# State of U.P v. Ram Autar

- **Citation:** (2022) 9 ILRA 1031
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-12
- **Case number:** Government Appeal No. 2683 of 1983
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-ram-autar-48961
- **Pages:** 29

## Headnote

1032 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri
S.B.
Sahai,
Sri
Mohd.
Ishraque
Farooqui, Sri Pradeep Kumar

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 82, 83, 161, 313,
378 & 384 - Indian Penal Code, 1860 -
Section - 302 - Government Appeal - against
order of Acquittal - offence of Murder - FIR -
accused shoot brother of the complainant with a
country made pistol whom has slapped his sister
as well as abuse his mother when they were
plucking Gram leaves in their filed -Trial court
acquitted accused person - by adopting hyper
technical approach giving importance of some
minor lapses committed by the investigating
officer rejected the evidences as a whole -
appeal - prompt FIR - post-mortem report -
recovery of empty cartridge - report of blood
stain - site plan - testimony of eyewitness - all
these proofs that incident taken place - while
being conscious that no innocent person is
punished we are also duty bound to see that a
guilty person does not go unpunished - Court
find that - impugned judgment passed purely on
the basis of presumptions and by not reading
the evidence as a whole and only picking up
sentences in isolation from here and there from
the St.ment of eyewitnesses - whereas direct
evidence on record beyond any shadow of
doubt is proves the manner, time and place in
which incident had taken place and committed
by accused person - hence, impugned judgment
is set aside, accused is liable to be convicted
under section 302 IPC - appeal stand allowed.
(Para - 24, 25, 26, 41, 45)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections - 82, 83, 161, 313,
378 & 384 - Indian Penal Code, 1860 -
Section - 302 - Government Appeal - against
order of Acquittal - offence of Murder - applying
principle of law as laid down in case of 'Karan
Sigh' & 'Banwari Lal' - lapse of sufficient time
coupled with other factors like age of accused
cannot be a ground to bestow any benefit so as
to wipe away the aftermath of commission of
crime - accused is sentenced to undergo simple
imprisonment for life with a fine - accused is
directed to surrender before Learned CJM within
15 days failing which Ld. CJM shall take him in
custody as per law. (Para - 44, 46, 47)

Appeal dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,760 of 102,777. This is a partial read: ask again with offset=39760 for what follows._

9 All. State of U.P. Vs. Ram Autar
1031
golden thread which runs through the web of
administration of justice in criminal cases 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 should
be adopted. The paramount consideration of the
court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than
from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is
cast upon the appellate court to re-appreciate the
evidence in a case where the accused has been
acquitted, for the purpose of ascertaining as to
whether any of the accused committed any
offence or not."

24. 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.

25. We have perused the depositions of
prosecution witnesses, documentary evidence
supporting ocular versions, arguments advanced
by learned counsel for the parties. We have been
taken through the record. We are unable to accept
the submissions of the State counsel for the
following reasons and the judgments of the Apex
Court which lay down the criteria for
consideration of appeals against acquittal. The
chain has been found to be incomplete. While
going through the judgment it is very clear that
the court below has given a categorical finding
that the evidence is so scanty that the accused
cannot punished and or convicted for the
offences for which they are charged. The factual
scenario in the present case will not permit us to
take a different view than that taken by the court
below. In that view of the matter we are unable to
satisfy ourselves. Thus we concur the findings of
the court below.

26. After considering the facts and
circumstances of the present case and appraisal
of the evidence available on record and on the
contours laid down by the judgment of the Apex
Court, we have no other option but to concur
with the reasoning of acquittal recorded by the
learned Sessions Judge for the aforesaid reasons.

27. The appeal sans merits and is
dismissed. The record and proceedings be sent
back to the Court below. The bail and bail bonds
are cancelled.

