# The State of U.P v. Baji Nath & Ors

- **Citation:** (2022) 7 ILRA 918
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-07
- **Case number:** Government Appeal No. 1709 of 1984
- **Bench:** Om Prakash-Vii, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-v-baji-nath-ors-48675
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Res Gestae -accused not bound to
establish his innocence-it has been proved that
witnesses had not seen and recognize the
accused-no
direct
evidence-chain
of
circumstances not complete-case not proved
beyond reasonable doubt.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

918 INDIAN LAW REPORTS ALLAHABAD SERIES
should be adopted. It is also settled
principle
of
law
that
paramount
consideration of the Court is to ensure that
miscarriage of justice is avoided. The case
of the prosecution must be judged as a
whole having regard to the totality of the
evidence in appreciating the evidence. The
approach of the court must be an integrated
one and not truncated or isolated.

29. Thus, on close scrutiny of the
entire evidence adduced by the prosecution
and comparing the same with the finding
arrived at by the trial court in the impugned
judgment and order, the Court is of the
opinion that finding of the trial court is
based on correct appreciation of fact and
evidence. The view taken by the trial court
in the impugned judgment and order is a
possible view. The appellate court will
interfere in such type of cases only when
there is strong and compelling reasons in
the prosecution evidence which dislodge
the finding of the trial court itself. Merely,
on the basis of statement of the witnesses
examined
in
the
matter,
whereas
prosecution case is not supported with
medical evidence, manner and style of the
incident stated by the prosecution witnesses
is also not believable, then Court is of the
view that the trial court has passed the
impugned judgment and order after proper
appreciation of the evidence and it is well
reasoned order. Findings recorded by the
lower appellate court in the impugned
judgment and the order acquitting the
accused-respondents
from
the
charges
levelled against them cannot be termed to
be illegal, improper or illogical. Lower
appellate court has rightly held that
prosecution has not succeeded to prove
guilt
of
accused-respondents
beyond
reasonable doubt. The accused-respondents
are not found guilty for the offence
punishable under Sections 307/34, 302/34,
323/34, 504, 506 IPC. As such, impugned
judgment and order passed by lower
appellate court is liable to be upheld and
government appeal, having no force, is
liable to be dismissed.

30. Accordingly present Government
Appeal is dismissed and the impugned
judgment and order passed by the lower
appellate court is affirmed.
----------
(2022)07ILR A918
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2022

BEFORE

THE HON'BLE OM PRAKASH-VII, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Government Appeal No. 1709 of 1984

The State of U.P. ...Appellant
Versus
Baji Nath & Ors. ...Respondents

Counsel for the Appellant:
D.G.A.

Counsel for the Respondents:
Sri V.C. Katiyar, Sri Dhirendra Kumar
Srivastav, Ms. Pushpa Varma, Sri V. Singh,
Sri Virendra Singh

Criminal Law - Criminal Procedure Code,
1973 - Res Gestae -accused not bound to
establish his innocence-it has been proved that
witnesses had not seen and recognize the
accused-no
direct
evidence-chain
of
circumstances not complete-case not proved
beyond reasonable doubt.

Appeal dismissed. (E-9)

List of Cases cited:

1. Bishan Dass Vs St. of Pun. A.I.R 1975
Supreme Court 573
7 All. The State of U.P. Vs. Baji Nath & Ors.
919
2. Kali Ram Vs St. of H.P, A.I.R 1973 Supreme
Court 2773

