Allahabad High Court
Balram vs State Of U.P. on 8 October, 2021
Equivalent citations: AIRONLINE 2021 ALL 3299
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No.-10 Case :- CRIMINAL APPEAL No.-221 of 2015 Appellant :- Balram Respondent :- State of U.P. Counsel for Appellant :- Alok Srivastava,Ninnie Shrivastava,Pankaj Kumar Singh,Ravi Kant Pandey Counsel for Respondent :- Govt. Advocate Hon'ble Devendra Kumar Upadhyaya, J.
Hon'ble Ajai Kumar Srivastava-I, J.
(Per:- Hon'ble Ajai Kumar Srivastava-I, J.)
1. Heard Ms. Ninnie Shrivastava, learned amicus curiae for the appellant, Sri Vishwash Shukla, learned A.G.A. for the State and have perused the entire record available before us.
2. After being convicted and sentenced in Sessions Trial No.183/2012 arising out of Crime No.61/2012, under Section 302 Indian Penal Code (hereinafter referred to as "I.P.C."), Police Station Tarabganj, District Gonda by the learned Additional District & Sessions Judge, Court No.2, Gonda vide judgment and order dated 22.01.2015, the sole accused/appellant has filed the instant criminal appeal.
3. By the impugned judgment and order, the learned trial court convicted and sentenced the appellant to undergo imprisonment for life and a fine of Rs.10,000/- for the offence under Section 302 I.P.C. and in default of payment thereof, the appellant was directed to undergo three months' additional imprisonment.
4. The facts as unfolded by the prosecution, in short conspectus, are that a written report was handed over at Police Station Tarabganj by the first informant, Smt. Reshma Devi on 21.03.2012 stating therein that her daughter, deceased-Smt. Bindoo was married to Indrajeet resident of Pathar Begwa, Police Station Tarabganj, District Gonda ten years ago. Indrajeet works at Mumbai. The deceased-Bindoo lived in Gonda with her children, namely, Deepak and Rohit aged about nine and four years respectively. The accused-Balram, elder brother of Indrajeet, had beaten Bindoo, the deceased on 14.02.2012 at about 05:00 PM in the evening due to brawl between the ladies. On 15.02.2012 in the morning at about 04:00 AM, when the deceased-Bindoo returned after attending nature's call, accused/appellant, Balram and one Aafta Devi poured kerosene oil on the deceased and thereafter, set her ablaze by igniting match stick. The deceased-Bindoo sustained burn injuries, who was taken to hospital by younger daughter of the first informant, namely, Smt. Renu and her husband Manoj. The deceased-Bindoo was admitted in Government Hospital, Gonda. Her husband, Indrajeet used to take care of deceased by visiting Gonda from Mumbai. However, the deceased-Bindoo succumbed to her injuries on 08.03.2012 during her treatment.
5. The Naib Tehsildar, Ratnesh Tiwari, PW-3 recorded dying declaration of deceased on 15.02.2012 after obtaining certificate regarding fitness of deceased from the Emergency Medical Officer, District Hospital Gonda.
6. The autopsy on the cadaver of the deceased was conducted on 09.03.2012 which is Ex. Ka-12, according to which, the cause of death is septicemic shock as a result of ante-mortem burn injuries.
7. On the basis of aforesaid information by the first informant, an F.I.R. was registered under Section 304 I.P.C. at Police Station Tarabganj, District Gonda against accused-Balram and Smt. Aafta Devi.
8. After registration of the case, the Investigating Officer, Incharge Inspector, Shashikant Mishra, PW-5 prepared site plan, Ex. Ka-9, recorded the statements of witnesses under Section 161 Cr.P.C. and after completion of investigation, chargesheet, Ex. Ka-10 was submitted against accused-Balram only under Section 302 I.P.C.
