# Sunil Prakash Gaur v. State of U.P

- **Citation:** (2023) 9 ILRA 38
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-24
- **Case number:** Criminal Appeal No. 3480 of 2002
- **Bench:** Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-prakash-gaur-v-state-of-u-p-50800
- **Pages:** 9

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 313 & 437-A - Indian
Penal Code,1860 - Sections 307, 353, 504
& 506 - Appeal - against conviction and
Sentence - FIR - informant is a Junior
Engineer alleged that the appellant came to his
office with an open can of kerosene oil and
asked to prepare his salary - The first
informant told him that his salary had been
paid for the period he had worked - After
hearing these words, the appellant poured
kerosene oil upon the first informant and
threatened him with dire consequences - He
also threw a burning match stick upon the first
informant but the first informant fled away
from
the
spot
and
saved
himself -
investigation - Chargesheet - conviction -
sentence - Evaluation of Evidence - Court finds
that, the appellant argued that no recovery memo
of the can of kerosene oil had been proved by the
prosecution - PW-2 and PW-3 had not seen the
appellant pouring kerosene oil upon the first
informant - PW-1 is a solitary witness of the
incident - there is material contradiction between
the St.ment of PW-1 and other two eye witnesses
- The court examined the entire ocular evidence
and noted several contradictions and omissions in
the testimony of the witnesses - held - the
prosecution failed to prove the charge of offense
punishable under Section 307 of I.P.C. against the
appellant beyond pale of doubt - the appellant is
entitled to the benefit of doubt and hence,
appeal is allowed - impugned conviction as well
as sentence is set aside - consequently,
appellant is acquitted of all charges. (Para - 31,
32, 33, 34)

Appeal Allowed. (E-11)

List of Cases cited:

## Text

38 INDIAN LAW REPORTS ALLAHABAD SERIES
when required and will cooperate with the
investigation;

(ii) That the accused-appellant
shall not, directly or indirectly make any
inducement, threat or promise to any
person acquainted with the facts of the case
so as to dissuade her from disclosing such
facts to the court or to any police officer;
and

(iii) That the accused-appellant
shall not leave India without the previous
permission of the Court.

13. It is made clear that the
observation made herein above are only
confined to the disposal of the instant
criminal
appeal
i.e. anticipatory bail
application only and has no effect on the
ultimate merit of the case.
----------
(2023) 9 ILRA 38
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.08.2023

BEFORE

THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Appeal No. 3480 of 2002

Sunil Prakash Gaur ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.N. Pandey, Sri A.K. Pandey, Sri Alok
Kumar Mishra, Ms. Suman Sirohi, Sri
Rajesh Kumar Singh, Sri Shyam Singh
Somvanshi

Counsel for the Respondent:
A.G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 313 & 437-A - Indian
Penal Code,1860 - Sections 307, 353, 504
& 506 - Appeal - against conviction and
Sentence - FIR - informant is a Junior
Engineer alleged that the appellant came to his
office with an open can of kerosene oil and
asked to prepare his salary - The first
informant told him that his salary had been
paid for the period he had worked - After
hearing these words, the appellant poured
kerosene oil upon the first informant and
threatened him with dire consequences - He
also threw a burning match stick upon the first
informant but the first informant fled away
from
the
spot
and
saved
himself -
investigation - Chargesheet - conviction -
sentence - Evaluation of Evidence - Court finds
that, the appellant argued that no recovery memo
of the can of kerosene oil had been proved by the
prosecution - PW-2 and PW-3 had not seen the
appellant pouring kerosene oil upon the first
informant - PW-1 is a solitary witness of the
incident - there is material contradiction between
the St.ment of PW-1 and other two eye witnesses
- The court examined the entire ocular evidence
and noted several contradictions and omissions in
the testimony of the witnesses - held - the
prosecution failed to prove the charge of offense
punishable under Section 307 of I.P.C. against the
appellant beyond pale of doubt - the appellant is
entitled to the benefit of doubt and hence,
appeal is allowed - impugned conviction as well
as sentence is set aside - consequently,
appellant is acquitted of all charges. (Para - 31,
32, 33, 34)

