Allahabad High Court
State Of U.P. vs Vinod on 2 July, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:102363-DB Reserved on 28.5.2025 Delivered on 02.7.2025 In Chamber Case :- GOVERNMENT APPEAL No. - 5512 of 2006 Appellant :- State of U.P. Respondent :- Vinod Counsel for Appellant :- Govt. Advocate Counsel for Respondent :- Gaurav Kakkar,Hemendra Pratap Singh,R.K.Pandey,Sanjay Mishra Hon'ble Siddharth,J.
Hon’ble Ram Manohar Narayan Mishra,J.
1. Heard Sri G.N. Kanaujia, learned AGA-Ist for the State-appellant; Sri Sanjay Mishra, learned counsel for sole-respondent and perused the material placed on record.
2. The above noted government appeal has been preferred by the State-appellant praying for setting aside the judgement and order of acquittal dated 27.5.2006 passed by Sessions Judge/Fast Track Court No.19, Bulandshahr, in Sessions Trial No.775 of 1997 (State Vs. Vinod) arising out of Case Crime No.91 of 1997, under Sections 307, 326 IPC, Police Station Aurangabad, District Bulandshahr, whereby trial court has acquitted the accused, Vinod.
3. The prosecution case is that on 07.08.1997 son of informant, Aman Singh, was returning to his house when in the way Vinod son of Amarpal Singh was quarreling with his uncle, Natthu son of Ramchander. Vinod asked his son, Aman Singh to give his panny for beating his uncle, which Aman Singh refused, thereafter dispute took place between them. Aman Singh informed his brother, Baran Singh, about the incident and when Baran Singh was going to the house of Vinod for making complaint against him, at about 04:45 P.M., Vinod fired from his licensed gun from his terrace which hit the right eye of Baran Singh. The incident was seen by Sukhbir Singh, Sanjay and Ajab Singh. Initially F.I.R. was lodged on the same day at 17:45 hours, under Section 307/326 of I.P.C. but later, after the death of Baran Singh, the implication of respondent, Vinod, was made under section 302 of I.P.C.
4. The police conducted investigation of the case and submitted charge sheet and charge was framed under Section 307/302 of I.P.C. by the trial court. The accused- respondent denied the charges and sought trial.
5. To prove the prosecution case, the prosecution produced P.W.-1, Devendra (informant); P.W.-2, Constable Satya Prakash; P.W.-3, Mahendra Prasad Pandey; P.W.-4, Dr. Sudhir Kumar Gupta, P.W.-5, S.I. Rajesh Malik, P.W.-6, Dr. A.K. Sharma and P.W.-7, Mahesh Singh Tomar.
6. The statement of accused respondent was recorded under Section 313 Cr.P.C., but no defence witness was produced.
7. The trial court after considering the evidence on record acquitted the accused respondent of all charges and hence this appeal has been preferred by the State-Appellant.
8. The learned counsel for the appellant has submitted that :
i). Incident had taken place on 07.08.1997 at about 4.45 P.M. and First Information Report was lodged on 07.08.1997 at about 17:45 P.M. against single person, namely, Vinod son of Amarpal as Case Crime No.91/97 under Section 307 I.P.C., Police Station- Aurangabad, District Bulandshahr and after death of the injured person, section 302 was also added during investigation and charge sheet was filed under Section 302 I.P.C. against the accused.
ii). The dead body of the deceased was sent for conducting the postmortem on 09.10.1997 and on same day postmortem was conducted by Dr. S.K. Singh.
iii). The P.W.-1, Devendra Singh, on page 18 has stated that Vinod had fired bullet from his licensed gun on the deceased, Baran Singh, which hit the right eye of the deceased on 07.08.1997 and thereafter the deceased had died on 09.10.1997. He further stated that he had seen the incident. Therefore P.W. 1 is eye witness of the case and he also proved the prosecution case, but trial court has wrongly acquitted the accused.
iv). P.W.-2, Satya Prakash, has stated that the death certificate of the deceased was given to the investigating officer and thereafter section 302 I.P.C. was added in place of Section 307 and 326 I.P.C.
v). P.W.3, Mahendra Prasad Pandey, who conducted the investigation has stated, that he recovered the gun, along with 6 live cartridges and one empty cartridge from the house of the accused, Vinod. He further stated that it is proved from the statement of the eye witness and circumstances of the case that the bullet was fired by the accused, Vinod, therefore, it was not necessary to send the gun to FSL for examination. From the statement of the P.W.-3 it is clear that the gun shot injury was caused to the deceased by the accused, Vinod. He further stated that he also recorded the statement of the deceased, Baran Singh, as dying declaration in which the deceased informed that at about 4.45 P.M. the accused, Vinod, with license gun of his father climbed on roof of his house and fired on him with intention to commit his murder and the bullet hit the right eye of the deceased.
vi). From the perusal of the dying declaration of the deceased recorded by investigating officer, it is clear that the deceased himself proved the prosecution case beyond reasonable doubt.
vii). P.W.-4, Dr. Sudheer Kumar Gupta, who conducted the postmortem of the deceased, has stated that the fire arm injury was found in the right eye of the deceased and due to this reason, he had died. Therefore, the P.W.-4 had also proved the prosecution case but the trial court has not properly considered the evidence on record.
viii) P.W.-6, Dr. S.K. Sharma, who examined the deceased on 07.08.1997 has stated that the bullet shot in the right eye of the deceased and the fire arm injury was found as fresh. It is clear from the statement of the P.W.-6 that the death of the deceased was caused due to gun shot injury.
ix). From the perusal of the statement of the witnesses, and dying declaration of the deceased, it is clear that the death of the deceased was caused by the gun shot injury and it was also proved that the bullet used in crime was fired by the accused, Vinod, who committed offence punishable under section 302 I.P.C. Therefore the judgment and order dated 27.05.2006 passed by Additional Sessions Judge/ Fast Track Court 19, Bulandshahr is not based on evidence and trial court has wrongly acquitted the accused without considering the dying declaration of the deceased and statements of the witnesses.
