# State of U.P v. S. Vijai Singh

- **Citation:** (2025) 12 ILRA 480
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-11
- **Case number:** Government Appeal No. 2576 of 1985
- **Bench:** Salil Kumar Rai, Vinai Kumar Dwivedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-s-vijai-singh-52939
- **Pages:** 10

## Text

480 INDIAN LAW REPORTS ALLAHABAD SERIES

17. The power to proceed under
Section 319 has also been held to be
exerciseable in respect of persons though
named in the FIR but not charge-sheeted
provided the court is satisfied that the
conditions provided under the section stand
fulfilled.

18. Section 319 (1) of the Code
envisages that where, in the course of any
inquiry into, or trial of, an offence, it
appears from the evidence that any person
not being the accused has committed any
offence for which such person could be
tried together with the accused, the Court
may proceed against such person for the
offence
which
he
appears
to
have
committed.

19. The word evidence used under
Section 319(1) of the Code has been held to
be understood to refer to the evidence
recorded during trial, and also any material
that has been received by the court after
cognizance is taken and before the trial
commences, to be utilized for corroboration
and to support the evidence recorded by the
court.

20. The evidence recorded by the court
during trial is thus to be accorded primacy
and for the purpose of exercise of power
under Section 319 of the Code would have
to be given weight over the material which
was collected during the course of
investigation. The contention which has
been sought to be raised placing reliance
upon
the
material
collected
by
the
investigating officer during the course of
investigation, for the purpose of exercise of
powers under Section 319 of the Code, thus
cannot be accepted.

21. The power under Section 319 of
the Code to summon even those persons
who are not named in the charge-sheet to
appear and face trial, being unquestionable
and the object of the provision being not to
allow a person who deserves to be tried to
go scot-free by being not arraigned in the
trial inspite of possibility of his complicity
which can be gathered from the evidence
during the course of trial, the order passed
under Section 319 of the Code summoning
the revisionists does not contain any
material error so as to warrant inference.

22. Subject to aforesaid observations
the instant criminal revision is, accordingly,
dismissed.
----------
(2025) 12 ILRA 480
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.12.2025

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE VINAI KUMAR DWIVEDI, J.

Government Appeal No. 2576 of 1985

State of U.P. ...Appellant
Versus
S. Vijai Singh ...Respondents

Issue for Consideration
Matter
pertains
to
consideration
of
a
Government Appeal under S. 378 Cr.P.C.
against
the
judgment
and
order
dated
22.05.1985 whereby the accused-respondents
were acquitted of charges under Ss. 147, 148,
302 read with S. 149 IPC, and whether the said
acquittal suffered from perversity or illegality
warranting interference by the appellate court.
(Paras 1, 6, 28-29)

Headnotes
Indian Penal Code, 1860 - Ss. 147, 148,
302 r.w. S. 149 IPC - Criminal Trial -
Acquittal
- Interference in Appeal
-
Appellate court will not interfere unless
findings are perverse or illegal.
12 All. State of U.P. Vs. S. Vijai Singh
481
Evidence - Appreciation - Eye-witnesses -
Witnesses found to have made material
contradictions,
embellishments
and
improvements vis-à-vis statements under
S. 161 Cr.P.C. - Evidence not inspiring
confidence.
Evidence - Interested / Planted Witnesses
- Prosecution witnesses projected as eyewitnesses but presence at scene doubtful
and conduct unnatural.
Motive - Enmity - Enmity a double-edged
weapon;
can
be
ground
for
false
implication.
Proof - Suspicion - Suspicion, however
strong, cannot take the place of proof.
(Paras 6, 12-22, 28)
Held: Prosecution witnesses Pancham (PW-1),
Nalin Kumar (PW-2) and Pushpa (PW-3) were
not eye-witnesses to the incident; their evidence
suffered from major and material contradictions
and
improvements
and
did
not
inspire
confidence - Trial Court rightly disbelieved the
prosecution
version
as
the
alleged
eyewitnesses remained mute spectators, made no
attempt to save the deceased, nor raised alarm
despite presence of nearby village and passersby - The alleged motive based on enmity and
rivalry was insufficient; prosecution appeared to
have falsely implicated the accused on suspicion
and doubt - Though homicidal death stood
proved by medical evidence, there was no
direct, circumstantial or incriminating evidence
connecting the accused-respondents with the
crime - No perversity or illegality was committed
by the trial Court; acquittal was based on proper
appreciation of evidence - Government Appeal
dismissed, confirming the judgment and order
of acquittal dated 22.05.1985. (Paras 12 - 29)