3. Pratap Vs St. of U.P. AIR 1976 Supreme Court
966

4. Shyam Sunder Vs St. of Chattisgarh, AIR
2002 S.C 2815

5. Ramnand Yadav Vs Prabhu Nath Jhan &
ors.AIR 2004 SC 1053

6. Jagga Singh Vs St. of Pun. A.I.R 1995 S.C,
135

7. St. of Pun. Vs Bhajan Singh, A.I.R 1975,
Supreme Court 258

8. St. of Goa Vs Sanjay Thakran (2007) 3 S.C.C
755

9. Ashish Batham Vs St. of M.P, A.I.R 2002, S.C
3206

10. St. of Maharashra Vs Sukhdev Singh, A.I.R
1992 Supreme Court Page 2100

11. S. Govindaraju Vs St. of Karn., (2013) 15
Supreme Court Cases 315

12. Gangabhavani Vs Rayapati Venkat Reddy &
ors., (2013) 15 Supreme Court Cases 298

13. Sharad Birdhi Chand Sarda Vs St. Of Mah.
1984 Supreme Court AIR - 1622
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. At the outset, it is clarified that
accused-respondent no. 2 - Saggal and
respondent no. 3 Bhaggu have died during
the pendency of the appeal, thus the appeal
filed against them have been abated vide
order dated 08.04.2022, henceforth the Court
is proceeding to decide the appeal against
surviving respondent.

2. Heard Shri Ratan Singh, learned
A.G.A. for the State, Shri Virendra Singh,
learned counsel for the accused-respondent
and gone through the entire court record with
the assistance of the respective counsels.

3. The instant appeal has been filed
against the judgment and order dated
02.03.1984 passed by Assistant Sessions
Judge, Mirzapur, in Sessions Trial No. 156 of
1982 arising out of Case Crime No. 227 of
1981, under Section 307 I.P.C., whereby, the
deceased accused persons Bhaggu and Saggal
and alive accused-respondent have been
acquitted.

4. In brief the State of U.P. has pleaded
in appeal that judgment and order of acquittal
is wholly illegal and erroneous and against
the law. Learned Trial Court has not assessed
the prosecution evidence appropriately and
has
not
considered
the
facts
and
circumstances of the case and material on
record. The alleged offence took place on
02.11.1981 at 07:30 P.M. and the F.I.R. was
lodged on the same night at 10:00 A.M.
Blood was recovered from the Ekka and
pieces of bomb and splinter etc. were also
recovered. The prosecution has examined the
following 08 witnesses, to prove the
prosecution version:- (i) P.W.-1, Paggal,
informant
witness
(ii)
P.W.-2,
Gulab,
informant (iii) P.W.-3, Dr. A. D. Singh (iv)
P.W.-4, Dr. K.N. Srivastava, (v) P.W.-5, Dr.
C.P. Singh (vi) P.W.-6, S.I. Sarju Prasad
Chaudhari, I.O. (vii) P.W.-7, Girija Shanker
Tripathi, Head Constable and (viii) P.W.-8,
Kunwar Bind Narayan, Pharmacist. There
was no occasion to acquit the accused
persons, therefore, the impugned judgment
and order be set aside and the appeal be
allowed and the accused-respondent, Baijnath
be convicted and sentenced in accordance
with law.

5. In brief facts of the case are that
complainant- Gulab moved an application on
920 INDIAN LAW REPORTS ALLAHABAD SERIES
02.11.1981 to lodge the F.I.R. with the
allegation that his brother Paggal used to
drive Ikka and he was going on Ikka with his
brother from Mirzapur city to his house;
Amarnath Nai was also sitting on the said
Ikka: At about 07:30 P.M., when all the three
persons sitting on the Ikka reached at
Railway crossing on Aam Ghat, three
accused persons suddenly came and threw
bombs on his brother Paggal. Miscreants
were seen and recognized in the head light of
truck. Upon hearing the noise of explosion of
bomb, witnesses Figgal S/o unknown and so
many other persons reached on the spot.
Accused persons escaped. Paggal was
seriously injured as well as Amarnath Nai has
also received injuries. Few parts of Ikka were
broken. There were inimical terms between
the Paggal and accused persons due to some
criminal cases as a result of which the
accused persons inflicted bomb injuries with
intention to kill him. The informant admitted
the victim in the hospital and went to police
station to lodge the F.I.R. One Jai Prakash has
scribed the F.I.R. This information (Tahrir)
has been exhibited as Exhibit Ka-I.

