Anant Ram And Anr. vs State of U.P.

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

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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

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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

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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

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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

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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

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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

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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

CRLA No. 801 of 2012
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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

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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: -
“ -Whoever does any act with such
307. Attempt to murder.
intention or knowledge, and under such circumstances that,
if he by that act caused death, he would be guilty of

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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.
-When any person offending
Attempts by Life Convicts.
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 v.
Jage Ram State of
Haryana , (2015) 11 SCC 366 and State of Madhya

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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

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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 in the aforesaid
allowed
terms.

April 22, 2026
Pradeep/-
(Subhash Vidyarthi,J.)
Digitally signed by :-
PRADEEP SINGH
High Court of Judicature at Allahabad,
Lucknow Bench