9. As the case was exclusively triabled by the court of Sessions, the learned Magistrate committed the case to the court of Sessions, which came to be registered as Sessions Trial No.183/2012. The learned Sessions Judge framed charge under Section 302 I.P.C. against accused-Balram, which was read over and explained to the accused to which he pleaded not guilty and claimed to be tried.
10. To bring home the guilt of the appellant to the hilt, the prosecution has examined as many as eight witnesses. Smt. Reshma Devi, PW-1 is the first informant and mother of the deceased. Smt. Renu, PW-2 is real sister of the deceased who is said to have accompanied the deceased while she was being taken to the hospital after sustaining burn injuries. Ratnesh Tiwari, PW-3 is the Naib Tehsildar who has recorded dying declaration of the deceased on 15.02.2012. Mohd. Jaseem, PW-4 is the Naib Tehsildar who has proved panchayatnama, Ex. Ka-3. Shashikant Misra, PW-5 is the Incharge Inspector, who has prepared site plan, Ex. Ka-9. Sanjay Kumar Pandey, PW-6 is the S.H.O. who has filed charge sheet and a report, which are Ex. Ka-10 and Ex. Ka-11 respectively. Dr. Anil Kumar, PW-7 is the doctor who has conducted the autopsy on the cadaver of the deceased. S.I. Ram Lakhan Tiwari, PW-8 is also an Investigating Officer of the case.
11. After the conclusion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. The accused stated that the deceased burnt herself to commit suicide, thus, he has stated the prosecution case to be false. He claimed himself to be innocent and also stated to have been falsely implicated.
12. Defence witnesses, namely, Smt. Nandini Devi, Smt. Durgawati and Deepak Vishwakarma were also examined as DW-1, DW-2, DW-3 respectively from the side of the accused.
13. The learned trial court vide impugned judgment and order dated 22.01.2015 convicted the accused/appellant as aforesaid. Hence the instant appeal.
14. Learned amicus curiae appearing for the appellant has vehemently argued that the first information report regarding the occurrence was lodged on 21.03.2012 i.e., after a delay of about 34 days from the date of incident and atleast after a delay of about thirteen days from the date of death of the deceased, Smt. Bindoo. The prosecution has failed to explain the cause of such delay. The first information report was, thus, lodged after consultation with relatives and others to falsely implicate the accused/appellant.
15. She has further submitted that the prosecution story as contained in the first information report, Ex. Ka-13 is entirely different from the version of occurrence as narrated by the deceased in her dying declaration, Ex. Ka-2, which itself casts doubt on the veracity of the prosecution story. According to her, the learned trial court has returned finding of guilt against the weight of evidence available on record by ignoring the testimonies of defence witnesses, particularly, Deepak Vishwakarma, DW-3, son of the deceased who is a competent witness, therefore, the same is perverse and liable to be set aside.
16. She has also argued that having sustained serious burn injuries, the victim was physically and mentally unable to make any voluntary declaration in the form of dying declaration, Ex. Ka-2. Therefore, no reliance, whatsoever, on such dying declaration can be placed in order to hold the accused/appellant guilty.
17. Her further submission is that the prosecution itself has projected two versions of the same occurrence, which are irreconcilable, therefore, the prosecution has failed to prove its case against the accused-appellant beyond reasonable doubt. The accused/appellant deserves benefit of doubt and the impugned judgment and order being unsustainable deserves to be set aside.
18. To lend support to her aforesaid arguments, she has placed reliance upon the judgments of the Hon'ble Supreme Court in Panneerselvam vs. State of Tamil Nadu reported in (2008) 17 SCC 190, Jayamma vs. State of Karnataka reported in AIRONLINE 2021 SC 241 and P. Ramesh vs. State Represented by Inspector of Police reported in (2019) 20 SCC 593.
