High Court

Appellant :- Radha Tiwari Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Ravindra Prakash Srivastava Counsel for Respondent :- G.A. Hon'ble Siddharth,J. Hon'ble Ram Manohar Narayan Mishra,J.

1. Heard Sri Ravindra Prakash Srivastava, learned counsel for the appellant; learned AGA for the State-respondent and perused the material placed on record.

2. The above noted criminal appeal U/S 413 B.N.S.S. has been preferred by the informant-appellant praying for setting aside the judgement and order dated 29.1.2025 passed by Sessions Judge, Basti, in Session Case No. 661 of 2020 (State Vs. Ajay Tiwari and another) arising out of Case Crime No.18 of 2020, under Section 323, 504, 452, 308, 304 IPC, Police Station Harraiya, District Basti, whereby trial court has acquitted the accused, Ajay Tiwari and Pratibha Tiwari.

3. Prosecution case is that informant was collecting wood kept near her house at 10:00 a.m. on 19.1.2020 alongwith her children and mother-in-law, when accused, Ajay Tiwari and his wife, Pratibha Tiwari, started abusing them and made attack on them. The informant alongwith her family members ran away and they hide themselves in their house. Respondents entered in the house of the informant and had beaten all of them by lathi, danda and bricks. Mother-in-law of the informant suffered grievous injuries and died in hospital on 21.1.2020 at about 7:30 p.m. FIR was lodged on 22.1.2020 against accused, Ajay Tiwari and his wife, Pratibha Tiwari under Sections 323, 504, 452, 304, 308 IPC.

4. After investigation charge-sheet was submitted. Subsequently charges were framed against accused, Ajay Tiwari and his wife, Pratibha Tiwari, under Sections 323 read with Section 34, 452, 308 read with Section 34, 304 read with Section 34, 504 IPC. Accused- respondent nos. 2 & 3 denied the charges and sought trial.

5. Only to prove charges accused persons, prosecution examined PW- 1, Radha Tiwari; PW-2, Raj Kumar Tiwari; PW-3, Ram Kumar Tiwari; PW-5, Dr. Sudhanshu Dwivedi; PW-6, Devendra Singh, Sub Inspector and PW-7, Inspector Mrityunjay Pathak.

6. Learned counsel for the appellant submits that there was sufficient evidence against respondent nos.2 & 3 for implicating them in this case. The prosecution proved the case against respondent nos.2 &3 beyond all reasonable doubt, but the trial court has illegally acquitted the respondent nos.2 & 3 of all charges.

7. Learned counsel for respondent no.2 has vehemently opposed the submissions advanced by learned counsel for the appellant and submitted that the trial court has recorded the clear finding of fact that there was motive for the respondent nos.2 & 3 to commit the alleged offence.

8. The appellate Court is usually reluctant to interfere with a judgment acquitting an accused on the principle that the presumption of innocence in favour of the accused is reinforced by such a judgment. The above principle has been consistently followed by the Constitutional Court while deciding appeals against acquittal by way of Article 136 of the Constitution or appeals filed under Section 378 and 386 (a) Cr.P.C. in State of M.P. Vs. Sharad Goswami,(2021) 17 SCC 783; State of Rajasthan Vs. Shera Ram, (2012) 1 SCC 602, Shivaji Sahabrao Bobade Vs. State of Maharastra, (1973) 2 SCC 793.

9. The Supreme Court in the case of Ramesh Babulal Doshi Vs. State of Gujarat, (1996) 9 SCC 225 has observed that the High Court must examine the reasons given by the trial Court for recording their acquittal before disturbing the same by re-appraising the evidence recorded by the trial court. For clarity, para 7 is extracted herein below: "Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not."

10. The Supreme Court in the case of Sadhu Saran Singh Vs. State of U.P., (2016) 4 SCC 357 has observed that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity.

11. The Supreme Court in the case Basheera Begam Vs. Mohd. Ibrahim, (2020) 11 SCC 174 has held that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If, upon analysis of evidence, two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and other of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the court might reverse an order of acquittal if the court finds that no person properly instructed in law could have, upon analysis of the evidence on record, found the accused to be "not guilty". When circumstantial evidence points to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime.

12. The Supreme Court in the case of Kali Ram Vs. State of H.P., (1973) 2 SCC 808 has observed as under: "25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought is to established by circumstantial evidence."

13. The Supreme Court again examined in State of Odisha v. Banabihari Mohapatra & Ors, (2021) 15 SCC 268 the effect of the probability of two views in cases of appeal against acquittal and held that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused, and the other to his innocence, the view which is favourable to the accused should be adopted.

14. The Supreme Court in Sujit Biswas v. State of Assam, (2013) 12 SCC 406 has reiterated the position that suspicion, however strong, cannot replace proof. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt.

