Allahabad High Court
State Of U.P. vs Awadhesh Kumar Ahirwar S/O Bachchu Lal on 20 May, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:84745-DB
Court No. - 47
Case :- GOVERNMENT APPEAL No. - 300 of 2022
Appellant :- State of U.P.
Respondent :- Awadhesh Kumar Ahirwar S/O Bachchu Lal
Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Siddharth,J.
Hon'ble Madan Pal Singh,J.
Order on Criminal Misc. (Leave to Appeal) Application No. ... of 2022
1. Heard learned AGA for the State-appellant and perused the material on record.
2. The above noted leave to appeal has been filed praying for grant of leave to the appellant against the judgment and order dated 07.02.2022 passed by Additional Sessions Judge (F.T.C.) Jhansi in Sessions Trial No. 73/2012 (State Vs Awdhesh Kumar Ahirwar).
3. By the aforesaid judgment and order , the accused-respondent has been acquitted of all the charges under Sections 307, 323, 504, 506 IPC, which was registered as Case Crime No. 258 of 2011 at Police Station ? Tahrauli, District ? Jhansi.
4. The prosecution story in brief is that the informant?s wife Smt. Urmila is working as a Shiksha Mitra in the primary school at Dhawari. On the day of incident, after the school is closed as usual informant was taking his wife from the school to Gursarai at 4:10 pm. On the way near Junior High School Awdesh Ahirwal (accused) son of Bacchu Lal was sitting along with his licensed double barrel gun by hiding himself. As soon as the informant along with his wife on motorcycle, accused stopped him on the way and start hitting him with butt of his double barrel gun. As the wife of the informant tried to save him, accused with intention to kill her fired from his gun that cause injury on the right hand palm near the upper arm of the informant. By hearing the sound of gun shot, Deen Dayal Kushwaha, Jai Ram, Mahendra Ptel, Shrawan Kumar shivhare, rushed and save him. After that the accused flew away threatening to kill entire family.
5. After lodging the FIR in the present case, the Investigating Officer started investigation and after making detailed investigation, completed all formalities and collecting credible evidences has submitted charge sheet against the accused in the court below to face the trial.
6. The accused denied the charges and sought the trial.
7. The prosecution in order to prove its case has examined PW-1 Purushottam (first informant), PW-2 Urmila (wife of the informant), PW-3 Dr. Mahesh Chandra, PW-4 Sohan Veer Singh Sub Inspector ( Investigating Officer), PW- 5 Sanjay Kharwar Inspector (second Investigating Officer).
8. Learned counsel for the appellant has submitted that trial court has misread the evidence on record and wrongly acquitted the respondents.
9. 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.
10. 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."
11. 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.
12. 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.
13. 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."
14. 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.
15. 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.
16. 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.
17. We have heard learned counsel for the appellant and perused the material on record. It has been seen in the evidence that P.W-2 wife of the informant, was posted as Siksha Mitra in Kanya Primary School and the accused was also posted in the said school as Principal. P.W.-2 has stated that the accused used to harass her and altercation took place between them. P.W.-2 in this regard has made a complaint against the Principal/accused, thereafter she was transferred to Primary School, Thawari by him. P.W.-2 and Principal i.e. accused had strained relations and she was also annoyed with the Principal on account of her transfer. Thus possibility cannot be ruled out that for the very same reason this story was setup by the husband of the P.W.-2. Moreover, the independent witness who are alleged to have reached the place of incident after hearing the gun shot, have not been produced as witness on the behalf of the informant. In the FIR, it is mentioned that the informant along with his wife has received injuries but as per the statement of P.W-2, wife of the informant, she did not receive any firearm injury which was also confirmed by Investigating Officer P.W.-5. As per the statement of P.W.-3 Dr. Mahesh Chandra, there is no firearm injury received by the injured. The injury was received due to sudden fall. The licensed double barrel gun was recovered from the house of the accused does not proved that the licensed gun was used in the said incident, since the said gun was neither sent for forensic science laboratory examination nor was any empty cartridge recovered. The trial court has considered the legal aspects of the case thoroughly and has found that the accused respondent deserve to be given benefits of doubt and has acquitted him.
18. They have not found 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 evidences.
19. This leave to appeal application is rejected.
Order on Government Appeal
20. Since leave to appeal application is rejected, therefore, the above noted government appeal is, hereby, dismissed.
21. Let the record of the trial court be returned and this judgement to be notified to the trial court, within two weeks.
Order Date :- 20.5.2025
Akbar
(Madan Pal Singh,J.) (Siddharth ,J.)
