In Ashok Upadhyaya & Anr. vs. The State of Bihar (2026), Supreme Court's Division Bench of Justices J. B. Pardiwala and K. Vinod Chandran delivered a 13-page long judgement dated September 8, 2026 wherein, it concluded:"In that circumstance, the reasonable doubt regarding a hypothesis of innocence assumes relevance. We must emphasize that despite specific overt acts alleged on the other accused, the Trial Court acquitted them, affirmed by the High Court. 21. In the totality of the circumstances, we are persuaded to give the appellants herein the benefit of doubt and, hence, we acquit them." Justice Vinod Chandran authored the judgement. Patna High Court's Division Bench of Justices Hemant Kumar Srivastava and Rajendra Kumar Mishra had delivered the 37-page long judgement dated October 1, 2018.
The High Court's judgement was authored by Justice Srivastava, wherein, he had concluded:"36. Learned trial court has convicted the appellants under section 302/34 of the Indian Penal Code and 27 of the Arms Act and I do not find any ground to interfere into the impugned judgment of conviction and sentence order and, accordingly, I feel no hesitation to dismiss this appeal. 37. On the basis of the aforesaid discussions, this appeal is dismissed and the impugned judgment of conviction and sentence order are, hereby, confirmed. Appellants are on bail. Their bail bonds stand cancelled and they are directed to surrender before the trial court within six weeks from the date of receipt of copy of the judgment to the trial court and if appellants fail to do so, the learned trial court shall take appropriate steps to procure the remand of the appellants so that they could serve their sentence."
Reversing the judgement by Justice Srivastava, Supreme Court's judgement reads: "22. The appellants shall be released from custody forthwith if they are remaining in custody and if not required in any other case. If they are on bail, their bail bonds shall stand cancelled. 23. The criminal appeal is allowed."
The prosecution case was of a murder by gunshot injury. There were five accused arrayed, out of which, three were acquitted and two convicted; the convicts were the appellants before the Supreme Court.
It all began with a dispute regarding blockage of drainage, resulting in waterlogging in front of the house of the deceased, a quarrel erupted and the two families entered into a brawl, in which Uma Upadhayay, the Appellant No. 2 was accused of shooting the deceased, while Ashok Upadhaya, Appellant No. 1 fired at the other family members, injuring them. The prosecution examined twelve witnesses and the defence three. The judgement of conviction dated October 3, 1994 under Section 302 read with Section 34 of Indian Penal Code, 1860 and Section 27 of the Arms Act, 1959 was delivered, as also the sentence dated October 5, 1994 handed down by the Additional Sessions Judge I, Aurangabad, were affirmed by the High Court; which judgment was assailed before the Supreme Court.
The fact of there being a homicide, was unequivocally proved from the medical evidence. This fact had ramifications insofar as the presence of the eyewitnesses at the scene of occurrence. A motive was alleged of the blockage of drain, which was spoken by the related witnesses and even the independent witness, PW4, a neighbour. As per the prosecution case, the accused came to the house of the deceased who was bathing his buffalo, a quarrel erupted when one of the accused exhorted the killing and Appellant No. 2 fired a shot at the deceased, killing him instantaneously. The body was said to have been carried to the police station, as is indicated in the First Information Statement (FIS) recorded from one of the sons of the deceased, PW10. In the FIS the incident was narrated, of the five accused coming to the house of the deceased and pursuant to a quarrel, on exhortation by one of them, Appellant No. 2 having shot the deceased on the left side of the chest and the others having assaulted the witnesses with lathis and Appellant No. 1 having shot at the women and children. It was stated by the informant that his brothers PW2 and PW3 also witnessed the incident and so did the villagers who converged on the scene of occurrence on hearing the altercation. The FIS did not speak of the presence of PW5 and PW6, allegedly injured witness and PW8, an independent witness.
The prosecution came with direct evidence of eyewitnesses, all of whom were close relatives of the deceased and staying in the same house. Despite villagers having converged at the point, none of them were proffered as an eyewitness. PW2, though, spoke of the incident as an eyewitness, according to him, the body of his father was taken from the place of occurrence to the hospital, as stated in cross-examination; contrary to what was stated by the first informant.
