State Of U.P. vs Jaipal And Another on 27 August, 2025

Allahabad High Court

State Of U.P. vs Jaipal And Another on 27 August, 2025

Author: Siddharth

Bench: Siddharth

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:149944-DB
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
GOVERNMENT APPEAL No. - 7347 of 2008
 

 
With
 
CRIMINAL APPEAL No. - 3149 of 2008
 
Court No. - 47
 
HON'BLE SIDDHARTH, J.

HON’BLE RAM MANOHAR NARAYAN MISHRA, J.

(Per: Ram Manohar Narayan Mishra, J.)

1. Heard Sri Sushil Kumar Pandey, learned A.G.A-I for the State-appellant and Sri Saurabh Yadav, learned counsel for the respondents in the Government Appeal and Sri Saurabh Yadav, learned counsel for the appellant and Sri Sushil Kumar Pandey, learned A.G.A.-I for the State-respondents in the Criminal Appeal.

2. The instant Government Appeal has been preferred against the acquittal of co-accused Jaipal Singh and Amit Kumar on the charge under Section 302/34 I.P.C.

3. The instant Criminal Appeal has been preferred by the appellant-Aadesh, who was convicted under Section 302 I.P.C. and sentenced to imprisonment for life along with a fine of Rs.1,000/-. He was also convicted under Section 25 of the Arms Act and sentenced to three years? rigorous imprisonment along with a fine of Rs.2000/-. Both the sentences were directed to run concurrently.

4. Both the aforesaid appeals have arisen out of the judgment and order dated 06.05.2008 passed by the learned Additional District & Sessions Judge, Court No.9, District Saharanpur in Sessions Trial No.261 of 2005, arising out of Case Crime Nos.509 of 2004 and 512 of 2004, under Sections 302/34 I.P.C. and Section 25 of the Arms Act, Police Station Deoband, District Saharanpur.

5. The aforesaid two appeals are being decided by this common judgment as both have arisen out of same judgment and order.

6. The appellant, Jaipal Singh died during the pendency of the Government Appeal and appeal was directed to be abated qua accused Jaipal Singh, vide order dated 02.05.2016. Thus, the Government Appeal has been heard in respect of the surviving accused, Amit Kumar and Criminal Appeal has been heard in respect of the convicted appellant-Aadesh.

7. The factual matrix of the prosecution case, as culled out from the material available on record, is that the informant, Jogindra Singh, son of Bhopal Singh, resident of Dugchara, Police Station Deoband, District Saharanapur, lodged a written report dated 06.11.2004 with the averments that his elder brother, Ravindra Kumar, had contracted a court marriage with Km. Pravita, daughter of the accused, Jaipal Singh. Due to this accused were having grudge against informant and his family. On 06.11.2004, his father, Bhopal Singh, was travelling on foot to the State Bank, Gangdaspur to withdraw money, his uncle, Kanwar Pal, Balendra, the informant himself and some other villagers were behind him on the way. At around 10:30 a.m. when they reached village Bundi, in front of the sugarcane field of Chatar Singh, accused persons, namely, Jaipal Singh, Amit Kumar, Aadesh and Monu suddenly emerged there in front of them riding two motorcycles. They surrounded, Bhopal Singh, who ran towards the sugarcane field, but he was caught and thrown to the ground. The accused persons, who were armed with country made pistols, fired two shots from their respective firearms. On hearing the gunshots, the informant and his uncle rushed at the spot and saw the four accused persons fleeing away on motorcycles waving their weapons. The witnesses did not chase the accused persons due to fear. The dead body of Bhopal Singh was lying on the spot.

8. P.W.6, Ashok Kumar (Head Moharrir) prepared the chik FIR on the basis of written report lodged against four named accused persons, Jaipal Singh, Amit Kumar, Aadesh and Monu under Section 302 I.P.C. The accused, Amit Kumar and Aadesh are sons of Jaipal and Monu is a co-villager. The inquest on the dead body of the deceased was conducted by S.I., Balveer Singh Verma (P.W.4) at the place of occurrence on 06.11.2004 in the presence of panch witnesses. In the opinion of panch witness, the deceased had died due to injuries sustained on his persons and a postmortem examination of the deceased, Bhopal Singh was required to ascertain the cause of death. Dr. R.N. Chaudhary (P.W.3) conducted the post-mortem examination of the deceased on 06.11.2004 at 11:00 p.m. and recorded four ante-mortem injuries on the body of the deceased. The cause of death was shock and haemorrhage as a result of the ante-mortem injuries. He also proved the postmortem report of the deceased as Ext. Ka-2. P.W.4, Balveer Singh Verma (S.I.) prepared police forms under his writing and signature and he also arrested accused Aadesh and Monu on 10.11.2004 and recovered one country-made pistol (12 bore) and two live cartridges each from the personal search of Aadesh and Monu. He is also the informant of offence under Section 3/25 Arms Act being search, seizure and arresting officer in the murder case of the deceased. P.W.5, Charan Singh, Investigating Officer of Case Crime No.512 of 2004 (State vs. Aadesh) and Case Crime No.513 of 2004 (State vs. Monu) both registered under Section 25 of the Arms Act. P.W.6, Ashok Kumar (Head Moharrir) prepared G.D. Entry No.26 at 11:55 hours on 06.11.2004. P.W.8 Naresh Chandra, Investigating Officer of the case conducted a spot inspection at the place of occurrence on the pointing out of informant, which is marked as Ext.Ka-15. He also collected the site plan and bloodstained earth from the place of occurrence and prepared an inventory marked as Ext.Ka-16. He also prepared an inventory of articles recovered from the dead body, namely, a passbook, Rs.11 in cash, one wristwatch and two bank withdrawal forms of bank, which is marked as Ext. Ka-17. He also recovered an empty cartridge of (12 bore) from the spot and prepared its inventory as Ext. Ka-18. He recorded the statements of witnesses, namely, Pawan and Madan on 16.11.2004 and also recorded the statement of Dr. R.N. Chaudary, who conducted the post-mortem examination of the deceased on 22.11.2004. He further recorded the statements of the accused persons and submitted a charge-sheet against Jaipal Singh, Aadesh and Monu, which is marked as Kxt. Ka-19. The accused Amit Kumar had absconded, and attachment proceedings were carried out against him. He ultimately surrendered on 10.02.2005.

