# State of U.P v. Ishwar Chandra & Ors. 908 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 7 ILRA 907
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-19
- **Case number:** Government Appeal No. 1234 of 2004
- **Bench:** Om Prakash-Vii, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-ishwar-chandra-ors-908-indian-law-reports-allahabad-series-48673
- **Pages:** 12

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - View taken by the Trial Court is a
possible view-Appellate court to interfere only if
strong and compelling reasons-Prosecution case
is not supported with medical evidence-manner
and style of incident is not believable.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,856 of 41,024. This is a partial read: ask again with offset=39856 for what follows._

7 All. State of U.P. Vs. Ishwar Chandra & Ors.
907
that she did not shout for help as the
accused Bhola alias Pramod use to threaten
her. The statement of the victim is not
believable as when the accused forcefully
asked the victim to have food then there
was no occasion that the victim could have
been left without food. On the basis of the
statement of the victim alone, it cannot be
said that the victim was subjected to rape
and the prosecution has failed to prove its
case beyond reasonable doubt.

50. Insofar as the other accused persons
are concerned, in the FIR only the name of
the Bhola alias Pramod was given as the
person who has taken away the victim.
However, the victim was produced before the
court. She has stated that the name of brother
of main accused, Santosh, father Shrichandra
and Ramsewak. When the statement of the
victim in relation to the main accused Bhola
alias Pramod is doubtful then it is not open
that the same evidence be considered for
prosecution of the other accused persons.

51. On the basis of the aforesaid, the
trial court came to the conclusion that the
prosecution has failed to prove the fact that
when the victim was going to Meerut then
the accused Bhola alias Pramod and
Santosh also went to Meerut along with the
victim.

52. The prosecution has also failed to
prove that the accused forcefully took the
victim in the Marshall vehicle and that she
was taken to Ghaziabad by the accused
persons. The prosecution has also failed to
prove that the victim was subjected to rape.
The victim met her father/informant on 8
November, 2014. However, as per the
recovery memo dated 22 November, 2014,
the victim was brought to the Police Station
on 22 November, 2014 and there is no
explanation as to why the victim was not
produced before the Investigating Officer on
9 November, 2014. There is no evidence with
regard to any abuse being made by the
accused persons. On the aforesaid basis, the
trial court acquitted the accused persons for
offence under Sections 363, 366, 376 D, 342
and 504 IPC and Section 6 of the POCSO
Act.

53.

Considering
the
overall
circumstances and submission of learned
A.G.A. and after going through the
evidence and lower court record, we are
unable to persuade ourselves in taking a
different opinion from that of trial court.
The trial court was fully justified in
acquitting the accused-respondent.

54. Learned AGA failed to point out
any illegality, infirmity or perversity in the
judgment of the trial court.

55. The leave to appeal application is,
accordingly, rejected.

56. The appeal, in consequence,
stands dismissed.

57. Let the lower court record be
transmitted back to court below along with a
copy of this order.
----------
(2022)07ILR A907
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.07.2022

BEFORE

THE HON'BLE OM PRAKASH-VII, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Government Appeal No. 1234 of 2004

State of U.P. ...Appellant
Versus
Ishwar Chandra & Ors. ...Respondents
908 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondents:
Sri Rakesh Dubey, Sri Ajatshatru Pandey,
Sri Mohit Singh, Sri Ramesh Kumar Shukla,
Sri Ran Dhir Singh, Sri G.S. Chaturvedi,
(Senior Adv.)

Criminal Law - Criminal Procedure Code,
1973 - View taken by the Trial Court is a
possible view-Appellate court to interfere only if
strong and compelling reasons-Prosecution case
is not supported with medical evidence-manner
and style of incident is not believable.

Appeal dismissed. (E-9)

List of Cases cited:

1. Anwar Ali & ors. Vs The St. of H.P.,
MANU/SC/0723/2020

2. Ghurey Lal Vs St. of U.P. (2008) 10 SCC 450
(Delivered by Hon'ble Om Prakash-VII, J.)

1. This Government Appeal has been
preferred by the State-appellant against the
judgment and order of acquittal dated
31.10.2003 passed by Additional Sessions
Judge / Fast Track Court No.2, Bijnor in
Sessions Trial No.456 of 1998, State Versus
Ishwar Chandra and others, relating to
Police Station Seohara, District Bijnor by
which the learned trial court has acquitted
all
the
respondents
namely,
Ishwar
Chandra,
Ram
Phal
Singh,
Krishan
Bahadur and Hari Om for the offences
under sections 307/34, 302/34, 323/34, 504,
506 I.P.C.