Case Law Cited
Sushil and Others v. State of U.P., 1995 SCC
(Cri.) 388; State of Punjab v. Sucha Singh,
(2003) 3 SCC 153; State of Odisha v. Banabihari
Mohapatra and Another, SLP (Crl.) No. 1156 of
2021; Sujit Biswas v. State of Assam, AIR 2013
SC 3817.

List of Acts
Indian Penal Code, 1860; Code of Criminal
Procedure, 1973

List of Keywords
Government
Appeal;
acquittal;
suspicion,
however strong cannot take place of proof;
enmity
is
a
double-edged
weapon;
improvements; material contradictions; eyewitness.

Case Arising From
APPELLATE
JURISDICTION:
Judgment
and
order dated 22.05.1985 passed by the IVth
Additional
District
and
Sessions
Judge,
Gorakhpur in Sessions Trial No. 64 of 1984.

Appearances for Parties
Advs. for the Appellant:
Learned A.G.A. for the State of U.P.
Advs. for the Respondents:
Learned counsel for the accused-respondents

(Delivered by Hon'ble Salil Kumar Rai, J.
& Hon'ble Vinai Kumar Dwivedi, J.)

1. This Government Appeal No. 2576
of 1985 under Section 378 Cr.P.C. has been
filed by the State against the judgment and
order dated 22.05.1985 passed by learned
IVth Additional District and Sessions
Judge, Gorakhpur in Session Trial No. 64
of 1984, whereby the accused-respondents,
namely, Shanti Vijay Singh, Shatru Vijay
Singh, Chandra Vijay Singh, Rama Singh,
Hazari Bania, Ram Samujh, Ramapati
Singh, Shreeram Yadav, Murlidhar Shukla
and Paras Yadav have been acquitted of the
charge under Sections 147, 302 read with
Section 149 IPC. The accused-respondents
Ram Briksh Singh, Sesh Vijay Singh and
Rajeshwari Lal have been acquitted of the
charge under Sections 148 and 302 IPC.

2. As per prosecution version, facts of
the case are that on 12.08.1982, which was
Sri Krishna Janmastmi day, deceased
Girijashankar Lal was going to Lakshmipur
market on a cycle alongwith his younger
daughter Km. Pushpa, who was seated in
his front on the frame of the cycle.
Complainant Nalin Kumar was following
482 INDIAN LAW REPORTS ALLAHABAD SERIES
him and was at a distance of 10-15 paces.
At
about
10.30
A.M.,
when
Sri
Girijashankar Lal reached on the Kacha
road near the grove of Sri Yunus Khan,
accused Ram Briksh Singh and Shesh Vijai
Singh armed with country-made pistol,
accused Rajeshwari Lal armed with knife
and rest of the accused carrying lathies
emerged
from
the
said
grove
and
surrounded Sri Girijashankar Lal. He
stopped the cycle and Km. Pushpa
immediately got down from the cycle with
a push. Thereafter, Ram Briksh Singh and
Shesh Vijai Singh fired with their countrymade pistols, consequently he sustained
injuries and tumbled down. Thereafter,
accused persons lifted and took him near
the ditch lying to the east of the road and
threw him down there. Whereafter, accused
Rajeshwari Lal sawed his neck with his
knife. Rest of the accused had been holding
Sri Girijashankar Lal and when Sri
Girijashankar Lal died, the accused persons
threw his dead body in the water in the
nearby ditch. When accused Rajeshwari
Lal
was
cutting
the
neck
of
Sri
Girijashankar
Lal,
Km.
Pushpa
was
entreating the accused and begging for the
life of her father, but accused Shanti Vijai
Singh threatened and pushed her back.
Pancham and Ayodhya, who were coming
from the road, saw this occurrence, when
the accused noticed their presence on the
spot, they threatened and chased them and
they fled away raising hue and cry. The
accused then ran away. Nalin Kumar,
Pancham and Ayodhya then came back to
the spot and in the meantime some other
villagers also reached there. Complainant
Nalin Kumar asked them to supervise the
dead body. He started for the police station
on his cycle. After covering a distance of 56 Km., when he reached in village
Mohnapur Dhala, he purchased some
papers and prepared a report giving details
of this occurrence, took it to Police Station
Purandarpur and lodged the same there at
12.15 P.M.