9. The learned Additional Chief Judicial Magistrate, Saharanpur committed the case to the Court of Sessions Judge, Saharanpur for trial on 25.04.2005 as the offence is exclusively triable by the Court of Sessions.

10. As the accused Monu was held to be a juvenile in conflict with law, his case was separated from the charge-sheet of Jaipal Singh, Amit Kumar and Aadesh filed under Section 302 I.P.C. and was referred to the Juvenile Justice Board for inquiry and trial. It was registered as Case No.1304 of 2005.

11. Upon commencement of trial, the learned trial Court charged the accused, Aadesh, Jaipal Singh and Amit Kumar under Section 302/34 I.P.C. and separately charged accused Aadesh under Section 25 of the Arms Act on account of the alleged recovery of a country-made pistol and two live cartridges from his possession at the time of his arrest.

12. The prosecution examined P.W.1 Jogendra Singh (informant), P.W.-2 Kanwar Pal (eye witness), P.W.3 Dr. R.N. Chaudhari (author of the postmortem report of the deceased), P.W.4 Balveer Singh Verma (author of the inquest report), P.W.5, Charan Singh (Investigating Officer of the Chik FIR in the case under Section 25 of the Arms Act), P.W.6, Ashok Kumar (author of chik FIR and G.D. entry of regarding registration of the case under Section 302 I.P.C., P.W.7., Vijendra Singh, (Constable), who testified that he carried the dead body of the deceased from the place of inquest to the District Headquarter for post-mortem examination, P.W.8, Naresh Chandra (S.H.O.) who was the Investigating Officer in the case under Section 302 I.P.C. and P.W.9, Premchand (Constable), who carried the material exhibits to the FSL for examination, which consisting of five sealed bundles.

13. After conclusion of the prosecution evidence, the statements of the accused persons, namely, Aadesh, Amit and Jaipal Singh were recorded under Section 313 Cr.P.C., in which, they stated that they were not aware of who had killed the deceased, Bhopal Singh. They further stated that they had been falsely implicated in the case and false recovery had been alleged against them. The accused, Aadesh stated that a false recovery of firearms and cartridges had been alleged against him. He also stated that the Investigating Officer had filed a wrong charge-sheet against them at the behest of the informant. The accused, Amit Kumar stated that on the date of incident, he was present at his place of posting as a teacher in Jawahar Navodaya Vidyalaya Bakhtu, District Rudraprayag, Uttarakhand. He also stated that his place of posting is about 350 km away from the place of incident. Accused Jaipal stated that in Panchayat his daughter Km. Pravita was entrusted to him but due to social ignominy, he handed her over to Ravindra. They performed marriage proceedings in Allahabad and he had raised no objection on this.

14. In defence, accused, Amit Kumar has produced Dr. Deepa Upadhyay as D.W.2, a P.G.T. teacher at Jawahar Navodaya Vidyalaya Bakhtu, District Rudraprayag, Uttarakhand, who testified that on 06.11.2004, the accused Amit Kumar, who is employed in the said school as a physical instructor, was present on duty from morning P.T. session or morning assembly until the evening. She proved his signature on the attendance register, which she produced before the Court and which was countersigned by her.

15. D.W.1, Jaipal Singh, has stated that on 06.11.2004, he was posted as a Senior Clerk at Jawahar Navodaya Vidyalaya, Banshu, Jatawghar, District Rudraprayag, Uttarakhand and Amit Kumar was posted there as physical instructor. He has brought attendance register of teachers of dated 06.11.2024. The attendance of Amit Kumar is entered at Serial No.18 on 06.11.2024 in this register. He has filed attested photocopy of this page of attendance register, which is annexed as Ext.Kha-1.

16. Thus, the plea of alibi was taken by the accused Amit Kumar and he has proved this plea by defence evidence.

17. After appreciating the evidence on record, it is concluded that the prosecution has been able to prove its case against the accused, Aadesh for the charges under Section 302 I.P.C. and Section 25 of the Arms Act beyond reasonable doubt. It is also proved that on 06.11.2004 at 10:30 a.m., accused Aadesh killed the deceased by firing a shot from a firearm at him and the prosecution has also proved that on 10.11.2004 at 9:45 a.m. near Sainpur Pullia, Police Station Deoban, District Saharanpur, he was arrested by S.I., Balveer Singh and others and from his personal search, a country made pistol of 12 bore as well as cartridges were recovered, for which, he did not have a license. However, trial Court has also observed that from evidence of the eyewitnesses, it emerged that one shot was fired by accused Aadesh and other shot at the deceased was fired by accused, Monu (juvenile), which resulted in the death of the deceased on the spot. The role of causing firearm injury was specifically assigned to Monu and Aadesh. No recovery of firearm was effected from the accused, Jaipal Singh and Amit Kumar. The accused Amit Kumar took the plea of alibi, which was proved by the evidence of D.W.1 and D.W.2. Thus, trial Court gave the benefit of doubt to the accused Jaipal Singh and Amit Kumar and acquitted them of the charge under Section 302/34 I.P.C.

18. Feeling aggrieved by the acquittal of accused, Amit Kumar and Jaipal Singh, a criminal revision preferred by this Court by the informant, which was registered as Criminal Revision No.1413 of 2008 and a Government Appeal has been preferred by the State, which was registered as Government Appeal No.7347 of 2008.

