# State of U.P v. Rajbeer & Anr

- **Citation:** (2020) 2 ILRA 41
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-21
- **Case number:** Petition (Criminal) No. 260 of 2018
- **Bench:** Arvind Kumar Mishra-I, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-rajbeer-anr-45598
- **Pages:** 5

## Headnote

42 INDIAN LAW REPORTS ALLAHABAD SERIES
A. N.D.P.S Act-Ss.21/22-Arms Act-ss. 25/27Sections 147, 148, 149, 307 IPC-Seeking leave
to appeal-challenging acquittal-of four accusedallegedly stole a jeep-to commit loot-by
administering
noxious
powder-falsely
implicated-no
testimony-non-compliance
ofspecific provisions of NDPS Act-no evidenceproving case beyond reasonable groundacquitted-judgement-unless-erroneous
&
perverse-cannot be reversed-no illegality-leave
to appeal-refused-hence Dismissed.

Held, it is established criminal jurisprudence
that in case of acquittal where the finding of
acquittal is grounded and based on material on
record the same need not be interfered by
Appellate Court. May be that the other
alternate view is possible, but the view that
favours the accused would be preferred. For
the reasons aforesaid, we don't find it
reasonable and cogent to interfere with the
judgement and order of acquittal dated
29.07.2017. Consequently, finding of acquittal
recorded by the trial court is hereby affirmed
by
us.
In the final count leave to appeal is refused
and this appeal loses its force and the same is
dismissed.

Writ Petition dismissed. (E-8)

## Text

2 All. State of U.P. Vs. Rajbeer & Anr.
41
 no. 217 of the 2016 and case crime no.
255 of 2016 shows that respondent no. 2
only consider the false implication of
respondent no. 6 by the petitioner in case
crime no. 217 of 2016 and had transferred
the investigation. There appears to be no
sound reason given by respondent no. 2 for
transferring
the
investigation of
the
aforesaid cases. Moreover, the respondent
no. 6, who is an accused has no right to
choose the investigating agency as has
been laid down by the Apex Court in
catena of decisions such as Narmada Bai
vs. State of Gujrat and others reported in
2011 (5) SCC 79. In para-64 of the said
judgment, the Apex Court has observed as
under:-

" 64...... It is trite law that
accused persons do not have a say in the
matter of appointment of an investigation
agency. The accused persons cannot
choose as to which investigation agency
must investigate the alleged offence
committed by them."

9. Further in the case of Sajiv
Rajendra Bhatt vs. Union of India and
others reported in 2016 (1) SCC 1, in
para-68, the Apex Court has observed as
under:-

"68. The accused has no right
with
reference
to
the
manner
of
investigation or mode of prosecution.
Similar is the law laid down by this Court
in Union of India vs. W.N. Chadha,
Mayawati v. Union of India, Dinubhai
Boghabhai Solanki v. State of Gujrat, CBI
v. Rajesh Gandhi, Comptition Commission
of India v. SAIL and Janta Dal v. H.S.
Choudhary."

10. Recently the Apex Court in the
case of Romila Thapar and others vs.
Union of India and others in Writ
Petition (Criminal) No. 260 of 2018
decided on 28.09.2018 following its earlier
judgment has observed in para-27 of the
said judgment as under:-

" ..... it is clear that the
consistent view of this Court is that the
accused cannot ask for changing the
Investigating Agency or to do investigation
in a particular manner including for Court
monitored investigation. ..........".

11. In view of the above, the
impugned order dated 20.7.2018 is hereby
quashed.

12. The writ petition is dismissed.

13. The trial court is directed to
proceed with the trial of the present case
and conclude the same expeditiously.
----------

(2020)02ILR A41
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I,
J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Government Appeal Defective No. 119 of 2018

State of U.P. ...Appellant
Versus
Rajbeer & Anr. ...Opposite Parties

Counsel for the Appellant:
A.G.A.

Counsel for the Opposite Parties:
------
42 INDIAN LAW REPORTS ALLAHABAD SERIES
A. N.D.P.S Act-Ss.21/22-Arms Act-ss. 25/27Sections 147, 148, 149, 307 IPC-Seeking leave
to appeal-challenging acquittal-of four accusedallegedly stole a jeep-to commit loot-by
administering
noxious
powder-falsely
implicated-no
testimony-non-compliance
ofspecific provisions of NDPS Act-no evidenceproving case beyond reasonable groundacquitted-judgement-unless-erroneous
&
perverse-cannot be reversed-no illegality-leave
to appeal-refused-hence Dismissed.

