# State v. Shivakant Bajpai

- **Citation:** (2024) 8 ILRA 1173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-13
- **Case number:** Government Appeal No. 387 of 2024
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-v-shivakant-bajpai-52419
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 378(3) - The Railways Act,
1989 - Sections 154 & 174 - Appeal
against acquittal- allegedly damaging a
railway boom lock post with a truck- lack
of corroborative evidence for the alleged
extra-judicial
confession-
Section
25
Indian Evidence Act-Section 313 CrPCneed for independent corroboration of
such confessions- trial court's acquittal
was justified- States's prayer to leave for
appeal refused- Appeal dismissed. (Paras
7 to 12, 20, 24, 26, 29, 31 and 32)

HELD:
Considering the oral and documentary evidence
on record adduced by the prosecution, the trial
court opined that out of the four witnesses
examined by the prosecution, PW-1 is the only
witness who had seen the occurrence and rest
of
the
witnesses
are
formal
witnesses.
Discussing the averments made by PW-1 in his
evidence, the trial court has quoted the relevant
statements made by him wherein he states that
during investigation no identification parade of
the accused was conducted by the Investigating
Officer and the driver, who fled away after the
incident, is not identifiable by him even today.
(para 20)

The confession allegedly made by the accused
respondent falls within the category of 'extra
judicial confession' and the law on the subject
has been clarified by the Hon'ble Apex Court in
a catena of decisions and the principle that
emerges out as essence from the various
decisions is that the extra judicial confession can
be accepted and can be made the basis of
conviction if it passes the test of credibility and
such confession should inspire confidence and
the Court must find out whether there are other
cogent circumstances on record to corroborate
it. (Para 24)

This Court cannot lose sight of the fact that in
this case the alleged extra judicial confession
made by the accused respondent is surrounded
by suspicious circumstances because the owner
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
of the vehicle, who is said to have taken the
accused respondent with him to disclose the
fact that he was the person who was driving the
offending vehicle at the time of the incident,
was not chosen to be produced as a witness by
the prosecution and hence from the very
inception the alleged confession made by the
accused respondent falls under the shadow of
suspicion. In these circumstances it appears
that only to show the good work, the R.P.F.
officials falsely roped the accused respondent in
this case. Hence, the alleged extra judicial
confession, which is not supported by any
cogent
independent
evidence,
loses
its
importance and its credibility becomes doubtful
in the case like this. (Para 26)

The learned trial Court has given logical and
plausible findings in the impugned judgement
and has rightly concluded that the prosecution
has miserably failed to prove its case beyond
reasonable doubt. The judgment and order of
the trial court under judicious scrutiny is just
and proper and carries no perversity therein,
hence it does not warrant any interference by
this Court. The reasoning adopted by the
learned Trial Judge is based upon proper
application of judicial mind. No illegality or
infirmity is found in the impugned judgment and
order and it needs no interference by this Court
in exercise of its power under Section 378 CrPC.
(Para 31)

Appeal dismissed. (E-14)

List of Cases cited:

## Text

8 All. State Vs. Shivakant Bajpai
1173
bearing Election Petition No. 7 of 2022
(Sheshmani Nath Tripathi (S.N. Tripathi
In Short) vs. Shri Dinesh Rawat, The
Returned Candidate. The High Court while
hearing an election petition does not
function as a Constitutional Court per se
nor
does
it
have
extraordinary
constitutional or inherent powers as has
been held in Thampanoor Ravi (supra)
and the Division Bench of this Court in
Sheshmani
Nath
Tripathi
(supra),
therefore, the contention of Mr. Luthra that
the violation of constitutional right to right
to information should be considered is not
acceptable. Unless and until the election
petition is maintainable and is not barred by
limitation, the merits of the matter cannot
be considered. In fact such a plea has
already been considered in Hukumdev
Narain Yadav (supra) with reference to
opinion
of
Justice
Mitter
in
K.
Venkateswara Rao's case as already
referred earlier.