Appeal Allowed. (E-11)

List of Cases cited:

1. Yogesh Singh Vs Mahabeer Singh & ors.,
(2017) 11 SCC 195,

2. Balaka Singh & ors. v. St. of Pun., AIR 1975
SC 1962,

3. Vadivelu Thevar Vs The St. of Madras, AIR
1957 SC 614,

4. C. Muniappan & ors.. Vs St. of T.N., AIR 2010
SC 3718.
(Delivered by Hon'ble Sanjay Kumar
Pachori, J.)
9 All. Sunil Prakash Gaur Vs. State of U.P.
39

1. The Present Criminal Appeal has
been preferred to set-aside the judgment
and order dated 23.8.2002, passed by
Additional Sessions Judge, Court No. 10,
Allahabad in Session Trial No. 259 of 1996
(State Vs. Sunil Prakash Gaur), by which
the trial court convicted the appellant under
Section 307 of I.P.C. and sentenced him in
Case Crime No. 1824 of 1992 under
Section 307 of I.P.C., to undergo five years
rigorous imprisonment with fine of Rs.
1,000/-, and in default of payment of fine,
three months rigorous imprisonment.

2. Brief facts of the case are that the
first information report dated 23.12.1992
was lodged by Junior Engineer of Jal
Nigam at 02:45 P.M. stating that at about
01:45 P.M. on the same day, the appellant
came to his office with an open can of
kerosene oil and asked to prepare his salary.
The first informant told him that his salary
has been paid for the period he has worked.
After hearing these words, the appellant
poured
kerosene
oil
upon
the
first
informant and threatened him with dire
consequences. He also threw a burning
match stick upon the first informant but the
first informant fled away from the spot and
saved himself. On commotion, R.K. Gupta,
R.P. Sharma, Radheyshyam and Indra Mani
Tiwari, reached at the spot. Police picket
also reached there and brought the
appellant to the police station. After
completion of investigation, charge sheet
was submitted against the appellant and the
appellant denied the charge and claimed
trial.

3. In order to prove the prosecution
case, four witnesses have been examined;
PW-1
Pramod
Kumar
Singh
(first
informant), PW-2 Radheyshyam Mishra,
PW-3 Indra Mani Tripathi and PW-4 S.I.
Gorakh Nath Rai. After examining the
prosecution witnesses, statement of the
appellant was recorded under Section 313
of Cr.P.C., wherein he stated that the
prosecution evidence is false and he has
been falsely implicated in the present case
due to enmity. The appellant has filed
attested copy of the judgment and order
dated 28.03.2001 passed in Criminal Case
No. 4793 of 1999 (State Vs. Sunil Prakash
Gaur) under Sections 353, 504, 506 of
I.P.C. passed by Special Chief Judicial
Magistrate, Allahabad. The appellant did
not adduce any other oral or documentary
evidence.

4. Before the trial Court, the appellant
argued that no recovery memo of can of
kerosene oil had been proved by the
prosecution. PW-2 Radheyshyam Mishra
and PW-3 Indra Mani Tripathi had not seen
the appellant pouring kerosene oil upon the
first informant. PW-1 is a solitary witness
of the incident. PW-2 and PW-3 have not
seen the incident of pouring of kerosene oil
by the appellant upon the first informant
and throwing a burn matchstick upon him.
There is material contradiction between the
statement of PW-1 Pramod Kumar Singh
and other two eye witnesses. It was further
argued that the Investigating Officer PW-4
S.I. Gorakh Nath Rai, has not found any
kerosene oil over the ground at the time of
the inspection of the place of incident.

5. The trial court held that the
statement regarding empty can of kerosene
oil was recorded in the General Diary,
which was proved as Ex.-Ka-5, in which it
is mentioned that empty can of kerosene oil
along-with the appellant has been brought
to the police station. The trial court further
observed that PW-2 and PW-3 have
reached at the place of incident after
pouring kerosene oil upon the first
informant and they had never stated that
40 INDIAN LAW REPORTS ALLAHABAD SERIES
they saw the incident of pouring kerosene
oil.

