Allahabad High CourtState Of U.P. (State Appeal) vs Smt. Chhoti & Another on 29 April, 2020Bench: Anil Kumar, Virendra Kumar SrivastavaHIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH\n \n \n\nA.F.R.\n \nRESERVED\n \nIn Chamber\n \nCase :- CRIMINAL APPEAL No. - 720 of 1982\n \nAppellant :- State Of U.P. (State Appeal)\n \nRespondent :- Smt. Chhoti & Another\n \nCounsel for Appellant :- Govt. Advocate\n \nCounsel for Respondent :- Nagendra Mohan,Som Narain Saxena,Wasim Ahmad\n \nHon'ble Anil Kumar,J.Hon'ble Virendra Kumar Srivastava,J.(Judgment)\n \n(Delivered by Hon'ble Virendra Kumar Srivastava,J.)1.	The instant criminal appeal has been filed against the judgment and order dated 01.01.1982, passed by 3rd Additional District and Sessions Judge, Sitapur in Sessions Trial No.382/1979 (State vs. Smt. Chhoti and others), arising out of Case Crime No.60/1977, under Sections-302 read with 34 and 201 I.P.C., Police Station (P.S.)-Kamlapur, District-Sitapur, whereby the respondents-accused (hereinafter referred to as respondents)- Smt. Chhoti and Ram Swarup have been acquitted by the Trial Court from the charges of offence under Sections-302 read with 34 and Section 201 I.P.C.2. 	During pendency of the appeal, respondent no.1-Smt. Chhoti had died and the present appeal, filed against her, has been abated by this Court vide order dated 24.01.2020.3. 	The prosecution case, in brief, is that the deceased-Jaswant Singh (hereinafter referred to as deceased) was brother of Jagdish (P.W.-1) (informant). Jagdish Singh (P.W.-1) is resident of village-Kumharanpurwa, P. S.-Kamlapur, District-Sitapur. Babu Ram (P.W.-3), Bachan (P.W.-5) and Mool Chand (P.W.-6) are co-villagers of Jagdish Singh (P.W.-1). The deceased and one Shyam Lal resident of village-Dalelnagar, P.S.-Kamlapur, District-Sitapur, since deceased during committal proceeding, (hereinafter referred to as co-accused-Shyam Lal) were inimical for last two years from the incident as they had quarreled in respect to the irrigation of their field, due to which, the co-accused-Shyam Lal was in search of opportunity to eliminate the deceased. For last one month, the co-accused-Shyam Lal was trying to have friendly relations with the deceased, whereupon the informant (P.W.-1) had warned the deceased that he would not have confidence of co-accused-Shyam Lal as he was a notorious criminal. In addition to it, there was an estrange relationship between the respondent-Ram Swarup and deceased due to dispute regarding a grove between one Saktu and the respondent-Ram Swarup wherein the deceased was supporting the cause of Saktu and Barati Pasi, who were estranged from the respondent-Ram Swarup.4.	On 17.07.1977, at about 9:00-10:00 A.M., the deceased told the Jagdish Singh (P.W.-1) and his family members that he along with Bachan  (P.W.-5) was going to the house of the co-accused-Shyam Lal in order to purchase some chaff (Bhusa) for Bachan (P.W.-5) and at that time, the deceased had weared a Dhoti and Baniyan and having a Titan Crystal Watch on his wrist. Since the deceased did not return till 9:00-10:00 P.M. on that day, the informant (P.W.-1) inquired of Bachan (P.W.-5) the whereabouts of deceased, who (P.W.-5) told that the deceased had gone with him to the house of co-accused-Shyam Lal and had talked with co-accused for purchasing of chaff (Bhusa) whereupon the co-accused-Shyam Lal told that he would sell chaff (Bhusa) in 2-3 days. Bachan (P.W.-5) also informed the informant (P.W.-1) that the co-accused-Shyam Lal had taken the deceased inside his house, at that time the respondent-Ram Swarup had also come there and both of them had gone with the deceased inside the house of the co-accused-Shyam Lal. Sensing some suspicious conduct of the co-accused-Shyam Lal as he was a notorious criminal, Jagdish Singh (P.W.-1) along with Sobaran (not examined), Babu Ram (P.W.-3), Bhagwati (not examined) and Bachan (P.W.-5) proceeded to the house of co-accused-Shyam Lal. They reached there at 10:00 P.M. and knocked the door of the co-accused-Shyam Lal by asking the whereabouts of the deceased. In response the respondent-Smt. Chhoti (since deceased) told them that the deceased had not come towards her house since morning. When she was asked to open the door, she refused to do so. Thereafter, the informant (P.W.-1) and other witnesses namely Shiv Charan (not examined), Sobaran (not examined), Mool Chand (P.W.-6), Ram Swarup Yadav (not examined) and Maiku Lal (not examined), who are resident of village-Dalelnagar, made another attempt to get the door of the co-accused-Shyam Lal opened but they also failed to succeed. As the informant (P.W.-1) failed to receive any information regarding whereabouts of his brother (deceased) and got suspicious that his brother might have been killed by the co-accused-Shyam Lal (since deceased) and the respondent-Ram Swarup, he (P.W.-1) put surveillance (Garabandi) around the house of the co-accused-Shyam Lal. The informant (P.W.