# State of U.P v. Sukhai @ Bhagwan Das

- **Citation:** (2022) 10 ILRA 1118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-11
- **Case number:** Government Appeal No. 146 of 2021
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-sukhai-bhagwan-das-47674
- **Pages:** 21

## Headnote

A. Criminal Law - Murder - Causing
disappearance of evidence - Indian Penal
Code, 1860 - Sections 302 & 201 - Code of
Criminal Procedure, 1973 - Section 378 -
It is well settled that the prosecution has
10 All. State of U.P. Vs. Sukhai @ Bhagwan Das.
1119
to prove beyond doubt that every link in
the chain of circumstances establishes the
guilt of accused beyond reasonable doubt
and all circumstances are consistently
pointing out towards the guilt of accused.
(Para 33)

B.
Admissibility
of
extra-judicial
confession - An extra-judicial confession by its
very nature is rather a weak type of evidence
and requires appreciation with a great deal of
care and caution. Where an extra-judicial
confession
os
surrounded
by
suspicious
circumstances, its credibility becomes doubtful
and it loses its importance. (Para 38, 39)

C. Suspicion however strong it may be but
it does not substitute place of prove. (Para
40)

In the present case, the prosecution story
proceeds on weak evidence as firstly FIR was
lodged against unknown persons, secondly,
motive though alleged could not be proved by
the prosecution. Thirdly, the accused is shown
to have arrested and recovery so sought to be
made from him of the incriminating article but in
absence of any independent witness and also
the fact that the time of arrest and recovery
also does not match and even the forensic
laboratory
report
does
not
support
the
prosecution version, fourthly, extra judicial
confession so made loses its efficacy as the
witness
before
whom
the
extra
judicial
confession is St.d to have been made turned
hostile and lastly, the fact that circumstantial
evidences do not support the prosecution case
as the complete chain to link the accused to
commit crime stands missing.

Learned Trial Court has meticulously scanned
the depositions of the prosecution witnesses
and adduced evidences and has come to a
correct conclusion that the prosecution has
miserably failed to link the accused w.r.t.
commission of crime. The view taken by the
learned trial Court is a possible and a plausible
view as not other view is possible. (Para 41)

Appeal dismissed. (E-4)

Precedent followed:

## Text

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1118 INDIAN LAW REPORTS ALLAHABAD SERIES
seeking a review of the order dated
15.02.2021, which in fact granted him
indulgence of not striking off his defence by
extending some time to deposit the rent due.
Still later, after losing before the Revisional
Court, he did not avail of the opportunity to
make good the deposit of rent under Order
XV Rule 5 CPC and came up with a fresh
prayer to deposit the rent due in installments
of Rs.25,000/-, that could never be done
under Order XV Rule 5 CPC. We think that
on two occasions, in the first round of
agitation of his rights by the tenant, the Trial
Court as well as the Revisional Court passed
some
non-conservative
orders,
granting
indulgence of an extended time before
defence of the tenant would stand struck off.
It might have been a decision taken in the
background of the Covid-19 pandemic,
though not said so by the Courts in the orders
impugned.

25. The Revisional Court in the earlier
instance extended time for the tenant to
comply with the order dated 15.02.2021
passed by the Trial Court, the benefit whereof
he had lost, which the tenant again did not
avail. Instead, he took up cudgels again
against the landlords by moving the Trial
Court for a different relief in the matter of
deposit of rent, which we have already
mentioned above. The aforesaid conduct of
the tenant does not entitle him to any further
indulgence. The provisions of Order XV Rule
5 CPC cannot come to the tenant's aid any
further, the time for compliance thereunder
having long expired. Moreover, the stand of
the tenant, that has been consistently
vacillating and smacking of in equity, does
not entitle him to relief in the exercise of our
jurisdiction under Article 227 of the
Constitution.

