Ram Bachan Nishad vs State of U.P. and 3 Others

Challenge in this Criminal Appeal is to the judgement dated 19.09.2025 passed by Special Sessions Judge, Azamgarh in Sessions Case No. 571 of 2023 (State of U.P. Vs. Ravi Nishad @ 2 others) arising out of Case Crime No. 157 of 2023, under Section 302/34 IPC, Police Station-Maharajganj, District-Azamgarh, whereby the accused opposite parties-2, 3 and 4 have been acquitted of the charges framed against them under Section 302/34 I.P.C.

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We have heard Mr. Bipin Kumar Tripathi, the learned counsel for appellant 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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Record reveals that an incident is alleged to have occurrred on 20.05.2023 at 8.00 PM, in which, one person Taul lost his life.

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Ram Bachan Nishad/ uncle (Tau) of deceased Taul submitted a written report (Tehrir) regarding aforesaid incident on 21.05.2023 at Police StationMaharajganj, District-Azamgarh.

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Thereafter, one Ajay Kumar Singh, who was posted as Head Clerk at Police Station Maharajganj, District-Azamgarh, entered the aforesaid written

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report in the General Diary of Police Station as G.D. Entry No. 002/00-10 on 21.05.2023 itself. He, thereafter, on the basis of aforementioned G.D. Entry prepared the check F.I.R. dated 21.05.2023 at 00.15 hours, which was registered as Case Crime No. 157 of 2023, under Section 302/34 IPC, Police Station-Maharajganj, District-Azamgarh. In the aforesaid F.I.R. three persons i.e. Ravi, Reema and wife of Rajesh were nominated as named accused.

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The prosecution story as unfolded in the F.I.R. has been noted by court below in paragraph 2 of the impugned judgement. Accordingly, the same is extracted herein under:

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" इस सत्र परीक्षण का संक्षेप में तथ्य यह है िक वादी मुकदमा रामबचन िनषाद ने एक िलिखत तहरीर प्रदशर् क-1 िदनांक 21-05-2023 को थाना महराजगंज, जनपद आजमगढ़ में देकर यह कथन िकया िक " प्राथीर् रामबचन िनषाद पुत्र मोहन ग्राम व पोस्ट नौबरार देवारा जदीद िकता-1 (िवकास नगर) थाना कोतवाली महराजगंज िजला आजमगढ़ का स्थाई िनवासी है। िदनांक 2005-2023 को 8.00 बजे रात में प्राथीर् के गांव के रिव पुत्र राजेश, रीमा पुत्री राजेश व राजेश की पत्नी मजबूत लकड़ी जो चीरी थी, प्राथीर् के भतीजे ताउल पुत्र सीताराम उम्र लगभग 35 वषर् के सर पर प्रहार िकया तथा सीमा पुत्री राजेश व उसकी माँ ईंट के टुकड़े से सर पर मारी और सर पकड़ कर दीवाल में लड़ायी, िजससे प्राथीर् के भतीजे की मौके पर ही मृत्यु हो गयी। यह घटना प्राथीर् के दरवाजे पर हुई। प्राथीर् के दरवाजे पर ही प्राथीर् के भतीजे को मार डाला। अतः िनवेदन है िक प्रातीर् के िवपक्षी रिव पुत्र राजेश उफर् ढोढ़ई, रीमा पुत्री राजेश व राजेश की पत्नी पर िविधक कायर्वाही करने की कृपा करें।

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After aforementioned F.I.R. was lodged, P.W.-6, Sub Inspector Kamla Kant Verma, was appointed as the Investigating Officer. He therefore first performed the formality of copying the written report and the F.I.R. in the case diary. He thereafter recorded the statement of the scribe of F.I.R. i.e. Head Constable, Ajay Kumar Singh. Having completed the aforesaid formalities, Investigating Officer proceeded to the place of occurrence and recorded the statement of first informant.

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Subsequent to above, Investigation Officer took possession of the dead body of deceased, which was lying on the spot. He thereafter took steps to get the inquest (Panchnama) of deceased conducted. The inquest proceedings were conducted by S.I. Rajendra Kumar (P.W.7) and not by Investigating Officer. Accordingly he appointed the panch witnesses. After conclusion of the inquest proceedings, P.W.7 prepared the inquest report (Panchanama), which is (Ext. Ka. 8).