-1) along with Shiv Charan sat on the terrace of the house of Shiv Charan. At about 4:00 A.M. in the intervening night of 17-18th July, 1977, some fire flames were sighted by them in the south-west corner of the court-yard of the house of the co-accused-Shyam Lal, which resulted in the burning of Chhappar. It created sufficient light at the place of occurrence and in that light, the informant (P.W.-1) and Shiv Charan (not examined) saw that the co-accused-Shyam Lal and the respondent-Smt. Chhoti (since deceased) were pouring Kharphoos whereas the respondent-Ram Swarup was also pouring diesel from a can. The informant (P.W.-1) and Shiv Charan (not examined) got frightened and remained silent till morning. They made another attempt to get the door of co-accused-Shyam Lal opened but again they could not succeed. On 18.07.1977 at about 10:00 A.M., Ramdhan (P.W.-2) (Village Pradhan) resident of village-Garhi and so many people of villages i.e. Dalelnagar and Kumharpurwan gathered there. Ramdhan (P.W.-2) (Village Pradhan) also requested co-accused-Shyam Lal to open the door but the co-accused-Shyam Lal refused to do so. Thereupon Ramdhan (P.W.-2) asked one Babu Ram (P.W.-3) to enter into the house of the co-accused-Shyam Lal. Thereupon Babu Ram (P.W.-3) entered into the house of the co-accused-Shyam Lal with the help of bamboo ladder and opened the door. Thereafter, the informant (P.W.-1) and other witnesses entered into the house of the co-accused-Shyam Lal and saw that the co-accused-Shyam Lal, the respondent-Smt. Chhoti (since deceased) and the respondent-Ram Swarup were burning the body of the deceased. Seeing the informant and other witnesses, the respondent-Ram Swarup managed to escape from the place of occurrence through back window whereas the co-accused-Shyam Lal and respondent-Smt. Chhoti (since deceased) were caught on the spot. When the co-accused-Shyam Lal was interrogated by Ramdhan (P.W.-2) (Village Pradhan), he admitted that he along with the respondent-Smt. Chhoti (since deceased) and the respondent-Ram Swarup had killed the deceased and packed the dead body of the deceased in a jute bag but they failed to take it out as they were surrounded by the informant (P.W.-1) and other witnesses. He further confessed that he along with other accused were burning the body of the deceased in order to destroy the evidence.5. 	The informant (P.W.-1) got the Tahrir (Ext.-Ka-1) written by Babu Ram (P.W.-3) and leaving the semi burnt body of the deceased, at the place of occurrence, reached the P. S.-Kamlapur and lodged the F.I.R. at 3:05 P.M. on 18.07.1977. The said information was entered in G.D. No.-160 on the same day by Head Constable namely Bashir Ahmad (P.W.-8) and First Information Report (Ext. Ka-15) was registered as Case Crime No.60/1977 in the presence of Sri Uday Narain Singh, (P.W.-7), S.O., P.S.-Kamlapur, who took the investigation of the case, recorded the statement of Jagdish Singh (P.W.-1) and proceeded to place of occurrence. When he reached the place of occurrence, he found that semi burnt dead body of the deceased was lying in the kitchen of co-accused-Shyam Lal under his chhappar. He also found that both the co-accused-Shyam Lal and the respondent-Smt. Chhoti (since deceased) were present inside the house and arrested them. He inspected the body of the deceased and recovered half burnt cotton from mouth of deceased.6.	The inquest proceeding of dead body of the deceased was conducted, inquest report (Panchnama) (Ex.-K2-A) as well as other relevant papers required for post-mortem examination were prepared and after sealing the dead body of the deceased, the same was handed over to Constable-Indira Narain Tewari (P.W.-9) and Chaukidar Shiv Ram (not examined) with a direction to proceed for District-Hospital, Sitapur for postmortem examination.7.	Udaya Narain Singh (P.W.-7) also inspected the place of occurrence and prepared the site plan (Ext.Ka-11), recovered the half burnt tat, rope, piece of cloth, some bamboo pieces, half burnt ashes, and also took sample of blood stained earth from the place of occurrence. The recovery memos (Ext.Ka-7 to Ka-10) were prepared in the presence of one Gaya Prasad (not examined) and Saryu (not examined). During interrogation, the co-accused-Shyam Lal told that the deceased was killed by spear (Bhala) and the same had been put in the Ghoora of one Ram Sagar. On the pointing out of the co-accused-Shyam Lal, the said Bhala was recovered in the presence of Ramdhan (P.W.-2), Barati Lal (not examined) and Ram Sagar (not examined) and was handed over to the Investigating Officer (P.W.-7) by co-accused-Shyam Lal.8.	Dr. R. S. Agarwal (P.W.-4), the then Superintendent, P.A.C., Hospital, Sitapur, conducted the postmortem examination of the dead body of the deceased on 19.07.1977 at 3:00 P.M.. According to him, the dead body of the deceased was about two days old and the whole body was burnt from head to toes ; skull bone was visible and there was no skin or muscle present on the head. Intestines were coming out from the right lumber region Right hand and both the feet were amputated due to burn.  He found following anti mortem injuries :"Stabbed wound between 8th and 9th ribs right chest 5cm x 2cm x cavity deep underneath. 