26. This petition is, accordingly,
rejected.

27. The interim stay order dated
20.05.2022 is hereby vacated.

Order on Civil Misc. Application
No. 2 of 2022

28. The application is disposed of.

29. For orders, see my order of date
passed on Matter under Article 227 No.
1562 of 2022.

Order
on
Civil
Misc.
Recall
Application No. 3 of 2022

30. The application is disposed of.

31. For orders, see my order of date
passed on Matter under Article 227 No.
1562 of 2022.
----------
(2022) 10 ILRA 1118
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.08.2022

BEFORE

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

Government Appeal No. 146 of 2021

State of U.P. ...Appellant
Versus
Sukhai @ Bhagwan Das ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:

A. Criminal Law - Murder - Causing
disappearance of evidence - Indian Penal
Code, 1860 - Sections 302 & 201 - Code of
Criminal Procedure, 1973 - Section 378 -
It is well settled that the prosecution has
10 All. State of U.P. Vs. Sukhai @ Bhagwan Das.
1119
to prove beyond doubt that every link in
the chain of circumstances establishes the
guilt of accused beyond reasonable doubt
and all circumstances are consistently
pointing out towards the guilt of accused.
(Para 33)

B.
Admissibility
of
extra-judicial
confession - An extra-judicial confession by its
very nature is rather a weak type of evidence
and requires appreciation with a great deal of
care and caution. Where an extra-judicial
confession
os
surrounded
by
suspicious
circumstances, its credibility becomes doubtful
and it loses its importance. (Para 38, 39)

C. Suspicion however strong it may be but
it does not substitute place of prove. (Para
40)

In the present case, the prosecution story
proceeds on weak evidence as firstly FIR was
lodged against unknown persons, secondly,
motive though alleged could not be proved by
the prosecution. Thirdly, the accused is shown
to have arrested and recovery so sought to be
made from him of the incriminating article but in
absence of any independent witness and also
the fact that the time of arrest and recovery
also does not match and even the forensic
laboratory
report
does
not
support
the
prosecution version, fourthly, extra judicial
confession so made loses its efficacy as the
witness
before
whom
the
extra
judicial
confession is St.d to have been made turned
hostile and lastly, the fact that circumstantial
evidences do not support the prosecution case
as the complete chain to link the accused to
commit crime stands missing.

Learned Trial Court has meticulously scanned
the depositions of the prosecution witnesses
and adduced evidences and has come to a
correct conclusion that the prosecution has
miserably failed to link the accused w.r.t.
commission of crime. The view taken by the
learned trial Court is a possible and a plausible
view as not other view is possible. (Para 41)

Appeal dismissed. (E-4)

Precedent followed:

1. Rajesh Prasad Vs St. of Bihar & anr., 2022 (3)
SCC 471 (Para 11)

2. Chandrapal Vs St. of Chhattisgarh, Criminal
Appeal No.378 of 2015, decided on 27.05.2022
(Para 34)

3. Mohd. Azad @ Samin Vs St. of W. B., 2008
(15) SCC 449 (Para 36)

4. Sansar Chand Vs St. of Raj., 2010 (10) SCC
604 (Para 37)

5. Sahadevan & anr. Vs St. of T, N., 2012 (6)
SCC 403 (Para 38)

6. Ram Lal Vs St. of H. P., 2019 (17) SCC 411
(Para 39)

7. St. of Odisha Vs Banabihari Mohapatra &
anr.., Special Leave Petition (Crl.) No. 1156 of
2021, decided on 12.02.2021 (Para 40)

Present Government Appeal assails the
judgment and order dated 10.05.2019,
passed by Learned Additional Sessions
Judge/Special Judge (E.C. Act), District
Jalaun at Orai.

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

1. This is an appeal u/s 378 (3) of the
Code
of
Criminal
Procedure
1973
(hereinafter
referred
to
as
Cr.P.C.)
challenging the judgment and the order
dated 10.05.2019 passed by Additional
Sessions Judge/Special Judge (Essential
Commodities Act), District Jalaun at Orai
in Session Trial No. 101 of 2015 (State of
U.P. Vs. Sukhai alias Bhagwan Das), in
Case Crime No. 288 of 2015, u/s 302, 201
IPC, P.S. Kalpi, District Jalaun.

