Allahabad High Court
Anant Ram And Anr. vs State Of U.P. on 22 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2026:AHC-LKO:28592
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 801 of 2012
Anant Ram And Anr.
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Farooq Ayoob
Counsel for Respondent(s)
:
G.A.
A.F.R.
Court No. - 14
HON'BLE SUBHASH VIDYARTHI, J.
1. Heard Sri Farooq Ayoob, the learned counsel for the appellants and Sri Rajiv Kumar Verma, the learned AGA-I for the State of U.P.
2. By means of the instant appeal, the appellants have challenged the validity of a judgment and order dated 31.05.2012 passed by Additional Sessions Judge, Court No. 4, Barabanki in Sessions Trial number 741 of 2004, arising out of Case Crime Number 176 of 2000, under Sections 364, 324/34 & 307/34 IPC, Police Station Ram Nagar, District Barabanki.
3. The aforesaid case was instituted on the basis of an FIR lodged on 30.07.2000 at 20:15 hours against the appellants and two unnamed persons for committing offences under Sections 342, 323 & 324 IPC, stating that while the complainant Ashok Kumar was going from Rani Bazar to Chandpur along with his father Bhagauti Prasad and they had reached a culvert of village Narainipur, the accused persons came there on a jeep number UGO 6158. They forcibly made the informant?s father Bhagauti Prasad sit in the jeep and took him away towards Masauli. The incident was witnessed by Hukum Chand, son of Sohan Lal and Shobha Lal, son of Vishesar, residents of Village Chandpur, Police Station Ram Nagar, District Barabanki. The informant gave this information to the persons present nearby and in his village. Several persons started searching for the informant?s father and they came to know that the accused persons had beaten him up and kept him in a jungle near Gurela village. When the first informant and other persons reached the jungle, the accused persons ran away. The informant found his father in the jungle. There were injuries on his body, he took his father to the police station and lodged the FIR.
4. The victim was medically examined on 00:30 hours on 31.07.2000. There were as many as 12 injuries on his body, including a few burn injuries, but all the injuries were simple in nature and the X-ray examination report did not reveal any fracture. Though some teeth were found to be loose, the doctor opined that the teeth were loose naturally and the victim was suffering from pyorrhea. After investigation, the Investigating Officer submitted a charge-sheet for the offences under Sections 364, 323/34, 307/34 against the appellants Anant Kumar and Awdhesh Kumar.
5. The trial court framed charges for offences under Sections 364, 323/34 and 307/34. After examination of the injured and the informant, another person Munawwar was summoned under Section 319 Cr.P.C. to face the trial.
6. In the statement recorded under Section 313 Cr.P.C., the accused persons denied the charges. The appellant no. 1-Anant Ram stated that persons from the accused side had killed his sister. He had lodged an FIR in this regard. The appellant no. 2 Awadhesh Kumar stated that on 30/01/2000 i.e. the date of the incident, he was working as a daily wage labourer in Jaidpur Nursery of Forest Department since 8 a.m. till 5 p.m. The co-accused Munnavar stated that he had been falsely implicated.
7. The trial Court acquitted Munnavar but the appellants have been convicted.
8. Strangely, before dealing with the prosecution case, the trial court proceeded to examine the defense. It is recorded in the judgment that the learned counsel for the appellants has submitted that the prosecution story is false. Sister of the appellant no. 1-Anant Ram had been killed by her husband and his family members for demanding dowry on 23.07.2000. Father of the appellant no. 1 had filed an FIR in Police Station Ram Nagar, District Barabanki on 26.07.2000 for offences under Section 498A, 304-B IPC and Sections 3/4 Dowry Prohibition Act and the injured victim Bhagauti Prasad and his wife were also made accused in that case. In order to put undue pressure on the informants, a false story had been cooked up and the FIR has been lodged on the basis thereof. It was submitted on behalf of the appellants that FIR has been lodged after a considerable delay. It does not disclose any motive for commission of the offense. The prosecution witnesses have stated about a motive but there are contradictions in their statements. The informants have got a reason to falsely implicate the appellants. There was no evidence to establish that Bhagauti had been abducted with intent to kill him.
9. It was further submitted on behalf of the appellants that there are serious discrepancies in the statements of PW-1-Bhagauti Prasad and PW-2-Ashok Kumar, the statement of the Investigation Officer and the medical evidence, which creates doubt against the prosecution case. As per the prosecution case, two other persons, Hukum Chand and Shobha Lal, were present at the time of the incident and they have not been examined.