8th rib found fractured.Incised wound from mid of neck to right side of neck anteniorly 5 cm x 1 cm x trachea cut, thyriod cartilage broken and big vessels of right side cut.".9.	According to doctor, the death of the deceased was caused due to shock and haemorrhage as a result of anti mortem injuries and it could have been caused at any time after 10:00 A.M. on 17.07.1977. He prepared the postmortem report (Ext. Ka-2) at the time of examination.10.	After investigation, the charge sheet (Ext. Ka-14) under Section 302 read with 34 and 201I.P.C. was filed against the co-accused-Shyam Lal, the respondent-Smt. Chhoti (since deceased) and the respondent-Ram Swarup before the concerned Judicial Magistrate, Sitapur, who took the cognizance of offence. During committal proceeding, the co-accused-Shyam Lal died. Since the case was exclusively triable by the Court of Sessions, after providing the copies of relevant police papers, concerned Magistrate committed the case to Court of Sessions, Sitapur for trial.11.	The charges for offence underSection 302read withSection 34and201I.P.C. were framed against the respondent-Smt. Chhoti (since deceased) and the respondent-Ram Swarup which were read over to them. Both the respondents denied the charges levelled against them and claimed for trial.12.	During trial, the prosecution, in order to prove its case, examined Jaswant Singh (P.W.-1), Ramdhan (P.W.-2), Babu Ram (P.W.-3), Dr. R. S. Agarwal (P.W.-4), Bachan (P.W.-5), Mool Chand (P.W.-6), Uday Narain Singh (P.W.-7), Head Constable, Bashir Ahmad (P.W.-8) and Narain Tewari (P.W.-9).13.	Jaswant Singh (P.W.-1), Ramdhan (Pradhan) (P.W.-2), Baburam (P.W.-3), Bachan (P.W.-5) and Mool Chand (P.W.-6) are witnesses of fact whereas rest witnesses are formal witnesses.14.	After conclusion of the prosecution evidence, the statement of the respondents were recorded underSection 313Code of Criminal Procedure, 1973 (hereinafter referred to as Code) wherein they denied the prosecution evidence and stated that they have been falsely implicated. The respondent-Ram Swarup further stated that he had dispute (Jhaghra) with Village Pradhan, Ramdhan (P.W.-2) and due to that enmity, he had been falsely implicated. He further stated that all the witnesses are under the influence of Ramdhan (Village Pradhan) (P.W.-2). The respondent-Smt. Chhoti (since deceased) further stated that she is widow and her elder brother-in-law (Jeth)-Sanatan wanted to grab her land and under the conspiracy, Jagdish Singh (P.W.-1) had falsely implicated her so that she might abandoned her house. She further stated that she had litigation with Sanatan.15.	The respondents-Ram Swarup and Smt. Chhoti (since deceased) were given an opportunity to produce evidence in their defence. The respondent-Smt. Chhoti (since deceased) filed certified copies of two documents i.e. Ext.-Kha-1 and Ext.-Kha-3.  Ext.-Kha-1 is a copy of order dated 08.05.1979 passed by Munsif Biswana, Sitapur in Civil Suit No.12 of 1979 (Smt. Kapura vs. Sanatan) and Kxt.Kha-3 is the copy of  the judgment dated 29.02.1980 passed by Munsif Biswan in Civil Suit No.12 of 1979 (Smt. Kapura vs. Sanatan). These documents were filed to show that she was in litigation with her elder brother-in-law-Sanatan in respect of agricultural land.16.	The Trial Court, after hearing the learned counsel for both parties and considering the material available on record, disbelieved the prosecution story on the ground that the conduct and presence of the prosecution witnesses were unnatural and unreliable because no effort was made to lodge the first information report promptly, even when Jagdish Singh (P.W.-1) saw at 4:00 A.M. on 18.07.1977 that his brother-deceased was killed and dead body was being brunt by the respondents and co-accused-Shyam Lal. The Trial Court also disbelieved the prosecution witnesses on the ground that no effort was made to get the door opened till 10:00 A.M. on 18.07.1977 even after knowing that the deceased was killed inside the house of the co-accused-Shyam Lal and the dead body was being burnt. The Trial Court also disbelieved the prosecution witness that the deceased was being burnt by the respondents as well as co-accused-Shyam Lal by 4:00 A.M. on 18.07.1977 till 10:00 A.M. on that day. The Trial Court also disbelieved the extra judicial confession of co-accused in the absence of substantive piece of evidence.17.	The Trial Court, in view of aforesaid defect and lacuna in the prosecution case, held that the prosecution had miserably failed to prove its case beyond reasonable doubt against the respondents and accordingly, acquitted them. Aggrieved by the impugned judgment and order passed by learned Trial Court, State has preferred the present appeal.18.	We have heard Sri Badrul Hasan, learned A.G.A. for the State-appellant, Ms. Devika Singh, learned counsel for the respondent and gone through the records.19.	