6. Informant Paggal was medically
examined on the same day at 09:00 P.M. in
District Hospital Mirzapur where the Doctor
found 08 injuries; out of which 06 were
lacerated and 02 were abrasion on the body
of the victim. A radiological report was also
prepared which is exhibited as Exhibit Ka-3,
proved by Dr. K.N. Srivastava whereas the
injury report of the injured Paggal has been
proved by Dr. C.P. Singh as Ex. Ka-2, who
opined that all injuries have incurred by the
bombastic attack. He deposed that it appears
that the attack was done from the front side.

7. Since the injuries nos.1 & 2 were
serious in nature, therefore, X-ray was
advised by the Doctor. P.W.-4, Dr. K.N.
Srivastava, Radiologist found in X-ray that
libera and fibula bones of the right leg of
Paggal were broken in several parts on the
lower part. About 2nd injury; report was
NAD and no foreign body shadow was seen.
P.W.-4 was of the opinion that X-ray done by
him is trustworthy. P.W 5, Dr. C.P. Singh
examined another injured Amarnath Nai on
03.11.1981 at 12 'o' clock and found
contusion (scabbed) 0.5x0.5 cm on the
middle of internal side of his right leg and
2.0x2.0 cm abrasion (scabbed) on the front of
left leg below 0.8 cm from the left knee. The
third injury (scabbed) abrasion 2.5x0.5 c.m
was on the outer part of left wrist. According
to the Doctor, these injuries were not caused
by the explosive substance or fire-arm, but
were caused by blunt object and rubbing and
were 1⁄2 day old. It is noteworthy that during
the trial the injured witness Amarnath Nai has
not been examined.

8. P.W.-6, Sarju Prasad Chaudhari,
S.H.O started the investigation on the same
day i.e. on 03.11.1981 and reached the place
of occurence and recorded the statement of
informant Gulab and injured Paggal, searched
the accused person and collected the parts of
bombs, sutali, kathari and Ikka and blood
stained wooden part of Ikka and prepared the
recovery memo which is exhibited as Exhibit
Ka-5. He has also proved the recovery memo
as exhibit Ka-7. He has also prepared the site
map and proved as Exhibit Ka-8 in the Court.
He also sent another injured Amarnath Nai
for treatment through a Constable after
recording of his statement. He arrested
accused Baiznath and recorded his statement.
On 04.11.1981 after surrender, recorded the
statement of the other accused persons
namely, Saggal and Kallu and submitted the
charge-sheet which is exhibited as Exhibit
Ka-9, after completing the investigation.

9. Case being exclusively triable by
the Sessions Court was committed to the
7 All. The State of U.P. Vs. Baji Nath & Ors.
921
Court of Sessions. Accused appeared.
Charge for the offence u/s 307/34 I.P.C.
was framed against them. To which they
denied and claimed their trial.

10. Prosecution in support of its case
examined eight witnesses in total as
disclosed hereinabove.

11. The following documentary
evidence have also been produced by the
prosecution to prove its case.

(1)
Exhibit
ka-01,
written
statement by the complainant PW 1 Gulab

(2) Exhibit Ka-02, injury report
of injured Paggal

(3) Exhibit Ka-03, radiology
report of injured Paggal

(4) Exhibit Ka-04, injury report
of Amaranth Nai

(5)
Exhibit
Ka-05,
recovery
memo of blood stained wooden parts of
Ikka

(6)
Exhibit
Ka-06,
recovery
memo of blood stained ''Kathari'

(7)
Exhibit
Ka-07,
recovery
memo regarding Sutali Bomb

(8)
Exhibit
Ka-08,
recovery
memo of site plan prepared by the
investigation officer

(9) Exhibit Ka-09, charge sheet

(10) Exhibit Ka-10, copy of chik
FIR

(11) Exhibit Ka-11, carbon copy
of GD regarding lodging of FIR

(12) Exhibit Ka-12, GD regarding
arrest of accused Baijnath

(13) Exhibit Ka-13, bed head
ticket

(14)
Exhibit
Ka-14,
outdoor
ticket.

