# State of U.P v. Laxmi Baniya & Anr

- **Citation:** (2023) 2 ILRA 262
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-20
- **Case number:** Government Appeal No. 1818 of 2004
- **Bench:** Vivek Kumar Birla, Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-laxmi-baniya-anr-49202
- **Pages:** 7

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 161,313 & 378
- Appeal in case of acquittal, Indian Penal
Code, 1860 - Section 302 - Murder - power
and jurisdiction of High Court while
interfering in an appeal against acquittal -
High Court should not reappreciated the
evidence in its entirety, especially when
there existed no grave infirmity in the
findings of the trial Court - evidentiary
value of and sustenance of conviction
solely based on dying
declaration
-
presence
of
Judicial
or
Executive
Magistrate to record the dying declaration
is not compulsory and it is only needed as
a rule of prudence so as to muster
additional strength to the prosecution
case - double presumption of innocence
operates
in
favour
of
the
accused
respondents. (Para -11,17,18)

Witnesses of fact turned hostile - contradictory
statements - Statement recorded under Section
161 CrPC - claimed as a dying declaration - but
no corroborative evidence - no other evidence
to connect accused persons with crime - gap of
two days from date of recording of such
statement and time of death of deceased -
prosecution could not prove case beyond doubt
- accused person was given benefit of doubt -
Court below passed judgement of acquittal -
hence appeal.(Para - 6,18)

HELD:- Court below has taken a plausible and
possible view of the matter on appreciation of
entire evidence on record, which cannot be
substituted by this Court by taking a different
view. (Para -19)

Appeal dismissed. (E-7)

List of Cases cited:-

## Text

262 INDIAN LAW REPORTS ALLAHABAD SERIES

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

19. We have perused the depositions of
prosecution witnesses, documentary evidence
supporting
ocular
versions,
arguments
advanced by learned counsel for the parties.
We have also perused the findings recorded
by the learned Sessions Judge.

20. From the perusal of the entire
evidence on record, it transpires that there are
serious contradiction in the oral and medical
evidence and the medical evidence is not in
conformity with the oral evidence adduced by
the prosecution. There is no overt act
perpetrated on any of the other accused and,
therefore,
we
cannot
agree
with
the
submission of learned A.G.A. for the State
that the judgment is perverse and requires to
be upturned.

21. While going through the finding of
facts it appears that PW4 Roop Ram was
very much inimical to PW1 Dori Lal and
both were entangled in litigation before this
incident and which settled after this incident.
It seems that PW4 might have lodged false
FIR in this matter as the deceased and her
family were not in talking terms with the
informant and the trial court has opined that
the relations between PW1 and PW4 were
very much strained and even PW4 did not
accept to be himself as the nephew of PW1
Dori Lal in his written statement submitted in
the litigation which was pending between
them. The story mentioned in the FIR that the
accused persons demanded dowry from PW4
seems to be completely false and the trial
court has not believed the statements of PW1,
PW2, PW3 and even PW4. The dying
declaration given to PW2 by the deceased
does not inspire any confidence. There is no
overt act perpetrated on any of the other
accused and, therefore, we cannot agree with
the submission of learned A.G.A. for the
State that the judgment is perverse and
requires to be upturned.

22. After considering the facts and
circumstances of the present case and
appraisal of the evidence available on record
and on the contours of the judgment of the
Apex Court, we have no other option but to
concur with the judgment of acquittal by the
the learned Sessions Judge.

23. The appeal sans merits and is
dismissed. The record and proceedings be
sent back to the Court below.
----------
(2023) 2 ILRA 262
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE RAHUL CHATURVEDI, J.

Government Appeal No. 1818 of 2004

State of U.P. ...Appellant
Versus
Laxmi Baniya & Anr.
 ...Accused-Respondents
2 All. State of U.P. Vs. Laxmi Baniya & Anr.
263
Counsel for the Appellant:
G.A.

