July 21, 2023 In Uncategorized


The division bench of the Supreme Court, comprising Justice B. V. Nagarathna and Justice Manoj Mishra, passed a judgment dated 17.07.2023 in Central Bureau of Investigation Vs. Shyam Bihari and Ors. (CRIMINAL APPEAL NO.413 OF 2013) and upheld the judgment of the Uttarakhand High Court (“High Court”). The High Court had dismissed an Application filed by the Central Bureau of Investigation (“CBI”) seeking leave to appeal under Section 378(3)[1] of the Criminal Procedure Code, 1973 (“Cr. PC”) against the Order passed by the First Additional Sessions Judge, Dehradun Trial Court in C. No. RC-5/87-SIU.II, which acquitted three policemen charged with murder while patrolling. The grounds for dismissal were that the circumstances found do not constitute a complete chain to indicate that, in all human probability, the Accused persons committed the crime.


1) On the night of 24.06.1987, Raj Kumar Baliyan (the deceased) was killed. Pramod Kumar Tyagi (PW-6) lodged an FIR (Crime No.48/87 at P.S. Sikhera), alleging that while he and Sudeep (PW-3) were travelling from Muzaffarnagar to Meerapur to attend a marriage near Bhatoda turn at about 9.30 pm the incident occurred. He stated that he was riding on one Scooter with Sudeep and the deceased was on another Scooter. Through the Scooter’s headlight, they saw three policemen standing on the road.

2) One of the policemen allegedly flashed a torchlight on them, causing them to lose control of their respective scooters, which skidded and fell. One of the policemen shot with the intention to kill, hitting the deceased, who collapsed on the spot. However, PW-3 and PW-6 managed to escape to the village, and upon receiving information, both villagers and the police arrived at the scene of the crime. In the presence of the police, the deceased was rushed to the hospital, but he succumbed to his injuries on the way.

3) Another version of the incident was lodged (Case Crime No.48A/87) at the instance of one Mahindra Singh on 25.06.1987, which stated that on 16.05.1987, a robbery took place in the village wherein one person died. As criminals were frequently visiting the village a constant vigil was maintained by the villagers as well as the police. At the time of the incident the police had been patrolling the area.

4) It was alleged in the FIR that while three police constables were patrolling the village and the villagers were keeping a watch on the night of 24.06.1987, at about 9:00 pm, a man arrived and raised an alarm, warning about 5-6 criminals approaching the village on motorcycles and scooters. Around 9:30 pm, a motorcycle stopped a little ahead of Bhatoda’s turn, followed by two scooters at a fast speed. When torch lights were flashed and the scooters signalled to stop, the rider fired a shot to kill the villagers and policemen, resulting in retaliatory fire from the police and villagers. One of the criminals (deceased) was chased and captured by the villagers. Later, more villagers arrived and informed the police that the person caught and taken to hospital was Raj Kumar, Advocate. Simultaneously, the spot was searched, and two empty shells of cartridges were recovered.

5) The investigation of the above two cases was handed over to Crime Branch-Criminal Investigation Department (CB-CID). The CBI lodged Case No.RC-5/87- SIU. II. After the investigation, CBI filed a chargesheet against the Accused persons (the Respondents) under Sections 302 (Punishment for Murder) and Section 34 (Conspiracy with Criminal Intention) of the Indian Penal Code, 1860 (IPC).

6) After taking cognizance of the police report, the Court of First Additional Sessions Judge, Dehradun, charged Anil Kumar, Shyam Bihari, and Arshad Ali (the Respondents) for committing an offence punishable under Section 302 read with Section 32 of the Indian Penal Code (IPC).


The Trial Court found PW-3 and PW-6’s testimonies inconsequential as they did not identify the Accused policemen involved in the crime. Eye-witness Shyam Singh (PW15) was deemed unreliable due to delayed disclosure and similar affidavits sent to the police.

The Trial Court considered other circumstances relied upon by the Prosecution:

(a) Empty cartridge shells found at the scene matched rifles issued to the Accused.

(b) An attempt to create a false narration of the incident in Case Crime No.48A of 1987 was observed.

(c) Out of four .303 cartridges recovered, one was fired from Anil’s rifle, and one from Shyam Bihari’s rifle, but the origin of the remaining two bullets was unclear from the prosecution’s evidence.

The Trial Court observed from the autopsy report that the deceased’s gunshot injury was caused by a .12-bore weapon, which none of the Accused possessed. Therefore, even if rifle bullets were found at the scene, they were not responsible for the injuries to the deceased. In relation to the cross version of the incident (Case Crime No.48A/87), no adverse inference was drawn against the Accused as it was not initiated by them.

The Court concluded that the Prosecution failed to prove the three policemen facing trial were responsible for the attack on Raj Kumar Baliyan (the deceased).