The burden of proof lies on the
parties, who substantially asserts the
affirmative of the issue and not upon the
party, who denies it. In criminal cases it is
for the prosecution to bring the guilt home
to the accused. The accused is not bound to
establish his innocence for the reason that
there is no burden laid on the accused to
prove his innocence and it is sufficient if he
succeeds in raising a doubt as to his guilt.

In the case of Bishan Dass Vs.
State of Punjab A.I.R 1975 Supreme
Court 573, the Supreme Court held that
even total silence of the accused as to any
defense of his part does not lighten the
prosecution burden to proof it's case
satisfactorily.

In the case of Kali Ram Vs. State
of H.P, A.I.R 1973 Supreme Court 2773,
the Supreme Court held that in a criminal
trial the onus is upon the prosecution to
prove the different ingredients of the
offence and unless it is discharge that onus
it can not succeed.

In the case of Pratap Vs. State of
U.P. AIR 1976 Supreme Court 966, the
Supreme Court held that the burden on the
accused is not onerous as that which lies on
the prosecution. While the prosecution is
required to prove this case beyond
reasonable
doubt,
the
accused
can
discharge his onus by establishing a mere
preponderance of probability.

A case is a "proceedings" within
the meaning of Section 102 Evident Act
and the burden of proof in such a
proceeding lies on the prosecution for the
simple reason that if neither the prosecution
nor the defense leads evidence, the accused
is entitled to be acquitted.

In the light of above principles of
law, the oral and documentary evidence
adduced by the prosecution shall be
analyzed.

12. P.W. 1 Paggal injured (brother of
the informant P.W. 2 Gulab), has deposed
as injured eyewitness and he has stated that
922 INDIAN LAW REPORTS ALLAHABAD SERIES
when Ikka reached near the turning point
after crossing the railway crossing, accused
Saggal Bhaggu and Baij Nath, who were
hiding there, started bombing. Baijnath
fired the first bomb on him which hit the
wheel of Ikka. Bhagu detonated the second
bomb, which fell on the ground and
exploded. Third bomb was detonated by
Suggal which fell on the bamboo of the
ace, it hurt his leg, hand and ear. Horse and
Amarnath also got injuries, the horse-ran
by its sound and stopped before the
Aamghat river. He admits that Saggal &
Bhaggan are the real brother, Baijnath is a
mechanic.

13. According to this witness four
months before this incident, he was
thatching shanty when Saggal, Bhaggan,
Jogi and Chhote Lal (deceased) came and
started hitting him and did not allow the
shanty to be kept, Chhotel Lal got hurt by
sticks of them, but they suspected him for
his injury who succumbed to death on next
day. Since then they bored enmity with him
and started looking for him to kill. He
admits that Baijnath is the resident of
another village and there is no kinship
among them. He admitted that he has been
convicted for the murder of Chhotey Lal
despite being innocent. He admits that in
the night of the incident, it was dark and he
started journey from Peeli Khoti at about
6:30 to 6:45 p.m. He also admits that the
spot is not deserted place, there are houses
of several persons adjacent to it and there is
an adjacent railway gate where one or two
men remain present always on duty, there is
also a betel shop near the railway gate.
According to this witness that time accused
was going from west to east. The gate was
closed, so they had stood up north, when
the gate opened, they went towards the
south. Accused were in some speed, which
he could not see. Again, he deposed that he
did not see where the killers were hiding,
when his face was towards east, suddenly a
bomb fell on him and he exhorted the
accused. The bomb was thrown at him from
the southern track of the road. He was
stunned when the first bomb hit him. He
could not run away after jumping. Rather
the horse-ran fast after hearing the sound of
the bomb. Then two bomb fell on him. He
shouted, by then the accused had reached
the bridge of Amghat. The truck was
parked on the bridge of Aamghat, so the
accused stopped. There was a lot of smoke
when the bomb exploded. The killer fled
away to the west. He did not have a torch.
Amarnath did not even have a torch. The
killer did not wear a bounty on their faces,
they did not try to hide themselves. No one
followed the killer. There was a huge crowd
of people around, they did not have any
conversation with them. In such a situation
it can not be concluded that the witness had
recognised the accused persons.