19. Per contra, Sri Vishwash Shukla, learned A.G.A. has submitted that a hapless lady has been done to death by the accused/appellant in a brutal manner by setting her ablaze after pouring kerosene oil on the person of the deceased. He has further stated that the dying declaration, Ex. Ka-2 has been duly recorded by the Naib Tehsildar, Ratnesh Tiwari, PW-3 after obtaining a report regarding mental and physical fitness of the deceased being capable of making voluntary dying declaration. Therefore, reliance upon such dying declaration, Ex. Ka-2 has rightly been placed by the learned trial court.
20. Learned A.G.A. would, then, contend that the finding of guilt has rightly been returned by the learned trial court on the basis of evidence available before it, which is duly supported by the law laid down by the Hon'ble Supreme Court in Laxman vs. State of Maharashtra, 2003 (1) JIC 30 (SC), Chandra Narain Yadav vs. Shibjee Yadav and others, 2000 (2) JIC 801 (SC) and Sham Shankar Kankaria vs. State of Maharashtra, (2006) 13 SCC 165 wherein it has been held by the Hon'ble Supreme Court that dying declaration can be the sole basis of conviction if found to be voluntary and truthful and that it is not required to be recorded in any particular form.
21. A Constitution Bench of the Hon'ble Supreme Court in Laxman's case (supra) in para-3 has held as under:-
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and corrects. The Court, however, has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate is absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore, the voluntary and truthful nature of the declaration can be established otherwise."
(emphasized by us)
22. The Hon'ble Supreme Court in Sham Shankar Kankaria's case (supra) in para-11 has held as under:-
"11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence........................."
(emphasized by us)
23. The approach to be adopted by the courts while evaluating dying declaration has also been summarized by the Hon'ble Supreme Court in paras-15 and 18 in State of Gujarat vs. Jayrajbhai Punjabhai Varu reported in (2016) 14 SCC 151 as under:-
"15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.
18. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned."
24. Even in Chandra Narain Yadav's case (supra), relied upon by the prosecution, the Hon'ble Supreme Court has held that it is settled that a dying declaration, if found to be truthful and voluntary, can form the sole basis of conviction even without corroboration.
25. Thus, so far as the capacity of the maker of dying declaration in this case is concerned, Ratnesh Tiwari, PW-3 has testified in unequivocal terms that he had recorded the dying declaration on 15.02.2012 after ascertaining the fact that the victim was conscious and was in a fit state of mind to make a dying declaration. According to him, before and after recording of dying declaration, Ex. Ka-2, he had obtained certificate from Emergency Medical Officer, Gonda regarding medical and physical fitness of the declarant, Smt. Bindoo. Therefore, the argument of learned amicus curiae to the effect that after having burn injuries, the victim was not in a fit state of mind to make a dying declaration worth acceptance is not acceptable.
26. However, in order to form the sole basis for conviction of the accused-appellant, the dying declaration, Ex. Ka-2 has to be truthful and voluntary as held by the Hon'ble Supreme Court in Sham Shankar Kankaria's case (surpa), Jayrajbhai Punjabhai Varu's case (supra) and Chandra Narain Yadav's case (surpa).
27. The prosecution story as culled out from the first information report, Ex. Ka-13 is that the accused/appellant, Balram, elder brother of husband of the deceased, had beaten Bindoo, the deceased on 14.02.2012 at about 05:00 PM in the evening due to some altercation between the ladies. On 15.02.2012 in the morning at about 04:00 AM, when the deceased-Bindoo returned after attending nature's call, the accused/appellant, Balram and one Aafta Devi poured kerosene oil on the deceased and thereafter, set her ablaze by igniting match stick. The deceased-Bindoo sustained burn injuries who was taken to hospital by younger daughter of the first informant, namely, Smt. Renu, PW-2 and her husband Manoj. Thus, according to the first information report, Ex. Ka-13, the specific time of occurrence is about 04:00 AM on 15.02.2012, which was witnessed by Smt. Renu, PW-2 the real sister of the deceased. The first informant, Smt. Reshma Devi is not an eye witness of the said incident.
