Union of India Through Superintendentprevention v. Smt. Sharda Devi @ Bullet and Another

Court No. - 16 Case :- APPLICATION U/S 378 No. - 4 of 2013 Applicant :- Union Of India Through Superintendentprevention Opposite Party :- Smt. Sharda Devi @ Bullet And Another Counsel for Applicant :- K.K. Singh,Sm Singh Royekwar Hon'ble Shamim Ahmed,J. The case is taken up in the revised call. Heard Sri S.M. Singh Royekwar, learned counsel for the Union of India as well as Sri Ashok Kumar Singh, learned A.G.A.-I for the State and perused the material available on record. The present leave to appeal under Section 378 Cr.P.C. has been filed against the judgment and order dated 09.08.2012 and 14.08.2012 passed by learned Additional District and Sessions Judge, Court No.2, Barabanki in Criminal Trial No.189 of 2004, under Sections 8/21 read with Section 29, 60(3) of N.D.P.S. Act. As per the prosecution version, the police party got information from their reliable sources that the accused persons will make contraband article at their home. Thereafter, the police party surrounded the house of the accused and presented search warrant before the woman who opened the door. Thereafter, the house of the accused were searched and contraband articles i.e. heroin was recovered from the house. Thereafter, the accused persons were arrested and sample of contraband article was prepared for sending it to the forensic laboratory for its examination. The learned trial court after taking into consideration the facts and circumstances of the case and evidence available on record, passed the judgment and orders of acquittal dated 09.08.2012 and 14.08.2012. Learned counsel for the Union of India as well as learned A.G.A.-I for the State submit that the learned trial court did not appreciate the evidence on record. They further submits that prosecution has successfully proved the offence against the accused on the basis of evidence. The judgment was passed without considering the statement of witnesses and the case set up by the prosecution and the judgment of the acquittal was passed on surmises and conjectures. I have heard the learned counsel for the Union of India as well as learned A.G.A.-I for the State and considered the ground as well as gone through the judgment passed by the learned trial court. In the present case from the statements given by the witnesses produced by the prosecution, I found that prosecution has failed to establish that the crime in question has been committed by the accused and there was no direct evidence produced by the prosecution regarding involvement of the respondent No.1 in the crime. Further, learned counsel for the Union of India as well as learned A.G.A.-I for the State could not point out any illegality or infirmity in the judgment and order of acquittal passed in favour of respondent which is before this Court. Further, this Court observed that an appeal against acquittal stands on a different footing from the appeal against conviction. Hon'ble the Apex Court in a very recent judgment in the case of Sadhu Saran Singh Vs. State of Uttar Pradesh and Others reported in (2016) 4 SCC 357 has considered this difference and has observed in paragraph nos.20 and 21 as under: "20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of 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 of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can raise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasiva V. State of Kerala 1998 SCC (Cri) 1320 has held: "7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal."

¶21The Court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative." In the light of the aforesaid guidelines, the impugned judgment has to be considered from the point of view whether the view taken by the learned trial court was a probable view based on the material on record or it is an absolutely erroneous judgment devoid of merits. A criminal trial proceeds with the presumption of innocence of the accused persons. With the acquittal of the accused persons this presumption of innocence stands fortified. So very strong and cogent reasons must exist in interfering the judgment of acquittal. Keeping in view the aforesaid weakness of the prosecution case, as noted by the learned trial court, I am of the view that the view taken by the learned trial court was a probable and logical view, which is based on valid reasons. The judgment of the learned trial court cannot be said to be illegal, illogical and improbable and not based on material on record or is based on erroneous views and is against the settled position of law. So, this Court is satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference is called for. Leave to appeal is refused. Application for leave to appeal is rejected. Accordingly, the appeal does not survive, and in view of above, the appeal is also dismissed. No order as to costs. Copy of this judgment be sent to the learned trial court for its compliance. Order Date :- 25.7.2024 Piyush/- High Court of Judicature at Allahabad, Lucknow Bench