Brijendra Murari Yadav vs State Of U.P.And Another.

Neutral Citation No. - 2026:AHC-LKO:80357-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL REVISION No. - 112 of 2007
Brijendra Murari Yadav
…..Revisionist(s)
Versus
State of U.P.and another.
…..Opposite Party(s)
Counsel for Revisionist(s) : B.k. Singh,
Counsel for Opposite Party(s) : Govt.advocate,
Court No. - 11
HON'BLE ABDUL MOIN, J.
HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
1. Case called out.
2. Despite the name of Sri B.K.Singh, Advocate being shown as
counsel for the revisionist, and this Court, vide order dated 02.11.2026
having granted an opportunity to Sri B.K.Singh, Advocate to appear in
the matter, yet nobody appears on behalf of the revisionist today as well.
The Revision being old, as such this Court proceed to decide the same
on merits.
3. This Court has gone through the records, the grounds taken therein
as well as the judgment of the learned trial Court.
4. This Criminal Revision under Section 397 read with Section 401
of the Code of Criminal Procedure, 1973 (hereinafter referred to as
"Cr.P.C.") has been preferred by the informant-revisionist, Brijendra

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CRLR No. - 112 of 2007
Murari Yadav, against the judgment and order dated 23.01.2007 passed
by the learned Additional District & Sessions Judge, Room No. 13,
Lucknow in Session Trial No. 663 of 2001 ( State v. Mohd. Azam and
others ), arising out of Crime Case No. 401/1989, P.S. Mahanagar,
District Lucknow.
5. By the impugned judgment, the learned trial court convicted
respondent No. 2, Mohd. Azam Ghosi, under Sections 302 and 392 of
the Indian Penal Code (IPC), sentencing him to undergo Rigorous
Imprisonment for Life with a fine of Rs 5,000/- under Section 302 IPC,
and Rigorous Imprisonment for 7 years with a fine of Rs. 5,000/- under
Section 392 IPC. However, the trial court acquitted respondent No. 2 of
charges under Sections 148, 307/149 IPC, while co-accused persons
namely Mohd. Salim, Waseem, Munna, Irshad, Mumtaz, Golu @
Vaseem and Safi were acquitted of all charges. The revisionist seeks
enhancement of the sentence awarded to respondent No. 2 to capital
punishment, as well as conviction under Section 396 IPC and associated
charges.
6. The prosecution story, in brief, is that on 01.09.1989 at about
11:30 AM, the informant's brother Yogendra Murari Yadav was standing
on the footpath outside his residence along with his personal security
guard, Police Constable Hans Raj Yadav, waiting for an Ambassador car
(Reg. No. UTD 8722). Meanwhile, accused Mohd. Azam Ghosi along
with several named and unnamed associates armed with firearms
emerged from Shankdhar lane and opened indiscriminate fire upon the
arriving car, killing Dilip Kashyap @ Dilip Kahar on the spot and
injuring Suresh Kumar and Dilip Verma. Thereafter, the accused gang
charged towards Yogendra Murari Yadav and Constable Hans Raj Yadav.
Upon the exhortation of Azam Ghosi, firearms were repeatedly
discharged. Constable Hans Raj Yadav sustained fatal gunshot injuries.
As he fell, respondent No. 2, along with co-accused Saeed @ Batu and
Dilip, fired from close range and snatched the service revolver/pistol of
Constable Hans Raj Yadav before fleeing eastwards.