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After the inquest of the body of deceased was performed Investigating Officer prepared the detailed police scroll for sending the body of deceased for postmortem, which are Ext. Ka.9, Letter to Reserve Inspector Police Lines, Ext. Ka. -10. Letter to CMO, Ext. Ka.-11 Police Form no. 379 and Ext. Ka. -12, Police Form No. 13. He thereafter dispatched the dead body of deceased for postmortem.

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P.W.-8, Dr.Chandra Prakash Rai conducted autopsy on the body of deceased. According to the Autopsy Surgeon the cause of death of deceased was coma, as a result of ante-mortem injury sustained by the deceased. The Autopsy Surgeon found following ante mortem injuries on the body of deceased.

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(i). Lacerated wound 4cm x 2 cm bone deep right side of eye-brow.

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(ii). Lacerated wound 1cm x 1 cm muscle deep present on the right side eye just below the lateral cauther.

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(iii). Contusion 18 cm x 2 cm present on lower part of sternum.

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(iv). Abrasion present on left knee.

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Upon internal examination, the autopsy surgeon found that haematoma was present. Rigor mortise had passed down all over the body. There was bleeding from the right ear. Upon completion of postmortem of the body of deceased, Autopsy Surgeon prepared the postmortem report which is (Ext. Ka. 13)

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Thereafter on the pointing of first informant, Investigating Officer prepared the site plan, (which is Ext. Ka.-3), He then recovered plain earth and earth mixed with blood from the spot and sealed them separately. He also prepared a memo of same which is (Ext. Ka.-4). Upon examination of the place of occurrence he found bricks and pieces of wood having blood stains on account of bleeding from the body of deceased. He therefore collected them then sealed them in a while cloth and prepared a memo of same. Subsequent to above Investigating Officer recorded the statements of eye witnesses, Sunita and Ramrati. The name of Reeeta, wife of Rajesh @ Dodhai came to surface in the statemtents of aforementioned witness. As offence complained of is both cognizable and non-bailable, therefore,

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Investigating Officer took steps to secure the arrest of accused .He accordingly arrested named accused Reema and Rita on 22.05.2023 and recorded their statements under Section 161 Cr.P.C. On the pointing of aforesaid accused, he recovered the articles alleged to have been used in the commission of crime in question i.e. two pieces of wood (Phatta) and pieces of brick. He sealed them and prepared a memo of same. On the same day, Investigating Officer arrested accused Ravi Nishad and recorded his statement under Section 161 Cr.P.C.

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Investigating Officer also dispatched the articles of assault and also earth mixed with blood and plain earth to FSL Laboratory for chemical examination. After completing the necessary formality of recording the statements of witnesses, and those involved in preparation of prosecution papers, Investigating Officer came to the conclusion that prima facie offence complained of is established and complicity of named accused in the crime in question is also apparent. He therefore submitted the charge sheet no. 149 of 2023 dated 29.06.2023/ police report in terms of Section 173 (2) Cr.P.C., which is (Ext. Ka.-5) whereunder all the named accused were charge sheeted for an offence under section 302/34 IPC.

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After submission of aforementioned charge sheet/police report, cognizance was taken upon same by the jurisdictional Magistrate in exercise of jurisdiction under section 190 (1) (b) Cr.P.C. However, as offence omplained of is triable exclusively by the Court of Sessions, therefore, the concerned Magistrate after complying with the formality of supplying the documents relied upon by the prosecution to the accused as required under Section 207 Cr.P.C. committed the case to the Court of Sessions as per mandate of Section 209 Cr.P.C. vide committal order dated 23.08.2023

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Resultantly, Sessions Trial No. 571 of 2023 (State Vs. Ravi Nishad and 2 others) came to be registered in the Court of Additional Sessions Judge, Court No. 3, Azamgarh. Accordingly, the concerned Sessions Judge proceeded with the trial of charge sheeted accused. He therefore in exercise of jurisdiction under Section 228 Cr.P.C. framed charges under Section 302/34 I.P.C. against all the charge sheeted accused.