19. The convicted accused, Aadesh has also filed a criminal appeal against his conviction and sentenced under Section 302/34 I.P.C. and Section 25 of the Arms Act.

20. The postmortem examination report of the deceased, Bhopal Singh has been proved by Dr. R.N. Chaudhari (P.W.3) which is marked as Ext.Ka-2. In the postmortem report, the following ante-mortem injuries were found on the person of the deceased :-

Injury No.1-Gunshot wound of entry 4 cm x 2 cm into the neck contents deep on middle and right side of the neck, 4 cm below the chin, margins inverted. Blackening present around the wound.

Injury No.2-Gunshot wound of exit 4 cm x 2 cm, skull cavity deep, located on the back of the head, 10 cm away from right ear, margin everted. Occipital bone is fractured. Injuries No.1 and 2 are in communication with each other.

Injury No.3- Gunshot wound of entry 2.5 cm x 2.5 cm chest cavity deep is present on right side of the chest. 6 cm from the right nipple at the 2 o?clock position. Margins are everted, with blackening present around the wound. Underlying ribs is fractured.

Injury No.4-Abrasion 2 cm x 2 cm on the back, left side 10 cm from the interior angel of the left scapula interior angle.

21. About 100 ml of blood was present in the right thoracic cavity. The 5th and 6th ribs were fractured. Right pleura was lacerated and right lung was lacerated. An elongated metallic bullet was recovered from the lung tissues. Death was caused due to shock and haemorrhage as a result of anti-mortem injuries sustained.

22. P.W.1, Jogendra Singh (informant) has stated in his evidence that the deceased Bhopal Singh was his father. I know Jaipal Singh, Adesh, Amit Kumar and Monu, they are co-villagers. Amit Kumar and Aadesh are sons of Jaipal Singh and Monu is the son of Yashpal, who is the brother of Jaipal Singh. Prior to this incident, his brother, Ravindra had taken away the daughter of Jaipal Singh with him and contracted a court marriage with her and left the village. The accused persons were bearing a grudge on this account against his family. On 06.11.2004 at about 10:30 a.m., his father Bhopal Singh, uncle, Kanwarpal, Balender and witness himself were on the way. His father was 20-25 steps ahead of them. The witnesses were going to Gangdashpur for bullock. Suddenly, four accused persons, namely, Jaipal Singh, Amit Kumar, Aadesh and Monu emerged there riding two motorcycles in front of them from the east side. They surrounded his father, who was near the field of Bundi on the road. These four persons were armed with country-made pistols. They took his father at the side of road and fired two shots at him, thereafter, he fell down in the field of Bundi. One shot was fired at him by each of the accused Aadesh and Monu. The witnesses and his companions become frightened on seeing this. Two persons fired shots at his father and two others remained unmoved with their weapons. They fled on their motorcycles waving their pistols after the incident. Thereafter, the witness and his uncle rushed to the place and found that his father was lying dead. He got the report of the incident scribed by Ravindra and affixed his signature thereon.

23. In cross-examination of P.W.1, he stated that his father had solemnized two marriages, one with Vimla from whom two daughters were born and the second with his mother, Shakuntala. He also stated that his mother Shakuntala was not abducted by his father. The houses of witness and accused persons are situated opposite each other. He is not aware that the accused, Amit kumar is a teacher at Jawahar Navodaya Vidyalaya Bakhtu, District Rudraprayag, Uttarakhand. His brother, Ravindra had taken away Km. Parvita one year prior to the incident. A case regarding the abduction of Km. Pravita was registered against him, his parents and his sister. A Panchayat was also convened in this regard. The Investigating Officer recorded his statement at the place of incident at about 1:30 and 2 p.m. His father was caught in the middle of the road and he was shot at on the corner of the road. The witness reached to his father after four minutes of firing and found him lying in sugarcane field. There was also blood on the spot. He was shouting while grieving his father?s death and then local shopkeepers and others arrived there. He had told this fact to the Investigating Officer that one fire was shot by each of the accused Aadesh and Monu, if he has not recorded this statement, he cannot explain. They had not chased the assailants due to fear. The witness has denied the defence suggestion that some unknown persons had killed his father in the night and that he had implicated the accused due to enmity.

24. P.W.2, Kanwar Pal, who is the uncle of P.W.1, Jogendra Singh and cousin of the deceased, stated that the witness and the accused persons are co-villagers. The occurrence took place on 06.11.2004. The witness, deceased, Bhopal Singh, his son, Jogendra and Balendra (brother of P.W.2) were going to Gangdaspur State Bank from the village. The deceased was walking 25 to 30 paces from them and they were following. When they reached near the sugarcane field of Bundi, four accused persons, riding two motorcycles, appeared and they were armed with country-made pistols. They disembarked from their motorcycles, surrounded the deceased near the field of Bundi and fired at him on the corner of the road. Aadesh and Monu fired at the deceased, while the remaining two persons restrained him. The deceased fell in the field. Thereafter, accused persons fled on their motorcycles, waving their firearms. The witness and his companions reached near Bhopal Singh and found him dead.

25. In cross-examination of P.W.2, he stated that the Investigating Officer had recorded his statement several days after the incident. He also stated that he was going to withdraw money from the bank. Bhopal Singh (deceased) had not told him that he was going to withdraw money. Both of them were moving to do their own work, he had to withdraw Rs.2000/-. He told the Investigating Officer that they were walking behind Bhopal Singh. All four persons opened fire. Four shots were fired, of which two hit the deceased. He also stated before the Investigating Officer that sky-fire was also opened. He also stated that two shots were fired at the deceased and two shots were fired into the sky. He heard the sound of gunfire from a distance of 25 to 30 paces from the place of occurrence. The witness denied the defence suggestion that he had testified falsely, despite being the brother of the deceased.