14. According to the opinion of this
Court, if the victim had actually recognised
the accused he would have told the people
of the crowd that such people had attacked
upon him. Further he admits that he did not
tell the doctor as to who fired the bomb
upon him. He again could not tell as to
whether he got bombed first or Amarnath.
In such as a fact, how it is possible that he
would
have
recognised
the
accused
persons. The statement of the people
residing in the nearby houses or the
government servants doing duty at the
railway gate were not recorded nor they
were examined in the court. This witness
admits that he did not see the place where
the accused were hiding. He admits that the
dense smoke was near by at the scene. The
witness
does
not
say
that
before
committing the incident he had seen the
accused person at the spot. He admits that it
7 All. The State of U.P. Vs. Baji Nath & Ors.
923
was a dark night and there was no light at
the scene and that he or Amanath did not
have a torch. It is the contention of the
prosecution that the witnesses recognized
the accused persons in the light of the
truck. But according to this witness the
truck was not standing on the spot but the
truck was standing on the Aamghat bridge.
In such a situation it would not be possible
to identify the accused in the light of the
truck. If the P.W. 1 was plying the Ace, he
would be looking at the road ahead and not
side by side. According to this witness,
when the bomb fell, the horse-ran very fast
and reached to the Aamghat bridge, in such
a situation there was no opportunity to see
the accused persons by any of the witness.
According to this witness the face of the
accused persons were open and they did not
try to hide their identity, but it is contrary to
human nature that if the injured and the
witnesses are familiar to the accused
persons, they will keep their faces hidden.
If the testimony of the witness is true then
in such a situation, it can be thought that
the accused had no fear, if so why did they
choose the night time for attack, they could
have openly committed such an incident,
even during the day time.

15. P.W. 1 in his cross examination at
Page 6 admits that in his area if the killer is
not seen, then any one can be implicated,
that is why he was implicated for the
murder of Chhotey Lal. In the opinion of
court as to why the same principle can not
be applied in this case. He deposed that his
face was towards the east and the accused
persons attacked from the west and fled
away towards the west. In such a case there
will be no opportunity to identify the
accused persons by the witnesses. He could
not tell the name of truck driver or truck
number in the light of which he had
identified the accused persons and the I.O.
has not shown and found any such truck
and source of light. This leads to the
conclusion that there was no truck head
light in which he has recognised the
accused persons. Thus the finding of this
court is that the evidence of this witness is
not credible and acceptable and without
recognising the accused persons they were
implicated on the basis of enmity.

In the case of Shyam Sunder Vs.
State of Chattisgarh, AIR 2002 S.C 2815,
Apex Court held that where it is found that
the relationship between the prosecution
witness and his family members on the one
hand and the deceased and his family
members on the other hand were strained
and a criminal litigation was also pending
between them, the testimony of the witness
needs to be subjected to careful scrutiny.

In case of Ramnand Yadav Vs.
Prabhu Nath Jhan & Ors AIR 2004 SC
1053, the Supreme Court held that if the
relatives
or
interested
witnesses
are
examined, the Court has a duty to analyse
the evidence with deeper scrutiny and then
come to a conclusion as to whether it has
ring of truth or there is a reason for holding
that the evidence was biased. Whenever a
plea is taken that the witness is already
partisan or has any hostility towards the
accused, foundation for the same has to be
laid. If the material shows that there is a
partisan approach, the Court has to analyse
the evidence with care and cation.

16. P.W - 2, Gulab is the real brother
of injured P.W. 1, who is said to be present
with Amarnath on the Ace at the time of the
incident, exact and word to word similar
deposition by the witnesses about the
manner of attack leads to the inference that
the witnesses are tutored, because every
witness shall see the occurrence from their
own angle. In this case there is no source of
924 INDIAN LAW REPORTS ALLAHABAD SERIES
light and incident took place in a dark
night, in spite of that witnesses have also
deposed about the manner of attack by the
accused persons with utmost similarity in
their examination-in-chief.