6. The trial court further observed that
the appellant had not disputed the fact of
the PW-1 that he poured the kerosene oil
upon the first informant and threw a burn
matchstick upon him as stated in his
examination-in-chief.

7. The trial court further observed that
the statement of the PW-4 S.I. Gorakh Nath
Rai, Investigating Officer has no relevance.
It is further observed that after three days
of the incident, there was no possibility to
found kerosene oil over the ground at the
place of incident.

8. Being aggrieved by the trial court's
judgment and order, the appellant has
preferred this appeal.

9. Learned counsel for the appellant
vehemently argued that there is material
contradiction between the evidence of PW1 (first informant) and other eye witnesses
(PW-2 and PW-3). In support thereof, it has
been pointed out that:

(a) PW-1 has stated that the
appellant reached in the office room of the
first informant and poured kerosene oil
upon him and threw a burn matchstick on
him; whereas, PW-2 and PW-3 stated that
they had seen the appellant and the first
informant quarrelling in the veranda.

(b)
PW-1
stated
that
on
commotion, PW-2 and PW-3 had reached
the place of incident and they had seen the
appellant pouring kerosene oil over him
and throwing a burn matchstick; whereas
PW-2 and PW-3 have stated that they had
not seen the appellant pouring kerosene oil
and throwing any burning a matchstick
upon the first informant.

(c) As per statement of PW-1,
place of the incident is the office of PW-1,
which is in the room; whereas the PW-2
and PW-3 stated that they had seen a
quarrel between the appellant and PW-1 in
the veranda.

(d) PW-1 has stated that the
appellant poured kerosene oil upon his
clothes, whereas PW-2 and PW-3 had not
seen any kerosene upon the cloths of PW-1.

(e) There is no recovery of cloths
of the first informant (PW-1), whereas PW1 has stated that the appellant poured
kerosene oil over his cloths, whereas the
first informant (PW-1) and police picket
have reached the place of the incident and
PW-1 lodged the F.I.R. promptly (i.e.
within one hour of the incident).

(f) There is no recovery of empty
kerosene can by which the appellant poured
the kerosene upon the first informant (PW1).

(g) There is no recovery of
kerosene earth or other article which was
not taken from the place of the incident.
PW-4 the I.O. has stated that the he did not
find any kerosene oil over the place of the
incident.

10. Per contra; learned A.G.A. for
the State defended the impugned judgment
and order passed by the trial court and
submitted that the appellant has committed
a heinous crime. Considering the gravity of
the offence, the present criminal appeal is
liable to be dismissed.

11. I have heard Sri Rajesh Kumar
Singh, learned counsel for the appellant and
Sri Ramesh Kumar Singh, learned A.G.A.
for the State and perused the material on
record.

12. Before I proceed to dwell into the
merit of the contention raised before me, it
9 All. Sunil Prakash Gaur Vs. State of U.P.
41
will be appropriate to discuss the scrutiny
of entire ocular evidence which is as
follows:

13. PW-1 Pramod Kumar Singh, in
his examination-in-chief stated that on
23.12.1992, when he was working in the
office at about 01:45 P.M., at the same
time, the appellant came there with the
kerosene oil and asked to prepare his salary
but he told him that his salary has been paid
for the period he has worked. After hearing
these words, the appellant poured kerosene
oil over the first informant and threatened
him with dire consequences and threw a
matchstick upon him but he saved himself.
On commotion R.K. Gupta, R.P. Sharma,
Radheyshyam and Indra Mani Tiwari,
(other office bearers) reached at the spot
and police picket also reached there and
brought the appellant to the police station
along-with a can of kerosene oil.

14. PW-1 stated in his crossexamination that prior to the incident the
first informant and the appellant were
working together. The appellant was
working with first informant since 1983.
PW-1 further stated that the Investigating
Officer inspected the place of incident on
the next date of the incident, but he did not
remember
when
his
statement
was
recorded.
The
Investigating
Officer
inspected the place of incident only one
time. It is further stated that the at the time
of incident, the appellant was not working
with him and he had transferred some days
before.