2. Essential facts emanating to the
filing of the present appeal as transcribed
are that the first informant Mohd. Naseem
S/o Mohd. Nizam R/o Bazar Ward,
Amraudha,
P.S.
Bhognipur,
District
Kanpur Dehat had submitted a written
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
report on 04.03.2015 before Police Station
Kalpi, District Jalaun with an allegation
that his brother Azeem and partner Iqbal
S/o Razzaq R/o Mohalla Katra, Kasba
Amraudha, P.S. Bhognipur, Kanpur Dehat
he along with them had gone to Jolhupur in
connection with purchase of cattle and after
purchase of two cattle he along with his
brother Azeem and partner Iqbal return
back to Kalpi and after leaving Azeem and
Iqbal at Karbala (Eidgah) he proceeded to
Kasba, Kalpi for purchase of an additional
cattle and when he returned at 10 in the
night after purchasing a cattle, then in
Karbala he met Iqbal and asked about
the whereabouts of his brother Azeem
and he was apprised by Iqbal that Azeem
had
gone
to
answer
nature's
call
however, after waiting for some time
when Azeem did not return then he
called
from
his
mobile
number
9794780802 to the mobile number of
Azeem 8423904201 however, despite the
fact that the bell was ringing but the
phone was not picked up then the first
informant along with Iqbal went to trace
about the whereabouts of his brother and
at 02 in the night 100 meters from
Karbala near a neem tree the dead body
of the deceased was found which also
occasioned injuries and according to him
his brother had been disposed of some
where else and thrown in the Eidgah.

3. On the written complaint of the
first informant an FIR was lodged on
04.03.2015 at 06:20 being case crime no.
288/2015, u/s 302/201 IPC. One Sri
Yogendra Pratap Singh was nominated as
Investigating Officer and thereafter, one Sri
Awdhesh Kumar was appointed as the
Investigating Officer who has submitted the
charge sheet u/s 302, 201 IPC against the
accused herein.

4. The case was committed to
Sessions by virtue of the order dated
15.06.2015.

5. Charges were read over to the
accused herein. He pleaded innocence and
claimed to be tried.

6. The learned trial court by virtue of
the
judgment
and
the
order
dated
10.05.2019 passed by Additional Session
Judge/Special Judge (E.C. Act) , Jalaun at
Orai passed in Session Trial No. 101 of
2015 acquitted the accused. Challenging
the judgment and the order of acquittal now
the State-appellant is before this Court.

7. The prosecution in order to bring
home the charges, has produced the
following prosecution witnesses as P.W. 1
S.I. Jaiveer Singh, P.W. 2, Naseem, P.W. 3
Atarur Rehman, P.W. 4 Mohd. Ishtiyaq,
P.W. 5 Iqbal, P.W. 6 Dr. Bhanu Pratap
Singh, P.W. 7 Yogendra Pratap Singh
retired inspector (First I.O.), P.W. 8
Constable 1465 Sanjeev Kumar, P.W. 9
Awadhesh Kumar Singh, I.O. ( Second
I.O.).

8. Besides the ocular testimony the
following documents were also exhibited,
namely, Ex. A-1 Panchayatnama, Ex. A-2
Written Complaint, Ex. A-3 Recovery
memo of weapon and mobile, Ex. A-4
Blood stained and plain earth, Ex. A-5 and
Ex. A-8 letter to Inspector, letter to
C.M.O., Photonash, Challan Nash, Ex. A-9
and Ex. A-10 Copy of FIR and Copy of
G.D., Ex. A-11 Postmortem report of the
deceased Azeem, Ex.A-12 site plan and
place of recovery of dead body, Ex.A-13
site plan of murder and recovery of two
mobile phones, Ex. A-14 carbon copy of
Kaymi G.D., Ex.A-15 Copy of Chik FIR,
10 All. State of U.P. Vs. Sukhai @ Bhagwan Das.
1121
Ex.A-15 Charge sheet, Ex.A-17 Forensic
Science Laboratory report of U.P. Agra.