10. After narrating the defense case, the learned trial court proceeded to examine the prosecution case as per which the appellants and two other persons Munnavar and Shamsher had abducted Bhagauti Prasad with intention of committing his murder. They took him to a jungle. They wanted to kill him by making him suffer a lot. They tied his hands, disrobed him and beat him up with kicks, fists, and sticks. They collected dried leaves, etc., and put him on fire. Besides that they burnt his eye. The appellant no. 1-Anant Ram suspected that his sister had been killed by the family members of her husband for demanding dowry. Bhagauti Prasad was uncle of the deceased?s husband and he was also an accused. While the accused persons were assaulting the victim, they felt that the police was reaching the spot and, therefore, they fled.
11. The victim was examined as PW-1. He stated that while he and his son Ashok (the informant) were going from Rani Bazar to village Chandpur, the accused persons forcibly took him away in a Jeep, they gagged his mouth and took him towards Masauli. All four accused persons were beating him saying that he should be killed in the same manner as the sister of the appellant no. 1 was killed. He stated that they took him to Gurela jungle, disrobed him, tied his hands, beaten him up with kicks, fists and sticks and burnt him after collecting dried leaves etc. They had burnt his eye with a lighter. He stated that as his mouth was gagged, he had fallen unconscious. He regained consciousness in District Hospital Barabanki.
12. The informant was examined as PW-2 and he reiterated the aforesaid version. He stated that Hukum Chand and Shobha Lal were with them when the accused persons had taken away his father. Those persons were also accompanying them when a search was being made for his father. His father was found in Gurela jungle, from where he was taken to the police station.
13. The doctor who had examined the victim was examined as PW-5. He proved the Medico Legal examination report which states that the victim had suffered 12 injuries and he stated that the injuries were simple in nature. PW-7 was a dentist who stated that three upper teeth and four lower teeth were fake. The rest of the teeth were weak. The victim was suffering from Pyorrhea.
14. It is relevant to note that the victim was sent for Medico Legal Examination along with a letter of SHO and it does not mention that the victim was unconscious. The Medico Legal examination report mentions 12 simple injuries suffered by the victim and it also does not state that the victim had been brought in an unconscious condition.
15. The trial court concluded that although the victim had not suffered any grievous hurt, 5 out of 12 injuries suffered by him were burn injuries. The trial court has held that although only the appellants were named in the FIR and the charge-sheet was submitted against the appellants only, another person, Munnavar was summoned upon an application under Section 319 Cr.P.C. filed by the prosecution, but his involvement in commission of the offence could not be proved and he has been acquitted.
16. The trial court commenced the discussion by dealing with the submission advanced on behalf of the accused persons that the incident took place on 30.07.2000 at about 2 p.m. whereas the FIR had been lodged at about 08:15 p.m. In case the victim had been abducted for committing his murder, the informant would have lodged the FIR without any delay. Instead of lodging the FIR, the informant set on a search for the victim without involving the police and he found out the victim and thereafter lodged the FIR, which raises doubt against the prosecution story. The trial court turned down this submission by observing that it has generally been observed that police avoids to register an FIR. In these circumstances, if the informant did not involve the police and instead he set out to search his father with the help of other persons and became successful in it, it does not create a doubt against the prosecution case and there is no unreasonable delay in lodging the FIR.
17. Regarding the second submission raised on behalf of the defense that the FIR does not disclose any motive for commission of the offense, the trial court held that in the statement under Section 161 Cr.P.C., the victim Bhagauti Prasad has stated that the accused persons were saying that he had killed his sister and, therefore, he should be killed. This statement discloses the motive.
18. Next, the trial court dealt with the submission made on behalf of the defense that even if it be assumed that Bhagauti Prasad was abducted, there is no evidence to establish that he had been abducted with the intention of committing his murder. The trial court held that the mere fact that Bhagauti Prasad did not suffer any grievous hurt, cannot lead to a conclusion that he had not been abducted with the intention to kill him. Bhagauti Prasad has stated that the appellant no. 1 was stating while beating him that the victim had to be killed. Bhagauti Prasad has also stated that when the accused persons got information that the police was reaching at the spot, they escaped. Although the police had not reached there, the victim?s son Ashok Kumar and the other persons had reached there. The accused persons would have taken those persons as police officials and would have escaped.
19. The trial court dealt with the submission of the victim that there were discrepancies in the statements of the informant Ashok Kumar and the victim Bhagauti Prasad but the trial court held that there were no serious discrepancies in their statements. The minor discrepancies like the statement of the informant that doctor had given his father only powdered medicine whereas the victim had stated that the doctor had given him tablets, tonic and mixture, do not affect their testimony adversely.
20. Regarding the statement of the victim Bhagauti Prasad that he had fallen unconscious and regained consciousness in the district hospital, the trial court held that it should not be taken that Bhagauti Prasad had fallen unconscious with a medical point of view and the statement only indicates that the manner in which Bhagauti Prasad had been assaulted, had frightened him to that extent that he was not in a condition of understanding anything. He recovered from such a condition only on the following day in the hospital.