15. The following suggestions had
been asked as;

It is wrong to say that the salary
of 4 to 6 months was due; it is wrong to say
that the first informant stopped the bonus of
the appellant for two years; it is wrong to
say that the service of the appellant was
terminated on the recommendation of the
first informant. However, it is true that this
court has stayed the termination order. It is
wrong to say that the first informant got
annoyed due to filing of an application by
the appellant for the arrears of salary, due
to which a false case has been registered.

It is noteworthy that as per
evidence of PW-1, the incident took place
in his office and the appellant entered into
his office with a can of kerosene oil and
poured the kerosene oil over his body and
threw a matchstick over him, but no fire
was enlightened. It is also significant that
on commotion, other office bearers PW-2
Radheyshyam Mishra and PW-3 Indramani
Tripathi and police had reached the spot
immediately and they had seen the incident
and F.I.R. was lodged promptly but the
cloths of the PW-1 and can of kerosene oil
were not taken into possession.

16. PW-2 Radheyshyam Mishra, in
his examination-in-chief stated that the
appellant was sub-ordinate to the first
informant. Prior to 8 years ago at about
02:00 P.M., when he reached in the office
of H.C. Gupta, hearing the noise he went to
the spot and saw that P.K. Singh (PW-1)
and the appellant were arguing and
quarrelling. He also saw that the kerosene
oil was spread on the floor of office below
the table of P.K. Singh. When the appellant
tried to escape, people surrounded him and
brought him to Colonelganj police station.

17. PW-2 has stated in his crossexamination that he saw the appellant and
first informant arguing each other in the
portico (veranda). He did not hear that the
appellant has asked to prepare his salary
and he was not present in the room at the
time of incident. The appellant was
42 INDIAN LAW REPORTS ALLAHABAD SERIES
working as sub-ordinate to PW-1 at the
time of the incident.

Having
gone
through
the
evidence of PW-2, the witness saw the
appellant and the first informant in the
portico (veranda) but he did not reach the
place of incident. The witness saw kerosene
oil below the table but it is significant that
there is material contradiction between the
statement of the PW-1 and PW-2. Firstly,
he has stated in his examination-in-chief
that he reached at the place of incident
(office situated in a room) and saw a
manhandling between the appellant and the
first informant; whereas in his crossexamination he has stated that he saw the
appellant and the first informant in the
veranda.

It is significant that witness had
not seen any kerosene soaked clothes of the
first informant and also did not see the fire
burning in the office. It is significant that
PW-2 did not see any act of pouring
kerosene
oil
and
throwing
a
burn
matchstick upon the first informant and
PW-2 stated that at the time of the incident,
the appellant was sub-ordinate to the first
informant but PW-1 has stated that the
appellant was not working with him at the
time of the incident.

18. PW-3 Indramani Tripathi, in his
examination-in-chief
stated
that
the
appellant was sub-ordinate to P.K. Singh
(PW-1) on the date of incident. Prior to 9
years ago at about 02:00 P.M. hearing the
noise, he went to the spot and saw that P.K.
Singh, and the appellant were arguing and
quarrelling
for
preparing
salary
and
kerosene oil was spread on the floor of
office below the table of P.K. Singh. After
that police came and brought the appellant
to police station.

19.

PW-3
in
his
crossexamination stated that he was not present
in the room. He went along with first
informant to the police station. His
statement under Section 161 of Cr.P.C. was
recorded after one month of the incident.
No article was recovered from the spot. The
salary of the appellant got prepared on the
basis of recommendation of the first
informant and the appellant was subordinate of the first informant.

It
is
noteworthy
that
in
examination-in-chief,
this
witness
has
stated that he reached at the place of
incident (room) where hot talks were
exchanged between the appellant and first
informant and the kerosene oil were spread
over the table and below the table. At the
time of incident, he was not present in the
room and no article was recovered from the
place of incident. There is no dispute with
regard to reaching in the room of this
witness (PW-3). PW-3 had not seen any fire
or burning matchstick or kerosene soaked
clothes of the first informant.

It is significant that PW-2 and
PW-3 reached immediately after the
incident but they had not seen any kerosene
oil over the cloths of the first informant.

