Akhlesh vs State
2019 Latest Caselaw 981 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 18.02.2019
 
             Delivered on 12.03.2019
 
Court No. - 34
 

 
Case :- JAIL APPEAL No. - 2211 of 2011
 
Appellant :- Akhlesh
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Vinay Kumar Tripathi
 
Counsel for Respondent :- A.G.A.
 
              &
 
Case :- JAIL APPEAL No. - 2212 of 2011
 
Appellant :- Ram Chander
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Abhai Saxena,Sanjay Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV,J)

1. Both the jail appeals have been preferred by the accused-appellants respectively against a common judgment and order dated 26.02.2011 passed by Sri P.K. Jain, Additional Sessions Judge, Court No.2, Rampur in Sessions Trial No.305 of 2009, under Sections 302 and 201, Police Station Swar, Distirct Rampur. Facts, evidence and impugned judgement under these appeals are common, therefore, both the appeals are being decided by this common judgement.

2. By impugned judgment dated 26.02.2011 accused-appellants i.e. Akhlesh and Ram Chandra have been convicted and sentenced under Sections 302 IPC read with 34 IPC to life imprisonment with a fine of Rs.4,000/ each-. In default of payment of fine, they will undergo further period of imprisonment of one year each. Further, accused-appellants have been convicted and sentenced under Section 201 IPC to undergo two years simple imprisonment each with a fine of Rs.1000/- each. In default of payment of fine, they will undergo further imprisonment of six months each. All the sentences will run concurrently.

3. Prosecution case in brief is that on 04.03.2009 at about 12 O' clock Istyaq, Nabi Ahmad PW-3, Kuwar Pal PW-2 son of informant were searching patiya of harrow of tractor in the Baag, when PW-1 Navratan Singh himself arrived there, seeing the fresh earth, leaves and pural lying in the western side of Baag (grove), it was suspected that there would be patiya, PW-1 called his servant Akhlesh (present accused-appellant) with a spade and started eradicating the soil, then Akhlesh started running away by making excuse for stomachache, who, on being forcibly inquired, confessed before PW-1, 2 and 3 and other persons present there that he and his companion Ram Chandra (co-accused-appellant) have murdered Chhotey Lal by compressing neck at about 11:00 P.M. in the last night, in connection of illegal relationship between Chhotey Lal (deceased) and Leelawati (sister of Ram Chandra-accused) and pressed corpse in the pit.

4. PW-1 presented a written report, Ex.Ka-1 in Police Station Swar, District Rampur. On the basis of written report police registered FIR Ex.Ka-11 being case Crime No.404 of 2009 for an offence under Section 302 and 201 IPC against both the accused-appellants.

5. Immediately after the registration of case, investigation was under taken by then S.H.O. V.K. Tyagi who proceeded to spot where dead body was lying, prepared site plan Ex.Ka-15, arrested the accused persons, recovered one Angochha (towel) belonging to Ram Chandra and one spade from the wheat field of Harish Chandra on pointing out of accused-appellants, prepared recovery memo Ex.Ka-3 and Ex.Ka-4, site plan Ex.Ka-16 where from recovery was made. Under the direction of Investigating Officer, PW-6 Vijendra Singh the then Sub Inspector held inquest over the dead body of deceased Chhotey Lal, duly sealed it, prepared panchayat-nama Ex.Ka-5 and other necessary papers relating thereto i.e. Chalan Nash, Photo Nash, letter to C.M.O. and letter to R.I. and sent the dead body for postmortem.

6. PW-4 Dr. Mohd. Ashraf Ali, after receiving the requisite information and dead body, performed autopsy on the body of the deceased, noted the ante mortem injury and prepared postmortem report Ex.Ka-2 expressing his opinion that deceased would have died about one and half day prior to autopsy due to asphyxia on account of ante-mortem strangulation.

7. During investigation, Investigating Officer V.K. Tyagi recorded the statement of witnesses and after completion of investigation filed charge sheet Ex.Ka-17 against both the accused persons under Sections 302 and 201 IPC before the CJM concerned.

8. Case being exclusively triable by Court of Sessions was committed by CJM concerned after necessary compliance under Section 207 Cr.P.C. to Court of Sessions for trial where-from case was transferred to Additional Sessions Judge, Court No.2, Rampur.

