of U.P. Vs. Jai Prakash  Insc 708 (20 June 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of the Division Bench of the
Allahabad High Court, directing acquittal of the respondent by setting aside
the judgment of conviction and sentence passed by learned III Additional
District and Sessions Judge, Aligarh in Sessions Trial No.391/1979. Accused was
convicted for offence punishable under Sections 302, 364 and 201 of the Indian
Penal Code, 1860 (in short the 'IPC'). He was awarded life imprisonment for
each of the first two offences and five years RI for the last one.
All the sentences were directed to run concurrently.
2. Sans unnecessary details prosecution version as unfolded during trial is
In the morning of 21-2-1978 the accused-respondent was found talking with
Nuruddin (hereinafter referred to as 'the deceased') at about 9 '0' clock in
front of his house where he was playing. The accused-respondent allegedly took
him with him and thereafter Nuruddin was not seen and his dead body was
recovered in the night from a well. Natthu Singh (PW-4) had allegedly seen in
the same forenoon the deceased- Nuruddin going on a cycle with the
Khatoon (PW-3) mother of the deceased-Nuruddin had also seen Nuruddin with
the accused-respondent outside her house at about 9 A.M. She had also seen him
going with him.
Thereafter, only his dead body could be recovered from a well.
Amina (PW-8) had also seen Nuruddin talking with the accused-respondent
outside her house in the morning of the day of the incident. Allahdin (PW-2)
had gone to Hathras to sell iron nails and had returned home at about 5 P.M. His wife Smt. Khatoon (PW-3) had then told him that Nuruddin had not been seen
since morning and that the accused-respondent had taken him. He was also
informed by Natthu Singh (PW-4) and others that they had seen the deceased
going on a cycle with the accused-respondent. He had then lodged the report the
same night at 9.10 P.M.
The dead body of the deceased was recovered from the well of Raja Ram the
same night at the instance of the accused-respondent who had allegedly been
arrested by the SI Naresh Pal Yadav (PW-7) who had reached the village of the
incident at about 10 P.M. Balbir (PW-6) was a witness of the recovery of the
dead body of the deceased from the well at the instance of the accused and in
consequence of the disclosure made by him under Section 27 of the Indian
Evidence Act, 1872 (in short 'Evidence Act'). The case was initially registered
under Section 364 IPC but was subsequently converted additionally under Section
302 IPC and Section 201 IPC on the recovery of the dead body.
The dead body was subjected to postmortem which was conducted on 22-2-1978 at 3 P.M. by Dr. S.K. Saxena (PW-1).
The deceased was aged about 7 years and about 1= day had passed since he
died. The following ante-mortem injuries were found on his person:
1. Lacerated wound 1= " x 1" x bone deep on the scalp (L) side
'/2" outer to midline, 1=" above (L) eyebrow.
2. Three abrasions in an area of 2" x 2" on the (L) temple region
varying from <" x <" to =' x 2/10".
Skin of hands and feet was corrugated.
Death had occurred due to coma and asphyxia owing to injury to brain and
drowning. The investigation was undertaken and charge sheet was filed. As noted
above, the Trial Court found the accused persons guilty.
3. In appeal, the appellant urged that the version of prosecution is clearly
unbelievable. If the accused had the motive the scenario as described by the
prosecution does not fit in. The High Court noted if the accused was harassing
PW- 3 and the deceased was asked to accompany her, it is highly improbable that
mother of the deceased would like the deceased to go with the accused. So far
as the evidence of PW- 4 is concerned it was noted that he had not stated
before the Investigating Officer that the deceased was being carried by the
accused at bicycle. Accordingly the High Court directed acquittal.
4. In support of the appeal learned counsel for the appellant-State
submitted that the motive was clearly established. The accused was having
animosity towards the family of the deceased. Merely because PW-4 had not
stated that during investigation the accused was carrying the deceased on a
cycle, same cannot be a ground to discard the prosecution version.
5. None appeared for the respondent in spite of service of notice.
6. 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 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 where the accused has
been acquitted, for the purpose of ascertaining as to whether any of the
accused really committed any offence or not. [See Bhagwan Singh and Ors. v.
State of Madhya Pradesh (2002 (2) Supreme 567)]. The principle to be followed
by appellate Court considering the appeal against the judgment of acquittal is
to interfere only when there are compelling and substantial reasons for doing
so. If the impugned judgment is clearly unreasonable and relevant and
convincing materials have been unjustifiably eliminated in the process, it is a
compelling reason for interference. These aspects were highlighted by this
Court in Shivaji Sahabrao Bobade and Anr.
v. State of Maharashtra (AIR 1973 SC 2622), Ramesh Babulal Doshi v. State of
Gujarat (1996 (4) Supreme 167), Jaswant Singh v. State of Haryana (2000 (3)
Supreme 320), Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme
152), State of Punjab v. Karnail Singh (2003 (5) Supreme 508 and State of Punjab
v. Pohla Singh and Anr. (2003 (7) Supreme 17).
7. In the instant case the scenario presented by the prosecution does not
appear to be natural. Prosecution case for establishing motive was that the
accused was harassing PW-3 and had been rebuked for that. It was also stated
that on several occasions accused wanted to sexually assault PW-8 and to ensure
that she is not left alone, the deceased was asked to accompany her. In this
background it is improbable and unnatural as rightly held by the High Court
that PW-3 would permit deceased to go with the accused and would not take any
precaution when she claimed to have seen the deceased in the company of the
accused. Evidence of PW-4 is also not acceptable. His version in Court was that
the accused was carrying the deceased on a bicycle. He did not say so during
8. In view of the nature of the evidence tendered by the prosecution, the
High Court was right in directing acquittal of the respondent. We find no merit
in this appeal which is accordingly dismissed. Bail bonds executed for being
released on bail, stand discharged.