Allahabad High Court
State Of U.P. vs Manoj Kumar S/O Roshan Lal And Another on 11 July, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:111057-DB
Court No. - 47
Case :- GOVERNMENT APPEAL No. - 873 of 2024
Appellant :- State of U.P.
Respondent :- Manoj Kumar S/O Roshan Lal And Another
Counsel for Appellant :- Shiv Kumar Pal
Counsel for Respondent :- Shailendra Kumar Tripathi,Shashi Kumar Mishra
Hon'ble Siddharth,J.
Hon'ble Avnish Saxena,J.
(Per Justice Avnish Saxena)
Order on Criminal Misc. (Leave to Appeal) Application No. Nil of 2024
1. Heard Sri Prem Shankar, learned AGA for the State and Ms. Prachi Shukla, Advocate holding brief of Sri S.K.Mishra, learned counsel for the accused-respondent.
2. The above noted government appeal is filed against the judgement and order dated 09.09.2022 passed by Special Judge (D.A.A.), Etah, in Special Sessions Trial No. 58 of 2005 (State Vs. Manoj Kumar and another) arose out of Case Crime No. 229 of 2005, under Sections 302/34, 201, 394 and 412 IPC, Police Station-Kotwali, District- Etah, whereby the respondents-accused, Manoj Kumar and Om Prakash, have been acquitted of the charges framed for offence under Sections- 302/34, 201, 394 and 412 IPC.
3. The prosecution case arising out of FIR dated 1st June, 2005 reveals that the first informant Santosh Kumar was having a Jugad vehicle. On 17th March, 2005, at about 7.00 a.m. his brother Sudhir Kumar (deceased) left the residence with Jugad for plying. A person, Jhantu has informed the informant that his Jugad, hired by some persons, stationed at Kali Mandir, District Etah. The informant reached there and came to know that four persons had hired his Jugad for Rs. 600/- for transporting cattle from Kali Mandir to Jalesar and an advance Rs. 100/- was paid. As the informant had to go somewhere else, he left and return home the next day, and came to know that his brother Sudhir Kumar (deceased) did not return home previous night. The entire family went in search of the deceased, but could not find him. On 20th March, 2005 he came to know about a dead body lying in district mortuary. He along with Vijay Prakesh and Jagdish went to the mortuary and found the dead body of deceased, Sudhir Kumar. From 20th March, 2005 till the date of lodging of FIR, the informant undertook extensive search of his brother and tried to figure out his murder and got a tip off that his Jugad is being plied by a person. At 12:30 PM., on 1st June, 2005, the informant along with Rakesh, Satish, Vijay Prakash, Vinod and Bhupendra went to Sikandra Rau and intercepted the vehicle. They found that Jugad was being driven by Manoj Kumar and Om Prakash was sitting beside him. The informant and his companion had taken the Jugad and apprehended both the accused to the police station where FIR was lodged at 15.15 hours at Police Station Kotwali Nagar, District Etah, which is situated at a distance of 1 km away from the place where Jugad was intercepted and accused were apprehended.
4. It is mentioned in the FIR that the two named and two anonymous persons are involved in the incident of loot and murder of deceased, Sudhir Kumar. The charge-sheet was submitted by the police after investigation.
5. Prosecution has produced two witnesses of fact and three formal witnesses. The witnesses of fact are PW-1 Santosh Kumar (informant) and PW-2 Vijay Prakash as an independent witness with whom the informant went to District Mortuary to identify the dead body of Sudhir Kumar, who is also a witness of intercepting Jugad and apprehending accused.
6. Postmortem report of the deceased, Ext. Ka-4 was proved by Dr. Pradeep Kumar Gupta. In his deposition before the court he has stated that "Body is in stage of advanced decomposition, body skin with musculature is eaten by animals at the right side of chest, upper part of abdomen, right lung, part of heart, skin and musculature of face, neck and scalp eaten by animals. Large maggots present all over the body, large blisters present over both lower limbs and abdomen. Nails easily pullable both of upper and lower limbs".
7. The postmortem report Ext. Ka-4 reveals on the face of it that when postmortem examination was carried out by the Doctor the name of deceased was not known. It is also mentioned in the postmortem report that clothes of deceased were taken out and handed to constable Hakim Singh and Rajendra Singh.
8. Moreover, the inquest reports, Ext. Ka-9 also reveals that the dead body can not be identified. The inquest has been carried out on the body of unknown person. There is no mark of injury mentioned in the inquest report.