Learned A.G.A. has submitted that the impugned judgment and order, passed by the learned Trial Court, is against the provisions of law and also against the evidence available on record. Learned A.G.A. further submitted that the fact and evidence, that the death of the deceased was caused in the house of the co-accused-Shyam Lal  and body of the deceased was found in his house, has not been disbelieved by the Trial Court. Learned A.G.A. further submitted that the presence of respondent-Ram Swarup at the time of occurrence inside the house of co-accused-Shyam Lal i.e. place of occurrence and his culpability in the offence has been proved by the prosecution witnesses and also by the extra judicial confession of co-accused-Shyam Lal but the Trial Court did not rely on the evidence of prosecution witnesses only on the ground that they are not independent witness. Learned A.G.A. further submitted that there is sufficient evidence on record against the respondent-Ram Swarup, the prosecution has succeeded to prove its case beyond reasonable doubt, the judgment of Trial Court is liable to be set aside and the present appeal be allowed.20.	Per contra, learned counsel for the respondents submitted that the prosecution story is unnatural and unreliable. Learned counsel further submitted that the prosecution witnesses are interested witnesses and their presence and conduct on the place of occurrence are unnatural. The respondents were falsely implicated in this case due to enmity. Learned counsel further submitted that the extra judicial confession of co-accused is not admissible in evidence. Learned counsel further submitted that the presence of the respondent-Ram Swarup has not been proved by the prosecution and nothing has been recovered either from his possession or on his pointing out. Learned counsel further submitted that the ocular evidence is not supported by the medical evidence and the prosecution story is based only on surmises and conjecture, which cannot be relied upon. Learned counsel further submitted that the impugned judgment and order passed by Trial Court is well discussed and well reasoned and according to settled principle of law ; there is no illegality in the said judgment and accordingly, hence, the present appeal is liable to be dismissed.21.	We have considered the rival submissions of learned counsel for both the parties and gone through the records.22.	Jagdish Singh (P.W.-1 ), informant, star witness of the prosecution, supporting the prosecution case, has stated that he is resident of village-Kumaharanpurwa, P.S.-Kamlapur and village-Dalelnagar is situated one kilometer (K.M.) away to south of his village where co-accused-Shyam Lal and respondent-Smt. Chhoti (since deceased) were resided whereas the respondent-Ram Swarup is residing in village-Gadhi which is situated from one K.M. away to North-East of his village. He further stated that he knew very well the co-accused-Shyam Lal, the respondent-Smt. Chhoti (since deceased) and the respondent-Ram Swarup prior to the alleged occurrence. He stated that husband of the respondent-Smt. Chhoti (since deceased) had died and she used to reside with co-accused-Shyam Lal, who was notorious criminal, was convicted in 2-3 cases and was killed after one year of the alleged occurrence. He (P.W.-1) further stated that Shiv Charan (not examined) and Mool Chand (P.W.-6) are co-villager of co-accused-Shyam Lal. He further stated that there was enmity between the deceased and co-accused-Shyam Lal for last two years as they had quarreled in respect to the dispute of irrigating of their field and for the last one month co-accused-Shyam Lal was trying to have friendly relations with the deceased and informant had warned him to be cautious with the co-accused-Shyam Lal as he would not repose confidence on him. He further stated that in addition to above, the respondent-Ram Swarup was also inimical to the deceased because there was litigation regarding grove between the Saktu, Barati Pasi and the respondent-Ram Swarup wherein the deceased was supporting the cause of Saktu and Barati Pasi. He further stated that on 17.07.1977, at about 9:00-10:00 A.M., the deceased had gone with Bachan (P.W.-5) to the house of co-accused-Shyam Lal for purchasing of chaff (Bhusa) for Bachan (P.W.-5) and when the deceased did not return to his house till late night on that day, he (P.W.-1) inquired Bachan (P.W.5) whereabout of deceased, whereupon Bachan (P.W.-5) replied that he had gone with deceased to the house of co-accused-Shyam Lal to purchase the chaff (Bhusa) and since the transaction of the chaff was not finalized, the deceased stayed at the house of co-accused-Shyam Lal. He (P.W.-5) further informed that the co-accused-Shyam Lal had taken the deceased inside his house and at that time, the respondent-Ram Swarup was also present there. This witness further stated that sensing some untoward, he (P.W.-1), along with other witnesses, went to the house of co-accused-Shyam Lal and knocked his door but the respondent-Smt. Chhoti (since deceased) denied to open the door ; thereupon he (P.W.-1) with help of Ramdhan (Village Pradhan) (P.W.-2), Babu Ram (P.W.-3), Bachan (P.W.-5), Mool Chand (P.W.