15. In the background of the law discussed herein above, we have examine the trial court's findings and evidence adduced during the trial by the witnesses to test the legality and validity of the impugned order.

16. After hearing rival submissions, we find that the trial court has found that the report was made to the police station on 22.1.2020, when the incident took place on 19.1.2020. The Court has found that the explanation for the same is only that the informant, Radha Tiwari, was busy in medical treatment of her mother-in-law. Three days' delay in lodging the FIR gives ample opportunity to fabricate the allegations and lodge FIR against the persons of her choice. The motive of the incident has not been stated anywhere. PW-2 and PW-3 are not the eye-witnesses of the incident and it is only PW-1, who is eye-witness. The credibility of only eye-witness is required to be impeccable for making it basis conviction of accused. In her application before the police station and also in her examination-in-chief, PW-1 has claimed herself to be seriously injured, but no injury was found on her person. PW-1 has stated that her husband, PW-3, was present at the place of occurrence, when PW-3 stated that he had gone to Amari Bazar at the time of incident. Therefore, the statement of PW-1 is not reliable and has rightly been discarded by the trial court.

17. PW-5, Dr. Sudhanshu Dwivedi, found only injury of 3 X 5 cm. in form of swelling on top and back on the head of the deceased located 8 cm. from right ear. The doctor did not found any blood from the wound. After opining the head, blood clots were found. He submitted that had blood been removed, the deceased must have survived. PW- 1 stated that the deceased was beaten by lathi, danda and bricks and she has fallen. It is not corroborated from the injury of the post mortem report of the deceased. PW-7 stated that he requested PW-1 to get her medical examination done, but she said that she will it get done later, but it was never done.

18. Learned counsel for the appellant could not point out any perversity in the findings recorded by the trial court. The trial court's judgement is a well merited one, this Court need not re-appreciate the evidence.

19. Keeping in view the totality of facts and circumstances of the case and material on record, this Court does not find any perversity in the findings recorded by the trial court. The trial court's judgement is a well merited one, this Court need not re-appreciate the evidence.

20. The above noted criminal is dismissed.

21. Let the record of the trial court be returned and this judgement to be notified to the trial court, within two week. Order Date :- 6.5.2025 Ruchi Agrahari (Ram Manohar Narayan Mishra,J.) (Siddharth, J.)

Appellant :- Radha Tiwari Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Ravindra Prakash Srivastava Counsel for Respondent :- G.A. Hon'ble Siddharth,J. Hon'ble Ram Manohar Narayan Mishra,J.

1. Heard Sri Ravindra Prakash Srivastava, learned counsel for the appellant; learned AGA for the State-respondent and perused the material placed on record.

2. The above noted criminal appeal U/S 413 B.N.S.S. has been preferred by the informant-appellant praying for setting aside the judgement and order dated 29.1.2025 passed by Sessions Judge, Basti, in Session Case No. 661 of 2020 (State Vs. Ajay Tiwari and another) arising out of Case Crime No.18 of 2020, under Section 323, 504, 452, 308, 304 IPC, Police Station Harraiya, District Basti, whereby trial court has acquitted the accused, Ajay Tiwari and Pratibha Tiwari.

3. Prosecution case is that informant was collecting wood kept near her house at 10:00 a.m. on 19.1.2020 alongwith her children and mother-in-law, when accused, Ajay Tiwari and his wife, Pratibha Tiwari, started abusing them and made attack on them. The informant alongwith her family members ran away and they hide themselves in their house. Respondents entered in the house of the informant and had beaten all of them by lathi, danda and bricks. Mother-in-law of the informant suffered grievous injuries and died in hospital on 21.1.2020 at about 7:30 p.m. FIR was lodged on 22.1.2020 against accused, Ajay Tiwari and his wife, Pratibha Tiwari under Sections 323, 504, 452, 304, 308 IPC.

4. After investigation charge-sheet was submitted. Subsequently charges were framed against accused, Ajay Tiwari and his wife, Pratibha Tiwari, under Sections 323 read with Section 34, 452, 308 read with Section 34, 304 read with Section 34, 504 IPC. Accused- respondent nos. 2 & 3 denied the charges and sought trial.

5. Only to prove charges accused persons, prosecution examined PW- 1, Radha Tiwari; PW-2, Raj Kumar Tiwari; PW-3, Ram Kumar Tiwari; PW-5, Dr. Sudhanshu Dwivedi; PW-6, Devendra Singh, Sub Inspector and PW-7, Inspector Mrityunjay Pathak.

