Allahabad High Court
State Of U.P. vs Tebul Verma & 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. No. - 70 of 2020
Applicant :- State of U.P.
Opposite Party :- Tebul Verma & Anr.
Counsel for Applicant :- G.A.
Counsel for Opposite Party :- Manoj Kumar Awasthi,Swadesh Rathour
Hon'ble Mrs. Rekha Dikshit,J.
Hon'ble Virendra Kumar Srivastava,J.
1. The instant application under Section 378 of Code of Criminal Procedure (in short ''Code') bearing No.70 of 2020 has been filed for leave to appeal against the judgment and order dated 31.10.2019 passed by Additional Sessions Judge, Court No.11, Sitapur in Session Trial No.648 of 2008, arising out of Case Crime No. 564 of 2007, under Sections 302/34 and 201 IPC, Police Station Imliya Sultanpur, District Sitapur whereby respondent no.1 Tebul Verma and respondent no.2 Nawal Kishore have been acquitted.
2. Heard learned A.G.A. for the State on the application filed under Section 378 of the Code i.e leave to appeal.
3. No one is present for the accused-respondent nos.1 and 2.
4. Learned AGA submits that in this matter, a child aged about 09 years, son of informant-Ramesh (P.W.1) was murdered by the respondents due to previous enmity and dispute but the learned trial Court without considering the material available on record, acquitted the respondents whereas the prosecution has succeeded to prove its case beyond reasonable doubt, but the trial court has illegally disbelieved the prosecution story and acquitted the respondents. The impugned judgment and order is against the settled provisions of law and is liable to be set aside.
5. The law regarding appeal against the acquittal order passed by the trial Court is well settled. It is settled principle of law that unless the prosecution succeeds to prove 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.
6. 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)
7. Coming to the facts of this case, the prosecution story is based on circumstantial evidence as no eye witness has been produced by the prosecution. According to prosecution story, FIR was lodged on 4.12.2007 by informant Ramesh (P.W.1) that his son Ram Niwas, aged about nine years, class III student of Primary School, Village Dhauremur, had gone to school on 03.12.2007 but did not return till evening. It has further been stated that during search, his dead body was recovered on 04.12.2007 at about 2:30 p.m. lying in the sugarcane field of one Hardwari Raidas and Ajay Pal, Son of Lakshman had caused murder of informant's son due to enmity and property dispute. On the said information, an FIR was registered against the said Ajay Pal but during investigation, the said Ajay Pal was exonerated and respondents were implicated.
8. The prosecution in order to prove its case, examined seven witnesses namely Ramesh P.W.1, Vijay Kumar Awasthi P.W.2, Rajesh P.W.3, Deshdeepak Verma P.W.4 were witnesses of fact whereas rest of the witnesses were formal witnesses.
9. P.W.-2 Vijay Kumar Awasthi and P.W.4 Desh Deepak Verma, who were independent witness, did not support the prosecution story and declared hostile by the prosecution and in their cross examination, nothing had come out to support the prosecution version. P.W.1 Ramesh and P.W.4 Deshdeepak Verma are real brothers who have supported the prosecution story and have stated that respondents are very mischievous person, they were befooling them and on their advice, they had falsely implicated Ajay Pal whereas as per his information and his belief, the respondents would have caused the murder of the deceased Ram Niwas.
10. Record shows that neither any incriminating material, in connection with the alleged occurrence was recovered from the possession of the respondents nor the respondents were seen with the deceased before his death or at the time of occurrence.
11. In view of the above, the prosecution has miserably failed to prove its case beyond reasonable doubt against the respondents.
12. The impugned judgment and order passed by the trial court is well reasoned, well discussed and requires no interference. The application for leave to appeal is liable to be dismissed.
13. Accordingly, the application under Section 378 (3) of the Code is dismissed.
14. Consequently, the appeal is also dismissed.
Order Date :- 22.3.2021
P.s.
