Court No. - 42

Case :- GOVERNMENT APPEAL No. - 431 of 2023

Appellant :- State of U.P.

Respondent :- Jitendra Agnihotri And Others

Counsel for Appellant :- Ashutosh Kumar Sand

Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Ms. Nand Prabha Shukla,J.

1. Heard Sri K.P. Pathak, learned A.G.A.for the appellant.

2. The Government Appeal has been filed praying to set aside the judgment and

order dated 05.07.2023 in Session Trial Trial No.161 of 2016 (State Vs. Jitendra

Agnihotri, Smt. Nidhi Agnihotri w/o Jitendra Agnihotri and Sanjesh Kumar) under

Sections 302, 201 I.P.C. P.S. Hathras Gate, District - Hathras, related to Case Crime

No.06/2016. By the impugned judgment and order, all the accused persons have

been acquitted on the ground that chain of circumstantial evidence is not complete

and, therefore, giving the benefit of doubt the learned trial court has acquitted all

the accused persons.

3. We have heard learned A.G.A. and perused the impugned judgment. We find

that the learned trial court has recorded detailed findings of fact after meticulous

appreciation of evidences in paragraph nos. 29 to 66 of the impugned judgment.

The entire case of the prosecution is based on some alleged photographs in an

alleged pen drive allegedly found from the almirah of the decased Satendra

Sharma.

4. Neither the source of photographs contained in the pen drive could be proved

nor mobile phone of the accused and the deceased were recovered. The accused

Nidhi Agnihotri with whom illicit relation of the deceased has been alleged, has

completely denied the photographs and stated that it is only on account of trick

photography that her face has been affixed. The learned trial court has also found

that so far as illicit relation on the basis of photographs contained in pen drive is

concerned, if the deceased is a suspected one of having illicit relationship with

Nidhi Agnihotri then guilty suspected is the Jitendra Agnihotri. Learned trial court

has also found serious inconsistency in evidence of P.W. 3 and P.W. 4.

5. Considering the findings recorded in the impugned judgment, we find that the

prosecution has failed to complete the chain of circumstantial evidence on the

touch stone of golden principle settled by Hon'ble Supreme Court in the case of

Sharad Birdhi Chand Sarda Vs. State of Maharashtra, (AIR 1984 SC 1622)

which are as follows:

"(i) The circumstances from which the conclusion of guilt is to be drawn

should be fully established.

(ii) The facts so established should be consistent with the hypothesis of

guilt and the accused, that is to say, they should not be explainable on

any other hypothesis except that the accused is guilty;

(iii) The circumstances should be of a conclusive nature and tendency;

(iv) They should exclude every possible hypothesis except the one to be

proved; and

(v) There must be a chain of evidence so complete as not to leave any

reasonable ground for the conclusion consistent with the innocence of

the accused and must show that in all human probability the act must

have been done by the accused."

6. We do not find any apparent factual or legal error in the impugned judgment.

7. For all the reasons aforestated, we do not find any good reason to grant leave to

appeal. Therefore, the application for leave to appeal is rejected. Consequently,

the appeal also stands dismissed.

Order Date :- 13.10.2023/vkg

Digitally signed by :-

VINOD KUMAR GOSWAMI

High Court of Judicature at Allahabad