# The State of U.P v. Vijai Kumar & Ors

- **Citation:** (2022) 9 ILRA 1024
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-06
- **Case number:** Government Appeal No. 1919 of 1985
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-v-vijai-kumar-ors-48960
- **Pages:** 8

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 313 & 378 - Indian
Penal Code,1860 - Sections 34, 201 &
302 - Government Appeal - Acquittal -
offence of murder - FIR - accused husband
murder his wife for bring more and more
money from her father - acquitted all the four
accused - Govt. Appeal - held - in view of
settled law lay down by Hon'ble Apex Court -
when chain has been found to be incomplete
and when evidence is so scanty than accused
cannot punished or convicted for offences -
interference with acquittal can only be
justified when it is based on a perverse view -
consequently
Government
Appeal
stands
dismissed.(Para -24, 25, 26)

Appeal dismissed. (E-11)

List of Cases cited:

## Text

1024 INDIAN LAW REPORTS ALLAHABAD SERIES
on which the FIR in question came to be
registered. From perusal of the evidence of
P.W.-1 and P.W.-2, it would be evident that
the complainant and his son had only
suspicion about the perceived threat given by
the accused-respondents and they believed
that persons, who were noticed loitering
around their house on 26.2.1999, 27.2.1999
and 1.3.1999, had come to execute that threat.
It is further admitted that these persons did
not commit any offence nor did they say
anything to the complainant or his family
members.

19. In view of the aforesaid facts and
the evidence on record, this court is of the
view that the prosecution case was based on
suspicion without there being any cogent and
credible evidence to connect the accusedrespondents for commission of offence under
Section 506 IPC. The prosecution is required
to prove the charge by leading cogent and
credible evidence. A person cannot be
convicted merely on the basis of suspicion if
the suspicion is not otherwise proved by
leading cogent and credible evidence.

20. Considering the aforesaid facts and
circumstances and the evidence, I am of the
view that the impugned judgement and order
passed by the learned trial court does not
require any interference by this Court and
thus, the appeal gets dismissed.

21. Consigned to record.
----------
(2022) 9 ILRA 1024
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
HON'BLE AJAI TYAGI, J.
Government Appeal No. 1919 of 1985

The State of U.P. ...Appellant
Versus
Vijai Kumar & Ors. ...Respondents

Counsel for the Appellant:
G.A., Sri D.S. Mishra

Counsel for the Respondents:
Sri S.K. Agarwal, Sri Indra Bhan Yadav, Sri
Onkar Singh

Criminal Law - Criminal Procedure Code,
1973 - Sections 313 & 378 - Indian
Penal Code,1860 - Sections 34, 201 &
302 - Government Appeal - Acquittal -
offence of murder - FIR - accused husband
murder his wife for bring more and more
money from her father - acquitted all the four
accused - Govt. Appeal - held - in view of
settled law lay down by Hon'ble Apex Court -
when chain has been found to be incomplete
and when evidence is so scanty than accused
cannot punished or convicted for offences -
interference with acquittal can only be
justified when it is based on a perverse view -
consequently
Government
Appeal
stands
dismissed.(Para -24, 25, 26)

Appeal dismissed. (E-11)

List of Cases cited:

1. M.S. Narayana Menon @ Mani Vs St. of Kerala
& Anr., (2006) 6 S.C.C. 39,

2. Chandrappa Vs St. of Karna., (2007) 4 S.C.C.
415,

3. St. of Goa Vs Sanjay Thakran & Anr., (2007) 3
S.C.C. 75,

4. St. of U. P. Vs Ram Veer Singh & ors., 2007
A.I.R. S.C.W. 5553,

5. Girja Prasad (Dead) by L.R.s Vs St. of M.P.,
2007 A.I.R. S.C.W. 5589,

6. Luna Ram Vs Bhupat Singh & ors., (2009)
SCC 749,
9 All. The State of U.P. Vs. Vijai Kumar & Ors.
1025
7. Mookkiah & anr. Vs St., rep. by the Inspector
of Police, Tamil Nadu, AIR 2013 SC 321,

8. St. of Raj. Vs Sohan Lal & ors., (2004) 5 SCC
573,

9. St. of Karn. Vs Hemareddy, AIR 1981 SC
1417,

10. Shivasharanappa & ors. Vs St. of Karn., JT
2013 (7) SC 66,

11. St. of Pun. Vs Madan Mohan Lal Verma,
(2013) 14 SCC 153,

12. Jayaswamy Vs St. of Karn., (2018) 7 SCC
219,

13. Shailendra Rajdev Pasvan v. St. of Guj.,
(2020) 14 SC 750,

14. Samsul Haque v. St. of Assam, (2019) 18
SCC 161.

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri D.S.Mishra, learned counsel
for the appellant. None present for the accusedrespondents. This is a Government Appeal of
the year 1985 listed time and again. We are ably
assisted by Sri D.S. Mishra, learned counsel.