9. Heard Ms. Nand Prabha Shukla,
learned A.G.A. appearing for the Stateappellant.

10. Before delving into the exercise
so sought to be undertaken for determining
as to whether the judgment and the order of
acquittal has been proceeded in correct
perspective or not this Court is to bear in
mind that that the present proceedings
emanates against the judgment and the
order of acquittal so bestowing double
presumption
of
innocence
upon
the
accused. To put it otherwise this Court
cannot venture into the judgment in a
routine and cursory manner until and unless
the circumstances are such which explicitly
show that there has been palpable illegality
committed by the learned trial court while
recording perverse finding and misread the
evidences on record. Without burdening the
present
judgment
while
reciting
the
mandate of the Hon'ble Apex Court as
reduced in plethora of judgments this Court
finds appropriate to refer to the recent
judgments which itself is pregnant with the
judgment which are on the same line right
from inception.

11. Nevertheless in the Case of
Rajesh Prasad Vs. State of Bihar And
Another reported in 2022 (3) SCC 471 the
Hon'ble
Apex
Court
in
following
paragraphs have observed as under:-

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

"16. It cannot, however, be
forgotten that in case of acquittal, there is a
double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person should be
presumed to be innocent unless he is
proved to be guilty by a competent court of
law. Secondly, the accused having secured
an acquittal, the presumption of his
innocence is certainly not weakened but
reinforced, reaffirmed and strengthened by
the trial court.

But in exercising the power
conferred by the Code and before
reaching its conclusions upon fact, the
High Court should and will always give
proper weight and consideration to such
matters as (1) the views of the trial Judge
as to the credibility of the witnesses; (2)
the presumption of innocence in favour of
the accused, a presumption certainly not
weakened by the fact that he has been
acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and
(4) the slowness of an appellate court in
disturbing a finding of fact arrived at by a
judge who had the advantage of seeing the
witnesses. To state this, however, is only
to say that the High Court in its conduct of
the appeal should and will act in
accordance with rules and principles well
known
and
recognised
in
the
administration of justice."
1122 INDIAN LAW REPORTS ALLAHABAD SERIES

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

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

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

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

23. M.G. Agarwal vs. State of
Maharashtra, AIR 1963 SC 200 is the
judgment of the Constitution Bench of this
Court, speaking through Gajendragadkar,
J. (as His Lordship then was). This Court
observed that the approach of the High
Court (appellate court) in dealing with an
appeal against acquittal ought to be
cautious because the presumption of
innocence in favour of the accused "is not
certainly weakened by the fact that he has
been acquitted at his trial."

24. In Shivaji Sahabrao Bobade
vs. State of Maharashtra, (1973) 2 SCC
793, Krishna Iyer, J., observed as follows:

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

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

"While sitting in judgment over
an acquittal the appellate court is first
required to seek an answer to the question
10 All. State of U.P. Vs. Sukhai @ Bhagwan Das.
1123
whether the findings of the trial court are
palpably wrong, manifestly erroneous or
demonstrably
unsustainable.
If
the
appellate court answers the above question
in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate
court holds, for reasons to be recorded,
that the order of acquittal cannot at all be
sustained in view of any of the above
infirmities it can thenand then only
reappraise the evidence to arrive at its own
conclusions."

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

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

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

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

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

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

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

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

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

(7) The High Court has also to
keep in mind that even at that stage, the
accused was entitled to benefit of doubt.
The doubt should be such as a reasonable
person
would
honestly
and
conscientiously entertain as to the guilt of
the accused."
1124 INDIAN LAW REPORTS ALLAHABAD SERIES

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

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

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

29. After referring to a catena of
judgments, this Court culled out the
following general principles regarding the
powers of the appellate court while dealing
with an appeal against an order of
acquittal in the following words:

"42. From the above decisions, in
our considered view, the following general
principles
regarding
powers
of
the
appellate court while dealing with an
appeal against an order of acquittal
emerge:

(1) An appellate court has full
power
to
review,
reappreciate
and
reconsider the evidence upon which the
order of acquittal is founded.

(2)
The
Code
of
Criminal
Procedure,
1973
puts
no
limitation,
restriction or condition on exercise of such
power and an appellate court on the
evidence before it may reach its own
conclusion, both on questions of fact and of
law.

(3) Various expressions, such as,
"substantial and compelling reasons",
"good and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere
with acquittal than to curtail the power of
the court to review the evidence and to
come to its own conclusion.