21. Regarding non-examination by Hukum Chand and Shobha Lal, the trial court held that nowadays a common man avoids appearing as a witness in criminal cases and, therefore, non-examination of Hukum Chand and Shobha Lal does not create a doubt against the prosecution case.
22. After dealing with the submissions made on behalf of the defense, the trial court proceeded to examine the defense evidence. It referred to the statement of DW-1-Gurudeen, who had stated that the appellant no. 2-Awadhesh Kumar had worked in Jaidpur Nursery with him since 8:00 a.m. till 5:00 p.m. on 30.07.2000 and during the entire duty period on the aforesaid date he had not gone away anywhere. A similar statement was given by DW-2, Premnath Tiwari, Forest Daroga. The trial court disbelieved their statements on the ground that normally there is a tendency in employees to save their co-employees and DW-1 and DW-2 had given evidence because of this tendency. It is recorded in the judgment that in the court?s view, it is very easy that a daily wage laborer may go anywhere without taking leave.
23. As per the trial court, the preponderance of probability tilted in favor of the fact that the appellant no. 2 was involved in the incident and yet he showed his presence in Jaidpur Nursery. The trial court held that the aforesaid facts are sufficient for holding the appellants guilty of the offense under Sections 364, 307/34 and 323/34 I.P.C.
24. The judgment does not at all deal with the statements of prosecution witnesses and the submissions of Public Prosecutor. The trial court has merely dealt with the submissions of the defense counsel and has turned down all of them and has dealt with the defense evidence and has discarded the same. It shows that the trial court was acting under an impression that it is the accused who is required to prove his innocence rather than the prosecution being required to prove the guilt of the accused. After examination of the defense evidence, the trial Court concluded that the preponderance of probabilities tilted against the accused and convicted the accused persons on this basis. This is not the manner in which a trial court should proceed to decide a case.
25. DW-1-Gurudeen and DW-2 Premnath had stated that the appellant no. 2-Awadhesh Kumar had worked in Jaidpur Nursery with him since 8:00 a.m. till 5:00 p.m. on 30.07.2000 and during the entire duty period on the aforesaid date he had not gone away anywhere. The trial court has committed a manifest error in discarding their statements on the ground that normally there is a tendency in employees to save their co-employees and DW-1 and DW-2 had given evidence because of this tendency, even when it found no discrepancy in their statements and even in their cross-examinations. The trial Court has held that it is very easy that a daily wage laborer may go anywhere without taking leave but this is a mere conjecture and no conviction can be based on conjectures.
26. The trial court has held that the preponderance of probability tilted in favor of the fact that the appellant no. 2 was involved in the incident and yet he showed his presence in Jaidpur Nursery. The trial court held that the aforesaid facts are sufficient for holding the appellants guilty of the offense under Sections 364, 307/34 and 323/34 I.P.C.
27. In Anand Ramachandra Chougule v. Sidarai Laxman Chougala, (2019) 8 SCC 50, the Hon?ble Supreme Court held that: –
?10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.?
28. In Vaibhav v. State of Maharashtra, (2025) 8 SCC 315, the Hon?ble Supreme Court held that: –
?29. In criminal jurisprudence, it is a time-tested proposition that the primary burden falls upon the shoulders of the prosecution and it is only if the prosecution succeeds in discharging its burden beyond reasonable doubt that the burden shifts upon the accused to explain the evidence against him or to present a defence. In the present case, the version of the prosecution suffers from inherent inconsistencies and doubts, as discussed above, and in such a scenario, the inability of the appellant to explain certain circumstances could not be made the basis to relieve the prosecution from discharging its primary burden.
30. The High Court fell in a grave error in doing so, as it placed greater reliance on the loopholes in the appellant?s version without first determining whether the chain of circumstances sought to be proved by the prosecution was complete or not. Pertinently, the inability of an accused to offer plausible explanation on certain aspects would not automatically absolve the prosecution of its evidentiary burden, which must be discharged first and beyond doubt.
31. In law, there is a significant difference in the evidentiary burden to be discharged by the prosecution and the accused. Whereas, the former is expected to discharge its burden beyond reasonable doubt, the latter is only required to prove a defence on the anvil of preponderance of probabilities. If the accused leads defence evidence in the course of a criminal trial, the same ought to be tested as probable or improbable in the facts and circumstances of the case.?
29. Having referred to the prosecution evidence, it appears that the informant Ashok Kumar had stated that Hukum Chand and Shobha Lal had seen the victim being taken away by the accused persons and those persons were accompanying him while a search was made for the victim and he was found in a jungle. The victim Bhagauti Prasad did not state that Hukum Chand and Shobha Lal were accompanying him when he was abducted. This is not a minor discrepancy regarding description of the incident. It shows that Hukum Chand and Shobha Lal had not witnessed the incident and that is the reason that Hukum Chand and Shobha Lal have not been examined by the trial court although their names were mentioned as witnesses in the charge sheet.