17. Contrary to P.W. 1, this witness
says that the night was the moonlight. This
witness also admits heavy smoke on the
spot. Contrary to P.W- 1 this witness says
that attackers ran to the side of south. This
witness says that their faces were towards
the east and when the Ace went to the east
accused persons threw the bombs. In the
above situation there would be least
possibility of recognising the accused
persons. This witness also did not contacted
the truck driver. According to him crowd of
about 25 persons put off them from the Ace
but no conversation took place with them.
This also leads and creates doubt that if
P.W 1 and P.W-2 had recognised the
accused persons why in natural way they
shall not speak about the accused persons
and shall not share their names with the
people of crowd. This witness also admits
previous enmity with the accused persons
which may be a reason for false implication
or may be reason of committing the offence
also as the enmity is the double edged
weapon.

18. Both the witnesses of fact are real
brother and interrelated and inimical
witnesses. About the injured witness, there
is presumption that he was present on the
spot but there is no presumption that he is
deposing the true facts. An independent
witness Amarnath Nai did not come
forward to support the prosecution case,
which leads inference that he was not ready
to tell a lie in support of the prosecution
case. P.W.- 3, P.W-4 & PW-5 are doctors,
who examined the injured persons but from
their report and oral evidence, it is not
proved that the injuries were caused by the
accused persons as they are the formal
witnesses .

19. In cross-examination, P.W-6
deposed that Railway gate is situated
towards the north-west of the place of
occurrence. He admitted that railway
personnel do their job there 24 hours but he
has not recorded the statement of any
employee of the Railway Department. He
has also recorded the statement of nearby
residents such as Jaggu, Mangaru and Seva.
He admits that he had not recorded the
statement of Doctor. He admits that since
there was no source of light on the spot,
therefore he did not mention and showed it
in the map. He visited the spot in the night
and found it darky and cloudy.

20. P.W.-7, HCP Giriza Shanker
Tripathi had prepared chik F.I.R. which is
exhibited as Ex. Ka-10. On the basis of
written Tehrir of the informant Exhibit Ka1 and carbon copy of GD regarding
registering the case as Exhibit Ka-11 and
GD regarding the arrest of the accused
Baiznath as Exhibit Ka-12 were prepared.
He has proved these documents from his
evidence on oath.

21. P.W.-8, Kunwar Bind Narayan,
Pharmacist
has
adduced
secondary
evidence about the acts and report of
Doctor A. D. Singh. He proved the Bed
Head Ticket as Exhibit Ka-13 and out door
slip as Exhibit Ka-14 prepared by Dr. A. D.
Singh to be prepared by him in his handwriting and signature.

22. After closure of oral evidence,
statement of accused persons were recorded
under section 313 IPC. Accused Baij Nath
has stated that pagal is his relative and had
taken loan from him and to avoid
7 All. The State of U.P. Vs. Baji Nath & Ors.
925
repayment Paggal has falsely implicated
him. Paggal and Gulab are real brothers.
Bhaggu has stated that due to enmity, he
has been falsely implicated as accused. Due
to enmity Gulab and Paggal, have adduced
the
evidence
against
him.
Similar
explanation has been given by the accused
Saggal. Both these two persons have not
given any details of enmity. The co-accused
Baijnath has also not given any particulars
regarding the loan from the accused
persons and they have not produced any
oral or documentary evidence in defence.

23. The Trial Court has not believed
the testimony of P.W.-1 on the ground that
at the time of occurrence there was dark
smoky night and the witnesses were not
able to see the place where the accused
persons were hidden.