26. P.W.3, Dr. R.N. Chaudhary, who proved the post-mortem of the deceased, which is marked as Ext.Ka-2. In his cross-examination, he stated that it is possible the deceased collapsed on the spot due to injuries on the neck, head and lungs. The stomach of the deceased was empty and no tea or other like substances were found therein. The abrasion was caused by a blunt object.

27. P.W.4, Balveer Singh Verma (S.I.) is the author of the inquest report. He is also the officer, who conducted the arrest, search and seizure of one country-made pistol and two live cartridges from each of the accused Aadesh and Monu at the time of their arrest.

28. In cross-examination of P.W.4, Balveer Singh Verma, he admitted that on the first page of the inquest report there is overwriting in the crime number and it is made Crime No.509 of 2004 by overwriting. He also admitted that there is also overwriting in Ext.Ka-6 and Kxt.Ka-7. He stated that a copy of the FIR was available with him at that time. He denied the suggestion that there is overwriting in the time of the report mentioned in the chik report.

29. P.W.5, Charan Singh (Investigating Officer) has proved site plan of arrest and recovery of firearms from the accused Aadesh and Monu. He has also proved the sanction accorded by the District Magistrate for prosecution of the accused Aadesh.

30. P.W.6, Ashok Kumar (Head Moharrir) has proved the chik FIR and G.D. entry of the case under Section 302 I.P.C. and Section 25 of the Arms Act. In his cross-examination, he stated that the chik FIR was prepared on the basis of written report of the informant and G.D. entries were made on that basis.

31. P.W.7., Bijendra Singh, (Constable), who testified that he carried the dead body of the deceased from the place of inquest to the District Headquarter for post-mortem examination.

32. P.W. 8, Naresh Chandra (Investigating Officer of the case) has proved the site plan of the place of occurrence of the murder as Ext.Ka-15. The inventory of the plain and bloodstained earth as Ext.K-16 and the goods recovered near the dead body as Ext. Ka-17. He also produced two empty 12 bore cartridges recovered from the place of incident, which were marked in the recovery memo as Ext.Ka-21. The said empty cartridges were marked as Ext. Ka-6 and Ext. Ka-7 when produced before the Court.

33. In the cross-examination of P.W.8 (Naresh Chandra), he stated that during investigation, he could not ascertain to whom the two motorcycles used in the incident belonged. He also stated that he had not approached the bank with regard to the passbook recovered from the pocket of the deceased, as he did not find it necessary verify whether the deceased was maintaining any account in the bank. The accused Amit Kumar filed an application before the Court, which is paper no.14/23 and 14/24, stating that at the time of the incident, he was posted as a teacher in a school in District Rudraprayag, Uttarakhand. He received the application and examined it. The school records, as received from the concerned school, were produced before the Court and made part of the investigation. However, he did not find it necessary to show the place where the motorcycles of the accused persons were parked. The empty cartridges were recovered from the place of occurrence near the dead body, but their place of recovery is not shown in the site plan. It is true that in Ext.Ka-16, in writing of the recovery memo and the signature of the witness, much space has been left. It is wrong to say that the recovery memo was not prepared on the spot. It is true that there is no much difference between an empty cartridge of 315 bore and that of 12 bore. The informant had not stated to him that one shot was fired at his father by each of the accused, Aadesh and Monu.

34. P.W.9, Prem Chand (constable) stated that he carried the material exhibits, consisting of five sealed bundles, to the FSL, Agra for examination on 19.02.2005. He also stated that he visited the FSL along with the material exhibits on the orders of the Circle Officer.

35. D.W.1 is the accused, Jaipal Singh and D.W. 2 is Dr. Deepa Upadhyay, a P.G.T. teacher at Jawahar Navodaya Vidyalaya Bakhtu, District Rudraprayag, Uttarakhand. Both witnesses have testified in support of the plea of alibi taken by the accused Jaipal Singh and Amit Kumar.

36. Sri Saurabh Yadav, learned counsel for the respondents/accused and for appellant Aadesh in the Criminal Appeal against conviction, submitted that there is overwriting in the date, month and year in chik FIR (Ext.Ka-12), for which no explanation has been given. He further submitted that in the inquest report (Ext.Ka-3) there is also overwriting in the crime number, and it appears that some other crime number was earlier written therein, which has been corrected by overwriting so as to correspond with the crime number mentioned in the FIR. The timing of the FIR, as shown in the chik FIR, is 11:55 hours, while the inquest of the dead body commenced at 1:30 p.m. Although, considering the distance between the place of occurrence and the police station, the FIR appears to have been lodged promptly, i.e., within about one and a half hours of the incident, yet in view of the overwriting, the chik FIR appears to be ante-timed, inasmuch as the original FIR was seen on 09.11.2004, i.e., three days after its lodging. He next submitted that the incident took place in the month of November, when the weather had already become cold, but the deceased was found wearing single-layer clothes. Therefore, the prosecution?s version that deceased was going to the bank to withdraw money does not inspire confidence. He next submitted that the Investigating Officer recovered two empty 12 bore cartridges from the place of incident and prepared inventory Ext.Ka-18 after visiting the spot, but a long bullet was recovered from the dead body of the deceased during post-mortem, which appears to have been fired from a 315 bore firearm. The prosecution witnesses stated that one shot was fired at the deceased by Aadesh and Monu. If only two shots were fired at the deceased, the recovery of a long bullet from the internal organs during the postmortem examination is not explained. The Investigating Officer collected two empties of 12 bore from the place of incident. The ante-mortem injuries described in the post-mortem report indicate that the deceased had suffered two firearm injuries, as injury no.2 communicates with injury no.1 and injury no.3 is an entry wound, which was perhaps caused by a bullet that was strucked in the lung tissue of the deceased. Thus, the mode and manner of causing injuries to the deceased, as stated by the eyewitnesses, are not corroborated by the medical evidence. Inasmuch as P.W.3 Dr. R.N. Chaudhary has stated that the stomach of the deceased was empty, and even tea or any like thing was not found therein. He further submitted that this indicates the incident happened in the evening, and that nobody had actually seen the incident, and the FIR was lodged after thought.

