Allahabad High Court
State Of U.P. vs Banta Pal S/O Sri Unwar And Another on 10 March, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:34634-DB
Court No. - 47
Case :- GOVERNMENT APPEAL No. - 149 of 2023
Appellant :- State of U.P.
Respondent :- Banta Pal S/O Sri Unwar And Another
Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Siddharth,J.
Hon'ble Praveen Kumar Giri,J.
Order on Criminal Misc. (Leave to Appeal) Application No. of 2023
1. Heard Sri Prem Shankar Prasad, learned AGA-I for the State-appellant and perused the material on record.
2. The above noted leave to appeal application has been filed praying for grant of leave to the appellant to prefer appeal against the judgement and order of acquittal dated 11.11.2022 passed by Additional Sessions Judge/Special Judge (POCSO Act), District Mahoba, in Sessions Trial No.48 of 2018 (State of Uttar Pradesh Vs. Bantapal and another).
3. By the aforesaid judgement and order, the accused-respondents have been acquitted of all charges under Sections 302/34, 201 IPC, which was registered as Case Crime No.44 of 2018 at Police Station Kabrai, District Mahoba.
4. The prosecution story in brief is that the complainant, Pooran Lal, gave a written report at concerned police station stating therein that his younger brother, Preetam Kumar, used to watch his field as usual everyday. On 10.02.2018 at 12.00 hours his mother, Smt. Halki reached there after taking meals and saw that dead body of his brother was lying on the field of Jagmohan in burnt condition. His mother informed the persons nearby, who came and it seems that some unknown person has burnt his dead body after committing murder of his brother. On the basis of aforesaid complaint first Information report was lodged against unknown on 10.02.2018. Thereafter, on 19.02.2018 complainant gave an application at concerned police station stating therein that murder of his brother was committed in the intervening night of 09/10.02.2018 by way of burning his dead body after committing his murder, whose first information report has been lodged by him against unknown. He has discovered illicit relationship of wife of deceased, namely, Sukhdevi, with Bantapal. In December, 2017 deceased has caught his wife while she was talking on phone with Bantapal and wife of deceased had admitted her guilt. Thereafter, on 07.01.2018 Sukhdevi had gone to her Mayaka at village Riwai, Police Station Charkhari, from there on 17.01.2019 she had gone to place of her maternal uncle with Bantapal. Thereafter, when wife of deceased returned on 21.01.2018, she was strictly asked and she admitted that she had gone with Banta. Banta was talking about running away to Delhi, but Sukhdevi said that her brother-in-law would kill her. Banta said that he would deal with him. Considering that fate of his two children, Sukhdevi forgave him. Slippers of his brother were found lying near his brother's dead body at the spot. He is now convinced that his brother's fault became a stumbling block in illicit relationship of Banta and Sukhdevi, who are involved in his murder. When complainant asked his wife strictly, he came to know that Bantapal and his maternal uncle's son Raju and wife of his brother were involved in killing his brother Preetam. His wife's mobile number is 8400691221 on which Sukhdevi used to talk on Banta Pal's mobile number 9936873501. During investigation complicity of accused respondents and another accused Rajupal was fully established and investigating officer after due investigation submitted charge-sheet against them.
5. Trial court framed charges against the respondents which they denied and sought trial.
6. The prosecution in order to prove its case has examined as PW-1, Pooran Lal, (complainant); PW-2, Pushpendra Singh; PW-3, Dr. Anurag Purwar; PW-4, R. P. Singh (S.I.); PW-5, Head Constable, Roop Singh; PW-6, Ramdev Parashar and PW-7, Inspector Incharge, Baljeet Singh.
7. Learned counsel for the appellant has submitted that trial court has acquitted the accused- respondents holding that the prosecution has failed to prove its case beyond all reasonable doubt and as such the accused-respondents are entitled for acquittal.
8. 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.
9. 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."
10. 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.
11. 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.
12. 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."
13. 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.
14. 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.
15. 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.
16. We have heard learned counsel for the appellant and perused the material on record. We find that the trial court has recorded the finding that the case is based on circumstantial evidence. PW-2, Pushpendra Singh and PW-6, Ramdev Parashar, have been examined as eye-witnesses, but their evidences have not been found to be credible by the trial court. The trial court has also found that the dead body of the deceased was not worth identification. PW-3 admitted that the dead body of the deceased was not identified. He wrote the name of the dead body on the post mortem report only on the basis of name mentioned in the inquest report. No D.N.A. test to fix for the identity of the dead body was conducted. The slippers recovered from the place of incident were not proved to be the deceased. The story of Bantapal having illicit relationship with Sukhdevi, wife of the deceased, which was set up as motive of the crime, was not proved by the PW-1 before the trial court. Learned counsel for the appellant has laid much stress on calls details collected by the Investigating Officer proving that Bantapal and Sukhdevi were talking to each other from their mobile phones. The trial court has found that there is no evidence produced by the prosecution as to what the subject of their talking. There does not appears to be any certificate under Section 65-B of Evidence Act regarding C.D.R. details on record. The trial court has found that the accused are related as Devar and Bhabhi and both have their houses in the same locality and therefore, mere talking on phone cannot be the motive of commission of crime in dispute. The trial court has recorded a very detailed and convincing judgement given sufficient reason as to why the prosecution has failed to prove its case beyond reasonable doubt. The trial court in the case of Goverdhan and another Vs. State of Chhatthisgarh, Criminal Appeal No.116 of 2011, has considered what is meant by reasonable doubt in paragraph Nos. 21, 22 and 23, which are as follows:-
"21. It will be relevant to discuss, at this juncture, what is meant by "reasonable doubt". It means that such doubt must be free from suppositional speculation. It must not be the result of minute emotional detailing, and the doubt must be actual and substantial and not merely vague apprehension. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense as observed in Ramakant Rai v. Madan Rai, (2003) 12 SCC 395 wherein it was observed as under :
"24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. To constitute reasonable doubt, it must be free from an overly emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
22. While applying this principle of proof beyond reasonable doubt the Court has to undertake a candid consideration of all the evidence in a fair and reasonable manner as observed by this Court in State of Haryana v. Bhagirath (1999) 5 SCC 96 as follows:
"8. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression 'reasonable doubt' is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge.
9. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
'It is difficult to define the phrase "reasonable doubt". However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case [Commonwealth v. Webster, 5 Cush 295 : 59 Mass 295 (1850)] . He says:"It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."'
10. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
'The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt.'
23. The concept of reasonable doubt has to be also understood in the Indian context, keeping in mind the social reality and this principle cannot be stretched beyond a reasonable limit to avoid generating a cynical view of law as observed by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 as follows:
"6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned Author [ Glanville Williams in 'Proof of Guilt'.] has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted "persons" and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent .?" 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. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago."
17. After considering the evidence on record, this Court does not finds any perversity in the findings recorded by the trial court. The trial court's judgement is a well merited one, this Court need not re-appreciate the evidence.
18. This leave to appeal application is rejected.
Order on Government Appeal
1. Since leave to appeal application is rejected, therefore, the above noted government appeal is, hereby, dismissed.
2. Let the record of the trial court be returned and this judgement to be notified to the trial court, within two week.
Order Date :- 10.3.2025
Ruchi Agrahari
(Praveen Kumar Giri,J.) (Siddharth, J.)