28. We are thankful to Sri D.S. Mishra,
learned counsel for the appellant for ably
assisting the Court.
----------
(2022) 9 ILRA 1031
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2022

BEFORE

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

Government Appeal No. 2683 of 1983

State of U.P. ...Appellant
Versus
Ram Autar ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri
S.B.
Sahai,
Sri
Mohd.
Ishraque
Farooqui, Sri Pradeep Kumar

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 82, 83, 161, 313,
378 & 384 - Indian Penal Code, 1860 -
Section - 302 - Government Appeal - against
order of Acquittal - offence of Murder - FIR -
accused shoot brother of the complainant with a
country made pistol whom has slapped his sister
as well as abuse his mother when they were
plucking Gram leaves in their filed -Trial court
acquitted accused person - by adopting hyper
technical approach giving importance of some
minor lapses committed by the investigating
officer rejected the evidences as a whole -
appeal - prompt FIR - post-mortem report -
recovery of empty cartridge - report of blood
stain - site plan - testimony of eyewitness - all
these proofs that incident taken place - while
being conscious that no innocent person is
punished we are also duty bound to see that a
guilty person does not go unpunished - Court
find that - impugned judgment passed purely on
the basis of presumptions and by not reading
the evidence as a whole and only picking up
sentences in isolation from here and there from
the St.ment of eyewitnesses - whereas direct
evidence on record beyond any shadow of
doubt is proves the manner, time and place in
which incident had taken place and committed
by accused person - hence, impugned judgment
is set aside, accused is liable to be convicted
under section 302 IPC - appeal stand allowed.
(Para - 24, 25, 26, 41, 45)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections - 82, 83, 161, 313,
378 & 384 - Indian Penal Code, 1860 -
Section - 302 - Government Appeal - against
order of Acquittal - offence of Murder - applying
principle of law as laid down in case of 'Karan
Sigh' & 'Banwari Lal' - lapse of sufficient time
coupled with other factors like age of accused
cannot be a ground to bestow any benefit so as
to wipe away the aftermath of commission of
crime - accused is sentenced to undergo simple
imprisonment for life with a fine - accused is
directed to surrender before Learned CJM within
15 days failing which Ld. CJM shall take him in
custody as per law. (Para - 44, 46, 47)

Appeal dismissed. (E-11)

List of Cases cited:

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

2. St. of U.P. Vs Phool Singh & ors., 2022 (4)
ADJ 397 (DB),

3. St. of U.P. Vs Krishna Master, (2010) 12 SCC
324,

4. St. of U.P. Vs Laxmi & ors., Government
Appeal
No.2995
of
1985,
decided
on
13.07.2022,

5. Mohabbat Vs St. of M.P., (2009) 13 SCC 630,

6. Nirmal Singh& anr. Vs St. of Bihar, AIR 2005
SC 1265,

7. Narendra Nath Khaware Vs Parasnath
Khaware & ors., (2003) 5 SCC 488,

8. Ram Swaroop & ors. Vs St. of U.P., (2000) 2
SCC 461,

9. St. of Raj. Vs Satyanarayan, (1998) 8 SCC
404,

10. Karan Singh Vs The St. of U. P.& ors.,
Criminal Appeal No.327 of 2022, decided on
02.03.2022,

11. St. of Raj. Vs Banwari Lal& anr., Criminal
Appeal No.-- of 2022 (Arising out of Special
Leave Petition (Criminal) No.-- of 2022), arising
out of Diary No.21596 of 2020, decided on
08.04.2022.

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Vikas Budhwar, J.)

1. Heard Sri Ratan Singh, learned
AGA appearing for the appellant-State of
UP, Sri Pradeep Kumar, learned counsel
appearing for the accused-respondent and
perused the record.
9 All. State of U.P. Vs. Ram Autar
1033

2. Present government appeal has
been preferred against the judgment and
order dated 26.07.1983 passed by the
Learned Special Judge, Fatehpur in Session
Trial No. 104 of 1983 (State vs. Ram Autar
Kori), arising out of Case Crimes No.
172/1982, under Section 302 IPC, Police
Station Khakhreru, District Fatehpur.