20. PW-4 S.I. Gorakh Nath, has
investigated the case and during the
investigation, he noted the statement of
witnesses and prepared the site map which
is Ex-Ka-2 and also submitted the charge
sheet against the appellant in the court,
which is Ex-Ka-3.

21. PW-4 S.I. Gorakh Nath, in his
cross-examination stated that the F.I.R. was
not lodged in his presence. The statement
of the first informant was recorded on the
same day of the lodging of the F.I.R. On
26.12.1992, he had gone for inspection. At
9 All. Sunil Prakash Gaur Vs. State of U.P.
43
the time of the inspection, the kerosene oil
was not found there.

It is significant that the statement
of PW-4 was recorded by the Investigating
Officer on the same day, but kerosene
soaking cloths were not taken into
possession by the Investigating Officer. It is
significant that the Investigating Officer
had not taken any kerosene soaking earth or
simple earth from the place of incident.

22. PW-1 first informant/ injured has
stated that the appellant was not his subordinate at the time of incident; whereas
PW-2 and PW-3 stated in their crossexamination have stated that the appellant
was under administrative control of the
PW-1. There is inconsistency between the
statement of PW-1, PW-2 & PW-3 with
regard to motive of the incident.

23. Having noticed the contentions of
learned counsel for the parties and having
taken a glimpse of the evidence on record,
now I shall weigh the argument of learned
counsel for the appellants that there is
contradiction with regard to motive of the
inicident.

24. Now I shall proceed to examine
contradictions
and
omissions
in
the
testimony of the witnesses which have been
highlighted during the course of arguments.
There are following material contradiction
between the testimony of the witnesses:

(a) PW-1 has stated that the
appellant reached in the office room of the
first informant and poured kerosene oil
upon him and threw a burn matchstick on
him; whereas, PW-2 stated that they had
seen the appellant and the first informant
quarrelling in the veranda and PW-2 stated
that he was not present in the room at the
time of the incident.

(b)
PW-1
stated
that
on
commotion, PW-2 and PW-3 had reached
the place of incident and they had seen the
appellant pouring kerosene oil over him
and throwing a burn matchstick; whereas
PW-2 and PW-3 have stated that they had
not seen the appellant pouring kerosene oil
and throwing any burning a matchstick
upon the first informant.

(c) As per statement of PW-1,
place of the incident is the office of PW-1,
which is in the room; whereas the PW-2
stated that they had seen a quarrel between
the appellant and PW-1 in the veranda.

(d) PW-1 has stated that the
appellant poured kerosene oil upon his
clothes, whereas PW-2 and PW-3 had not
seen any kerosene upon the cloths of PW-1.

(e) There is no recovery of cloths
of the first informant (PW-1), whereas PW1 has stated that the appellant poured
kerosene oil over his cloths, whereas the
first informant (PW-1) and police picket
have reached the place of the incident and
PW-1 lodged the F.I.R. promptly (i.e.
within one hour of the incident).

(f) There is no recovery of empty
kerosene can by which the appellant poured
the kerosene upon the first informant (PW1).

(g) There is no recovery of
kerosene earth or other article which was
not taken from the place of the incident.
PW-4 the I.O. has stated that the he did not
find any kerosene oil over the place of the
incident.

25. As to what would be the
consequence of such discrepancy in the
testimony of the eye-witnesses, it would be
useful to notice few decision of the Apex
Court. In Yogesh Singh v. Mahabeer
Singh and Others, (2017) 11 SCC 195, the
44 INDIAN LAW REPORTS ALLAHABAD SERIES
Apex Court has observed as under; (SCC p.
212, para 29)