2. At the very outset, we would like to
point out that leave to appeal was granted
and appeal was admitted on 31.7.2008.
Pending final outcome, one of the accusedrespondents namely, Ram Phal Singh
expired and appeal in his respect stands
abated vide order dated 16.12.2021. We
therefore have to adjudicate this appeal
only against surviving accused-respondent
no.1, 3 and 4 namely, Ishwar Chandra,
Krishan Bahadur and Hari Om.

3. Briefly narrated, prosecution
allegations against respondents-accused, as
mentioned in the written report (Ex. Ka.-1)
given by the informant - Hemraj Singh, are
that on 26.5.1998 at about 6:00 in the
morning, the brother of the informant
namely, Bhopal Singh son of Babu Singh
had gone towards the southern direction
from the village to attend the nature call.
On the way, accused Ishwar Chandra son of
Ram Phal Singh, Ram Phal Singh son of
Moti Singh, Krishan Bahadur son of Moti
Singh and Hari Om son of Krishan
Bahadur, who belong to same village and
were
armed
with
lathi
and
tabal,
surrounded the brother of the informant and
with intention to kill, they started beating
him. Due to this assault, brother of the
informant became seriously injured. He
received multiple injuries on his body. On
hearing the noise, when the informant
reached there to save / rescue his brother,
all the four accused-persons assaulted the
informant with lathi and danda, hurled
abuses and threatened him with dire
consequences. This incident was witnessed
by the villager Brijpal Singh son of Umed
Singh and Anand Kumar son of Chhotey
who also tried to save the informant and his
brother. There was old enmity going on
between the parties. Request was made to
register the case and take legal action.

4. Thereafter, a written report of the
incident Ex. Ka.-1 was given at the police
station concerned by the informant Hemraj
Singh (P.W.1). On the basis of written
report, head constable Raj Nath Singh
7 All. State of U.P. Vs. Ishwar Chandra & Ors.
909
(P.W.8) prepared chik report (Ex. Ka.-6)
and registered the case as crime no.181 of
1998 under sections 307, 324, 323, 450 IPC
in the G.D. (Ex.Ka.-7) at serial no.22 on
26.5.1998 at 8:45 A.M.

5. After registration of the case,
"chitthi majroobi" (letter for medical
examination of injured) was got prepared
for injured Hemraj Singh and Bhopal Singh
and they were sent for medical examination
at Primary Health Centre, Seohara.

6. Dr. Ashok Rana (P.W.3), who was
posted at P.H.C., Seohara, examined the
injuries of Hemraj Singh (P.W.1) on the
same day i.e. 26.5.1998 at 9:00 A.M. and
found following injuries on his person :

(i) Abrasion 5 cm. x 1.5 cm. on
outer aspect of right lower limb 2.5 cm.
below from right shoulder joint away
from wound.

(ii) Contusion 4 cm. x 1 cm. on
outer aspect of right thigh 10 cm. above
from right knee joint, deep red in colour.

(iii) Abrasion 1 cm. x 0.5 cm. on
outer aspect of right thigh 7 cm. above
from left knee joint oozing from wound.

(iv) Contusion 11 cm. x 2 cm.
on left side lumbar region 20 cm. below
from scapula, deep red in colour.

(v) Contusion in area 11 cm. x 5
cm. on upper right buttock, deep red in
colour.

(vi) Contusion 4 cm. x 2 cm. on
outer aspect of right thigh 8 cm. away
from injury no. (v), deep red in colour.

(vii) Lacerated wound 5 cm. x
1.5 cm. x muscle deep on right side scalp
11 cm. above from right ear margin
irregular, fresh blood clot present.

(viii) Incised wound 3 cm. x 0.5
cm. x 0.25 cm. on right side scalp 1.5 cm.
above from injury no. (vii). Margin sharp
clean cut everted. Fresh blood clot
present.

As per opinion of the doctor, all
the injuries found on the person of the
injured were simple in nature. Injuries no.
(i) and (iii) were caused by friction from
rough surface. Injuries no. (ii), (iv), (v),
(vi) and (vii) were caused by blunt and
hard object whereas injury no. (viii) was
caused by some sharp edged object.
Injuries were fresh in duration.