3. Thereafter, on the information of
complainant Nalin Kumar, a case was
registered against the named accused
persons under Sections 147, 148, 149, 302
IPC. Investigation of the case was handed
over to S.I. Ravindranath Pandey (PW-5).
He started investigation of the case,
inspected the place of incident, prepared
the panchayatnama (inquest report) of the
deceased Girijashankar Lal, sent his body
for autopsy and also prepared the site plan.
After completing all the formalities of the
investigation, he submitted charge-sheet
against the accused persons in the court of
concerned Magistrate. Thereafter, the case
was committed to the court of Sessions for
trial. The accused Shanti Vijay Singh,
Shatru Vijay Singh, Chandra Vijay Singh,
Rama Singh, Hazari Bania, Ram Samujh,
Ramapati
Singh,
Shreeram
Yadav,
Murlidhar Shukla and Paras Yadav were
charged under Sections 147, 302 read with
Section 149 IPC and accused Ram Briksh
Singh, Shesh Vijay Singh and Rajeshwari
Lal under Sections 148, 302 IPC. The
accused pleaded not guilty to the charges
and claimed trial.

4. In the trial Court, the prosecution
produced Pancham (PW-1), informant
Nalin Kumar (PW-2), Pushpa (daughter of
Girijashankar
Lal)
(PW-3),
Constable
Gauri Shankar Singh (PW-4), S.I. Ravindra
Nath Pandey (PW-5) and Dr. G.N. Tiwari
(PW-6). The prosecution also adduced
documentary evidence.

5. Thereafter, the statements of all
accused/respondents were recorded under
Section 313 Cr.P.C. All accused pleaded
their innocence and they stated that they
12 All. State of U.P. Vs. S. Vijai Singh
483
were falsely implicated in this case due to
village enmity and rivalry because of the
elections of Gram Pradhan of village
Ghurchiha. The defence adduced Murlidhar
Mishra as DW-1 in their support and also
filed documentary evidence.

6. The trial Court, after appreciating
and evaluating the prosecution evidence, as
available on record, found that prosecution
witnesses Pancham (PW-1), informant
Nalin Kumar (PW-2) and Pushpa (PW-3)
were not eye-witnesses to the incident.
Since the prosecution was unable to prove
its case beyond reasonable doubt, the trial
Court
acquitted
all
accused
persons,
namely, Shanti Vijay Singh, Shesh Vijay
Singh, Shatru Vijay Singh, Chandra Vijay
Singh, Rajeshwari Lal, Ram Singh, Hazari
Bania, Ram Samujh, Ramapati Singh,
Rambriksh, Shreeram Yadav, Murlidhar
Shukla and Paras Yadav.

7. In light of the office report dated
24.07.2025, which is based on the letter
dated 19.03.2024 of the Chief Judicial
Magistrate, Gorakhpur, the appeal is
declared to have abated so far as it
concerns accused/respondent nos. 1, 5, 7, 8,
10, 11, 12 and 13, namely, Shanti Vijay
Singh, Rajeshwari Lal, Hazari Bania, Ram
Samujh, Rambriksh, Shreeram Yadav,
Murlidhar Shukla and Paras Yadav. The
appeal survives for adjudication only so far
as it concerns accused/respondent nos. 2, 3,
4, 6 and 9, namely, Shesh Vijay Singh,
Shatru Vijay Singh, Chandra Vijay Singh,
Ram Singh and Rampati Singh.

8. Learned A.G.A. for the State
submitted that the date, time and place of
the murder were fully established and the
trial Court was not justified in recording a
finding contrary to the evidence on record.
Pancham
(PW-1)
is
an
independent
witness, while Nalin Kumar (PW-2) and
Pushpa (PW-3) are members of the
deceased's family, therefore, all witnesses
are quite natural in this case. It is also
submitted that, despite their tender age,
Nalin Kumar (PW-2) and Pushpa (PW-3)
withstood the test of cross-examination.
The minor inconsistencies pointed out by
the learned trial Court were not sufficient to
discard their testimony. In view of the
above arguments, it is again submitted that,
taking any view of the matter and
considering
the
total
facts
and
circumstances of the case and the material
available on record, the order of acquittal is
not justified in the eyes of law. Hence, the
Government Appeal deserves to be allowed
and the judgment and order of acquittal
dated 22.05.1985 passed by the trial Court
is liable to be set aside.

