Allahabad High Court
Badam Singh vs State Of U.P. on 14 December, 2022
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 12.10.2022 Delivered on 14.12.2022 Court No. - 44 Case :- CRIMINAL APPEAL No. - 4147 of 2016 Appellant :- Badam Singh Respondent :- State of U.P. Counsel for Appellant :- Apul Misra,Akhilesh Singh,Satya Pal Singh Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Nalin Kumar Srivastava,J.
(Per : Nalin Kumar Srivastava, J.)
1. The accused-appellant Badam Singh was convicted under Section 302 of IPC and sentenced for life imprisonment with fine of Rs.50,000/- with the stipulation of default clause vide judgment and order dated 28.7.2016 passed by the Sessions Judge, Budaun in Sessions Trial No. 666 of 2015 (State Vs. Badam Singh) arising out of Case Crime No.361 of 2015, Police Station- Zarif Nagar, District- Budaun. Feeling aggrieved with the same, accused appellant has preferred this appeal.
2. The brief facts culled out from the record are that on the basis of a written report submitted by the complainant at Police Station- Zarifnagar, District- Budaun, a Case Crime No.0361 of 2015 was registered in which averments were made that Ram Bholi, daughter of the complainant, was married to Badam Singh son of Chhote Lal (accused-appellant) as per hindu rites and rituals. After few days of the marriage, a demand of motorcycle and buffalo was raised as additional dowry. The said demand was told to the informant by her daughter. When the informant inquired about the said demand of additional dowry from the in-laws of her daughter, they stated that if the informant fails to give the Motorcycle & Buffalo, he would get his daughter back. On 6.7.2015, Badam Singh, Devendra and Chhatrapal sons of Chhote Lal, Rupa wife of Chhote Lal and Km. Santosh all the accused persons strangled her to death. This information was given telephonically to the informant by Ompal son of Balister, resident of Dariyapur, police station Mujriya, who lodged the F.I.R..
3. In pursuance of the aforesaid first information report, Investigating Officer, Umesh Kumar Yadav, Circle Officer, Sahaswan, Budaun, took up the investigation and visited the spot. Site-plan was prepared and inquest report was also prepared. The body of the deceased was sent for post mortem. Concerned doctor performed the autopsy and prepared the post mortem report. I.O. recorded the statements of witnesses. After completing the investigation, I.O. submitted charge sheet against accused appellant. The matter being triable by Court of Sessions was committed to the Court of Sessions for trial.
4. The learned trial court framed charges against the accused under Section 304-B, 498-A IPC and ¾ Dowry Prohibition Act. Alternative charge under Sections 302 IPC was also framed. The accused-person pleaded not guilty and wanted to be tried. The prosecution so as to bring home the charges, examined the following witnesses:-
1.
Sonpal PW-1-informant (father of the deceased)
2. Amrita PW-2 (mother of the deceased)
3. Sunita PW-3 (sister-in-law of the deceased (bhabhi)
4. Tajpal Singh PW-4 (brother of the deceased)
5. Gayatri PW-5 (sister of the deceased)
6. Dr. Rajesh Kumar Verma PW-6 (who performed the autopsy on the body of the deceased)
7. Nanak Singh PW-7 (who conducted inquest )
8. Head constable Rajpal Singh PW-8 (scribe of F.I.R.) 9 Umesh Kumar Yadav PW-9 (Investigating Officer)
5. In support of oral version, following documents were filed and proved on behalf of the prosecution:
1.
Written report Ext. Ka-1
2. Post mortem report Ext. Ka-2
3. Inquest report Ext. Ka-3
4. Photo lash Ext. Ka-4
5. Specimen seal Ext. Ka-5
6. Challan lash Ext. Ka-6
7. Letter to C.M.O. Ext. Ka-7
8. First Information Report Ext. Ka-8
9. Copy of G.D. Ext. Ka-9
10. Site plan Ext. Ka-10
11. Charge sheet Ext. Ka-11
6. After completion of prosecution evidence, incriminating circumstances emanating from the prosecution evidence were put to the accused. In his statement recorded under Section 313 CrPC, he denied his involvement in the incident and pleaded false implication on account of enmity.
7. Heard Shri Akhilesh Singh assisted by Shri Satya Pal Singh, learned counsel for the appellant and Shri Patanjali Mishra, learned AGA for the State and perused the record.