7. Injuries sustained by injured
Bhopal Singh (deceased) were not noted
down by the concerned doctor at P.H.C.,
Seohara, rather they referred him to
Medical College, Meerut. However, the
injured Bhopal Singh succumbed to his
injuries at 1:00 P.M. at Dhanaura Mandi on
the way to Meerut Medical College.
Thereafter, dead body of the deceased was
brought back to his village and information
of his death was given at the concerned
police station in writing (Ex.Ka.-9) by
P.W.9 Brij Pal Singh. On the basis of this
information, section 302 IPC was added in
the case. G.D. entry was also made to this
effect which is Ex.Ka.-8. Thereafter, S.I.
Ram Swaroop Sagar (P.W.10) of the
concerned police station reached at village
Galla Khedi and performed the inquest on
the body of the deceased Bhopal Singh and
prepared inquest memo Ex. Ka-10 and
other papers relating to inquest. Letters to
R.I., C.M.O., photo lash, challan lash,
sample seal were also prepared and keeping
the dead body of the deceased in a sealed
cloth
it
was
sent
for
postmortem
examination at District Hospital, Bijnor.

8. Autopsy on the body of the
deceased Bhopal Singh was performed at
District Hospital, Bijnor on 27.5.1998 at
1:00 P.M. by Dr. Vijay Kumar Goel (P.W.5)
and he prepared the postmortem report (Ex.
910 INDIAN LAW REPORTS ALLAHABAD SERIES
Ka-3). The age of the deceased was about
48 years. He was a middle aged man of thin
built. Membranes were pale. Eyes were
partly opened. Mouth was closed. Rigor
mortis was found in all the four limbs.

The following antemortem injuries
were found on the body of the deceased :

(i) Incised wound 1.5 cm. x 0.5
cm. x bone deep on right upper arm and on
lower part.

(ii) Multiple contusions in an area
of 9 cm. x 10 cm. on right upper arm. On
exposure, there was collection of blood
inside the muscles and humerus bone was
found fractured.

(iii) Three abrasions in an area of
12 cm. x 5 cm. in right forearm upto wrist.
On exposure, there was collection of blood
under skin. Both bones of right forearm
were fond fractured.

(iv) Abrasion 1⁄2 cm. x 1⁄2 cm. on
the left elbow, outer side.

(v) Abrasion 5 cm. x 1⁄2 cm. on
back of left forearm, mid area.

(vi) Abrasion 3 cm. x 1 cm. on
left wrist, back and middle side.

(vii)
Multiple
contusions
on
whole back side in an areas of 60 cm. x 30
cm. Largest contusion was of size 13 cm. x
4 cm. and smallest one was of 8 cm. x 3
cm. They were ten in numbers.

(viii) Multiple contusions in an
area of 30 cm. x 12 cm. on back of left hip
and on back side of thigh in size of 5 cm. x
2 cm. to 10 cm. x 4 cm. Six in numbers.

(ix) Multiple abrasions in an area
of 27 cm. x 10 cm. in front of left knee and
legs. 1 cm. x 1 cm. to 3 cm. x 1 cm. size.
Eight in numbers.

(x) Lacerated wound 1 cm. x 0.5
cm. x bone deep on left leg just above
medial malleolus. On exposure, both bones
of leg were found fractured.

(xi) Contusion 6 cm. x 2.5 cm. in
abdomen on right side.

(xii) Multiple contusions in an
area of 30 cm. x 15 cm. on right hip and
thigh area. Four in numbers.

(xiii) Multiple abrasions in an
area of 32 cm. x 6 cm. in front of right knee
and leg, ten in numbers, with redness and
swelling all around right leg.

(xiv) Abrasion 2 cm. x 1.5 cm. on
top of right shoulder.

On internal examination, 7th, 8th
and 9th ribs of left side were found
fractured and there was fracture on
posterior ends. There was injury on the left
lung whereas no injury was found on the
right lung. Teeth were 16/16. 100 gm.
liquid was found in the stomach. As per
opinion of the doctor, death of the deceased
was the outcome of shock and haemorrhage
as a result of ante-mortem injuries.

9. Initially, the investigation was
made by P.W.10 S.I. Ramswaroop, who
visited the place of occurrence and
prepared site plan (Ex.Ka.-15) mentioning
all details of the place of occurrence. He
also took blood stained and plain earth into
possession and prepared fard. Statement of
witnesses were also recorded. After the
case was converted into section 302 IPC,
investigation was handed over to P.W.11
S.O. Jaipal Singh. The said investigating
officer, after fulfilling entire formalities,
submitted charge-sheet (Ex.Ka.-21) against
the accused-respondents.

10. Case, being exclusively triable by
the Court of Sessions, was committed for
trial. Accused appeared and charge against
them was framed for the offence punishable
under sections 307/34, 302/34, 323/34, 504,
506. The charges were read out and
explained to the accused-respondents, who
7 All. State of U.P. Vs. Ishwar Chandra & Ors.
911
all abjured them, pleaded not guilty and
claimed to be tried.