9. Per contra, learned counsel for the
accused-respondents submitted that the
judgment and order of acquittal dated
22.05.1985 passed by the learned trial
Court is fully justified and based on
appreciation of evidence and law. It is also
submitted that it was a blind murder of the
deceased
Girijashankar
Lal.
The
prosecution has adduced Pancham (PW-1),
Nalin Kumar (PW-2) and Pushpa (PW-3)
as eye-witnesses of the incident, but these
so-called eye-witnesses could not withstand
the cross- examination. The trial Court
found that Pancham (PW-1), Nalin Kumar
(PW-2) and Pushpa (PW-3) are only
planted and projected eye-witnesses. All
the three witnesses of the so-called incident
are not the eye-witnesses of the incident.
The trial Court, in proper and legal manner,
appreciated and evaluated the evidence
adduced by the prosecution and found that
Pancham (PW-1), Nalin Kumar (PW-2)
and Pushpa (PW-3) were not eye-witnesses
of the incident. The order of acquittal
484 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by the trial Court is fully supported
by evidence and reason. No mistake about
appreciation of evidence and application of
law has been committed by the trial Court.
Thus, learned counsel for the accusedrespondents has submitted that the instant
Government Appeal filed by the State has
no merit and is liable to be rejected.

10. In view of the above arguments of
learned A.G.A. for the State and learned
counsel for the accused-respondents, we
have gone through all the evidence
available on record. Apart from this, we
have also gone through the judgment and
order of acquittal dated 22.05.1985 passed
by the trial Court.

11. From perusal of the evidence
available on record, it is evident that, as per
the prosecution story, the incident occurred
on 12.08.1982 and it is said that Pancham
(PW-1), Nalin Kumar (PW-2) and Pushpa
(PW-3)
(daughter
of
the
deceased
Girijashankar Lal) witnessed the incident
with their own eyes.

12. From perusal of the evidence given
by prosecution witness Pancham (PW-1),
we find that, in his examination-in-chief,
this witness supported the prosecution story
as narrated in the first information report,
which was lodged by Nalin Kumar (PW-2),
but
when
we
examined
his
cross-examination, we find that he could
not stand in his cross-examination. At the
same point of fact, this witness has stated a
different version in his evidence.

13. It is also evident that this witness
has
given
evidence
contrary
to his
statement recorded by the Investigating
Officer under Section 161 Cr.P.C. In other
words, Pancham (PW-1) has given a totally
different and improved version in the Court
than the statement recorded under Section
161 Cr.P.C. It is also evident from the
statement of this witness that when
confronted with his earlier statement, the
witness has stated that "if darogaji has not
written this fact in my statement, I cannot
give any reason for it." Due to the
inconsistencies, embellishments, material
and major improvements, the trial Court
did not find this witness reliable. We have
also perused the evidence of this witness
and find that evidence of this witness does
not inspire confidence and is, therefore,
considered untrustworthy. The trial Court
also found that this witness is not reliable
because of the material contradictions and
improvements in his statements.

14. Nalin Kumar (PW-2) is the
informant of this case. As per the
prosecution story, this witness was also
going with the deceased Girijashankar Lal
on the date of the incident, i.e., 12.08.1982.
In his examination-in-chief, this witness
stated that he was going behind his
maternal uncle (mausa), the deceased
Girijashankar Lal, on another bicycle. We
find that in his examination-in-chief, this
witness has given his evidence as per the
version of the F.I.R., which was written by
him. In other words, what was stated by
this witness in the F.I.R., all those facts and
statements were reiterated and stated in his
examination-in-chief by this witness.

