Sunday, 8 December 2019

Whether accused can take advantage of any act of commission/omission of Investigating Officer?

 It
is well-settled that any omission on the part of the Investigating
Officer cannot go against the prosecution case. If the Investigating
Officer has deliberately omitted to do what he ought to have done in
the interest of justice, it means that such acts or omissions of
Investigating Officer should not be taken in favour of the accused.
Any act of commission/omission of the Investigating Officer cannot
go to the advantage of the accused. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1790-1791 OF 2019

JAI PRAKASH  Vs  STATE OF UTTAR PRADESH

R. BANUMATHI, J.
Dated:November 28, 2019


Leave granted.
2. These appeals arise out of the impugned judgment dated
16.11.2018 passed by the High Court of Judicature at Allahabad in
Criminal Appeal Nos.2403 and 5829 of 2005 whereby the High
Court allowed the appeals thereby setting aside the conviction of
respondents-accused Nos.1, 2 and 4 passed by the trial court under
Sections 302 IPC and 120B IPC and acquitted them of the charges
under Sections 302 IPC and 120-B IPC.
3. Being aggrieved by the acquittal, the appellant-complainant
has preferred Criminal Appeals arising out of SLP(Crl.) Nos.269-70
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of 2019. The State of Uttar Pradesh has filed the other Criminal
Appeals arising out of SLP(Crl.) Nos.288-89 of 2019.
4. Briefly stated case of the prosecution is as under:-
Complainant-Jai Prakash and deceased Ravi Prakash are
real brothers. On 17.11.1992 shortly prior to 09.00 am, the
appellant-complainant came back home after relieving himself near
the Urai bus stand. At that time, he noticed the accused persons
sitting with arms in their possession in the flour mill of Shankar Teliaccused
No.3 (since acquitted by the trial court). Complainant
came to his house. At that time, Sanjay Mishra and Ajay Kumar
(PW-3) came to the house of deceased for discussion regarding the
work of electric decoration in connection with the marriage of
daughter of one Maiku Soni. The appellant sent Ravi Prakash to
bring gutkha for Ajay Kumar (PW-3) and Sanjay Mishra. After
purchasing gutkha when the deceased was returning from the shop
and reached in front of accused No.3-Shankar Teli’s flour mill,
accused Bhupendra Yadav (A2) armed with double barrelled gun,
accused Raju Teli (A4) armed with single barrelled gun and accused
Lallu @ Lal Diwan (A1) armed with country made pistol, caught hold
of the deceased Ravi Prakash. Ravi Prakash tried to free himself by
raising alarm. Accused Bhupendra Yadav fired bullet in the chest of
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the deceased Ravi Prakash, accused Raju Teli fired in the leg and
accused Lallu @ Lal Diwan fired in the jaw of the deceased. Ravi
Prakash fell down on the spot. Appellant-Jai Prakash, Ajay Kumar
(PW-3) and Sanjay Mishra who saw the occurrence rushed to the
spot to save the deceased Ravi Prakash. On seeing them coming,
accused persons came out of the flour mill and fled away from the
scene of occurrence.
5. As per the complainant, motive for the commission of the
offence was the previous enmity harboured by accused Bhupendra
Yadav with the family of the appellant due to newspaper publishing
regarding the activities of accused Bhupendra Yadav by another
brother of the appellant namely Om Prakash, in the weekly journal
August Nama. Due to which, accused Bhupendra Yadav had
beaten up Om Prakash and Om Prakash lodged complaint against
accused Bhupendra Yadav. Sometimes prior to the occurrence,
accused Bhupendra Yadav had beaten up the appellant also and on
the basis of the complaint, a case was registered against accused
Bhupendra Yadav. According to the appellant, as a consequence of
the said enmity, Ravi Prakash was fired at by the accused and
murdered.