11. During trial, in order to prove its
case, prosecution examined as many as 11
witnesses i.e. P.W.1 Hemraj, the informant
and injured of the case, P.W.2 Anand Singh,
P.W.3 Dr. Ashok Rana, who examined the
informant injured Hemraj, P.W.4 Constable
866 Mahendra Singh, P.W.5 Dr. Vijay
Kumar Goel who performed the autopsy on
the body of the deceased, P.W.6 Contable
732 Jeevan Singh, P.W.7 H.C. Sobran
Singh, P.W.8 Constable 450 Rajnath Singh,
P.W.9 Brijpal Singh, P.W.10 S.I. Ram
Swaroop Sagar and P.W.11 S.O. Jaipal
Singh.

12. After closing the evidence,
statement of the accused under section 313
Cr.P.C. was recorded by the trial court in
which the accused denied the entire
prosecution evidence and claimed that they
were falsely implicated in this case. Oral
and documentary evidence ware also
adduced by the accused in their defence.

13. Trial court after hearing the
parties disbelieved the prosecution version
and vide impugned judgment and order,
acquitted the accused-respondents for the
charges framed against them. Hence, this
appeal.

14. We have heard Sri Sanjay Kumar
Nigam, learned A.G.A. for the Stateappellant as well as Sri G.S. Chaturvedi,
learned Senior Advocate assisted by Sri
Ajatshatru Pandey, learned counsel for the
accused-respondents.

15. Submission of learned A.G.A.
appearing for the State was that finding
arrived at by the trial court in the impugned
judgment and order regarding the acquittal
of the accused-respondents are illegal and
perverse. P.W.1 Hemraj Singh, P.W.2
Anand Singh and P.W.9 Brij Pal Singh are
eye-account witnesses. P.W.1 Hemraj Singh
sustained injuries in the said incident. He
was also beaten by the accused-respondents
in the incident. Medical evidence fully
supports the oral version. There was a
dying declaration in the form of statement
of the deceased under section 161 Cr.P.C.,
which can be relied upon, but the trial court
ignoring the settled principle of law
disbelieved the aforesaid statement to be
treated
as
dying
declaration.
First
information report was lodged promptly
with clear details. Motive to commit the
present offence has also been disclosed in
it. Finding of the trial court regarding the
first information report is also illegal and
perverse. Prosecution was able to prove the
date, time and place of the incident. All the
accused-persons
have
participated
in
commission of the crime. Actual role
played by each and every accused has also
been established by the prosecution.
Weapon assigned to them have also been
made clear during examination. Nonexamination of the scribe of written report
is not fatal to the prosecution case. Minor
contradictions occurred in the statement of
the witnesses are not material to disbelieve
the statement of eye-account / injured
witnesses. Thus, referring to the entire
evidence adduced by the parties as well as
finding recorded by the trial court in the
impugned judgment and order, prayer was
made to allow the appeal and set-aside the
impugned judgment and order convicting
the accused-respondents.

16. Per contra, learned counsel
appearing for the accused-respondents
argued that it was a blind murder case.
None has seen the incident. P.W.1 is also
not an eye-account witness. He did not
912 INDIAN LAW REPORTS ALLAHABAD SERIES
receive injuries in the said incident. Injury
report said to have been prepared in respect
of P.W.1 Hemraj Singh is a fake and forged
document and injuries are self-suffered.
First information report was not in
existence at the time mentioned in it. Thus
it is too prompt which creates doubt about
the genuineness of the first information
report. Incident is said to have taken place
at 6:00 hours in the morning. First
information report is said to have been
lodged at 8:45 A.M. Injury report prepared
in respect of P.W.1 Hemraj Singh is of 9:00
A.M. Thus referring to the aforesaid time, it
was further argued that looking to the
distance of the police station from the place
of occurrence and the conveyance / vehicle
said to have been used by the injured and
the deceased in reaching the police station,
it appears improbable that the first
information report was lodged at 8:45 A.M.
It is the prosecution case that the written
report was prepared in this matter at Tajpur
town from one Naresh. Some time would
have spent in preparing the written report.
Thus, the finding recorded by the trial court
in this respect is in accordance with
evidence and law. Referring to the finding
arrived at by the trial court on the point of
motive, it was further submitted that the
trial court after discussing in detail the
prosecution evidence has reached on a
conclusion that enmity was against the
informant's side for false implication of the
accused-respondents, as the informant's
side was convicted and sentenced in a
criminal case started on behalf of the
accused-respondents'
side.
Enmity
suggested by the prosecution is not
believable. This fact finds support with the
statement of prosecution witnesses itself.
Dying declaration said to have been
recorded in the matter in the form of
statement under section 161 Cr.P.C. is also
not believable. It is not as per Police
Regulations. There are major contradictions
as to whether witnesses, said to be eyeaccount witnesses, were present near the
place of occurrence or they had gone
towards the eastern side of the village to
attend the nature call. Thus, on this point
also, there is contradiction in the statement
of prosecution witnesses. Medical evidence
does not support the oral version, as no
injury was found, said to have been
sustained by the injured and the deceased
said to be caused by the weapon tabal.
Thus, referring to the entire evidence as
well as finding recorded by the trial court
in the impugned judgment and order, it was
next argued that the impugned judgment
and order is based on correct appreciation
of fact and law and is well discussed and
reasoned order. The appellate court cannot
substitute its view over the view of the trial
court, as the view taken by the trial court is
a possible view. In support of his
submissions, learned counsel for the
accused-respondents placed reliance on the
following case laws :

