Allahabad High Court
State Of U.P. vs Banti Alias Ashish And Another on 20 March, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:40430-DB
Court No. - 47
Case :- GOVERNMENT APPEAL No. - 914 of 2024
Appellant :- State of U.P.
Respondent :- Banti Alias Ashish And Another
Counsel for Appellant :- Ashutosh Kumar Sand
Hon'ble Siddharth,J.
Hon'ble Mohd. Azhar Husain Idrisi,J
Order on Criminal Misc. (Leave to Appeal) Application No. of 2024
1. Heard Mrs. Manju Thakur, 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 18.07.2014 passed by learned Additional Sessions Judge/Special Judge (POCSO Act), Court No.2, Meerut, in Session Trial No.1252 of 2008 (State of U.P. Vs. Rajesh Tomar and others).
3. By the aforesaid judgement and order, the accused-respondents have been acquitted of all charges under Sections 147, 302 read with Section 149, 201 IPC, which was registered as Case Crime No.16 of 2008 at Police Station Medical, District Meerut.
4. The prosecution story in brief is that complainant gave a written report at concerned police station stating therein that Rajesh Tomar, who is friend of his brother/Jaidev had taken his brother along from the house after calling him. In the way Yudhvir Singh also accompanied them. Thereafter they consumed liquor near C.D.A. Office after sitting with Sunil Kumar alias Sullar, Rajeev Bharala alias Dablu, Gaurav Sangwan, Banti, Kuldeep alongwith 3 unknown persons there some hot-talk took place between the deceased and accused and they committed murder of his brother. Yudhvir fled away and he narrated the above incident complainant and also disclosed that if he had not fled away, they would have also killed him. One year ago some hot-talks and marpeet took place between Banti, Sullad, Gaurav, Rajeev and deceased Jaidev and due to this reason they have committed the murder of brother of complainant. On the basis of aforesaid complaint, first information report of present case was lodged against accused persons under Sections 147, 148, 149, 302, 201 IPC and investigating officer after due investigation has submitted charge sheet against them under Sections 147, 148, 302 read with 149, 201/34 IPC and thereafter the case was committed for trial.
5. Trial court framed charges against the respondents which he denied and sought trial.
6. The prosecution in order to prove its case has examined PW-1, Sachin Dev (first informant of the case); PW-2, Smt. Rajbala; PW-3, Dr. Devendra Kumar Singhal; PW-4, Yudhvir Singh; PW-5, Krishna Pal Singh; PW-6, Babu Ram; PW-7, Dushyant Kumar Baliyan (I.O.); PW-8, Retd. S.I. Arvind Kumar and PW-9, Retd. Rajendra 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, which is not in accordance with law and against the evidence on record; they were required to be convicted along with co-accused, Rajesh Tomar and the order passed by the trial court is not justified.
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 as per FIR, accused Sunil @ Sullad, Banti, Gaurav, Rajeev, Rajesh Tomar, Kuldeep and three others had beaten Jaidev and, thereafter, murdered him.
17. PW-4, Yudhvir Singh claimed that he was present at the time of commission of alleged offence by the accused and escaped, otherwise he would have also been killed along with his brother, Jaidev. Before the trial court, PW-4 did not supported the allegations against accused persons and he was declared hostile. The deceased suffered 14 injuries.
18. PW-3, Dr. Devendra Kumar Singhal has proved that the deceased died on account of ante-mortem injuries.
19. Co-accused, Banti @ Ashish and Kuldeep were given benefit of doubt by trial court and were exonerated of all charges. The accused-respondents were also acquitted and only accused, Rajesh Tomar was convicted by the trial court. The trial court has found that PW-1, PW-2 and PW-5 saw the deceased lastly on 04.01.2008 at about 9:30 PM and he was not seen thereafter till 14.01.2008 when his dead body was recovered. The dead body was recovered in the bushes in open place. The trial court has not found that the offence under Section 149 read with 201 IPC is made out against the respondents. No motive of commission of crime was assigned to the accused respondents nor recovery of the dead body or any incriminating material has been made from their possession. The trial court has considered the evidence on record in correct perspective and the findings recorded by the trial court do not appear to suffer from any infirmity.
20. In view of the above, 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.
Let this judgement to be notified to the trial court, within two week.
Order Date :- 20.3.2025
Mini
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(Mohd. Azhar Husain Idrisi,J (Siddharth,J.)
