# Sushma Maurya v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 402
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-21
- **Case number:** U/S 378 Cr.P.C. No. 216 of 2016
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushma-maurya-v-state-of-u-p-anr-46566
- **Pages:** 7

## Headnote

from the roof-no direct evidence-chain of
circumstantial evidence not complete-motive of
crime not established-postmortem shows no
poison nor such injuries as claimed.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

402 INDIAN LAW REPORTS ALLAHABAD SERIES
sale-deed set up by the petitioner (in that case),
to be void ab initio. Neither such facts exist in
this case, nor that ratio may arise, in the context
of section 34 of the Act.

46. As to the objection with respect to the
relief, we find, the petitioner has sought a writ of
Mandamus, to restrain the respondents from
making any recovery from the personal assets of
the petitioner. The exact wording of the prayer
clause apart, in effect that prayer is duly supported
by pleadings and material on record. In absence of
any doubt as to the rights of the parties that stand
established on the strength of undisputed facts
noted above, it would be hyper technical to deny
relief to the petitioner. The substance and the
essence of the prayer made is clear. It arises on a
clear cause of action admittedly existing, in the
shape of the attachment order enforced by the State
respondents. Also, all material facts giving rise to
the cause of action and for our decision are
undisputed.

47. In such undisputed facts and in the
position of law discussed above, the writ Court
cannot be seen to be diffident or stingy in granting
the consequential relief. A writ Court ensures
obedience to the rule of law. In that process, relief
may flow to the petitioner as a natural outcome of
the exercise. Once, the facts are clear and the
crease or doubt in law stands cleared, relief must
flow unhindered, upon application of that law to
the clear facts of the case. It may not be obstructed
on mere technicalities - such as the objection to the
exact wording of the prayer clause.

48. Consequently, the respondents are
restrained from proceeding against the personal
assets of the petitioner or the ''property-in-dispute',
so however, they may remain at liberty to recover
their dues from respondent no. 7 and its properties,
in accordance with law.

49. The writ petition is allowed. No order
as to costs.
----------
(2021)11ILR A402
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.09.2021

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

U/S 378 Cr.P.C. No. 216 of 2016

Sushma Maurya ...Applicant
Versus
State of U.P. & Anr. ...Opposite Party

Counsel for the Applicant:
Mr. Mukesh Barnwal, Mr. Lal Ji Gupta, Mr. Rajeev
Singh

Counsel for the Opposite Party:
Mr. Arunendra, A.G.A., Mr. S.K. Tripathi

Appeal against the acquital of accused-allege
poison was mixed in the liquor of the
deceased-and after that threw the dead body
from the roof-no direct evidence-chain of
circumstantial evidence not complete-motive of
crime not established-postmortem shows no
poison nor such injuries as claimed.

Appeal dismissed. (E-9)

List of Cases cited:

1. Shivaji Chintappa Patil Vs St. of Mah. , (2021) 5
SCC 626,

2. Anwar Ali & anr. Vs The St. of H.P. :(2020) 10 SCC
166

3. Achhar Singh Vs St. of H.P. reported in (2021) 5
SCC 543

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This appeal alongwith application under
Section 378 (3) of the Code of Criminal
Procedure, 1973( in short 'Cr.P.C.') has been
filed by Sushma Maurya, the mother of the
deceased with a prayer that leave to appeal may
11 All. Sushma Maurya Vs. State of U.P. & Anr.
403
be granted against the judgment and order dated
19.08.2016 passed by Additional Sessions
Judge/ Special Judge Anti Corruption Act, Court
No.1, Lucknow in Sessions Trial No.432 of
2011, (Case Crime No.431 of 2008) State of
U.P. Vs. Girja Shankar Mishra) under Section
302, 201 of the Indian Penal Code ( in short
'I.P.C.'), Police Station Bazar Khala, District
Lucknow whereby the trial court acquitted the
accused / respondents.

