state of up Vs Jaiveer s/o Har Swaroop

Neutral Citation No. - 2025:AHC:33557-DB

Court No. - 47

Case :- GOVERNMENT APPEAL No. - 840 of 2024

Appellant :- State of U.P. Respondent :- Jaiveer S/O Har Swaroop Counsel for Appellant :- Ashutosh Kumar Sand

¶5

Hon'ble Siddharth,J. Hon'ble Praveen Kumar Giri,J.

¶6

Order on Criminal Misc. (Leave to Appeal) Application No. Nil of 2024

¶7

Heard Mr. Jitendra Kumar, learned A.G.A. for the Stateappellant and perused the record.

¶8

The above noted government appeal is filed against the judgement and order of acquittal dated 20.07.2024 passed by learned Additional Sessions Judge, Anoopshahar, Bulandshahar in Session Case No. 51 of 2024 (State of Uttar Pradesh Versus Jaiveer and another) and Session Case No. 52 of 2024 (State of Uttar Pradesh Versus Jaiveer) arising out of Case Crime No. 432 of 2012 and 142 of 2013, under section 302/34 I.P.C. and 25 Arms Act, Police Station Dibai, District Saharanpur.

¶9

The prosecution story is that the complainant, namely, Yogendra Singh has given a written report stating therein that daughter of his cousin brother, namely, Km. Vijay is a teacher in Paradada Pardadi Vidyalay, Anoopshahr and she used to go to the institution by the bus of institution alongwith students. The daughter of Bhudev Rana, who is student of her institution, used to talk with a boy at the bus stop. On several occasions, Km. Vijay objected for the same then the aforesaid girl told her father Bhudev that Km. Vijay is harassing her unnecessarily. Thereafter, Bhudev Rana gone to Km. Vijay house and extended threatening to her. Due to which Vijay was completely terrorized, thereafter, complainant came to know about the incident and asked Bhudev, how he dared to talk with Vijay and thereafter, Bhudev Rana has also terrorized the complainant on the pretext that he is reporter of TV 100 and SSP also used to salute him and police used to send chowth at his house. In the meantime, Suresh and Jeetu of the village came there and Bhudev Rana also extended threats for their life. Thereafter, son of Bhudev Rana, namely, Digvijay, himself caused injury from

¶10

blade in his hand and lodged a first information report and challan of some accused persons were made under section 151 Cr.P.C. Bhudev, who was not fulfilled with the same, threatened the complainants' side to take revenge of the aforesaid enmity and, ultimately, brother of the complainant, namely, Ravindra Singh was shot to death at his tubewell. The police was informed about the incident that complainant was under bonafide believe that Bhudev Rana and his son Digvijay have committed murder of his brother. On the basis of aforesaid facts, the present case was registered against Bhudev Rana and Digvijay and investigation proceeded and during investigation complicity of accused persons, namely, Jaiveer and Kushal was revealed in commission of crime and they were charge-sheeted.

¶11

F.I.R. was lodged on 25.09.2012 against Bhudev Rana and Digvijay at Police Station- Dibai, District- Saharanpur, being Case Crime No. 432 of 2012, under Sections- 302/34 I.P.C. and second F.I.R. was lodged on 11.04.2013 being Case Crime No. 142 of 2013, under section 25 of Arms Act.

¶12

The investigation was done and on conclusion of the investigation, charge-sheet was submitted against accused Jaiveer and Kushal in Session Case No. 51 of 2024 and charge sheet was submitted against Jaiveer under section 25 of Arms Act in Session Case No. 52 of 2024 before the Court of C.J.M., Bulandshahar

¶13

Thereafter, accused appeared before the Court and pleaded not guilty and sought trial. Since both the cases i.e. session Case No. 51 of 2024 and Session Case No. 52 of 2024 are related to each other, therefore, it was directed that both the cases shall be tried together and Session Case No. 51 shall be a leading case. In the result of the same, complete evidence has been mentioned in leading case.

¶14

The prosecution in order to prove its case has examined as many as 9 witnesses in the form of PW-1, Informant/Complainant, Yogendra Singh; PW-2, Bhanu Pratap Singh; PW-3, Constable clerk Dhyan Singh; PW-4, Sachin Kumar; PW-5, Dr. Suspendra Kumar; PW-6, S.I. Rajeev Kumar; PW-7, Inspector Ambika Prasad Bhardwaj; PW-8, Sub Inspector Krishna Maurya and PW-9, Head Constable Ravindra Kumar.

¶15

Trial court has acquitted the accused-respondent holding that the prosecution has failed to prove its case beyond all reasonable doubt.

¶16

Learned counsel for the appellant has submitted that trial court has misread the evidence on record and wrongly acquitted the respondents.

¶17

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.

¶18

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:

¶19

"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

¶20

we have therefore to first ascertain whether the findings of the trial Court are sustainable or not."

¶21

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.

¶22

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.

¶23

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

¶24

"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."

¶25

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.

¶26

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.

¶27

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.

¶28

We have perused the depositions of prosecution witnesses, documentary evidence and arguments advanced by learned counsel for the appellant, this Court finds that the alleged incident occurred in the night of 24.09.2012 and two persons were made accused but one died during trial and only one person has been prosecuted. The prosecution case was based on the alleged recovery but it could not be proved in accordance with law, therefore, the trial court has acquitted the alleged accused persons. There is no eye witness account of the alleged incident and the alleged accused has been implicated only on the basis of suspicion, thus, the prosecution failed to prove its case beyond reasonable doubt. The witness deposed contrary to the version of the F.I.R. Therefore, the acquittal order is justified. 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.

¶29