(i) Anwar Ali and Others
Versus The State of Himachal Pradesh,
MANU/SC/0723/2020

(ii) Ghurey Lal Versus State of
U.P. (2008) 10 SCC 450

17. We have considered the rival
contentions advanced by the parties and
have gone through the entire record.

18. Before proceeding to deal with the
submissions raised across the Bar, we
would like to point out the findings arrived
at by the trial court in the impugned
judgment and order, which are as follows :

(i) F.I.R. was not in existence at
the time mentioned in it. Thus, it is antetimed document.
7 All. State of U.P. Vs. Ishwar Chandra & Ors.
913

(ii) Non-examination of the scribe
of the written report affects the prosecution
case.

(iii) Injury report said to have
been prepared in respect of injured Hemraj
is not a genuine document as it could not be
prepared at the time mentioned in it.

(iv) P.W.1 Hemraj Singh, P.W.2
Anand Singh and P.W.9 Brij Pal Singh are
not eye-account witnesses. Their presence
at the place of occurrence at the time of
commission of offence becomes highly
doubtful from their statement itself.

(v)
Enmity
is
against
the
informant's side itself for false implication
of the accused. Enmity shown by the
prosecution witnesses is not natural and
believable.

(vi) Prosecution was also not able
to prove the place of incident from its
evidence beyond reasonable doubt.

(vii) Dying declaration is not
reliable document.

(viii) Manner of incident is also
not
proved
from
the
statement
of
prosecution witnesses.

(ix)
There
are
major
contradictions
in
the
statement
of
prosecution witnesses on material point.

(x) None has seen the incident.

(xi) Incident took place in the
night hours. First information was lodged
on the basis of false facts due to enmity
discussed in the impugned judgment and
order.

19. In this matter, as is evident from
the record, incident is of 6:00 A.M. First
information report was lodged on the same
day at 8:45 A.M. Distance between the
place of incident and the police station is of
17 kms. Prosecution case is that initially,
injured and the deceased both were taken to
the police station Seohara on a bullock-cart
and after registering the case, they went to
P.H.C. Thereafter, deceased, who was alive
at that time, was referred to Meerut
Medical College for better treatment and on
the way he died. If the injury report of
P.W.1
Hemraj
Singh
is
taken
into
consideration, then also it has been
prepared at 9:00 A.M. on the same day.
First information report was lodged at 8:45
A.M. Trial court was of the view that it
appears
unbelievable
that
within
15
minutes after receiving the majroobi
chhitthi, injured would have reached at the
hospital concerned. If the finding arrived at
by the trial court in the impugned judgment
and order is minutely analyzed with the
statement of P.W.1., P.W.2 and P.W.9 and
other police witnesses, it emerge that
sometime
would
have
consumed
in
preparing the first information report,
thereafter G.D. and majroobi chhitthi. In
this situation, it will not be possible for
P.W.1 Hemraj Singh to reach at hospital
concerned at 9:00 A.M. itself. From the
perusal of entire documents, it is also
evident that the doctor concerned, who
prepared the injury report, has admitted that
injured was medically examined as private
person whereas in the injury report, it is
mentioned that it has been brought by
police concerned. These two facts itself
create doubt about the genuineness of the
injury report. If such is the position, finding
recorded by the trial court regarding the
genuineness of the injury report belonging
to P.W.1 Hemraj Singh cannot be taken as
incorrect. Trial court while concluding the
finding on this point has analyzed the entire
evidence in detail and after a thorough
discussion, has reached on such conclusion.
Thus, we are of the view that finding of the
trial
court
on
this
issue
need
no
interference.