(4) An appellate court, however,
must bear in mind that in case of acquittal,
there is double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person shall be
presumed to be innocent unless he is
proved guilty by a competent court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence
10 All. State of U.P. Vs. Sukhai @ Bhagwan Das.
1125
is further reinforced, reaffirmed and
strengthened by the trial court.

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

30. In Nepal Singh vs. State of
Haryana- (2009) 12 SCC 351, this Court
reversed the judgment of the High Court
which had set aside the judgment of
acquittal pronounced by the trial court and
restored the judgment of the trial court
acquitting the accused on reappreciation of
the evidence.

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

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

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

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

a)
Where
incontrovertible
evidence has been rejected by the High
Court based on suspicion and surmises,
which are rather unrealistic. [State of
Rajasthan v. Sukhpal Singh, AIR 1984 SC
207]
For
example,
where
direct,
unanimous accounts of the eyewitnesses,
were
discounted
without
cogent
reasoning; [State of UP v. Shanker, AIR
1981 SC 879]

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

c) Where testimony of witnesses
had been disbelieved by the High Court, on
an unrealistic conjecture of personal
motive on the part of witnesses to implicate
the accused, when in fact, the witnesses had
no axe to grind in the said matter. [State of
Rajasthan v. Sukhpal Singh, AIR 1984 SC
207]
1126 INDIAN LAW REPORTS ALLAHABAD SERIES

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

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

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

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

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

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

b) Where the accused had been
acquitted on ground of delay in conducting
trial, which delay was attributable not to
the tardiness or indifference of the
prosecuting agencies, but to the conduct of
the accused himself; or where accused had
been acquitted on ground of delay in
conducting trial relating to an offence
which is not of a trivial nature. [State of
Maharashtra v. ChampalalPunjaji Shah,
AIR 1981 SC 1675] [Source : Durga Das
Basu - "The Criminal Procedure Code,
1973" Sixth Edition Vol.II Chapter XXIX]"

12. Keeping in mind the aforesaid
aspects that the note of caution has been
mandating now the present judgment is to
analysed.

13. Before proceeding further the
depositions of the prosecution witnesses is
to be first scanned.

14. As P.W. 1 S.I. Jaiveer Singh
appeared in the witness box, according to
him, he was posted in the concerned police
station and he conducted the proceedings of
panchayatnama. He has further deposed
that he on the basis of the chik FIR had
proceeded to the place of occurrence and he
prepared the panchayatnama and one Sri
Atarur Rehman S/o Havibul Rehman,
Sahibe Alam S/o Sadik, Mohd. Nisar S/o
Hazi Faiz Mohammad, Junaid Khan S/o
Liyaqat Khan and Shameed S/o Waseem
were appointed as panch.

15. As P.W. 2 the first informant
Naseem deposed that the deceased was his
younger brother and on the fateful day i.e.
03.03.2015 at 8-9 in the morning he along
10 All. State of U.P. Vs. Sukhai @ Bhagwan Das.
1127
with his deceased brother Azeem and partner
Iqbal had proceeded from Amraudha to
Jolhupur and after half an hour they reached
to Jolhupur and purchased two cattle and at
about 07:00-07:30 in the evening they
proceeded from Jolhupur and came to Kalpi
and reached to Eidgah at 9 in the night and
after leaving Azeem and Iqbal he proceeded
to Kalpi to purchase another cattle and when
he came back after one hour he met Iqbal and
on being asked about the whereabouts of his
brother Azeem, Iqbal told him that Azeem
had proceeded for answering the nature's call
and after waiting for 15 minutes when his
deceased brother did not came back, they
dialled on his mobile number but the phone
was though ringing but the same was not
picked up and they proceeded to search the
deceased brother and the they found near a
neem tree the deceased brother's body lying
there with injuries in the shape of three marks
on the body and injuries on the head and the
first informant screamed when he witnessed
the body of his brother, he became
unconscious and when he regained conscious
after half an hour by that time other villagers
had come. He accordingly, submitted a
written complaint and FIR was lodged
against the unknown persons and one Javed
who is the resident of the same village came
there he wrote the written complaint on the
dictation of the first informant and the first
informant was read over the written
complaint and he signed the same.