9. The Trial Court while acquitting the accused has held that the FIR is extensively delayed as there is no missing report lodged in the police station, though according to PW-2 Vijay Prakash the missing report has been lodged at the police station, but PW-3 Head Moharrir Govind has denied any missing report on 19th March, 2005. There is no FIR of murder lodged by the informant on or after March 20, 2005, when the dead body of deceased Sudhir Kumar was recovered and identified. The FIR has been lodged on 1st June, 2005 after a delay of nearly three months. It is further observed that the Jugad and the accused were intercepted by the informant from the public place with no independent witness. The prosecution case in respect to lodging of the FIR on 1st June, 2005 is silent with regard to explanation for delay, though informant Santosh Kumar has seen the alleged accused on 17th March, 2005, who knew that the deceased did not return home; or after identifying the dead body of Sudhir Kumar, the FIR even against anonymous person has not been lodged. There is no description of Jugad revealed from entire prosecution case which has been seized by the police, when intercepted by the informant Santosh Kumar and PW-2 Vijay Prakash on 1st June, 2005.
10. It is also observed by the Trail Court that all the Jugads look like the same as they do not bear any number.
11. Trial court has acquitted the accused-respondents holding that the prosecution has failed to prove its case beyond reasonable doubt.
12. Learned A.G.A. for the State/appellant has submitted that trial court has misread the evidence on record and wrongly acquitted the respondents.
13. 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 alias Vishnu Dutta, (2012) 1 SCC 602, Shivaji Sahabrao Bobade Vs. State of Maharastra, (1973) 2 SCC 793.
14. 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."
15. 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.
16. 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.
17. 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 establish by circumstantial evidence."
18. In the background of the law discussed herein above, we have examined the trial court's findings and evidence adduced during the trial by the witnesses to test the legality and validity of the impugned judgement and order.
19. We are of the considerate view that matter pertains to circumstantial evidence, wherein the prosecution has to prove five essentials, viz.:
(1). The circumstance from which the conclusion of guilt is to be drawn should be fully established;
(2) The facts so established should be consistent only with the hypothesis of guilt of the accused that was so that they should not be explainable on any other hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be proved; and
(5)There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
20. The above golden principles holds the ground and are settled principles of law propounded by the Apex Court in the case of Sharad Birdhi Chand Sarda vs State Of Maharashtra (1984) 4 SCC 116, which has also been relied on in plethora of judgments including the case of Rahul Versus State of Delhi, Ministry of Home Affairs and another (2003) 1 SCC, 83.
21. We have considered the evidence on record and the legal prepositions. In the present case there is an apparent delay in lodging the FIR, which is unexplained; deceased was lastly seen by informant Santosh Kumar on 17th March, 2005 in the company of accused, when he visited Kali Mandir; the time of last seen is not mentioned in the prosecution case; the alleged four accused who had hired Jugad for carrying cattle from Kali Mandir to Jalesar were the probable accused, within the knowledge of the informant, PW-1 Santosh Kumar, but despite that no FIR has been lodged either on 18th March, 2005 when the informant first came to know that his brother did not return home or on 20th March, 2005, when the informant had identified the dead body of his brother. No FIR has ever has been lodged for missing of brother and Jugad. Hence, there is no last seen witness, who would have seen the accused and deceased together. If the informant happens to be the last seen witness, then there is undue long delay in between the last seen and death of deceased, recovery of dead body and lodging of F.I.R.
22. The informant and PW-2 Vijay Prakash had seized the Jugad and apprehended the accused on 1st June, 2005 at 12:30 PM, who were taken to the police station on the same day at 3.15 PM, though the police station is situated at a distance of 1 KM from the place of incident from where the Jugad was seized by the informant and five persons, including PW-2.
23. The chain of events does not contemplate that it is the accused who have committed the murder of deceased, Sudhir Kumar. Moreover, postmortem report does not support the homicidal death of deceased Sudhir Kumar, as no cause of death is reflected from the prosecution.
24. Thus after hearing learned counsel for the State as well as learned counsel for the opposite parties and going through the record, we find that there is no clinching evidence, which has been ignored by the trial judge while acquitting the accused, which requires the grant of leave for filing of appeal against acquittal, hence the same is declined.
25. Application for leave to appeal is, accordingly, rejected.
Order on Government Appeal No. 873 of 2024
26. Consequent upon rejection of Criminal Misc. (Leave to Appeal) Application No. Nil of 2024, the government appeal is also dismissed.
27. Office is directed to return the trial court's record along with a copy of this judgement to the trial court within ten days.
Order Date :- 11.7.2025
MN/-
(Avnish Saxena,J.) ( Siddharth,J.)
