Brijraj @ Vijay Vs State of U.P.

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Neutral Citation No. - 2025:AHC-LKO:74467-DB

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Reserved on:- 27.08.2025 Pronounced on:- 18.11.2025

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Court No. - 10

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Case :- CRIMINAL APPEAL No. - 1222 of 2010

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Appellant :- Brijraj @ Vijay Respondent :- State of U.P.

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Counsel for Appellant :- D.K. Misra,Abhishek Upadhyay,Bhavesh Chandel,Rishabh Chauhan,Rishad Murtaza,Sachin Upadhyay,Shivendra S Singh Rathore,Surya Prakash Singh

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Counsel for Respondent :- Govt. Advocate,Amar Nath Dubey,Ashish Kumar Shukla

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Hon'ble Rajnish Kumar,J.

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Hon'ble Rajeev Singh,J.

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(Per Rajeev Singh, J.)

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Heard Shri Shivendra Singh Rathore, learned counsel for the appellant, Shri Umesh Verma, learned A.G.A. for the State and Shri Amar Nath Dubey, learned counsel for the complainant.

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The present appeal has been preferred against the judgment and order dated 26.02.2010 passed by Additional Sessions Judge/FTC I, Room No. 10, Sultanpur in Session Trial Nos. 249 of 2006 and 250 of 2006 arising out of Case Crime No. 172 of 2006 and Case Crime No. 173 of 2006 respectively, P.S. Haliyapur, District Sultanpur convicting and sentencing the accused-appellant for life imprisonment under Section 302 I.P.C. with fine of Rs.1000/- and in default of which, two years’ additional imprisonment. The appellant was also convicted and sentenced under Section 3/25 Arms Act for a period of two years R.I. with fine of Rs.1000/-, in default of which, additional imprisonment of three months.

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As both the trials are for the same incident, therefore, the trial court conducted the trial of both the cases together and passed the impugned judgment.

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On the written complaint of informant-Patan Deen Saroj, the F.I.R. bearing Case Crime No. 172 of 2006 was lodged under Section 302 I.P.C. Thereafter, inquest as well as autopsy of the body of deceased

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was conducted and site plan as well as recovery memos were prepared. Thereafter, charge sheet was submitted against the appellant. In the meantime, on the pointing out of the appellant, the weapon, which was allegedly used in the crime, was also recovered. Thereafter, the Investigating Officer came to the conclusion that the appellant committed crime with the alleged weapon and submitted the charge sheet under Section 3/25 Arms Act also.

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As per prosecution case, F.I.R. was lodged on the written complaint of Patan Deen Saroj with the allegation that marriage of his daughter was solemnized 9 years ago with the appellant. It is further alleged in the F.I.R. that the appellant was regularly demanding for a motorcycle and on showing inability for the same by the complainant, the appellant used to give life threat to the daughter of the complainant. On 22.06.2006, at about 8 p.m., the complainant received information on telephone that his son-in-law had shot his daughter and she died. The complainant immediately went to Saini (matrimonial village of his daughter), where it came into his knowledge that the incident is of 3.00 p.m. The complainant also examined the body of the deceased, which was lying at her in-laws house and saw that firearm injury was below her throat.

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The F.I.R. bearing Case Crime No. 272 of 2006 was lodged at 23.45 hrs. on 22.06.2006, under Section 302 I.P.C., P.S. Haliyapur, District Sultanpur against the appellant. The appellant was taken into custody and on his pointing out, a country made pistol of 315 bore was recovered. Thereafter, the F.I.R. bearing Case Crime No. 173 of 2006, under Section 3/25 Arms Act, P.S. Haliyapur, District Sultanpur was also lodged on 24.06.2006 at 19.25 hrs. After investigation, charge sheet was submitted by the Investigating Officer in both the cases, on which, cognizance was taken by the court concerned and after providing a copy of the prosecution papers to the appellant under Section 207 Cr.P.C., the cases were committed to the court of Session. Charges were framed in both the cases against the appellant for the offences under Section 302 I.P.C. and Section 3/25 Arms Act. The appellant denied the guilt and requested for trial.

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The prosecution placed following 8 witnesses.

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P.W. 1 Narendra Bahadur Singh (Constable, who registered the F.I.R.)

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P.W. 2- Patan Deen Saroj (complainant)

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P.W. 3-Guru Prasad Sai (last seen witness)

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P.W. 4-Dr. S.K. Goel (who conducted the post mortem)

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P.W. 5- Kallu (witness of recovery of firearm)

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P.W. 6- Umakant Upadhyay (Investigating Officer)

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P.W. 7- Subhash Chandra Mishra (Sub-Inspector)

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P.W. 8-Satya Narain Ram (Sub-Inspector)

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Madan Mohan Yadav was also examined as C.W. 1 as forensic expert witness. Thereafter, statement under Section 313 Cr.P.C. was recorded.

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Appellant denied the prosecution case and requested for evidence and produced three defence witnesses, namely, Ajay Raj (D.W. 1), Umesh Kumar Singh (D.W. 2) and Chhedi @ Nakched (D.W. 3).

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The trial court, after hearing the parties, convicted the appellant by means of impugned order. Hence, the present appeal.

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Learned counsel for the appellant opened his argument with the submission that admittedly, no one had seen the incident. It has further been submitted that the marriage of appellant was solemnized with the daughter of the complainant 9 years ago from the date of incident and out of their wedlock, one daughter was also born, who, at the time of incident, was aged about 5 years. It has vehemently been submitted that indisputably, no such complaint for demand of motorcycle was ever made to anyone prior to lodging of the F.I.R. It has also been submitted that the case in hand is a case of suicide and the suicide note was also found at the place of incident, which was taken into custody by the police and was sent to writing expert, who opined in favour of the appellant. It has next been submitted that false recovery of the weapon has been shown by the police.

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Drawing the attention of the Court towards the deposition of Dr. S.K. Goel, who conducted the post mortem of the body of deceased, learned counsel for the appellant submitted that the doctor was also examined as P.W. 4, who opined that, in case, any person commits suicide by taking pistol in his/her right hand, then the injury, which is shown in the post mortem report, is possible. It has next been submitted that except firearm injury, no other injury was found on the body of the deceased.

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The recovery of one cartridge is also shown by the prosecution on

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the bed, where the body of deceased was lying and the said cartridge as well as the country made pistol was also sent to FSL for examination. One Madan Mohan Yadav was also examined as ballistic expert by the trial court as C.W. 1, who stated that the pistol as well as blank cartridge, which were sent for examination, were marked as 1/2006 and EC-1 respectively and the bullet, which was found in the autopsy was marked as EB-1. Learned counsel for the appellant submitted that C.W. 1, while stating that all the articles were examined by him, has categorically mentioned that there is discrepancy in the matching of disputed bullet (which was found in the body of the deceased) as well as the recovered weapon. He also stated that bullet, which was recovered from the body of the deceased was of blank cartridge, but the same may or may not be fired from the said pistol, which is marked as 1/2006.

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Patan Deen Saroj-complainant, who was examined as P.W. 2 before the trial court, denying the suicide-note deposed that his daughter was illiterate and she was not able to read or write. Negating the version of the complainant, learned counsel for the appellant submitted that the school leaving certificate of the daughter of complainant was also placed before the court, which is exhibited as Kha 7 and was proved by D.W. 2- Umesh Kumar, In-charge Head Master, Primary School, Lohangi, Poore Motimala, District Sultanpur. D.W. 2, who in his deposition, has stated that as per the record of school, the daughter of the complainant was the student of the school and her name is recorded in the admission register at Serial No. 698 as Neelam Devi d/o Patan Deen r/o Village Poore Motimala, Tehsil & District Sultanpur, mentioning her date of birth as 09.06.1982 and she passed class III on 20.05.1993. D.W. 2 also stated that, in case, a child has completed Class III, he/she is normally competent to read and write letters.

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Learned counsel for the appellant submitted that while passing the impugned order, the trial court ignored the suicide note as well as the F.S.L. report. Submission of the learned counsel for the appellant is that the suicide note of the daughter of complainant, which was found at the place of incident, was sent for hand writing expert opinion to FSL for matching the signature, which was made by her on the statement under Section 313 Cr.P.C. given by her before Additional Chief Judicial Magistrate-III, Sultanpur on 11.08.2000 in a criminal trial under Sections 324, 325, 504, 506 I.P.C. being one of the accused in the said case. It has

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also been informed by the learned counsel for the appellant that in the said case, later on, she (deceased of the present case) was acquitted by the trial court vide judgment and order dated 19.01.2005. Submission of the learned counsel for the appellant is that the said F.S.L. report was found positive as the signature on suicide-note and as the statement u/s 313 Cr.P.C. were matching, therefore, story of prosecution that the daughter of the informant (deceased) was illiterate, is not veritable.

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It has further been submitted that P.W. 3-Guru Prasad Sai, who is claiming himself as a witness of last seen, in his deposition, stated that he was present at the house of his relative (Samdhi) at the time of incident and after hearing the sound of firearm, he along with others came out and saw that appellant was egressing from his house having country made pistol and by uttering that he killed his wife. P.W. 3 also stated that after entering into the house of appellant along with others, he saw that the body of deceased was lying on the bed and blood was oozing from her wound. However, in his deposition, he has not mentioned about any blank cartridge lying on the bed.

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In rebuttal to the statement of P.W. 3, learned counsel for the appellant submitted that Chhedi @ Nakchhed, who is the relative (Samdhi) of P.W. 3, in whose house, P.W. 3 claimed to be present, was produced before the trial court as D.W. 3. Chhedi, in his deposition, while stating that the marriage of his daughter was solemnized with the son of Guru Prasad Sai (P.W. 3), categorically denied the visitation of P.W. 3 at his house on the date of incident. However, he stated that P.W. 3-Guru Prasad Sai visited his house after 1½ to 2 months from the date of incident. D.W. 3 also stated that no one had narrated him that after the death of the daughter of informant, the appellant ran away having country made pistol.

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While refuting the order of the trial court in regard to conviction of the appellant under Section 3/25 Arms Act, learned counsel for the appellant submitted that false recovery of weapon has been shown on 24.06.2006, i.e., after two days from the date of incident. It has also been submitted that in his confessional statement, the appellant stated that he caused injury to the daughter of the informant with recovered firearm, but the F.S.L. report does not corroborate with the blank cartridge, which was allegedly found lying near the bed of the deceased. It has vehemently been submitted that the trial court failed to consider

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all these facts and convicted the appellant under Section 3/25 Arms Act.

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Learned counsel for the appellant further submitted that the trial court also failed to consider the provisions of Section 106 of Evidence Act and convicted the appellant. Relying on the decisions of Hon’ble Suprme Court in the cases of Shivaji Chintappa Patil Vs. State of Maharashtra, (2021) 5 SCC 626 and Satye Singh & Anr. Vs. State of Uttarakhand, (2022) 5 SCC 438 , learned counsel for the appellant submitted that prosecution failed to prove the basic facts, as alleged against the appellant and, therefore, burden could not be shifted on the appellant. It has also been submitted that, in case, two views are possible in the evidences adduced, the benefit shall always go to the accused. Placing reliance on the decision of of the Hon'ble Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 , learned counsel for the appellant lastly submitted that the impugned judgment and order, which has been passed by the trial court merely on the basis of suspicion, conjunctures and surmises, is liable to be set aside.

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Learned A.G.A. vehemently opposed the prayer of the appellant and submitted that since the informant-P.W. 2 failed to fulfil the demand of motorcycle of the appellant, his daughter was killed by the appellant. It has further been submitted that the Guru Prasad Sai (P.W.3), whose son was married with the daughter of Chhedi @ Nakchhed, who is the neighbour of the appellant, was present at the house of Chhedi and he stated that after hearing the noise of firearm, he along with Chhedi (D.W. 3) rushed to the house of appellant and saw that appellant was coming out of his house by saying that he killed his wife. The country made pistol was in the hand of the appellant. Learned A.G.A. also submitted that the appellant was taken into custody and on his pointing out, the weapon used in the crime was recovered. It has next been submitted that the daughter of the informant was killed by the appellant in his house and he was last seen by P.W. 3-Guru Prasad Sai and, therefore, there is no illegality in the order passed by the trial court.

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We have considered the arguments advanced by the learned counsel for the appellant, learned A.G.A. and gone through the entire record.

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The prosecution was initiated on the written complaint of P.W. 2 with the allegation that since the demand of motorcycle of the appellant was

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not being fulfilled, he killed his wife. It is the admitted case of the informant-P.W. 2 that the marriage of his daughter was solemnized 9 years ago from the date of incident. Moreover, the informant never told anyone about the demand of motorcycle, which was being raised by the appellant. It is also undisputed fact that P.W. 2 is not an eye witness and he received the information of death of his daughter on telephone, on which, he visited the house of the appellant and found that the body of deceased was lying on the bed. However, in the deposition of P.W. 2, there is no whisper about any blank cartridge, though this was the case of the prosecution that a blank cartridge was lying on the bed of the deceased.

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Further, the star witness of the case is P.W. 3-Guru Prasad Sai, who is claiming himself as last seen witness. P.W. 3 deposed before the trial court that after hearing the noise of firearm, he rushed to the house of appellant along with his Samdhi (D.W. 3-Chhedi) and saw that appellant was egressing from his house, having country made pistol, by saying that he killed his wife. However, D.W. 3-Chhedi @ Nakched, in whose house, Guru Prasad is claiming himself to be stayed being guest, in his deposition, has categorically denied the presence of P.W. 3 in his house on the date of incident. In such circumstances, the trial court committed error in relying the credibility of P.W. 3, as his presence at the place of incident, is itself doubtful.

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Insofar as the statement of P.W. 2, in relation to the illiteracy of his daughter is concerned, Umesh Kumar, Head Master of Prathmik Vidyalaya, who appeared before the trial court from the side of appellant as D.W. 2, deposed that daughter of informant-P.W. 2 studied in the said school upto Class III. He also stated that after completion of Class III, generally a child is eligible to read and write letter.

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It is also evident from the record that the daughter of informant (deceased) was accused in another case with her in-laws for the offences under Sections 323, 324, 325, 504, 506 I.P.C. and in the said case, after framing of charges, she gave statement under Section 313 Cr.P.C. duly signed on 11.08.2000 and she was acquitted vide order dated 19.01.2005 by Additional Chief Judicial Magistrate-III, Sultanpur. The suicide note, which was found from the place of incident, was sent to FSL along with the said statement given by her in the aforesaid case and in the FSL report, it is opined that the writing on the suicide note is

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matched with the signature made on the statement given by her (deceased) under Section 313 Cr.P.C. in the aforesaid case. Thus, the trial court also failed to consider the suicide note of the deceased properly, while passing the impugned order.

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P.W. 5-Dr. S.K. Goel, who conducted the post mortem of the body of deceased, in his deposition, also opined that, in case, a person commits suicide by putting the firearm in his/her right hand, the injuries found on the body of the deceased, may be occurred. This opinion of the doctor was also not considered by the trial court. Coupled with the statement of the doctor, the very basis of the prosecution in regard to recovery of the weapon on the pointing out of the appellant, itself falls as the blank cartridge, which was allegedly found on the bed of the deceased, was not matched with the said recovered weapon, as per the F.S.L. report.

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Moreover, in relation to the forensic report related to the firearm as well as the bullet and the blank cartridge, which was allegedly found near the bed of deceased, Madan Mohan Yadav (C.W. 1), who was examined as forensic expert witness, categorically stated that he cannot opine that the bullet, which is found in the body of the deceased, is a part of the recovered blank cartridge, therefore, recovery of alleged weapon is also doubtful.

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In the case of Shivaji (supra), Hon'ble Apex Court categorically held that Section 106 of 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.

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Relevant portion of the aforesaid pronouncement reads as under :

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“ 23. It could thus be seen 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.

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33. It is more than settled principle of law that if two views are possible, the benefit shall always go to the accused. It will be

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apposite to refer to the following observations of this Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 :

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“163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well-settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused in undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of H.P., (1973) 2 SCC 808, this Court made the following observations : (SCC p. 820, para 25)

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‘25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, on pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.’”

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In view of above facts and discussions, we are of the considered view that in the present case, the prosecution failed to establish its case beyond doubt and the trial court has passed the impugned order on the basis of conjunctures and surmises.

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The appeal is allowed .

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Order dated 26.02.2010 passed in Session Trial Nos. 249 of 2006 and 250 of 2006 arising out of Case Crime No. 172 of 2006, under Section 302 I.P.C. and Case Crime No. 173 of 2006, under Section 3/25 Arms Act, P.S. Haliyapur, District Sultanpur, respectively, is hereby set

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aside .

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The appellant is acquitted and be released in both the aforesaid cases forthwith, if not involved in any other case.

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Dated : November 18, 2025 VKS

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Digitally signed by :- VIVEK KUMAR SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

Brijraj @ Vijay v. State of U.P.

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Brijraj @ Vijay v. State of U.P.

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