2. This appeal under Section 378 of Code
of Criminal Procedure, 1973 (hereinafter
referred to as 'Cr.P.C.'), is preferred at the behest
of the State of Uttar Pradesh, preferred against
the judgment and order dated 19.04.1985
passed by learned Additional Sessions Judge,
Court No.3, Saharanpur in Sessions Trial No.
69 of 1983 acquitting accused-respondents
were tried for commission of offence under
Sections 302/34 & 201 of Indian Penal Code,
1860 (hereinafter referred to as 'IPC').

3. Brief facts as culled out from the
record are that accused-respondents were
alleged to have committed the murder of
Savita Devi wife of Vijai Kumar on
26.11.1978, sometime in the morning in
their own house. Smt. Savita Devi was
married to Vijai Kumar in March 1976 and
her father gave dowry best to his capacity
but Vijai Kumar and his family members
were not satisfied and exercised undue
pressure on Savita Devi even to the extent
of assaulting her to bring more and more
money from her father. Several letters were
also written by Vijai Kumar to Jaipal Singh,
father of Savita Devi. On 15.11.1978 Savita
Devi came to her father's home and
requested him to pay a sum of Rs. 5000/-
for buying motorcycle for her husband and
informed that in case of failure to comply
with the demand her life would be in
danger. Jaipal could not understand the
gravity of the situation and sent her back to
her matrimonial home, however, the
incident occurred immediately thereafter.
The accused were arrested and were sent
for trial to the Sessions Court as the cases
were exclusively triable by the Court of
Sessions.

4. As per the office report and C.J.M's
report, Vijay Kumar and Smt. Heera Devi
have passed away on 07.03.2012 and
30.10.2008 respectively. Dayaram and
Sitaram are alive as per the office report.

5. It is submitted by learned counsel
for the State that this appeal by the State is
challenging mainly acquittal of Vijai
Kumar and accused Heera Devi which have
been proved by the letters produced at
Exhibit 1 to 5 before the trial court. The
circumstantial evidence is clear and that the
chain is complete. The guilt of the accused
persons is proved, just because there is
delay in lodging the F.I.R, the benefit of
doubt was granted. It is further submitted
that it cannot be said that the prosecution
case should be discarded on this ground. It
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
is further submitted that since 17.11.1978,
when the deceased met her father there was
demand of dowry and therefore there was a
motive of committing the murder of Savita
Devi. It is further submitted that father of
deceased never received any message
regarding she being ill.

6. The F.I.R culminated into chargesheet and accused were committed to
Sessions.

7. On being summoned, the accusedperson pleaded not guilty and wanted to be
tried. The offence for which accused was
charged was triable by the Court of
Sessions, hence, the accused-respondents
were committed to the Court of Sessions.
The learned Sessions Judge framed charge
for commission of offence of murder
punishable under Section 302 of the Indian
Penal Code (IPC).

8. The Trial started and the
prosecution
examined
9
witnesses
enumerated as below:

1

Kalu Ram
PW1

2
Nem Chand

PW 2
3

Baljeet

PW3
4

Ashok Kumar

PW4
5

Smt. Simla
PW5
6

Smt. Jogendra
PW6

7
Jaipal Singh

PW7
8

Dr. S.C. Singhal
PW8
9
Braham Singh
PW9

10

Inspector
Satpal
Singh Tyagi
PW 10

9. In support of ocular version
following documents were filed:

1

Five Letters
Ex.Ka.1 to Ex.Ka.5

2
Typed report
Ex.Ka.6
3
Private
complaint
Ex.Ka.7

4
Postmortem
report

Ex.Ka.8
5
Inquest report
Ex.Ka.9
6
Photo Nash
Ex.Ka.10
7
Challan Nash
Ex.Ka.11
8

Letter
to
C.M.O
Ex.Ka.12
9

Site Plan
Ex.Ka.13
10

Written
application to
police
record
keeper
Ex.Ka.14
11

Report
of
police
record
keeper
Ex.Ka.15

10. At the end of the trial and after
recording the statement of the accused
persons under section 313 Cr.P.C., and
hearing arguments on behalf of prosecution
and the defence, the learned Sessions Judge
convicted the appellant as mentioned
above.