37. Learned counsel for the accused has further submitted that the incident occurred in the month of November and the place of occurrence has been shown as a sugarcane field. In the month of November, sugarcane grows more than 6-7 feet high, and if anyone enters the sugarcane field, it is not possible to see what actually happened inside. Thus, the claim of the witnesses that they had seen the alleged incident is unfounded. He further submitted that the motive of the offence, as suggested by prosecution, was that prior to the incident, one Ravindra Kumar, brother of the informant, had contracted marriage with Km. Pravita, who is the daughter of Jaipal Singh and sister of accused Aadesh and Amit Kumar. However, neither Ravindra Kumar nor Km. Pravita were produced by the prosecution to prove the motive. He further stated that the FIR it is stated that the four accused persons inflicted firearm injuries upon the deceased and during trial, the prosecution witnesses tried to improve their version by stating that Monu and Aadesh had fired shots at the deceased with their respective pistols. He lastly submitted that the narration of the story has not been proved by the prosecution beyond reasonable doubt, inasmuch as accused persons, Jaipal Singh and Amit Kumar were acquitted by the trial Court and accused Monu, who is also shown as an assailant, was acquitted in his trial as a juvenile by the Juvenile Justice Board. The witnesses of fact turned hostile during the trial of the co-accused before the Juvenile Justice Board. This also goes against the authenticity of the prosecution version and the complicity of the accused persons in the offence. In fact, some unknown persons came and killed the deceased, and out of the two gunshots fired at him, at least one was caused by a 315 bore firearm, as during postmortem examination one bullet was retrieved from the lung tissue of the deceased. There are material contradictions between the statements of the witnesses recorded under Section 161 Cr.P.C. during investigation and their testimony before the Court during trial. The Investigating Officer has not shown that sugarcane crops were found broken or that footprints were visible at the place of incident. He also did not attempt to trace the motorcycles allegedly used by the accused persons to reach the place of incident.

38. With the above submissions, learned counsel for the appellant has prayed for acquittal of the convicted accused Aadesh and has further prayed for dismissal of the Government Appeal preferred by the State against the acquittal of accused Jaipal Singh and Amit Kumar, on the ground that these two accused persons were not assigned any overt act in the murder of the deceased and had successfully proved their plea of alibi during trial.

39. Per contra, learned A.G.A. has submitted that the prosecution has successfully proved its case against all three accused persons, namely, Aadesh, Jaipal Singh, and Amit Kumar, who are father and sons. The other accused, Monu, could not be tried jointly with the present accused persons as he was declared a juvenile and his trial was segregated. The finding of the Juvenile Justice Board with regard to the trial of co-accused Monu is not to be treated as an impediment in recording the convictions of the accused-respondents, Amit Kumar and Jaipal Singh in the Government Appeal, and Aadesh in the Criminal Appeal. The Trial Court has recorded the acquittal of the accused, Jaipla and Amit Kumar, by taking a technical approach and placing bald reliance on the evidence adduced in support of the plea of alibi, i.e., their presence elsewhere on the date and time of the incident. The case against accused persons is based on direct evidence of eye witnesses and occurrence took place in the morning at 6:30 A.M.

40. Learned A.G.A. has submitted that the trial Court rightly recorded the conviction of accused, Aadesh under Section 302/34 I.P.C. for committing the murder of the deceased and for the recovery of firearms allegedly used in the commission of the offence on 11.09.2004 at the time of his arrest. The contradictions indicated by the defence in the statements of prosecution witnesses are not of substantial nature. The contents of the stomach are not decisive to ascertain the time of death. There is no factual or legal error in the judgment of the trial Court so far as it relates to accused, Aadesh. However, the finding of the trial Court that the prosecution failed to establish the guilt of accused, Jaipal Singh and Amit Kumar beyond reasonable doubt cannot be sustained. Therefore, the Government Appeal is liable to be allowed and the Criminal Appeal preferred by appellant Aadesh, whose complicity surfaced as an assailants, deserves to be dismissed.

41. As regards Government Appeal against the acquittal of the accused by trial Court, the legal position is well setted by the various judgments of the Hon?ble Supreme Court, wherein it has been held that once an accused is acquitted by the trial Court, a double presumption of innocence operates in his favour and if two views are possible on appreciation of evidence, one in favour of acquittal and the other leading to conviction, the former view in favour of acquittal shall be adopted by the appellate Court in usual course.

42. The Supreme Court in the case of Ramesh Babulal Doshi Vs. State of Gujarat, (1996) 9 SCC 225 has observed that the High Court must examine the reasons given by the trial Court for recording their acquittal before disturbing the same by re-appraising the evidence recorded by the trial court. For clarity, para 7 is extracted herein below:

“Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then – and then only – reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not.”

43. The Supreme Court in the case of Sadhu Saran Singh Vs. State of U.P., (2016) 4 SCC 357 has observed that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity.

44. The Supreme Court in the case Basheera Begam Vs. Mohd. Ibrahim, (2020) 11 SCC 174 has held that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If, upon analysis of evidence, two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and other of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the court might reverse an order of acquittal if the court finds that no person properly instructed in law could have, upon analysis of the evidence on record, found the accused to be “not guilty”. When circumstantial evidence points to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime.

45. The Supreme Court in the case of Kali Ram Vs. State of H.P., (1973) 2 SCC 808 has observed as under:

“25. Another golden thread which runs through the web of the 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 other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought is to established by circumstantial evidence.”

46. The Supreme Court again examined in State of Odisha v. Banabihari Mohapatra & Ors, (2021) 15 SCC 268 the effect of the probability of two views in cases of appeal against acquittal and held 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.