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6. Regarding the occurrence, PW-1-Jai Prakash got the
complaint written by one Munni Lal and on the same day at 09.30
am, the appellant lodged the same before the Police Station Rath,
District-Hamirpur. Based on the complaint, FIR in Crime No.474 of
1992 (Ex.-Ka.3) was registered against the accused under Sections
302 IPC and 120B IPC. Investigation of the case was taken up by
the Investigating Officer-PW-5-SI-Shobha Mani Tripathi. The
Investigating Officer went to the place of occurrence and under his
instructions, SI-R.N. Singh held inquest on the body of deceased
Ravi Prakash. The dead body of Ravi Prakash was sent to hospital
for post-mortem examination. SI-R.N. Singh took sample of simple
and blood-stained earth from the scene of occurrence and
recovered a pair of chappal of the deceased (Ex.-Ka.10) and packet
of kisaan gutkha (Ex.-Ka.11) and prepared recovery memo.
7. On the same day i.e. 17.11.1992 at about 04.15 pm, dead
body of Ravi Prakash was sent to Rajkiya Purush Chikitsalaya, Rath
where post-mortem was conducted on the dead body by Dr. B.K.
Gupta (PW-2) who noted the following injuries:-
(i) A firearm lacerated wound of entry on left side of chest, 4 cm
below the medial left clavicle and 3 cm left to midline of chest.
(ii) Multiple firearm lacerated wound of exit on left side of scapular
region, 3 cm left to midline of back.
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(iii) A firearm lacerated wound of entry on right side lower jaw, 5 cm
right to the tip of chin.
(iv) A firearm lacerated wound of entry on back of right thigh, 7.5 cm
above the knee joint.
(v) A firearm lacerated wound of entry on right thigh, 20 cm above the
knee joint.
(vi) A firearm lacerated wound of exit on antero right thigh, 10 cm
above knee joint.
(vii) Multiple abrasion on medial aspect of right leg above the medial
malleolus.
PW-2-Doctor opined that the death of the deceased was due to
haemorrhagic shock as a result of ante-mortem injuries and issued
Ex.-Ka.2-Post-Mortem Certificate. After completion of investigation,
charge sheet was filed against all the four accused under Sections
302 IPC and 120B IPC.
8. When questioned, all the accused denied the charges and
pleaded not guilty. To bring home the guilt of the accused, the
prosecution examined total six witnesses - eye witnesses PWs 1
and 3 and Doctor-PW-2 and IO (PW-5) and other witnesses. Upon
consideration of the evidence, the trial court convicted accused
Nos.1, 2 and 4 under Sections 302 IPC and 120B IPC and
sentenced them to undergo life imprisonment. The trial court held
that the evidence of eye witness-PW-1-Jai Prakash, brother of
deceased and PW-3-Ajay Kumar are natural and acceptable. The
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trial court held that PW-3-Ajay Kumar has given satisfying reasons
for his presence at the house of PW-1 and the presence of PW-3
outside the house of PW-1 is natural and cannot be doubted.
Insofar as the question of non-examination of Sanjay Mishra and
other persons in the mohalla, the trial court held that in the present
social conditions and circumstances, independent witnesses are
apprehensive that if they appear as witnesses in the criminal cases,
their future will not be safe and therefore, non-examination of the
independent witnesses will not affect the prosecution case. After
referring to the post-mortem report and the evidence of PW-2-
Doctor, the trial court held that the medical evidence corroborates
the evidence of PWs 1 and 3. The trial court also held that nonrecovery
of the guns and the contradictions pointed by the accused
in the evidence of PWs 1 and 3, would not affect the case of the
prosecution. With those findings, the trial court convicted accused
Nos.1, 2 and 4. However, the trial court gave benefit of doubt to
accused No.3-Shankar Teli and acquitted him.
9. Being aggrieved, the respondents-accused Nos.1, 2 and 4
have preferred appeals before the High Court. By referring to the
contents of the FIR (Ex.-Ka.3), the High Court held that within short
time, it is least possible for an illiterate person like PW-1 to lodge a
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complaint with such details and the possibility cannot be ruled out
that the First Information Report has been lodged after discussion
and on the advice of Om Prakash. After referring to the deposition
of PW-1 and PW-3, the High Court held that the presence of the
witnesses at the place and at the time of occurrence appears to be
doubtful. After referring to Post-Mortem Report, the High Court
further held that in the Post-Mortem Report, it is mentioned that the
large intestine of deceased was full and therefore, death might have
taken place before Ravi Prakash attended nature call as generally,
people attend the call of nature in the morning and it is least
possible that the deceased has not attended the call of nature
before 09.00 am. Doubting the presence of PW-3 at the place and
time of occurrence, the High Court held that PW-3 could not
properly explain the reason as to why he went to the house of PW-1
and his version appears unnatural. Pointing out that there was
motive for Om Prakash to instigate his brother PW-1 to make false
allegations against the accused on the murder of his brother Ravi
Prakash, the High Court held that accused Nos.1, 2 and 4 deserve
to be given benefit of doubt. With those findings, the High Court
allowed the appeals filed by the accused and set aside their
conviction and sentence passed by the trial court and acquitted
them.