9. Counsel for the respondent in support of his case has made the following submissions:-,
i). The presence of the P.W.-1, was doubtful because of the various contradictions in the statements of P.W.-1, P.W.-2 and P.W.3.
ii). The injury sustained by the deceased was from the upward direction but in the statement recorded under Section 161 Cr.P.C. of the deceased, he categorically stated that the accused- respondent has fired on him from the terrace, hence the injury should have been suffered from the bullet coming towards downwards direction and not from upward direction. The prosecution failed to explain how, the deceased suffered injury caused to his right eye from downward direction.
iii). The statement under Section-161 Cr.P.C. of the deceased was recorded on 07.08.1997 and he died on 09.10.1997. There was sufficient time for the investigating officer to get the magisterial statement of deceased record under section 161 Cr.P.C. but he never got the same recorded.
iv). The statement of the statement of the deceased was recorded under section 161Cr.P.C. on blank paper. Since the case diary was not in the format as provided in Section-172 of Cr.P.C. and there was no explanation regarding the unnumbered pages of case diary, the case diary was found to be suspicious as held in Chandra Prakash Vs. Delhi Administration reported in 1995 CCR(11) Page-322. Hon’ble Court held that the case diary which was unnumbered was suspicious.
v). The site plan does not demonstrates the presence of Sukhvir son of Narayan Singh, Sanjay son of Digambar Singh, Ajab Singh son of Narayan Singh, but the statement made by deceased and recorded under section 161 Cr.P.C. records that they were present. In 2004 (48) ACC 365 Awad Ram Vs. State, Hon’ble Court held that the site plan should indicate the presence of witnesses as stated in the FIR and Statement under Section 161 Cr.P.C.
vi). The recovered weapon were not sent for FSL when the statute provides that the weapon ought to have been b be send to the FSL.
vii). There is material and ambiguity regarding the presence of the deceased as per the deposition/testimony of the P.W.-1. The deceased was present on the tractor trolley in injured condition and as per deposition of the PW.-3, the investigating officer, deceased was present inside the room and was sitting on the chair/bench when his statement under section 161 Cr.P.C. was recorded. Further the I.O himself has stated that he was sitting in the verandah. It is doubtful whether the statement of the deceased was recorded at all or not.
viii). The case diary is not in consonance with particular required by Section 172 Cr.P.C. (Clause-109 of Police Manual).
ix). For recording dying declaration the presence of two respectable witnesses, obtaining the signature or thumb impression of the declarant and witnesses at the foot of declaration is required. (Clause-119 of Police Manual).
10. The appellate Court is usually reluctant to interfere with a judgment acquitting an accused on the principle that the presumption of innocence in favour of the accused is reinforced by such a judgment. The above principle has been consistently followed by the Constitutional Court while deciding appeals against acquittal by way of Article 136 of the Constitution or appeals filed under Section 378 and 386 (a) Cr.P.C. in State of M.P. Vs. Sharad Goswami,(2021) 17 SCC 783; State of Rajasthan Vs. Shera Ram, (2012) 1 SCC 602, Shivaji Sahabrao Bobade Vs. State of Maharastra, (1973) 2 SCC 793.
11. 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.”
12. 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.
13. 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.
14. 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.”
15. 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.
16. 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.
17. In the background of the law discussed herein above, we have examine the trial court’s findings and evidence adduced during the trial by the witnesses to test the legality and validity of the impugned order.
18. Learned counsel for the appellant could not point out any perversity in the findings recorded by the trial court. The trial court’s judgement is a well merited one, this Court need not re-appreciate the evidence.
19. After hearing the rival contentions, we find that the learned counsel for the State-appellant has not explained how the deceased suffered injury from the bullet going upwards when the respondent is alleged to have fired from the terrace downwards. There is also no explanation regarding not recording of the statement of deceased, under section 164 of Cr.P.C. when he was alive for more than 2 months after suffering the gun shot injury. The recording of statement of deceased under section 161 of Cr.P.C. on blank papers also does not inspires confidence since such statements are always recorded on the pages of case diary. The blank papers used for recording of the statement of the deceased under Section 161 of Cr.P.C., without there being any statement of deceased recorded under section 164 of Cr.P.C., can not be accepted without corroboration. The findings of the trial court have not been demonstrated to be perverse, being not based on evidence on record.
20. The above noted government appeal is dismissed.
21. Let the record of the trial court be returned and this judgement to be notified to the trial court, within two weeks.
Order Date :- 02.7.2025
Ruchi Agrahari
.
(Ram Manohar Narayan Mishra,J.) (Siddharth, J.)