Held, it is established criminal jurisprudence
that in case of acquittal where the finding of
acquittal is grounded and based on material on
record the same need not be interfered by
Appellate Court. May be that the other
alternate view is possible, but the view that
favours the accused would be preferred. For
the reasons aforesaid, we don't find it
reasonable and cogent to interfere with the
judgement and order of acquittal dated
29.07.2017. Consequently, finding of acquittal
recorded by the trial court is hereby affirmed
by
us.
In the final count leave to appeal is refused
and this appeal loses its force and the same is
dismissed.

Writ Petition dismissed. (E-8)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J. &
Hon'ble Gautam Chowdhary, J.)

1. Heard learned A.G.A. for the
appellant- State of U.P. and perused the
record as available on the file.

2. By way of instant Government
Appeal the appellant (State) is seeking
leave to appeal against the judgment and
order of acquittal dated 29.07.2017 passed
by Additional Sessions Judge, Court
No.02, Etawah in concerned Special Case
No.51 of 2011 (State of U.P. Vs. Rajveer)
concerning case crime no.275 of 2011,
under
section
21/22
N.D.P.S.
Act,
Sessions Trial No.21 of 2012 (State of
U.P. Vs. Bhupendra Singh, Sanjeev @
Sanju and Rajveer) arising out of Case
Crime No.274 of 2011, under sections
147, 148, 149, 307 I.P.C., and Sessions
Trial No.22 of 2012 (State of U.P. Vs.
Bhupendra Singh) arising out of Case
Crime No.276 of 2011, under section
25/27 Arms Act, P.S.- Bakewar, District-
Etawah.

3. In all the aforesaid sessions trials
charges were framed under the relevant
provisions of the 21/22 N.D.P.S. Act,
under sections 147, 148, 307 r/w 149
I.P.C. and under section 25/27 of the Arms
Act and all the aforesaid accused/
respondents were acquitted of all the
aforesaid charges framed against them.

4. For proper adjudication of this
case the facts relevant as discernible from
the record appear to be that some police
inquiry followed after some tip off
information was received by the police on
5.8.2011 that some miscreants have looted
one Bolero Jeep, red colour No. MH 14
BC 6923 and in case checking is done the
miscreants will be napped. This tip off
information led to the aforesaid incident
allegedly
committed
on
Phuphoond
crossing within police station Auraiya. The
tip-off information was also submitted to
the effect that driver of the vehicle had
also been abducted. The eagle-1 and eagle2 mobile vans of the police were asked to
come
on
the
Bakewar
crossing.
Whereupon the police personnel and the
aforesaid eagle mobile police met on the
Bakewar crossing, they consulted each
other and made personal search of each
other in order to ascertain whether any
untoward incriminating material is in
possession of the police party or not. After
ensuring safety that no police personnel
2 All. State of U.P. Vs. Rajbeer & Anr.
43
possesses any incriminating material all
waited over there for sometime when some
Bolero vehicle, red colour was seen
coming towards Mahewa crossing. The
police personnel asked by making signs to
stop the vehicle but instead of stopping it,
the driver tried to speed away when the
vehicle was surrounded by the police on
the spot and in the process certain
miscreants got down from the vehicle and
uttered words- "मारो सालोों को नह ों तो पकडे
जाओगे"- and several rounds of fire was
opened on the spot by the accused upon
the police party, however, no one was hurt
in the firing and (after surrounding) the
miscreants were napped by the police
party around 00:20 in the night at the
culvert of 'Baheda' canal. Two miscreants
escaped from the scene. On inquiry being
made from the apprehended accused three
accused spelled their names as Bhupendra
Singh s/o Arvind Singh Chauhan, Sanjeev
@ Sanju s/o Bake Dayal Dohre and the
third one named himself as Rajveer s/o
Subedar Sengar. Rajveer also told that he
is possessing some noxious powder which
they used to administer upon victims and
commit loot. Upon this information the
accused Rajveer was offered choice to be
searched by a gazetted officer but Rajveer
expressed confidence in the police party
itself and willing to be searched by the
police.
Therefore
search
was
made
whereby some noxious powder weighing
approximately 110 gms was recovered
from the possession of the accused Rajveer
and upon search being carried out inside
the vehicle one person whose hands and
legs were tied was found lying in between
the space the first and the second row of
the seat of the vehicle. Upon being asked
this person named himself Krishna Murari
Gupta @ Kallu s/o Rajendra Kumar Gupta
resident of district Jalaun. He claimed
himself to be the driver of the vehicle and
to have been administered noxious powder
which was kept by the miscreants and he
was abducted and loot was committed
upon him. Consequently, the formalities
were completed by the police party on the
spot and arrest and seizure memo was
prepared. The informant Rakesh Bharti,
the then S.H.O. of police station Bakevar
lodged a written report Ex. Ka-1 at case
crime no.274/ 2011, under sections 147,
148, 149, 307 I.P.C. and as case crime
no.276/ 2011, under section 25/ 27 Arms
Act and as case crime no.275/ 2011, under
section 21/22 N.D.P.S. Act. Consequently,
the relevant entries were noted down at the
relevant Check F.I.R. and relevant entry
was
made
in
the
concerned
G.D.
Investigation of the aforesaid cases was
entrusted to S.I. Jagmohan Singh who
prepared the site plan and recorded the
statement of various witnesses and after
completing the investigation filed chargesheet against Bhupendra Singh, Sanjeev @
Sanju and Rajveer, under sections 147,
148, 149, 307 I.P.C. and under section 25/
27 Arms Act concerning case crime
no.276/ 2011 and charge-sheet against
Bhupendra Singh, under section 21/ 22
N.D.P.S. Act concerning case crime
no.275/ 2011. Pursuant thereto, the matter
was committed to the court of sessions
where all the accused were heard on the
point respective charges. Accordingly,
charges were framed against the accused,
the same were read over and explained to
them but they denied the charges. They
opted to be tried whereupon prosecution
produced in all four witnesses P.W.1 is the
informant
Rakesh
Bharti,
P.W.2
is
constable Sonelal Mathur, P.W.3 is
constable Kamlendra Singh, P.W.4 is S.I.
Jagmohan Singh- the investigating officer.
Apart from above witnesses the driver of
the Bolero Jeep was examined as C.W.1
(Krishna Murari Gupta). Apart from that
44 INDIAN LAW REPORTS ALLAHABAD SERIES
the prosecution also proved various
documents which have been exhaustively
referred in the judgement of the trial court
and need not be repeated at this stage by
us. After recording statement of the
aforesaid witnesses, the testimony for the
prosecution was closed and the statement
of the accused was recorded under section
313 Cr.P.C., all the accused claimed to
have been falsely implicated in this case.