3. Prosecution story, in brief, is that
on 07.12.1982 the complainant- Shiv Saran
Singh along with his brother Babu Singh
went to their Gram field situated the
western side of the village and at about
1:00 pm (noon), they saw the mother and
sister of the accused Ram Autar were
plucking Gram leaves in their field. Babu
Singh asked them not to pluck the same as
the plants were too small but they did not
listen and continued to plucking out the
gram leaves. On this, Babu Singh inflicted
two slaps to the sister of accused-Ram
Autar and banished her from his field. On
this the mother and sister of the accused
returned to their house abusing him. After
taking round of the field while Shiv Saran
Singh and Babu Singh were coming back to
their house for taking bath and meals, when
they reached near the house of Ram Autar,
accused Ram Autar surrounded them and
asked Babu Singh as to why he slapped his
sister and took out country made pistol
from his waist and fired on the chest of
Babu Singh. The alleged incident was
witnessed by neighbours Dasrath, Shiv
Mohan, Govardhan and others. Ram Raj
and Ram Ballaiya also saw the occurrence.
When they tried to catch hold the accused,
he reloaded the country made pistol,
threatened the witnesses and ran away
towards west. On receiving gun shot injury,
complainant brother Babu Singh fell on the
ground and thereafter the injured was
placed on the Chabutara of Goverdhan
where
he
died.
The
accused
shot
complainant's
brother
at
2.00
pm.
Thereafter, a first information report of the
incident was lodged at police station -
Khakreu on the same day at 3.00 pm. in the
presence of Investigating Officer, who
recorded the statement of the complainant
under Section 161 Cr.P.C. The investigating
Officer proceeded to place of occurrence
and inspected the dead body and sealed the
same. Site plan was prepared and after
completing investigation a charge-sheet
under section 302 IPC was submitted
against the accused Ram Autar.

4. In support of prosecution case, PW1-Shiv Saran Singh, PW-2-Dashrath, PW3-Station House Officer-Madan Singh and
PW-4 Dr. Satish Chandra Srivastava were
produced and examined before the Court
below.

5.

Apart
from
other
formal
documents, site plan is Ext. Ka-9, recovery
memo of bloodstained and plain earth is
Ext. Ka-10, recovery memo recovering one
empty cartridge recovered from the place
of occurrence is Ex. Ka-11, charge-sheet is
Ext. Ka-13 and Post mortem report is Ex.
Ka-14.

6. PW-1-Shiv Sharan Singh, who was
the eye witness of the incident, in his
statement had stated that he works in Maya
Press, Allahabad and used to do the same
job during the days of the incident and he
had come home on leave. He further stated
that deceased Babu Singh was his younger
brother and at the time of incident he was
working as Constable in the Police
Department and was posted in Allahabad
and was also on leave during those days.
He further deposed that his house and the
accused's house is on the same road and
when we come from our field, the accused
house comes first and thereafter we would
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
reach to his own house. He further stated
that the residence of Ram Autar was in
front of the house of Dashrath Dhobi and
thereafter there is residence of Goverdhan.
While narrating the incident he stated that
on 07.12.1982 at about 11.30 am when he
and his younger brother Babu Singh had
gone to their field they found that the
mother and sister of the accused Ram Autar
were plucking gram leaves, which was
objected to by his brother and when they
did not stop, his brother Babu Singh twice
slapped the sister of Ram Autar and
banished her from his field. On this the
mother and sister of the accused returned to
their house abusing him. After some time
when they were returning home at about
1.45-2.00 pm and when they reached near
the house of Ram Autar, Ram Autar came
out and stood in front of his brother and
said that since you have slapped my sister, I
will teach you a lesson and took out a
country made pistol from his waist and
fired on the chest of Babu Singh. Babu
Singh fell on the ground. He further stated
that when he tried to move forward and
started shouting then villagers Goverdhan,
Dasrath, Shiv Mohan, Layak Singh and
Ram Raj came to the spot, who have seen
the incident and when they tried to catch
hold the accused, he reloaded the country
made pistol, threatened the witnesses and
ran away towards west. He further deposed
that after the incident the injured lay down
on the Chabutara of Goverdhan, where he
died.