"29. It is well settled in law that
the minor discrepancies are not to be given
undue emphasis and the evidence is to be
considered from the point of view of
trustworthiness. The test is whether the
same inspires confidence in the mind of the
Court. If the evidence is incredible and
cannot be accepted by the test of prudence,
then it may create a dent in the prosecution
version. If an omission or discrepancy goes
to the root of the matter and ushers in
incongruities,
the
defence
can
take
advantage of such inconsistencies. It needs
no special emphasis to state that every
omission cannot take place of a material
omission
and,
therefore,
minor
constradictions,
inconsistencies
or
insignificant embellishments do not affect the
core of the prosecution case and should not
be taken to be a ground to reject the
prosecution evidence. The omission should
create a serious doubt about the truthfulness
or creditworthiness of a witness. It is only the
serious contradictions and omissions which
materially affect the case of the prosecution
but not every contradiction or omission."
(See: Rammi @ Rameshwar v. State of M.
P.1; Leela Ram (dead) through Duli Chand v.
State of Haryana & Anr.2; Bihari Nath
Goswami v. Shiv Kumar Singh & Ors.3; Vijay
@ Chinee v. State of Madhya Pradesh4;
Sampath Kumar v. Inspector of Police,
Krishnagiri5; Shyamal Ghosh v. State of
Bengal6 and Mritunjoy Biswas v. Pranab @
Kuti Biswas and Anr.7)

26. In Balaka Singh and Others v.
State of Punjab, AIR 1975 SC 1962, the
Apex Court observed:

"8...It is true that, as laid down
by this Court in Zwinglee Arivel v. State of
Madhya Pradesh8, and other cases which
have followed that case, the Court must
make an attempt to separate grain from the
chaff, the truth from the falsehood, yet this
could only be possible when the truth is
separable from the falsehood. Where the
grain cannot be separated from the chaff
because the grain and the chaff are so
inextricably mixed up that in the process of
separation the Court would have to
reconstruct an absolutely new case for the
prosecution by divorcing the essential
details
presented
by
the
prosecution
completely from the context and the
background against which they are made,
then this principle will not apply..."

27. In Vadivelu Thevar v. The State
of Madras, AIR 1957 SC 614, the Apex
Court held that if the testimony of a sole
witness is found by the court to be entirely
reliable, there is no legal impediment in
recording the conviction of the accused on
such proof. It has been further laid down
that the law of evidence does not require
any particular number of witnesses to be
examined in proof of a given fact.
However, faced with the testimony of a
single witness, the court may classify the
oral
testimony
into
three
categories,
namely, (i) wholly reliable, (ii) wholly
unreliable, and (iii) neither wholly reliable
nor wholly unreliable. In the first two
categories there may be no difficulty in
accepting or discarding the testimony of the
single witness. The difficulty arises in the
third category of cases. The court has to be
circumspect and look for corroboration in
material particulars by reliable testimony,
direct or circumstantial, before acting upon
the testimony of a single witness. A similar
view has been expressed in Kusti Mallaiah
vs State of A.P.9, Lallu Manjhi and Anr. v.
State of Jharkhand10, Jhapsa Kabari and
Ors. v. State of Bihar11.
9 All. Sunil Prakash Gaur Vs. State of U.P.
45

28. There are several lapses in the
investigation of the case like non-recovery
of kerosene can, kerosene soaked cloths of
PW-1 and kerosene earth and simple earth
from the place of the incident. However, it
is well-settled that any omission on the part
of the Investigating Officer cannot go
against the prosecution case if it is
otherwise
supported
by
reliable
and
credible evidence. In C. Muniappan and
Ors. v. State of Tamil Nadu, AIR 2010
SC 3718, the Apex Court observed as
under;

"The defect in the investigating
by itself cannot be ground for acquittal. If
primacy is given to such designed or
negligent investigation or to the omissions
or lapses be perfunctory investigation, the
faith and confidence of the people in the
criminal justice administration would be
eroded. Where there has been negligence
on the part of the investigating agency or
omissions, etc. which resulted in defective
investigation, there is a legal obligation on
the part of the Court to examine the
prosecution evidence dehors such lapses,
carefully, to find out whether the said
evidence is reliable or not and to what
extent it is reliable and as to whether such
lapses affected the object of finding out the
truth. Therefore, the investigation is not the
solitary area for judicial scrutiny in a
criminal trial. The conclusion of the trial in
the case cannot be allowed to depend solely
on the probity of investigation."