6. Learned counsel for the appellant submits that there was sufficient evidence against respondent nos.2 & 3 for implicating them in this case. The prosecution proved the case against respondent nos.2 &3 beyond all reasonable doubt, but the trial court has illegally acquitted the respondent nos.2 & 3 of all charges.

7. Learned counsel for respondent no.2 has vehemently opposed the submissions advanced by learned counsel for the appellant and submitted that the trial court has recorded the clear finding of fact that there was motive for the respondent nos.2 & 3 to commit the alleged offence.

8. The appellate Court is usually reluctant to interfere with a judgment acquitting an accused on the principle that the presumption of innocence in favour of the accused is reinforced by such a judgment. The above principle has been consistently followed by the Constitutional Court while deciding appeals against acquittal by way of Article 136 of the Constitution or appeals filed under Section 378 and 386 (a) Cr.P.C. in State of M.P. Vs. Sharad Goswami,(2021) 17 SCC 783; State of Rajasthan Vs. Shera Ram, (2012) 1 SCC 602, Shivaji Sahabrao Bobade Vs. State of Maharastra, (1973) 2 SCC 793.

9. The Supreme Court in the case of Ramesh Babulal Doshi Vs. State of Gujarat, (1996) 9 SCC 225 has observed that the High Court must examine the reasons given by the trial Court for recording their acquittal before disturbing the same by re-appraising the evidence recorded by the trial court. For clarity, para 7 is extracted herein below: "Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not."

10. The Supreme Court in the case of Sadhu Saran Singh Vs. State of U.P., (2016) 4 SCC 357 has observed that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity.

11. The Supreme Court in the case Basheera Begam Vs. Mohd. Ibrahim, (2020) 11 SCC 174 has held that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If, upon analysis of evidence, two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and other of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the court might reverse an order of acquittal if the court finds that no person properly instructed in law could have, upon analysis of the evidence on record, found the accused to be "not guilty". When circumstantial evidence points to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime.

12. The Supreme Court in the case of Kali Ram Vs. State of H.P., (1973) 2 SCC 808 has observed as under: "25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought is to established by circumstantial evidence."

13. The Supreme Court again examined in State of Odisha v. Banabihari Mohapatra & Ors, (2021) 15 SCC 268 the effect of the probability of two views in cases of appeal against acquittal and held that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused, and the other to his innocence, the view which is favourable to the accused should be adopted.

14. The Supreme Court in Sujit Biswas v. State of Assam, (2013) 12 SCC 406 has reiterated the position that suspicion, however strong, cannot replace proof. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt.

15. In the background of the law discussed herein above, we have examine the trial court's findings and evidence adduced during the trial by the witnesses to test the legality and validity of the impugned order.

16. After hearing rival submissions, we find that the trial court has found that the report was made to the police station on 22.1.2020, when the incident took place on 19.1.2020. The Court has found that the explanation for the same is only that the informant, Radha Tiwari, was busy in medical treatment of her mother-in-law. Three days' delay in lodging the FIR gives ample opportunity to fabricate the allegations and lodge FIR against the persons of her choice. The motive of the incident has not been stated anywhere. PW-2 and PW-3 are not the eye-witnesses of the incident and it is only PW-1, who is eye-witness. The credibility of only eye-witness is required to be impeccable for making it basis conviction of accused. In her application before the police station and also in her examination-in-chief, PW-1 has claimed herself to be seriously injured, but no injury was found on her person. PW-1 has stated that her husband, PW-3, was present at the place of occurrence, when PW-3 stated that he had gone to Amari Bazar at the time of incident. Therefore, the statement of PW-1 is not reliable and has rightly been discarded by the trial court.

17. PW-5, Dr. Sudhanshu Dwivedi, found only injury of 3 X 5 cm. in form of swelling on top and back on the head of the deceased located 8 cm. from right ear. The doctor did not found any blood from the wound. After opining the head, blood clots were found. He submitted that had blood been removed, the deceased must have survived. PW- 1 stated that the deceased was beaten by lathi, danda and bricks and she has fallen. It is not corroborated from the injury of the post mortem report of the deceased. PW-7 stated that he requested PW-1 to get her medical examination done, but she said that she will it get done later, but it was never done.

18. Learned counsel for the appellant could not point out any perversity in the findings recorded by the trial court. The trial court's judgement is a well merited one, this Court need not re-appreciate the evidence.

19. Keeping in view the totality of facts and circumstances of the case and material on record, this Court does not find any perversity in the findings recorded by the trial court. The trial court's judgement is a well merited one, this Court need not re-appreciate the evidence.

20. The above noted criminal is dismissed.

21. Let the record of the trial court be returned and this judgement to be notified to the trial court, within two week. Order Date :- 6.5.2025 Ruchi Agrahari (Ram Manohar Narayan Mishra,J.) (Siddharth, J.)