20. Now we are proceeding to deal
with the submission regarding enmity. Trial
914 INDIAN LAW REPORTS ALLAHABAD SERIES
court has concluded that P.W.1 - the
informant has admitted in the crossexamination that he (informant) and the
deceased
both
were
convicted
and
sentenced in a prosecution started on behalf
of the accused-respondents' side. Perusal of
the record also reveals that when question
to this extent was put by the defense
counsel during cross-examination, P.W.1
Hemraj tried to conceal this fact. On query
made by the court regarding the demeanor
of this witness, he has admitted that he was
convicted and sentenced as discussed herein-above.
Written
report
(Ex.Ka.-1)
discloses that only this fact has been
mentioned in it that "मुदल्िमान से हमारी पुरानी रांदिश
चल रही है"

21. During examination before the
trial court, P.W.1 Hemraj, who is the
brother of the deceased, has stated that
there was dispute between the deceased and
the accused-respondents' side regarding the
portion of the purchased land. When he was
cross-examined, he has admitted that
settlement was arrived at between the
parties and portion of land belonging to the
parties had been bifurcated. At one point of
time,
he
has
admitted
that
portion
belonging to the accused-respondents was
found better and portion belonging to the
deceased was found less better. Analyzing
to this fact, the trial court was of the view
that if the portion belonging to the accusedrespondents' side was better than the
portion belonging to the deceased, then in
that situation, grudge will be to the
deceased side and the enmity disclosed
during examination will not be sufficient to
commit the present offence by the accusedrespondents, rather there is probability that
accused-respondents
were
falsely
implicated in this matter due to enmity
admitted by P.W.1, the informant. If the
findings arrived at by the trial court in the
impugned judgment and order are minutely
analyzed with the facts and evidence of the
present matter, it is clear that finding of the
trial court is based on evidence available on
record and is a possible view. It is not based
on conjecture and surmises. Thus, findings
of the trial court on point of enmity is also
not interfererable.

22. As far as non-examination of
scribe of the written report is concerned, it
has been admitted in the evidence by P.W.1
that Naresh is the relative of the informant.
He met with him at Tajpur and at that place
he drafted the written report on his
dictation. If the statement of prosecution
witnesses are closely analyzed in the light
of findings arrived at by the trial court
regarding the non-examination of Naresh, it
is clear that his close relative was in serious
condition. He did not think to go to police
station nor to the hospital. Trial court
finding is that non-examination of Naresh
by the prosecution became fatal to the
prosecution case. If the finding arrived at
by the trial court on this issue be not taken
as
correct
appreciation
of
fact
and
evidence, then the Court has to analyze
other evidence adduced by the parties to
form an opinion contrary to the opinion
formed by the trial court. So far as presence
of P.W.1 Hemraj, P.W.2 Anand Singh and
P.W. 9 Brijpal on the date, time and place
of occurrence is concerned, nothing has
been mentioned in the written report
(Ex.Ka.-1) disclosing this fact that P.W.1 -
the informant was also heading towards the
field following the deceased. When he was
examined during trial, he has stated that he
was also going towards the field for nature
call behind the deceased. Trial court has
opined that P.W.1 was not an eye-account
witness. He was not present at the place of
occurrence at the time of offence. If the
statement of P.W.2 Anand Singh and P.W.9
7 All. State of U.P. Vs. Ishwar Chandra & Ors.
915
Brijpal are taken into consideration, it is
evident that P.W.9 Brijpal has stated that
this witness along with P.W.1, P.W.2 and
the deceased were easing towards eastern
side of the village whereas in the written
report (Ex.Ka.-1) it has been mentioned
that the deceased Bhopal had gone to ease
towards southern side of the village. P.W.9
has also admitted that pond is situated
towards eastern side of the village and they
had gone towards that pond to attend the
nature call. P.W.2 Anand Singh has also
admitted that when he was easing, he heard
the noise and thereafter he reached at the
place of occurrence. Distance between the
place of occurrence and the place where
they were easing has been stated about 200
yards. At one point of time, P.W.2 has
stated that when he reached at the place of
occurrence, deceased was unconscious, but
no blood was oozing. He has also made
contradictory statement to the aforesaid
statement that incident took place when he
reached at the place of occurrence. P.W.1
claimed himself to be an eye-account
injured witness. His medical report was
prepared on the same day at about 9:00
A.M. First information report was lodged at
8:45 A.M. When P.W.3 Dr. Ashok Rana
was cross-examined, he has specifically
stated that medical examination of P.W.1
was conducted by him as a private person.
He has also admitted in cross-examination
that injuries found on the body of the
injured P.W.1 Hemraj may be self-suffered
and no injury was found over his body said
to have been caused by weapon "tabbal".
Trial court taking into consideration the
entire facts, circumstances and the evidence
adduced by the parties was of the view that
P.W.1 was not present at the place of
occurrence, injuries said to have been
found on the body of the injured were not
occurred in the said incident, rather injury
report is a forged document and injuries are
manufactured. If the prosecution evidence
are minutely analyzed in light of the
argument advanced by learned counsel for
the parties as well as finding arrived at by
the trial court, it can safely be held that
finding of the trial court that P.W.1 was not
present at the place of occurrence at the
time of commission of the offence is also
based on correct appreciation of facts and
evidence. Had he been the eye-account
witness of the incident, the material
contradictions elucidated in the impugned
judgment and order in his statement do not
occur and material fact regarding his
presence at the place of occurrence comes
in the written report (Ex.Ka.-1) itself. As
far as presence of P.W.2 Anand Singh at the
place of occurrence is concerned, this
witness has also made contradictory
statement. If the statement made by this
witness are minutely analyzed / compared
with the statement of P.W.9 Brijpal and
P.W.1 Hemraj in light of the discussion
made by the trial court in the impugned
judgment and order, it is clear that in fact,
this witness was also not present at the
place of occurrence. When deceased was
being beaten by the accused-persons, he
has not seen the incident. Finding arrived at
by the trial court regarding presence of this
witness at the place of occurrence is also
based on correct appreciation of fact and
evidence.

