State Of U.P. vs Adarsh Rajpoot S/O Kanhayalal
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Allahabad High Court

State Of U.P. vs Adarsh Rajpoot S/O Kanhayalal on 1 March, 2024

Author: Rahul Chaturvedi

Bench: Rahul Chaturvedi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:37943-DB
 
Court No. - 67
 

 
Case :- GOVERNMENT APPEAL No. - 81 of 2024
 

 
Appellant :- State of U.P.
 
Respondent :- Adarsh Rajpoot S/O Kanhayalal
 
Counsel for Appellant :- Ashutosh Kumar Sand
 

 
Hon'ble Rahul Chaturvedi,J.
 

Hon'ble Anish Kumar Gupta,J.

Re: Criminal Misc. Application (Leave to Appeal)

1. Heard Sri Satyendra Tiwari, learned A.G.A., learned counsel for the appellant.

2. The present Government Appeal under Section 378(3) of the Code of Criminal Procedure has been filed assailing the validity and legality of the impugned judgment and order dated 06.12.2023 passed by Special Judge (D.A.A.), Jhansi in Session Case No. 710 of 2020 (State Vs. Abhi @ Abhishek Rajput and two others), arising out of case crime no. 243 of 2020, under Sections 394, 411 IPC, P.S. Chirgaon, District Jhansi, whereby the accused-opposite party has been acquitted from the charges under Sections 394, 411 IPC by giving the benefit of doubt.

3. We have heard learned A.G.A. at length on the admission of the appeal and at the admission stage, we are going to dispose of the present government appeal.

4. Submission advanced by the counsel for the informant-appellant is that the informant Kailash Narayan has lodged a first information report on 07.11.2020 alleging therein that on the same day at around 1.00 hours in the day, when she along with his daughter Smt. Neelam were going to village Modkala on motorcycle, as soon as they reached over the Sultanpura bridge, one white colour motorcycle came over which three persons were riding, covering their face by mask intercepted them and given brutal dash to their motorcycle, consequently, the informant lost his balance, minor grandson (son of his daughter) and his daughter fallen down from the motorcycle and thereafter one of the assailant after putting Tamancha (country made pistol) on his head, looted the golden chain of her daughter. Her daughter has identified two of the assailants, out of three. The identified accused were Abhi @ Abhishek Rajput and Shahil. Both of them belong to the same village and one unknown person could not be identified.

5. It is worth mentioning that co-accused Abhi @ Abhishek Rajput and Shahil, both were declared juvenile during trial and they are facing trial before the juvenile court. The accused-opposite party is the unknown persons, who could not be identified but to establish his identity no test identification parade was ever conducted by the prosecution.

6. We have heard Sri Satyendra Tiwari, learned Additional Government Advocate, at length and from the aforesaid judgment it has been culled out that at no point of time any test identification parade was conducted by the prosecution so as to establish the identity of the accused-opposite party.

7. Learned AGA had emphasized upon the facts that on 11.11.2020 the police have nabbed two persons on the motorcycle and have recovered looted golden chain from their possession. This recovery was made by Sri Devendra Kumar Dwivedi (P.W.4), In-charge Inspector, who in his testimony has stated that he has recovered the golden chain from the accused.

8. The interesting feature of the case is that when the inspector was put to cross-examination, he made startling revelation to the effect that the alleged recovery was shown to have been made on 11.11.2020 at around 17.55 hours but the police got the said golden chain identified at the police station on 11.11.2020 at around 11.00 on the same day. Thus, it is next to impossible that the alleged arrest was affected on 11.11.2020 at 17.55 hours and from whom alleged recovery of golden chain was made but the same was identified by the P.W.1-Kailash Narayan and P.W.2-Neelam Rajput at the police station at around 11.00 hours in the day. The alleged recovery is vitiated on this score alone and thus, the learned Special Judge (D.A.A.), Jhansi has concluded that the entire prosecution case suffers from manifest illegality and the doubtful recovery of the alleged golden chain and therefore, after giving the benefit of doubt acquitted the accused-opposite party from the charges under Sections 394, 411 of IPC.

Legal Discussion :-

9. After hearing the rival submissions, the Court has got occasion to lay its hands on the latest judgements relating to scope and ambit of Sections 378 and 386 of the Code of Criminal Procedure, which speak about appeal against acquittal.

10. In the case of Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471, while thrashing the earlier judgements, the Hon'ble Apex Court has held as under :

"24. In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793, Krishna Iyer, J., observed as follows:

"6. ..... In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."

25. This Court in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225, spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows:

"7. ..... While sitting in judgment over an acquittal the appellate 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 appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate 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."

The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In another words, there should not be an acquittal of the guilty or a conviction of an innocent person.

29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa vs. State of Karnataka (2007) 4 SCC 415) :

"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, reappreciate 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 emphasize 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."

11. Similarly in Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, the Hon'ble Supreme Court has been pleased to discuss the scope of the High Court to interfere in an appeal against an order of acquittal passed by a Trial Court, and in paragraph-10 it has been held that :

"10. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in the case of Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 11 SCC 186, para 13, wherein this Court observed that:

"13......The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt."

12. In the same chain the Hon'ble Apex Court in Jayamma and another vs. State of Karnataka, (2021) 6 SCC 213, has considered the law on the issue involved and observed thus :

"23. The other important reason to depart from the High Court's view re. conviction of the appellants is that the power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ''possible view'. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."

13. Considering the facts and circumstances of the case, we do not find that the alleged finding of recovery is to be replaced by our finding and as such we do not find any illegality or perversity in the impugned judgment of acquittal dated 06.12.2023 recorded by the trial court by which the accused-opposite party has been acquitted from the charges under Sections 394 and 411 IPC.

14. After critically scrutinizing the entire material on record, the Court is of the considered opinion that the judgment and order passed by learned Special Judge (D.A.A.), Jhansi dated 06.12.2023 does not suffer any manifest error of law or it is palpably wrong or demonstrably not sustainable in the eye of law and as such does not deserve any interference from this Court in exercise of power under Section 378/386 Cr.P.C. and accordingly no case for granting leave to appeal is made out. Accordingly, application for granting leave to appeal is hereby rejected.

Re: Government Appeal

Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by order of date, the present government appeal is also dismissed.

Order Date :- 1.3.2024

Prajapati