely in exaggerated devotion to the rule
of benefit of doubt in favour of the accused.
[Gurbachan v. Satpal Singh, AIR 1990 SC
209].

g)
Where
the
High
Court
acquitted the accused on the ground that he
had no adequate motive to commit the
offence, although, in the said case,there
was strong direct evidence establishing the
guilt of the accused, thereby making it
unnecessary on the part of the prosecution
to establish ''motive.' [State of AP v. Bogam
Chandraiah, AIR 1986 SC 1899]

31.2.2. Where acquittal would
result is gross miscarriage of justice:

a) Where the findings of the High
Court, disconnecting the accused persons
with
the
crime,
were
based
on
a
perfunctory consideration of evidence,
[State of UP v. Pheru Singh, AIR 1989 SC
1205]
or
based
on
extenuating
circumstances which were purely based in
imagination and fantasy. [State of Uttar
Pradesh v. Pussu 1983 AIR 867 (SC)]

b) Where the accused had been
acquitted on ground of delay in conducting
9 All. State of U.P. Vs. Gaya Singh & Ors.
985
trial, which delay was attributable not to
the tardiness or indifference of the
prosecuting agencies, but to the conduct of
the accused himself; or where accused had
been acquitted on ground of delay in
conducting trial relating to an offence
which is not of a trivial nature. [State of
Maharashtra v. ChampalalPunjaji Shah,
AIR 1981 SC 1675]"

15. Bearing in mind the principle of
law so culled out by the Hon'ble Apex
Court now the present case is to be
addressed.

16. To begun with ocular testimony of
the prosecution witness is to be first
scanned.

17. One Gulab Kahar son of Surya
Bali (PW-1) got his statement recorded as
prosecution witness being the father of the
deceased though according to him he has
not witnessed the commission of offence,
however, according to him, he is the first
informant who was present in his house
when on 23.4.2021, the deceased after
eating his meal had proceeded to the roof
of the house in question with bed sheet so
as to relax for the next day. According to
him the deceased is stated to have received
two phone calls and he came down from
the roof and when he was proceeding to
some place while stepping out from the
house and when he was asked as to why in
the late hours he was moving from the
house then he assured that he was going for
some work and he will return back soon but
he did not return and the dead body was
found on the next day in the morning at
5.30 A.M.on 24.4.2011 and then he along
with his family members proceeded to the
place of incident near a pond towards
eastern section and witnessed the dead
body of the deceased.

18. One Shiv Narayan came to the
witness box as PW-2, and according to him,
the incident occurred in the intervening
night of 23/24.04.2011 when his brother
(since deceased) after eating meal had gone
to roof to sleep and in the meantime, a
phone call came on the mobile of the
deceased which was received by PW-3
Meera Devi and the caller itself apprised
that he wanted to talk with the deceased,
however, in the meantime the call dropped
and after some time another call came
which was received by the deceased and
talking on mobile he proceeded from the
house and the PW-1 being the father of the
deceased when enquired as to where the
deceased were going then he did not
disclose the place where he was going but
assured that he will come back soon and
when he did not come back and on the next
day, the body of the deceased was found in
the pond, half of the body was submerged
in the water and according to him his
brother's blood was found near the elevated
portion of the pond and according to him,
his brother's body had been thrown away in
the pond and the body of the deceased
marked
presence
of
injury.
In
his
deposition, he further stated that at 12 noon
on 24.4.2011 he came to know that his
brother was disposed of due to election
rivalry by the accused herein and they had
thrown away the body in the pond and
according to him he had given the said
statement to the police.