8. Learned counsel for the appellant submitted that appellant has been falsely implicated in this case. It is further submitted that all the witnesses of fact have turned hostile and on the basis of analysis of their evidence, no guilt against the accused appellant is established and proved. It is further submitted that to prove a case under Section 302 IPC, the burden lies upon the prosecution. In the present matter, the case was based on circumstantial evidence and no circumstance was proved by the prosecution to connect the accused appellant with the alleged offence of murder. The learned trial court has wrongly recorded the conviction on the basis of provisions of Section 106 Evidence Act, which under law, was not permissible in the circumstances of present case. Motive of crime is not proved. The findings recorded by the trial court in the impugned judgment are illegal and perverse warranting interference by this Court.
9. Learned AGA for the State vehemently opposed the submissions made on behalf of the appellant and submitted that the death of the deceased had taken place in her matrimonial home and injuries were also found on her body, which are mentioned as ante mortem injuries in post mortem report. It means that due to injuries sustained by her, she died. It is also submitted that testimony of hostile witnesses can also be relied upon to the extent it supports the prosecution case. Learned trial court has rightly convicted the appellant under Section 302 IPC and sentenced accordingly. There is no force in this appeal and the same may be dismissed.
10. At the very outset, it is found that the appellant has been acquitted under Sections 304-B, 498-A IPC and ¾ D.P. Act but has been convicted under Section 302 IPC. The learned trial court has mentioned certain circumstances indicating the guilt of the appellant and has come to the conclusion that since no explanation of these circumstances has been offered by the appellant, his conviction can be recorded under Section 302 IPC. The trial court has found that it was a case based on circumstantial evidence and there was no eye witness account.
11. Charge against the accused was framed on 10.12.2015 under Sections 304-B, 498-A IPC and 3/4 D.P. Act and in alternative under Section 302 IPC.
12. In Rajbir vs. State of Haryana, (2010) 15 SCC 116, the Hon'ble Supreme Court directed to ordinarily add Section 302 IPC to the charge of Section 304-B IPC so that death sentences can be imposed in such heinous and barbaric crime against women. However, subsequently the direction issued in the case of Rajbir case (supra) was explained by the Hon'ble Apex Court in Jasvinder Saini and others vs. State (Government of NCT of Delhi), (2013) 7 Supreme Court Cases 256. It was held that mechanical addition of charge under Section 302 IPC when evidence prima facie did not support the case of murder was unsustainable. It was further held that :
"15. It is common ground that a charge under Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568] . The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568] , but it would have been more appropriate to remit the matter back to the trial court for fresh orders rather than lending support to it in the manner done by the High Court."
It was also held that :
"14. Be that as it may, the common thread running through both the orders is that this Court had in Rajbir case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568] directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court."
13. We find that during course of investigation, no evidence of Section 302 IPC was collected by the Investigating Officer and that is why charge sheet was filed under Sections 304-B, 498-A IPC and 3/4 D.P. Act and not under Section 302 IPC. However, the additional charge under Section 302 IPC was initially framed and the trial started.
14. On the basis of evidence on record and especially of the prosecution witnesses, who were the family members of the deceased, the trial court gave a categorical finding that no offence under Sections 304-B, 498-A IPC and ¾ D.P. Act is made out.
15. The conditions required to be proved to bring home a charge under Section 304-B IPC are very well settled in a catena of decisions of the Hon'ble Supreme Court as well as of this Court, like : Kamesh Panjiyar Vs. State of Bihar, (2005) 2 SCC 388, Kashmir Kaur Vs. State of Punjab, (2012) 13 SCC 627 and Baljinder Kaur vs. State of Punjab, (2015) 2 SCC 629. In Kans Raj vs. State of Punjab, (2000) 5 SCC 207, the ingredients of Section 304-B IPC have been reiterated, which are as under :
(a) Death of a woman occurring otherwise than under normal circumstances;
(b) Death was occurred within 7 years of her marriage;
(c) The deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
(d) Such cruelty or harassment should be for or in connection with the demand of dowry; and
(e) To such cruelty or harassment the deceased should have been subjected to soon before her death.
16. The learned trial court has opined that the factum of the death of the deceased within seven years of her marriage and causing of death otherwise than under normal circumstances are the two ingredients, which are not disputed. So far as the fact of cruelty and harassment of the deceased by her husband or any relative of her husband for, or in connection with any demand for dowry, is concerned, the learned trial court has concluded that none of the witnesses of fact narrated even a single word in respect of the said allegations. It also transpires from a perusal of the statement of witnesses of fact that the element of ''soon before' has also not been proved. Hence, it was simply clear before the trial court that the ingredients to bring home a charge under Section 304-B IPC were not fully established. It is desirable to add here that in case the aforesaid ingredients were proved by the prosecution, the Court would have presumed that the accused had caused the dowry death of the deceased. Since the ingredients of the said offence and especially the element of ''soon before' were missing, the prosecution was not in a position to take the benefit of presumption clause given under Section 113-B of the Evidence Act and the burden did not shift upon the accused but it remained over the prosecution.