18. For all these reasons, this
election petition being barred by Section 81
read with Section 86 of the Act 1951 and
Order VII Rule 11(d) of the Code of Civil
Procedure is liable to be dismissed. It is
accordingly dismissed.
----------
(2024) 8 ILRA 1173
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2024

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Government Appeal No. 387 of 2024

State ...Appellant
Versus
Shivakant Bajpai ...Respondent

Counsel for the Appellant:
Alok Ranjan Mishra

Counsel for the Respondent:
Manjul Mishra

Criminal Law - Criminal Procedure Code,
1973 - Section 378(3) - The Railways Act,
1989 - Sections 154 & 174 - Appeal
against acquittal- allegedly damaging a
railway boom lock post with a truck- lack
of corroborative evidence for the alleged
extra-judicial
confession-
Section
25
Indian Evidence Act-Section 313 CrPCneed for independent corroboration of
such confessions- trial court's acquittal
was justified- States's prayer to leave for
appeal refused- Appeal dismissed. (Paras
7 to 12, 20, 24, 26, 29, 31 and 32)

HELD:
Considering the oral and documentary evidence
on record adduced by the prosecution, the trial
court opined that out of the four witnesses
examined by the prosecution, PW-1 is the only
witness who had seen the occurrence and rest
of
the
witnesses
are
formal
witnesses.
Discussing the averments made by PW-1 in his
evidence, the trial court has quoted the relevant
statements made by him wherein he states that
during investigation no identification parade of
the accused was conducted by the Investigating
Officer and the driver, who fled away after the
incident, is not identifiable by him even today.
(para 20)

The confession allegedly made by the accused
respondent falls within the category of 'extra
judicial confession' and the law on the subject
has been clarified by the Hon'ble Apex Court in
a catena of decisions and the principle that
emerges out as essence from the various
decisions is that the extra judicial confession can
be accepted and can be made the basis of
conviction if it passes the test of credibility and
such confession should inspire confidence and
the Court must find out whether there are other
cogent circumstances on record to corroborate
it. (Para 24)

This Court cannot lose sight of the fact that in
this case the alleged extra judicial confession
made by the accused respondent is surrounded
by suspicious circumstances because the owner
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
of the vehicle, who is said to have taken the
accused respondent with him to disclose the
fact that he was the person who was driving the
offending vehicle at the time of the incident,
was not chosen to be produced as a witness by
the prosecution and hence from the very
inception the alleged confession made by the
accused respondent falls under the shadow of
suspicion. In these circumstances it appears
that only to show the good work, the R.P.F.
officials falsely roped the accused respondent in
this case. Hence, the alleged extra judicial
confession, which is not supported by any
cogent
independent
evidence,
loses
its
importance and its credibility becomes doubtful
in the case like this. (Para 26)

The learned trial Court has given logical and
plausible findings in the impugned judgement
and has rightly concluded that the prosecution
has miserably failed to prove its case beyond
reasonable doubt. The judgment and order of
the trial court under judicious scrutiny is just
and proper and carries no perversity therein,
hence it does not warrant any interference by
this Court. The reasoning adopted by the
learned Trial Judge is based upon proper
application of judicial mind. No illegality or
infirmity is found in the impugned judgment and
order and it needs no interference by this Court
in exercise of its power under Section 378 CrPC.
(Para 31)

Appeal dismissed. (E-14)

List of Cases cited:

1. Balakishan A. Devidayal Vs St. of Mah.,
(1980) 4 SCC 600

2. State Vs Shivendra Pratap Singh, 1979 SCC
Online All 377

3. Jafarudheen & ors. Vs St. of Kerala, 2022 SCC
Online SC 495

4. Mohan alias Srinivas @ Seena @ Tailor Seena
Vs St. of Karn., (2022) 12 SCC 619

5. Atley Vs St. of U.P., 1955 Cri. LJ 1653

6. Bannareddy Vs St. of Karn., (2018) 5 SCC 790

7. Ramesh Babulal Doshi Vs St. of Guj., (1996) 9
SCC 225

8. Subramanya Vs St. of Karn., (2023) 11
Supreme Court Cases 255

9. Pakkirisamy Vs St. of T.N. (1997) 8 SCC 158

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

Ref : Criminal Misc. Application
(Leave to Appeal)