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10. Taking us through the evidence and the judgment of the trial
court as well as the High Court, Mr. R. Basant, learned Senior
counsel for the appellant has submitted that PW-1 has clearly stated
each and every detail of the incident which is amply corroborated by
the evidence of PW-3 and the evidence of PWs 1 and 3 are natural
and their evidence is consistent with the medical evidence as well
as the case of the prosecution. It was further submitted that
considering the well-settled position, the trial court recorded the
finding that the general public are reluctant to come forward to
depose before the court and it is not proper to reject the case of the
prosecution for non-examination of the independent witnesses. It
was submitted that the High Court erred in holding that nonexamination
of the independent witnesses and Munni Lal-scribe of
the complaint is fatal to the prosecution case. Learned Senior
counsel further submitted that the lapses in the investigation like
non-sending of the blood-stained earth and sample earth taken from
the scene of occurrence and non-recovery of “empties” from the
scene of occurrence and other lapses would not affect the
prosecution case and the High Court erred in reversing the
conviction and acquitting the accused.
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11. Mr. Basava Prabhu S. Patil, learned Senior counsel appearing
for accused No.2-Bhupendra Yadav submitted that the motive is
attributed to Om Prakash-brother of PW-1 and when the accused
were having such enmity with Om Prakash, it is not known as to
why the accused should attack Ravi Prakash and no injury was
caused to PW-1 who was easily available to the accused even
before Ravi Prakash passed through the flour mill of Shankar Teli
(PW-3). The learned Senior counsel further submitted the PW-3 is
a chance witness and as such, his presence in the house of PW-1 is
not natural and PW-3 could not have witnessed the incident. It was
further submitted that the High Court rightly pointed out the
improbability of the occurrence that the accused who were waiting
in Shankar Teli’s flour mill, would not have anticipated that Ravi
Prakash would pass through the flour mill and considering the
improbability of the prosecution case, the High Court rightly
reversed the conviction and the impugned judgment warrants no
interference.
12. Mr. P.K. Sharma, learned counsel appearing for accused
No.4-Raju Teli submitted that the conduct of PW-1, brother of
deceased was unnatural as he made no attempt to save his
younger brother rather he was interested only in preparing the
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complaint (Ex.-Ka.3) and going to the police station. Learned
counsel further submitted that the Post-Mortem Report shows four
gun-shot injuries which are not in consonance with the oral
evidence and the discrepancies between the oral and medical
evidence has not been properly explained. The learned counsel
submitted that PW-3 is a chance witness and the High Court rightly
held that his presence in the house of PW-1 at the time of incident is
unnatural. It was submitted that the prosecution case is highly
doubtful since during the investigation, neither the fire arms were
recovered nor the “empties” of the cartridges have been recovered
from the place of occurrence and no ballistic opinion had been
obtained by the prosecution to prove that the injury on the person of
the deceased were caused by the alleged fire arms used by the
accused.
13. Mr. Kartikeya Bhargava, learned counsel appearing for
accused No.1-Lallu @ Lal Diwan submitted that there were
contradictions between the evidence of PWs 1 and 3 as to whether
there was scuffle prior to the incident and this has not been properly
appreciated by the trial court. The learned counsel further submitted
that the multiple bruises found on the body of deceased has not
been properly explained by the prosecution and the High Court
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rightly reversed the conviction of the accused and the impugned
judgment warrants no interference.
14. We have carefully considered the contentions and perused
the impugned judgment and materials on record. The point falling
for consideration is as contended by the appellants, whether the
High Court without properly appreciating the evidence erred in
setting aside the conviction of the respondents-accused Nos.1, 2
and 4.