7. PW.2-Dashrath in his statement had
stated that it is six months from today that
Babu Singh was killed. On that date he was
sitting at his door. It was the day time
around 1.30 am. He saw Babu Singh
alongwith his brother Shiv Sharan coming
from West. When Babu Singh reached near
the house of Ram Autar, the accused Ram
Autar came out of his house and told Babu
Singh that why did you slap my sister and
took out a country made pistol from his
waist and fired at Babu Singh. Thereafter
Babu Singh fell on the ground. Seeing this
incident Goverdhan and he, sitting on the
Chabutara in front of his house, ran
towards the spot. The other villagers Ram
Raj, Layak Singh also came to spot and
they have also witnessed the incident. We
all tried to catch hold the accused but he
reloaded
the
country
made
pistol,
threatened us and ran away towards west
first and thereafter ran towards south.
When the Investigating Officer came to the
spot then he recovered the empty cartridge
lying on the ground. He also told the
Investigating Officer about the incident.
After the incident Shiv Sharan Singh,
brother of deceased- Babu Singh lifted the
deceased from the way and laid down him
in the Chabutara of Goverdhan, where he
died. Then Shiv Sharan Singh went to
lodge the report. He further deposed that on
the date of occurrence, he was at home as
he could not go to work on account of
illness. He stated that he heard that Ram
Autar was saying why do you slap my
sister and that I do not know other things.
The mother and sister of accused were
present at home but they did not come
outside the door. He further deposed that
the deceased Babu Singh was empty hand
and he wore an underwear only. Ram Autar
was sitting on his Chabutara but when his
mother and sister came then he went inside
the house and after 10 to 15 minutes he
again came outside and sat on Chabutara.
He further deposed that the accused was
sitting on his Chabutara earlier and when
he saw Babu Singh coming he rushed
towards him. Accused asked Babu Singh
repeatedly why did you slap my sister but
Babu Singh did not reply. After murder he
did not ask anyone why did this murder
9 All. State of U.P. Vs. Ram Autar
1035
took place. When Ram Autar stopped Babu
Singh then he was towards east of Ram
Autar. He further deposed that Babu Singh
was aged about 25 years and not married
but his conduct was not bad and it would be
wrong to say that his murder took place on
account of illicit relationship.

8. PW-3-Station House OfficerMadan Singh has stated on oath that he was
posted as Station House Officer in Police
Station Khakrau from 07.12.1982 to
17.12.1982 and this incident was reported
in front of him. Head Constable Bindravan
Sharma has also worked with him. he
recognize his writing and signature. He
further stated that on the basis of the
written complaint, he prepared Chick FIR
and G.D, on which Ex.A-2 was inserted.
He further stated on oath that he started the
investigation of this case and recorded the
statement of appellant at the police station
and then went to the place of occurrence
where he found the dead body of Babu
Singh lying on Chabutara of Goverdhan
Kori. Panchayatnama was prepared. He
further stated on oath that he inspected the
place of occurrence and site plan was also
prepared. He also recovered plain earth and
bloodstained earth from the spot and
prepared the fard report by filling it in
different boxes, on which Ex.A-10 was
inserted. He further stated that he recovered
an empty cartridge from the spot and sealed
the same, on which Ex.A-11 was inserted.
Thereafter PW-3 searched the accused
house. Accused was not found there. Illegal
cartridges were recovered from the accused
house and he had prepared the fard report
and sealed the same. Thereafter PW-3 took
the statements of Goverdhan and Dashrath
Kori and a police team was sent to search
for the accused. On 08.12.1982 he took the
statements of other witnesses. The accused
kept on running and could not be arrested.
On the same day PW-3 gave the report of
Section 82-83 Cr.P.C. and after receiving
the warrant from the court he attached the
goods of accused and on 14.12.1982 he has
prepared a fard report. PW-3 further stated
on oath that latter the accused appeared
before the Court and Investigating Officer
gave the chargesheet before the Court,
which is Ex.A-13. He further stated that
during the investigation he could not find
the sister and mother of the accused nor did
he try to find them. He found the dead body
at the same place where the deceased was
shot and he took the blood from the
Chabutara of Goverdhan where the dead
body was lying. In the site map he has
shown the place of occurrence as "A". No
blood was found on that place. It is wrong
to say that investigation was not done
properly.

9.

PW-4
Dr.
Satish
Chandra
Srivastava has stated on oath that on
08.12.1982 he was posted as Medical
Officer in Sadar Hospital, Fatehpur and on
this day he did the post mortem of the
deceased Babu Singh. He stated that the
deceased died a day before; he was about
26 years old; rigor mortis was present; the
legs were swollen and the eyes were half
open. PW.4 found two scratches measuring
3⁄4 x 3⁄4 cm on the left side in front of the
chest and both were present at the distance
of 1⁄4 cm. He also found gun shot wound 3⁄4
x 3⁄4 x to the depth of the chest on the left
side and blackening was present; the
direction of pallet was from left to right.
PW.4 has further stated that he conducted
the internal examination of the dead body
and found first and second ribs on the left
side were fractured and torn; Pluria was
also torn; right and left lungs and heart
were also punctured and torn; collected
blood was found on the chest; half digested
food was found in the stomach; small
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
intestine was empty and large intestine was
full; no injury was found on the stomach; a
big pallet was found inside the chest, which
was sealed in an envelop and sent to S.P.
Fatehpur. He further stated on oath that the
deceased died of shock and bleeding due to
above mentioned injuries. He further stated
that the death of the deceased was possible
on 07.12.1982 at 2.00 pm due to fire arm
injury; scratches can also come from falling
on the ground. He next stated that looking
at the direction of the bullet injury, it
appears that the deceased was fired from
the left side; there should be a difference of
4-6 hours in the time of death.