17. The trial court held that the deceased had died in her matrimonial home. In the Autopsy Report marks of injury have been found over the neck of the deceased and the cause of death was found to be ante mortem hanging. Considering the aforesaid grounds, the learned trial court found that it was a case of murder punishable under Section 302 IPC based on circumstantial evidence.
18. What is required in a case based on circumstantial evidence has been discussed and clarified so many times. The law on the subject is well settled.
19. In State of U.P. v. Ravindra Prakash Mittal (Dr), (1992) 3 SCC 300, the Hon'ble Apex Court has held:
"20. .........There is a series of decisions of this Court so eloquently and ardently propounding the cardinal principle to be followed in cases in which the evidence is purely of circumstantial nature. We think, it is not necessary to recapitulate all those decisions except stating that the essential ingredients to prove guilt of an accused person by circumstantial evidence are:
(1) The circumstances from which the conclusion is drawn should be fully proved;
(2) the circumstances should be conclusive in nature;
(3) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence;
(4) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused."
20. In Raja v. State of Haryana, (2015) 11 SCC 43, it was held that the Court is required to evaluate circumstantial evidence to see that chain of events has been established clearly and completely to rule out any reasonable likelihood of innocence of accused; whether chain is complete or not, would depend on facts of each case emanating from evidence and no universal yardstick should be fixed.
21. We find that several circumstances have been discussed by the learned trial court relating to the murder of the deceased.
22. The first circumstance is that the death of the deceased occurred in her matrimonial home. PW-1, PW-2 and PW-3 in their depositions stated without any hesitation that the deceased died in her matrimonial home. The inquest report Ext. ka-3 and the testimonies of PW-7 and PW-9 also indicate the same fact. The site plan Ext. ka-10 is another piece of evidence to ascertain the place of death of the deceased and dead body has been shown lying at letter ''B', which is the room of the accused. The main place of occurrence has been shown by letter ''A', which is the room of the accused. The evidence of PW-7, PW-8 and PW-9 also corroborates this fact that on information of the incident when police reached the matrimonial home of the deceased the dead body of the deceased was found at the place shown as letter ''B'. PW-1, PW-2 and PW-3 have also stated that when they reached the matrimonial house of the deceased, they saw the dead body lying there.
23. The learned counsel for the appellant has submitted that even if it is assumed that death of the deceased was caused in suspicious circumstances, this fact is not to be ignored that in a case rest upon circumstantial evidence the burden of proof always lies upon the prosecution. It has been vehemently argued that the last seen theory has a significant role to bring home the charge against the accused in a case based on circumstantial evidence and in the present case there is no witness to depose that at any point of time, at the time or shortly before the death of the deceased anyone saw the accused appellant with the deceased and that is the major dent in the prosecution case.
24. In the light of the aforesaid submissions, we have thoroughly examined the oral evidence on record. As pointed out earlier, the witnesses of fact, PW-2, PW-3, PW-4 and PW-5 are hostile witnesses and do not support the prosecution case.
25. PW-1, the father of the deceased, no where in his evidence states that at the time of occurrence deceased was seen by anyone in the company of the accused. Even in his cross-examination a denial has been made by him in respect of affidavit given by him to Superintendent of Police, Budaun alleging therein the guilt of the present accused appellant. In the aforesaid circumstances it can be concluded, on the basis of evidence on record, that the last seen theory is not proved against the present accused appellant. We are afraid that only on the basis of this fact that the body of the deceased was found in her matrimonial home, although this fact was also contradicted by the family members of the deceased in their testimonies as they stated that the dead body was found in Jungle, and absconding of the accused, we are compelled to draw a definite conclusion that it was the accused appellant who was the author of the crime. According to the depositions of the witnesses of fact the accused appellant had informed them regarding the incident. In the absence of definite evidence on the point that at the time of the occurrence the accused was present in his house, it could not be held that the accused has murdered his own wife. It is true that in his statement under Section 313 CrPC the accused has not made any clear averment as to where he was present at the time of occurrence, but since there was no evidence against him to implicate him in the present crime he was not under obligation to disclose his presence at the time of incident. A plea of innocence and false implication on account of enmity has been taken by him in his statement under Section 313 CrPC.