30. Although the informant has stated that several persons were involved in carrying out a search for the victim, not a single witness has been examined by the prosecution who was involved in carrying out a search for the victim. This also raises a serious doubt against the prosecution case.
31. The victim stated that he had fallen unconscious and he regained consciousness in the district hospital on the following day. The letter sent by Station House Officer to the doctor for conducting medical examination of the victim mentions some injuries suffered by the victim, but it does not mention that the victim was unconscious. The medico-legal examination report also does not state that the victim was unconscious. The doctor has been examined before the trial court as PW5 and he has also not made any such statement. Strangely, the trial court itself invited a creative explanation that the statement made by the victim that he had fallen unconscious and regained consciousness the following day means that he had got frightened and he was not in a position to understand the things. This depicts that the Trial Court has fastened the liability of guilt on the accused persons purely on conjectures and surmises which is impermissible under law. The trial court is not expected to twist and turn the testimony of a prosecution witness to such a great extent as to change the statement altogether and override the medical evidence to the contrary in order to anyhow convict an accused person.
32. The trial court has held the appellants guilty of commission of offenses under Sections 323/34, 307/34, and 364 IPC. As has already been discussed above, the appellant no. 2 has been convicted merely on the basis of preponderance of probabilities and even the trial Court has not held that the prosecution could prove his guilt beyond reaonable doubt. Therefore, the conviction of the appellant no. 2 is not sustainable in law and he is entitled to be acquitted.
33. Sections 307 and 323, 364 IPC read as follows: – ?307. Attempt to murder.-Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by Life Convicts.-When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. * * * 323. Punishment for voluntarily causing hurt.-Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. * * * 364. Kidnapping or abducting in order to murder.-Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.? 34. In Sivamani v. State, 2023 SCC OnLine SC 1581, the Hon?ble Supreme Court discussed some precedents on the point of relevance of injuries while examining a case under Section 307 IPC and held that: – ?9. In State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554, the Court held that to sustain a conviction under Section 307, IPC, it was not necessary that a bodily injury capable of resulting in death should have been inflicted. As such, non-conviction under Section 307, IPC on the premise only that simple injury was inflicted does not follow as a matter of course. In the same judgment, it was pointed out that ??The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section.? The position that because a fatal injury was not sustained alone does not dislodge Section 307, IPC conviction has been reiterated in Jage Ram v. State of Haryana, (2015) 11 SCC 366 and State of Madhya Pradesh v. Kanha, (2019) 3 SCC 605. Yet, in Jage Ram (supra) and Kanha (supra), it was observed that while grievous or life-threatening injury was not necessary to maintain a conviction under Section 307, IPC, ?The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.??
(emphasis added)
35. In order to uphold a conviction under Sections 307 and 364, it is necessary for the prosecution to prove that the accused persons intended to kill the victim. As per the prosecution case, there were four assailants. They had the freedom to deal with the victim for a period of about six hours. The presence of only two assailants could be established and the prosecution could not prove the involvement of two other persons. Although numerous injuries have been caused to the victim, all the injuries are simple in nature. No lethal weapon is alleged to have been used in committing the offense. The aforesaid facts indicate that the intention of the accused persons was not to kill the victim. There was an animosity between the parties and the intention appears to be to give a good beating to the victim.
36. When the prosecution has failed to make out the intention of killing the victim, the offenses under sections 364 IPC and 307 IPC are not made out. The allegations, at the most, make out the offense of abduction, which is defined in Section 362 IPC and which is punishable under Section 365 IPC for imprisonment which may extend to seven years. For the offense under Section 323 IPC, the appellants have been sentenced to undergo rigorous imprisonment for one year.
37. In view of the foregoing discussion, I am of the view that the offenses under sections 364 and 307 IPC are not made out against the appellants. Instead, the appellant no. 1 is held guilty for committing offenses under sections 362 and 323 IPC.
38. Although both the appellants have filed an application for giving them the benefit of Section 4 of the Probation of Offenders Act, I have already held that the prosecution could not prove the guilt of the appellant no. 2 beyond reasonable doubt and have acquitted him of all the charges. The appellant no. 2 was accused in a case under section 307 IPC lodged from the victim?s side, in which he already stands acquitted in that case. The learned AGA-I does not oppose the request for grant of the benefit of the Probation of Offenders Act.
39. Accordingly, the application for benefit of the Probation of Offenders Act to the appellant no. 1 Anant Kumar is allowed and he is granted benefit of Section 4 of the Probation of Offenders Act. As the appellant no. 1 was convicted in the year 2012 and during the past about 14 years, he has not committed any offense, the good conduct of the appellant no. 1 during the aforesaid period does not warrant keeping him on probation for any further period.
40. Accordingly, the appeal is partly allowed in the aforesaid terms.
(Subhash Vidyarthi,J.)
April 22, 2026
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