On the above discussion, this
Court is of the considered view that there is
some variations on the point that as to
whether at the night of the occurrence there
was dark or of full moon light. It is proved
that it was a dark and cloudy night and
there was no light of truck to recognize the
accused persons. The accused persons have
falsely been implicated in this case on the
basis of previous enmity and no explosive
substance, ammunition or bombs have been
recovered from their possession upon their
pointing out. The I.O. of the case has
neither satisfactorily investigated the case
nor recorded the statements of the railway
employees deputed on Railway Gate. He
has not recorded the statement of the
Doctor and he has not found any source of
light on the spot. He has not shown any
truck or truck light in the map prepared by
him and according to him it was a cloudy
night, he has not shown any place of hiding
of the accused persons or any drum alleged
by the witnesses of fact. The independent
witness Amar Nath has not been examined
by the prosecution. This incident might
have been caused by some other persons
for the purposes of robbery etc.

From the above discussions, it is
clearly established that the witnesses have
not been able to recognize the accused
persons and the accused persons were
named in F.I.R on account of enmity. Thus,
it is a case based on circumstantial
evidence, in which chain of circumstances
must be completed, but in this case except
the one ingredient that is motive none else
could be proved.

In the case of Jagga Singh Vs.
State of Punjab A.I.R 1995 S.C, 135, the
Supreme Court has held that, it is
fundamental
maxim
of
criminal
jurisprudence
that
the
suspicion
and
conjuncture are no substitute for proof.

In the case of State of Punjab Vs.
Bhajan Singh, A.I.R 1975, Supreme Court
258, the Supreme Court has held that
suspicion by itself however strong, it may
be, is not sufficient to take the place of
proof.

In the case of State of Goa Vs.
Sanjay Thakran (2007) 3 S.C.C 755, the
Supreme Court held that the Court shall
take utmost precaution in finding the
accused guilty only on the basis of
circumstantial evidence.

In the case of Ashish Batham Vs.
State of M.P, A.I.R 2002, S.C 3206, the
Supreme Court held that if the charge is
graver, greater has to be the standard of
proof, the Court must keep in mind that
there is a long mental distance between
"may be true" and "must be true".

In
the
case
of
State
of
Maharashra Vs. Sukhdev Singh, A.I.R
1992 Supreme Court Page 2100, the
Supreme Court held that in the absence of
reliable evidence it is unwise to act on mere
suspicion.
926 INDIAN LAW REPORTS ALLAHABAD SERIES

In this case except mere suspicion
on the part of informant and the injured
there is no any other evidence to conclude
that only accused persons had committed
the offence.

Hon'ble Supreme Court in the
case of S. Govindaraju Versus State of
Karnataka, (2013) 15 Supreme Court
Cases 315 has held as under:-

"It is a settled legal proposition
that in exceptional circumstances, the
appellate court, for compelling reasons,
should not hesitate to reverse a judgment of
acquittal passed by the court below, if the
findings so recorded by the court below are
found to be perverse i.e if the conclusions
arrived at by the court below are contrary
to the evidence on record, or if the court's
entire approach with respect to dealing
with the evidence is found to be patently
illegal, leading to the miscarriage of
justice, or if its judgment is unreasonable
and
is
based
on
an
erroneous
understanding of the law and of the facts of
the case. While doing so, the appellate
court must bear in mind the presumption of
innocence in favour of the accused, and
also that an acquittal by the court below
bolsters such presumption of innocence."

In the case of Gangabhavani
Versus
Rayapati
Venkat
Reddy
and
Others, (2013) 15 Supreme Court Cases
298, Hon'ble Supreme Court has held as
under.

"This
Court
has
persistently
emphasised that there are limitations while
interfering with an order against acquittal. In
exceptional cases where there are compelling
circumstances and the judgment under
appeal is found to be perverse, the appellate
court can interfere with the order of acquittal.
The appellate court should bear in mind the
presumption of innocence of the accused and
further that the acquittal by the lower Court
bolsters the presumption of his innocence.
Interference in a routine manner where the
other view is possible should be avoided,
unless
there
are
good
reasons
for
interference."

In the case of Sharad Birdhi
Chand Sarda Vs. State Of Maharashtra
1984 Supreme Court AIR - 1622, the
Supreme Court pointed out reiterating the
cardinal principle of law that where the facts
placed before the Court point out two views,
one of the guilt of the accused and another to
his innocence, the Court should give the
benefit of the view, which is favourable to the
accused.

