Allahabad High Court
State Of U.P. vs Smt. Sushila & Anr. on 22 March, 2021
Bench: Rekha Dikshit, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 13
Case :- U/S 378 CR.P.C. DEFECTIVE No. - 95 of 2020
Applicant :- State of U.P.
Opposite Party :- Smt. Sushila & Anr.
Counsel for Applicant :- G.A.
Hon'ble Mrs. Rekha Dikshit,J.
Hon'ble Virendra Kumar Srivastava,J.
(C.M. Application No.72219 of 2020)
Heard learned A.G.A. for State-applicant on delay condonation application and perused the record.
As per office report, this application has been filed by delay of 186 days.
No one is present for the opposite parties despite sufficient service of notice.
As per office report, no 'vakalatnama' has been filed by Shri Kamlesh Kumar Gupta, learned Advocate in this matter.
Delay condonation application is supported with affidavit, wherein cause of delay shown, in view of Covid-19 Pandemic Situation, is sufficient.
The application is allowed and the delay is condoned.
Office to allot regular number.
(Virendra Kumar Srivastava,J.) (Rekha Dikshit,J.)
Order Date :- 22.3.2021
Anupam S/-
Case :- U/S 378 CR.P.C. No. - 95 of 2020
Applicant :- State of U.P.
Opposite Party :- Smt. Sushila & Anr.
Counsel for Applicant :- G.A.
Hon'ble Mrs. Rekha Dikshit,J.
Hon'ble Virendra Kumar Srivastava,J.
The instant application, under Section 378(3) Cr.P.C. 1973, has been filed for grant of leave to appeal against the judgment and order dated 06.02.2020, passed by Additional District and Sessions Judge, Court No.10, Sitapur, in Sessions Trial No.882 of 2012, arising out of Case Crime No.140 of 2012, under Section 302/120B I.P.C., Police Station Ramkot, District Sitapur, whereby the respondents Smt. Sushila and Anup Kumar have been acquitted by the Trial Court.
Heard learned Additional Government Advocate (A.G.A.) for the State appellant and perused the record.
Learned A.G.A. submits that the prosecution had successfully proved its case beyond reasonable doubt against the respondents, but the trial court has illegally disbelieved the prosecution story and acquitted the respondents. The impugned judgement and order is against the settled provisions of law and is liable to be set aside.
From perusal of the record, it transpires that Jai Chandra (P.W.-1) lodged first information report that as per information given by his maternal aunt, Smt. Sushila Devi (respondent no.1) the dead body of his maternal uncle Ram Kumar was found in wheat crop field of one Rajesh. It is further alleged that upon inquiry by P.W.-1, the respondent no.1 did not give any plausible explanation either regarding cause of death of the deceased or his whereabouts before his death. Sensing some suspicion first information report was lodged against the respondent no.1. During investigation, it was found that the respondent no.1 had illicit relation with respondent no.2 Anoop Kumar and both of them had committed murder of the deceased.
The prosecution in order to prove its case examined Jai Chandra as P.W.-1, Kailash Chandra as P.W.-2, Inamullah as P.W.-3, Jamuna Prasad Kanaujia as P.W.-4, Dr. S. Bhardwaj as P.W.-5, Incharge Inspector Ashok Kumar as P.W.-6, Hasmeet Singh as P.W.-7.
Admittedly, the prosecution story is based on circumstantial evidence as well as extra judicial confession of the respondents. The prosecution has not produced any witness to prove any incriminating article or material pertaining to this case, which would have been recovered from the possession of the respondents. It appears that the respondents were implicated in this case only on the ground that the respondent no.1 Smt. Sushila Devi, wife of the deceased, had illicit relation with the respondent no.2 as the deceased was suffering from Leucoderma and she used to quarrel with the deceased.
It is settled principle of law that unless the prosecution proves its case beyond reasonable doubt, the accused shall be presumed innocent and if the accused has been acquitted by a trial court, his innocence is further confirmed. The Hon'ble Supreme Court in Murugeshan & Others V. State, (2012) 10 SCC 383 while summarizing the principles of law on appeal against acquittal, has held as under:
"A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup (supra) is to be found in para 42 of the report in Chandrappa & Ors v. State of Karnataka. The same may, therefore, be usefully noticed below:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." (Emphasis supplied)
Coming to the facts of the case again, the prosecution story is based on the circumstantial evidence. P.W.-1 Jai Chandra and P.W.4 Jamuna Prasad Kanaujiya are real brother and interested witness. None of the prosecution witnesses had seen the respondents either nearby the place of occurrence or in the company of the deceased just before his death.
In view of the above, we are of the considered view that the prosecution has measurably failed to prove its case beyond reasonable doubt against the respondents. The impugned judgement and order passed by the trial court is well reasoned, well discussed and there is no need to interfere it.
The application for leave to appeal filed by the State is liable to be dismissed.
The application for leave to appeal, filed under Section 378(3) Cr.P.C., is dismissed. Consequently the appeal is also dismissed.
(Virendra Kumar Srivastava,J.) (Rekha Dikshit,J.)
Order Date :- 22.3.2021
Anupam S/-