28. However, what we notice is that an altogether different version of the occurrence has been narrated by the deceased, Smt. Bindoo in her dying declaration, Ex. Ka-2. In the dying declaration, Ex. Ka-2, she has stated to have been set ablaze by the accused-appellant in the intervening night of 14/15.02.2012 at about 11-12 PM. The deceased, in her dying declaration, Ex. Ka-2, has also stated that Smt. Kismalti W/o Kaushal, her younger mother-in-law tried to put off fire by throwing a blanket upon her. Thus, according to the dying declaration, Ex. Ka-2, at the time of alleged occurrence, Smt. Renu, PW-2, the real sister of deceased, was not present and Smt. Kismalti W/o Kaushal who is said to have been present and who is said to have attempted to put off fire by throwing blanket upon the deceased, has not been examined from the side of prosecution without assigning any reason therefor. She was an important witness for ascertaining the true manner and time of the occurrence, however, the prosecution has chosen not to produce Smt. Kismalti without assigning any reason therefor, despite the fact that she has been shown to be a witness in the charge sheet, Ex. Ka-10.
29. We also notice the fact that according to the first information report, Ex. Ka-13, apart from the appellant-Balram, one Smt. Aafta Devi is also said to have participated in the commission of crime, however, in dying declaration, Ex. Ka-2, the declarant has not named Smt. Aafta Devi. No evidence against Smt. Aafta Devi could be gathered during the investigation. Therefore, charge sheet was not submitted against Smt. Aafta Devi after conclusion of investigation.
30. The real sister of the deceased, Smt. Renu, PW-2 in her testimony has stated that the incident took place on 15.02.2012 in the morning at about 04:00 AM. Therefore, the time of occurrence as disclosed in the first information report, Ex. Ka-13 is quite different from the time of occurrence mentioned in dying declaration, Ex. Ka-2. The deceased, Bindoo in her dying declaration, Ex. Ka-2 has stated that at the time of occurrence, Smt. Kismalti W/o Kaushal tried to put off fire. Therefore, the fact that the prosecution did not produce Smt. Kismalti without assigning any reason assumes significance. It also raises doubt on the presence of Smt. Renu on the spot because Deepak Vishwakarma, DW-3, who is son of the deceased, has stated that on the date of occurrence, he was sleeping beside his mother. He saw his mother, who herself poured kerosene oil upon her and got it ignited by herself. He has also stated that Smt. Kismalti threw a blanket upon his mother and fled away from the spot due to fear. This witness being son of the deceased, appears to be reliable witness whose presence on the fateful night with her mother is quite natural. He appears to be more reliable than any other prosecution witnesses in respect of time and manner of occurrence.
31. We may also notice that the investigating officer, Sashikant Mishra, PW-5 has, in his testimony, stated that the place of occurrence was an open place as shown in the site plan, Ex. Ka-9. During the inspection of the site of occurrence, he did not notice any burnt up bed sheet, mattress or cot etc. nor did he collect any such article from the site of occurrence. This fact again lends support to the statement of Deepak Vishwakarma, DW-3 who has stated that her mother after pouring kerosene oil on herself went out and once she returned from there, this witness saw her burning. That is why, no burnt up bed sheet, mattress or cot etc. were perhaps found or recovered from the spot.
32. It is also a significant fact that the prosecution has clearly projected two different versions of the same incident. One, as narrated by the declarant/deceased, Smt. Bindoo in her dying declaration, Ex. Ka-2, according to which, the accused-appellant, Balram is said to have set her ablaze in the intervening night of 14/15.02.2012 at about 11:00-12:00 PM due to some brawl. Despite dying declaration, Ex. Ka-2 dated 15.02.2012 to the aforesaid effect being in existence, an altogether different version of this very occurrence is also projected by the prosecution as culled out from the first information report, Ex. Ka-13 which was lodged on 21.03.2012, according to which, apart from the appellant-Balram, one Aafta Devi is also said to have participated in setting the deceased ablaze, which is said to have been witnessed by Smt. Renu, PW-2 real sister of the deceased. The deceased died on 08.03.2012. The first information report, Ex. Ka-13, however, was lodged on 21.03.2012 after a delay of about thirteen days from the date of death of the deceased, Smt. Bindoo. The two different versions of the same occurrence, which the prosecution has projected, have material differences with regard to time of occurrence, manner of occurrence and the persons who allegedly committed the crime in question.