-6), Sobhran (not examined), Maiku Lal (not exained), Shiv Charan (not examined) and so many people of Village-Dalelnagar and Kumaharanpurwa surrounded the house of co-accused and seized his house. He (P.W.-1) further stated that he and one Shiv Charan (not examined) sat at the terrace of Shiv Charan in order to watch the activity going on inside the house of co-accused-Shyam Lal and had found that at about 4:00 A.M., some flames were sighted in the house of co-accused-Shyam Lal on the south-west corner of the house and also saw that the co-accused-Shyam Lal as well as Smt. Chhoti (since deceased) were putting hey (kharpoos) and the respondent-Ram Swarup was pouring diesel oil from can on the body of the deceased. He further stated that on the next day i.e. 18.07.1977, he (P.W.-1) with the help of other prosecution witnesses again tried to get the door of the house of co-accused-Shyam Lal opened but they did not succeed, thereupon at about 10:00 A.M. on the instructions of Ramdhan (Village Pradhan) (P.W.-2) a ladder was brought by the Babu Ram (P.W.-3) and in order to open the door of the house of co-accused-Shyam Lal, Babu Ram (P.W.-3) climbed on the wall of court-yard of the house and saw that the respondent-Ram Swarup, the respondent-Smt. Chhoti (since deceased) and co-accused-Shyam Lal were burning the body of the deceased. He (P.W.-3) jumped inside the court-yard of the house of the co-accused-Shyam Lal and opened the main door and thereafter, some people including the prosecution witnesses entered into the house of co-accused-Shyam Lal. The co-accused-Shyam Lal and the respondent-Smt. Chhoti (since deceased) were caught at the place of occurrence but the respondent-Ram Swarup managed to escape therefrom through back side window of the house of the co-accused-Shyam Lal. He further stated that the co-accused-Shyam Lal made extra judicial confession to Ramdhan (P.W.-2) that he and the respondent-Smt. Chhoti (since deceased) had caught the deceased and the respondent-Ram Swarup had killed the deceased by spear (Bhala). He (Shyam Lal) further confessed that due to  (Garhabandi) of his house, they failed to take out the dead body of the deceased from his house and hence they were disposing the dead body by burning it. Thereafter, he (P.W.-1) reached the police station and lodged the first information report on 18.07.1977 at 15:05 P.M.23.	Bachan (P.W.-5) is also resident of village-Kumaharanpurwa and according to the prosecution case, he and deceased had gone to the house of co-accused-Shyam Lal (since deceased) to purchase the chaff (Bhusha) for Bachan (P.W.-5). The alleged occurrence was happened in the month of July. Bachan (P.W.-5) has admitted that he had eighteen Bigha agricultural land and had only four Goi (Oxen) and one buffallow. In addition to it, he was also cultivating seven Bigha agricultural land on batai. He has further admitted that he had sufficient chaff (Bhusa) for two months of his animals and had also bought some chaff from his uncle prior to two months of occurrence.24.	In our view, the statements of prosecution witnesses i.e. Jagdish Singh (P.W.-1) and Bachan (P.W.-5), that the deceased had gone to the house of co-accused-Shyam Lal, to purchase the chaff (Bhusa) for Bachan (P.W.-5), who had already sufficient chaff (Bhusa) at the time of occurrence, are unreliable because if there was no urgent necessity for purchasing Bhusa to Bachan (P.W.-5), the conduct of deceased to go for purchasing of Bhusa for Bachan (P.W.-5) to the house of co-accused-Shyam Lal, who was inimical to him and was a notorious criminal and staying at his house without any justification in the presence of the respondent-Ram Swarup, who was also inimical to deceased, is highly unnatural and improbable. This inherent defect is fatal to the prosecution case.25.	According to prosecution, apprehension, that some untowards might have been caused to deceased by co-accused-Shyam Lal, was caused to Jagdish (P.W.-1) on 17.07.1977 at 10:00 P.M. when Bachan (P.W.-5) informed him that deceased was carried by co-accused-Shyam Lal inside his house in presence of respondent-Ram Swarup and he (P.W.-1) could not succeed to get the door of house of co-accused-Shyam Lal opened. Such apprehension further strengthened when he (P.W.-1) saw on 18.07.1977 at about 4:00 A.M. that respondent-Ram Swarup was burning the dead body of deceased with the help of co-accused-Shyam Lal and respondent-Smt. Chhoti (since deceased), but F.I.R. of the occurrence was lodged by him on 18.07.1977 at 3:05 P.M. Thus huge delay has been caused in lodging F.I.R. It is settled principle of law that undue delay in lodging F.I.R., if not properly explained, is fatal in each and every cases. In this case, prosecution has failed to explain the delay caused in lodging the F.I.R. and explanation given by Jagdish (P.W.-1) for delay in lodging the F.I.R. that if he had gone to the Police Station or had gone to call the Chaukidar, his companions might have lifted  the Garabandi, is not reliable and has rightly been disbelieved by Trial Court on the ground that he (P.W.