1. The present government appeal
under Section 378 (3) CrPC has been filed
against the impugned judgement and order
dated 25.4.2023 passed by the Additional
Chief
Judicial
Magistrate,
Northern
Railway, Bareilly in Criminal Case No. 592
of 2013, arising out of Case Crime No.101
of 2013 under Sections 154 and 174 of the
Railways Act, 1989, Police Station R.P.F.
Post Shahjahanpur, Moradabad Division,
Northern
Railway
whereby
accusedrespondent was acquitted.

2. Heard Shri Alok Ranjan Mishra,
learned Standing Counsel appearing for the
Government of India at length. None is
present for the accused-respondent.

3. The prosecution story, in
nutshell, is that boom lock post of the
Railway Department was broken by a
Truck bearing Registration No. UP26-9171
being driven by its driver in a rash and
negligent manner and the driver of the said
Truck fled away from the place of
occurrence but the Truck was taken into
possession by the police. F.I.R. as Case
Crime No.101 of 2013 under Sections 154
and 174 of the Railways Act, 1989 was
lodged. After investigation, the police
report was submitted to the court for trial.
Copies of necessary papers were given to
8 All. State Vs. Shivakant Bajpai
1175
the accused and his statement under
Section 251 CrPC was recorded wherein he
denied the incident. Trial started and during
trial, the prosecution produced as many as
four prosecution witnesses. In addition to
this, the prosecution has also produced
number of documents, which were duly
exhibited and proved during trial. Accused
respondent in his statement recorded under
Section 313 CrPC denied the factum of
incident and the truthfulness of prosecution
evidence. The learned Magistrate after
thrashing the evidence and critically
analysing them has come to the conclusion
that the prosecution has failed to establish
the case beyond reasonable doubt and,
therefore, the accused Shiva Kant Bajpayee
was set at liberty and was acquitted.

4. Aggrieved with the said
judgement
and
order,
the
instant
Government Appeal under Section 378 (3)
Cr.P.C. on behalf of the State through
D.S.C./ R.P.F. Moradabad Division /
appellant has been filed.

5. Learned Counsel appearing for
the appellant State submitted that in this
case the appellant had confessed his guilt
before the officer of R.P.F. conducting an
enquiry and the said confession is not hit
by the provisions of Section 25 Evidence
Act, as the officer of R.P.F. does not fall
into the category of 'Investigating Officer'
and his status is not the same as it is in a
case of Police Officer investigating the case
and hence his confession made before the
officer of the R.P.F. is admissible in
evidence and his confessional statement in
this case cannot be excluded from the
category of 'evidence'. It is further
submitted that since the trial court totally
ignored the confessional statement made by
the accused himself, which was fully
admissible in evidence, the findings of
acquittal of the accused respondent is
illegal and not sustainable. It is also
submitted that on the basis of other oral and
documentary evidence on record the
prosecution has established and proved its
case beyond reasonable doubt but the trial
court failed to appreciate the evidence in its
true perspective and acquitted the accused
respondent by wrong appreciation of the
evidence available on record. Findings
recorded by the trial court in the impugned
judgment and order are illegal and perverse
warranting interference by this Court.

6. In support of his submissions,
learned counsel for the appellant - State
placed reliance upon a decision of Hon'ble
Supreme
Court
in
Balakishan
A.
Devidayal vs. State of Maharashtra,
(1980) 4 SCC 600 and a decision of this
Court in State vs. Shivendra Pratap
Singh, 1979 SCC Online All 377.

7. Since it is a an appeal against
the acquittal, it will be relevant to note the
principles of law laid down by the Apex
Court with regard to the appreciation of
evidence and approach to be adopted while
dealing with an appeal against acquittal.