11. In order the challenge the
judgment of acquittal, learned A.G.A for
the state has submitted that the learned
Sessions Judge has illegally disbelieved
statements of the prosecution witnesses and
without assigning any cogent reasons has
9 All. The State of U.P. Vs. Vijai Kumar & Ors.
1027
disbelieved prosecution story. It is further
submitted that the evidence on record and
surrounding circumstances have not been
properly appreciated by the Trial Court. It
is further submitted that the learned
Additional Sessions Judge after going
through the evidence given by the P.W.-1 to
P.W.-6 mentioned above acquitted all the 4
accused on the following grounds:

(i) Because the chain of evidence
was not complete;

(ii) Because there was no motive
for the accused persons to commit the
murder of Savita Devi;

(iii) Because the prosecution
evidence has failed due to infirmities;

(iv) Because there is delay in
lodging first information report.

12. Before we embark on testimony
and appreciate the reasonings in the
judgment of the Court below, the contours
for interfering in Criminal Appeals where
accused have been held to be not guilty
would require to be discussed.

13. The principles which would
govern and regulate the hearing of an
appeal by this Court, against an order of
acquittal passed by the trial Court, have
been very succinctly explained by the Apex
Court in catena of decisions.

In the case of "M.S. NARAYANA
MENON @ MANI VS. STATE OF
KERALA & ANR", (2006) 6 S.C.C. 39,
the Apex Court has narrated the powers of
the High Court in appeal against the order
of acquittal. In para 54 of the decision, the
Apex Court has observed as under:

"54. In any event the High Court
entertained an appeal treating to be an
appeal against acquittal, it was in fact
exercising the revisional jurisdiction. Even
while exercising an appellate power
against a judgment of acquittal, the High
Court should have borne in mind the well
settled principles of law that where two
view are possible, the appellate Court
should not interfere with the finding of
acquittal recorded by the Court below."

14.

Further,
in
the
case
of
"CHANDRAPPA
Vs.
STATE
OF
KARNATAKA", reported in (2007) 4
S.C.C. 415, the Apex Court laid down the
following principles;

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

[1] An appellate Court has full
power
to
review,
re-appreciate
and
reconsider the evidence upon which the
order of acquittal is founded.

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

[3] Various expressions, such
as,"substantial and compelling reasons",
"good and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtain extensive powers of an appellate
Court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasis the
reluctance of an appellate Court to
interfere with acquittal than to curtail the
power of the Court to review the evidence
and to come to its own conclusion.
1028 INDIAN LAW REPORTS ALLAHABAD SERIES

[4] An appellate Court, however,
must bear in mind that in case of acquittal
there is double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person shall be
presumed to be innocent unless he is
proved guilty by a competent Court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence
is further reinforced, reaffirmed and
strengthened by the trial Court.

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

15. Thus, it is a settled principle that
while exercising appellate powers, even if
two
reasonable
views/conclusions
are
possible on the basis of the evidence on
record, the appellate Court should not
disturb the finding of acquittal recorded by
the trial Court.

16. In the case titled "STATE OF
GOA
Vs.
SANJAY
THAKRAN
&
ANR.", reported in (2007) 3 S.C.C. 75, the
Apex Court has reiterated the powers of the
High Court in appeals against acquital. In
para 16 of the said decision, the Court has
observed as under:

"16.
From
the
aforesaid
decisions, it is apparent that while
exercising the powers in appeal against the
order of acquittal the Court of appeal
would not ordinarily interfere with the
order of acquittal unless the approach of
the lower Court is vitiated by some
manifest illegality and the conclusion
arrived at would not be arrived at by any
reasonable person and, therefore, the
decision is to be characterized as perverse.
Merely because two views are possible, the
Court of appeal would not take the view
which would upset the judgment delivered
by the Court below. However, the appellate
Court has a power to review the evidence if
it is of the view that the conclusion arrived
at by the Court below is perverse and the
Court has committed a manifest error of
law and ignored the material evidence on
record. A duty is cast upon the appellate
Court, in such circumstances, to reappreciate the evidence to arrive to a just
decision on the basis of material placed on
record to find out whether any of the
accused is connected with the commission
of the crime he is charged with."

17. Similar principle has been laid
down by the Apex Court in cases titled
"STATE OF UTTAR PRADESH VS.
RAM VEER SINGH & ORS.", 2007
A.I.R. S.C.W. 5553 and in "GIRJA
PRASAD (DEAD) BY L.R.s VS. STATE
OF MP", 2007 A.I.R. S.C.W. 5589. Thus,
the powers, which this Court may exercise
against an order of acquittal, are well
settled.