15. PW-2 Nalin Kumar has got the
F.I.R. of this case registered at police
station Purandarpur and thereafter, the
investigation of the case was started by the
police. It is stated in his evidence by the
informant Nalin Kumar (PW-2) that he was
residing with his maternal uncle (mausa),
the deceased Girijashankar Lal, in village
Ghurchiya for his education. It was also
stated that his uncle was a librarian at
12 All. State of U.P. Vs. S. Vijai Singh
485
Sardar Patel Inter College, Lakshmipur,
and he himself was a student there. When
we
have
gone
through
his
cross-examination, we find that this witness
stated this statement, which was not given
by him in his statement under Section 161
Cr.P.C. From this, it is amply clear that this
witness stated in his evidence that this
statement was not given by him to the
Investigating Officer. Meaning thereby,
this witness totally improved his evidence
in the Court from his statement under
Section 161 Cr.P.C. given to the police.
The major and material contradictions in
his evidence were found by the trial Court.
We also find that in the evidence of this
witness, major and material contradictions
and improvements have been made by this
witness at the time of recording his
evidence
in
the
trial
Court.
The
contradictions and improvements that are
committed by this witness are so material
and grievous that in such a situation, as per
the law of evidence, the statement of this
witness as given in the trial Court could not
be believed to be true and reliable. From
perusal of the evidence of this witness, we
find that evidence of this witness does not
inspire any confidence. Due to this reason,
the trial Court not relied and believed the
evidence of this witness. The trial Court
found that this witness was also not present
at the place of occurrence on 12.08.1982.
The trial Court has also given this finding
that "if he actually lives in the village and
received education in the said intermediate
college, the prosecution could file his
admission
form,
mark-sheet,
transfer
certificate, scholar register showing the
name of his local guardian, which would
have proved that he was living in the
village.
His
non-appearing
in
the
supplementary examination and passing of
the Intermediate examination in 1983 as a
private candidate go to show that he never
lived with the deceased and was never a
student of that college." Thus, from the
appreciation of the evidence of informant
Nalin Kumar (PW-2), the trial Court found
that this witness was not living with the
deceased Girijashankar Lal at village
Ghurchiya at the time of the incident. The
trial Court also found that this witness was
not an eye-witness of the incident. The
prosecution,
after
due
deliberation,
produced this witness as both informant
and eye-witness. Reasoning given by the
trial Court is fully supported by the
evidence in this respect that this witness is
not an eye-witness. Learned trial Court also
found that the so-called conduct of this
witness is very much suspicious and
unnatural to human behaviour. Thus, we
are also of the considered opinion that
Nalin Kumar (PW-2) is not an eye-witness
of the incident and he was not present at the
scene of occurrence when the incident
occurred on 12.08.1982 as alleged by the
prosecution.

16. Pushpa, who is daughter of the
deceased Girijashankar Lal, is PW-3 in this
case. It is stated by the prosecution that on
the
date
of
incident,
the
deceased
Girijashankar Lal was going to Laxmipur
market for purchasing Pooja samagri for
Sri Krishna Janmashtami festival. PW-3
Pushpa was also accompanying her father
Girijashankar Lal. It is stated that Pushpa
(PW-3) was sitting in front of the bicycle of
his father deceased Girijashankar Lal. As
per the prosecution story and the statement
of this witness, incident took place in her
presence. This witness in her examinationin-chief
fully
supported
the
first
information report and also corroborated
the evidence of Pancham (PW-1) and Nalin
Kumar (PW-2). We find that three
prosecution witnesses, such as, Pancham
(PW-1), Nalin Kumar (PW-2) and Pushpa
486 INDIAN LAW REPORTS ALLAHABAD SERIES
(PW-3) stated the same way in their
examination-in-chief and supported the
prosecution case but this witness also could
not stand creditworthy and reliable in her
cross-examination.
During
her
crossexamination, defence cross-examined this
witness and she has also conceded that "if
darogaji had not written this fact in my
statement under Section 161 Cr.P.C., then I
cannot give reason for it." We found that
this witness also travelled behind her
statement given to the Investigating Officer
under Section 161 Cr.P.C. and in her
examination-in-chief, she narrated totally
different and improved statement. From
this, it becomes amply clear that this
witness during recording her statement
totally improved and changed her version
in the Court. We also found that major and
material contradictions that go to the root
of
the
prosecution
story,
has
been
committed by this witness in her statement.
From perusal of the evidence of this
witness Pushpa (PW-3), it is amply clear
that this witness was also not an eyewitness
of
the
occurrence
dated
12.08.1982. This witness was not going
with her father deceased Girijashankar Lal
for purchasing Pooja samagri and her
salwar-suit. Learned trial Court has given
lengthy and reasonable discussion and
rightly appreciated the evidence of this
witness and has found that this witness was
projected to strengthen the prosecution
story. The trial Court in right perspective
and in legal manner disbelieved the
veracity of this witness. We found no
illegality or perversity in appreciating the
evidence of this witness by the trial Court.

