STATE OF U.P. Vs. SUNIL

JUDGEMENT

(1.) Present appeals have been directed against the judgment dated 23rd May, 2008 passed by the High Court of Judicature at Allahabad in Criminal Appeal No.2968 of 2007 with Criminal (Jail) Appeal No.2757 of 2007 and Capital Reference No.12 of 2007, whereby judgment and order dated 04.04.2007 passed by the learned Additional Sessions Judge, Etawah in Sessions Trial No.424 of 2000 was set aside and the accused-respondent was acquitted of the offence punishable under Sec. 302 read with Sec. 34 of the Indian Penal Code. Capital Sentence Reference for confirmation of the death sentence was consequently rejected.

(2.) Being aggrieved, the accused-respondent preferred Criminal Appeal No.2968 of 2007 and Criminal (Jail) Appeal No.2757 of 2007 before the High Court. Capital Sentence Reference No.12/2007 was made by the Additional Sessions Judge, Etawa. The High Court by its judgment and order dated 23rd May, 2008 set aside the order of conviction and sentence passed by the Trial Court and acquitted the accused-respondent. Consequently, Capital Sentence Reference No.12 of 2007 was rejected by the High Court. Hence, the State of U.P. and the complainant are before us by filing Criminal Appeal Nos.1432-1434 of 2011 and Criminal Appeal Nos.1423-1424 of 2011, respectively.

(3.) We have noticed that the High Court had allowed the criminal appeal of accused-respondent on the basis of failure on the part of the prosecution to prove its case beyond all reasonable doubt and on the basis of circumstantial evidence. The High Court in its finding made four important observations: (i) Evidence of PW-2 cannot be used against respondent herein for the reason of improvement in statement; (ii) The testimony of PW-1 showing his conduct as against human nature is not worthy of credence for the reason that he did not actually see the accused persons; (iii) Evidence of recovery of weapon and other articles may be relevant, but could not be relevant against accused-respondent herein; and (iv) Adverse inference cannot be drawn by the Court on refusal to give specimen palm impression in spite of the order of the Court.