Allahabad High Court
Rajendra Prasad Mishra @ Rajendra ... vs State Of U.P. Thru. Prin. Secy. Home, ... on 2 January, 2024
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:167 Court No. - 16 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 39 of 2023 Appellant :- Rajendra Prasad Mishra @ Rajendra Prasad Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Others Counsel for Appellant :- Shanker Lal Pandey Counsel for Respondent :- G.A. Hon'ble Shamim Ahmed,J.
List has been revised.
Heard Sri Shanker Lal Pandey, learned Counsel for the appellant, Sri Ashok Kumar Singh, the learned A.G.A.-I for the State-respondent and perused the material available on record.
The present appeal under Section 372 Cr.P.C. has been filed against the judgment and order of acquittal dated 28.02.2023 passed by learned Additional Session Judge, Court No.5, Pratapgarh in Session Trial No.09 of 2020 arising out of Case Crime No.234/2017 under Sections 143, 147, 148, 149, 308, 323, 325, 504 and 506 I.P.C., Police Station-Fatanpur, District-Pratapgarh; in re: State of U.P. vs. Devi Prasad Dubey and Ors.
The prosecution case starts with a written report lodged by the complainant-Durga Prasad Mishra, at Police Station Fatanpur, District Pratapgarh on 30.09.2017, stating therein that on account of dispute of agricultural field, on 30.09.20217 at about 4:00 p.m. the accused-Devi Prasad Dubey, Sheetla Dubey, Ashok Kumar Dubey, Suneel Kumar, Sanjay Dubey, Lal Bahadur, Rajpati Vishwakarma, Ashok Kumr Shukla and Praful Dubey armed with deadly weapons came to the field of complainant and started hurling abuses to his brother, namely-Rajendra Prasad Mishra @ Rajendra Prasad, when his brother objected then accused assaulted him with kicks and fists. On noise being raised, other villagers came there, who saved the brother of the complainant. The accused also threatened him for dire consequences while returning back. In the said incident the brother of the complainant alleges he sustained injuries. On the basis of above report a case was got registered against the accused, and after investigation charge sheet was filed against them. In the trial the accused pleaded not guilty and claimed to be tried.
The court below after taking into consideration the facts and circumstances of the case and evidence available on record, passed the judgment and order of acquittal dated 28.02.2023.
Learned Counsel for the appellant submits that the court below did not appreciate the evidence on record. He further submits that prosecution has successfully proved the offence against the accused on the basis of evidence. The judgment was passed without considering the statement of witnesses and the case set up by the prosecution and the judgment of the acquittal was passed on surmises and conjectures.
Per contra, learned A.G.A-I. for the State has apposed the submissions advanced by learned Counsel for the appellant and submits that the court below has rightly passed the order of acquittal after going through the entire material placed on record, thus, no relief by this Court as prayed by the appellant can be granted at this stage.
I have heard the submissions advanced by the learned Counsel for the appellant and learned A.G.A-I for the State-respondent and gone through the judgment passed by the court below.
In the present case from the statements given by the witnesses produced by the prosecution, I found that prosecution has failed to establish that the crime in question has been committed by the accused and there was no direct evidence produced by the prosecution regarding involvement of the opposite parties in the crime.
Further, learned Counsel for the appellant could not point out any illegality or infirmity in the judgment and order of acquittal passed in favour of respondents which is before this Court.
Further, this Court observed that an appeal against acquittal stands on a different footing from the appeal against conviction. Hon'ble the Apex Court in a very recent judgment in the case of Sadhu Saran Singh Vs. State of Uttar Pradesh and Others reported in (2016) 4 SCC 357 has considered this difference and has observed in paragraph nos.20 and 21 as under:
"20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of 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 of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can raise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasiva V. State of Kerala 1998 SCC (Cri) 1320 has held:
"7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal."
21. The Court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative."
In the light of the aforesaid guidelines, the impugned judgment has to be considered from the point of view whether the view taken by the court below was a probable view based on the material on record or it is an absolutely erroneous judgment devoid of merits.
A criminal trial proceeds with the presumption of innocence of the accused persons. With the acquittal of the accused persons this presumption of innocence stands fortified. So very strong and cogent reasons must exist in interfering the judgment of acquittal.
Keeping in view the aforesaid weakness of the prosecution case, as noted by the court below, I am of the view that the view taken by the court below was a probable and logical view, which is based on valid reasons. The judgment of the court below cannot be said to be illegal, illogical and improbable and not based on material on record or is based on erroneous views and is against the settled position of law. So, this Court is satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference is called for.
Accordingly, the present appeal against acquittal is dismissed.
No order as to costs.
Order Date :- 2.1.2024 Piyush/-