10. The judgment of acquittal was
passed on the ground that it is alleged that
PW-1-Shiv Sharan Singh, real brother of
the
deceased
Babu
Singh
was
accompanying the deceased while coming
back from his field and when the deceased
fired upon by accused Ram Autar several
persons have also gathered on the spot but
no one including the PW-1-Shiv Sharan
Singh tried to stop the accused from
running away, therefore, he had acted
contrary to the natural reaction which
makes his presence doubtful as had he
being there he would have chased the
accused and would have gone to the house
of the accused and would have caught hold
of him. Presumption was raised that since
the informant side and his brother are the
owner of the agricultural field whereas the
accused belonging to labour class therefore,
it is not understandable that the deceased
Babu Singh slapped only the sister of the
accused, who was aged about 9-10 years
and why he has not slapped the mother of
the accused, therefore, on these very
ground the Trial Court has drawn the
presumption that it appear that the
informant was not present on the spot. It
was further recorded that the gram plants
were too small to be plucked and therefore,
the allegation of plucking gram plants does
not appear to be correct. By drawing
inference from the statement of PW-2Dashrath, who is also an eye witness that
when the accused Ram Autar was scolding
and was repeatedly asking the deceased
why he slapped his sister but he did not
reply and that he did not try to snatch
countrymade pistol from the accused hands
and at that point of time some other
witnesses, namely, Ram Raj, Layak Singh
and Goverdhan including some other
persons have gathered on the spot,
therefore, as he has not mentioned the
name of informant-PW-1- Shiv Sharan
Singh alongwith names of other persons,
who have seen the incident establishes that
PW-2-Dashrath has admitted that the
informant was not present on the spot.
Further inference from the statement of
PW-2 Dashrath was drawn that as the
deceased was wearing only underwear and
was not wearing any other cloth on his
body, therefore, there is a presumption of
his bad character as alleged, which could
be the motive of being fired upon,
otherwise he would have wearing shirt,
banyan or paijama etc. while he was going
to or coming from his field, moreso, when
he was in police and was a reputed person
of the village. As such a conclusion was
drawn by the trial court that the incident
has not taken place in the manner as
alleged. The place of incident was also
found to be doubtful on the ground that the
Investigating Officer did not collect any
blood from the spot and that blood was
found only on the Chabutara of Goverdhan
where the dead body was lying and it is
from there only the blood stained and plain
soil was collected. The Trial Court further
observed that the Investigating Officer has
not visited the gram field and has not
shown the same in the site plan and nothing
9 All. State of U.P. Vs. Ram Autar
1037
has been written about the aforesaid field in
the case diary. The Trial Court further
recorded that the Investigating Officer did
not meet the mother and sister of the
accused or any other family members of the
accused during investigation and made no
enquiry from them and that he did not find
any blood on the spot and has also not
recovered any empty cartridge on the spot. It
was further found that although allegation is
that the deceased was fired from the front
side, however, he had suffered firearm
injuries on the left side and the post mortem
report reflected that semi digested food was
present in the stomach which proves that he
must have eaten something about two hours
before he was fired upon. Therefore, the
Trial Court found that the informant and
deceased has gone out to visit their
agricultural field is not convincing, as they
usually visit their field only in the morning
hours and usually villagers take their lunch
by 10-11 am and relax thereafter, therefore,
prosecution story of informant and deceased
visiting agricultural field at about 12.00-1.00
in the noon, is not correct. The Trial Court
has further observed that there were no
special circumstances for which accused
could have murdered the deceased and the
reason of plucking gram plants is false. The
deceased could have treated the sister of the
accused softly and send her back to her
home. It was further observed that it appears
that when the informant and his family
members started suspecting about the
murder of the deceased, therefore, for this
reason the entire family of the accused
including the accused-Ram Autar escaped
from their house and for this reason the
Investigating Officer did not find them at
their home which indicates that the accused
was not present on the spot or he had left the
place and nobody has seen the incident. On
these grounds the trial court has passed the
judgment of acquittal.