33. According to dying declaration, Ex. Ka-2, Smt. Kismalti attempted to put off fire by throwing a blanket upon the deceased. She was shown as a witness in the charge sheet, Ex. Ka-10. She was, thus, an important witness for ascertaining the true manner and time of the occurrence, however, she has not been examined by the prosecution without assigning any reason, whatsoever, for the same. Therefore, it would be fair to draw an inference that perhaps she was not prepared to support false prosecution case.
34. The Hon'ble Supreme Court in Vallabhaneni Venkateshwara Rao vs. State of Andhra Pradesh reported in (2009) 6 SCC 484 in paras-21 and 23 has held as under:-
"21. It is seen from the records, three different stories have been projected by the prosecution. As per Ext. P-12 recorded at 12.45 p.m., three persons attacked with sticks in the presence of one eyewitness Jagan. As per Ext. C-2 recorded at 2.30 p.m. ten persons attacked with crowbar. As per Ext. P-14 recorded by PW 8 before the death of the deceased at 2.50 p.m. seven persons attacked with sticks in the presence of two new eyewitnesses. No clear answer comes from the prosecution as to which of the three versions is believable. Ext. P-12 suffers from two infirmities. Firstly, medical evidence is contradictory. Secondly, only eyewitness Jagan mentioned in Ext. P-12 was not examined. The non-examination of the said eyewitness would result in the lack of corroboration to Ext. P-12.
23. Above being the position, it would be unsafe to convict the appellant-accused. Their convictions are accordingly set aside. They be set at liberty forthwith if not required to be in custody in any other case."
35. The learned trial court has found the witness Deepak Vishwakarma, DW-3, son of the deceased as a competent witness to understand and depose, however, it has failed to appreciate the fact that DW-3 being son of the deceased was a natural witness whose presence beside his mother on the date of occurrence was more natural than the presence of Smt. Renu, PW-2, the married real sister of the deceased.
36. Deepak Vishwakarma, DW-3, who is son of the deceased, has stated that his mother, deceased-Smt. Bindu gave him mobile phone to watch picture and she went out of the house and once she returned, she was engulfed in fire. He has also stated that his mother did not complain about appellant/accused.
37. The Hon'ble Supreme Court in Jayamma's case (supra) while setting aside the judgment and order of conviction passed by the High Court and upholding the judgment of acquittal passed by the learned trial court in a case where the prosecution has projected two different versions of the same incident and where the first information report was found to be lodged after some delay has, inter alia, relied upon following circumstances:-
"22.
xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx Sixthly, the alleged motive for the homicidal death is highly doubtful. There is not an iota of evidence, and the prosecution has made no effort to verify the truth in the statement that the appellants poured kerosene and lit the victim on fire only because her son had assaulted the husband of Appellant No.1 and the accused were insisting on payment of Rs.4,000/ which was spent on the treatment of the said assault-victim. Not much can be said when the deceased's own son and daughterinlaw have denied this incident and rather claimed that their mother/motherinlaw committed suicide.