15. Case of the prosecution is that at about 09.00 am on
17.11.1992, while returning from the shop after purchasing gutkha,
deceased Ravi Prakash reached the front of flour mill of Shankar
Teli, accused Bhupendra Yadav (A2) having double barrelled gun,
accused Raju Teli (A4) armed with single barrelled gun and accused
Lallu @ Lal Diwan (A1) armed with country made pistol (tamancha),
caught hold of Ravi Prakash and Ravi Prakash raised alarm and
tried to free himself from the grip of the accused. At that time,
accused Bhupendra Yadav, Raju Teli and Lallu @ Lal Diwan fired
from their respective weapons and fired shot on the chest, leg and
jaw of Ravi Prakash respectively due to which Ravi Prakash fell
down on the spot. Appellant Jai Prakash (PW-1), Ajay Kumar (PW-
3) and Sanjay Mishra rushed to the spot to save Ravi Prakash and
on seeing them, all the three accused escaped from the place of
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occurrence. As per the complaint/FIR (Ex.-Ka.3) and also the
statement of PW-1, after his morning walk and after relieving
himself at the Urai bus stand, while coming back home, he saw the
respondents-accused Nos.1, 2 and 4 sitting in the flour mill of
Shankar Teli with arms in their possession. Case of the prosecution
is that there was previous enmity between the family of appellant
and accused Bhupendra Yadav which is the cause of murder of
Ravi Prakash. When that being the motive and if the accused were
so found armed with weapons in the flour mill of Shankar Teli, the
question arises as to why the appellant sent his brother-Ravi
Prakash to purchase gutkha from the shop of one Choco Kori. This
has not been explained by the appellant.
16. The respondents-accused Nos.1, 2 and 4 armed with
weapons were sitting in the flour mill of Shankar Teli and were
talking to each other. The motive alleged by the prosecution is that
about two years prior to the occurrence, Om Prakash-brother of the
appellant-Jai Prakash had written about the illegal activities of
accused Bhupendra Yadav and brought out news in the newspaper
due to which accused Bhupendra Yadav had assaulted Om
Prakash. In this regard, Om Prakash had lodged a criminal case in
the police station and FIR has been registered and due to this
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enmity, the accused are alleged to have committed murder of Ravi
Prakash. Both the appellant-Jai Prakash and Ravi Prakash are
brothers of Om Prakash. If the accused were looking for vengeance
of Om Prakash-brother of Ravi Prakash, why the respondentsaccused
allowed Jai Prakash (PW-1) to let go unharmed; more so,
when PW-1 was normally in the habit of going for morning walk. If
the motive for the crime is accepted, then all brothers of Om
Prakash would be targets; but here attack was on only the
deceased brother and PW-1 was spared although attackers were
fully armed and near the place of occurrence. As pointed out by the
High Court, case of the prosecution does not appear to be natural
that the respondents-accused Nos.1, 2 and 4 have attacked Ravi
Prakash who happened to pass through the flour mill by chance
after purchase of gutkha.
17. PW-3-Ajay Kumar stated that on the date of occurrence i.e.
17.11.1992, he along with Sanjay Mishra had gone to the house of
Jai Prakash (PW-1) to discuss about the electric decoration work for
the marriage ceremony of daughter of one Maiku Soni in their
mohalla. Admittedly, Ravi Prakash was the electrician by profession
who was to attend to the electric work and the decoration. It is not
explained as to why deceased Ravi Prakash who was to attend to
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the electric work and the decoration work, instead of discussing the
need of the prospective clients i.e. PW-3, would go out to purchase
gutkha. Curiously, Maiku did not accompany Ajay Kumar (PW-3)
and Sanjay Mishra to the house of Ravi Prakash for discussion. As
pointed out by the High Court, neither Maiku nor any member of the
family had gone with PW-3 to talk about the decoration for the
marriage ceremony of daughter of Maiku. This raises serious
doubts about the presence of PW-3 in the scene of occurrence and
the case of the prosecution.