26. The attention of the Court is drawn towards the verdict of Hon'ble Supreme Court in Ashok Debbarma vs. State of Tripura, (2014) 4 SCC 747 wherein it was held that Section 313 CrPC statements solely by themselves are not enough for conviction, but can be used for corroboration along with other evidence for conviction. In the light of the aforesaid case law, we are unable to find any other evidence to which the statement of accused under Section 313 CrPC corroborates. In Dharam Deo Yadav vs. State of U.P., (2014) 5 SCC 509, it has been held that "normally the last seen theory comes into play when the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. It will be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. However, if the prosecution, on the basis of reliable evidence, establishes that the missing person was seen in the company of the accused and was never seen thereafter, as in the present case, it is obligatory on the part of the accused to explain the circumstances in which the missing person and the accused parted company. In such a situation, the proximity of time between the event of last seen together and the recovery of the dead body or the skeleton, as the case may be, may not be of much consequence".
27. So far as the present case is concerned, we have noticed that there is no evidence on record in respect of last seen theory.
28. In fact burden of proving malafides lies on the shoulders the one who is alleging it, as provided under Section 101 of the Evidence Act and also held in Uniworth Textiles Ltd. Vs. CCE, (2013) 9 SCC 753.
29. We take notice of the fact that the conviction in the present case has been recorded on the basis of Section 106 of the Evidence Act.
30. In Ranjit Kumar Haldar vs. State of Sikkim, (2019) 7 SCC 684 it was held that general rule is that burden of proof is on prosecution. However, Section 106 was introduced not to relieve prosecution of their duty, but it is designed to meet situation, in which it would be impossible or difficult for prosecution to establish facts which are especially within the knowledge of accused.
31. Section 106, Evidence Act provides that "when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him".
32. In State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254 it was pronounced that the provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer any explanation as to how and when he parted company with the deceased. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act.
33. In Satye Singh and another vs. State of Uttarakhand, (2022) 5 SCC 438 it was held that Section 106 Evidence Act is not intended to relieve prosecution from discharging its duty to prove guilt of accused. Prosecution must discharge its primary onus of proof to establish basic facts against the accused in accordance with law only thereafter may Section 106 be invoked to, depending on the facts and circumstances of each case.
34. In Nagendra Shah vs. State of Bihar, (2021) 10 SCC 725 it was reiterated that "when there is failure on the part of the accused to offer reasonable explanation in discharge of burden placed on him by virtue of Section 106 when case rests on circumstantial evidence, if chain of circumstances, which require to be established by prosecution, is not established the failure of the accused to discharge the burden under Section 106 of the Evidence Act, is not relevant at all, when the chain is not complete, falsity of the defence is no ground to convict the accused." Needless to say that in the instant case the circumstances established by the prosecution do not lead to one and only possible inference regarding guilt of the accused appellant.
35. In the aforesaid circumstances, what survives for our consideration is only the opinion of the medical practitioner who conducted the autopsy and gave a report on the cause of the death. In this factual scenario, as held in Balaji Gunthu Dhule vs. State of Maharashtra, (2012) 11 SCC 685, only on the basis of post mortem report the appellant could not have been convicted of the offence punishable under Section 302 IPC.
36. In the case in hand we find that no circumstance, except that the body of the deceased was found in the house of the accused and it was an unnatural death, was proved by the prosecution. Learned AGA has also pointed out that some injuries have been found on the body of the deceased.
37. In the backdrop of the aforesaid circumstances, we have to mention at the cost of repetition that no one has seen the accused with the deceased at the time of the occurrence or a little before the occurrence and last seen theory is also not available to the prosecution. In these circumstances, we can safely rely upon Shivaji Chintappa Patil vs The State Of Maharashtra, (2021) 5 SC 626, wherein the Hon'ble Apex Court held that it is well settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused.
38. We have no hesitation to hold that the circumstances pointed out by the learned trial court, are not sufficient to say that the prosecution has discharged its primary burden of proving its case beyond reasonable doubt. In these circumstances, we are of the view that it was not proper for the trial court to convict the accused appellant with the aid of Section 106 Evidence Act when the prosecution had miserably failed to discharge its primary burden of proof. At the same time we doubt that merely absconding of accused from the place of occurrence is a sufficient proof to prove the guilt of the accused.
39. In Satye Singh case (supra) it was reiterated that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence that all the circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else. Further held in the facts and circumstances of the aforesaid matter that circumstances howsoever strong cannot take place of proof and that guilt of accused have to be proved by the prosecution beyond reasonable doubt.