11.

Challenging
the
impugned
judgment, Sri Ratan Singh, learned AGA
submits that there was cogent evidence to
convict the accused herein. He next submits
that PW-1-Shiv Sharan Singh who is the
informant and real brother of the deceased
and is eye witness of the incident, narrated
the entire incident with all clarity and
details. He further submitted that PW-2Dashrath is the independent witness near
whose house murder had taken place and
he has clearly spelled tout the reasons as to
how he was present on the spot. It is next
submitted that both the eye witnesses have
withstood their cross examination and
nothing adverse came out from their
testimonies creating any doubt about the
manner, time, place and spot of the murder
and that the accused Ram Autar had
committed cold blooded murder. By
drawing attention to the site plan, learned
A.G.A. has submitted that there is no
dispute about the spot where the murder
had taken place and in the site plan all
directions have been shown including the
directions from where the informant
deceased were coming, from where the eye
witnesses have seen the incident, the spot
where the dead body was lying. He has
further pointed out that in the site plan spot
''H' has been shown where the empty
cartridge
was
recovered.
He
further
submitted that merely because blood was
not found on the spot where the deceased
was fired upon would not be sufficient to
grant any benefit of doubt to the accused
herein. He further submitted that even the
Trial Court has recorded a finding that oral
as well as documentary evidence available
on records clearly establishes that the
incident had taken place at the spot, time
and date as alleged. He further argued that
PW-1-Shiv Sharan Singh is the real brother
of the deceased and his presence on the
spot is quite natural as they both were
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
returning from the field. He further
submitted that PW-2-Dashrath is the
independent eye witness and in his
statement he has clearly stated that PW-1Shiv Sharan Singh and his brotherdeceased-Babu
Singh
were
coming
together from their field. He submitted that
the post mortem report clearly support the
prosecution version. He next submitted that
the empty cartridge was recovered from the
spot and recovery memo of empty cartridge
is Ex.Ka.11, therefore, finding of the Trial
Court that no cartridge was found from the
record is contrary to record. He further
submitted that the bloodstained soil and
plain soil was collected from the spot
which was made Ex.Ka.10. He further
submitted that PW-4- Dr. Satish Chandra
Srivastava, who has conducted the post
mortem has proved the post mortem report,
had clearly stated and proved that a big size
pallet was found inside the body of the
deceased. He submitted that there was only
one entry wound and further the deceased
was immediately put on the Chabutara of
Goverdhan from where the blood stained
soil was collected, therefore, his blood was
not found in the passage (Rasta). It is
further submitted that no benefit of
defective investigation can be extended to
the accused in a case of direct evidence,
therefore, in such a case of direct evidence
absence of blood on the passage would not
go in favour of the accused person. Learned
AGA further submitted that the findings
given by the Trial Court to the effect that
why the informant and PW.2 did not chase
the
accused
is
absolutely
perverse
inasmuch
as
eye
witnesses
have
categorically stated that the accused Ram
Autar has re-loaded the country made pistol
and threatened the persons present on the
spot that he would kill them also. Learned
AGA further submitted that allegation of
bad character of the deceased is neither
here nor there as nothing was placed on
record to prove the same and this
presumption is wholly perverse. He further
submitted that the presumption that on such
a small thing the murder could not have
taken place is neither here nor there as in
the case of direct evidence motive is
irrelevant. He further pointed out that the
accused in his statement under Section 313
Cr.P.C. has mentioned at one place that he
was falsely implicated in the present case
due to ''enmity' and at an other place he has
stated that he was falsely implicated due to
''old enmity', however, he has not disclosed
on what was the ''enmity' or ''old enmity'.
Further submission of the learned AGA is
that there was a prompt FIR as the incident
had taken place at 2.00 pm and the FIR was
lodged at 3.00 pm. Submission, therefore,
is that the prosecution has proved his case
beyond any shadow of doubt and the
impugned judgment based purely on
presumption
is
highly
perverse
and
therefore, the same is liable to be reversed
and accused is liable to be convicted for the
offence under Section 302 IPC.