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17.Charge sheeted accused denied the charges so framed and demanded trial. Consequently, the trial procedure commenced.

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Prosecution in discharge of it's burden to bring home the charges so

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framed adduced the following prosecution witnesses:-

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(i). PW-1, Ram Bachan (first informant)

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(ii). PW-2, Suneeta (eye witness)

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(iii). PW-3, Sugreev (witness of inquest/witness of memo)

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(iv). PW-4, Subedar Sahani (scribe of written report/ witness of events)

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(v). PW-5, Ramdarash (witness of inquest.)

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(vi). PW-6, Kamlakant Verma ( Investigating Officer)

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(vii). P.W.7, Sub Inspector Rajendra Kumar (Police Officer, who conducted inquest proceedings)

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(viii) P.W.-8, Dr. Chandraprakash Rai (Autopsy Surgeon)

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Apart from relying upon the depositions of aforementioned prosecution witnesses, prosecution also relied upon the following documentary evidence:

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(i). Ext-Ka-1 Written Report dated 21.05.2023 submitted by P.W.1 Ram Bechan (first informant) and proved by P.W.1.

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(ii). Ext-Ka-2 recovery memo of articles of assault i.e two pieces of wood (phatta) and pieces of brick prepared and proved by P.W.6 S.I. Kamla Kant Verma.

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(iii) Ext. Ka.-3, Site Plan of the place of occurrence prepared by P.W. 6- S.I. Kamla Kant Verma and proved by P.W.6.

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(iv). Ext-Ka-4, Memo regarding Recovery of Plain earth as well as earth mixed with blood and brick piece as well piece of wood having blood stains prepared by P.W.6, S.I.- Kamla Kant Verma and proved by P.W.6.

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(v). Ext-Ka-5, charge sheet dated no. 149 of 2023 dated 29.6.2023 prepared by P.W.6- S.I.- Kamla Kant Verma and proved by P.W.6.

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(vi). Ext-Ka-6, Check F.I.R. prepared by Ajay Kumar Singh Head Clerk at P.S. Maharajganj and proved by P.W.6 S.I. Kamla Kant Verma.

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(vii). Ext-Ka-7, G.D. Entry No. 02 prepared by Ajay Kumar Singh Head cleerk at P.S. Maharajganj and proved by P.W.7 Rajendra Kumar

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(viii). Ext-Ka-8, Inquest report (Panchnama) prepared by P.W.7 Rajendra Kumar and proved by P.W.7.

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(ix) Ext-Ka-9, Letter to Reserve Inspector Police Line prepared by P.W.7 S.I. Rajendra Kumar and proved by P.W.7.

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(x) Ext-Ka-10, Letter to CMO prepared by P.W.7 S.I. Rajendra Kumar and proved by P.W.7.

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(xi) Ext. Ka. 11, Police Form No. 379 prepared by P.W.7. S.I. Rajendra Kumar and proved by P.W. 7.

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(xii) Ext. Ka.-12, Police Form No. 13 prepared by P.W.7 S.I. Rajendra Kumar and proved by P.W.7

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(xiii) Ext. Ka.-13 Postmortem report prepared by P.W.8 Dr. Chandra Prakash Rai the autopsy surgeon and proved by P.W.8.

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After the prosecution evidence was over, all the adverse/incriminating circumstances were disclosed to the accused for their version of occurrence. The accused denied all the questions put to them one by one. They submitted that the depositions of P.W.-1 and P.W.-2 are false and further alleged that they are innocent. According to the accused the death of deceased had taken place at an unknown time and place in an accident. An accidental case has been falsely given the shape of murder, and therefore, the accused have been falsely implicated.