9. Trial Court framed the charges against the accused persons under Section 302 and 201 IPC who denied the charges leveled against them and claimed trial. Charge reads as under:

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"I, Jaisheel Pathak, Addl Sessions Judge, Court No 2, Rampur charge you,1. Akhilesh and 2. Ramchandra, as under:

First: That on 3/4.3.09 at around 11 pm in complainant's garden situated at Village Jodhabala within the limits of PS Swar, District Rampur, you in furtherance of your common intention, that is, with the intention to kill Chhote Lal Prajapati strangulated him to death, thus committed an offence punishable under section 302 read with section 34 IPC; which is in the cognizance of this Court.

Second: That on the aforesaid date, time and place, you people in furtherance of common intention, that is, with the intention to eliminate evidence of murder of Chhote Lal Prajapati hid the dead body under the heap of straw and earth, thus, committed an offence u/s 101 IPC; which is in the cognizance of this Court.

It is hereby directed that you be tried by this court for the aforesaid charges. "

(English Translation by Court)

10. In order to establish its case, prosecution has finally examined as many as seven witnesses out of whom PW-1 Navratan Singh, PW-2 Kunwar Pal Singh and PW-3 Nabi Ahmad are the witnesses of fact and PW-4 Dr. Mohd. Ashraf Ali, PW-5 S.I. Virasat Ali, PW-6 S.I. Vijendra Singh, PW-7 H.C.P. Veer Singh are formal witnesses and produced documentary evidence on record.

11. In statement under Section 313 Cr.P.C., the accused persons denied the incident including the alleged extra-judicial confession made by them and stated that they were falsely implicated in this case. However, they did not choose to lead any defence.

12. Trial Court vide its impugned judgement after evaluating the entire evidence led by prosecution found the accused persons guilty and convicted them under Sections 302 and 201 IPC and awarded punishment as stated above.

13. Being aggrieved from the judgment of Trial Court, accused-appellants preferred respective jail appeals through Superintendent of Jail concerned.

14. We have heard Sri Vinay Kumar Tripathi, learned Advocate for accused-appellant in Jail Appeal No.2211 of 2011 as well as Sri Sanjay Singh, learned Advocate for accused-appellant in Jail Appeal No.2212 of 2011. Sri Syed Ali Murtuza, learned AGA for State-respondents and have gone through the entire evidence available on record carefully.

15. Learned Counsel appearing for these two appellants has advanced following arguments while assailing the judgement under appeals.

A. This is a case of circumstantial evidence and there is no eye witness of the incident.

B. Case of the prosecution is solely based upon the extra-judicial confession, which is neither reliable nor has been recorded in accordance with law. This extra-judicial confession cannot form the basis of conviction of the appellants, since it has no corroboration and when examined in the light of settled principle of law, it is inconsequential, thus, accused-appellants are entitled to benefit of doubt.

C. In the present case, there is neither any eye witness nor the prosecution has proved the complete chain of circumstances.

D. There being no direct evidence of involvement of accused-appellants in the commission of crime, the theory of recovery made on the pointing of the accused persons could not be of any assistance to the case of prosecution.

E. In any case, the objects allegedly recovered on the pointing of the accused persons have no link with the commission of crime and, as such, it would be impermissible in law to use the recovery against the accused for sustaining their conviction.

F. The Trial Court has failed to appreciate the medical and other evidence placed on record in its correct prospective and there are serious contradictions in the statements of witnesses of fact. Once extra-judicial confession is not established, whole prosecution story falls to ground.

G. Extra-judicial confession, besides, being inadmissible, is also very weak piece of evidence and in case of circumstantial evidence like the present case one cannot form a valid basis for recording the finding of guilt against the accused persons.

16. Per-contra learned AGA appearing for State supporting the impugned judgement argued that extra-judicial confession made by the accused persons in the present case is admissible as it is duly proved and thus, Trial Court was fully justified in convicting the accused persons. It is also contended that present case is of circumstantial evidence and prosecution has succeeded in establishing its case beyond reasonable doubt.