The Seventh reason to dissuade us from harping upon Ex.P5 is the conduct of the parties, i.e., a natural recourse expected to happen. Had it been a case of homicidal death, and the victim's son (PW2) and her daughter-in-law (PW5) had witnessed the occurrence, then in all probabilities, they would have, while making arrangement to take the injured to hospital, definitely attempted to lodge a complaint to the police. Contrarily, the evidence of the doctor and the police officer suggest that while the son, daughterinlaw and neighbour of the deceased were present in the hospital, none approached the police to report such a ghastly crime. It is difficult to accept that the son and daughter-in-law of the deceased were won over by the accused persons within hours of the occurrence. This unusual conduct and behaviour lends support to the parallel version that the victim might have committed suicide.
xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx" (emphasized by us)
38. In the present case too, the incident occurred on 14/15.02.2012, the deceased, Smt. Bindoo admittedly died on 08.03.2012, her dying declaration, Ex. Ka-2 stood recorded on 15.02.2012, however the first information report came to be lodged on 21.03.2012 i.e., after a delay of about 34 days from the date of incident and atleast after a delay of about thirteen days from the date of death of the deceased, Smt. Bindoo. Deepak Vishwakarma, DW-3 has stated that his mother, deceased-Smt. Bindoo burnt herself. The learned trial court, thus, lost sight of aforesaid significant facts while returning the finding of guilt of the accused/appellant.
39. The learned trial court also failed to appreciate the fact that according to Shashikant Mishra, PW-5, the investigating officer, no burnt up residue of the bed sheet, mattress or cot etc. were recovered from the site of occurrence, which clearly indicates that the site of occurrence was different from the room or thatch of the deceased.
40. We are conscious of the fact that in the present case, a young lady has died but the fact remains that it is the duty of prosecution to prove its case against the accused-appellant beyond reasonable doubt. Suspicion, howsoever grave cannot take place of a proof. In this regard, the Hon'ble Supreme Court in Upendra Pradhan vs. State of Orissa reported in (2015) 11 SCC 124 in para-14 has held as under:-
"14. Taking the first question for consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognised as a human right by this Court. In Narendra Singh v. State of M.P., [(2004) 10 SCC 699 : 2004 SCC (Cri) 1893], this Court has recognised presumption of innocence as a human right and has gone on to say that: (SCC pp. 708 & 709, paras 30-31 & 33) "30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between ''may be' and ''must be'.
xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx" (emphasized by us)
41. Thus, it can be safely concluded that the prosecution has projected two versions of the same incident which are mutually irreconcilable. Therefore, on the basis of aforementioned discussions, we are of the considered view that the prosecution, in the instant case, has been unable to answer as to which of the two prosecution stories is believable. The prosecution has, thus, failed to prove its case beyond reasonable doubt. The learned trial court has failed to consider and appreciate the material contradictions appearing in the prosecution case. The learned trial court has also failed to appreciate and consider the evidence led by the prosecution and defence in its right perspective and, thus, has erred in convicting and sentencing the appellant, who is entitled to the benefit of doubt. Therefore, the impugned judgment and order passed by the learned trial court is not sustainable in the eyes of law and the same is liable to be set aside. The accused-appellant is entitled to be acquitted of charge levelled against him.
42. In view of the aforesaid, the present criminal appeal is allowed and consequently impugned judgment and order dated 22.01.2015 passed by the learned Additional District & Sessions Judge, Court No.2, Gonda in Sessions Trial No.183/2012 arising out of Crime No.61/2012, under Section 302 of I.P.C., Police Station Tarabganj, District Gonda is hereby set aside.
43. The accused-appellant, Balram is in jail. Let the accused-appellant, Balram be released from jail forthwith, if he is not wanted in any other case.
44. In compliance of provisions of Section 437A Cr.P.C., it is directed that the accused-appellant, Balram shall furnish a personal bond and two sureties each in the like amount to the satisfaction of the court concerned within two weeks of his release from the jail.
45. Before we part with the case, we express our appreciation for the distinguished assistance rendered by Ms. Ninnie Shrivastava, the learned amicus curiae in the instant appeal. The learned amicus curiae shall be paid a sum of Rs.10,000/-.
46. Let the record of lower court along with a copy of this order be transmitted forthwith to the learned trial court concerned for necessary information and compliance.
Order Date:- 08.10.2021 cks/-
(Ajai Kumar Srivastava-I, J.) (Devendra Kumar Upadhyaya, J.)