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CRLR No. - 112 of 2007
7. After completion of investigation, a charge-sheet was submitted
against the accused persons. The case was committed to the Court of
Sessions. Charges under Sections 148, 302/149, 307/149 were framed
against all the accused and Section 392 IPC was also framed against
respondent No. 2. The accused pleaded not guilty and claimed trial.
8. The prosecution examined 9 witnesses including informant
Brijendra Murari (PW-1), Yogendra Murari Yadav (PW-2), eyewitness
Sanjay Tiwari (PW-3), injured witness Dilip Kumar (PW-4), Dr. J.P.
Dwivedi PW-5, S.I. Sobhnath Mishra PW-6, Sri A.K. Upadhayay (retired
Deputy Superintendent of Police), Dr. B.P. Mathur (PW-8), and Om
Prakash Verma (PW-9).
9. After the closing of the evidence, statements of
accused/appellants under Section 313 Cr.P.C. were recorded by the trial
Court, after explaining the entire evidence and other circumstances, in
which the appellants denied the prosecution story and the entire
prosecution case was said to be wrong and concocted.
10. Thereafter, the learned trial Court after hearing learned counsel
for both the parties and appreciating the entire evidence, oral as well as
documentary, acquitted the respondent No. 2 Mohd. Azam Ghosi of
charges under Sections 148, 307/149 IPC while convicting and
sentencing him for the offence under Sections 302 and 392 of IPC
sentencing to undergo Rigorous Imprisonment for Life with a fine of Rs
5,000/- under Section 302 IPC, and Rigorous Imprisonment for 7 years
with a fine of Rs 5,000/- under Section 392 IPC. while co-accused
persons namely Mohd. Salim, Waseem, Munna, Irshad, Mumtaz, Golu
@ Vaseem and Safi were acquitted of all charges.
11. Feeling aggrieved and dissatisfied with the impugned judgment
and order, the revisionist Brijendra Murari Yadav has filed this criminal
revision on the ground that the trial court committed grave error in not
appreciating that this case falls within the parameter of the "rarest of rare
cases" warranting death penalty, given the brutal daytime murder of an
on-duty police constable and the looting of his service weapon;

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CRLR No. - 112 of 2007
respondent No. 2 is a hardened criminal and gang leader previously
convicted for life imprisonment in two separate murder trials (S.T. No.
470-A/1987 and S.T. No. 660/2001). Additionally, it has been averred
that the trial court erroneously diluted the offence from Section 396 IPC
(dacoity with murder) to Sections 302 and 392 IPC. Thus prayer for
enhancement of the punishment awarded to respondent No.2 and further
to punish him for offence under Sections 396/148/149/307 of I.P.C.
12. Learned AGA has submitted that the trial court meticulously
analyzed both oral and documentary evidence, including post-mortem
reports and ballistic items recovered from the scene. The trial court
correctly held that the liability for direct assault and looting was
established specifically against respondent No. 2, Saeed @ Batu, and
Dilip, while extended liability under unlawful assembly (Section 149
IPC) failed due to material contradictions and visibility constraints.
13. We have carefully considered the submissions of learned AGA,
perused the impugned judgment and examined the record of the trial
court.
14. In the case of Akalu Ahir Vs. Ramdeo Ram (AIR 1973 SC
2145), Hon’ble Apex Court has held that “this Court, however, by way
of illustration, indicated the following categories of cases which would
justify the High Court in interfering with a finding of acquittal in
revision:
i. Where the trial court has no jurisdiction to try the case, but has
still acquitted the accused;
ii. Where the trial court has wrongly shut out evidence which the
prosecution wished to produce;
iii. Where the appellate court has wrongly held the evidence
which was admitted by the trial court to be inadmissible;
iv. Where the material evidence has been overlooked only (either)
by the trial court or by the appellate court; and v. Where the
acquittal is based on the compounding of the offence which is
invalid under the law.