8. In Jafarudheen and others vs.
State of Kerala, 2022 SCC Online SC
495, reiterating the principle on the subject
the Hon'ble Apex Court reminded to the
Courts as extracted below:

"25. While dealing with an
appeal
against
acquittal
by
invoking Section 378 of the Cr.PC,
the Appellate Court has to consider
whether the Trial Court's view can
be termed as a possible one,
particularly when evidence on
record has been analyzed. The
reason is that an order of acquittal
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
adds up to the presumption of
innocence in favour of the accused.
Thus, the Appellate Court has to be
relatively slow in reversing the
order of the Trial Court rendering
acquittal.
Therefore,
the
presumption in favour of the
accused does not get weakened but
only strengthened. Such a double
presumption that enures in favour
of the accused has to be disturbed
only by thorough scrutiny on the
accepted legal parameters."

9. In Mohan alias Srinivas alias
Seena alias Tailor Seena vs. State of
Karnataka, (2022) 12 SCC 619, the
Hon'ble Apex Court held as hereunder:

"20. Section 378 CrPC
enables the State to prefer an
appeal
against
an
order
of
acquittal Section 384 CrPC speaks
of the powers that can be exercised
by the Appellate Court. When the
trial court renders its decision by
acquitting
the
accused,
presumption of innocence gathers
strength before the Appellate Court.
As a consequence, the onus on the
prosecution
becomes
more
burdensome as there is a double
presumption
of
innocence.
Certainly,
the
Court
of
first
instance has its own advantages in
delivering its verdict, which is to
see the witnesses in person while
they depose The Appellate Court is
expected to involve itself in a
deeper, studied scrutiny of not only
the evidence before it, but is duty
bound to satisfy itself whether the
decision of the trial court is both
possible and plausible view When
two views are possible, the one
taken by the trial court in a case of
acquittal is to be followed on the
touchstone of liberty along with the
advantage of having seen the
witnesses.
Article
21
of
the
Constitution of India also aids the
accused after acquittal in a certain
way, though not absolute. Suffice it
is to state that the Appellate Court
shall remind itself of the role
required to play, while dealing with
a case of an acquittal.

10. In Atley v. State of U.P., 1955
Cri. LJ 1653, 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.

11. The Hon'ble Apex Court in the
case
of
Bannareddy
v.
State
of
Karnataka, (2018) 5 SCC 790, has
considered the power and jurisdiction of
the High Court while interfering in an
appeal against acquittal and held as under :

"26.
The
High
Court
should not have re-appreciated the
evidence in its entirety, especially
when
there
existed
no
grave
infirmity in the findings of the trial
Court. There exists no justification
behind setting aside the order of
acquittal passed by the trial Court,
especially when the prosecution
case
suffers
from
several
contradictions and infirmities".

12. In Ramesh Babulal Doshi vs.
State of Gujarat, (1996) 9 SCC 225, the
Hon'ble Apex Court observed vis-a-vis the
powers of an appellate court while dealing
8 All. State Vs. Shivakant Bajpai
1177
with a judgment of acquittal and held like
this :

"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."

13. In the light of the submissions
made by learned counsel for the appellant /
State, I have carefully gone through the
evidence available on record, analysis and
appreciation thereof and conclusion arrived
at by the trial court in the impugned
judgment and order dated 25.4.2023.

14. It is a case where boom lock
post of the Railway Department was hit by
a Truck being driven by its driver in a rash
and negligent manner and the driver of the
said Truck fled away from the place of
occurrence and subsequently the registered
owner of the said Truck Vijay Kumar Singh
brought him in person to the outpost
Sitapur, where he is said to have admitted
his guilt.

15.

PW-1-Mahesh
Prasad
-
Gateman/ kantewala is the eye witness of
this case but this witness has admitted
before the trial court that the driver of the
ruck fled away from the spot and he cannot
identify him even if he comes before him.
He has fairly conceded that during
investigation no identification parade of the
accused was conducted by the Investigating
Officer and even today he is unable to
identify the truck driver.