47. The Supreme Court in Sujit Biswas v. State of Assam, (2013) 12 SCC 406 has reiterated the position that suspicion, however strong, cannot replace proof. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt.

48. In additional case in Guru Dutt Pathak vs. State of U.P. (2021) 6 SCC 116, the Hon?ble Supreme Court has held as under:-

?15. In Babu v. State of Kerala [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , this Court has reiterated the principles to be followed in an appeal against acquittal under Section 378 CrPC. In paras 12 to 19, it is observed and held as under : (SCC pp. 196-199)

?12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. [Balak Ram v. State of U.P., (1975) 3 SCC 219 : 1974 SCC (Cri) 837] , Shambhoo Missir v. State of Bihar [Shambhoo Missir v. State of Bihar, (1990) 4 SCC 17 : 1990 SCC (Cri) 518] , Shailendra Pratap v. State of U.P. [Shailendra Pratap v. State of U.P., (2003) 1 SCC 761 : 2003 SCC (Cri) 432] , Narendra Singh v. State of M.P. [Narendra Singh v. State of M.P., (2004) 10 SCC 699 : 2004 SCC (Cri) 1893] , Budh Singh v. State of U.P. [Budh Singh v. State of U.P., (2006) 9 SCC 731 : (2006) 3 SCC (Cri) 377] , State of U.P. v. Ram Veer Singh [State of U.P. v. Ram Veer Singh, (2007) 13 SCC 102 : (2009) 2 SCC (Cri) 363] , S. Rama Krishna v. S. Rami Reddy [S. Rama Krishna v. S. Rami Reddy, (2008) 5 SCC 535 : (2008) 2 SCC (Cri) 645] , Arulveluv. State [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] , Perla Somasekhara Reddy v. State of A.P. [Perla Somasekhara Reddy v. State of A.P., (2009) 16 SCC 98 : (2010) 2 SCC (Cri) 176] and Ram Singh v. State of H.P. [Ram Singh v. State of H.P., (2010) 2 SCC 445 : (2010) 1 SCC (Cri) 1496] )

13. In Sheo Swarup v. King Emperor [Sheo Swarup v. King Emperor, 1934 SCC OnLine PC 42 : (1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] , the Privy Council observed as under : (SCC OnLine PC : IA p. 404)

?? the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.?

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State [Tulsiram Kanu v. State, 1951 SCC 92 : AIR 1954 SC 1 : 1954 Cri LJ 225] , Balbir Singh v. State of Punjab [Balbir Singh v. State of Punjab, AIR 1957 SC 216 : 1957 Cri LJ 481] , M.G. Agarwal v. State of Maharashtra [M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri LJ 235] , Khedu Mohton v. State of Bihar [Khedu Mohton v. State of Bihar, (1970) 2 SCC 450 : 1970 SCC (Cri) 479] , Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] , Bhagwan Singh v. State of M.P. [Bhagwan Singh v. State of M.P., (2002) 4 SCC 85 : 2002 SCC (Cri) 736] and State of Goa v. Sanjay Thakran [State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 : (2007) 2 SCC (Cri) 162] .)

15. In Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , this Court reiterated the legal position as under : (SCC p. 432, para 42)

?42. ? (1) An appellate court has full power to review, reappreciate 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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ?flourishes of language? to emphasise 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.

(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.?

16. In Ghurey Lal v. State of U.P. [Ghurey Lal v. State of U.P., (2008) 10 SCC 450 : (2009) 1 SCC (Cri) 60] , this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court’s acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh [State of Rajasthan v. Naresh, (2009) 9 SCC 368 : (2009) 3 SCC (Cri) 1069] , the Court again examined the earlier judgments of this Court and laid down that : (SCC p. 374, para 20)

?20. ? An order of acquittal should not be lightly interfered with even if the Court believes that there is some evidence pointing out the finger towards the accused.?

18. In State of U.P. v. Banne [State of U.P. v. Banne, (2009) 4 SCC 271 : (2009) 2 SCC (Cri) 260], this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include : (Banne case [State of U.P. v. Banne, (2009) 4 SCC 271 : (2009) 2 SCC (Cri) 260] , SCC p. 286, para 28)

?28. ? (i) The High Court’s decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court’s conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court’s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.?

A similar view has been reiterated by this Court in Dhanapal v. State [Dhanapal v. State, (2009) 10 SCC 401 : (2010) 1 SCC (Cri) 336] .

19. Thus, the law on the issue can be summarised to the effect that 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 trial court’s acquittal 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.?

(emphasis supplied)

49. A perusal of record reveals that the prosecution has examined two witnesses of fact in support of its version i.e. P.W.1, Jogendra Singh (son of the deceased), and P.W.2, Kanwar Pal (cousin of the deceased). P.W.1 has stated in his examination-in-chief that the deceased, (Bhopal Singh) was his father. The accused, Amit Kumar and Aadesh are sons of Jaipal Singh. Accused, Monu is the son of Yashpal, who is the brother of Jaipal Singh. Thus, all accused persons belong to the same family. The three accused persons are father and sons and accused Monu is cousin of accused, Amit Kumar and Aadesh. The trial Court recorded the acquittal of the accused, Amit Kumar and Jaipal Singh on the ground that no overt act has been attributed to them in the incident. They were said to have been armed with firearms, but it was not stated that they fired shots at the deceased. The plea of alibi raised by the accused Amit Kumar, was also proved by the evidence of D.W.1 and D.W.2. The incident is said to have occurred at 10:30 A.M. on 06.11.2004 when the decease was on his way to Gangdaspur to withdraw money and the informant and his relative, Kanwar Pal, were following him from a distance of 20-25 paces. As soon as the deceased and witnesses reached in the field of Bundi, the accused persons, namely, Jaipal Singh, Amit Kumar, Aadesh and Monu arrived on two motorcycles. They suddenly came in front of the deceased and surrounded him. The deceased fled towards sugarcane field, but the accused persons caught him and threw him into the field and fired two shots at Bhopal Singh with their firearms. The informant and witness, Kanwar Pal, rushed to the sugarcane field and at that time, all four accused persons fled away on motorcycles while waving their country-made pistols. The FIR was lodged without any delay at 11:55 hours against the four named accused persons on the basis of the written report (Ext.Ka-1), vide Case Crime No.509 of 2004, under Section 302 I.P.C., at Police Station Deoband, District Saharanpur.