-1) did not even sent anyone to his house to call his family members who could go to the police station or atleast to call the Chaukidar of the village. Failure of the prosecution to explain the delay, caused in lodging the F.I.R., has further created serious doubt and loopholes in the prosecution case.26.	In addition to the above, there is another lacuna in the prosecution story which also created it wholly unreliable because according to Jagdish Singh (P.W.-1) when he along with other witnesses entered into the house of the co-accused-Shyam Lal, the co-accused-Shyam Lal and the respondent-Smt. Chhoti were caught on the spot whereas the respondent-Ram Swarup managed to escape from the place of occurrence. This version has also been repeated by Ramdhan (Village Pradhan) (P.W.-2), Babu Ram (P.W.-3) and Bachan (P.W.-5).  None of the prosecution witnesses has stated that the respondent-Ram Swarup had run away from the place of occurrence with any weapon. Further all the witnesses have stated that the co-accused-Shyam Lal and respondent-Smt. Chhoti (since deceased) were detained at the place of occurrence till the police arrived there and Investigating Officer (P.W.9) has stated that he had arrested the co-accused-Shyam Lal and the respondent-Smt. Chhoti (since deceased) from the place of occurrence on 18.07.1977 at about 18:30 P.M.  According to this witness, the spear (Bhala) used in the occurrence, was recovered from Ghoora of one Ram Sagar on the pointing out of  the co-accused-Shyam Lal at 8:00 P.M. on 18.07.1977. Thus, if the house of the co-accused was surrounded by the prosecution witnesses since 17.07.1977 at about 10:00 P.M. and the co-accused-Shyam Lal did not succeed to escape from the place of occurrence as he was caught and arrested, then how the spear used in the occurrence was screened inside the Ghoora of Ram Sagar by the co-accused-Shyam Lal has not been explained by the prosecution side. Thus, on this point, the prosecution case further becomes doubtful.27.	In addition to above, according to the prosecution case, on the basis of extra judicial confession made by co-accused ; the deceased was killed by the respondent-Ram Swarup by using spear (Bhala) but according to Dr. R. S. Agarwal (P.W.-4) two anti mortem injuries were found on the body of the deceased ; one was stabbed wound and another was incised wound. In cross-examination, this witness has fairly admitted that injury no.2 i.e. incised wound is not possible by using spear (Bhala) and it would have been caused by any sharp edged weapon. No sharp edged weapon was recovered by any witnesses including Udai Narain Tiwari, S.I., Investigating Officer, (P.W.-7) from the place of occurrence. Prosecution is silent as to how the incised wound would have been caused on the person of deceased. On this account, also the prosecution case becomes doubtful.28.	In addition to above, further according to prosecution, the alleged offence was caused inside the house of co-accused-Shyam Lal r/o village-Dalelnagar and at the time of occurrence, so many people of Village-Dalelnagar i.e. Shiv Charan (not examined), Sobhran (not examined), Mool Chand (P.W.-6), Ram Swarup Yadav (not examined), Maiku Lal (not examined) had appeared at the place of occurrence and made efforts to get the door of the house of co-accused-Shyam Lal opened but they failed to succeed. Further, according to prosecution, these people along with other co-villager of Village-Dalelnagar surrounded the house of co-accused-Shyam Lal but the prosecution has failed to produce any witness of Village-Dalelnagar except Mool Chand (P.W.-6) who did not support the prosecution story because other prosecution witnesses i.e. Jagdish  Singh (P.W.-1), Babu Ram (P.W.-3), Bachan (P.W.-5) are resident of Village-Kumharpurwa whereas Ramdhan (P.W.-2) is the resident of Village-Harpalpur. The prosecution has failed to explain as to why any person, who is resident of Village-Dalelnagar, were not produced in support of prosecution case and even Shiv Charan on whose terrace Jagdish Singh (P.W.-1), sat with him and saw that the respondents were burning deceased, was also not produced. Non production of any witness of Village-Dalelnagar is also fatal to the prosecution case.29.	There is one another reason why the prosecution case becomes further doubtful. According to the prosecution, when the prosecution witnesses failed to get the door of the house of co-accused-Shyam Lal opened, they surrounded that house and Jagdish Singh (P.W.-1) along with Shiv Charan (not examined) sat at the terrace of the Shiv Charan in order to watch the activity happened inside the house of  co-accused-Shyam Lal and found that at about 4:00 A.M. flames were sighted in the south-west corner of the court-yard of the house of the co-accused-Shyam Lal and also saw that the co-accused-Shyam Lal, the respondent-Smt. Chhoti (since deceased) were pouring Kharphoos whereas the respondent-Ram Swarup was also pouring diesel from a can on the body of the deceased. Shiv Charan was not examined by the prosecution. Jagdish Singh (P.W.