16. P.W. 3 Atrur Rehman claims to be
the witness of panchayatnama. He proved the
panchayatnama.

17. P.W. 4 Mohd. Ishtiyaq has also
proved the fact that consequent to the
recovery of the dead body of the deceased in
his presence the plain and blood stained earth
was collected.

18. As P.W. 5 Mohd Iqbal appeared
as a prosecution witness and according to
his statement he on 10.03.2015 had gone to
purchase the cattle to a place being
Jolhupur crossing and along with him
neither the first informant Naseem nor the
deceased was with him and he also showed
his ignorance about the occurrence and thus
he turned hostile.

19. P.W. 6 Dr. Bhanu Pratap claims to
have conducted postmortem on 04.03.2015
when he was posed as Medical Officer in
District Hospital Orai according to him the
deceased sustained five injuries being
rupture in ventral aspect and in his leg there
was ruptured blister and on the right side of
the stomach there was also penetrating
wound along with unblicus and up to
visceral organ. The deceased is stated to
have other wounds which were injury nos.
4 and 5. As per the opinion of P.W. 6 the
cause of death was oozing out of blood and
death took place 3⁄4 days back and
according to him he in his deposition has
stated that the death might have taken place
on 03.03.2015 at about 02:00 hours.

20. P.W. 7 I.O. Yogendra Pratap
Singh has claims himself to be the
Investigating Officer who conducted the
investigation while preparing chik FIR,
taking statements of the prosecution
witnesses preparing the site plan etc.

21. P.W. 8 1465 Sanjeev Kumar
claims himself to be the person who has
proved the FIR.

22. P.W. 9 claims himself to the I.O.
being
Awadhesh
Kumar
Singh
who
conducted the investigations so left by
P.W. 7 Yogendra Pratap Singh and he
submitted the charge sheet.
1128 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Undisputedly, the genesis of the
present case emanates from the incident
which is stated to have taken place on
03.05.2015 when the first informant,
deceased and Iqbal have been stated to
have gone to purchase cattle and when they
return back after purchasing two cattle they
left the deceased and his partner Iqbal near
Karbala an thereafter, he proceeded to
purchase another cattle and then he
returned back then he was apprised by
Iqbal that his brother had gone to answer
the nature's call and on being contacted
through phone and waiting for some time
the deceased did not come back then they
traced the deceased and found that the
deceased was lying in a dead condition near
the neem tree. It has also come on record
that the FIR has been lodged against
unknown persons.

24. So far as the issue relatable to
the marking of the accused herein for
commission of the crime is concerned,
the name of the accused did not find
place in the FIR however, it has come on
record that an allegation has been sought
to be levelled upon the accused herein
that there existed certain dispute between
the accused herein and the deceased with
relation to crops as the accused used to
do
agriculture
activities
near
the
agriculture field of the accused that is of
Mushtaq and on the other hand the
complainant fraction used to trade in
cattle. According to prosecution oftenly
in
connection
with
trenching
and
trampling of the agriculture crops by the
cattle so possessed by the complainant
fraction
losses
were
sought
to
be
sustained which became the basis of
altercations. According to prosecution on
the fateful day on account of trampling of
the crops the disputed occurred which
resulted into the murder of the deceased.

25. Even otherwise, this Court finds
that a categorical finding has been recorded
by the learned trial court that no such
allegation relatable to the commission of
crime as a motive so alleged by the
prosecution finds its presence in the FIR.
More so before the trial also the first
informant in his examination in chief had
also not reflected the said fact regarding
any grudge relating to the motive and the
said fact stands admitted in the page no. 7
of the cross examination wherein the first
informant had stated that he is not aware
and not remembering as to whether the fact
relating to the loss of crops and dispute
with the accused was narrated or apprised
to the Investigating Officer or not.

26. The learned trial court has taken
pains to go into the said aspect of the
matter while recording the finding that in
the FIR the name of the accused did not
find place however, during the course of
investigation on 13.03.2015 the first
informant
informed
the
Investigating
Officer in his mazeed statement for the
very first time that the accused herein had
disposed of his brother and on the basis of
the said statement of the first informant on
18.03.2015 the name of the accused came
to the surface and he was arrested. Apart
from the same though bald and vague
allegation have been sought to be made
referable to the dispute and the rivalry as a
motive but neither any date, time nor
details
of
the
incident
have
been
mentioned. Nonetheless, there is nothing on
record to suggest as to whether any
complaint to the said effect was made
before any authority or not.