18. Next, as per the deposition of PW-1, there is a goomty placed
on the square platform of Munna Musalman from which gutka can
be taken out. This goomti is at a distance of just fifteen steps from
the house of the appellant and the shop of Choco Kori where Ravi
Prakash had gone to buy the gutkha is at a distance of about 150-
200 steps, again said 100-125 steps from the house of the
appellant. It has nowhere been stated when the deceased could not
have gotten gutkha right near his house and why should he go to a
shop at some distance away from the house. Of course, PW-1
firstly stated that he gave money to Ravi Prakash to purchase
gutkha, however subsequently, he stated that in the shop of Choco
Kori, credit account was maintained. The reason stated that Ravi
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Prakash had gone to the shop of Choco Kori at a little bit far away
place to purchase gutkha leaving his prospective clients for
decoration of electric work is not quite convincing.
19. PW-3-Ajay Kumar is a resident of mohalla Mughalpura, town
and PS Rath, District-Hamirpur. In his evidence, PW-3 stated that
he along with Sanjay Mishra had gone to the house of PW-1. PW-3
further stated that he called PW-1 outside and when he was talking
to PW-1, PW-1 asked Ravi Prakash to bring gutkha from the shop
for Ajay Kumar and Sanjay Mishra. As discussed earlier, when PW-
3 had gone to the house of PW-1 to discuss about the electric
decoration work for the marriage ceremony of daughter of Maiku,
neither Maiku nor any member of his family accompanied PW-3 to
discuss about the electric work in the marriage ceremony of
daughter of Maiku. In his cross-examination, PW-3 could not explain
the reason as to why he went to the house of PW-1. The High
Court observed that PW-3 is a chance witness and expressed
doubts about the presence of PW-3 in the scene of occurrence on
17.11.1992 and we do not find any good reason to take a different
view.
20. There are several material discrepancies between the
evidence of PW-1 and PW-3 as to the occurrence. PW-3 has stated
15
that when Ravi Prakash passed through the way, the respondentsaccused
came out of the flour mill and there was a scuffle for
sometime with Ravi Prakash and the accused fired the bullet shots
from their guns and the pistol. On the other hand, PW-1 has only
stated that the respondents-accused have fired at Ravi Prakash and
has not stated anything about the scuffle. The witnesses who have
deposed in the court after considerable lapse of time of course,
cannot be expected to have photographic memory of the case. We
are conscious of the well settled position that the minor
discrepancies not touching upon the core of the prosecution case,
would not affect the credibility of the witnesses or the prosecution
case. Of course, PWs 1 and 3 have given their evidence in the
court in 2003-04 near after a decade; but they are said to have
witnessed the occurrence from a close distance. Whether there
was scuffle between Ravi Prakash and the respondents-accused is
an integral part of the main incident and the witnesses are expected
to be consistent in their version. The inconsistencies in the version
of PWs 1 and 3 as to whether there was a scuffle or not is not
explained by the prosecution which again raises serious doubts
about the prosecution case.

21. Medical Evidence: As per the deposition of PWs 1 and 3,
accused Bhupendra Yadav fired at the deceased on his chest; Lallu
@ Lal Diwan fired on the jaw and Raju Teli fired on the leg of the
deceased. As per post-mortem report dated 17.11.1992, there were
four firearm lacerated wounds. Apart from the injuries on the chest,
jaw and the leg, there was firm arm injury on the right thigh 2 cm
above the knee. PWs 1 and 3 have not explained the fourth firearm
injury; nor they have made any mention of the accused firing
multiple shots. This discrepancy between the medical evidence and
the oral evidence assumes significance in view of the elaborated
depositions made by the witnesses and the FIR which explains
minute detail of the entire incident.
22. There are also several lapses in the investigation of the case
like non-recovery of “empties” fired from the guns on the deceased,
non-recovery of fire arms used by the respondents-accused etc. It
is well-settled that any omission on the part of the Investigating
Officer cannot go against the prosecution case. If the Investigating
Officer has deliberately omitted to do what he ought to have done in
the interest of justice, it means that such acts or omissions of
Investigating Officer should not be taken in favour of the accused.