Counsel for the Respondents:
Sri Vinay Kumar Singh, Sri Aya Prasad
Tewari, Sri Ajay Kumar Singh, Sri Prakash
Chandra Srivastava, Sri Sheo Shankar
Tripathi, Sri Siddharth Shukla

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 161,313 & 378
- Appeal in case of acquittal, Indian Penal
Code, 1860 - Section 302 - Murder - power
and jurisdiction of High Court while
interfering in an appeal against acquittal -
High Court should not reappreciated the
evidence in its entirety, especially when
there existed no grave infirmity in the
findings of the trial Court - evidentiary
value of and sustenance of conviction
solely based on dying
declaration
-
presence
of
Judicial
or
Executive
Magistrate to record the dying declaration
is not compulsory and it is only needed as
a rule of prudence so as to muster
additional strength to the prosecution
case - double presumption of innocence
operates
in
favour
of
the
accused
respondents. (Para -11,17,18)

Witnesses of fact turned hostile - contradictory
statements - Statement recorded under Section
161 CrPC - claimed as a dying declaration - but
no corroborative evidence - no other evidence
to connect accused persons with crime - gap of
two days from date of recording of such
statement and time of death of deceased -
prosecution could not prove case beyond doubt
- accused person was given benefit of doubt -
Court below passed judgement of acquittal -
hence appeal.(Para - 6,18)

HELD:- Court below has taken a plausible and
possible view of the matter on appreciation of
entire evidence on record, which cannot be
substituted by this Court by taking a different
view. (Para -19)

Appeal dismissed. (E-7)

List of Cases cited:-
1. Bannareddy & ors. Vs St. of Karn. & ors.,
(2018) 5 SCC 790

2. Jayamma Vs St. of Karn., 2021 (6) SCC 213

3. Virendra Singh Vs St. of U.P. & ors., 2022 (3)
ADJ 354 DB

4. Rajesh Prasad Vs St. of Bihar & anr., (2022) 3
SCC 471

5. Padmaben Shamalbhai Patel Vs St. of Guj.,
(1991) 1 SCC 744

6. K. Ramachandra Reddy & anr. Vs The Public
Prosecutor, AIR 1976 SC 1994

7. Laxman Vs St. of Mah., (2002) 6 SCC 710

8. Jagbir Singh Vs St. (NCT of Delhi), (2019) 8
SCC 779

9. Jayamma & anr. Vs St. of Karn., (2021) 6
SCC 213

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Rahul Chaturvedi, J.)

1. Heard Sri Ratan Singh, learned
AGA appearing for the appellant-State of
UP and Sri Prakash Chandra Srivastava,
learned counsel for the accused respondentLakshmi Baniya and Sri Vinay Kumar
Singh, learned counsel for the accused
respondent-Chandrabhan
Kurmi
and
perused the record.

2. Present government appeal has
been preferred against the judgement and
order dated 31.10.2003 passed by the
Additional Sessions Judge, Court No. 3 in
Session Trial No. 338 of 2002 (State vs.
Lakshmi Baniya) and and in Session Trial
No. 420 of 2002 (State vs. Chandrabhan
Kurmi) arising out of Case Crime No.
33/89, under Section 302 IPC, P.S. Khajni,
District Gorakhpur whereby both the
264 INDIAN LAW REPORTS ALLAHABAD SERIES
accused have been acquitted from the
charges under Section 302 IPC.

3. Prosecution story, as per FIR, in
brief is that the informant Bhajuram s/o
Purnavashi Baniya, resident of village
Bhiuri, Thana-Khajani, District Gorakhpur
had purchased a piece of land on the paved
road from Bansgaon to Khajani alongwith
his
brother
Baijnath
from
Kanhaiya
Tripathi, who is residing in village Unwal.
On the said piece of land the informant
constructed a house. Laxhmi and others,
relatives of said Kanhaiya Tripathi were
also constructed a house over some part of
the said land and residing in the said house.
Regarding some part of land a civil suit
was also pending before the court below.
On 05.05.1989 at around 11:00 pm when
his brother Baijnath, niece Kotwal and his
daughter-in-law Smt. Fekna Devi laying in
front of his house talking and he slept far to
the West and was in awake condition then
suddenly he heard his brother's noise
'Bachao Bachao'. After lighting a torch, he
ran towards his brother. One Hari Koiri
also reached to the spot where the lantern
was burning. They saw that Baijnath was
caught hold by Lakhmi Baniya and two
others and Chandrabhan who armed with
knife stabbed his brother Baijnath and ran
towards
West.
They
witnessed
and
recognized the accused in the light of the
lantern. The informant and others admitted
to his brother- Baijnath in the Sadar
Hospital due to excessive bleeding where
he is being treated. He left his brother in
the care of family members and guests and
came to inform about the incident. On the
said written Tehrir, a first information was
registered in the Police Station Khajani on
06.05.1989 at 9:15 am against the accused
Lakhmi Baniya, Chandrabhan Kurmi and
two others and a case crime no.33 of 1989,
under Section 307 IPC was registered.