23. So far as the presence of P.W.9
Brijpal at the place of occurrence at the
time of offence is concerned, this witness
has admitted that he was government
employee and was on duty in his office. If
the statement of this witness is taken into
consideration, as has been discussed herein-above, this witness has made different
story with the facts disclosed in the written
report (Ex.Ka.-1) and as stated by P.W.1
and P.W.2. If this witness was present in the
916 INDIAN LAW REPORTS ALLAHABAD SERIES
eastern side of the village near the pond
and the deceased had gone to ease towards
southern side of the village, it appears
improbable and unbelievable that incident
took place before this witness. Trial court
has discussed the entire evidence minutely
and has rightly observed that P.W.9 Brijpal
was also not present at the time of
occurrence. If the statement of P.W.1, P.W.3
and P.W.9 are also compared with the site
plan prepared in the matter and the
statement of investigating officers, it is
evident that nothing has been stated by
these witnesses to the investigating officer
regarding the enmity between the parties on
point of mend. Thus, we are also of the
view that finding of the trial court, which is
based on evidence adduced by the parties,
is correct appreciation of fact and evidence.
P.W.1, P.W.2 and P.W.9 were not eyeaccount witnesses. No interference is
required in the finding of the trial court on
this score.

24. As far as medical evidence is
concerned, we have discussed here-inabove that injury report of the injured P.W.1
Hemraj is a forged document. No injury
from the weapon tabbal was found on his
body, although, the fact witnesses have
stated that P.W.1 was also beaten by the
accused-respondents by tabbal. Trial court
has also doubted the presence of P.W.1,
P.W.2 and P.W.9 at the place of occurrence
at the time of commission of the offence on
the ground that their statement are not
supported with medical evidence. No injury
was found on the body of the deceased said
to have been caused by weapon tabbal.
Trial court has also observed that tabbal is a
heavy cutting weapon. No such injuries
said to have been caused by the weapon
tabbal were found on the body of the
deceased. Trial court has also based its
finding on the basis of contents of the
stomach and has opined that incident took
place in other manner caused by some
unknown persons. Due to this reason, there
was contradiction in the statement of
prosecution witnesses on point of injuries.
P.W.1 Hemraj has also made contradictory
statement as to whether he was hospitalized
in P.H.C., Seohara or he was accompanying
the deceased for Meerut Medical College.
If the finding of the trial court regarding the
medical evidence are minutely analyzed
with the submission raised across the Bar,
no illegality, infirmity or perversity is
found in it. Certainly medical evidence and
the oral version of the said eye-account
witness are contradictory to each other.

25. So far as the dying declaration
said to have been recorded in the matter is
concerned, initially the first information
report was lodged in this matter under
section 307 IPC. Deceased was taken to
P.H.C., Seohara on a tractor-trolley. It is the
case of the prosecution that looking to the
serious condition of the deceased, he was
immediately referred to the Meerut Medical
College, but he died on the way when he
was being taken to the Medical College. No
evidence was adduced on part of the
prosecution to establish that treatment was
given to the deceased before proceeding to
Medical
College,
Meerut.
When
postmortem
of
the
deceased
was
conducted, dressing / bandage was found
over the wounds of the deceased. Trial
court while analyzing the prosecution
evidence has opined that if no treatment /
first aid was done to the injuries said to
have been sustained by the deceased on his
body, then under what circumstances and
how the wounds dressing was found over
the body of the deceased. If the statement
of P.W.5 Dr. Vijay Kumar Goel, who
conducted the postmortem on the body of
the deceased, is taken into consideration, it
7 All. State of U.P. Vs. Ishwar Chandra & Ors.
917
has come that no inury was found on the
body of deceased said to have been caused
by the weapon "tabbal".