16. PW-2 - S.K. Vidhyarthi /
S.S.E. Signal is the Railway Officer, who
made a joint inspection of the place of
occurrence
alongwith
R.P.F.
police
officials. He is a formal witness, who
proves memo of recovery of the truck Ext.
ka-1, inspection report Ext. ka-3, site plan
Ext. ka-4 but at the same time on the basis
of
documentary
evidence
he
also
establishes the factum of collusion of the
Truck with the boom lock post.

17. PW-3 S.I. Akhilesh Kumar
Yadav working in R.P.F. though has made
some statements regarding the facts of this
case but as a matter of fact he is not an eye
witness of the incident and is a formal
witness and his evidence on the facts of the
incident is an outcome what he received
from the gate-man. F.I.R. of this case was
lodged against unknown driver. This
witness himself has enquired into the
matter. He proves the registration G.D. Ext.
ka-5 and corroborates the evidence of PW2 by identifying his own signatures on Ext.
ka-1, Ext. ka-3 and Ext. ka-4. He also
proves the fact that one person alongwith
the owner of the offending vehicle Vijay
Kumar Singh came to the outpost on
28.2.2013 and confessed his quilt as to he
himself was driving the offending vehicle
at the time when it collided with the boom
lock
post.
He
further
states
that
subsequently, the accused was arrested and
memo of arrest was prepared which is Ext.
ka-6. This witness further proves copy of
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
G.D. as Ext. ka-7, the confessional
statement of the offending driver recorded
in the presence of owner of the vehicle
Vijay Kumar Singh as Ext. ka-8. The
statement of Vijay Kumar Singh has also
been proved by this witness as Ext. ka-9.
After technical inspection, the offending
vehicle was given in the supurdgi of the
owner thereof and the memo thereof has
been proved as Ext. ka-10 by this witness.
After completing the investigation, a
complaint was submitted to the Court
which has also been proved by him as Ext.
ka-11. Further he has fairly conceded that
after taking the accused into custody, no
identification of the accused was performed
by the gate man Mahesh Prasad.

18. PW-4 - Constable Vipin Kumar
Sharma is also said to be a witness of fact
but a perusal of his deposition shows that
he is not an eye witness of the incident but
he came to the spot after the incident took
place. He has identified his signatures over
Ext.ka-1 and Ext. ka-6.

19. The genuineness of technical
inspection report in respect of the offending
vehicle has been admitted by the learned
counsel for defence, which is Ext. ka-12.

20. Considering the oral and
documentary evidence on record adduced
by the prosecution, the trial court opined
that out of the four witnesses examined by
the prosecution, PW-1 is the only witness
who had seen the occurrence and rest of the
witnesses are formal witnesses. Discussing
the averments made by PW-1 in his
evidence, the trial court has quoted the
relevant statements made by him wherein
he states that during investigation no
identification parade of the accused was
conducted by the Investigating Officer and
the driver, who fled away after the incident,
is not identifiable by him even today.

21. In these circumstances even if
the documentary evidence produced by the
prosecution is taken to be genuine, the
Court cannot shut its eyes to the fact that in
the statement under Section 313 CrPC a
total denial to the incident is found on the
part of the accused respondent. He has
averred that he never collided with the
railway gate by driving any Truck nor
committed any offence, as alleged. The trial
court in these circumstances has opined
that
the
statements
of
the
accused
respondent and the owner of the vehicle,
allegedly recorded by the R.P.F. official,
which are produced in evidence as Ext. ka8 and Ext. ka-9 respectively require
corroboration by some other evidence.
Even if the submissions made by the
learned counsel for the appellant is taken to
be true that a confessional statement was
recorded by the driver before the R.P.F.
official which is admissible in evidence, the
question arises as to whether the accused is
liable to be convicted only on the basis of
his alleged confession made before the
R.P.F. official or any further special
sparking test was needed to prove the guilt
of the accused. To take a statement of an
accused as an admissible piece of evidence
is one thing but whether this evidence has
been corroborated by some other cogent
piece of evidence before being acted upon
is a quite different thing, particularly in a
situation where in his statement under
Section 313 CrPC rendered before the
Court of law, the accused claims his
innocence and states the same in his
statement under Section 251 CrPC as well
and thereby categorically denies as to he, in
any way, was the author of the crime. The
prosecution was under obligation to prove
by any cogent corroborative piece of
8 All. State Vs. Shivakant Bajpai
1179
evidence that the accused respondent had
confessed his guilt before the R.P.F.
official.