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CRLR No. - 112 of 2007
These categories were, however, merely illustrative and it was
clarified that other cases of similar nature can also be properly
held to be of exceptional nature where the High Court can
justifiably interfere with the order of acquittal.”
15. The observations in the case of Vimal Singh Vs. Khuman Singh
1998 SC 3380 would be apt for recapitulation and, therefore, are being
extracted below:
"9. Coming to the ambit of power of the High Court under
Section 401 of the Code, the High Court in its revisional power
does not ordinarily interfere with judgments of acquittal passed
by the trial court unless there has been manifest error of law or
procedure. The interference with the order of acquittal passed by
the trial court is limited only to exceptional cases when it is
found that the order under revision suffers from glaring illegality
or has caused miscarriage of justice or when it is found that the
trial court has no jurisdiction to try the case or where the trial
court has illegally shut out the evidence which otherwise ought to
have been considered or where the material evidence which
clinches the issue has been overlooked. These are the instances
where the High Court would be justified in interfering with the
order of acquittal. Sub-section (3) of Section 401 mandates that
the High Court shall not convert a finding of acquittal into one of
conviction. Thus, the High Court would not be justified in
substituting an order of acquittal into one of conviction even if it
is convinced that the accused deserves conviction. No doubt, the
High Court in exercise of its revisional power can set aside an
order of acquittal if it comes within the ambit of exceptional
cases enumerated above, but it cannot convert an order of
acquittal into an order of conviction. The only course left to the
High Court in such exceptional cases is to order retrial."
16. The apex court in the case of Venkatesan v. Rani reported in
AIR 2013 SC 3320 while discussing the true contours of the jurisdiction
vested in High Court’s under section 397 read with section 401 of Code
of Criminal Procedure, 1973 discussed the observations made in the case
of Akalu Ahir (supra) and Vimal Singh (supra) and observed as
under:
“7. The above consideration would go to show that the
revisional jurisdiction of the High Courts while examining an
order of acquittal is extremely narrow and ought to be
exercised only in cases where the trial court had committed a
manifest error of law or procedure or had overlooked and
ignored relevant and material evidence thereby causing
miscarriage of justice. The reappreciation of evidence is an

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exercise that the High Court must refrain from while
examining an order of acquittal in the exercise of its
revisional jurisdiction under the Code. Needless to say, if
within the limited parameters, interference of the High Court
is justified the only course of action that can be adopted is to
order a retrial after setting aside the acquittal. As the
language of Section 401 of the Code makes it amply clear
there is no power vested in the High Court to convert a
finding of acquittal into one of conviction.”
17. Upon evaluation of the findings recorded by the learned trial
Judge, it is evident that the trial court undertook a granular examination
of the testimony of PW-1, PW-2, PW-3, and PW-4. The trial court
correctly observed that from the first-floor balcony (where PW-1 and
PW-3 were situated), the interior of Shankdhar lane was not visible due
to structural blockages and vegetation. Consequently, the general role
attributed to 17 named/unnamed persons regarding joint firing on the
approaching car was rightly found doubtful, whereas the specific overt
act of respondent No. 2 along with Saeed @ Batu and Dilip in shooting
Constable Hans Raj Yadav and robbing his service weapon at close
range was unequivocally proved beyond reasonable doubt.
18. Regarding the prayer for enhancement of sentence to capital
punishment, it is noted that the imposition of life imprisonment under
Section 302 IPC is the standard sentence and death penalty is an
exception to be awarded in the rarest of rare cases. The trial court
evaluated the mitigating and aggravating factors, the genesis of long-
standing political and land enmity between the parties, and exercised its
judicial discretion in awarding life imprisonment alongside a 7-year
sentence under Section 392 IPC. This Court finds no manifest error or
perversity in the exercise of such judicial discretion that would justify
converting a life sentence into capital punishment in revisional
jurisdiction.

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19. Furthermore, under Section 401(3) Cr.P.C., the High Court in
revision is expressly precluded from converting a finding of acquittal
into one of conviction. The trial court's acquittal of accused/respondent
No.2 under Sections 148, 307/149 IPC is based on a plausible view
taken upon appreciation of eyewitness testimony and medical evidence
(PW-8).
20. In view of the foregoing analysis, this Court concludes that the
impugned judgment and order dated 23.01.2007 passed by the learned
Additional District & Sessions Judge, Room No. 13, Lucknow does not
suffer from patent illegality, perversity, or jurisdictional error. The
criminal revision lacks merit and is liable to be dismissed.
21. Dismissed.
(Pramod Kumar Srivastava,J.) (Abdul Moin,J.)
November 05, 2026
Arvind
Digitally signed by :-
ARVIND KUMAR SRIVASTAVA
High Court of Judicature at Allahabad,
Lucknow Bench