4. The Investigating Officer was
nominated and he conducted investigation.
Statements of prosecution witnesses were
also recorded and thereafter a charge-sheet
was submitted against the accused. The
case was committed to the Court of
Sessions and charges were framed against
the accused who pleaded his innocence and
not guilty.

5. In support of prosecution case, PW1 Kotwal, PW-2 Bhujram, PW-3 Fekna
Sakshi, PW-4 Hari, PW-5 Shivram, were
produced and examined before the Court
below.

6. The judgement of acquittal was
passed by the Court below on the ground
that except PW-1 Kotwal (son of the
deceased), all other witnesses of fact have
turned hostile. It was found that PW-2
Bhajuram (real brother of the deceased),
PW-3 Fekna Sakshi (wife of the deceased),
PW-4 Hari who is stated to be independent
witness of fact, PW-5 Shiv Ram have
turned hostile and nothing came out in their
cross-examination. It was further found that
the prosecution has taken the stand that the
statement recorded under Section 161 CrPC
of the deceased who was in an injured
condition is liable to be treated as dying
declaration as the death had taken place
after two days from the date of incident,
however, the court below found that neither
the doctor nor the Investigating Officer
(IO) was produced to prove that the
statement of the deceased so recorded by
the IO cannot be treated as a dying
declaration in absence of the production of
the vital prosecution witness, namely, the
Doctor and the IO who had allegedly
recorded the statement of the deceased
when he was in an injured condition. It was
further found that PW-1 Kotwal was a child
of about 13 years and his statement was
2 All. State of U.P. Vs. Laxmi Baniya & Anr.
265
recorded after a gap of about 14 years and
the narration of the incident was not worth
belief in the light of the statement made by
the other witnesses of fact who turned
hostile. It was also found that PW-2
Bhujram who is real brother of the
deceased and was stated to have been
sleeping about five paces away from the
place of incident had also turned hostile
and had stated in categorical terms that he
had not seen the incident. PW-3 Fekna
Sakshi (wife of the deceased) had stated
that she was sleeping somewhere else and
therefore, had also not supported the stand
taken
by
the
PW-1.
Under
such
circumstances, the Court below found that
the prosecution could not prove his case
beyond doubt and the accused person was
given benefit of doubt and judgement of
acquittal was passed.

7.

Challenging
the
impugned
judgment, Mr. Ratan Singh, learned AGA
submits that there was cogent evidence to
convict the accused persons herein. He next
submits that it is a case of direct evidence
where the incident was seen by at least four
witnesses and one witness i.e. PW-1
Kotwal
(son
of
the
deceased)
had
categorically supported the prosecution
version and nothing came out in his crossexamination against prosecution. It is
submitted that merely because some other
witnesses have turned hostile, this by itself
cannot grant benefit to the defence and
therefore, statements of the witnesses are
liable to be considered. It is further
submitted that the last statement of the
deceased when it was recorded by the IO in
the shape of statement under Section 161
CrPC is liable to be treated as a dying
declaration and this itself is sufficient to
reverse
the
judgement.
Submission,
therefore, is that the judgement and order
of acquittal passed by the trial Court
requires serious consideration and reversal
and the accused persons herein are liable to
be convicted.

8. Per contra, Sri Prakash Chandra
Srivastava and Sri Vinay Kumar Singh,
learned
counsel
for
the
accused
respondents, have submitted that the
statement of PW-1 Kotwal (son of the
deceased) who is 13 years at the time of
incident and whose statement was recorded
after a gap of 14 years is not worth belief
particularly in view of the contradictory
stand taken by the other witnesses of fact
who are also directly related to the
deceased. They submitted that PW-2, PW3, PW-4 and PW-5 have turned hostile and
nothing
came
out
in
their
crossexamination. They further submitted that
the statement of the deceased recorded by
the IO under Section 161 CrPC cannot be
treated as dying declaration as there was a
long gap between the recording of the
statement and the time of death that had
taken place and therefore, no interference is
warranted in the judgement and order
impugned herein.

9.

We
have
considered
the
submissions and have perused the record.