-1), in his cross-examination, has admitted that in the intervening night of the occurrence, it was raining the whole night. He has further admitted that he (P.W.-1) told the Investigating Officer that it was raining in the night of the occurrence. He further stated that he had put the plastic seat upon him in the rainy night but persons, who had surrounded the house of co-accused-Shyam Lal had not put any plastic seat (barsati) while the night of the occurrence was very rainy night. In our view, if it was so rainy night that Jagdish Singh (P.W.-1) had covered himself by a plastic seat in the night of the occurrence, his statement, that he saw flames inside the house of co-accused-Shyam Lal due to fire, is self contradictory and not trustworthy, which makes his statement that he had seen the respondent-Ram Swarup, pouring diesel oil on the body of the deceased and was present inside the house of co-accused-Shyam Lal, unreliable and doubtful.30.	So far as the consideration of extra judicial confession made by co-accused-Shyam Lal referred herein above against respondent-Ram Swarup is concerned, the Trial Court has disbelieved the statement of the prosecution witnesses in the absence of substantive piece of  evidence. The confession of co-accused is relevant underSection 30of the Evidence Act, 1872, which reads as under :-"S. 30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.--"When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.Explanation.--"Offence", as used in this section, includes the abetment of, or attempt to commit the offence.Illustrations :(a) A and B are jointly tried for the murder of C. It is proved that A said--"B and I murdered C". The Court may consider the effect of this confession as against B.(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said--"A and I murdered C". This statement may not be taken into consideration by the Court against A, as B is not being jointly tried."(Emphasis supplied)31.	Although extra judicial confession is very weak type of evidence but such evidence can be taken into consideration against respondent-Ram Swarup, when it is also used against the co-accused-Shyam Lal. One of the essential condition for taking into consideration of such confession against another co-accused is that both the accused must have been jointly tried before the Trial Court and if the accused has not been tried jointly before the Trial Court, the extra judicial confession made by him cannot read against another co-accused and such confession is inadmissible in evidence.32.	In Achey Lal Singh v. Emperor, AIR 1947 Patna 90 DB, Hon'ble Court held as under :"The principle underlyingSection 32(3) is that when a person makes a statement rendering himself liable to criminal prosecution the statement is likely to be a true statement. The section can, therefore, have no application to a statement of a person against whom there is already in existence evidence which would inevitably lead to his prosecution and might by itself lead to his conviction. Consequently, where a person makes a confessional statement incriminating other accused but dies before the commencement or completion of the inquiry his statement is inadmissible either underSection 30orSection 32(3) of theEvidence Act, in a trial of the other accused."(Emphasis Supplied)33.	Now a question arises whether co-accused-Shyam Lal was jointly tried with the respondent-Ram Swarup in this case.34.	It is settled principle of law that no criminal proceeding starts unless cognizance of the offence is taken by the concerned Magistrate/Judge under the relevant provisions of Chapter XIV of the Code and if the offence is exclusively triable by the Court of Sessions, it was committed to the Court of Sessions after complying the provisions of Chapter XVI of the Code. In addition to it, Chapter XVII deals with the framing of charges and Chapter XVIII of the Code deals with trial before the Court of Sessions.Sections 190,193,209,223,225,226,227and228Cr.P.C. are relevant in the context of this case, which are as follows :Section 190:- Cognizance of offences by Magistrates :-"(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence -(a) upon receiving a complaint of facts which constitute such offence;(b) upon a police report of such facts ;(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."Section 193: - Cognizance of offences by Courts of Session :-"Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."Section 209: - Commitment of case to Court of Session when offence is triable exclusively by it :-"When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-(a) commit, after complying with the provisions ofsection 207orsection 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;(d) notify the Public Prosecutor of the commitment of the case to the Court of Session."Section  223:- What persons may be charged jointly "-"The following persons may be charged and tried together, namely:-(a) persons accused of the same offence committed in the course of the same transaction;(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;(c) ..................