22. So far as the decisions relied
upon by the learned State Counsel
appearing for the appellant-State are
concerned, in Balakishan A. Devidayal
case (supra), it has been held by the
Hon'ble Apex Court as under :

"58...............in the light
of the above discussion, it is clear
that
an
officer
of
the
RPF
conducting
an
enquiry
under
Section 8 (1) of, the 1966 Act has
not. been invested will all the
powers of an officer-in-charge of a
police
station
making
an
Investigation under Chapter XIV of
the Code. Particularly, he has no
power to initiate prosecution by
filing a charge-sheet before the
Magistrate concerned under Section
173 of the Code, which his been held
to be the clinching attribute of an
investigating 'police officer'. Thus,
judged by the test laid down in
Badku Jyoti Savant's case, which has
been consistently adopted in the
subsequent, decisions noticed above,
Inspector Kakade of the RPF could
not be deemed to be a 'police officer,
within the meaning of Section 25 of
the Evidence Act, and therefore, any
confessional
or
incriminating
statement recorded by him in the
course of an inquiry under Section 8
(1) of the 1966 Act, cannot be
excluded from evidence under the
said section.

23. In State vs. Shivendra Pratap
Singh case (supra) this Court held as under
:
"4..................The
main
point to be decided in this appeal
therefore,
is
whether
the
confessional statement Ex Ka-17 is
hit under Section 162 Cr.P.C. The
learned
Assistant
Government
Advocate has placed reliance on
the case of State v Durga Prasad,
AIR 1974 SC 2136 in which it was
held that the enquiry under Sec. 8
(i)
of
the
Railway
Property
(Unlawful Possession) Act, 1966 by
an officer of the Railway Protection
Force cannot be deemed to be an
investigation for the purposes of
Sec. 162 Cr.P.C. In that case the
officer of the R. P. F. making
enquiry
had
obtained
the
signatures of the witnesses on their
statements and the argument was
that he had committed flagrant
violation of Sec. 162 Cr.P.C. and
the entire trial was vitiated because
those statements had been brought
on the record and had been put to
the witnesses in the examination-inchief. Hon'ble Supreme Court held,
overruling the decision of the High
Court that the trial was not vitiated
even
though
such-
statements
signed by the witnesses had been
brought on the record. The order of
acquittal was set aside and the
order of conviction recorded by the
Sessions Judge was restored. This
decision is dated 28-3-74 while the
learned Magistrate had decided the
present case on 11-7-73 when this
decision was not available. In that
judgment their Lordships referred
to the earlier decision in the case of
Radhu Joti Savant v. State, AIR
1966 SC 1746. It was a case under
the Central Excise and Customs
Act. The provisions of Section 21 (i)
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
(ii) of that Act and the provisions of
Sec. 8 (i) and (ii) of the Railway
Property (Unlawful Possession) Act
were held to be identical in
material respects. In the earlier
decision it was held that the
confession made by an accused
before the Central Excise Officer
was not hit under Section 25 of the
Indian Evidence Act as it would not
be deemed to have been recorded
under Section 162 CrPC. By
referring to the earlier decision of
1966 their Lordships made it
abundantly clear that the same
principles
would
apply
to
a
confessional statement made under
R. P. (U. P.) Act even though they
were
not
actually
considering
confessional statement. They were
only considering the statements of
witnesses recorded by the enquiry
officer
after
obtaining
their
signatures. In the light of this
decision of the Hon. Supreme Court
there can be no doubt that the view
taken by the learned Magistrate on
the point of Section 162 CrPC is
erroneous ami the confessional
statement (paper no. A-6) Ex. 17
cannot be hit by Sec. 162 CrPC."

