State of U.P v. Vijay Kumar Yadav and others) and on 27 Feb 2025

Judgment

1. Heard Mr. G.N. Kanojia, learned A.G.A-I for the appellant; Sri Shaurya Sharma, learned counsel for respondent Nos. 2 & 3 and perused the record. None appears on behalf of respondent No.1.

2. The above noted government appeal is filed against the judgment and order of acquittal dated 03.11.2023 passed by Additional Sessions Judge, Court No. 9, District – Kanpur Nagar, in Sessions Trial Nos. 739 of 2011 (State of U.P. vs. Vijay Kumar Yadav and others) and 740 of 2011 (State of U.P. vs. Viplav Bhattacharya),

arising out of Case Crime No. 86 of 2010, under Section 302 of IPC and Case Crime No. 129 of 2010 under Section 4/25 of the Arms Act, Police Station- Raipurwa, District – Kanpur Nagar.

3. The prosecution story is that complainant-Upendra Kumar used to reside in House No. 68-E of his family friend, namely, Bhagwat Dayal along with his brother-Pravesh Singh (deceased), mother and wife. Deceased, Pravesh Singh, used to reside in a room situated at the back portion of the house. He was unmarried. He used to carry out B.C. (Balance Credit) and was plying three vikram autorickshaws. The complainant, according to his daily schedule, locked the door of the courtyard from outside and, at about 10.30 PM in the night, put the [2] keys on the bed and shut the door of his room. Thereafter, he heard the music of Harmonium which was being played by his deceased-brother till 11.30 PM and after that he went to sleep. On the next morning, at about 5.30 AM, when he went to take back the keys from his brother’s room, he found his brother lying dead and the door of the courtyard was open. The complainant apprehended that someone had committed murder of his brother by a sharp edged weapon. He also stated that when some unknown person used to come, his brother woke him up and asked for opening the door.

4. On the basis of the complaint made by Upendra Kumar, the F.I.R. was lodged against unknown persons. During the course of investigation, names of accused-respondents were revealed in commission of crime. On pointing out of accused-respondent No.3, a knife which was used in commission of crime was recovered. A separate F.I.R. was registered for that against respondent No.3.

5. The investigation was set into motion by Investigating Officer. The Investigating Officer inspected the place of occurrence, collected relevant evidence, took statements of witnesses and prepared the site plan. On conclusion of the investigation, charge-sheet was submitted against accused-respondents before the Court of Chief Metropolitan Magistrate, Kanpur Nagar, and, thereafter, Magistrate took cognizance upon the said Charge sheet and committed the matter to Court of Sessions, Kanpur Nagar.

6. Thereafter, accused appeared before the Court on 22.02.2013 and charges were framed against them under Section 302 of I.P.C. which the accused-respondents pleaded not guilty and sought trial.

7. The prosecution, in order to prove its case, has led 20 documentary evidence including postmortem report and has examined as many as 11 witnesses namely, PW-1, Upendra Kumar alias Tunnu [3] Singh (Complainant), PW-2, Ram Pravesh Singh; PW-3, Dr. R.L. Maheep; PW-4, Constable Sarvesh Kumar; PW-5, Sub Inspector Gyan Prakash; PW-6, Ram Singhasan Singh; PW-7, Inspector Nandlal; PW- 8, Inspector In-charge S.N. Singh; PW-9, Lal Singh; PW-10, Sub Inspector Ravindra Nath Yadav; PW-11, Neelam Rani.

8. After prosecution evidence was completed, the accused- respondents were put to question under Section 313 of Cr.P.C. wherein they stated that they were falsely implicated and the witnesses which were produced had given false statements.

9. At the end of the trial, after hearing the arguments on behalf of prosecution and the defence, the Trial Court acquitted the accused- respondents holding that the prosecution had failed to prove its case beyond all reasonable doubts.

10. Learned A.G.A. for the appellant-State has submitted that trial court has failed to appreciate the evidence on record. Learned A.G.A. has further submitted only on the basis of minor variations and contradictions in the statements of witnesses, the entire case of the prosecution cannot be disbelieved. Therefore, acquittal of respondents are bad in the eye of law.

11. Before we embark on testimony and the judgment of the Trial Court, the principle for interfering in appeal against acquittal would be required to be discussed.

12. 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 [4] 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

13. 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."

14. 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 [5] appellate court would interfere with the order of acquittal only when there is perversity.

15. 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.

16. 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."

17. 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. [6]

18. 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.

19. In the background of the law discussed herein above, we will 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.

20. We have perused the depositions of prosecution witnesses, documentary evidence supporting ocular versions and arguments advanced by learned counsel for the appellant. The First Information Report was lodged against unknown persons and PW-11, wife of the complainant (PW-1), in her statement under Section 161 Cr.P.C., named the accused persons, but in her deposition before the Court, no allegation was made against the accused-respondents by her. The other prosecution witnesses have not supported the prosecution case. Rather the prosecution has failed to produce any independent eyewitness who can support the prosecution case and, therefore, we are unable to accept the submissions of the State counsel in view of the the judgments of the Apex Court which lay down the criteria for considering the appeals against acquittal. In that view of the matter, we are unable to satisfy ourselves with the submission of learned A.G.A. for the appellant-State and we concur with the findings of the Trial Court.

21. The judgment of the trial court is well considered and learned counsel for the appellant is unable to point out any perversity in the findings recorded by the trial court.

22. In view of the above, application seeking leave to appeal is rejected. [7] Order on Government Appeal No. 881 of 2024 In view of the fact that application seeking leave to appeal has been rejected, the government appeal stands dismissed. Let Trial Court’s Record along with a copy of this judgment be sent to the trial court within two weeks. Order Date :- 27.2.2025 DKS DEEPAK KUMAR SRIVASTWA High Court of Judicature at Allahabad