State Of U.P. vs Lavkush And 3 Ors.
2025 Latest Caselaw 11713 ALL

Allahabad High Court

State Of U.P. vs Lavkush And 3 Ors. on 27 October, 2025

Author: Rajnish Kumar

Bench: Rajnish Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:66145-DB
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW 
 
APPLICATION U/S 378 DEFECTIVE No. - 221 of 2008   
 
   State of U.P.    
 
  .....Applicant(s)   
 
 Versus  
 
   Lavkush And 3 Ors.    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Applicant(s)   
 
:   
 
G.A.   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
 
 
   
 
     
 
 Court No. - 10
 
   
 
 HON'BLE RAJNISH KUMAR, J.  

HON'BLE ZAFEER AHMAD, J.

C.M. Application No.57629/2008 (Application for Condonation of Delay)

1. Heard learned A.G.A. for the State.

2. None appeared on behalf of the respondents.

3. Office has reported delay of two months and two days in filing of Application under Section 378 Cr.P.C.

4. On due consideration of affidavit filed in support of the application for condonation of delay as well as the report submitted by the office, the grounds are sufficient to condone the delay occurred in filing the Application under Section 378 Cr.P.C. by the State.

5. Accordingly, the application is allowed and the delay occurred in filing the Application under Section 378 Cr.P.C. by the State is hereby condoned.

Order on Memo of Application under Section 378 Cr.P.C.

6. This appeal under Section 378(3) Cr.P.C. has been filed against the judgment and order dated 07.01.2008 passed by learned Additional Sessions Judge / FTC Court No.8, Pratapgarh in Sessions Trial No.531/2006, arising out of Case Crime No.188/2005, under Sections 302/34, 120B/34 IPC, Police Station Kotwali Kunda, District Pratapgarh, whereby the accused/respondents have been acquitted by the learned trial court.

7. By means of the impugned judgment and order dated 07.01.2008, the accused/respondents have been acquitted, thus, the impugned judgment and order was also challenged by the complainant in Criminal Revision No.38/2008 (Smt. Chitra Rekha Vs. Lavkush and Others), under Section 397/401 Cr.P.C. The said Criminal Revision has been dismissed by means of order dated 08.09.2022, which on reproduction, reads as under:-

"1. No one has put in appearance on behalf of the revisionist to press this revision even in the revised call though the case is listed peremptorily today. However, Sri Bhanu Pratap Singh, learned AGA is present.

2. The present criminal revision under Section 397 read with Section 401 Cr.P.C. has been filed against the judgement and order of acquittal dated 7.1.2008 passed by the Additional Sessions Judge/Fast Track Court No.8, Pratapgarh in S.T. No.531 of 2006, whereby the learned trial court had acquitted respondent nos.1 to 4 for the offences under Sections 302, 120-B/34 IPC.

3. I have gone through the judgement and order passed by the trial court.

4. The incident allegedly took place in the year 2005. The judgment and order of the trial court is dated 7.1.2008. This revision was filed in the year 2008 and thus, it has remained pending for the last 14 years.

5. The trial court after considering the evidence and taking into consideration the statements of the prosecution as well as defence witnesses, had acquitted respondent nos.1 to 4 of the offences as mentioned above. The view taken by the trial court is plausible one and it cannot be said that the judgement and order passed by the trial court acquitting the accused is perverse or manifestly incorrect. Therefore, this Court should not interfere with the impugned judgement and order passed by the trail court in exercise of revisional jurisdiction as there is no manifest error in it.

6. The revision without any merit and substance, is dismissed."

8. Learned A.G.A. though vehemently argued that the respondents have wrongly and illegally been acquitted by the learned trial court without considering the evidence and material on record, however, he could not point out any illegality or error in the finding recorded by the learned trial court.

9. This Court has considered the submissions of learned counsel for the appellant / A.G.A. and perused the impugned judgment and order.

10. The prosecution story, in brief, is that on 26.12.2005 the deceased Brijendra Kumar had gone to Tehsil Kunda in a case. While he was coming back and reached ahead Chaura on Kunda Vihar Road near agricultural field of Ram Sunder Tiwari, the accused persons, namely, Lavkush S/o Shiv Murat Tiwari, Subhash and Rajendra S/o Rishiram Tiwari killed him by fire. It was 02:30 PM. The conspiracy of deceased Brijendra Kumar was made by Ram Sakhi W/o Shiv Murat Tiwari in collusion with the accused persons. The incident was seen by the persons residing in the nearby place and the commuters and Hari Shanker Tiwari, Anwasi and Aidha and several other persons. The information of the incident was given by the wife of the deceased Chitra Rekha R/o Village Harbanspur Tekpatti, Police Station Baghrai, District Pratapgarh on 26.12.2005 itself through an application to the Police Station Kotwali Kunda, District Pratapgarh, which has been marked as Ex. Ka-1.

11. On the basis of application of the complainant, an F.I.R. bearing Case Crime No.188/2005, under Sections 302, 120-B/34 I.P.C. was lodged at Police Station Kotwali Kunda, District Pratapgarh, which has been marked as Ex. Ka-15. After investigation, charge sheet was filed under Sections 302, 120-B/34 I.P.C. The matter, being cognizable by the Sessions, was committed to the Sessions by means of an order dated 21.08.2006 passed by learned Additional Chief Judicial Magistrate, Kunda, Pratapgarh. Charges against accused persons, namely, Lavkush, Subhash, Rajendra and Smt. Ramsakhi were framed under Sections 302/34 and 120-B/34 I.P.C. on 10.10.2006. The accused persons denied the charges and pleaded for trial.