24. The confession allegedly
made by the accused respondent falls
within the category of 'extra judicial
confession' and the law on the subject has
been clarified by the Hon'ble Apex Court
in a catena of decisions and the principle
that emerges out as essence from the
various decisions is that the extra judicial
confession can be accepted and can be
made the basis of conviction if it passes
the test of credibility and such confession
should inspire confidence and the Court
must find out whether there are other
cogent
circumstances
on
record
to
corroborate it.

25. In Subramanya vs. State of
Karnataka, (2023) 11 Supreme Court
Cases 255, the Hon'ble Apex Court
explaining the law on the subject held as
under :

"54.
Extra
judicial
confession is a weak piece of
evidence and the court must
ensure that the same inspires
confidence and is corroborated by
other prosecution evidence. It is
considered to be a weak piece of
evidence as it can be easily
procured
whenever
direct
evidence is not available. In order
to
accept
extra
judicial
confession, it must be voluntary
and must inspire confidence. If
the court is satisfied that the extra
judicial confession is voluntary, it
can be acted upon to base the
conviction."
"55.
Considering
the
admissibility and evidentiary value
of extra judicial confession, after
referring to various judgments, in
Sahadevan and Another v. State of
Tamil Nadu, (2012) 6 SCC 403, this
Court held as under:-
"15.1. In Balwinder Singh
v. State of Punjab [1995 Supp (4)
SCC 259 : 1996 SCC (Cri) 59] this
Court stated the principle that:
(SCC p. 265, para 10)
"10.
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
is
surrounded
by
suspicious
8 All. State Vs. Shivakant Bajpai
1181
circumstances,
its
credibility
becomes doubtful and it loses its
importance."

26. This Court cannot lose sight of
the fact that in this case the alleged extra
judicial confession made by the accused
respondent is surrounded by suspicious
circumstances because the owner of the
vehicle, who is said to have taken the
accused respondent with him to disclose
the fact that he was the person who was
driving the offending vehicle at the time of
the incident, was not chosen to be produced
as a witness by the prosecution and hence
from the very inception the alleged
confession made by the accused respondent
falls under the shadow of suspicion. In
these circumstances it appears that only to
show the good work, the R.P.F. officials
falsely roped the accused respondent in this
case. Hence, the alleged extra judicial
confession, which is not supported by any
cogent independent evidence, loses its
importance and its credibility becomes
doubtful in the case like this.

27. The observation made by the
Hon'ble Supreme Court in Pakkirisamy vs.
State of T.N. (1997) 8 SCC 158 is relevant
in the circumstances of this case, which is
as under :

"8........ It is well settled
that it is a rule of caution where the
court would generally look for an
independent reliable corroboration
before placing any reliance upon
such extra-judicial confession."

28. The evidence of R.P.F. officials
as prosecution witnesses to prove the extra
judicial confession allegedly made by the
accused / respondent cannot be taken as a
reliable piece of evidence as none of the
witnesses has seen him committing the
crime. When the accused himself denies of
any of the confessional statements made
before R.P.F. officials by him and the
owner of the vehicle, who is said to have
taken the accused with him to the R.P.F
Officers, has not come forward to depose
the aforesaid fact before the trial court, the
accused could not be convicted on the basis
of the testimony of highly interested
witnesses and in this way the prosecution
lacks an independent reliable corroboration
of the so-called extra judicial confession
made by the accused.

29.