The State filed a time-barred appeal with a delay condonation Application and an Application for leave to appeal, but the High Court rejected the Application and dismissed the Appeal. The High Court observed that the Prosecution’s case relied on three eyewitnesses, but PW-3 and PW-6 couldn’t identify the policemen, and PW-15 was deemed unreliable. Medical evidence showed the deceased died from a .12-bore weapon, not the Accused’s rifle, making the appeal futile.


At the outset, the Apex Court observed that the High Court was correct in dismissing the Appeal as the Court had examined the relevant record to assess the Prosecution’s merit. The incident dates back to 1987, and the Appeal has been pending for over a decade. Remitting the matter to the High Court to rewrite the judgment would be unjust. As the Trial Court thoroughly analysed and discussed all evidence relied upon by the Prosecution, Court must now determine if denying leave to Appeal from the Trial Court’s judgment resulted in a miscarriage of justice.

In an appeal against acquittal, the appellate Court has the authority to reevaluate evidence and reach its conclusion without limitations. However, it should refrain from interfering with an acquittal order simply because a different view is possible. The Trial Court’s view, is based on proper evidence appreciation and not tainted by ignorance/misreading, should be respected if it is plausible.

The Prosecution’s case relies on the testimony of PW-3, PW-6, and PW-15, as well as certain circumstances. PW-3 and PW-6, who were travelling with the deceased on separate scooters, claim that men in police uniform flashed a torch at them, causing the deceased’s scooter to skid. What is important is that neither PW3 nor PW6 could identify any of the three Accused as the perpetrators of the crime. The Trial Court’s view that their testimonies are not helpful to the Prosecution against the three Accused is reasonable and not perverse.

The Trial Court found PW-15’s testimony unreliable due to detailed reasons and inconsistencies. PW-15‘s presence was not confirmed by PW-3 and PW-6. Moreover, his conduct of remaining silent for over a week and the suspicious circumstances surrounding the preparation of identical affidavits cast doubt on his credibility. The Trial Court’s decision to discard PW-15‘s testimony was justified.

The witnesses are consistent that there was a police action on the night in question, but no reliable evidence shows it was with the intent to kill. The deceased died from a .12-bore gunshot, not a rifle bullet, and no .12-bore gun was recovered from the Accused. The presence of rifle cartridge empties linked to the Accused does not establish their culpability in causing the death. After the incident, the Accused remained at the scene, yet neither PW3 nor PW6 identified them. This conduct favours the Accused and contradicts a guilty mind.

Another circumstance favouring the Accused is that they had rifles with 50 rounds each, but some of the empty cartridges found were not from their rifles, suggesting the presence of another rifle. The Prosecution evidence does not identify whose rifle it was. Additionally, if the Accused used their rifles, why would they use a country-made pistol to harm the deceased?

The fact that the Accused were patrolling the area on the fateful night is not conclusive evidence against them, as the patrolling area covered two villages. It is possible that the Accused arrived late and fired shots to chase away miscreants. However, once the testimony of PW-15 was discarded, the circumstances presented must form a complete chain to indicate that the Accused committed the crime. In this case, the circumstances do not establish such a complete chain, leading to the benefit of the doubt being extended to the Accused.

Based on the reasons stated above, the Hon’ble Court sees no reason to interfere with the High Court’s Order, and as remitting the matter for rewriting the judgment would be futile. Therefore, the Appeal is dismissed.


In conclusion, the Courts’ thorough examination of the evidence and circumstances in this case has reaffirmed the principle of “innocent until proven guilty.” Despite the Prosecution’s reliance on eyewitness testimonies and proven circumstances, they failed to establish a conclusive chain of evidence linking the Accused to the crime beyond a reasonable doubt. The credibility issues surrounding a key eyewitness and the absence of concrete evidence connecting the Accused to the alleged crime were pivotal factors in upholding the acquittal verdict. This decision highlights the significance of a fair and meticulous judicial process, where doubts are resolved in favour of the Accused. Ultimately, the dismissal of the appeal emphasizes the importance of upholding justice through the proper application of the law and the preservation of the rule of law.


Editor’s Comments – In Criminal Law an accused is deemed innocent till proven guilty. The guilt has to be established beyond reasonable doubt failing which the court will acquit the accused. Hence though it is very easy to frame a person in a criminal matter it is extremely difficult to prove that the said person is guilty. It is for this reason that acquittal of criminals is very high.





Udit Krishna


The Indian Lawyer & Allied Services



Sushila Ram

Chief Consultant

The Indian Lawyer & Allied Services


[1] Section 378(3) Appeal in case of acquittal.


(3) No appeal under sub- section (1) or sub- section (2) shall be entertained except with the leave of the High Court.



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