12. Per contra, Sri Pradeep Kumar,
learned counsel for the accused respondents
submitted that no blood was found at the
spot ''A' where the deceased was allegedly
fired upon by the accused. He further
submitted that PW-1 himself has stated that
the deceased was fired upon in the passage
but no blood was found therefrom and the
Investigating Officer has collected the
bloodstained and plain soil from the
Chabutara of Goverdhan from spot ''X' ,
therefore, the Trial Court has rightly
disbelieved the manner and the spot where
the crime was committed and rightly found
that the same was not committed by the
accused respondent-Ram Autar. He submits
that therefrom, it is clear that the memo of
recovery is false and place of occurrence is
9 All. State of U.P. Vs. Ram Autar
1039
highly doubtful. It is further submitted that
PW-3, Station House Officer had stated in
his statement that he had recovered one
empty cartridge from the spot and he has
also stated that thereafter he had recovered
illegal cartridges and empty cartridges from
the house of the accused, this clearly shows
that the recovery memo of empty cartridges
from the spot is not worth believed. He
further submitted that as per alleged eye
witness account the shot was fired from the
front side but as per the post mortem report
the fire has hit the deceased on the left side,
therefore, post mortem report does not
support
the
prosecution
version
and
therefore, eye witness account is false. He
further submitted that in the statement
under Section 313 Cr.P.C. the accused has
clearly stated that he was falsely implicated
due to enmity. He submitted that as the
deceased was wearing underwear only,
therefore, presumption of his bad character
has been correctly raised by the Trial Court
to hold that murder may have been
committed by someone and not the
accused.

13.

We
have
considered
the
submissions and have perused the record.

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

15. 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.
For ready reference, paragraphs 10, 11 and
12 are quoted as under:

"10. In the case of Babu vs. State
of Kerala (2010) 9 SCC 189 : (2010) 3
SCC (Cri) 1179, the Hon'ble Apex Court
has observed that while dealing with a
judgment of acquittal, the appellate court
has to consider the entire evidence on
record, so as to arrive at a finding as to
whether the views of the trial Court were
perverse or otherwise unsustainable. The
appellate court is entitled to consider
whether in arriving at a finding of fact, the
trial Court had failed to take into
consideration admissible evidence and/or
had taken into consideration the evidence
brought on record contrary to law.
Paragraphs 12 to 19 of the aforesaid
judgment are quoted as under:-

"12. This court time and again
has laid down the guidelines for the High
Court to interfere with the judgment and
order of acquittal passed by the Trial
Court. The appellate court should not
ordinarily set aside a judgment of acquittal
in a case where two views are possible,
though the view of the appellate court may
be more, the probable one. While dealing
with a judgment of acquittal, the appellate
court has to consider the entire evidence on
record, so as to arrive at a finding as to
whether the views of the trial Court were
perverse or otherwise unsustainable. The
appellate court is entitled to consider
whether in arriving at a finding of fact, the
trial Court had failed to take into
consideration admissible evidence and/or
had taken into consideration the evidence
brought on record contrary to law.
Similarly, wrong placing of burden of proof
may also be a subject matter of scrutiny by
the appellate court. (Vide Balak Ram v.
State of U.P. AIR 1974 SC 2165; Shambhoo
Missir & Anr. v. State of Bihar AIR 1991 SC
315; Shailendra Pratap & Anr. v. State of
U.P. AIR 2003 SC 1104; Narendra Singh v.
State of M.P. (2004) 10 SCC 699; Budh
Singh & Ors. v. State of U.P. AIR 2006 SC
2500; State of U.P. v. Ramveer Singh AIR
2007 SC 3075; S. Rama Krishna v. S. Rami
Reddy (D) by his LRs. & Ors. AIR 2008 SC
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
2066; Arulvelu & Anr. Vs. State (2009) 10
SCC 206; Perla Somasekhara Reddy &
Ors. v. State of A.P. (2009) 16 SCC 98; and
Ram Singh alias Chhaju v. State of
Himachal Pradesh (2010) 2 SCC 445).

13. In Sheo Swarup and Ors.
King Emperor AIR 1934 PC 227, the Privy
Council observed as under:

"...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...."

14. The aforesaid principle of law
has consistently been followed by this
Court. (See: Tulsiram Kanu v. The State
AIR 1954 SC 1; Balbir Singh v. State of
Punjab AIR 1957 SC 216; M.G. Agarwal v.
State of Maharashtra AIR 1963 SC 200;
Khedu Mohton & Ors. v. State of Bihar AIR
1970 SC 66; Sambasivan and Ors. State of
Kerala (1998) 5 SCC 412; Bhagwan Singh
and Ors. v. State of M.P. (2002) 4 SCC 85;
and State of Goa v. Sanjay Thakran and
Anr. (2007) 3 SCC 755).

