State Of U.P. vs Kishan Pal And Another
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Allahabad High Court

State Of U.P. vs Kishan Pal And Another on 12 November, 2024

Bench: Siddharth, Subhash Chandra Sharma

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:177111-DB
 
Court No. - 48
 

 
Case :- GOVERNMENT APPEAL No. - 822 of 2024
 

 
Appellant :- State of U.P.
 
Respondent :- Kishan Pal And Another
 
Counsel for Appellant :- A. K. Sand
 
Counsel for Respondent :- Rajesh Kumar Yadav,Sanjay Kumar Sharma
 

 
Hon'ble Siddharth,J.
 

Hon'ble Subhash Chandra Sharma,J.

Order on Criminal Misc. (Leave to Appeal) Application

1. Heard Smt. Manju Thakur, learned AGA-Ist for the State-appellant; Sri Sanjay Kumar Sharma, learned counsel for opposite party no.1; Sri Rajesh Kumar Yadav, leaned counsel for opposite party no.2 and perused the material on record.

2. The above noted government appeal is filed against the judgement and order of acquittal passed by Additional Sessions Judge, Court No.1, District Budaum, vide order dated 06.3.2024 in Case Crime No. 204 of 2010 (State of U.P. Vs. Kishan Pal and another), under Section 60(2) Excise Act and 272 & 273 IPC, Police Station Gunnaur, District Budaun.

3. The prosecution case is that the informant, Sub Inspector, Rajveer Singh, received information about manufacturing of illicit liquor by the respondents. He reached there and saw the respondents making illicit liquor and storing them in bottles. When attempt was made to arrest them, they escaped from the spot and thereafter illicit liquor stored in bottles was recovered from the spot.

4. Learned counsel for the appellant has submitted that trial court has mislead the evidence on record and wrongly acquitted the respondents.

5. The appellate Court is usually reluctant to interfere with a judgment acquitting an accused on the principle that the presumption of innocence in favour of the accused is reinforced by such a judgment. The above principle has been consistently followed by the Constitutional Court while deciding appeals against acquittal by way of Article 136 of the Constitution or appeals filed under Section 378 and 386 (a) Cr.P.C. in State of M.P. Vs. Sharad Goswami,(2021) 17 SCC 783; State of Rajasthan Vs. Shera Ram, (2012) 1 SCC 602, Shivaji Sahabrao Bobade Vs. State of Maharastra, (1973) 2 SCC 793.

6. The Supreme Court in the case of Ramesh Babulal Doshi Vs. State of Gujarat, (1996) 9 SCC 225 has observed that the High Court must examine the reasons given by the trial Court for recording their acquittal before disturbing the same by re-appraising the evidence recorded by the trial court. For clarity, para 7 is extracted herein below:

"Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant 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 appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant 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. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not."

7. The Supreme Court in the case of Sadhu Saran Singh Vs. State of U.P., (2016) 4 SCC 357 has observed that an appeal against acquittal has always been on an altogether different pedestal from 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.

8. The Supreme Court in the case Basheera Begam Vs. Mohd. Ibrahim, (2020) 11 SCC 174 has held that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If, upon analysis of evidence, two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and other of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the court might reverse an order of acquittal if the court finds that no person properly instructed in law could have, upon analysis of the evidence on record, found the accused to be "not guilty". When circumstantial evidence points to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime.

9. The Supreme Court in the case of Kali Ram Vs. State of H.P., (1973) 2 SCC 808 has observed as under:

"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought is to established by circumstantial evidence."

10. The Supreme Court again examined in State of Odisha v. Banabihari Mohapatra & Ors, (2021) 15 SCC 268 the effect of the probability of two views in cases of appeal against acquittal and held that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused, and the other to his innocence, the view which is favourable to the accused should be adopted.

11. The Supreme Court in Sujit Biswas v. State of Assam, (2013) 12 SCC 406 has reiterated the position that suspicion, however strong, cannot replace proof. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt.

12. In the background of the law discussed herein above, we will examine the trial court's findings and evidence adduced during the trial by the witnesses to test the legality and validity of the impugned order.

13. Respondents were implicated under Section 60(2) of Excise Act and Sections 272 & 273 IPC and accordingly charged.

14. The trial court has found that in the F.S.L. report, it has not been found that the recovered liquor was not fit for human consumption and dangerous for health or life. It also did not fond any evidence of the sale of the disputed liquor to anyone and therefore, absolved the respondents from the charges under Sections 272 & 273 IPC. It further found that the prosecution failed to prove that the samples collected were sent to the Forensic Science Laboratory for sample examination as per Section 3(13) of U.P. Excise Act. The opportunity for re-examination of the sample provided to the accused was also not provided to them. The trial court did not found any G.D. entry regarding withdrawal of the sample from Malkhana of the police station for sending it to the F.S.L. It found that no witness except the police personnels was produced before the trial court. No independent witness proved the recovery of the illicit liquor.

15. The learned counsel for the appellant for State is unable to controvert the findings recorded by the trial court by pointing out any legal and factual infirmity.

16. Keeping in view the para meters laid down for considering the government appeal, we are of the view that no interference is called in the judgement and order of the trial court, which is well-merited.

17. This leave to appeal application is rejected.

Order on Government Appeal

Since leave to appeal application is rejected, therefore, the above noted government appeal is, hereby, dismissed.

Order Date :- 12.11.2024

Ruchi Agrahari

(Subhash Chandra Sharma,J.) (Siddharth, J.)