17. We now proceed to consider rival submissions on merits.

18. Admittedly, there is no eye-witness in the present case. This case rests upon circumstantial evidence. It is no doubt a case where there is no eye witness of crime. Prosecution totally rests on circumstantial evidences, which found favour with Court below and finding prosecution version proved beyond reasonable doubt, Trial Court has convicted appellant, as stated above.

19. It will be appropriate to briefly consider the evidence on record. PW-1 and 2 are father and son and related to each other, both of them have deposed that accused-appellant Akhlesh confessed before them that he himself and Ram Chandra murdered Chhotey Lal by compressing neck at about 11:00 P.M. in the preceding night because of illicit relation between Chhotey Lal (deceased) and sister of Ram Chandra- accused. PW-1 supporting FIR deposed that accused Akhlesh had confessed before him that he along with his companion Ram Chandra (accused-appellant) had murdered Chhotey Lal by compressing neck. Akhlesh further stated that Chhotey Lal was having illicit relation with the sister of Ram Chandra, therefore, he was murdered by them. The witness had seen the dead body of deceased in the pit of grove. In this way, PW-1 is a witness of extra-judicial confession made by accused Akhilesh. PW-2 supporting the prosecution case deposed that on 04.03.2009 at about 12 O' clock his father PW-1 and he himself went to western side of Baag (grove) in search of patia of harrow of tractor, they saw that fresh earth was lying. Having suspected that patia would be there, they called upon accused Akhlesh with spade, working in nearby in field. When Akhlesh started to remove the earth, he made excuse for stomachache, then on exerting pressure, Akhlesh told that he and his companion Ram Chandra resident of Amrawa, District Pilibhit have murdered Chhotey Lal by compressing his neck at about 11:00 P.M. in the preceding night. After a little accused Ram Chandra came there and both of them told that deceased Chhotey Lal had developed illicit relationship with Leelawati, sister of Ram Chandra, therefore, they had murdered. PW-1 took the police from Police Station concerned. Police took both the accused and dead body of deceased to Police Station, dead body was took out by both the accused after digging the earth.

20. PW-3 happens to be witness of extra-judicial confession and independent witness who deposed that he and his partner had taken the Baag (grove) of Navratan Singh PW-1 on lease for Rs.1,30,000/-. PW-2 son of PW-1 was searching patia in the Baag (grove), accused Akhlesh was also there. At the time of search there was fresh earth at one place in Baag (grove). Then they called upon Akhlesh with spade and he started to dig. At the same time, accused Ram Chandra also came there, on there digging pit, dead body of Chhotey Lal was found. Akhlesh told that Chhotey Lal had developed illicit relation with Leelawati, sister of Ram Chandra. He and Ram Chandra had murdered Chhotey Lal by compressing neck and body was hidden under the earth. Then witness resiled in his cross examination made on 30.01.2010 from his previous statement in chief, he denied the entire statement by saying "he did not tell I.O. about Chhotey Lal having relation with the sister of Ram Chandra, therefore Akhilesh and Ram Chandra murdered Chhotey Lal by compressing his neck". He totally denied any involvement in the crime and confession having been made by accused. Witness was declared hostile on the application of ADGC (Criminal) who was permitted to cross examination the witness. In his cross examination made by ADGC (Criminal), the witness explained that statement given by him today is correct and his previous statement in the Court was wrong. Suggestion, put by ADGC (Criminal) that he was giving a false statement in collusion of accused, has been denied.

21. PW-1 and 2 established that accused Akhilesh in the presence of other co-accused Ram Chandra has confessed that both of them murdered Chhotey Lal on account of illicit relation between Chhotey Lal and Leelawati, but this fact does not find support with the statement of PW-3. PW-1 and 2 are close relatives and PW-3 happens to be independent witness who did not support the version of PW-1 and 2.