17. From the evidence available on the
record, it appears that prosecution tried to
project Pancham (PW-1), Nalin Kumar
(PW-2), Pushpa (PW-3) as eye-witnesses
of the incident. Pancham (PW-1) in his
evidence has stated that he himself had
seen the occurrence committed by the
accused and Nalin Kumar, Pushpa and
Ayodhya had also seen the commission of
the occurrence and they were also present
at the scene of the occurrence. In the same
way, Nalin Kumar (PW-2) has also stated
that Pancham (PW-1), Pushpa (PW-3) and
Ayodhya had also seen the commission of
the occurrence by the accused persons.
Nalin Kumar (PW-2) has also stated that
apart
from
him,
Pancham,
Pushpa,
Ayodhya are also eye-witnesses of the
incident and they were also present at the
scene of the crime.

18. In the same way, Pushpa (PW-3)
has also stated in her evidence that, apart
from
her,
Pancham (PW-1),
Nalin Kumar (PW-2) and Ayodhya were
also present at the scene of the crime and
they had seen commission of the crime
with their own eyes but the trial Court, after
evaluating and appreciating the evidence of
all three prosecution witnesses, found that
all the above three prosecution witnesses
were not present at the scene of the crime.
Their presence at the place of occurrence
was highly doubtful and suspicious. We
have also gone through the evidence of all
three prosecution witnesses and we find
that the prosecution tried to plant and
project Pancham, Nalin Kumar and Pushpa
as eye-witnesses of the incident. However,
the prosecution miserably failed in its
attempt to prove its case beyond reasonable
doubt.

19. We found that as per prosecution
story, Pancham (PW-1), Nalin Kumar (PW2) and Pushpa (PW-3) and Ayodhya were
present at the scene of the occurrence when
accused-respondents were committing the
crime but we are surprised to see that four
persons from the deceased' side were
12 All. State of U.P. Vs. S. Vijai Singh
487
present at the place of occurrence at a
distance of 10-12 pace but none of them
tried to save the life or make a hue and cry
against the accused persons.

20. It is also clear from the evidence
that from the scene of crime, village
Rudrapur was situated about 100-150 paces
but prosecution witness Pancham (PW-1),
Nalin Kumar (PW-2) and Pushpa (PW-3)
only as per the prosecution story were
present at the spot, but they all were stood
as a moot spectator to the commission of
crime. None of the prosecution witnesses
made any attempt to save the life of
deceased Girijashankar Lal and also all the
three prosecution witnesses not tried to get
help from any other villagers/persons.
Although village Rudrapur was near at a
distance of about 100-150 paces. Time of
commission of the occurrence was 10:30
A.M. and at that time, pathway may be full
of passers-by. Apart from the prosecution
witnesses, many other people may come
and go from the road where incident took
place. No single injury of abrasion or firearm injury of pellet has been received by
the
prosecution
witnesses,
such
as,
Pancham (PW-1), Nalin Kumar (PW-2)
and Pushpa (PW-3).

21. In view of the above facts, it is
clearly evident that prosecution purposely
projected Pancham (PW-1), Nalin Kumar
(PW-2), Pushpa (PW-3) as eye-witnesses
of the incident, but in reality Pancham
(PW-1), Nalin Kumar (PW-2) and Pushpa
(PW-3) are not the eye-witnesses of the
incident and they were not present at the
place of occurrence.