40. Learned AGA has submitted that since the occurrence has taken place in the closed precincts of the house of the deceased where accused and deceased were living together, hence, this is the duty of the accused appellant to explain that under what circumstances death of the deceased was caused. In this reference, we take note of the statement of the doctor PW-6, who in his examination-in-chief has stated that the death of the deceased would have been caused about two days before the post mortem. The autopsy of the deceased was performed on 8.7.2015 at 2.00 p.m.. If we rely upon the statement of the doctor - PW-6, the death of the deceased would have been caused on 6.7.2015 in the afternoon. It was not the night when the appellant's presence in his house could be naturally presumed. Even if we assume that in the house of the appellant the deceased and appellant were the only residents, it does not ecessarily mean that throughout the day and night the accused appellant happened to be present in his house. It is true that the accused appellant had not stated in his statement under Section 313 CrPC that at the time of occurrence he was not present in his house but, as we have discussed earlier, since the prosecution had failed to prove its case prima facie, no liability may be thrown upon the accused appellant to explain the circumstances under Section 106 Evidence Act, particularly, in the absence of evidence of last seen.
41. The cause and manner of death of the deceased is another circumstance where the trial court strongly hits. The learned trial court has discussed that death was not caused by hanging, as stated by the doctor PW-6 rather it was a case of strangulation. He has discussed the various features in respect of death caused by hanging and death caused by strangulation. It has been pointed out that in the inquest report the panchas have also opined that the death of the deceased was caused by strangulation. The learned trial court has also highlighted this fact that one contusion over the neck of the deceased and one over her back have been found by the panchas while inspecting the injuries of the deceased. The learned trial court has opined that the broken bangle of the deceased shows that she had made protest while she was being strangulated and in the course of her protest probably her bangle was broken and she also got injury over her back. We do not find any cogent reasoning in the finding of the learned trial court in this regard. The doctor - PW-6 has categorically stated that the death was caused due to ante mortem hanging and has also opined that the death was not caused by strangulation. The learned trial court replaced its view over the medical / expert evidence without any cogent reasoning, which was not permissible, especially in a case where no eye witness account exists.
42. In the facts and circumstances of the case and on the basis of aforesaid discussions and relying upon the relevant laws on the subject, we do not concur with the findings of the learned trial court recorded in the impugned judgment and order. The prosecution has failed to prove its case prima facie to be enabled to take shelter of Section 106 Evidence Act and to shift the onus of proof upon the defence. The case rests upon circumstantial evidence and chain of circumstances is not complete. The learned trial court has itself held that there was no demand of dowry or harassment and cruelty to the deceased and in these circumstances we also find that there was a total absence of motive for the accused appellant to kill his own wife. If the relations between the spouse were not strained and there was no cruelty or demand of dowry what provoked the accused appellant for the murder of his wife, is not clear from the perusal of the entire impugned judgment. The theory of last seen is completely missing. The impugned judgment has been passed only on the basis of suspicion, conjectures and surmises. The legal position is well settled and reiterated many times that suspicion howsoever strong cannot take place of proof.
43. Prosecution had miserably failed to prove entire chain of circumstances which would unerringly conclude that alleged act was committed by the accused only and none else. Section 106 is not intended to relieve the prosecution from discharging its duty to prove the guilt of accused. Prosecution having failed to prove basic facts as alleged against the accused, burden could not be shifted on accused by pressing into service the provisions contained in section 106 of Evidence Act. There being no cogent evidence adduced by the prosecution to prove entire chain of circumstances which may compel court to arrive at conclusion that accused only had committed alleged crime.
44. In Suchand Pal vs. Phani Pal, 2004 SCC (Cri) 220, the Hon'ble Supreme Court held that if from the evidence on record and in the facts and circumstances of the case two views are possible, one pointing to the innocence of the accused and other to the guilt of the accused, the view which favours the accused should be preferred.
45. Upon careful analysis and consideration of the settled legal position in the backdrop of the facts and circumstances of the the present case, we are of the opinion that the conclusion given by the learned trial court in the impugned judgment and order is not in accordance with law and the evidence available on record. Thus, this Court is of the view that the prosecution has not been able to establish the guilt of the accused appellant under Section 302 IPC beyond reasonable doubt and to the satisfaction of the judicial conscience of the Court. Therefore, the Court is inclined to grant benefit of doubt to the accused appellant on the ground of rule of caution.
46. Hence, the impugned judgment and order of conviction and sentence, which has been sought to be assailed, call for and deserves interference. The criminal appeal is liable to be allowed and the same is accordingly allowed.
47. The impugned judgement and order dated 28.7.2016 is set aside. The accused appellant is found not guilty for the offence punishable under Section 302 IPC. He is acquitted from the charge. Accused appellant is in jail. He should be released forthwith, if not wanted in any other case.
48. Let a copy of this judgment along with trial court record be sent to the Court concerned, Budaun for compliance.
Order date :-14.12.2022 safi (Nalin Kumar Srivastava J.) (Dr. Kaushal Jayendra Thaker, J.)