22. PW-4 Dr. Mohd Ashraf Ali deposed that on 05.03.2009 he was on postmortem duty in District Hospital Rampur at about 1:30 P.M. He received dead body of Chhotey Lal aged about 35 years son of Gokul Prajapati R/o Village Gumshani, Police Station Baazpur, District Udhamsingh Nagar, permanent address Village Mohanpura, Police Station Paraur, District Shahjahanpur in sealed position along with police personnel for postmortem. He conducted autopsy over the dead body and found ante mortem injuries as under:-

"A ligature mark 16 cm x 3 cm high in neck, 9 cm above sternel notch encircling whole neck, 6 cm below right ear lobe on right side and 7 cm below left ear lobe on left side. Brownish surface and underneath sub cutaneous tissue Congested - Neck muscles and vessels are congested."

Dr. opined that ligature might have been caused by rope and death might have been caused one and half day prior to autopsy.

23. PW-6 held inquest over the dead body of deceased in the Baag of PW-1 situated in Village Jodha Bala, Police Station Swar, District Rampur. This fact is supported by his testimonial statement.

24. From the evidence adduced by prosecution following circumstances are clearly established :

A. Chootey Lal was murdered in the intervening night of 3/4.03.2009 by strangulation.

B. Dead body of Chhotey Lal was found in the Baag of PW-1 situated in Village Jodha Bala, Police Station Swar, District Rampur.

C. Postmortem report reveals that death of Chhotey Lal might have occurred one and half day prior to postmortem due to strangulation.

25. In the case in hand there is no eye witness of occurrence and case of prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and he should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.

26. Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343, is the basic judgment of the Supreme Court on appreciation of evidence, when the case depends only on circumstantial evidence, which has been consistently relied in later judgments. In this case as long back as in 1952 Hon'ble Mahajan, J expounded various concomitant of proof of a case based purely on circumstantial evidence and said:

"... circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved...... it must be such as to show that within all human probability the act must have been done by the accused."

27. In Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person.

28. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent :-

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.

(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.

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

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

(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.

(emphasis added)

29. In Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR 1989 SC 1890, Court said:

"...when a case rests upon circumstantial evidence such evidence must satisfy the following tests :-

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively; should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and,

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

(emphasis added)

30. In C. Chenga Reddy and Others v. State of Andhra Pradesh, 1996(10) SCC 193, Court said:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. "

(emphasis added)

31. In Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir, 2002(8) SCC 45 Court quoted from Sir Alfred Wills, "Wills' Circumstantial Evidence" (Chapter VI) and in para 15 of judgement said:

"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt,

(5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."

(emphasis added)

32. Now the crucial question for consideration is who is the perpetrator of this crime.

33. It is a case where an offence has taken place in the dark of intervening night 3/4.03.2009 in the field of PW-1. Nobody has seen the accused persons nearby the place where the dead body of Chhotey Lal was found. It will be extremely difficult to lead evidence to establish the case of accused to guilt. Only extra-judicial confession allegedly made by the accused appellants is against them to connect with the present crime.

34. It is also noteable that accused-appellants, on being asked by PW-1 and 2, made a confession that they killed Chhotey Lal by strangulation in connection with illicit relation, in the preceding night and pressed the corpse in a pit.

35. In Sahadevan and another versus State of Tamil Nadu, 2012 (6) SCC 403, Court has held that where the prosecution relies upon an extra-judicial confession, the Court has to examine the same with a greater degree of care and caution. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra- judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration.

36. In Balwinder Singh versus State of Punjab[1995 Supp. (4) SCC 259], Court observed that an extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.

37. In Pakkirisamy versus State of Tamil Nadu[(1997) 8 SCC 158], the Court held that it is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession.

38. Again in Kavita versus State of Tamil Nadu [(1998) 6 SCC 108], the Court stated the dictum that there is no doubt that conviction can be based on extrajudicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made.

39. Accepting the admissibility of the extra-judicial confession, the Court in the case of Sansar Chand versus State of Rajasthan [(2010) 10 SCC 604] held that :-

"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [ Vide Thimma and Thimma Raju versus State of Mysore, Mulk Raj versus State of, Sivakumar versus State (SCC paras 40 and 41 : AIR paras 41 & 42), shiva Karam Payaswami Tewari versus State of Maharashtra and Mohd. Azad versus State of West Bengal ] "

40. Dealing with the situation of retraction from the extra-judicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod versus State of Gujarat [(2009) 5 SCC 740], held as under :

"It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true."

41. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the Court should find out whether there are other cogent circumstances on record to support it. [Ref. S.K. Yusuf versus State of West Bengal [(2011) 11 SCC 754] and Pancho versus State of Haryana [(2011) 10 SCC 165].

42. Further, extra-judicial confession is stated to have been made by the accused persons to PW-1, 2 and 3, in the presence of Istyaq Hussain who, for reasons best known to the prosecution, has not been examined by the prosecution to prove the confession.

43. Moreover, in their statement under Section 313 Cr.P.C., the accused-appellants have denied to make statement of confession. In order to examine the veracity of this confession, the Court essentially has to find out the correctness and corroboration of the facts by other prosecution evidence. It is stated that the deceased was having illicit relation with Leelawati, sister of accused Ram Chandra and that was the motive and, in fact, essentially the cause for the accused persons to murder the deceased. The whole emphasis is upon the illicit relationship between the deceased and Leelawati. It has not come in evidence that there was any sister of Ram Chandra and there was no other evidence except the extra-judicial confession regarding the motive of crime. It is also well settled that motive is important in the case of circumstantial evidence which does not find support by any other evidence. The very basis of extra-judicial confession falls to the ground when we peruse the statement of PW-3 .

44. The statement of the two witnesses i.e. PW-1 and 2 is at variance with confessional statement of accused-appellants and hardly finds corroboration from other prosecution evidence and also suffers from discrepancies, therefore it is not safe for the Court to rely upon such extra-judicial confession.

45. In the light of the abovementioned contradictions and uncertainty of evidence, we are unable to sustain the view taken by the Trial Court that on extra-judicial confession, the accused can be convicted.

46. In the present case, the recoveries of one spade and one Angochha (towel) of accused Ram Chandra have been effected upon the disclosure statement of the accused under Section 27 of the Evidence Act. These recoveries, in our view, were made in furtherance to the statement of the accused who was in police custody and in presence of alleged independent witnesses i.e. Dalip Singh and Durga Das but these witnesses have not been produced in evidence by the prosecution. The aspect which the Court has to consider in the present case, is whether these recoveries have been made in accordance with law and whether they are admissible in evidence or not and most importantly, whether they link with and effect of the same vis-a-vis the commission of the crime. It is also not established by the prosecution that Angochha (towel) is belongings of the accused Ram Chandra and, therefore, it creates a little doubt as to whether the recovered items were at all and actually used in the commission of crime. There is no sufficient evidence to show that it was used by the accused-appellants in committing the murder of Chhotey Lal, more so the other contradictions and discrepancies noted above overshadow this evidence and give advantage to the accused appellants.

47. In the present case, accused-appellants were stated to have murdered the deceased and pressed the dead body in a pit. It was a case of circumstantial evidence where not only the prosecution failed to prove all the facts and events to complete the chain of events pointing only towards the guilt of the accused but there are also definite discrepancies in the case of the prosecution. Contradictions between the statements of the material witnesses and the most important piece of prosecution evidence, the extra- judicial confession is found entirely unreliable, not worthy of credence as well as disproved by P.W.-3 himself.

48. Looking into entirety of facts and circumstances of the case, as discussed above, we are of the considered view that Court below was not correct in convicting appellants, broadly relying on statements of PW-1 and 2 in respect of extrajudical confession, treating it to be a conclusive proof of incident, overlooking other major contradictions in the evidence and missing chain of circumstantial evidence. Trial Court has not marshalled the fact and law with care and cautious. In our considered view, appellants are entitled to benefit of doubt and it cannot be said that prosecution has been successful in proving guilt of accused-appellants beyond reasonable doubt.

49. In the result, both jail appeals succeed and are hereby allowed. Impugned judgment and order dated 26.02.2011 in Session Trial No.305 of 2009 is hereby set aside. Accused-appellants Akhlesh and Ram Chandra are acquitted of charges levelled against them. They are in jail and shall be released forthwith, if not wanted in any other case.

50. Keeping in view provisions of Section 437-A Cr.P.C., appellants are directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellants on receipt of notice thereof shall appear before Hon'ble Supreme Court.

51. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.

Order Date :- 12.03.2019

I.A.Siddiqui