22. On the point of motive, trial Court
in respect of enmities between some of the
accused and deceased Girijashankar Lal on
one hand, and between accused Shanti
Vijay Singh and deceased Girijashankar
Lal on the other hand are concerned, trial
Court in para 22 of the judgement has fully
discussed the motive about commission of
the crime. As per the prosecution story, the
motive for commission of the crime was
enmity between some of the accused and
Girijashankar
Lal,
secondly
between
accused
Shanti
Vijay
Singh
and
Girijashankar
Lal,
who
were
rival
candidates in the elections of Pradhan and
thirdly Shanti Vijay Singh and others, who
are the erstwhile Zamindars, who used to
ill-treat the poor villagers and Girijashankar
Lal used to provide succour to the villagers.
The trial Court fully discussed the so-called
above three kinds of enmities between the
deceased Girijashankar Lal and accused
persons and found that only on the ground
of
enmity,
accused-respondents
were
falsely implicated in this case. We have
also perused the evidence in this regard and
also finding given by the trial Court on the
point, then we find that prosecution only on
the ground of enmities and rivalry between
the
deceased
Girijashankar
Lal
and
accused-respondents, has falsely implicated
the accused-respondents in this case.

23. Hon'ble Supreme Court in the case
of Sushil And Others v. State of U.P.,
1995 SSC (Cri.) 388 and in the case of
State of Punjab v. Sucha Singh, (2003) 3
SCC 153, has held that "enmity is a double
edged weapon which cut both ways. It may
constitute motive for the commission of the
crime and at the same time it may also
provide a motive for false implication."
Therefore, only on the basis of enmity, the
accused-respondents cannot be connected
with the crime and held guilty for the
crime. For holding guilty any man for the
commission of any crime, full proof
evidence either circumstantial or direct or
last seen together must be present so
488 INDIAN LAW REPORTS ALLAHABAD SERIES
cogently that accused persons could be
connected with the crime on the basis of
that evidence. Thus, it appears and evident
from the evidence that prosecution on the
ground of enmities and rivalry falsely
implicated the accused-respondents in this
case for commission of the crime.

24. We also found that due to socalled enmity and rivalry between the
deceased Girijashankar Lal and accusedrespondents, prosecution falsely implicated
accused/respondents
in
this
case.
Prosecution due to so-called enmity and
rivalry only on the ground of suspicion and
doubt has falsely implicated the accusedrespondents in this case but suspicion and
doubt, however, so strong cannot take place
of proof or evidence. For holding any
person guilty for any crime, strong
evidence beyond reasonable doubt must be
adduced by the prosecution.

25. Hon'ble Supreme Court in the case
of State of Odisha v. Banabihari
Mohapatra And Another, Special Leave
Petition (Criminal) No. 1156 of 2021;
decided on 12.02.2021 has held that "it is
well settled by a plethora of judicial
pronouncement of this Court that suspicion,
however strong cannot take place of proof.
An accused is presumed to be innocent
unless proved guilty beyond reasonable
doubt."

26. This proposition had also been
asserted by the Hon'ble Supreme Court in
the case of Sujit Biswas v. State of
Assam; reported in AIR 2013 SC 3817.
Thus, we find that due to so-called enmities
and rivalry, accused-respondents were
implicated in this case on the ground of
suspicion and doubt without any cogent
and reliable evidence against them.

27. From the postmortem report of
deceased Girijashankar Lal, Ext.Ka-15,
prepared by medical witness Dr. G.N.
Tiwari (PW-6), total six injuries were
found on his body. From perusal of the
postmortem report, it is clear that the
deceased Girijashankar Lal was murdered
by gunshot injury and also by cutting his
respiratory system by sharp-edged weapon
but there is no direct evidence against the
accused-respondents and there is also no
indirect evidence or incriminating material
from which accused-respondents can be
connected with the crime. Thus, we find
that so-called eye-witnesses as projected by
the prosecution, i.e., Pancham (PW-1),
Nalin Kumar (PW-2), Pushpa (PW-3) were
not an eye-witnesses of the incident.
Prosecution
could
not
adduce
any
circumstantial
evidence
and
also
prosecution
could
not
produce
any
incriminating material against the accused
persons by which accused-respondents
could be held guilty for commission of the
crime.

28. In light of the above observations
and discussions of the evidence, we find
that no perversity or illegality was
committed by the trial Court regarding the
order of acquittal in respect of the accusedrespondents. We are also of the considered
view that acquittal order passed by the trial
Court is fully based on evidence on the
record and supported by lengthy reasoning,
therefore, in view of the above, we find no
force in the arguments of learned A.G.A. in
this respect, hence we find the Government
Appeal is liable to be rejected.

