State Of U.P. vs Vijay Kumar Dubey
2023 Latest Caselaw 3765 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 15
 

 
Case :- GOVERNMENT APPEAL No. - 135 of 2022
 
Appellant :- State of U.P.
 
Respondent :- Vijay Kumar Dubey
 
Counsel for Appellant :- Jail Apeeal
 
Counsel for Respondent :- Ayodhya Prasad Mishra A.P. Mishra
 

 
Hon'ble Shamim Ahmed,J.

The case is taken up in the revised call.

Heard Sri Manoj Kumar Singh, learned A.G.A. for the State-appellant Sri A.P.Mishra, learned counsel for the respondent and perused the material available on record.

The present leave to appeal under Section 378 Cr.P.C. has been filed against the judgment and order dated 18.08.2012 passed by the court of learned Additional District and Sessions Judge/T.E. C.P.-3, Lucknow in Sessions Trial No.97/2004 having Case Crime No. 48/2004 Police Station Kakori, District Lucknow by which the respondent was acquitted from the charge levelled against him.

The brief facts of the case is that on 28.02.2004 complainant Station House Officer, A.K.Singh along with Inspector Gyan Prakash Verma, Inspector Amod Kumar Singh, Constable 2242 Indra Prakash, Constable 0849 Rajesh Soni, Constable 1677 Yamuna Singh, Constable 2691 Harday Narayan Yadav, Constable 0541 Gajendra Singh, Constable 1687 Surya Narayan Chaubey, Constable 0802 Paras Nath Mishra, Constable 2784 Mohd Anees, Constable 2776 Ram Pravesh in their patrolling Vehicle No. UP 32-Y 7718  were busy in maintaining law and order at 21.00 Near Buddheshwar Chauraha. Police personnel got information from police informer that two persons are standing near Kakori turn who are having large quantity of brown sugar with them. On believing this information police personnel reached at the pointed place, where police informer pointed out at two people standing near Alchohol shop. On this suspicion, police personnel immediately caught them and inquired about their identities. After which one person told his name Dr. Lalit Rai, upon who's personal search 200 gram alleged illegal contraband was recovered from his possession and the second person told his name as Vijay Dubey, upon who's personal search also 200 gram alleged illegal contraband was recovered. Thereafter, both the accused persons were taken into custody after complying with the mandatory provisions of Section 50 of NDPS Act and the guidelines issued by Hon'ble Supreme Court as well as the Human Right Commission and the recovery memo was prepared on the spot by the police personnel.  

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 18.08.2012.

Learned A.G.A. for the State 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.

Learned counsel for the respondent submits that the present appeal is of the year, 2012. Moreover, there appears no illegality or infirmity in the judgment and order of acquittal passed by the court below, therefore, leave to appeal may be refused.

I have heard the learned counsel for the appellant and considered the ground as well as the learned counsel for the 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 respondent 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 respondent 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.

Leave to appeal is refused.

Application for leave to appeal is rejected.

Accordingly, the appeal does not survive, and in view of above, the appeal is also dismissed.

No order as to costs.

Copy of this judgment be sent to the court below for its compliance.

Order Date :- 7.2.2023

Arvind