15. In Chandrappa and Ors. v.
State of Karnataka (2007) 4 SCC 415, this
Court reiterated the legal position as
under:

"(1) An appellate court has full
power
to
review,
re-appreciate
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."

16. In Ghurey Lal v. State of
Uttar Pradesh (2008) 10 SCC 450, this
Court re-iterated the said view, observing
that the appellate court in dealing with the
cases in which the trial courts have
acquitted the accused, should bear in mind
that the trial court's acquittal bolsters the
presumption that he is innocent. The
appellate court must give due weight and
consideration to the decision of the trial
court as the trial court had the distinct
9 All. State of U.P. Vs. Ram Autar
1041
advantage of watching the demeanour of
the witnesses, and was in a better position
to evaluate the credibility of the witnesses.

17. In State of Rajasthan v.
Naresh @ Ram Naresh (2009) 9 SCC 368,
the Court again examined the earlier
judgments of this Court and laid down that
an "order of acquittal should not be lightly
interfered with even if the court believes
that there is some evidence pointing out the
finger towards the accused."

18. In State of Uttar Pradesh v.
Banne alias Baijnath & Ors. (2009) 4 SCC
271, this Court gave certain illustrative
circumstances in which the Court would be
justified in interfering with a judgment of
acquittal
by
the
High
Court.
The
circumstances includes:

i) The High Court's decision is
based on totally erroneous view of law by
ignoring the settled legal position;

ii) The High Court's conclusions
are contrary to evidence and documents on
record;

iii) The entire approach of the
High Court in dealing with the evidence
was patently illegal leading to grave
miscarriage of justice;

iv) The High Court's judgment is
manifestly unjust and unreasonable based
on erroneous law and facts on the record of
the case;

v) This Court must always give
proper weight and consideration to the
findings of the High Court;

vi) This Court would be extremely
reluctant in interfering with a case when
both the Sessions Court and the High Court
have recorded an order of acquittal.

A
similar
view
has
been
reiterated by this Court in Dhanapal v.
State by Public Prosecutor, Madras (2009)
10 SCC 401.

19. Thus, the law on the issue can
be summarised to the effect that in
exceptional
cases
where
there
are
compelling
circumstances,
and
the
judgment under appeal is found to be
perverse, the appellate court can interfere
with the order of acquittal. The appellate
court should bear in mind the presumption
of innocence of the accused and further
that the trial Court's acquittal bolsters the
presumption of his innocence. Interference
in a routine manner where the other view is
possible should be avoided, unless there
are good reasons for interference."

11. Hon'ble Apex Court in the
case of Ramesh Babulal Doshi vs. State of
Gujarat (1996) 9 SCC 225 : 1996 SCC
(Cri) 972 has observed that while deciding
appeal against acquittal, the High Court
has to first record its conclusion on the
question whether the approach of the trial
court dealing with the evidence was
patently illegal or conclusion arrived by it
is wholly untenable which alone will justify
interference in an order of acquittal.

12. The aforesaid judgments were
taken note of with approval by Supreme
Court in the case of Anwar Ali and another
vs. State of Himachal Pradesh (2020) 10
SCC 166, Nagabhushan vs. State of
Karnataka (2021) 5 SCC 222, and Babu
(supra) in Achhar Singh vs. State of
Himachal Pradesh (2021) 5 SCC 543."

 (Emphasis supplied)

16. In State of U.P. Vs. Phool Singh
and Others, 2022 (4) ADJ 397 (DB) also
this Court has considered the law on appeal
against acquittal, para 43, 44, 45, 46, 47
and 48 whereof are quoted as under:

"43. In State of U.P. v. M.K.
Anthony, (1985) 1 SCC 505, the Hon'ble
Supreme Court has held that: -

"10.
While
appreciating
the
evidence of a witness, the approach must be
whether the evidence of the witness read as a
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
whole appears to have a ring of truth. Once
that impression is formed, it is undoubtedly
necessary for the court to scrutinise the
evidence more particularly keeping in view
the deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole and
evaluate them to find out whether it is against
the general tenor of the evidence given by the
witness and whether the earlier evaluation of
the evidence is shaken as to render it
unworthy of belief.