18. In the case of "LUNA RAM VS.
BHUPAT SINGH AND ORS.", reported
in (2009) SCC 749, the Apex Court in para
10 and 11 has held as under:

"10. The High Court has noted
that the prosecution version was not clearly
believable. Some of the so called eye
witnesses stated that the deceased died
because his ankle was twisted by an
accused.
Others
said
that
he
was
strangulated. It was the case of the
prosecution that the injured witnesses were
thrown out of the bus. The doctor who
conducted the postmortem and examined
the witnesses had categorically stated that
9 All. The State of U.P. Vs. Vijai Kumar & Ors.
1029
it was not possible that somebody would
throw a person out of the bus when it was
in running condition.

11. Considering the parameters
of appeal against the judgment of acquittal,
we are not inclined to interfere in this
appeal. The view of the High Court cannot
be termed to be perverse and is a possible
view on the evidence."

19. In a recent decision of the Apex
Court in the case titled "MOOKKIAH
AND ANR. VS. STATE, REP. BY THE
INSPECTOR OF POLICE, TAMIL
NADU", reported in AIR 2013 SC 321,
the Apex Court in para 4 has held as under:

"4. It is not in dispute that the
trial Court, on appreciation of oral and
documentary evidence led in by the
prosecution and defence, acquitted the
accused in respect of the charges leveled
against them. On appeal by the State, the
High Court, by impugned order, reversed
the said decision and convicted the
accused under Section 302 read with
Section 34 of IPC and awarded RI for
life. Since counsel for the appellants very
much emphasized that the High Court has
exceeded its jurisdiction in upsetting the
order of acquittal into conviction, let us
analyze the scope and power of the High
Court in an appeal filed against the order
of acquittal. This Court in a series of
decisions has repeatedly laid down that
as the first appellate court the High
Court, even while dealing with an appeal
against acquittal, was also entitled, and
obliged as well, to scan through and if
need be reappreciate the entire evidence,
though while hoosing to interfere only the
court should find an absolute assurance
of the guilt on the basis of the evidence
on record and not merely because the
High Court could take one more possible
or a different view only. Except the
above, where the matter of the extent and
depth of consideration of the appeal is
concerned, no distinctions or differences
in approach are envisaged in dealing
with an appeal as such merely because
one was against conviction or the other
against an acquittal. [Vide State of
Rajasthan vs. Sohan Lal and Others,
(2004) 5 SCC 573]"

20. It is also a settled legal position
that in acquittal appeals, the appellate
Court is not required to rewrite the
judgment or to give fresh reasonings,
when the reasons assigned by the Court
below are found to be just and proper.
Such principle is laid down by the Apex
Court in the case of "STATE OF
KARNATAKA VS. HEMAREDDY",
AIR 1981, SC 1417, wherein it is held as
under:

"...This Court has observed in
Girija Nandini Devi V. Bigendra Nandini
Choudhary (1967) 1 SCR 93:(AIR 1967 SC
1124) that it is not the duty of the Appellate
Court on the evidence to repeat the
narration of the evidence or to reiterate the
reasons given by the trial Court expression
of general agreement with the reasons
given by the Court the decision of which is
under appeal, will ordinarily suffice."

21.

The
Apex
Court
in
"SHIVASHARANAPPA & ORS. VS.
STATE OF KARNATAKA", JT 2013 (7)
SC 66 has held as under:

"That
appellate
Court
is
empowered to reappreciate the entire
evidence, though, certain other principles
are also to be adhered to and it has to be
kept in mind that acquittal results into
double presumption of innocence."
1030 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Further, in the case of "STATE
OF PUNJAB VS. MADAN MOHAN
LAL VERMA", (2013) 14 SCC 153, the
Apex Court has held as under:

"The law on the issue is well
settled that demand of illegal gratification
is sine qua non for constituting an offence
under the 1988 Act. Mere recovery of
tainted money is not sufficient to convict
the accused when substantive evidence in
the case is not reliable, unless there is
evidence to prove payment of bribe or to
show that the money was taken voluntarily
as a bribe. Mere receipt of the amount by
the accused is not sufficient to fasten guilt,
in the absence of any evidence with regard
to demand and acceptance of the amount as
illegal gratification. Hence, the burden
rests on the accused to displace the
statutory presumption raised under Section
20 of the 1988 Act, by bringing on record
evidence, either direct or circumstantial, to
establish with reasonable probability, that
the money was accepted by him, other than
as a motive or reward as referred to in
Section 7 of the 1988 Act. While invoking
the provisions of Section 20 of the Act, the
court
is
required
to
consider
the
explanation offered by the accused, if any,
only on the touchstone of preponderance of
probability and not on the touchstone of
proof
beyond
all
reasonable
doubt.
However, before the accused is called upon
to explain how the amount in question was
found in his possession, the foundational
facts
must
be
established
by
the
prosecution.
The
complainant
is
an
interested and partisan witness concerned
with the success of the trap and his
evidence must be tested in the same way as
that of any other interested witness. In a
proper case, the court may look for
independent
corroboration
before
convincing the accused person."