29. The Government Appeal is,
accordingly, dismissed confirming the
judgment and order dated 22.05.1985
passed by learned trial Court.
12 All. Vinay Mohan Vs. Smt. Nidhi Singh & Anr.
489

30. Office to send copy of this
judgment to the trial Court. The trial Court
records be transmitted.
----------
(2025) 12 ILRA 489
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.12.2025

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE PRASHANT KUMAR, J.

Special Appeal Defective No. 387 of 2025

Vinay Mohan ...Appellant
Versus
Smt. Nidhi Singh & Anr. ...Respondents

Issue for Consideration
(1) Maintainability of Special Appeal against the
Judgment an order passed by Single Judge in an
application u/s 24 CPC.
(2) Definition of word 'Judgment' used in Rule 5
of Chapter VIII of the Allahabad High Court
Rules, 1952.
(3) Effect of exclusory provision of S. 105 CPC
on the maintainability of appeal.

Headnotes
(A) Practice and procedure - Special
Appeal - Maintainability - Impugned
order was passed in a petition arising out
of proceeding u/s 24 CPC - Against which
Special Appeal was filed - Preliminary
objection on its maintainability was raised
-
Question
of
scope
of
the
word
'Judgment' used in Ch. VIII Rule 5 also
felt into consideration. (E-1)
Held : An order passed under Section 24 CPC is
not a judgment, therefore, an appeal is not
amenable on this count under Chapter VIII Rule
5 of the Allahabad High Court Rules, 1952.
[Para 5]
Further held : Right to appeal is not inherent
unless it is specifically provided by the statute.
Since the Code of Civil Procedure does not
specially provide for an appeal against an order
passed on a transfer application under Section
24 CPC and at the same time by implication
excludes an appeal against such an order by
virtue of Section 105 CPC, therefore, the
Division Bench opined that merely for the
reason Rule 5 Chapter VIII of the Rules of the
Court, 1952 is silent in this regard it would not
confer jurisdiction of appeal, if any contrary
interpretation is made and the appeal is held to
be maintainable it would amount to conferring
jurisdiction of appeal which otherwise is not
specifically provided but is expressly as well as
by implication excluded by Section 105 C.P.C.
[Para 6]

Case Law Cited
Amit Khanna vs. Smt. Suchi Khanna, 2009 (1)
AWC 929; Asrumati Debi vs. Kumar Rupendra
Deb Raikot, AIR 1953 SC 198; Midnapore
Peoples' Coop. Bank Ltd. and Ors. vs. Chunilal
Nanda and Ors., (2006) 5 SCC 399; South Asia
Industries (P) Ltd. vs. S.B. Sarup Singh and
Ors., AIR 1965 SC 1442; Special Appeal No.
1126 of 2018; Akshay Gupta vs. Smt. Swati
Gupta decided on 16.11.2018; Mahendra Pratap
Bhatt vs. Saroj Mahana, 2016 (5) ADJ 282;
Subal Paul Vs. Malina Paul and Anr., 2003 (5) JT
193; K.VS. Balan and Anr. Vs. Sivagiri Sree
Narayana Dharma Sanghom Trust and Ors., AIR
2006 Kerala 58; Neelam Kanwar Vs. Devinder
Singh Kanwar, 2001 (1) ECrc 109; Krishna Veni
Nagam Vs. Harish Nagam, AIR 2017 SC 1345;
Shyam Sel and Power Limited and Anr. Vs.
Shyam
Steel
Industries
Ltd.
decided
on
14.03.2022 (Supreme Court); Amruta Vs. Sachin
decided on 01.08.2025 (Bombay High Court) -
referred to.

List of Acts
Allahabad High Court Rules, 1952 - Chapter
VIII, Rules 5; Code of Civil Procedure, 1908 -
Ss. 24, 104 and 105.

List of Keywords
Transfer
Application;
Special
Appeal;
Maintainability; Original jurisdiction; Appellate
jurisdiction; Revisional jurisdiction; Later Patent
Appeal;
Judgment;
Appropriate
legislation;
Irregularity; Right to appeal; Inherent.

Case Arising From
Judgment and order dated 20.05.2025 passed
by Hon'ble Single Judge in Transfer Application
(Civil) No. 166 of 2022.

Appearances for Parties