2. Heard Shri Lalji Gupta, learned counsel
for the appellant, Sri S.K. Tripathi, learned
counsel for the accused/respondent No.2 and Sri
Arunendra learned Additional Government
Advocate
(in
short
'A.G.A.')
for
the
respondent/State of U.P., perused the impugned
judgment and order and record of the trial court.

3. Shorn of unnecessary details, the facts
necessary for the disposal of this appeal are as
under :-

4. .A First Information Report (in short
'F.I.R.') was registered on the basis of a written
report presented by the complainant Jagdish
Prasad Maurya, the father of the deceased on
17.10.2008 in Police Station Bazar Khala,
District Lucknow at Case Crime No.431 of
2008, under Sections 302 & and 201 of the
I.P.C.. In written report it was stated that
Sanjeev Maurya son of the complainant, on
11.10.2008 at about 8:00 PM left the house on
his Motorcycle No.UP 32 CP 0407 telling him
that he (Sanjeev Maurya) was going to attend a
function at the house of some Vikas Jaiswal.
When he did not return late in the night, the
complainant tried to contact on his mobile
numbers 9336110444 and 9415581178, but
could not connect. The complainant tried to
search his son, but could know nothing in the
night. Next morning on 12.10.2008 at about 7:00
AM the people of locality informed him that
dead body of Sanjeev Maurya was lying in the
lane behind the house of Maikyu Yadav, upon it
he went there and found the dead body of his
son. The face of his son became black and no
visible injury was there on the body. Thereafter
he gave written information to the Police Station
about the death of his son. After cremation of
dead body he inquired about the death of his son
from the people and he came to know that on the
date of incident at about 9:00 PM Maiku Yadav
conversed with his son Sanjeev Maurya,
thereafter Girja Shankar, Pankaj Jaiswal, Anshu
Yadav and others went to liquor shop situated at
Bulaki Bus Stand alongwith his son. There they
made his son consume liquor and they all also
consumed liquor. At about 11:00 PM in the
night they all came back to the house of Vikas
Jaiswal, where Maiku Yadav, Vikas Jaiswal and
others were present. They all took his son on the
roof of the house, there also they all consumed
liquor and made his son to consume liquor, in
the meantime they mixed poison in the liquor of
his son and he died of that. There after they
threw the dead body in the lane from the roof.
He doubted that these people due to some
enmity mixed the poison in the liquor and killed
his son. The Motorcycle of his son got parked
near the house of Vikas Jaiswal and Maiku
Yadav at some distance in locked condition.

5. The investigation was made, the
Investigating Officer found no involvement of
Maiku Yadav, Vikas Jaiswal, Pankaj Jaiswal,
Amit Shukla and Anshu Verma and dropped
their names. The Charge-sheet was submitted in
the Court only against Girja Shankar accused
/respondent No.2. The Chief Judicial Magistrate
concerned after taking cognizance committed
the case to the Court of Sessions for trial. The
Trial Court framed charges under Sections 302
and 201 of I.P.C. against the accused. The
accused denied the charges and claimed to be
tried. In order to prove the charges, the
prosecution examined ten witnesses, PW1 Smt.
Sushma Maurya (mother of the deceased and
wife of the complainant), PW2 Surendra Kumar,
PW3 Pradeep Kumar, PW4 Dr. Nurul Haq
404 INDIAN LAW REPORTS ALLAHABAD SERIES
Siddiqui, PW5 Constable Hari Charan, PW6 Sub
Inspector Arun Kumar Dubey, PW7 Deepak
Singh, PW8 Head Constable- Hari Prasad
Shukla, PW9 Station House Officer- Jai Karan
Singh and PW10- Sub Inspector Lal Mani
Tiwari. In documentary evidence Exhibit- Ka-1
to Exhibit Ka-13 were also proved. Thereafter
statement of accused under Section 313 of the
Cr.P.C. ('in short Criminal Procedure Code') was
recorded. He denied the crime and stated that
witnesses have deposed falsely. He is innocent
and has been implicated in the crime only on the
basis of doubt.