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It was urged on behalf of prosecution before court below that as per the oral and documentary evidence on record, the prosecution case is established beyond doubt. P.W.-1, the first informant, P.W.-2, the daughter of deceased P.W.-3, P.W.-4 as well as P.W.-5, who are witnesses of fact have supported the prosecution story in their respective depositions before court. The accused are guilty of assaulting the deceased with pieces of wood (i.e. phatta

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which is the rough side of wood on one side and is produced when a log is put in a saw mil) and pieces of brick on his head and thereafter, banged his head on a wall, on account of which, he died. All the aforesaid facts have been proved by P.W.1 and P.W.-2 in their depositions. Investigating officer on the pointing of accused recovered two pieces of wood and a brick piece, which were used in assaulting the deceased. The said recovery was made from the house of accused. The same clearly proves that the death of deceased was caused by accused by assaulting with the said articles on the head of deceased. As such, the deceased was murdered by accused. In view of above, the charge of murder framed against accused is fully proved and therefore, they are liable to be convicted.

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On the other hand, the accused challenged the very truthfulness of the prosecution case. On behalf of accused it was contended before court below that as per oral and documentary evidence on record, the charge alleged against accused is not proved beyond doubt. It was further pleaded that they have been falsely implicated. P.W.-1 adduced on behalf of prosecution is not an eye witness of the occurrence. At the time of occurrence, this witness was not present at the place of occurrence but at his place of working, which is situate 2 kilometers away from his village. P.W.-3 and P.W.-5 have admitted in their depositions that they have not witnessed the occurrence. Moreover, these witnesses are the witnesses of inquest. P.W.-2, is the daughter of deceased, but her deposition is not worthy of reliance. The deposition of P.W.-2 does not stand corroborated by the medical evidence on record as well as the site plan of the place of occurrence. The F.I.R. is ante-timed and ante-dated. P.W.-1 in his deposition has himself admitted that when the dead body of deceased was brought to the Police Station for postmortem, the F.I.R. had not been lodged. As per the deposition of P.W.-7, who is a witness of inquest, it is evident that the inquest (Panchnama) of deceased was conducted on 21.05.2023 at 3.00AM and only after the Panchanama (Inquest) had been conducted that the dead body of deceased was sent to the police station and from the police station the dead body was sent for postmortem. As per the deposition of P.W.-1, after the dead body of deceased was dispatched for postmortem that the F.I.R. was lodged. Thus on every count, the F.I.R. was lodged on 21.05.2023 at around 4-5 AM. The same is also apparent from the evidence on record. However, the prosecution alleges that the F.I.R. was lodged on 21.05.2022 at 12.25AM. In view of above, the F.I.R. itself is wholly doubtful.

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Upon evaluation and examination of the prosecution case, the defence raised by accused in proof of their innocence as well as the evidence on

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record, Court below formulated the following 4 points of determination.

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(a) Whether the death of deceased Ram Taul has occurred on account of an act of any human being and whether the death of deceased falls in the category of homicidal death?

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(b) Whether the F.I.R. in respect of the occurrence was lodged on the same date and time by the first informant when it is alleged to have been lodged by the prosecution or it is ante-dated or ante- timed?

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(c) Whether the depositions of P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 is a reliable piece of evidence and as per the deposition of aforesaid witnesses, it is proved beyond doubt that on 20.05.2023 at 8.00 p.m. in the night in front of the house of fist informant at NAUBRAR DEWRA, JADID KITA-1 (Vikas Nagar) and within the limits of P.S. Mahrajganj, District Azamgarh, the accused persons with common intention assaulted the deceased with pieces of saw wood and pieces of brick on his head and thereafter, banged his head on a wall and thereby caused his murder.

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(d) Whether the charges framed against the accused have been proved by prosecution beyond doubt and therefore, the accused are liable to be convicted of the charges so framed against them.

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Point of determination No. 1 was decided by court below, after considering the depositions of P.W.-1. P.W.-7 and P.W-8. Upon evaluation of the deposition of aforementioned witnesses court below concluded that the death of deceased is a homicidal death.

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Point of Determination no. 2 was decided by court below by holding that the F.I.R. is ante-dated and ante-timed. The said conclusion was drawn by court below after considering the depositions of P.W.-1, P.W.-6, P.W.-7 and the documentary evidence i.e. Ext. Ka.-6, check F.I.R., Panchanama Ext. Ka.-8. However, court below further concluded that merely because the F.I.R. is ante-dated and ante-timed the prosecution case cannot be discarded. The same can be discarded only when the prosecution case itself cannot be disbelieved as per the evidence adduced by the prosecution.