19. PW-3 Meera Devi who happens to
be the wife of the elder brother of the
deceased being PW-2 Shiv Narayan has
also got recorded her statement and
according to her statement, the deceased
Tilak ceremony was to be conducted on
28.04.2011 and the date of the marriage
was
11.05.2011,
however,
in
the
intervening night of 23/24.4.2011, the
986 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased after eating the meals had
proceeded to the roof in order to sleep and
the mobile of the deceased was in charging
mode and at 8 P.M. in the night, a call came
which was picked up by PW-3 and the
caller apprised the receiver it that it was in
urgent, as he wanted to talk to the deceased
and she recognized the voice to be of the
accused respondent no.1 Gaya Singh who
happens to be of the same village. She
thereafter apprised him and advised the
caller to again call and thereafter, the
deceased came to her room from the roof
and the deceased took the mobile and went
to the roof by the time the second call came
and the deceased while talking with the
caller came down from the roof and when
he was about to proceed while stepping out
from the house then PW-1 asked where he
were going then the deceased apprised that
he will come back soon as he was going for
some work. According to PW- 3 on the next
date i.e. 24.04.2011 at 6 a.m. in the
morning they received information that the
dead body of the deceased was found near
a pond.

20. PW-3 Meera Devi has further
made a deposition that the deceased has
been done away on account of the election
rivalry emanating from the election of the
Gram Pradhan as he had canvassed and
supported the other party being of Satya
Prakash Singh which become the basis of
murder.
However,
according
to
her
statement, she had not seen the commission
of the crime, however, when she had
proceeded in the morning towards the place
whereat the dead body of the deceased was
found then accused was present therein and
the accused had admitted the fact that they
had murdered the deceased. She has further
deposed that she had given the said
statement
under
section
161
Cr.P.C.
regarding the admission and presence of
accused on the place of occurrence.

21. One PW-4, Jai Narayan had also
got recorded his statement and he claims to
be the younger brother of the deceased and
he has supported the prosecution story
alleging that the deceased after eating the
meal had gone on the roof for sleeping and
his room is just near the room of Shiv
Narayan and Shiv Narayan's wife had
received the calls, which were put in
charging mode. According to him PW-3
picked up the call at 8 p.m. and the basis for
commission of crime is the election rivalry.

22. PW-5 claims to be Head
Constable Rameshwar Prasad who has
proved lodging the first information report
on 24.4.2011 at 7.30.

23. PW-6 is the Investigating Officer,
who claims to have prepared Panchnama,
site plan and also took samples of blood
stained,
earth
and
plain
earth
and
preparation of site plan referable to
recovery etc.

24. PW-7 is Dr. J.K. Singh who has
proved the postmortem as according to
him, he had prepared the post mortem
report.

25. PW-8 Vindhyachal has proved the
recovery of blood stained plain earth and
preparation of Fard.

26. PW- 9 Ram Milan Singh claims to
be present and witness the process of taking
the blood stained and plain earth.

27. PW-10 Suraj Singh claims to be
the resident of the same village and proved
Panchnama.
9 All. State of U.P. Vs. Gaya Singh & Ors.
987

28. We have heard Shri Yogesh Rai,
State Law Officer in support of the appeal
and perused the record.

29. Shri Yogesh Rai had submitted
that the judgment and order of the acquittal
is perverse and a classic example of
misreading of the evidence as the accused
have committed the offence particularly in
view of the fact that PW-3 Meera Devi had
recognized the voice of the accused Gaya
Singh and further last call on the mobile of
the deceased was of accused Gaya Singh,
which proved beyond doubt that on the
insistence
of
the
accused,
deceased
proceeded from the house and did not
return, however dead body was found on
the next day. According to Shri Yogesh Rai,
State Law Officer, accused was present
when the body was recovered and he
admitted that he had murdered the
deceased. Further submission has been
made to the extent that not only motive was
present but all the factors pointed out
towards the accused with respect to
commission of crime.

30. Undisputedly the present case is
not of an eye witness testimony as no body
has seen the commission of crime, rather to
the contrary the same is of circumstantial
evidence.

31. As per the prosecution version the
deceased in the intervening night of
23/24.04.2011 had gone from his house
after receiving a call in his mobile phone
and at that point of time, PW-1, PW-2, PW3 and PW-4 are stated to be present in the
house. First call is said to have been
received by the wife of PW-2 being PW-3
and the second call itself by the deceased at
8 p.m. on 23.11.2011, whereat in the first
call it was uttered by the caller to the PW-3
Meera Devi that the accused Gaya Singh
had something urgent to talk, however,
PW-3 apprised him to call again as the
deceased was not in front of her, and
thereafter, the deceased is stated to have
come and he took the mobile phone and
also received the call and after talking on
mobile phone, he proceeded out of his
house assuring that he will come back and
he did not come back but on the next day
his dead body was found.