6. The trial court after analysing the
evidence available on record came to the
conclusion that prosecution has failed to prove
that the deceased was 'last seen' in the company
of the accused, beyond reasonable doubt. It is
not established that the accused administered the
poisoned liquor to the deceased. The statement
of witnesses in this regard are not trust worthy as
they have given contradictory statements.
Therefore, the trial Court acquitted the accused.
Being dissatisfied of the acquittal, the mother of
deceased Smt. Sushma Maurya filed this appeal
alongwith application under Section 378 (3) of
Cr.P.C.

7. As far as application under Section
378(3) is concerned, the proviso added to
Section 372 by Code of Criminal Procedure
(Amendment) Act, 2008, w.e.f. 31.12.2009
confers right on the victim to prefer an appeal
against acquittal or conviction for lesser offence
of accused. Hence, in our considered opinion,
there is no need for seeking permission under
Section 378(3) Cr.P.C. for filing the appeal by
the mother of the deceased. The application
under Section 378(3) Cr.P.C. is disposed of
accordingly.

8.

Learned
counsel
for
the
applicant/appellant challenged the impugned
order mainly on the grounds that learned trial
court did not consider the motive of the crime.
There
was
dispute
of
Rs.50,000/-
(fifty
thousand) between the deceased and the
accused. The accused took the deceased from his
house on a pretext to go to attend a function. The
deceased was 'last seen' in the company of
accused. The accused did not explain under what
circumstances and when deceased parted with
him. The burden was on the accused under
section 106 of the Indian Evidence Act. The
Trial Court disbelieved the evidence of
witnesses of facts for minor contradictions.

9. Contrary to it learned counsel for the
respondent No.2/ accused argued that there is no
reliable evidence on record to prove the fact that
deceased was 'last seen ' in the company of the
accused or the accused has any connection with
the crime. There is no evidence of moneydispute between the accused and the deceased.
No motive of the crime has been proved. The
accused/respondent has been implicated in the
crime on the basis of doubt only. The
confessional statement allegedly made in police
custody is not admissible under Section 25 of
the Indian Evidence Act. The prosecution has
failed to prove the charges against the accused
beyond reasonable doubt, hence the learned trial
court
has
rightly
acquitted
the
accused/respondent No.2. Therefore, the appeal
deserves to be dismissed.

10. Considered the rival submissions and
perused the record of the trial. Admittedly the
case is based on circumstantial evidence, as
there is no eyewitness of the crime. The most
important principle of criminal jurisprudence is
that accused is considered innocent until proved
guilty. In a case based on circumstantial
evidence heavy duty lies on the court to examine
the evidence with great care and caution to hold
an accused guilty. In a case based on
circumstantial evidence, it is necessary that
chain of circumstances should be intact and all
the circumstances must indicate that in all
11 All. Sushma Maurya Vs. State of U.P. & Anr.
405
probabilities the crime was committed by the
accused and accused alone. There should be no
space for doubt that some one else could have
committed the crime. The Hon'ble Apex Court
in this regard in the case of Shivaji Chintappa
Patil Vs. State of Maharashtra reported in
(2021) 5 SCC 626, the Hon'ble Supreme Court
has laid down as under ( para 12 ):-

"12. The law with regard to conviction
on the basis of circumstantial evidence has
been very well crystalised in the judgment of
this Court in Sharad Birdhichand Sarda v. State
of Maharashtra :-(SCC p.185, paras 153-54)

"153. A close analysis of this decision
would show that the following conditions must
be fulfilled before a case against an accused can
be said to be fully established:

(1) the circumstances from which the
conclusion of guilt is to be drawn should be fully
established.

