State Of Uttar Pradesh v. Yogesh & Ors.

7.12.1993 at about 1:00 pm whereas the first information report was lodged on 18.1.1994 i.e. about after 45 days. The Court below found that the delay is material as there was admitted enmity between the informant, his brother and the accused persons. It was also found that missing person Raju was a hardened criminal and several criminal cases were pending against him and except the statement of informant Prem Kumar Tiwri, there was no evidence against the accused persons and no other evidence was on record. It was further found by the court below that the witness Radha Krishna Singh is a professional witness and he has already deposed against the accused persons earlier also. It was also found that one witness Veer Singh was made witness in a calculated manner and statement of Sant Ram Pal was baseless and was not supported by any independent witness. It was also found that Raju Tiwari was co-accused with accused Yogesh in a murder case of one Prabhakar and case was pending against him, therefore, he could not have been approver in the aforesaid case and there was admitted enmity between the informant side and the accused side and it is an admitted fact that the dead body of Raju Tiwari was not recovered. Under such circumstances, the Court below found that the prosecution could not prove his case beyond doubt and the accused person was given benefit of doubt and judgement of acquittal was passed.

#6. Challenging the impugned judgment, learned AGA submits that there was cogent evidence to convict the accused persons herein. He next submits that there is a last seen evidence available on record and in view of the enmity there was every possibility that the accused persons have committed the offence and their acquittal on minor contradictions is perverse, therefore, submission is that the judgement and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused persons herein are liable to be convicted.

#7. We have considered the submissions and have perused the record.

#8. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

#9. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities"

#10. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court.

#11. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.

#12. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.

#13. On perusal of record, we find that admittedly there is a delay of 45 days in lodging the FIR. We find that the delay has been sought to be explained on the ground that grandfather of the informant had died and he was busy in his last rites and prior to that they were in search of Raju, however, we find that the delay is not convincing. It has also come on record that the matter was handed over to the CB CID and after investigation CB CID, as the dead body has not been recovered, therefore, submitted the charge-sheet under Section 364/120B IPC. The investigating ofÏcer of the CB CID has recorded the statement of Radha Krishna Singh and Sukh Ram but no site plan was prepared by the IO and statements of the witnesses were recorded after about one year. It is clear that witness Radha Krishna Singh was a professional witness and was person of confidence of the informant and has deposed against the accused persons and therefore, he was highly interested witness, however, his name as witness of even last seen was not disclosed in the first information report. Similarly, statement of co-accused Sant Ram Pal was also not supported by any other independent witness or evidence. Admittedly, there was enmity between the informant side and the accused persons and oral statement of last seen was given by the informant only and no other witness could prove the aforesaid fact. On the contrary, witness Sukh Ram has stated that he had not seen the accused persons with Raju Tiwari and he belonged to the side of the informant and was a highly interested witness. The query that was put forth that Raju Tiwari have turned approver also rightly did not find favour with the trial Court, inasmuch as he himself was a co- accused.

#14. In view of the aforesaid, as reflected from perusal of the evidence, we find that the court below has taken a plausible and possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above.

#15. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected. Re: Government Appeal

#1. Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by order of date, the present government appeal is also dismissed. Order Date :- 11.8.2022 Abhishek AGRAHARI Reason: Location: High Court of Judicature at Allahabad