50. It is noticeable that the FIR does not assign any specific role to the accused persons for causing firearm injuries to the deceased, and omnibus allegations have been made against all four accused persons, stating that they chased, caught, and fired two shots at the deceased with their firearms. The FIR appears to have been promptly lodged, as the distance between the place of occurrence and the police station is shown as 10 km, and the FIR was lodged within one hour and 25 minutes. However, this fact cannot be overlooked that there is overwriting in the day, month, and year in the FIR, which finds no explanation in the evidence of the police witnesses and in crime number mentioned in the inquest report. After four days of the incident, two accused persons, namely Aadesh and Monu, were arrested by the Investigating Officer on 10.11.2004 at 9:45 a.m. near Sainpur Pullia, Police Station Deoban, District Saharanpur. It is alleged that one country-made pistol of 12 bore and two live cartridges were recovered from each of the accused persons. Consequently, a case under Section 25 of the Arms Act was registered vide Case Crime No. 512 of 2004 (State vs. Aadesh) and Case Crime No. 513 of 2004 (State vs. Monu) at Police Station Deoban, District Saharanpur. The FIR states that the deceased was going to withdraw money from a bank at Gangdaspur, and the informant along with his companion (eyewitness) was following him. The informant, his uncle Kanwar Pal, and Balendra were behind the deceased.

51. It appears that, according to the prosecution version, the deceased and three witnesses were traveling on foot at the time of the incident. The motive is introduced in the FIR itself, wherein it is stated that Ravindra Kumar, who is the son of the deceased and brother of the informant, had contracted a court marriage with Km. Pravita (daughter of accused Jaipal). For that reason, the accused persons were bearing enmity with the informant’s side, and prompted by this enmity, they had done away with his father (Bhopal Singh). The accused persons are all close relatives. Ext. Ka-17 is the recovery memo of a bank passbook, Rs. 11 in cash, one wristwatch, and two bank withdrawal forms, which were recovered from the dead body of the deceased at the time of the inquest. This document has been emphasized by the prosecution to suggest that the deceased was going to the bank to withdraw money at the time of the incident. The inquest of the dead body was conducted between 1:30 p.m. and 3:00 p.m. by P.W.4 (S.I.) Balveer Singh Verma.

52. It appears that the two country-made 12-bore pistols, allegedly recovered from the accused, Aadesh and Monu, were not sent to the FSL for ballistic examination. Therefore, there is no evidence on record to show that they were serviceable. Moreover, no public witnesses were present during the alleged recovery of the firearms by the accused, despite being in the vicinity of the place of arrest and recovery. The recovery memo states that public witnesses were present but refused to act as witnesses. However, the names of any such persons who were requested to act as public witnesses and refused have not been brought on record. The Investigating Officer has proved the recovery memo of two empty 12-bore cartridges on 06.11.2004 from the place of the incident. During his evidence, he stated that two shots were fired at the deceased from a country-made 12-bore pistol and that empty cartridges were found at the place of occurrence. However, a perusal of the post-mortem report of the deceased reveals that three gunshot wounds were recorded, of which one is an entry wound and another is an exit wound. Injuries Nos. 1 and 2 are communicative wounds, whereas Injury No. 3 is a gunshot entry wound measuring 2.5 x 2.5 cm, penetrating the chest cavity on the right side, 6 cm from the right nipple at the 2 o?clock position. Blackening is present around the wound, the underlying ribs are fractured, and the right lung is lacerated. On internal examination, one elongated metallic bullet was recovered from the lung tissue. The bullet is not used in a 12-bore firearm, and no pellets were recovered from the dead body. A 12 bore cartridge does not have a single bullet like a rifle cartridge, instead it contains a charge of gunpowder, a wad and a payload of projectiles typically which are known as pellets. Therefore, the eye-witness account is not corroborated by the medical evidence. The recovery of two 12-bore firearms from two accused persons, who were projected as the assailants after the incident, and the recovery of two live cartridges from the place of the incident by the Investigating Officer, do not explain how elongated metallic pellets were recovered from the sheet of Injury No. 3. Hence, there is a material medical inconsistency between the eye-witness account and the medical evidence, which creates doubt about the genuineness of the prosecution version and creates strong doubt on their testimony that they had actually seen the occurrence.

53. P.W.1 (informant) stated in his evidence that at the time of the incident, his father, Bhopal Singh, was going to the bank situated at Gangdaspur, and the informant along with other witnesses was also going to Gangdaspur for bullock. He improved his version and stated that four accused persons chased and surrounded his father. They were armed with a country-made pistol and took his father to the side of the road. The accused, Aadesh and Monu each fired a shot at him, causing him to fall in the field of Bundi due to firearm injuries. He clarified before the Court that two accused persons fired the shots while the other two were standing at the place of incident. All four accused fled away from the place of incident on motorcycles immediately after the incident. In cross-examination, P.W.1 has stated that his father contracted two marriages, one with Vimla, from whom two daughters were born, and the second with his mother, Shakuntala. The residences of the witness and the accused are situated opposite each other. The brother, Ravindra, had abducted the daughter of Jaipal Singh one year before the incident, and a case of abduction was registered against him, his parents, and his sister. A panchayat was also convened many times regarding this incident in the village. P.W.1 also stated that his father was shot on the side of the road. Thus, P.W.1 has given inconsistent statements regarding the place where the deceased was shot. P.W.1 also stated that if he had told the Investigating Officer that Aadesh and Monu each fired one shot at his father, but this fact was not recorded in his statement under Section 161 Cr.P.C., he cannot state the reason for its omission. He also admitted that at the time of preparation of the site plan, he told the Investigating Officer that four persons had fired shots at the deceased. He further admitted that the site plan does not show the direction in which the assailants fled. The site plan also does not show the broken sugarcane or the footprints in the sugarcane field where the dead body was found. P.W.1 has given suggestion by defence that some unknown persons had killed his father at night and false report had been lodged against accused persons due to enmity. He also admitted that he had not stated this fact in the FIR, that two accused persons were present at the place of incident.