It may be noted here that this Court
indicated that the circumstances concerned
"must or should" and not "may be" established.
There is not only a grammatical but a legal
distinction between "may be proved" and "must
be or should be proved" as was held by this
Court in Shivaji Sahabrao Bobade v. State of
Maharashtra where the observations were
made: [SCC p. 807 : para 19, SCC (Cri) p.
1047]

"19. .....Certainly, it is a primary principle
that the accused must be and not merely may be
guilty before a court can convict and the mental
distance between "may be" and "must be" is
long and divides vague conjectures from sure
conclusions."

(2) the facts so established should be
consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty,

4) they should exclude every possible
hypothesis except the one to be proved, and

(5) there must be a chain of evidence
so complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that in
all human probability the act must have been
done by the accused.

154. These five golden principles, if we
may say so, constitute the panchsheel of the
proof of a case based on circumstantial
evidence."

11. In the present matter Jagdish Prasad
Maurya, the father of the deceased lodged F.I.R.
after a delay of six days. Previously on the next
day of incident he just informed at the Police
Station about the death of his son. In the F.I.R.
there is no mention of any money-dispute
regarding Rs.50,000/-(fifty thousand) between
accused and the deceased. This fact was
disclosed for the first time in the Court by PW1
Smt. Sushma Maurya, the mother of the
deceased in her examination-in-chief. But in her
cross-examination she has stated that she had no
knowledge about the money transactions done
by the deceased. She further stated that this
would be in the knowledge of the wife of the
deceased. The wife of the deceased had not been
examined in the Court. The Investigating Officer
PW 10 had stated that the wife of the deceased
told him that her husband neither had enmity nor
money-dispute with any one. There is no
evidence of money dispute between the accused
and deceased except the statement of PW1 the
mother of the deceased in her examination-inchief. During the investigation, the mother of the
deceased gave affidavit to the Circle-Officer
concerned, but in that affidavit too there is no
mention about the money-dispute between the
406 INDIAN LAW REPORTS ALLAHABAD SERIES
accused and the deceased. This fact was neither
mentioned in the F.I.R. nor in the information
given to the Police Station in the beginning, on
the day when the dead body was recovered.
Unfortunately, the complainant-father of the
deceased could not be examined as he died.

12. Learned counsel for the appellant
argued that accused had admitted that there was
dispute of Rs.50,000/-(fifty thousand) between
deceased and him, so he killed the deceased, in
police custody, but this argument is not tenable
as the confession made in police custody is not
admissible as has been provided under Section
25 of the Indian Evidence Act, unless in regard
of some discovery as provided under Section 27
of the Indian Evidence Act. Hence, it is clear
that prosecution has failed to establish the
motive of the crime. Though, it is not necessary
to prove the motive always, as no body can peep
into the mind of an author of the crime, but in
the case based on circumstantial evidence the
motive plays an important role, rather it helps to
connect the chain of the circumstances. In this
matter the prosecution has failed to prove the
motive of the crime.

13. The Hon'ble Apex Court in the case of
Anwar Ali and another Vs. The State of
Himanchal Pradesh :(2020) 10 SCC 166, has
held as under (Paragraph 24 ) :-

"24. Now so far as the submission on
behalf of the accused that in the present case the
prosecution has failed to establish and prove the
motive and therefore the accused deserves
acquittal is concerned, it is true that the absence
of proving the motive cannot be a ground to
reject the prosecution case. It is also true and as
held by this Court in Suresh Chandra Bahri v.
State of Bihar 1995 Supp (1) SCC 80 that if
motive is proved that would supply a link in the
chain of circumstantial evidence but the absence
thereof cannot be a ground to reject the
prosecution case. However, at the same time, as
observed by this Court in Babu (supra), absence
of motive in a case depending on circumstantial
evidence is a factor that weighs in favour of the
accused. In paras 25 and 26, it is observed and
held as under (Babu's case SCC pp.200-01) :

"25. In State of U.P. v. Kishanpal, this
Court examined the importance of motive in
cases of circumstantial evidence and observed:
(SCC pp. 87-88, paras 38 -39)

"38. ... the motive is a thing which is
primarily known to the accused themselves and
it is not possible for the prosecution to explain
what actually promoted or excited them to
commit the particular crime.