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Point of determination no.3 was decided by court below after evaluating the depositions of P.W.-1, P.W.-2, P.W.-3, P.W.-4, P.W.-5 and P.W.-6.

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After undertaking the aforesaid exercise, court below came to the conclusion that prosecution has failed to prove the guilt of accused beyond doubt.

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Point of determination no.4 was answered by court below in the negative. In view of the findings recorded by court below on points of determination nos. 2 and 3, court below concluded that the prosecution has filed to establish the guilt of accused beyond doubt. As such, the accused are entitled to the benefit of doubt.

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In view of aforementioned findings returned by court below on each of the points of determination so framed, it came to the conclusion that accused are entitled to the benefit of doubt. Accordingly, by means of the judgement dated 18.09.2025 passed by Sessions Judge, Azamgarh, the accused/opposite parties 2, 3 and 4 have been acquitted of the charges framed against them by extending the benefit of doubt in their favour.

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Thus, feeling aggrieved by the judgement dated 18.09.2025 passed by court below, appellant Ram Bachan Nishad, who is the first informant/appellant has now approached this Court by filing present criminal appeal, under section 413 BNSS i.e. Bhartiya Nagrik Suraksha Sanghita.

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Mr. Bipin Kumar Tripathi, the learned counsel for appellant in challenge to the impugned judgement passed by court below contends before us that the same is manifestly illegal and also perverse being against the weight of evidence on record. Court below, while answering the point of determination 1 has itself concluded that the death of deceased is homicidal i.e. the death of deceased has occurred on account of a human act. According to the learned counsel for appellant, present case is a case of direct evidence. PW-2 Sunita, who is the daughter of deceased, has fully supported the prosecution case. Her presence at the time and place of occurrence is fully established and her deposition inspires confidence to make her worthy of trust and belief. In spite of the fact that P.W.-2 was cross-examined on behalf of accused at length and in detail, she could not be dislodged. As such, she is worthy of credit and reliance. It was further contended by the learned counsel for appellant that in a case based on direct evidence, motive does not play an important role. To the contrary, motive plays an important role in a case based on circumstantial evidence. Court below had disbelieved P.W.-2 with reference to the motive alleged against accused. The same is manifestly illegal. On the above conspectus, the learned counsel for appellant thus

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urged that the impugned judgement is illegal and perverse being contrary to the weight of evidence on record. As such, the same is liable to be set aside by this Court.

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Per contra, Mr. Prashant Kumar, the learned A.G.A. representing State - opposite party-1 has vehemently opposed the present appeal. According to the learned A.G.A. the impugned judgement passed by court below is perfectly just and legal and therefore, not liable to be interfered with by this Court. In order to decide the guilt of accused, if any, court below has firstly mentioned the entire evidence on record and thereafter, scrutinized it threadbare. The impugned judgement does not reflect that court below has either misconstrued or ignored any vital evidence either. In view of above no perversity can be attached to the impugned judgement. Apart from above the conclusion drawn by court below that the prosecution has failed to establish the guilt of accused beyond doubt i.e. beyond reasonable doubt is a conclusion, which is a natural and logical conclusion derived upon due appreciation of the evidence on record. No doubt, that the death of deceased is a homicidal death and P.W.-1 and P.W.-2 are the two prosecution witnesses of fact. However, P.W.-1, the first informant is not an eye witness of the occurrence. As such the F.I.R. is based upon hearsay. At this juncture, the learned A.G.A. referred to internal page 24 of the impugned judgement and on basis thereof he contends that P.W.-1, Ram Bachan Nishad in his examination-in-chief (cross-examination) has clearly admitted that he is not an eye witness of the occurrence as he was in different village namely village NAHRUMPUR where he received the information regarding the occurrence in question on his mobile phone. As such no illegality has been committed by court below in disbelieving P.W.-1. Court below has not found P.W.-2 worthy of credit and reliance as her deposition does not stand corroborated by the medical evidence on record. Secondly, the motive assigned by P.W.-2 to the accused for committing the crime in question is also unworthy of acceptance because of the physical condition of P.W.-2 at the time of death. On the edifice of aforesaid submissions, the learned A.G.A. would submit that no question of law or fact is involved in present appeal. Court below has not committed any illegality in acquitting the accused of the charges framed against them. As such, instant criminal appeal is liable to be dismissed.