12. In order to prove its case, the prosecution produced Smt. Chitra Rekha as P.W.-1, Harishanker Tripathi as P.W.-2, Smt. Nirmala Devi as P.W.-3, Dr. Santosh Kumar Tripathi as P.W.-4, Bhola Prasad Srivastava as P.W.-5, Sub Inspector Bhanu Pratap Singh Baghel as P.W.-6 and Constable Ved Mani Pandey as P.W.-7.

13. The prosecution also filed and proved documentary evidences i.e. application of the complainant, copy of F.I.R., G.D. Entry, photo of the dead body, medical report, inquest report, post mortem report and the site plan prepared by the Investigating Officer etc.

14. After oral evidences of the prosecution, statements under Section 313 Cr.P.C. of the accused persons were recorded, in which they stated that they have falsely been implicated in the case by the prosecution on account of enmity. In defence, the accused persons filed certain documents.

15. After hearing learned counsel for the parties and considering the material placed on record, the learned trial court acquitted the accused persons giving them benefit of doubt. The learned trial court has also considered the conduct of the P.W.-1 and has recorded finding that there is much possibility that she has not seen the incident. It has also recorded a finding that the dead body of the deceased was found at a distant and lonely place and the F.I.R. has been lodged with a concocted story and it also appears to be ante dated. The learned trial court has also found the presence of P.W.-2 doubtful on the spot. The P.W.-3 has been found to be an interested witness and a serious enmity between the family of the accused persons and the informant. The learned trial court has also recorded reasons for not accepting the evidence of P.W.-3, such as despite knowledge about the conspiracy, she and the deceased had not taken any action or given any application to the higher officer and the informant is allegedly a family member of the deceased and there is serious enmity between both the families and the P.W.-3 has stated about three ladies but none of them have been produced. Thus, the learned trial court came to the conclusion that the accused persons are liable to be acquitted giving them benefit of doubt. The learned trial court has recorded aforesaid findings with reasons on the basis of evidence and material on record and nothing could be pointed out by the learned A.G.A., on the basis of which this Court may take a different view.

16. The Hon?ble Supreme Court, in the case of Ramesh and Others versus State of Haryana; (2017) 1 SCC 529, has held that before an appeal is entertained on merits, leave of the High Court is to be obtained, which means that normally judgment of acquittal of the trial court is attached a definite value which is not to be ignored by the High Court. In other words, presumption of innocence in favour of an accused gets further fortified or reinforced by an order of acquittal. The relevant paragraphs 24 and 26 are extracted hereinbelow:-

"24. We have duly appreciated the submissions advanced by the counsel for the parties on both sides. No doubt, the High Court was dealing with the appeal against the judgment of the trial court which had acquitted the appellants herein. The scope of interference in an appeal against acquittal is undoubtedly narrower than the scope of appeal against conviction. Section 378 of the Code of Criminal Procedure, 1973 confers upon the State a right to prefer an appeal to the High Court against the order of acquittal. At the same time, sub-section (3) thereof mandates that such an appeal is not to be entertained except with the leave of the High Court. Thus, before an appeal is entertained on merits, leave of the High Court is to be obtained which means that normally judgment of acquittal of the trial court is attached a definite value which is not to be ignored by the High Court. In other words, presumption of innocence in favour of an accused gets further fortified or reinforced by an order of acquittal. At the same time, while exercising its appellate power, the High Court is empowered to reappreciate, review and reconsider the evidence before it. However, this exercise is to be undertaken in order to come to an independent conclusion and unless there are substantial and compelling reasons or very strong reasons to differ from the findings of acquittal recorded by the trial court, the High Court, as an appellate court in an appeal against the acquittal, is not supposed to substitute its findings in case the findings recorded by the trial court are equally plausible.

25. x x x x x

26. This legal position is reiterated in Govindaraju v. State (2012) 4 SCC 722 and the following passage therefrom needs to be extracted: (SCC p. 732, paras 12-13)

?12. The legislature in its wisdom, unlike an appeal by an accused in the case of conviction, introduced the concept of leave to appeal in terms of Section 378 CrPC. This is an indication that appeal from acquittal is placed on a somewhat different footing than a normal appeal. But once leave is granted, then there is hardly any difference between a normal appeal and an appeal against acquittal. The concept of leave to appeal under Section 378 Cr.P.C. has been introduced as an additional stage between the order of acquittal and consideration of the judgment by the appellate court on merits as in the case of a regular appeal. Sub-section (3) of Section 378 clearly provides that no appeal to the High Court under sub-section (1) or (2) shall be entertained except with the leave of the High Court. This legislative intent of attaching a definite value to the judgment of acquittal cannot be ignored by the courts."

13. Under the scheme of CrPC, acquittal confers rights on an accused that of a free citizen. A benefit that has accrued to an accused by the judgment of acquittal can be taken away and he can be convicted on appeal, only when the judgment of the trial court is perverse on facts or law. Upon examination of the evidence before it, the appellate court should be fully convinced that the findings returned by the trial court are really erroneous and contrary to the settled principles of criminal law."

17. The Hon?ble Supreme Court, in the case of Guru Dutt Pathak Vs. State of U.P. reported in (2021) 6 SCC 116, has held that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court and if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

18. In view of above and considering the overall facts and circumstances of the case, this Court is of the view that the impugned judgment and order of acquittal has rightly been passed in accordance with law after considering the evidence and material on record by the learned trial court and nothing has been pointed out by the learned A.G.A., on the basis of which a contrary view is possible, therefore, it does not call for any interference by this Court and no case for grant of leave to file the appeal is made out. The application is accordingly dismissed. Consequently, the appeal stands dismissed.

(Zafeer Ahmad,J.) (Rajnish Kumar,J.)

October 27, 2025

Saurabh