Allahabad High Court
State Of Up vs Moolu Alias Shivram S/O Late Rajvir And ... on 6 February, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:26863-DB
Court No. - 47
Case :- GOVERNMENT APPEAL No. - 31 of 2022
Appellant :- State of U.P.
Respondent :- Moolu Alias Shivram S/O Late Rajvir And Others
Counsel for Appellant :- Shiv Kumar Pal
Counsel for Respondent :- A.G.A.
Hon'ble Siddharth,J.
Hon'ble Praveen Kumar Giri,J.
Order on Criminal Misc. (Leave to Appeal) Application
1. Heard Sri Sushil Kumar Pandey, learned A.G.A.-Ist for the appellant and perused the record.
2. The above noted government appeal is filed against the judgment and order of acquittal dated 11.10.2021 passed by Additional District and Sessions Judge/ Fast Track Court, Court No. 1, Kasganj, in Sessions Trial No. 331 of 2013 (State of U.P. vs. Moolu alias Shivram and others), arising out of Case Crime No. 81 of 2013, under Sections 364, 302 & 201 of IPC at Police Station - Sikandarpur Vaishya, District - Kasganj.
3. The prosecution story is that informant-Ram Ladaite (PW-1) had given a written report at concerned police station stating therein that on 18.06.2013 at about 8.00 AM, his sons Durvin and Balvir had gone to return the money to his relatives which was taken as debt on Discover motorcycle. When they reached at Patiyali, one Moolu alias Shivram met them and asked Durvin where are you going. Then his son replied that he was going to Kasganj. Moolu asked him to accompany him on the motorcycle for which the younger son of informant refused. Thereafter, Balvir went for taking seeds from some store. When he returned he saw that Moolu and Durvin were taking liquor. Balvir stopped his brother from taking liquor with Moolu. On this, Moolu assured Balvir that nothing would happen to his brother. Thereafter, both Moolu and Durvin went towards Kasganj and Balvir returned to his village. Thereafter, Durvin met his relative and returned the debt amount and from there they went to Barukula village. Thereafter, Durvin did not return.
4. On the basis of the aforesaid complaint, F.I.R. of missing was lodged. During the investigation, name of accused persons came into light and on the basis of evidence collected during investigation, charge-sheet was submitted under Sections 364, 302 & 201 of IPC on 16.09.2013.
5. Thereafter, Magistrate took cognizance upon the said Charge sheet and the matter was committed to Court of Sessions, Kasganj on 26.09.2013.
6. On 27.01.2014, charges were framed against the accused persons under 364, 302 & 201 of IPC to which the accused-respondents pleaded not guilty and sought trial.
7. The prosecution, in order to prove its case, has led 13 documentry evidence including postmortem report and examined as many as 8 witnesses namely, PW-1, Ram Ladaite, PW-2, Balvir; PW-3, Ravendra Singh; PW-4, Dr. C.M.A. Yadav; PW-5, Devanshri; PW-6, Narendra Singh; PW-7, Kanhaiya Lal; PW-8, Rakesh Kumar Yadav.
8. After prosecution evidence was completed, the accused were put to question under Section 313 of Cr.P.C. wherein the appellants denied the allegations levelled against them and stated that they were falsely implicated in the present case.
9. At the end of the trial, after hearing the arguments on behalf of prosecution and the defence the, Trial Court acquitted the accused-respondents holding that the prosecution has failed to prove its case beyond all reasonable doubts.
10. Learned counsel for the appellant has submitted that trial court has misread the evidence on record and wrongly acquitted the respondents.
11. Before we embark on testimony and the judgment of the Trial Court, the principle for interfering in appeal against acquittal would be required to be discussed.
12. 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.
13. 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."
14. 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.
15. 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.
16. 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."
17. 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.
18. 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.
19. 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.
20. We have perused the depositions of prosecution witnesses, documentary evidence supporting ocular versions and arguments advanced by learned counsel for the appellant. On perusal of the record, we finds that the F.I.R. was delayed, there are material contradictions in the depositions of PW-1 and PW-2 with regard to lodging of missing report. The prosecution has failed to prove any motive of the accused persons to do away with the deceased. None of the witnesses deposed that there was any enmity between the accused persons and the deceased or his family members. Even PW-3 & PW-4 were not knowing accused-Moolu alias Shivram nor any friends of deceased. Doctor who conducted the postmortem failed to opine that the Skelton which was found was of male or female. He could not state whether it was of deceased or someone else. In all, the prosecution witnesses have not supported the prosecution case. Rather the prosecution has failed to produce any independent eyewitness who can support the prosecution case and, therefore, we are unable to accept the submissions of the State counsel in view of the the judgments of the Apex Court which lay down the criteria for considering the appeals against acquittal. Therefore, the Trial Court has rightly held that no witness was produced to prove the last scene theory and the chain of circumstances is incomplete. The factual scenario in the present case will not permit us to take a different view then that taken by the Trial Court. In that view of the matter, we are unable to satisfy ourselves with the submission of learned A.G.A. for the appellant-State and we concur with the findings of the Trial Court.
21. The judgment of the trial court is well considered and learned counsel for the appellant is unable to point out any perversity in the findings recorded by the trial court.
22. In view of the above, application seeking leave to appeal is rejected.
Order on Government Appeal No. 31 of 2022
In view of the fact that application seeking leave to appeal has been rejected, the government appeal stands dismissed.
Let Trial Court's Record along with a copy of this judgment be sent to the trial court within two weeks.
Order Date :- 06.2.2025
DKS