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Before proceeding to consider the rival submissions urged by learned counsel for the parties, it needs to be noticed that the jurisdiction of an appellate court while dealing with a judgement rendered by the trial court is not to find out the perversity in the findings/reasons recorded by court

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below in the impugned judgement. Since the court of appeal in criminal jurisdiction is the last court of fact therefore, it is the duty of the appellate court while dealing with a criminal appeal to find out whether the acquittal of accused granted by court below is based upon due appriciation of the evidence on record or whether the accused are liable to be convicted in view of the weight of evidence on record.

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However, there is a caveat to the aforesaid rule. An appellate court while dealing with a judgement of acquittal has limited jurisdiction. Time and again the Apex Court has cautioned that an Appellate Court while dealing with a judgement of acquittal is not to conduct a de-novo exercise. Reference in this regard be made to the judgement of Supreme Court in Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 SCC OnLine SC 561, wherein the Apex Court has circumferenced the jurisdiction of an appellate court dealing with an appeal against acquittal . Paragraphs 39 and 40 of the aforesaid report are relevant for the present purpose and are, therefore, reproduced hereinafter:-

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"39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-

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(a) That the judgment of acquittal suffers from patent perversity;

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(b) That the same is based on a misreading/omission to consider material evidence on record;

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(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

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40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."

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In the aforesaid background and also the fact that present case is a case of direct evidence, therefore, this court has to examine whether the presence of the prosecution witnesses at the time and place of occurrence is established beyond doubt and secondly whether their depositions inspires such confidence that they can be held worthy of credit and reliance. At this

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juncture, it would be apt to refer to the judgement of Supreme Court in Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra, (2023) 12 SCC 558 , wherein following has been observed by the Bench in paragraph 30 of the report regarding evaluation of the deposition of an eye witness;-

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"30. To put it simply, in assessing the value of the evidence of the eye- witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence

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tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."

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There are two prosecution witnesses of fact i.e. P.W.1 and P.W.2 and therefore the fate of prosecution will depend upon the true import of the depositions of P.W.-1 and P.W.-2.

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Having noted the case of the parties, evidence on record, points of determination framed by court below, findings returned by court below, law laid down by Apex Court regarding the issue involved in present case, this Court finds that the following question arises for determination in this appeal:-

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(a). Whether the depositions of P.W.-1 and P.W.-2 prove the guilt of accused beyond reasonable doubt and therefore, the conclusion drawn by court to acquit the accused by giving the accused the benefit of doubt is not legally sustainable.

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P.W.1- Ram Bachan Nishad is the first informant and also the Uncle (tau) of deceased. This witness had submitted the written report regarding

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the occurrence in question at concerned police station. He duly proved the same which was marked as Ext. ka-1. The F.I.R. giving rise to present criminal proceedings was lodged on the basis of the aforesaid written report. However, upon perusal of the said F.I.R. it is apparent that the first informant is neither an eye witness of the occurrence in question nor the same discloses the name of person from whom the information was gathered about the occurrence in question. As such, prima facie, the F.I.R. is based upon here say.

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P.W.1, in his statement-in-chief before court below (which has been noted by Court below in paragraph 11 of the impugned judgement), has supported the F.I.R.

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However, this witness was also cross-examined on behalf of accused. In his examination-in-chief this witness has however, fairly stated that at the time of occurrence he was present at his place of work i.e. the house of Harihar Yadav situate in village-Narbunpur, which is at a distance of 2 km. from his village, where the occurrence took place. While he was at the house of Harihar Yadav, he received information about the occurrence in question on his mobile phone. He, thereafter, reached the place of occurrence, however, before his arrival the police had already arrived and taken custody of the deady body.