Justice Vinod Chandran observed:"In this context, we must notice that one of the defence witnesses stated that he saw the body lying on the roadside and there was Naxal-activity in the area. We must consider this deposition with the factum of the sons having taken the body to the police station from the scene of occurrence. There is no reconnaissance made of the scene of occurrence by the Police, and nothing has been recovered from the scene of occurrence. The blood stained clothes of the relatives of the deceased were also not seized and sent for medical examination....9. PW12 is the Investigating Officer (I.O), whose testimony discloses no effective investigation having been conducted. The arrest of one of the accused was made from a different police station, where he surrendered and the other accused, surrendered before Court. But for speaking of writing to the Superintendent of Police, to cancel the licence of the gun issued to one of the accused, nothing is produced to indicate one of the accused having a licence for a gun. A rod is said to have been recovered from the house of A1 which is allegedly used for cleaning the barrel of the gun. This was never produced in Court or brought in evidence. There was no attempt to take the accused into custody and carry out recoveries. More importantly, though PW10 speaks of having visited the scene of occurrence on the very same night, he did not even prepare a map of the scene of occurrence to bring out various aspects, substantiating the testimony of the eyewitnesses, including the handpump, buffalo shed or the distance of the house from the scene of occurrence and so on and so forth; all crucial corroboration for the eyewitness testimony. As far as the recovery of blood stains, the I.O had explained that it was raining heavily and there was no telltale signs found on the scene of occurrence. It is his testimony that the statements of PW5 and PW6 were taken on 25.08.2003 which is the second day from the incident."
The judgement recorded that the Doctor could not say as to whether the injury was caused by a pistol or by a gun. The expert opinion regarding the survival of a person who had sustained injury No.2 and the testimony that the injury could have been caused within 24 hours assumes relevance when we consider the defence evidence....The eyewitnesses have not stated in one voice as to where the dead body was taken. PW10 categorically stated that the dead body was taken to the police station and not the hospital while some others, including PW2 spoke of the body having been taken to the hospital. The inquest report and the testimony of I.O clearly indicate that the body was taken to the police station. PW6 in her testimony states that her father-in-law had not died immediately, and she could feel his pulse when he was taken from the scene of occurrence.
Justice Chandran observed: "14. It is surprising that the body was taken to the police station while in the normal circumstances it would have been taken to the hospital. Here we again notice the testimony of the
Doctor who conducted the postmortem, that the injury which led to the death of the deceased could not result in an instantaneous death and the person who sustained it, could survive for 3 to 6 hours."
The judgement recorded that the defence examined three witnesses, two of whom are inconsequential. In the normal circumstances, we would have discarded DW1’s evidence also but coupled with the circumstances of the case and the discrepancies coming out from the eyewitnesses’ testimonies, we cannot but notice it. 16. DW1 is a person from the adjacent village, who was on his way, to his sister’s matrimonial house to inquire about his ailing sister; on the fateful day. On the way, at night, he heard shouts and gunshots, upon which he aimed the torch light at the place from which the sound emanated. He is said to have seen a man lying prostrate with few carrying lathis and guns surrounding him. They were shouting slogans of Inqilab Zindabad. The assailants turned on him and questioned him, when he felt threatened and he fled from the spot. There was nothing recovered from the scene of occurrence, though explained as due to the heavy rains. Not even the map of scene of occurrence was prepared by the I.O. The weapons of assault, the gun and the pistol remained elusive. No attempt was made to recover or seize it, nor was even the license produced to show one of the accused having a licensed firearm. The nature of the licensed firearm would have been evident from the license, and it could have led to forensic examination of the cover of the cartridge, which was recovered from the dead body, whether it matches the type of gun for which the license was issued.
Justice Chandran observed: "18. More pertinently, the eyewitnesses speak of A1 carrying a ‘licensed’ weapon and A2 carrying a pistol. On the mere sight of a weapon, it cannot be identified as one licensed. We pertinently observe that, this smacks of premeditation to frame the accused, who is known to have a licensed weapon. But unfortunately, the I.O did nothing to produce the license and prove at least that the accused had access to such a weapon. The circumstances, as we see, do not lead solely to the hypothesis of guilt and a lingering doubt, quite reasonable in the facts and circumstances brought out by the prosecution itself, that there could be a hypothesis of innocence."
Justice Chandran drew on the decision in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116, which speaks of such hypothesis of innocence, if available, restraining the court from entering a conviction. He observed:"19. True, the said theory was propounded and followed in cases of purely circumstantial evidence. In the present case, there was direct evidence proffered by the prosecution insofar
as the eyewitnesses are concerned. However, we must emphasize that the majority of the eyewitnesses were close relatives; PW2, PW3, PW5, PW6 and PW10. We have already found that, though, the narration of the incident, more or less tallied, there are discrepancies and circumstances, which persuade us not to place an unflinching reliance on those testimonies. Related witnesses merely for their relationship with the deceased cannot be called interested witnesses. But when, from the circumstances, as in the present case, where there is found a ring of falsity in their testimonies, a closer scrutiny is warranted. If the incident occurred at the front yard of the house, then the related witnesses are not chance witnesses and could be relied on. But there is no clear substantiation in this case, as to the scene of occurrence. The independent witness PW8, though, spoke of having accompanied PW2, there was no corroboration on that aspect by PW2, making him also a doubtful eyewitness. 20. Due to the discrepancies and the inconsistencies, we are
unable to place faith on the oral testimony of eyewitnesses."
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