10. Before proceeding further, it
would be appropriate to take note of law on
the appeal against acquittal.

11. In the case of Bannareddy and
others vs. State of Karnataka and others,
(2018) 5 SCC 790, in paragraph 10, the
Hon'ble Apex Court has considered the
power and jurisdiction of the High Court
while interfering in an appeal against
acquittal and in paragraph 26 it has been
held that "the High Court should not have
reappreciated the evidence in its entirety,
especially when there existed no grave
266 INDIAN LAW REPORTS ALLAHABAD SERIES
infirmity in the findings of the trial Court.
There exists no justification behind setting
aside the order of acquittal passed by the
trial
Court,
especially
when
the
prosecution case suffers from several
contradictions and infirmities"

12. In Jayamma vs. State of
Karnataka, 2021 (6) SCC 213, the Hon'ble
Supreme Court has been pleased to explain
the limitations of exercise of power of
scrutiny by the High Court in an appeal
against an order of acquittal passed by a
Trial Court.

13. In a recent judgement of this
Court in Virendra Singh vs. State of UP
and others, 2022 (3) ADJ 354 DB, the law
on the issue involved has been considered.

14. Similar view has been reiterated
by Hon'ble Apex Court in Rajesh Prasad
vs. State of Bihar and another, (2022) 3
SCC 471.

15. On perusal of record, we find
that out of four witnesses of fact, three
witnesses are closely related to the
deceased; one being son of the deceased,
other being the wife and third being the
real brother, out of which two have not
supported the prosecution case although
they were claimed to be eyewitnesses and
even the independent eyewitness has also
not supported the prosecution case and
except
PW-1
Kotwal
(son
of
the
deceased),
all
turned
hostile
and
contradictory stand is more than apparent
on the face of the present case. Presence
of the PW-2 and PW-3 is also doubtful,
inasmuch as they have also stated in
categorical terms that they were not
present on the spot, which clearly reflects
that they have not supported the stand
taken by the PW-1 Kotwal.

16. Insofar as the question of treating
the statement of the deceased recorded
under Section 161 CrPC by the IO being
treated as dying declaration is concerned, it
would be
relevant
to
refer
to
the
judgements of Hon'ble Apex Court in
Padmaben Shamalbhai Patel vs. State of
Gujarat,
(1991)
1
SCC
744;
K.
Ramachandra Reddy and another vs. The
Public Prosecutor, AIR 1976 SC 1994;
Laxman vs. State of Maharashtra, (2002)
6 SCC 710; Jagbir Singh vs. State (NCT of
Delhi), (2019) 8 SCC 779; and Jayamma
and another vs. State of Karnataka, (2021)
6 SCC 213.

17. Insofar as the facts of the present
case are concerned, it is suffice to refer to
the judgement of Jayamma (supra) wherein
evidentiary value of and sustenance of
conviction
solely
based
on
dying
declaration was extensively considered and
principles were summarised. It was held
that presence of Judicial or Executive
Magistrate to record the dying declaration
is not compulsory and it is only needed as a
rule of prudence so as to muster additional
strength to the prosecution case. In the
aforesaid case, the trial Court found that
dying declaration (Ext. P-5) was not worth
belief as there was no corroborative
evidence to the statement (Ext. P-5) and no
other evidence was led by the prosecution
to connect the accused persons with the
crime except the statement (Ext. P-5) which
was held to be unsafe to convict the
accused persons solely on the basis of the
dying declaration. The High Court reversed
the judgement of acquittal of the accused
persons relying upon the dying declaration
in exercise of appellate powers. While
discussing the powers of the appellate and
after summerising the principles in this
regard, the Hon'ble Apex Court held that
reliance placed on dying declaration was
2 All. State of U.P. Vs. Laxmi Baniya & Anr.
267
not sustainable and affirmed and endorsed
the view taken by the trial court acquitting
the accused persons. Paragraphs 26 and 27
of Jayamma (supra) are quoted as under:

"26. The Additional Sessions
Judge, Chitradurga in his judgement dated
30-11-2001 formulated Point No. 1 as to
whether the prosecution was able to prove
beyond all reasonable doubt that the
accused persons with an intention to kill
Jayamma went to her hourse and picked up
a quarrel in connection with a previous
dispute and then doused her with kerosene
and set her ablaze. The Additional Sessions
Judge extensively examined the entire
evidence and after reaching to the
conclusion that all the witnesses of the
motive or the occurrence have resiled and
declared hostile, he was left with the
residuary question to decide as to whether
the death was suicidal or homicidal. He,
thereafter,
considered
the
dying
declaration (Ext. P-5) threadbare and
critically analysed the statements of the
police officer (PW 11) and the doctor (PW
16). The factors like: (i) interpolation in
the dying declaration Ext. P-5, (ii)
contradiction in the statements of PW 11
and PW 16 regarding injuries on the
palm, (iii) the victim with 80% injuries
was apparently not in a situation to talk
or give statement, (iv) PW 2, son of the
deceased himself has stated that his
mother committed suicide as she could
not bear that her another son had been
sent
to
jail,
(v)
there
being
no
corroborative evidence to the statement
Ext. P-5, and (vi) there is no other
evidence led by the prosecution to
connect the appellants with the crime
except the statement Ext. P-5, he held it
unsafe to convict the appellants on the
solitary basis of the dying declaration
(Ext. P-5).

27. We fully endorse the view
taken by the learned trial court. The
reasons which we have assigned in para 22
of this order are sufficient to cast clouds on
the genuineness of the prosecution case.
We find it difficult to uphold the conviction
only on the basis of the dying declaration
Ext. P-5."

 (Emphasis supplied)

18. In the present case, it is apparent
on the record that neither the doctor was
produced who has stated that the deceased
who was in fit state of mind to make the
statement; and even the IO was also not
produced to prove such statement. We
further find that there was a gap of about
two days from the date of recording of such
statement and the time of death of the
deceased. In the present case also, we find
that there was no corroborative evidence to
the statement recorded under Section 161
CrPC which is being claimed as a dying
declaration for the reasons stated above and
there was absolutely no other evidence led
by the prosecution to connect the accused
persons
with
the
crime
except
the
statement.
As
such,
under
such
circumstances, unless such statement is
proved beyond doubt, the same cannot be
treated as a dying declaration for making
the sole basis for convicting the accused
respondents or in any case, even if treated
as dying declaration, it would, under no
circumstances, be safe for convicting the
accused-respondents solely on its basis,
that too by reversing the judgement of
acquittal, when as per settled law double
presumption of innocence operates in
favour of the accused respondents.

19. In view of the aforesaid, as
reflected from perusal of the evidence, we
find that the court below has taken a
plausible and possible view of the matter
268 INDIAN LAW REPORTS ALLAHABAD SERIES
on appreciation of entire evidence on
record, which cannot be substituted by this
Court by taking a different view as per the
law discussed above.

20. From the discussion made
hereinabove, the government appeal stands
dismissed.
----------
(2023) 2 ILRA 268
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.01.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Government Appeal No. 2103 of 1992

State of U.P. ...Appellant
Versus
Mool Chandra & Ors.
 ...Accused-Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Sri Rajeev Sharma

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 313 & 378(3) -
Appeal in case of acquittal, Indian Penal
Code, 1860 - Section 302/34 - Murder -
Powers of the appellate Court against an
order of acquittal - while exercising
appellate powers, even if two reasonable
views/conclusions are possible on the
basis of the evidence on record, the
appellate Court should not disturb the
finding of acquittal recorded by the trial
Court - in acquittal appeals, the appellate
Court is not required to rewrite the
judgment or to give fresh reasonings,
when the reasons assigned by the Court
below are found to be just and proper.
(Para -12,17)

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 378(93) -
Appeal in case of acquittal - appellate
court is reversing the trial court's order of
acquittal, it should give proper weight and
consideration
to
the
presumption
of
innocence in favour of accused, and to the
principle that such a presumption sands
reinforced, reaffirmed and strengthened
by the trial court - judgment of acquittal,
where two views are possible, should not
be set aside, even if view formed by
appellate court may be a more probable
one, interference with acquittal can only
be justified when it is based on a perverse
view. (Para -21)

Four accused persons - three accused died -
appeal decided against surviving accused - TrialCourt rightly appreciated evidence on record -
Case against accused under Section 34 of I.P.C.
made out - chain incomplete - finding of Court
below - scanty evidence - accused cannot be
punished and or convicted for the offences for
which they are charged - acquittal - hence
appeal.(Para - 22,23)

HELD:- Factual scenario in the present case will
not permit court to take a different view then
that taken by the court below. Concur the
findings of the court below. Record and
proceedings sent back to Court below. (Para24,25)

Appeal dismissed. (E-7)

List of Cases cited:-

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

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

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

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