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In view of above, Court below, in the first part of paragraph 22 of the impugned judgement, wherein Court below has dealt with the deposition of PW-1, has concluded that since P.W.1 is not an eye witness of the occurrence in question, therefore, his deposition is irrelevant for deciding the guilt of accused. We do not find any infermity in the aforesaid conclusion drawn by court below.

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PW-2 Sunita is the daughter of deceased. This witness, in her deposition before Court below, has supported the prosecution. Her deposition has been dealt with by Court below in paragraphs 12 and 22 of the impugned judgment.

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41.1. PW-2, in her examination-in-chief has stated that the incident giving rise to present criminal proceedings occurred on 20.05.2023. It was summer season. She, her brother Angad and sister Nisha were at home. In front of her house and at some distance is the house of Ravi Nishad. Ravi was playing DJ on the roof-top of his house. Her father i.e. the deceased after

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crossing the road said to Ravi that he is coming. On this, Ravi stated speaking in an indifferent way (Ulta-Pulta) and further abused her father. She then stated that on this, her father rebuked that when he is talking straight, where is the occasion to talk indifferently, suddenly and further abuse him. On this, Ravi got infuriated. He came down from the roof-top, his mother Rita and sister Reema joined him and started assaulting her father (deceased) with pieces of wood (Phatta). Thereafter, Ravi started banging the head of her father against wall. Reema and her mother started assaulting her father with pieces of wood (Phatta) and bricks, on account of which, her father fell down. She ran to save her father. Even though, her father felt down yet the accused assaulted her father on account of which, he died. As the accused realized that Ramtau (father of PW-2) is dead, they ran away from the place of occurrence.

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41.2. Court below, in the second part of paragraph 22 of the impugned judgment, has evaluated the aforementioned deposition of PW-2. Court below has inferred that if the deposition of PW-2 is to be believed then it would mean that the relationship between the deceased and accused were cordial. There was neither any enmity nor rivalry between the parties and therefore, the deceased went to the house of accused Ravi to hear DJ. According to DW-2, the deceased had gone to the house of Ravi Nishad (accused) to hear DJ and thereafter, he was assaulted is the motive assigned by PW-2 to the accused for committing the crime in question. However, the motive so assigned to the accused to commit the crime in question does not stand to reason particularly when no such statement has been made by this witness on the basis of which, it could be inferred that there was any previous enmity and rivalry between the parties or the parties exchanged abusive words with each other on account of which, the accused got enraged and assaulted the deceased. Just because the deceased went to the house of accused to hear DJ, and because of the same, the accused got infuriated and then assaulted the deceased appears to be highly unnatural. In fact, the deceased going to the house of accused to hear DJ, to the contrary denotes that there was no previous enmity or rivalry between the parties and the relationship between the parties was condial. In view of above, the prosecution story that on the issue of the deceased going to the house first informant to hear DJ and thereafter, he was assaulted does not appear to be prima-facie believable.

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41.3. Court below then referred to the post mortem report of deceased, which is Ext-Ka-8. With reference to the said report, Court below has found that at the time of death, the deceased was only wearing his underwear. As

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such, there were no other clothes on the body of deceased. PW-8, the Autopsy Surgeon, in his deposition, has very clearly and categorically stated that except for the underwear, there were no other clothes on the body of deceased. None of the prosecution witness has alleged that the accused had taken of the clothes of the deceased.

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41.4. On the above conspectus, Court below has observed that if the deposition of PW-2 is examined in the light of aforementioned circumstance, then her deposition becomes contradictory. According to PW-2, at the time of occurrence, the deceased went out of the house, crossed the road and went to the house of accused to hear DJ. It is astonishing that the deceased will go to somebody elses house only in an underwear, which is wholly unnatural and therefore unreliable. None of the prosecution witness has alleged that the deceased was mentally ill or suffered from psychological disorder.