39. The motive may be considered as a
circumstance which is relevant for assessing the
evidence but if the evidence is clear and
unambiguous and the circumstances prove the
guilt of the accused, the same is not weakened
even if the motive is not a very strong one. It is
also settled law that the motive loses all its
importance in a case where direct evidence of
eyewitnesses is available, because even if there
may be a very strong motive for the accused
persons to commit a particular crime, they
cannot be convicted if the evidence of eye
witnesses is not convincing. In the same way,
even if there may not be an apparent motive but
if the evidence of the eyewitnesses is clear and
reliable, the absence or inadequacy of motive
cannot stand in the way of conviction."

26. This Court has also held that the
absence of motive in a case depending on
circumstantial evidence is a factor that weighs
in favour of the accused. (Vide Pannayar v.
State of T.N."

14. Now comes the 'last seen evidence'
counsel for the appellant argued that the learned
trial court has committed grave error in not
relying on the evidence of PW 2 & 3 regarding
11 All. Sushma Maurya Vs. State of U.P. & Anr.
407
the fact that deceased was 'last seen' in the
Company of the accused. In this regard PW1,
the mother of the deceased has stated in her
examination-in-chief that accused along with
others has came to her house and her deceased
son left with them to attend a function. But in
her cross-examination she has stated that she did
not know whether Girja Shankar, accused came
to her house before incident. She has stated that
she could not see who were driving the
motorcycle or who was riding on that. She has
further stated in her cross-examination that Girja
Shankar, accused had no enmity with her
deceased son. In the affidavit given to CircleOfficer, Bazar Khala, Lucknow, during the
investigation, Smt. Sushma Maurya has stated
that on 11.10.2008 at about 8:00 PM, Anshu
Verma and Amit Shukla came to call her son. In
that affidavit too she has not disclosed the name
of Girja Shankar. PW2 Surendra Kumar and
PW3 Pradeep (cousin of the deceased) have
been examined as witnesses of 'last seen
evidence'. The trial court rightly did not find
them trustworthy for the reason that their
statements show that they did not watch the
deceased in the Company of the accused and
others. PW2 Surendra Kumar has stated that
while going to watch Ramlila on the day of
incident at about 8:30 to 9:00 PM in the night he
saw that under the 'Banyan Tree' the accused
Girja Shankar alongwith others was conversing
amongselves, thereafter Girja Shankar pulled
Sanjeev Maurya towards the house of Maiku
Yadav. In the cross-examination this witnesses
has stated that he did not know the friends and
relatives of the deceased. He came there
alongwith Pradeep (PW3) to work as labour in
the house of deceased, which was under
construction at the time. He denied that he gave
any affidavit to the police, while PW9 the
Investigating-Officer Jai Karan Singh has stated
that an affidavit was given by him. PW3 Pradeep
has stated that on the night of incident at about
10:30 PM while going to watch Ramlila
alongwith Surendra Kumar he saw that in front
of house of Pankaj under the 'Peepal Tree'
accused alongwith others were pulling the
deceased Sanjeev Maurya towards the house of
Pankaj Jayaswal. This witness is admittedly
cousin of the deceased. It appears unnatural
when he watched the accused pulling the
deceased into the house of Pankaj Jaiswal why
he did not inform the parents of the deceased
who were his near relatives. Apart from it, PW 2
and 3 both have stated that they were going to
watch Ramlila, but time has been narrated
differently. PW 2 has stated that he saw the
accused and deceased at about 8:30 to 9:00 PM
while PW3 has told the time 10:30 PM. There is
a contradiction on the point in the statement of
these two and also that they have stated that they
both have gone to watch Ramlila. In the F.I.R.
Exhibit Ka-1 it has been stated that deceased
alongwith accused and others came back at
about 11:00 PM in the night after consuming
liquor from Model Shop situated at Bulaki Bus
Stand. Hence at that time the presence of PW 2
and 3 as per their own statement is highly
improbable as they both have gone to watch
Ramlila together.

