Manish Kumar Yadav v. State of U.P.

deceased and Vijay Singh was strained and that the first informant was all the time warning the deceased not to be in the company of Vijay Singh, yet he remained in his company which alone led to the killing of Genda Yadav. (iv) PW-2, who was a witness in the case, had deposed that since Genda Yadav had relationship with the sister of Vijay Singh and also had relationship with the wife of Vijay Singh, there was absolutely no doubt in his mind that Vijay Singh had killed Genda Yadav. (v) Even the evidence of PW-3-Mamta Devi, who was the sister of the deceased, went to prove that since there was illicit relationship between Genda Yadav and the sister of Vijay Singh, Vijay Singh had killed Genda Yadav. (vi) Recovery of the towel beside the dead-body also went to show that the death had taken place because of strangulation. After having heard learned counsel for the appellant and after having gone through the record, this Court, however, is the view that no interference is warranted in the instant appeal.

PW-1, who is the father of the deceased had only a feeling that because of the fact that Vijay Singh, the accused, was inimical with his son, had killed him and, therefore, he had stated in his testimony that he was convinced that Vijay Singh had killed him. In his cross-examination, PW-1 had stated that hatred was writ large between the deceased and Vijay Singh as when the Panchayat Election had taken place, though the deceased Genda had helped Vijay Singh, the accused Vijay Singh had entered into a fight with Genda. PW-2Nandlal Yadav who was an independent witness had also stated that he had seen Vijay Singh and Genda Yadav sitting on the Pulia where the body of the deceased was found. He was of the view that because Genda Yadav had relationship with the sister of Vijay Singh that the murder had taken place. However, in his cross-examination he had stated that he had never seen Genda Yadav having illicit relationship with the sister of Vijay Singh.

PW-3-Mamta Devi is the sister of Genda Yadav. She is also also of the view that because Genda Yadav had illicit relationship, to begin with, with the sister of Vijay Singh and thereafter with his wife, murder had taken place. However, in her cross-examination, she did not come up with any specific allegation and even went to the extent of saying that her brother had never told about his relationship with the sister of Vijay Singh. PW-4-Rajbahadur Yadav is a formal witness of Punchnama. PW-5-Sunil Kumar Yadav is an independent witness and was a witness of the recovery made. PW-6 is the doctor who had conducted the post mortem. He has given an information that the injuries on the neck could have come with a hard object. However, he could not state that what was that hard object. PW-7-Lallu Singh was the Inspector who had done the investigation. PW-8-Bakridan Ali was also the Station House Officer under whom the investigation had commenced.

PW-9-Vinay Kumar Tripathi was an independent witness and has stated that on 2.10.2009 he, Vijay Singh, Rakesh Srivastava and Genda Yadav had taken beer at the house of Lal Bahadur and after having beer, Vijay Singh had taken the deceased Genda Yadav towards his home on his motorcycle. Thereafter he remembered only a panic on the face of Vijay Singh. He stated that in fact Vijay Singh upon coming to know about the death of Genda Yadav had started weeping and he along with PW-9 had gone to the post mortem. He talks of the extra-judicial confession by Vijay Singh that he (Vijay Singh) had committed a big mistake and that he had killed Genda Yadav by the towel around his neck. However, in his cross-examination, PW-9 narrated that he never told anybody regarding the factum of drinking of beer together. He said that this he was saying only in the Court. The accused Vijay Singh had denied the killing under section 313 Cr.P.C. He also stated that he had never made any confession to Vinay Kumar Tripathi-PW-9 and stated that because of some election rivalry, PW-9 was giving evidence against him.

The defence witness Rakesh Kumar Srivastava had stated in his statement that the accused was innocent and that the story which the PW-9 had told about the beer which Rakesh Kumar Srivastava, Vijay Singh, and PW-9 namely Vinay Kumar Tripathi had, was a false story. Upon having gone through the judgment, this Court is definitely of the view that there was no direct evidence to believe that that the accused had killed the deceased. The testimonies of PW-1 and PW-9 were very flimsy and could not be relied upon for the purpose of conviction. The testimony of the doctor is also to the effect that he was of the view that the deceased had died because of being hit by a hard object and, therefore, the story of the prosecution that the deceased had died because of strangulation becomes falsified. Further the Court is of the view that since the case was of circumstantial evidence, the circumstances as per the judgment of Sharad Birdhi Chand Sarda vs.

State of Maharashtra reported in AIR 1984 SC 1622 should have been such that they would have led only to one conclusion and that was that the accused had actually killed the the deceased. Since there was no direct evidence and the circumstances did not lead to the only conclusion that the accused had killed the deceased, we are of the view that we cannot differ from the view taken by the Trial Court. On a careful perusal of the judgment on record, we find that it cannot be said that the view taken by the Trial Court was perverse or unreasonable. Simply because another view could have been taken on the evidence available would not give us any ground for interfering with the order of acquittal. Unless the view taken by the Trial Court was the view which could not have been taken at all on the basis of the evidence available on record, it cannot be said that the view taken by the Trial Court was not a reasonably possible view.

This Court which is sitting in appeal over a judgment of acquittal as per the judgment of the Supreme Court in Murlidhar alias Gidda & Anr. vs. State of Karnataka reported in (2014) 5 SCC 730 can only interfere in an appeal if the view taken by the Trial Court was not a view which was possible. Considering the inconsistency, improvement, contravention and also the fact that essential ingredients to constitute the offence charged against the accused were not found to be proved beyond reasonable doubt, we are of the view that the Trial Court's view was a possible view. Hence, the instant appeal is liable to be dismissed. The instant Criminal Appeal is, accordingly, dismissed. Order Date :- 3.1.2023 GS (Rajiv Joshi, J.) (Siddhartha Varma, J.) GAUTAM SONI High Court of Judicature at Allahabad