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41.5. The deposition of PW-2 was, thereafter analyzed by Court below with reference to the site plan of the place of occurrence, which was prepared by PW-6, the Investigating Officer, on the pointing of first informant PW-1. However, the Investigating Officer has not shown the place, from where PW-2 was standing and witnessed the occurrence. Court below has then discussed the direction of the path way. The Investigating Officer has pointed out that place of occurrence is point A and B. However, PW-2 in her deposition has not stated that the accused climbed down from the roof top and thereafter assaulted the deceased and then the deceased after running crossed the road and proceeded in the direction of his house. As per the deposition of PW-2, the place of occurrence should be on the western side, whereas in the site plan, the place of occurrence is shown on the eastern side. As such, the deposition of PW-2 is contrary to the site plan and therefore, unworthy of acceptance and reliance.

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41.6. Court below also examined the deposition of PW-2 with reference to the post mortem report of the deceased. Court below found that contrary to the deposition of PW-2, no injury was found on the head of deceased. No injury was found on the oxipital region or the parietal region of the deceased, whereon injuries were found on the knee (Abraision) and sternum (contusion). How the injuries came to be sustained by the deceased has not been explained by the prosecution. Court below thus concluded that the medical evidence does not support the ocular version of the occurrence.

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At this stage, it would be apt to refer to the judgement of Supreme

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Court in Shahaja Alias Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra, (2023) 12 SCC 558 wherein Court has observed about the manner in which the deposition of an eye witness is to be considered. Paragraph 29 of the said report is relevant for the controversy in hand. Accordingly, the same is extracted herein-under:-

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"29. The appreciation of ocular evidence is a hard task. There is no fixed or straitjacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:

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29.1. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief

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29.2. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

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29.3. When eyewitness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

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29.4. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

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29.5. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

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29.6. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

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29.7. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb

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the details.

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29.8. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

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29.9. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

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29.10. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

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29.11. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

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29.12. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.

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29.13. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."

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In view of the discussion made above, it is apparent that as per the depositions of P.W.-1 and P.W.-2, a finding could not be returned that the guilt of accused stands established from record. The depositions of P.W.-1 and P.W.-2 do not establish the guilt of accused beyond doubt i.e. reasonable doubt nor the same wipes out the doubt, which has emerged in the prosecution case. Since the benefit of doubt is always granted to an accused, therefore, no illegality can be said to have been committed by court below in granting the benefit of doubt to accused. Question No.1 is accordingly answered in the negative that the depositions of P.W.-1 and P.W.-2 does not prove the guilt of accused beyond reasonable doubt.

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Having discussed the point of determination framed by us, we

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specifically asked the learned counsel for appellant as to how Court below has erred in law and fact in disbelieving PW-2 as unworthy of credit and reliance. Learned counsel for appellant only reiterated his earlier submissions by contending that since PW-2 is the daughter of deceased and has supported the prosecution story, therefore, Court below ought to have relied upon her deposition and convicted the accused. We are rather amazed at the bold submission urged by the learned counsel for appellant. Attention of the learned counsel for appellant was then invited to the provisions contained in Section 384 Cr.P.C. and with reference to the same, we observed that since the entire deposition of PW-2 has not been appended along with the appeal then there is a presumption that the deposition of PW2 as noted by Court below is correct. As such, the appeal is liable to be dismissed. Learned counsel for appellant simply expressed his helplessness.

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Having noted the deposition of PW-2 and also the reasons recorded by Court below for disbelieving PW-2, we scrutinized the deposition of PW-2 as referred to in the impugned judgement again in the light of law laid down by Apex Court as noted above to find out ourselves:- whether there is any such fact in her deposition, which might have been overlooked by Court below. However, we could not come across any such fact. We therefore do not find any error of law or fact in the conclusion drawn by Court below that the deposition of PW-2 is unworthy of acceptance and reliance. On this factual finding, the only conclusion, which is in consonance with the record is that the prosecution has failed to prove the guilt of accused beyond reasonable doubt. As such, no illegality has been committed by Court below in acquitting the accused of the charges framed against them.

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As a result, the present appeal fails and is liable to be dismissed.

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It is, accordingly, dismissed.

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December 2, 2025 YK

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(Dr. Ajay Kumar-II,J.) (Rajeev Misra,J.)

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Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Ram Bachan Nishad v. State of U.P. and 3 Others

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Ram Bachan Nishad v. State of U.P. and 3 Others

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