state of up vs Smt. Moti Rani and 2 others

Neutral Citation No. - 2025:AHC:1742-DB

Court No. - 47

Case :- GOVERNMENT APPEAL No. - 1058 of 2024

Appellant :- State of U.P. Respondent :- Smt. Moti Rani And 2 Others Counsel for Appellant :- Ashutosh Kumar Sand

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Hon'ble Siddharth,J. Hon'ble Subhash Chandra Sharma,J.

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Order on leave to appeal application no. ..../2024

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Heard Sri Sushil Kumar Pandey, learned AGA-Ist, for the Stateappellant and perused the material on record.

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This leave to appeal application has been filed praying for grant of leave to challenge the judgment and order of acquittal of accused-respondents dated 17.08.2024 passed by Sessions Judge, Mau, in S.T. No. 107-A of 2011 and connected S.T. No. 107-A of 2011 under sections 302, 506, 34 IPC and S.T. No. 106 of 2011 under section 3/25 of Arms Act.

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The prosecution case in brief is that the complainant Arvind Yadav has given a written report on 29.01.2011, alleging therein that the complainant and his uncle Kanhaiyay Yadav and Aunt Prabhawati Devi, were working in Potato field. At about 12.00 noon, villager Brij Kishore Yadav @ Pintu Yadav and his mother Moti Rani and sister in law (Bhabhi) Krishnawati came at the field and told Kanhaiyya to compromise in the murder case of Pramod and they gave threat to his life, if compromise is not done. Deceased refused to compromise upon which Moti Rani, Krishnawati exhorted Brij Kishore to kill him and they shall face the consequences. Brij Kishore took out Tamancha from his waist and fired upon the deceased due to which he fell down in injured condition and thereafter he was attacked from Kudal (incised weapon) and on impression that deceased had died, the accused persons escaped after extending threat to others. At the place of incident several persons gathered and thereafter injured was brought to Ghosi Hospital from Tempo where he was declared dead and thereafter from the said Tempo complainant came at Police Station and lodged the First Information Report under sections 302, 506 IPC. Recovery of weapon was made from the accused respondent no.3, as such the police lodged another case

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under section 3/25 Arms Act against accused respondent no.3 in which after due investigation the investigating officer submitted charge-sheet against the accused-respondents.

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Learned trial court have framed the charges against the accused respondents no.1 and 2 Under Sections 302/34, 506 IPC and also framed the charges against the accused respondent no.3 Under Section 302, 506 IPC and 3/25 Arms Act. The accused respondents denied the charges leveled against them and claimed to be tried.

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The prosecution in order to prove its case has examined PW-1, Radhika; PW-2, Prabhawati; PW-3, Informant, Arvind Yadav; PW4, Dr. B.B.Singh; PW-5, Н.С. Ashok Kumar Tiwari; PW-6, Superintendent Pawan Kumar Upadhyay and S.I. Manoj Chaudhary as P.W.7.

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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.

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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 reappraising the evidence recorded by the trial court. For clarity, para 7 is extracted herein below:

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" 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

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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."

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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.

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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.

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The Supreme Court in the case of Kali Ram Vs. State of H.P., (1973) 2 SCC 808 has observed as under:

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"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

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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."

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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.

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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.

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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.

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After hearing the learned counsel for the appellant and perusal of record this Court finds that P.W.-1 and P.W.-2 are eye witnesses of the incident. They have stated that on the exhortation of respondent nos. 1 and 2, namely, Motirani and Krishnawati. Respondent no. 3, Brij Kishore Yadav, had fired on the deceased, Kanahiya, which hit his head and he fell down and, thereafter, he was caused injuries by Kudal . The motive of the crime is said to be an earlier incident wherein one person had died on the informant side and they were pressurizing the deceased to enter into compromise.

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The trial court has found that there was no fire arm injuries suffered by the deceased on his head nor any such weapon was recovered from the spot. The deceased suffered contused and incised wounds which may have been caused by Kudal . Subsequently, recovery of weapon was made, but the trial court has found that such recovery was not in accordance with law and against the mandate of Apex Court in the case of Ramanand @ Nand Lal Bihari Vs. State of U.P; AIR 2022(SC)_5273

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Trial court has found contradiction in the statements of witnesses of the incident. The trial court has not found the investigation conducted by the investigating officer to be fair, but

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the judgment is not solely based on the faulty investigation.

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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 reappreciate the evidence.

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This leave to appeal application is rejected.

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Order on Government Appeal

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Since leave to appeal application is rejected, therefore, the above noted government appeal is, hereby, dismissed.

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Let the record of the trial court be returned and this judgement to be notified to the trial court, within two weeks.

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Order Date :- 3.1.2025 Abhishek

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Digitally signed by :- ABHISHEK YADAV High Court of Judicature at Allahabad

state of up v. Smt. Moti Rani and 2 others

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