26. Statement of P.W.1 Hemraj and
the deceased are said to have been recorded
by the investigating officer concerned at
P.H.C., Seohara itself. Trial court doubting
the genuineness of the dying declaration
was of of the opinion that dying declaration
has not been recorded following the
guidelines of Police Regulations. Doctor
was present at that time. Prosecution
witnesses themselves have admitted that
condition of the deceased was serious. The
investigating officer concerned did not
obtain the certificate of the Doctor
concerned regarding the physical and
mental condition of the deceased. Trial
court has also opined that condition of the
deceased was serious and he was not in a
position to speak, as has been admitted by
the
prosecution
witnesses
themselves.
Therefore, it appears that the dying
declaration
was
recorded
by
the
investigating officer at his own. Trial court
while arriving at the conclusion on this
point has discussed in detail the entire
evidence and thereafter has formed opinion
that the dying declaration said to have been
recorded in the matter is not free from
suspicion.
If
the
entire
prosecution
evidence are analyzed in light of the
submissions raised across the Bar, no
illegality, infirmity or perversity is found in
the finding of the trial court on this point.
Thus, no interference is required on this
issue.

27. As far as the place of incident is
concerned, if the statement of prosecution
witnesses are compared with the site plan
prepared in the matter and also with the
fact disclosed in the written report, it
emerge that the written report is clear that
incident took place on the way whereas site
plan discloses that incident occurred at two
places. Firstly, in the field of the deceased
and thereafter in the field of Rampal. The
investigating officer has not shown the
place of occurrence on the path. Witnesses
examined in the matter, who claimed
themselves to be eye-account witnesses,
have also made contradictory statement.
The contradiction occurred in the statement
of prosecution witnesses due to the reason
that they are not eye-account witnesses.
Had they been eye-account witnesses,
contradictions on point of place of
occurrence would not have come in their
statements. Trial court while analyzing the
findings on this point has discussed the
entire evidence, which is based on
reasoning. On comparison of the evidence
adduced by the parties with the findings of
the trial court in light of the submissions
raised across the Bar on this point, we do
not find any error, illegality or perversity in
the findings of the trial court on this point.

28. It is pertinent to mention here that
the powers of the appellate court in an
appeal against acquittal are no less than in
an appeal against conviction. But where on
the basis of evidence on record two views
are reasonably possible the appellant court
cannot substitute its view in the place of
that of the trial court. It is only when the
approach of the trial court in acquitting an
accused is found to be clearly erroneous in
its consideration of evidence on record and
in deducing conclusions therefrom that the
appellate court can interfere with the order
of acquittal. It is also golden thread which
runs through the web of administration of
justice in criminal case is that if two views
are possible on the evidence adduced in the
case, one pointing to the guilt of the
accused and the other to his innocence, the
view which is favourable to the accused
918 INDIAN LAW REPORTS ALLAHABAD SERIES
should be adopted. It is also settled
principle
of
law
that
paramount
consideration of the Court is to ensure that
miscarriage of justice is avoided. The case
of the prosecution must be judged as a
whole having regard to the totality of the
evidence in appreciating the evidence. The
approach of the court must be an integrated
one and not truncated or isolated.

29. Thus, on close scrutiny of the
entire evidence adduced by the prosecution
and comparing the same with the finding
arrived at by the trial court in the impugned
judgment and order, the Court is of the
opinion that finding of the trial court is
based on correct appreciation of fact and
evidence. The view taken by the trial court
in the impugned judgment and order is a
possible view. The appellate court will
interfere in such type of cases only when
there is strong and compelling reasons in
the prosecution evidence which dislodge
the finding of the trial court itself. Merely,
on the basis of statement of the witnesses
examined
in
the
matter,
whereas
prosecution case is not supported with
medical evidence, manner and style of the
incident stated by the prosecution witnesses
is also not believable, then Court is of the
view that the trial court has passed the
impugned judgment and order after proper
appreciation of the evidence and it is well
reasoned order. Findings recorded by the
lower appellate court in the impugned
judgment and the order acquitting the
accused-respondents
from
the
charges
levelled against them cannot be termed to
be illegal, improper or illogical. Lower
appellate court has rightly held that
prosecution has not succeeded to prove
guilt
of
accused-respondents
beyond
reasonable doubt. The accused-respondents
are not found guilty for the offence
punishable under Sections 307/34, 302/34,
323/34, 504, 506 IPC.