32. The entire prosecution theory thus
hinges upon the receiving of the call firstly
by the PW-3 and secondly by the deceased
and proceeding of the deceased from the
house.
Hence
the
entire
basis
for
commission of crime and linking the
accused is the phone call.

33. In the present case, PW-1, PW-2
and PW-4 have not named accused Gaya
Singh as an accused for commission of
crime while calling the deceased on mobile
phone. However, it is PW-3 Meera Devi
who in her cross-examination has stated
that she could recognize and identify the
voice of Gaya Singh when she received the
first call while showing urgency in talking
with the deceased. PW-3 Meera Devi in her
cross-examination has come up with stand
that she had never seen the accused Gaya
Singh and as he has no point of time come
to her place and he never talked with her.
The said contradiction and inconsistency of
PW-3, Meera Devi assumes significance as
once a person who has not meet or
interacted with a person that to being a
stranger then by all probabilities it is not
humanly possible to identify the voice of
the caller by the receiver as such the
testimony of PW-3 Meera Devi linking the
accused Gaya Singh is highly unreliable.
More over PW-3, Meera Devi made a
deposition that she had narrated the entire
fact including recognizing the voice of
988 INDIAN LAW REPORTS ALLAHABAD SERIES
accused Gaya Singh to PW-6, Inspector
Pradeep Kumar being the Investigating
Officer, however, he had denied the same.
Truthfulness of the testimony of the PW-3,
Meera Devi also stands belied from the fact
that she had not apprised the fact of
recognizing the voice of the accused Gaya
Singh either to her husband's or to husband
younger brother or to informant who
happens to be father-in-law. This Court
further finds that the testimony of PW-3,
Meera Devi cannot be referred to or relied
upon to support the prosecution case as her
testimony does not even remotely inspire
confidence.

34. Apart from the same another
question arises with regard to the fact that
first informant report in question was
lodged against unknown person particularly
when the date and time of lodging of the
first information report is 24.04.2011 at
7.30 p.m. Prosecution has further alleged
that the dead body of the deceased was
recovered on 24.04.2011 at 5.30 in the
evening. PW-3, Meera Devi as discussed
above, is stated to have recognized the
voice of the accused Gaya Singh and once
she is possessing the knowledge about
receiving of the call by Gaya Singh and it is
on his request/direction the accused Gaya
Singh, the deceased proceeded from the
house and did not return then in these
circumstances by all eventualities, the
name of the accused Gaya Singh ought to
have been marked as accused in the F.I.R.
So much so, it is the PW-3, Meera Devi
who in her statement has further come up
with the stand that the accused were present
in the place of occurrence where the dead
body was recovered and the accused have
made the statement, being a confession that
they had committed the crime then
obviously the name of the accused ought to
have
been
mentioned
in
the
first
information report as the twin factors stood
available with PW-3 firstly she recognized
the voice of the accused Gaya Singh and
secondly the presence of the accused in the
place of occurrence which is a big factor
for marking the accused in the FIR.

35. Another facet of the matter which
needs to be considered at the stage is the
fact as to whether the deceased actually
received the phone call from accused Gaya
Singh as receiving of the calls which are
two in number firstly by PW-3 Meera Devi
and secondly by the deceased had been
made the basis of crime. Thus the call
details (CDR) is the important device in
order to determine and link the accused in
respect of commission of crime. It has
come
on
record
that
Mobile
No.9792548711 is of the deceased as
whereas Mobile No.9919050074 is of the
accused Gaya Singh. The learned trial court
has taken pains to go into the said aspect of
the matter and as amongst other factors
held that the certificate so required under
section 65-B (iv) of Evidence Act, 1872,
which is mandatory has not been either
obtained or produced.

36.