(d) ..................(e) ....................(f) ...................(g) ...................Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons wold not be prejudcially affected thereby, and it is expedient so to do, try all such persons together."Section 225:- Trial to be conducted by Public Prosecutor :-"In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor."Section 226:- Opening case for prosecution :-"When the accused appears or is brought before the Court in pursuance of a commitment of the case undersection 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused."Section 227:- Discharge :-"If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."Section 228:- Framing of charge :-"(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate (or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or , as the case may, the Judicial Magistrate of the first class, on such date as he deems fit, and and thereupon such Judicial) shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."35.	Thus, it is clear that as soon as the police report is filed before the competent Magistrate, if the Magistrate finds that offence is exclusively triable by the Court of Sessions, he, after compliance of necessary requirements as provided inSection 209of the Code, shall commit the offence to the Court of Sessions and the Court of Sessions, after examining the accused and hearing learned counsel for prosecution as well as defence, either will discharge the accused or frame charge against him. In addition to above, if trial of more than one accused is to be conducted before the concerned Court, all the accused may be charged and tried together subject to the provisions ofSection 223of the Code.36.	Thus, it is further clear that the accused, whose case was not committed to the Court of Sessions with other accused and he was not charged with any offence either due to his death or for another reason whatsoever, it cannot be said that he was such co-accused, who was jointly tried with other co-accused as required inSection 30of Evidence Act. In the present case, the co-accused-Shyam Lal had died before the commencement of trial, his case was not committed for trial by the concerned Magistrate, hence, he was not charged and tried by the Trial Court for any offence. Thus, it cannot be said that the respondent-Ram Swarup was jointly tried with co-accused-Shyam Lal in this case, hence, extra judicial confession of co-accused-Shyam Lal cannot be read against the respondent-Ram Swarup.37.	It is settled principle of law that the accused will be presumed as innocent unless and until the prosecution has succeeded to prove its case beyond reasonable doubt and the presumption of innocence of accused is further strengthened if he is acquitted by the Trial Court after considering the material evidence available on record. In appeal against acquittal the prosecution has to show that gross mistake has been committed by the Trial Court in appreciating the evidence on record or application of settled principle of law.38.	Hon'ble the Apex Court in Surajpal Singh and others Vs. State, AIR 1952 SC 52 held as under :-"It is well-established that in an appeal undersection 417of the Criminal Procedure Code, the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well-settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."(Emphasis supplied).39.	It is also well settled principle of law that in an appeal against acquittal, if two views are possible, one is in favour of accused-person and judgment of Trial Court is not illegal or manifestly perverse, the appellate Court should not disturb the order of acquittal.  Hon'ble the Apex Court inState of Madhya Pradesh vs. Mukesh and others, (2007) 2 SCC 680 held as under :-"Moreover, it must be borne in mind that we are dealing with a judgment of acquittal passed by the High Court. If two views are possible, ordinarily this Court would not interfere therewith. The State has not been able to show any illegality in the judgment of the High Court. We, therefore, do not intend to interfere therewith. The appeal is dismissed."40.	In the light of above discussions, we are of the view that the impugned judgment and order passed by Trial Court is well reasoned, well discussed and requires no interference. The prosecution has miserably failed to prove its case beyond reasonable doubt and there is no illegality or infirmity in the impugned judgment and order dated 01.01.1982 passed by Trial Court in Sessions Trial No.382 of 1979, whereby the respondents-accused were acquitted. The appeal is liable to be dismissed.41.	The judgment and order dated 01.01.1982 passed by Trial Court in Sessions Trial No.382 of 1979 is affirmed. The appeal lacks merit and is dismissed.42.	The respondent-Ram Swarup is in jail. He shall be released forthwith, if not wanted in any other case.43.	Copy of this judgment be sent to District Sessions Judge, Sitapur with Lower Court Record for information and compliance.(Virendra Kumar Srivastava)   (Anil Kumar,J.)\n \nOrder Date :- 29.04.2020\n \nMahesh