23. The Apex Court recently in
Jayaswamy vs. State of Karnataka, (2018)
7 SCC 219, has laid down the powers of
appellate court in re-appreciating the
evidence in a case where the State has
preferred an appeal against acquittal, which
read as follows:

"10.It is by now well settled that the
Appellate Court hearing the appeal filed against
the judgment and order of acquittal will not
overrule or otherwise disturb the Trial Court's
acquittal if the Appellate Court does not find
substantial and compelling reasons for doing so.
If the Trial Court's conclusion with regard to the
facts is palpably wrong; if the Trial Court's
decision was based on erroneous view of law; if
the Trial Court's judgment is likely to result in
grave miscarriage of justice; if the entire
approach of the Trial Court in dealing with the
evidence was patently illegal; if the Trial Court
judgment
was
manifestly
unjust
and
unreasonable; and if the Trial Court has ignored
the evidence or misread the material evidence or
has ignored material documents like dying
declaration/report of the ballistic expert etc. the
same may be construed as substantial and
compelling reasons and the first appellate court
may interfere in the order of acquittl. However, if
the view taken by the Trial Court while
acquitting the accused is one of the possible
views under the facts and circumstances of the
case, the Appellate Court generally will not
interfere with the order of acquittal particularly
in the absence of the aforementioned factors.

.........................It is relevant to note the
observations of this Court in the case of
Ramanand Yadav vs. Prabhu Nath Jha & Ors.,
(2003) 12 SCC 606, which reads thus:

"21.There is no embargo on the
appellate court reviewing the evidence upon
which an order of acquittal is based. Generally,
the order of acquittal shall not be interfered with
because the presumption of innocence of the
accused is further strengthened by acquittal. The
9 All. State of U.P. Vs. Ram Autar
1031
golden thread which runs through the web of
administration of justice in criminal cases is that
if two views are possible on the evidence
adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the
view which is favourable to the accused should
be adopted. The paramount consideration of the
court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than
from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is
cast upon the appellate court to re-appreciate the
evidence in a case where the accused has been
acquitted, for the purpose of ascertaining as to
whether any of the accused committed any
offence or not."

24. The Apex Court recently in Shailendra
Rajdev Pasvan v. State of Gujarat, (2020) 14
SC 750, has held that the appellate court is
reversing the trial court's order of acquittal, it
should give proper weight and consideration to
the presumption of innocence in favour of
accused, and to the principle that such a
presumption sands reinforced, reaffirmed and
strengthened by the trial court and in Samsul
Haque v. State of Assam, (2019) 18 SCC 161
held that judgment of acquittal, where two views
are possible, should not be set aside, even if view
formed by appellate court may be a more
probable one, interference with acquittal can only
be justified when it is based on a perverse view.

25. We have perused the depositions of
prosecution witnesses, documentary evidence
supporting ocular versions, arguments advanced
by learned counsel for the parties. We have been
taken through the record. We are unable to accept
the submissions of the State counsel for the
following reasons and the judgments of the Apex
Court which lay down the criteria for
consideration of appeals against acquittal. The
chain has been found to be incomplete. While
going through the judgment it is very clear that
the court below has given a categorical finding
that the evidence is so scanty that the accused
cannot punished and or convicted for the
offences for which they are charged. The factual
scenario in the present case will not permit us to
take a different view than that taken by the court
below. In that view of the matter we are unable to
satisfy ourselves. Thus we concur the findings of
the court below.

26. After considering the facts and
circumstances of the present case and appraisal
of the evidence available on record and on the
contours laid down by the judgment of the Apex
Court, we have no other option but to concur
with the reasoning of acquittal recorded by the
learned Sessions Judge for the aforesaid reasons.

27. The appeal sans merits and is
dismissed. The record and proceedings be sent
back to the Court below. The bail and bail bonds
are cancelled.

28. We are thankful to Sri D.S. Mishra,
learned counsel for the appellant for ably
assisting the Court.
----------
(2022) 9 ILRA 1031
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2022

BEFORE

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

Government Appeal No. 2683 of 1983

State of U.P. ...Appellant
Versus
Ram Autar ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent: