Ruby Mishra vs State of U.P through Secretary(Home) U.P., Lucknow and Others

Heard Mr. Siddharth Singh, the learned counsel for appellant and Mr. Pankaj Srivastava, the learned A.G.A. Ist and Mr. Prashant Kumar, the learned A.G.A. for State-opposite party-1.

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Perused the record.

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The Additional Sessions Judge/ F.T.C.-Ist, Jaunpur, vide judgement dated 22.07.2025 passed in Session Case No. 956 of 2023 (State Vs. Rajendra Prasad Mishra and 3 others) arising out of Case Crime No. 11 of 2023, under Sections 147, 148, 302/34 IPC, Police Station-Jafrabad, District-Jaunpur has acquitted opposite parties 2, 3, 4 and 5 of the charges framed against them.

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Thus, feeling aggrieved by the aforementioned judgement, Rubi Misra, who is widow of the deceased, Amitabh Narayan Mishra, has approached this Court by filing aforementioned appeal alongwith an application for leave to appeal

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It transpires from record that an incident occurred on 18.01.2023, in which, Amitabh Narayan Mishra sustained injuries including a gun shot injury.

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It is the case of the prosecution that Avnindra Narayan Mishra (brother of the injured) took the injured-Amitabh Narayan Mishra to Sadar Hospital, Jaunpur. However, after primary treatment, he was referred to Trauma Center, Varanasi and accordingly, the injured was rushed to Trauma Center, B. H.U. Varanasi, where he was operated upon.

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A written report dated 19.01.2023 was prepared by Avnindra Narayan Misra but the same signed by Rubi Mishra, wife of injured Amitabh Mishra (Ext. Ka.-1)

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P.W.-7, Head Constable Ajay Narayan Yadav, who was working as clerk at police

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station Jafrabad, entered the same in the General Diary of concerned police station (Ext Ka.-9). Thereafter, P.W.-7 prepared the chek F.I.R. dated 19.01.2023, which was registered as Case Crime No. 11 of 2023, under Sections 147, 148, 307 IPC, Police Station-Jafrabad, District-Jaunpur. In the aforesaid F.I.R. four persons who are opposite parties 2, 3, 4 and 5 herein i.e. Rajendra Prashad Mishra, Sandeep Mishra, Vikas Mishra and Subash Misra, were nominated as the named accused.

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The contents of the F.I.R. have been noted by court below in paragraph-2 of the impugned judgement. Accordingly, the same is extracted herein below:

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संक्षेप में अिभयोजन कथानक तहरीर प्रदशर् क-1 के अनुसार इस प्रकार है िक वादी मुकदमा अवनीन्द्र नारायण िमश्र का गांव के राजेन्द्र प्रसाद िमश्र, संदीप िमश्र, िवकास िमश्र व सुबाष िमश्र से जमीन को लेकर दुश्मनी चली आ रही है, उसी दुश्मनी को लेकर िदनांक-18.01.2023 को जब उसका छोटा भाई अिमताभ उनके सड़क वाले मकान से शहर अपनी दुकान पर अपनी बुलट मोटरसाईिकल से जा रहा था समय लगभग 11.15 बजे िदन में शंकरगंज में महरूपुर गेट के पास पहुंचा था िक पीछे से एक चार पिहया वाहन पर सवार उसके गांव के राजेन्द्र प्रसाद, संदीप िमश्र, िवकास िमश्र, सुबाष िमश्र व दो अज्ञात व्यिक्त ने पीछा करके जान से मार डालने की िनयत से उसके भाई पर लक्ष्य करके असलहे से कई गोिलयाँ चलाये, िजसमें दो गोली उसके भाई के पीठ व पेट में लगी उसका भाई लड़खड़ा कर िगर पड़ा पीछे से कचहरी जा रहा वह स्वयं तथा अगलबगल के लोगों ने घटना देखा और पहचाना, परन्तु डरवश कोई कुछ नहीं कर सका, गोली मारने के बाद असलहा लहराते हुये गोली मारने वाले उसी वाहन से जौनपुर की तरफ भाग गये, उसने व्यवस्था करके अपने घायल भाई को सदर अस्पताल जौनपुर लाया, वहीं प्राथिमक उपचार के बाद उसके भाई की गंभीर िस्थित को देखते हुये उसे ट्रामा सेन्टर वाराणसी भेज िदया गया, उसके भाई का ऑपरेशन होकर आई.सी.यू. में िचन्ताजनक हालत में भतीर् है, ईलाज में व्यस्त होने के कारण सूचना नहीं दे सका था। मौका िनकालकर घटना की सूचना िलखकर भेज रहा है।

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Unfortunately, the injured Amitabh Narayan Mishra died. Information regarding death of the deceased Amitabh Narayan Mishra was given at Police Station-Lanka as the victim had died at Trauma Center B.H.U. Varanasi. Subsequently, proceedings of inquest (Panchnama) were conducted. Inquest report (Panchnama) has been proved by P.W.-3, Amit Kumar Mishra, who is a witness of inquest.

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Subsequent to above, postmortem of the body of deceased was conducted by P.W.-5, Dr. Pawan Kumar Gupta on 20.01.2023. He prepared the postmortem report and also proved the same which is Ext. Ka.5. The Autopsy Surgeon found seven injuries on the body of deceased including a firearm injury. In the opinion of autopsy surgeon, the cause of death of deceased was shock and haemorrhage as a result of ante-mortem injury.

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Investigating Officer, P.W..-6, S. I. Rajaram Dwivedi proceeded with statutory investigation of concerned case crime number in term of Chapter XII Cr.P.C. He accordingly, visited the place of occurrence and examined the same on the pointing of first informant i.e. P.W.-1, Avnindra Narayan Mishra. He prepared the site plan of the place of occurrence and proved the same, which was marked as Ext. Ka.-6. Upon

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completion of investigation, he came to the conclusion that the occurrence is proved and complicity of named accused in the crime in question is also prima-facie apparent. He accordingly prepared the charge sheet/police report in terms of Section 173 (2) Cr.P.C. and proved the same, which was marked as Ext. Ka-7. In the aforementioned charge sheet, accused persons i.e. opposite parties 2, 3, 4 and 5 herein, were charge sheeted under Sections 147, 148, 149 and 302/34 I.P.C.

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After submission of aforementioned charge sheet/police report, the Jurisdictional Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. took cognizance upon same. However, as offence complained of is triable exclusively by the Court of Sessions, therefore, the concerned Magistrate, vide order dated 30.06.2025 in compliance of Section 209 Cr.P.C. committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 956 of 2023 (State Vs. Rajendra Prasad Mishra and 3 others) came to be registered.

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Concerned Sessions Judge in accordance with the mandate of Section 228 Cr.P.C. framed charges against charge sheeted accused under Sections 147, 148, 302/34 I.P.C. vide framing of charge order dated 01.07.2024.

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Charge sheeted accused i.e. opposite parties 2, 3, 4 and 5 denied the charges so framed, they pleaded innocence, not guilty and further stated that they have been falsely implicated in the crime in question. They thus demanded trial. Consequently, the trial procedure commenced.

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Prosecution in discharge of its burden to prove the prosecution case, which in nutshell is to the effect that accused persons have caused murder of deceased Amitabh Narayan Mishra, adduced the following witnesses;-

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(i). PW-1, Avnindra Narayan Misra (first informant)

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(ii). PW-2, Ajitabh Narayan Mishra (brother of deceased)

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(iii). PW-3, Amit Kumar Mishra (witness of inquest).

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(iv). PW-4, Dr. Amardeep Kumar, who had conducted the injured at Sadar Hospital Jaunpur.

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(v). PW-5, Dr. Pawan Kumar Gupta, (Autopsy Surgeon).

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(vi). PW-6, SI Rajaram Dwivedi ( Investigating Officer)

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(vii). P.W.7 Head Constable, Ajay Narayan Yadav, who had prepared the check F.I.R.).

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Apart from above, the prosecution has relied upon the documentary evidence,

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which is as under:

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(i). Ext-Ka-1 Written Report proved by P.W.1.

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(ii). Ext-Ka-2 Inquest report (Panchname) proved by P.W.-3.

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(iii) Ext. Ka.-3, Medical Examination Report of injured, proved by P.W.-4.

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(iv). Ext-Ka-4, X-ray report proved by P.W.-4.

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(v). Ext-Ka-5, Postmortem Report proved by P.W.7-5

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(vi). Ext-Ka-6, Site Plan proved by P.W.-6.

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(vii). Ext-Ka-7, Charge sheet/police report proved by P.W.-6.

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(viii). Ext-Ka-8, Check F.I.R. proved by P.W.-7.

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Prosecution also relied upon certain material exhibits, which are tabulated herein under:-

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(i). Ext-Ka-1, X-ray plate, proved by PW.-4.

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(ii). Ext-Ka-2, X-ray plate, proved by PW.-4.

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P.W.-1, Avnindra Narayan Mishra, in his deposition before court below, has departed from the prosecution case and has shown complete ignorance about the occurrence as well as the manner of occurrence. He has further stated that certain unknown person shot dead his brother and out of sheer enmity, he has mentioned the names of accused as noted in the F.I.R. As such, this witness has recused himself as being an eye witness of the occurrence.

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P.W.-2, Ajeetabh Narayan Mishra alleges himself to be an eye witness (chance witness) of the occurrence in question. However in his deposition before court below, he has denied his presence at the time and place of occurrence. As such, this witness has not witnessed the occurrence in question nor has he seen the accused persons shooting the injured.

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P.W.-3, Amit Kumar Mishra has proved the inquest report, which is Ext. Ka.-2 and except for the above nothing important and substantial has emerged in the deposition of this witness.

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P.W.-4, Dr. Amardeep Kumar, in his deposition before court below has explained and proved the medical report dated 18.01.2023, which was prepared by him while attending the injured/victim at Sadar Hospital Jaunpur. He has also proved the X-ray reports pertaining to the deceased, which were marked as material exhibits.

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P.W.-5. Dr. Pawan Kumar Gupta is the Autopsy Surgeon, who had conducted autopsy of the body of deceased. According to this witness, cause of death of the deceased was shock and hemorrhage as a result of ante-mortem injury. This witness has further found seven injuries on the body of deceased including a firearm injury. He has proved the postmortem report Ext. Ka.-5. At the time of postmortem, he had recovered a Metallic Bullet from the body of deceased, which was duly sealed by him.

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P.W.-6, SI Rajaram Dwivedi, who is the Investigating Officer, has proved the charge sheet submitted by him and also the site plan prepared by him i.e. Ext. Ka.-7 and Ext. Ka.-6.

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P.W-7, Head Constable Ajay Narayan Yadav is a constable clerk and also adduced the General Diary No. 54 dated 19.01.2023 occurring in the G.D. of police station. It is this witness who has also prepared the check F.I.R. He proved the check F.I.R. prepared by him (Ext. Ka.-7)

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It is thus evident that initially as per prosecution story as unfolded in the F.I.R. present case is a case of direct evidence inasmuch as P.W.-1, Avnindra Narayan Misra, alleges himself to be the witness of occurrence and had thus witnessed the occurrence in question. However, this witness in his deposition before court below has departed from the prosecution story as unfolded in the F.I.R. It is now been stated by him before court below that neither he is an eye witness of the occurrence in question nor he had seen the accused persons assaulting the injured/firing at the injured. Same is the tenor of P.W.-2, Ajeetabh Nayaran Misra, who has pleaded complete ignorance regarding his presence at the time of occurrence or seeing the accused committing the crime in question.

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In view of above, the trial of the accused/opposite parties 2, 3, 4 and 4 got converted from a case of direct evidence to a case of circumstantial evidence. However, no attempt was made by the prosecution to lead any evidence so as to establish the circumstances leading to the death of the deceased in line with parameters, laid down by Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116. Paragraphs 153 and 154 of the aforesaid report are relevant for the controversy in hand, wherein court has formulated the parameters require to be established to prove the guilt of an accused in a case based upon circumstantial evidence. Accordingly, the same are reproduced herein below;- "153.- A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ?must or should? and not ?may be? established. There is not only a grammatical but a legal distinction between ?may be proved? and

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?must be or should be proved? as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

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?Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ?may be? and ?must be? is long and divides vague conjectures from sure conclusions.?

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(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

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154.- These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

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Mr. Siddharth Singh, the learned counsel for appellant in challenge to the judgement contended before us that the impugned judgement is manifestly illegal and erroneous. According to the learned counsel for appellant, even if the two prosecution witnesses i.e. P.W.-1 and P.W.-2 had not supported the prosecution case, court below was not denuded of it's jurisdiction to consider and examine their examination-in-chief and find out whether something substantial has emerged therein or not. He further contends that even if a witness has turned hostile yet the Court can took into depositions of to find out whether there is anything substantial to support the prosecution case. To lend legal support to his submission, he has referred to the following judgements of Supreme Court:

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i. Bhagwan Singh Vs. The State of Haryana, (1976) 1 SCC 389

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ii. Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh, (1991) 3 SCC 627

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iii. Podyami Sukada Vs. State of Madhya Pradesha, (2010) 12 SCC 142

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iv. Hemudan Nanbha Gadhvi Vs. State of Gujarat (2019) 17 SCC 523

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v. Rajesh Yadav and another Vs. State of Uttar Pradesha, (2022) 12 SCC 200

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vi. Seivamani Vs. State Rep. by the Inspector of Police, 2024 SCC OnLine SC 837

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Per contra, Mr. Pankaj Srivastava, the learned A.G.A. Ist and Mr Prashant Kumar, the learned A.G.A. for State have vehemently opposed the present appeal. They submit that once the prosecution itself failed to categorize its own case as to whether the same is based upon direct evidence or circumstantial evidence and thereafter leading cogent and reliable evidence to prove the same, no error much less a legal error can be said to have been committed by court below in acquitting the accused/opposite parties 2, 3, 4 and 5 of the charges framed against them. It is further contended by the learned A.G.A. that no attempt was made to dislodge the impugned judgement by bringing on record the examination-in-chief of P.W.-1, Avnindra Narayan Mishra and P.W.-2, Ajeetabh Narayan Mishra to demonstrate that in spite of the fact that P.W.-1 and P.W.-2 in their statement-in-chief have not supported the prosecution story and was therefore, only responsible witness to show that irrespective of above, court below was not denuded of its jurisdiction to consider their examination-in-chief and to find out as to how and why they have not supported the prosecution case. He, therefore, submits that present appeal is therefore, devoid of any substance as no illegality or pervisity can be said to have committed by court below in passing the impugned judgement. Learned A.G.A. thus urged that in view of above, the present appeal is liable to be dismissed by this Court.

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Having heard the learned counsel for appellant, the learned A.G.A. for Stateopposite party-1 and upon perusal of record, we find that only legal question, which is required to be considered in this appeal is whether the deposition of a responsible witness can be discarded completely or the Court has to consider the examination-inchief of a responsible witness to find out as to whether something substantial in support of prosecution case has emerged therein or not.

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Admittedly, the depositions of P.W.-1 and P.W.-2, have not been brought on record. We, therefore, repeatedly asked the learned counsel for appellant, as to how, P.W.-1 Avnindra Narayan Mishra and P.W.-2 Ajeetabh Narayan Mishra, who have not supported the prosecution case can still be held to be worthy of credit and reliance and whether something substantial has emerged in their examination-in-chief. We further brought to the notice of the learned counsel for appellant the provision contained in Section 384 Cr.P.C./425 B.N.S.S. The learned counsel for appellant simply contended that present appeal has been preferred by the widow of the deceased, who has lost her husband, and since accused were named in the F.I.R., therefore, there is a presumption against them for having committed the crime in question. The judgement rendered by court below has been examined thread bare by us to find out as to whether court below has ignored any material piece of evidence or court below has mis-understood any material piece of evidence so as to make the impugned judgement perverse. However, court below upon perusal and appreciation of evidence of P.W.-1 and P.W.-2 has observed that both these witnesses have shown

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complete ignorance with regard to manner of occurrence or them having seen the accused persons committing the crime in question. No such incriminating circumstance has either emerged in the impugned judgement, on the basis of which even an inference of guilt of the accused persons can be inferred. Is short, in absence of any evidence pointing the guilt of accused/opposite parties 2, 3, 4, and 5, we find that court below has not committed any illegality in acquitting the accused/opposite parties 2, 3, 4 and 5.

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For all the reasons noted above, the inescapable conclusion is that Court below has not committed any illegality or perversity in passing the impugned judgment and thereby acquitting the accused/opposite parties-2,3 and 4 of the charges alleged against them.

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