This
Court
also
takes
cognizance of this fact that the prosecution
evidence was not explicitly clear that the
so-called extra judicial confession made by
the accused respondent was voluntarily and
true and made in a fit state of mind and in
the event of such omission made on the
part of the prosecution to prove the
aforesaid factum of confession by some
corroborative reliable piece of evidence,
the extra judicial confession cannot be
relied upon by this Court. In fact the
confession made by an accused requires to
be proved like any other fact. It is a weak
type of evidence and although there is no
absolute rule that it can never be the basis
of a conviction but ordinarily such
confession should be corroborated by some
other material evidence to enable the Court
to satisfy itself in regard to voluntariness
and truthfulness of the confession and the
corroborative evidence thereof.

30. Moreover, this fact cannot be
lost sight of that Vijay Kumar Singh, the
owner of the vehicle, was not produced by
the prosecution as a witness to prove his
statement which was given by him before
the R.P.F. officials. For want of such
substantial
evidence,
the
trial
court
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
correctly found that the accused respondent
is entitled to get benefit of doubt. The trial
court has elaborately discussed the oral and
documentary evidence on record and
reached the right conclusion and committed
no mistake in recording the acquittal of the
accused respondent.

31. The learned trial Court has
given logical and plausible findings in the
impugned judgement and has rightly
concluded
that
the
prosecution
has
miserably failed to prove its case beyond
reasonable doubt. The judgment and order
of the trial court under judicious scrutiny is
just and proper and carries no perversity
therein, hence it does not warrant any
interference by this Court. The reasoning
adopted by the learned Trial Judge is based
upon proper application of judicial mind.
No illegality or infirmity is found in the
impugned judgment and order and it needs
no interference by this Court in exercise of
its power under Section 378 CrPC.

32. Thus, the application moved by
the appellant - State to grant leave to appeal
for the reasons discussed here-in-above is
not liable to be allowed and the said prayer
is refused.

Re : Government Appeal

1. Since the application for grant of
leave to appeal has been disallowed, the
government appeal is also not liable to be
admitted and same is dismissed at this
stage.
2. This Court is thankful to learned
Advocate and Mr. Akash Verma, Research
Associate of this Court for ably assisting
the Court.
----------
(2024) 8 ILRA 1182
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2024

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Original Suit No. 1 of 2023
Alongiwith other connected cases

Bhagwan Shrikrishna Virajman & Ors.
 ...Plaintiffs
Versus
U.P. Sunni Central Waqf Board & Ors.
 ...Defendants

Counsel for the Plaintiffs:
Sri Prabhash Pandey, Sri Pradeep Kumar Sharma

Counsel for the Defendants:
Sri
Gulrez
Khan,
Sri
Hare
Ram,
Sri
Nasiruzzaman, Sri Punit Kumar Gupta

A. Chronicle of facts-Shri Krishna is
believed to have been born at Katra
Keshav Dev, Mathura, over 5000 years
ago- A temple at this site was historically
constructed and reconstructed by various
Hindu rulers, including Shri Brajnabha
(great-grandson
of
Shri
Krishna),
Chandragupta Vikramaditya, and Raja
Veer
Singh
Bundela-
temple
was
demolished multiple times by invaders like
Mahmud Ghaznavi, Sikandar Lodi, and
Aurangzeb,
the
latter
constructing
a
mosque (Shahi Idgah) over the temple
ruins in 1670- In 1815, Raja Patnimal
purchased the 13.37 acres of Katra Keshav
Dev land in a public auction conducted by
the
British-His
legal
heirs-maintained
ownership,
affirmed
through
multiple
suits and decrees till 1935- In 1951, Shree
Krishna Janmabhoomi Trust was created
by industrialist Jugal Kishore Birla- In
1964, Sewa Sansthan, a distinct entity
with no legal claim over the land, filed
Civil Suit No. 43/1967 against the Trust
Shahi Idgah- A compromise decree was
passed on 20.07.1973 and 07.11.1974 in
favour of maintaining status quo between
the structures, allegedly without authority
from the lawful trust- Multiple suits and