15. Thus the factum of 'last seen' is not
established
by
the
prosecution
beyond
reasonable doubt. Now comes the argument of
the appellant counsel that under Section 106 of
the Indian Evidence Act, the burden was on the
accused to explain how he parted from company
of the deceased. Section 106 of the Indian
Evidence Act runs as under:-

"106.
Burden
of
proving
fact
especially within knowledge.- When any fact is
especially within the knowledge of any person,
the burden of proving that fact is upon him."

16. This Section comes into play when it is
established that deceased was 'last seen' in the
company of the accused and not before that. As
has been noted above that prosecution could not
establish the fact that the deceased was 'last seen'
408 INDIAN LAW REPORTS ALLAHABAD SERIES
in the company of the accused, so it is not
required on the part of the accused to explain
how the deceased parted from his company. In
other word the burden cannot be shifted on the
accused.

17. Thus to sum up it is clear that the case is
based on circumstantial evidence as no eyewitness
of the incident was there. F.I.R. was lodged after a
delay of 6 days and no plausible explanation of
delay is on the record. The motive of the crime has
not been alleged in the F.I.R., but disclosed in the
statement of PW1 for the first time in the Court
and that too has not been proved. The fact of 'last
seen' has not been established beyond reasonable
doubt. There is no evidence of mixing poison in
the liquor by the accused and to administer the
same to the deceased.

18. More over, the view of the trial court is
possible view. The Hon'ble Apex Court in the case
of Achhar Singh Vs. State of Himachal Pradesh
reported in (2021) 5 SCC 543, has laid down as
under ( para 16) :-

"16. It is thus a well crystalized principle
that if two views are possible, the High Court
ought not to interfere with the trial Court's
judgment.
However,
such
a
precautionary
principle cannot be overstretched to portray that
the "contours of appeal" against acquittal under
Section 378 CrPC are limited to seeing whether or
not the trial Court's view was impossible. It is
equally well settled that there is no bar on the
High Court's power to re-appreciate evidence in
an appeal against acquittal. This Court has held in
a catena of decisions (including Chandrappa v.
State of Karnataka, State of Andhra Pradesh v.
M. Madhusudhan Rao, And Raveen Kumar v.
State of Himachal Pradesh) that the Cr.P.C does
not differentiate in the power, scope, jurisdiction
or limitation between appeals against judgments of
conviction or acquittal and that the appellate
Court is free to consider on both fact and law,
despite the self-restraint that has been ingrained
into practice while dealing with orders of acquittal
where there is a double presumption of innocence
of the accused".

19. In the light of the above discussions and
the law laid down by Hon'ble Apex Court referred
above, we do not find any factual or legal error in
the appreciation of evidences by the trial court for
the reasons that there is no direct evidence of the
offence and the chain of circumstantial evidence is
not complete. The motive of the crime has not been
established. There is no evidence of the fact that
accused mixed poison in the liquor of the deceased.
Further more it has been mentioned in the F.I.R. that
accused was thrown away from the roof of Maiku
Yadav in the lane behind the house, but in the
postmortem conducted on the cadaver, no such
injuries were found on the body, which could
establish that the dead body was thrown down from
the roof of the house. There is no trustworthy
evidence of the fact that deceased was 'last seen' in
the company of accused / respondent No.2.

20. There is no reliable and trustwothy
evidence on the record to connect the accused with
the crime. The learned trial court has given cogent
convincing and satisfactory reasons while passing
the order of acquittal.

21. We therefore, do not find any merit in the
appeal. The appeal is accordingly dismissed.
----------
(2021)11ILR A408
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No.3634 of 2021

Imamuddin & Ors. ...Applicants
Versus
State of U.P. ...Opposite Party