29. Thus the prosecution cannot be
doubted merely on the ground of nonrecovery of can of kerosene oil, kerosene
soaking earth or simple earth from the
place of incident and kerosene soaking
cloths of the first informant/ injured PW-1
but in the present case PW-1 had reached
the police station immediately after the
incident without changing the clothes F.I.R.
was lodged by him and the Investigating
Officer PW-4 has recorded the statement of
the first informant on the same day and
there was ample opportunity to recover the
articles noticed above.

30. The prosecution has not proved
the recovery of the can of kerosene oil. The
Investigating Officer did not found any
kerosene oil at the place of incident at the
time of inspection. There is material
contradictions between the evidence of
PW-1 and the evidence of PW-2 and PW-3.
As per prosecution case, police personnel
came at the place of incident but no
independent
witness
was
examined
regarding the same fact.

31. On a totality of the consideration
of entire evidence and keeping in mind the
settled position of law, I am unhesitatingly
of the opinion that the testimony of eyewitnesses PW-1 Pramod Kumar Singh,
PW-2 Radheyshyam Mishra, PW-3 Indra
Mani Tripathi and PW-4 S.I. Gorakh Nath
Rai, is unreliable. In support of this
conclusion regard be had to the following
circumstances:

(i) Despite lodging the F.I.R.
immediately after the incident, kerosene
soaking cloths of the first informant and
can of kerosene oil were not recovered.

(ii) As per prosecution case, not a
single article was burnt in the incident and
PW-2 and PW-3 have not stated anything
with regard to seeing the incident of
pouring kerosene oil.

(iii)
There
is
material
contradiction between the statement of PW1, PW-2 & PW-3 with regard to place of
incident.

(iv)
There
is
material
contradiction in the evidence of PW-1, who
46 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that PW-2 and PW-3 had reached the
place of incident and they saw the incident;
whereas PW-2 stated that they had seen the
appellant and the first informant in the
Varanda.

(v) No kerosene soaking earth
and simple earth were recovered from the
place of incident. PW-4 Investigating
Officer had stated that he did not see any
kerosene oil over the place of incident at
the time of inspection.

32. The contrary view taken by the
trial court is against the weight of the
evidence.
I
hardly
find
objective
evaluation, analysis, or scrutiny of evidence
in a proper perspective. The serious
infirmities pointed out by the defence
raising doubt with regard to the prosecution
case have been brushed aside by the
learned trial judge. The trial court, in my
view, was not right and justified in lightly
brushing aside the contradictions and
omissions borne out from the prosecution
evidence, that too, when the entire
prosecution rested on a sole eye-witness,
PW-1 Pramod Kumar Singh.

33. For all the reasons recorded and
discussed above, I am of the considered
view that the prosecution has failed to
prove the charge of offence punishable
under Section 307 of I.P.C. against the
appellant Sunil Prakash Gaur beyond
reasonable doubt. As the evidence on
record does not bring home the guilt of the
appellant beyond the pale of doubt, the
appellant is entitled to the benefit of doubt.
Consequently, the appellant is entitled to be
acquitted of the charge for which he was
tried.

34. As a result, criminal appeal is
allowed. The judgment and order of
conviction as well as sentence recorded by
the trial court dated 23.08.2022 is set aside.
The appellant is acquitted of all the
charges. The appellant is on bail, therefore,
his personal bonds and sureties are hereby
discharged. The appellant Sunil Prakash
Gaur will fullfill the requirement of section
437-A Cr.P.C. to the satisfaction of the trial
Court at the earliest.

35. The trial court record be returned
forthwith together with a certified copy of
this judgment for compliance. The office is
further directed to enter the judgment in
compliance register maintained for the
purpose of the Court.
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(2023) 9 ILRA 46
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Capital Case No. 4050 of 2016
Reference No. 7 of 2016

Ranvir Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Ms. Tanisha Jahagir Monir

Counsel for the Respondent:
G.A.

Criminal
Law-Criminal
Procedure
Code,1973-Section 374(2) - Indian Penal
Code,1860- Sections 302/34, 302/120B -
Arms Act, 1878 - Section 25 of-Challenge
to-Capital punishment- ocular testimony
of PW-2 and PW-3 that supports the
prosecution
case,
is
reliable
and
trustworthy-The contradictory statements
have been made with an ulterior motive to