REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1790-1791     OF 2019 [Arising out of SLP(Crl.) Nos.269-70 of 2019]

JAI PRAKASH                                      ...Appellant

VERSUS

STATE OF UTTAR PRADESH  AND OTHERS       …Respondents

WITH

CRIMINAL APPEAL NOS.1792-93      OF 2019 [Arising out of SLP(Crl.) Nos.288-89 of 2019]

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. These  appeals  arise  out  of  the  impugned  judgment  dated

16.11.2018 passed by the High Court of Judicature at Allahabad in

Criminal  Appeal  Nos.2403  and  5829  of  2005  whereby  the  High

Court allowed the appeals thereby setting aside the conviction of

respondents-accused Nos.1, 2 and 4 passed by the trial court under

Sections 302 IPC and 120B IPC and acquitted them of the charges

under Sections 302 IPC and 120-B IPC.   

3. Being aggrieved by the acquittal,  the appellant-complainant

has preferred Criminal Appeals arising out of SLP(Crl.) Nos.269-70

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of 2019.  The State of Uttar Pradesh has filed the other Criminal

Appeals arising out of SLP(Crl.) Nos.288-89 of 2019.

4. Briefly stated case of the prosecution is as under:-

Complainant-Jai  Prakash  and  deceased  Ravi  Prakash  are

real  brothers.   On  17.11.1992  shortly  prior  to  09.00  am,  the

appellant-complainant came back home after relieving himself near

the Urai bus stand.  At that time, he noticed the accused persons

sitting with arms in their possession in the flour mill of Shankar Teli-

accused  No.3  (since  acquitted  by  the  trial  court).   Complainant

came to his house.  At that time, Sanjay Mishra and Ajay Kumar

(PW-3) came to the house of deceased for discussion regarding the

work  of  electric  decoration  in  connection  with  the  marriage  of

daughter of one Maiku Soni.  The appellant sent Ravi Prakash to

bring  gutkha for  Ajay  Kumar  (PW-3)  and  Sanjay  Mishra.   After

purchasing gutkha when the deceased was returning from the shop

and  reached  in  front  of  accused  No.3-Shankar  Teli’s  flour  mill,

accused Bhupendra Yadav (A2) armed with double barrelled gun,

accused Raju Teli (A4) armed with single barrelled gun and accused

Lallu @ Lal Diwan (A1) armed with country made pistol, caught hold

of the deceased Ravi Prakash. Ravi Prakash tried to free himself by

raising alarm.  Accused Bhupendra Yadav fired bullet in the chest of

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the deceased Ravi Prakash, accused Raju Teli fired in the leg and

accused Lallu @ Lal Diwan fired in the jaw of the deceased.  Ravi

Prakash fell down on the spot.  Appellant-Jai Prakash, Ajay Kumar

(PW-3) and Sanjay Mishra who saw the occurrence rushed to the

spot to save the deceased Ravi Prakash. On seeing them coming,

accused persons came out of the flour mill and fled away from the

scene of occurrence.

5. As  per  the  complainant,  motive  for  the  commission  of  the

offence was the previous enmity harboured by accused Bhupendra

Yadav with the family of the appellant due to newspaper publishing

regarding the activities  of  accused Bhupendra Yadav by another

brother of the appellant namely Om Prakash, in the weekly journal

August  Nama.   Due  to  which,  accused  Bhupendra  Yadav  had

beaten up Om Prakash and Om Prakash lodged complaint against

accused  Bhupendra  Yadav.  Sometimes  prior  to  the  occurrence,

accused Bhupendra Yadav had beaten up the appellant also and on

the basis of the complaint, a case was registered against accused

Bhupendra Yadav. According to the appellant, as a consequence of

the  said  enmity,  Ravi  Prakash  was fired  at  by  the  accused and

murdered.

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6. Regarding  the  occurrence,  PW-1-Jai  Prakash  got  the

complaint written by one Munni Lal and on the same day at 09.30

am, the appellant lodged the same before the Police Station Rath,

District-Hamirpur.  Based on the complaint, FIR in Crime No.474 of

1992 (Ex.-Ka.3) was registered against the accused under Sections

302 IPC and 120B IPC.  Investigation of the case was taken up by

the  Investigating  Officer-PW-5-SI-Shobha  Mani  Tripathi.  The

Investigating Officer went to the place of occurrence and under his

instructions, SI-R.N. Singh held inquest on the body of deceased

Ravi Prakash.  The dead body of Ravi Prakash was sent to hospital

for post-mortem examination. SI-R.N. Singh took sample of simple

and  blood-stained  earth  from  the  scene  of  occurrence  and

recovered a pair of chappal of the deceased (Ex.-Ka.10) and packet

of kisaan gutkha (Ex.-Ka.11) and prepared recovery memo.

7. On the same day i.e. 17.11.1992 at  about 04.15 pm, dead

body of Ravi Prakash was sent to Rajkiya Purush Chikitsalaya, Rath

where post-mortem was conducted on the dead body by Dr. B.K.

Gupta (PW-2) who noted the following injuries:-

(i) A firearm lacerated wound of entry on left  side of chest,  4 cm

below the medial left clavicle and 3 cm left to midline of chest.

(ii) Multiple firearm lacerated wound of exit on left side of scapular

region, 3 cm left to midline of back.

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(iii) A firearm lacerated wound of entry on right side lower jaw, 5 cm

right to the tip of chin.

(iv) A firearm lacerated wound of entry on back of right thigh, 7.5 cm

above the knee joint.

(v) A firearm lacerated wound of entry on right thigh, 20 cm above the

knee joint.

(vi) A firearm lacerated wound of exit  on antero right thigh, 10 cm

above knee joint.

(vii) Multiple abrasion on medial aspect of right leg above the medial

malleolus.   

PW-2-Doctor  opined that  the death of  the deceased was due to

haemorrhagic shock as a result of ante-mortem injuries and issued

Ex.-Ka.2-Post-Mortem Certificate.  After completion of investigation,

charge sheet was filed against all the four accused under Sections

302 IPC and 120B IPC.

8. When questioned,  all  the accused denied the charges and

pleaded not  guilty.   To bring home the guilt  of  the accused,  the

prosecution examined total six witnesses - eye witnesses PWs 1

and 3 and Doctor-PW-2 and IO (PW-5) and other witnesses.  Upon

consideration  of  the  evidence,  the  trial  court  convicted  accused

Nos.1,  2  and  4  under  Sections  302  IPC  and  120B  IPC  and

sentenced them to undergo life imprisonment.  The trial court held

that  the  evidence  of  eye  witness-PW-1-Jai  Prakash,  brother  of

deceased and PW-3-Ajay Kumar are natural and acceptable.  The

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trial court held that PW-3-Ajay Kumar has given satisfying reasons

for his presence at the house of PW-1 and the presence of PW-3

outside  the  house  of  PW-1  is  natural  and  cannot  be  doubted.

Insofar as the question of non-examination of Sanjay Mishra and

other persons in the mohalla, the trial court held that in the present

social  conditions  and  circumstances,  independent  witnesses  are

apprehensive that if they appear as witnesses in the criminal cases,

their future will not be safe and therefore, non-examination of the

independent witnesses will  not affect the prosecution case.  After

referring  to  the  post-mortem  report  and  the  evidence  of  PW-2-

Doctor, the trial court held that the medical evidence corroborates

the evidence of PWs 1 and 3.  The trial court also held that non-

recovery of the guns and the contradictions pointed by the accused

in the evidence of PWs 1 and 3, would not affect the case of the

prosecution.  With those findings, the trial court convicted accused

Nos.1, 2 and 4.  However, the trial court gave benefit of doubt to

accused No.3-Shankar Teli and acquitted him.

9. Being  aggrieved,  the  respondents-accused  Nos.1,  2  and  4

have preferred appeals before the High Court.  By referring to the

contents of the  FIR (Ex.-Ka.3), the High Court held that within short

time, it is least possible for an illiterate person like PW-1 to lodge a

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complaint with such details and the possibility cannot be ruled out

that the First Information Report has been lodged after discussion

and on the advice of Om Prakash.  After referring to the deposition

of PW-1 and PW-3, the High Court held that the presence of the

witnesses at the place and at the time of occurrence appears to be

doubtful.   After  referring  to  Post-Mortem Report,  the  High  Court

further held that in the Post-Mortem Report, it is mentioned that the

large intestine of deceased was full and therefore, death might have

taken place before Ravi Prakash attended nature call as generally,

people  attend  the  call  of  nature  in  the  morning  and  it  is  least

possible  that  the  deceased  has  not  attended  the  call  of  nature

before 09.00 am. Doubting the presence of PW-3 at the place and

time  of  occurrence,  the  High  Court  held  that  PW-3  could  not

properly explain the reason as to why he went to the house of PW-1

and his  version  appears  unnatural.   Pointing  out  that  there  was

motive for Om Prakash to instigate his brother PW-1 to make false

allegations against the accused on the murder of his brother Ravi

Prakash, the High Court held that accused Nos.1, 2 and 4 deserve

to be given benefit of doubt.  With those findings, the High Court

allowed  the  appeals  filed  by  the  accused  and  set  aside  their

conviction  and  sentence  passed  by  the  trial  court  and  acquitted

them.

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10. Taking us through the evidence and the judgment of the trial

court  as  well  as  the  High  Court,  Mr.  R.  Basant,  learned  Senior

counsel for the appellant has submitted that PW-1 has clearly stated

each and every detail of the incident which is amply corroborated by

the evidence of PW-3 and the evidence of PWs 1 and 3 are natural

and their evidence is consistent with the medical evidence as well

as  the  case  of  the  prosecution.   It  was  further  submitted  that

considering  the  well-settled  position,  the  trial  court  recorded  the

finding  that  the  general  public  are  reluctant  to  come  forward  to

depose before the court and it is not proper to reject the case of the

prosecution for non-examination of the independent witnesses.  It

was  submitted  that  the  High  Court  erred  in  holding  that  non-

examination of the independent witnesses and Munni Lal-scribe of

the  complaint  is  fatal  to  the  prosecution  case.   Learned  Senior

counsel further submitted that  the lapses in the investigation like

non-sending of the blood-stained earth and sample earth taken from

the scene of  occurrence and non-recovery of  “empties”  from the

scene  of  occurrence  and  other  lapses  would  not  affect  the

prosecution  case  and  the  High  Court  erred  in  reversing  the

conviction and acquitting the accused.

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11. Mr. Basava Prabhu S. Patil, learned Senior counsel appearing

for  accused No.2-Bhupendra Yadav submitted  that  the  motive  is

attributed to Om Prakash-brother of PW-1 and when the accused

were having such enmity with Om Prakash, it is not known as to

why the accused should attack Ravi  Prakash and no injury was

caused  to  PW-1  who  was  easily  available  to  the  accused  even

before Ravi Prakash passed through the flour mill of Shankar Teli

(PW-3).  The learned Senior counsel further submitted the PW-3 is

a chance witness and as such, his presence in the house of PW-1 is

not natural and PW-3 could not have witnessed the incident.  It was

further  submitted  that  the  High  Court  rightly  pointed  out  the

improbability of the occurrence that the accused who were waiting

in  Shankar  Teli’s  flour  mill,  would  not  have anticipated that  Ravi

Prakash  would  pass  through  the  flour  mill  and  considering  the

improbability  of  the  prosecution  case,  the  High  Court  rightly

reversed the conviction and the impugned judgment  warrants no

interference.

12. Mr.  P.K.  Sharma,  learned  counsel  appearing  for  accused

No.4-Raju  Teli  submitted  that  the  conduct  of  PW-1,  brother  of

deceased  was  unnatural  as  he  made  no  attempt  to  save  his

younger  brother  rather  he  was  interested  only  in  preparing  the

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complaint  (Ex.-Ka.3)  and  going  to  the  police  station.   Learned

counsel further submitted that the Post-Mortem Report shows four

gun-shot  injuries  which  are  not  in  consonance  with  the  oral

evidence  and  the  discrepancies  between  the  oral  and  medical

evidence has not  been properly explained.  The learned counsel

submitted that PW-3 is a chance witness and the High Court rightly

held that his presence in the house of PW-1 at the time of incident is

unnatural.   It  was  submitted  that  the  prosecution  case  is  highly

doubtful since during the investigation, neither the fire arms were

recovered nor the “empties” of the cartridges have been recovered

from the  place  of  occurrence  and  no  ballistic  opinion  had  been

obtained by the prosecution to prove that the injury on the person of

the deceased were caused by the alleged fire arms used by the

accused.

13. Mr.  Kartikeya  Bhargava,  learned  counsel  appearing  for

accused  No.1-Lallu  @  Lal  Diwan  submitted  that  there  were

contradictions between the evidence of PWs 1 and 3 as to whether

there was scuffle prior to the incident and this has not been properly

appreciated by the trial court. The learned counsel further submitted

that the multiple bruises found on the body of deceased has not

been  properly  explained  by  the  prosecution  and  the  High  Court

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rightly reversed the conviction of  the accused and the impugned

judgment warrants no interference.   

14. We have carefully  considered the contentions and perused

the impugned judgment and materials on record. The point falling

for  consideration is  as contended by the appellants,  whether  the

High  Court  without  properly  appreciating  the  evidence  erred  in

setting aside the conviction of the respondents-accused Nos.1, 2

and 4.

15. Case  of  the  prosecution  is  that  at  about  09.00  am  on

17.11.1992, while returning from the shop after purchasing gutkha,

deceased Ravi Prakash reached the front of flour mill of Shankar

Teli, accused Bhupendra Yadav (A2) having double barrelled gun,

accused Raju Teli (A4) armed with single barrelled gun and accused

Lallu @ Lal Diwan (A1) armed with country made pistol (tamancha),

caught hold of Ravi Prakash and Ravi Prakash raised alarm and

tried to  free himself  from the grip  of  the accused.   At  that  time,

accused Bhupendra Yadav, Raju Teli and Lallu @ Lal Diwan fired

from their respective weapons and fired shot on the chest, leg and

jaw of  Ravi  Prakash respectively  due to which Ravi  Prakash fell

down on the spot.  Appellant Jai Prakash (PW-1), Ajay Kumar (PW-

3) and Sanjay Mishra rushed to the spot to save Ravi Prakash and

on seeing them, all the three accused escaped from the place of

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occurrence.   As  per  the  complaint/FIR  (Ex.-Ka.3)  and  also  the

statement  of  PW-1,  after  his  morning  walk  and  after  relieving

himself at the Urai bus stand, while coming back home, he saw the

respondents-accused  Nos.1,  2  and  4  sitting  in  the  flour  mill  of

Shankar Teli with arms in their possession. Case of the prosecution

is that there was previous enmity between the family of appellant

and accused Bhupendra Yadav which is  the cause of  murder  of

Ravi Prakash.  When that being the motive and if the accused were

so found armed with weapons in the flour mill of Shankar Teli, the

question  arises  as  to  why  the  appellant  sent  his  brother-Ravi

Prakash to purchase gutkha from the shop of one Choco Kori.  This

has not been explained by the appellant.

16. The  respondents-accused  Nos.1,  2  and  4  armed  with

weapons  were  sitting  in  the  flour  mill  of  Shankar  Teli  and  were

talking to each other.  The motive alleged by the prosecution is that

about two years prior to the occurrence, Om Prakash-brother of the

appellant-Jai  Prakash  had  written  about  the  illegal  activities  of

accused Bhupendra Yadav and brought out news in the newspaper

due  to  which  accused  Bhupendra  Yadav  had  assaulted  Om

Prakash.  In this regard, Om Prakash had lodged a criminal case in

the  police  station  and  FIR  has  been  registered  and  due  to  this

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enmity, the accused are alleged to have committed murder of Ravi

Prakash.   Both  the appellant-Jai  Prakash  and Ravi  Prakash are

brothers of Om Prakash.  If the accused were looking for vengeance

of  Om  Prakash-brother  of  Ravi  Prakash,  why  the  respondents-

accused allowed Jai Prakash (PW-1) to let go unharmed; more so,

when PW-1 was normally in the habit of going for morning walk.  If

the  motive  for  the  crime  is  accepted,  then  all  brothers  of  Om

Prakash  would  be  targets;  but  here  attack  was  on  only  the

deceased brother and PW-1 was spared although attackers were

fully armed and near the place of occurrence.  As pointed out by the

High Court, case of the prosecution does not appear to be natural

that the respondents-accused Nos.1, 2 and 4 have attacked Ravi

Prakash who happened to pass through the flour mill  by chance

after purchase of gutkha.

17. PW-3-Ajay Kumar stated that on the date of occurrence i.e.

17.11.1992, he along with Sanjay Mishra had gone to the house of

Jai Prakash (PW-1) to discuss about the electric decoration work for

the  marriage  ceremony  of  daughter  of  one  Maiku  Soni  in  their

mohalla.  Admittedly, Ravi Prakash was the electrician by profession

who was to attend to the electric work and the decoration.  It is not

explained as to why deceased Ravi Prakash who was to attend to

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the electric work and the decoration work, instead of discussing the

need of the prospective clients i.e. PW-3, would go out to purchase

gutkha.   Curiously, Maiku did not accompany Ajay Kumar (PW-3)

and Sanjay Mishra to the house of Ravi Prakash for discussion.  As

pointed out by the High Court, neither Maiku nor any member of the

family  had  gone  with  PW-3  to  talk  about  the  decoration  for  the

marriage  ceremony  of  daughter  of  Maiku.   This  raises  serious

doubts about the presence of PW-3 in the scene of occurrence and

the case of the prosecution.

18. Next, as per the deposition of PW-1, there is a goomty placed

on the square platform of Munna Musalman from which gutka can

be taken out.  This goomti is at a distance of just fifteen steps from

the house of the appellant and the shop of Choco Kori where Ravi

Prakash had gone to buy the gutkha is at a distance of about 150-

200  steps,  again  said  100-125  steps  from  the  house  of  the

appellant. It has nowhere been stated when the deceased could not

have gotten gutkha right near his house and why should he go to a

shop at  some distance away from the house.   Of  course,  PW-1

firstly  stated  that  he  gave  money  to  Ravi  Prakash  to  purchase

gutkha, however subsequently, he stated that in the shop of Choco

Kori, credit account was maintained. The reason stated that Ravi

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Prakash had gone to the shop of Choco Kori at a little bit far away

place  to  purchase  gutkha  leaving  his  prospective  clients  for

decoration of electric work is not quite convincing.

19. PW-3-Ajay Kumar is a resident of mohalla Mughalpura, town

and PS Rath, District-Hamirpur.  In his evidence, PW-3 stated that

he along with Sanjay Mishra had gone to the house of PW-1.  PW-3

further stated that he called PW-1 outside and when he was talking

to PW-1, PW-1 asked Ravi Prakash to bring gutkha from the shop

for Ajay Kumar and Sanjay Mishra.  As discussed earlier, when PW-

3 had gone to  the house of  PW-1 to  discuss  about  the electric

decoration work for the marriage ceremony of daughter of Maiku,

neither Maiku nor any member of his family accompanied PW-3 to

discuss  about  the  electric  work  in  the  marriage  ceremony  of

daughter of Maiku. In his cross-examination, PW-3 could not explain

the reason as to why he went to the house of PW-1.  The High

Court  observed  that  PW-3  is  a  chance  witness  and  expressed

doubts about the presence of PW-3 in the scene of occurrence on

17.11.1992 and we do not find any good reason to take a different

view.

20. There  are  several  material  discrepancies  between  the

evidence of PW-1 and PW-3 as to the occurrence.  PW-3 has stated

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that when Ravi Prakash passed through the way, the respondents-

accused  came  out  of  the  flour  mill  and  there  was  a  scuffle  for

sometime with Ravi Prakash and the accused fired the bullet shots

from their guns and the pistol.  On the other hand, PW-1 has only

stated that the respondents-accused have fired at Ravi Prakash and

has not stated anything about the scuffle.  The witnesses who have

deposed in the court  after  considerable lapse of  time of  course,

cannot be expected to have photographic memory of the case.  We

are  conscious  of  the  well  settled  position  that  the  minor

discrepancies not touching upon the core of the prosecution case,

would not affect the credibility of the witnesses or the prosecution

case.  Of course, PWs 1 and 3 have given their evidence in the

court  in  2003-04 near after  a decade; but  they are said to have

witnessed the occurrence from a close distance.   Whether  there

was scuffle between Ravi Prakash and the respondents-accused is

an integral part of the main incident and the witnesses are expected

to be consistent in their version.  The inconsistencies in the version

of PWs 1 and 3 as to whether there was a scuffle or not  is not

explained  by  the  prosecution  which  again  raises  serious  doubts

about the prosecution case.

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21. Medical Evidence:  As per the deposition of PWs 1 and 3,

accused Bhupendra Yadav fired at the deceased on his chest; Lallu

@ Lal Diwan fired on the jaw and Raju Teli fired on the leg of the

deceased. As per post-mortem report dated 17.11.1992, there were

four firearm lacerated wounds.  Apart from the injuries on the chest,

jaw and the leg, there was firm arm injury on the right thigh 2 cm

above the knee. PWs 1 and 3 have not explained the fourth firearm

injury;  nor  they  have  made  any  mention  of  the  accused  firing

multiple shots. This discrepancy between the medical evidence and

the oral evidence assumes significance in view of the elaborated

depositions  made  by  the  witnesses  and  the  FIR  which  explains

minute detail of the entire incident.

22. There are also several lapses in the investigation of the case

like non-recovery of “empties” fired from the guns on the deceased,

non-recovery of fire arms used by the respondents-accused etc.  It

is  well-settled that  any omission on the part  of  the  Investigating

Officer cannot go against the prosecution case.  If the Investigating

Officer has deliberately omitted to do what he ought to have done in

the  interest  of  justice,  it  means  that  such  acts  or  omissions  of

Investigating Officer should not be taken in favour of the accused.

In his cross-examination, PW-5-Investigating Officer has stated that

the  broken  pieces  of  cartridges,  bursts  and  empty  shells  of  the

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cartridges were not  found on the site of  the incident.  PW-4-Sub-

Inspector of Police has also not made reference about the “empty

shells of  cartridges” in the scene of  occurrence. The prosecution

case of course, cannot be doubted merely on the ground of non-

recovery  of  weapons  and  other  piece  of  evidence.   But  in  the

present case, an elaborately written FIR was registered immediately

after the occurrence i.e. at 09.30 am.  The Sub-Inspector of Police

(PW-5) had promptly taken up the investigation and on the direction

of PW-5, SI-R.N. Singh took sample earth and the blood-stained

earth from the scene of occurrence and recovered a pair of footwear

of the deceased and packet of kissan gutkha and prepared recovery

memo of the same which are marked as Ex.-Ka.10 and Ex.-Ka.11

respectively.  When the Investigating Officer had taken care even to

recover  packet  of  kissan  gutkha from  the  scene  of  occurrence,

curiously, the “empties” of the fired cartridges were not recovered.

The material  pieces of evidence like “empties” were lost;  but this

vital  omission  has  not  been  explained.  This  factum  assumes

importance particularly, in view of the fact that the FIR is alleged to

have  been  registered  promptly  at  09:30  a.m.  of  the  occurrence

which occurred at  09:00 am. The inquest was also conducted at

10:00  a.m.  and  the  investigation  also  promptly  started.  The

accused-respondents  allegedly  ran  away  from  the  scene  of

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occurrence immediately after shooting at the deceased thus, they

could  not  have  possibly  removed  the  cartridges,  pieces,  etc.

themselves. This is not the case of the prosecution. It is also not the

case of the prosecution that the area was cleaned and somebody

has removed the “empties”.  In such view of the matter, the non-

recovery  of  “bursts  and  empty  shells  of  cartridges”  and  “broken

pieces of cartridges” from the scene of occurrence raises serious

doubt about the actual place of occurrence. As pointed out earlier,

any act of commission/omission of the Investigating Officer cannot

go to the advantage of the accused.  But in a case of this nature

where FIR is said to have been registered within half an hour of the

occurrence and the investigation also commenced then and there,

we find no reason as to why the “empties” and “bursts” from the

scene of occurrence were not recovered.

23. Furthermore,  as  per  the  evidence  of  Investigating  Officer

Shobha Mani Tripathi  (PW-5),  the accused were arrested on the

very  next  day  of  occurrence  i.e.  18.11.1992.   Even  though  the

accused were arrested on the very next day, the weapons used by

them were not recovered. Of course, the case of the prosecution

has to be examined de hors such omissions of  the Investigating

Officer  like  non-recovery  of  weapons  etc.   But  material

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discrepancies in  the evidence of  PWs 1 and 3 coupled with the

unnaturalness of  the prosecution case,  non-recovery of  weapons

and empties raise serious doubts about the prosecution case.  

24. The duty of the appellate court is to consider and appreciate

the  evidence  adduced  by  the  prosecution  and  arrive  at  an

independent conclusion.  Like the trial court, the appellate court also

must  be  satisfied  of  its  conclusion.   In  exercise  of  power  under

Article 136 of the Constitution of India, in State of Uttar Pradesh v.

Punni and others (2008) 11 SCS 153, while dealing with the order

of acquittal passed by the High Court, the Supreme Court held that

it would not ordinarily interfere with the findings of the High Court

unless it is satisfied that such a finding is vitiated by some glaring

infirmity in the appraisement of evidence or such finding is perverse

or arbitrary.  In the present case, the High Court has analysed entire

evidence and recorded its finding as to how the trial court has gone

wrong  in  not  appreciating  the  material  inconsistencies  in  the

prosecution  case.   The  findings  recorded  by  the  High  Court  in

acquitting the respondents-accused Nos.1, 2 and 4 does not suffer

from  any  infirmity  warranting  interference  with  the  impugned

judgment.  The appeals filed by the complainant and the State of

Uttar Pradesh are liable to be dismissed.

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25. In  the  result,  the  impugned  judgment  dated  16.11.2018

passed by the High Court  of  Judicature at  Allahabad in Criminal

Appeal  Nos.2403 and 5829 of  2005 is  affirmed and the criminal

appeals arising out  of  SLP(Crl.)  Nos.269-70 of  2019 filed by the

appellant-Jai Prakash and criminal appeals arising out of SLP(Crl.)

Nos.288-89  of  2019  filed  by  the  State  of  Uttar  Pradesh  stand

dismissed.  

………………………..J.                                                                            [R. BANUMATHI]

………………………..J.                                                                       [A.S. BOPANNA]

.………………………..J.                                                                      [HRISHIKESH ROY]

New Delhi; November 28, 2019

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