54. P.W.2, Kanwar Pal, who is the cousin of the deceased and has claimed to be an eyewitness. He stated that the deceased, Bhopal Singh, his son Jogendra, and Balendra (brother of P.W.2) were going to Gangdaspur for bullocks. He further stated that they were all going to the bank. He deposed that the accused, Aadesh and Monu, fired one shot at the deceased on the side of the road near the field of Bundi, and the deceased fell into the sugarcane field after 2?3 paces. When they reached Bhopal Singh, they found him dead. He admitted that the deceased had not asked him to go to the bank and that he had gone to withdraw Rs. 2,000/- on that day. He also admitted that in his statement recorded under Section 161 Cr.P.C., he did not mention that the accused persons had surrounded the deceased. He further stated that all the four accused persons had fired shots, of which two hit the deceased while two were fired into the sky, but this fact was not stated in his statement recorded under Section 161 Cr.P.C. P.W. 2 has stated that when he heard the sound of firearm, he was 25-30 paces away from the place of firing and had not raised any alarm. This statement creates doubt regarding the presence of the witnesses at the spot.

55. P.W. 1 (informant), in his testimony, has given a wrong description of the apparel worn by the deceased at the time. Therefore, on the basis of a perusal of the evidence on record, it is concluded that there is inconsistency regarding the role attributed to the accused persons in the incident. In the FIR and the eye-witness accounts of the informant and other witnesses, there are medical inconsistencies regarding the nature of the gunshots. The stomach of the deceased was found empty in the post-mortem report, whereas the incident occurred at 10:30 a.m., and evidence shows that the deceased and witnesses had taken some tea before leaving their home. There was only a short lapse of time between leaving the home in the village and the time of the incident. If the deceased was going to the bank on foot to withdraw money around 10?10:30 a.m., it is unlikely that his stomach would have been completely empty. Even after the post-mortem, the report stated that no signs of tea or food were found in the stomach. Therefore, we find that the eye-witness accounts given by P.W. 1 and P.W. 2 do not inspire confidence regarding the mode, manner, and time of the incident.

56. Out of the four accused persons, the accused Jaipal Singh, who had been acquitted by the trial Court, has already died. Accused Amit Kumar was also acquitted by the trial Court on the ground that his plea of alibi was duly proved by the defence evidence. In the prosecution evidence, the act of firing was attributed to the convicted accused Aadesh and juvenile Monu. Monu was declared a juvenile in conflict with the law and was tried separately. Learned counsel for the appellant submitted that accused Monu had also been acquitted of all charges during trial by the Juvenile Justice Board and that the prosecution witnesses had become hostile. There is also overwriting in the crime number mentioned in the inquest report.

57. Learned counsel for the appellant placed reliance upon the judgment of the Hon?ble Supreme Court in Moti etc. vs. State of U.P. AIR 2003 SC 1897, wherein it has been observed as under:-

?14. It is rather surprising that the High Court should find this part of the medical evidence as being of no consequence at all. The High Court referring to this part of the medical evidence has observed : “In our opinion the stomach contents are not very material to determine the time of incident.” We are of the considered opinion this view of the High Court is wholly erroneous. It may be possible to contend that contents of the stomach may not always be an indicator of the time of death. But in a case where stomach is empty and the prosecution evidence is that the murder had taken place shortly after the deceased had his last meal, to say that the contents of the stomach have no material hearing on the determination of the time, in our opinion, is not acceptable. In the instant case, time of death being a material factor to verify the presence of the eye-witnesses it was obligatory for the prosecution to have clarified the discrepancy between the medical evidence and the oral evidence. The prosecution having failed to do so, in our opinion, a serious doubt as to the time of incident and the presence of the eye-witnesses at the time of incident and their narration of the incident also becomes doubtful.

15. Incidentally, we may also notice that even according to the prosecution, appellant Moti had no motive to commit the crime in question. The incident as narrated by the eye-witnesses having taken place in a place where there was no proper light to identify the actual accused who dealt the fatal blow also contributes to the factum of doubt in the prosecution case. Therefore, in our opinion, the prosecution has failed to establish its case against the appellant Moti.?

58. In view of the facts emerging from the evidence on record, we are of the considered opinion that the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt. The surviving accused Amit Kumar has rightly acquitted by the trial Court. The trial Court fell in error while recording conviction of the accused Aadesh for aforesaid charges. He also deserves to be acquitted of all charges.

59. Consequently, the conviction and sentence passed by the trial Court against the accused, Aadesh, under Section 302/34 IPC and Section 25 of the Arms Act is set aside and Criminal Appeal No. 3149 of 2008 is accordingly allowed. He is acquitted of charge under Section 302 I.P.C. and Section 25 of the Arms Act. The appellant, Aadesh was enlarged on bail in the present criminal appeal, he need not surrender. He is directed to furnish two sureties and a personal bond to the satisfaction of the trial Court under Section 437-A Cr.P.C. within 15 days. The Government Appeal No. 7347 of 2008 preferred against the acquittal of Jaipal Singh and Amit Kumar, is hereby dismissed.

60. Let a copy of the judgment and order be forwarded to the trial Court for compliance and trial court record be immediately transmitted to trial Court for necessary action.

August 27, 2025

Amit