27. Notably, from the statement of the
first informant it is clear that on 03.03.2015
the deceased was with the first informant
and Iqbal barring about one hour when he
10 All. State of U.P. Vs. Sukhai @ Bhagwan Das.
1129
had gone after leaving the deceased along
with his partner to buy an additional cattle
at Kalpi. Thus, merely making bald and
vague allegations will not absolve the
prosecution as motive is not only to be
indicated but proved also beyond doubt.

28. So far as the issue relatable to the
recovery of incriminating articles being the
weapon alleged to be used for commission
of crime and on the pointing out of the
accused is concerned, the prosecution has
come up with a stand that on 18.03.2015
the accused on his pointing out got
recovered the weapon used for commission
of crime and two mobile phones and he
was also arrested and further the accused is
being shown to have committed the said
crime which stands proved from the report
of the forensic laboratory.

29. Though it has also come on record
that the recovery of the weapon used for
commission of crime and two mobile
phones have been shown to be recovered
from the pointing out of the accused but
there had been no independent witness to
have corroborated the said fact. Ex. A-3
which happens to be the recovery memo
shows that on the pointing out of the
accused behind the Eidgah near Old Dome
one Ballum, two mobiles have been shown
to have been recovered however, no time
has been shown of recovery. As per the
Nakal Report No. 27, 16:25 hours have
been shown on 18.03.2015 however, as per
P.W. 7 I.O. Yogendra Pratap Singh, he in
his cross examination has come up with the
stand that the accused was arrested on
18.03.2015 at 14:20 pm and as per the case
diary, the accused was put up in lock-up as
mentioned in report no. 27 at 14:25 hours.
Notably, P.W. 7 I.O. Yogendra Pratap
Singh has stated that he had not prepared
any fard and he is not aware as to how
much is the distance between the place of
arrest and the place of recovery and he has
further stated that the place of recovery is
an open land and there is no restriction of
entry and the recovery had been made after
15 days.

30. As a matter of fact the learned
trial court has further analysed the matter
and according to it the recovery is at the
difference of two hours and the distance is
also not known to the Investigating Officer
and the place is an open place which itself
shows that the things do not match with the
actual events as there cannot be a
possibility that the recovery is a planted
one
particularly
when
there
is
no
description given in the fard itself and there
has been no investigation into the fact as to
who is the owner of the mobiles in
question.

31. Nonetheless, there was no
independent witness to have corroborate to
the
said
recovery
event
except
the
interested witness being the first informant.
Moreover, Mohd. Naseem being the P.W. 2
the first informant has further stated certain
facts
which
are
contrary
and
in
contradiction with the statement of P.W. 7
I.O. Yogendra Pratap Singh as according to
him the date on which the dead body was
recovered was the date of recovery of
Barchi/Ballum and mobiles. Apart from
this, it has further been deposed that in the
Barchi which was recovered from dome
had the blood marking and according to
him the blood was fresh. Thus, according to
the prosecution on the date of the arrest of
the
accused
i.e.
18.03.2015
one
Barchi/Ballum and two mobiles were
recovered, however, from perusal of the
statement of the P.W. 2 and P.W. 7 there
are contradictions with regard to the issue
of recovery of Barchi/Ballum on the date of
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
arrest. Moreover, the question about the
blood being present in the Barchi/Ballum is
concerned, the same cannot be fresh that to
after a long period of time i.e. 15 days.
Even otherwise, P.W. 7 Yogendra Pratap
Singh in his deposition has himself
admitted the fact that the ownership of the
two mobile phones was not got investigated
by him. To put it otherwise I.O. has further
come with a stand that the ownership of
mobile phone could have been investigated
from the mobile shop or telecom company.
To put nail to the coffin of conviction,
letter 57 Ka and Ex. A-17 which happens to
be the report of Forensic Laboratory itself
shows that the recovered Ballum which is
stated to have contained blood, could not
be tested and thus, no report was given in
that regard.