In his cross-examination, PW-5-Investigating Officer has stated that
the broken pieces of cartridges, bursts and empty shells of the

cartridges were not found on the site of the incident. PW-4-Sub-
Inspector of Police has also not made reference about the “empty
shells of cartridges” in the scene of occurrence. The prosecution
case of course, cannot be doubted merely on the ground of nonrecovery
of weapons and other piece of evidence. But in the
present case, an elaborately written FIR was registered immediately
after the occurrence i.e. at 09.30 am. The Sub-Inspector of Police
(PW-5) had promptly taken up the investigation and on the direction
of PW-5, SI-R.N. Singh took sample earth and the blood-stained
earth from the scene of occurrence and recovered a pair of footwear
of the deceased and packet of kissan gutkha and prepared recovery
memo of the same which are marked as Ex.-Ka.10 and Ex.-Ka.11
respectively. When the Investigating Officer had taken care even to
recover packet of kissan gutkha from the scene of occurrence,
curiously, the “empties” of the fired cartridges were not recovered.
The material pieces of evidence like “empties” were lost; but this
vital omission has not been explained. This factum assumes
importance particularly, in view of the fact that the FIR is alleged to
have been registered promptly at 09:30 a.m. of the occurrence
which occurred at 09:00 am. The inquest was also conducted at
10:00 a.m. and the investigation also promptly started. The
accused-respondents allegedly ran away from the scene of

occurrence immediately after shooting at the deceased thus, they
could not have possibly removed the cartridges, pieces, etc.
themselves. This is not the case of the prosecution. It is also not the
case of the prosecution that the area was cleaned and somebody
has removed the “empties”. In such view of the matter, the nonrecovery
of “bursts and empty shells of cartridges” and “broken
pieces of cartridges” from the scene of occurrence raises serious
doubt about the actual place of occurrence. As pointed out earlier,
any act of commission/omission of the Investigating Officer cannot
go to the advantage of the accused. But in a case of this nature
where FIR is said to have been registered within half an hour of the
occurrence and the investigation also commenced then and there,
we find no reason as to why the “empties” and “bursts” from the
scene of occurrence were not recovered.
23. Furthermore, as per the evidence of Investigating Officer
Shobha Mani Tripathi (PW-5), the accused were arrested on the
very next day of occurrence i.e. 18.11.1992. Even though the
accused were arrested on the very next day, the weapons used by
them were not recovered. Of course, the case of the prosecution
has to be examined de hors such omissions of the Investigating
Officer like non-recovery of weapons etc. But material

discrepancies in the evidence of PWs 1 and 3 coupled with the
unnaturalness of the prosecution case, non-recovery of weapons
and empties raise serious doubts about the prosecution case.
24. The duty of the appellate court is to consider and appreciate
the evidence adduced by the prosecution and arrive at an
independent conclusion. Like the trial court, the appellate court also
must be satisfied of its conclusion. In exercise of power under
Article 136 of the Constitution of India, in State of Uttar Pradesh v.
Punni and others (2008) 11 SCS 153, while dealing with the order
of acquittal passed by the High Court, the Supreme Court held that
it would not ordinarily interfere with the findings of the High Court
unless it is satisfied that such a finding is vitiated by some glaring
infirmity in the appraisement of evidence or such finding is perverse
or arbitrary. In the present case, the High Court has analysed entire
evidence and recorded its finding as to how the trial court has gone
wrong in not appreciating the material inconsistencies in the
prosecution case. The findings recorded by the High Court in
acquitting the respondents-accused Nos.1, 2 and 4 does not suffer
from any infirmity warranting interference with the impugned
judgment. The appeals filed by the complainant and the State of
Uttar Pradesh are liable to be dismissed.
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25. In the result, the impugned judgment dated 16.11.2018
passed by the High Court of Judicature at Allahabad in Criminal
Appeal Nos.2403 and 5829 of 2005 is affirmed and the criminal
appeals arising out of SLP(Crl.) Nos.269-70 of 2019 filed by the
appellant-Jai Prakash and criminal appeals arising out of SLP(Crl.)
Nos.288-89 of 2019 filed by the State of Uttar Pradesh stand
dismissed.
………………………..J.
[R. BANUMATHI]
………………………..J.
[A.S. BOPANNA]
.………………………..J.
[HRISHIKESH ROY]
New Delhi;
November 28, 2019

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