In this case it has been proved that
the witnesses had not seen and recognize the
accused persons committing the offence on
spot. Therefore, it can not be said that it is a
case of direct evidence. This Court is of the
view that it is a case based on circumstantial
evidence, in which all the chains of the
circumstances are not completed, except only
one ingredient that is motive, no other
ingredient such as last seen or any extra
judicial confession or any recovery has been
proved.

24. In all attending circumstances on
the basis of evidence, the lower court has
rightly come to the conclusion that the
prosecution has not been able to prove the
case beyond reasonable doubt, therefore, trial
court has rightly acquitted the accused
persons. This Court is also of the considered
view that there is no sufficient evidence and
attending circumstances to interfere with the
judgment of the acquittal of the lower court,
therefore this appeal lacks merit and is hereby
liable to the dismissed.

Accordingly,
the
appeal
is
dismissed.

The Lower Court Record be sent
back to the concerned court with certified
copy
of
this
judgment
forthwith.
7 All. The State of U.P. Vs. Narendra Singh & Anr.
927
----------
(2022)07ILR A927
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.07.2022

BEFORE

THE HON'BLE OM PRAKASH-VII, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Government Appeal No. 1990 of 1985

The State of U.P. ...Appellant
Versus
Narendra Singh & Anr. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Sri U.K. Saxena, Sri Kamal Kishor Mishra,
Sri Satish Trivedi, Sri Satya Prakash
Srivastava

Criminal Law - Criminal Procedure Code,
1973 - if view adopted by the Trial Court is a
possible view-Trial Court has well discussed
the facts and evidence-Appeallate Court to
not superimpose its view. (E-9)

List of Cases cited:

Vadivelu Thevar Vs The St. of Madras, 1957 AIR
614
(Delivered by Hon'ble Om Prakash-VII, J.)

1. This appeal against acquittal by
appellant State is directed against the
impugned judgment and order dated
22.4.1985 passed by Special Judge (E.C.
Act)/ Additional Sessions Judge, Jalaun at
Orai in S.T. No. 143 of 1980 (State Vs.
Narendra
Singh
and
another),
P.S.
Kotwali Orai, district Jalaun by which the
accused respondents have been acquitted
of the charges under Sections 302/34, 302
IPC.

2. At the very outset, it is very
relevant to mention here that during
pendency of Appeal, accused respondent
No.2 Ramesh has died. Accordingly, by the
order dated 27.11.2021, this Court passed
order directing abatement of Government
Appeal as against the accused respondent
no.2.

3. Now, we are proceeding to consider
the government appeal in respect of rest of
the accused respondent i.e. Narendra Singh.

4. Brief facts of the case, in nutshell,
are that informant and his brother Bhanu
Pratap Singh had gone to the Court on
16.7.1980 for taking certified copy of
certain judgment. At about 02.00 - 02.15
p.m. after finishing their court work they
were going towards Orai market. Near the
Orai Jhansi Bus Stand at the gate of
Kutchahri they were joined by Taqdir
Singh, Bal Ram Tewari and Ram Swarup
Singh. While going to the Orai market,
Informant Ram Lakhan Singh and his
brother Bhanu Pratap Singh accompanied
by the aforesaid three witnesses reached the
Konch Bus Stand. At about 02.25 p.m.
accused Narendra Singh, Ramesh and one
Surendra Singh Yadav saw them all.
Accused Ramesh alarmed Surendra Singh
that the enemy was coming and on seeing
this Surendra exalted the accused Narendra
to kill Bhanu Pratap Singh. Bhanu Pratap
Singh seeing these persons tried to run
away but before that he was fired at by the
accused Narendra Sigh and Ramesh with
country made pistol and a pistol. Informant
Ram Lakhan Singh and the aforesaid
witnesses challenged the accused persons
but they made their escape good under the
cover of fire by them. Then the informant
found that his brother Bhanu Pratap Singh
was dead. The aforesaid murder by the
accused persons, namely, Narendra Singh