5. No evidence whatsoever was led
by the defence. Consequently, the matter
was considered on its merit and the
aforesaid judgement of acquittal was
passed on 29.7.2017. Resultantly, this
appeal.

6. Claim is that the judgement and order
of acquittal dated 29.7.2017 is erroneous and
perverse in the face of the finding of acquittal
recorded by the trial court to the ambit by
observing that the case of the prosecution was
not proved beyond doubt, whereas the fact is
that 110 gms of diazepam was recovered from
the possession of the accused Rajveer and the
informant P.W.1 himself has proved the fact of
police encounter and the consequent arrest and
recovery from the accused and the case is well
proved under section 307 I.P.C. Thus the case
of firing on the police party was proved
beyond doubt but the trial court did not believe
the same and based on conjectural analogy of
evidence recorded whimsical finding on fact of
police encounter and the firing done by the
miscreants. It appears that the driver C.W.1,
Krishna Murari Gupta has been won over by
the accused and he did not come out with the
truthful version of the incident though crime
was committed in dare devil manner by the
accused against him by abducting him.

7. We have considered the submissions
so made and the entirety of the case apart from
the testimony of the witnesses. No doubt the
allegations are specific but insofar as the
compliance of the relevant provisions of the
N.D.P.S. Act regarding search and ensuring
safe upkeep of the recovered material/
contraband is concerned the same was not
properly done and not duly complied. Thus in
view of the violation of specific provisions of
the N.D.P.S. Act the case of the prosecution is
not proved within the four corners of charge
under section 21/ 22 of the N.D.P.S. Act.
Similarly, while we scrutinize carefully the
testimony of the driver of the vehicle as C.W.1
we arrive at conclusion that the very
commission of the offence has been denied by
him. Insofar as the act of abduction of driver of
the Bolero Jeep and loot of Jeep (Bolero) is
concerned, the entire incident as per the
testimony of C.W.1 is placed under dark
shadow of doubt and these facts become
opaque. He has not supported the prosecution
version regarding any loot having been
committed by the accused against him. This
being the central theme, the trial court was
justified while it disbelieved the entire story
and acquitted all the accused of all charges. No
other best alternate view of the alleged
occurrence is possible. It cannot be said from
any angle that the finding of acquittal is not
based on material on record.

8. It is established criminal
jurisprudence that in case of acquittal
where the finding of acquittal is
grounded and based on material on
record the same need not be interfered
by Appellate Court. May be that the
other alternate view is possible, but
the view that favours the accused
would be preferred. For the reasons
aforesaid, we don't find it reasonable
and cogent to interfere with the
judgement and order of acquittal dated
29.07.2017. Consequently, finding of
acquittal recorded by the trial court is
hereby
affirmed
by
us.
2 All. State of U.P. Vs. Dharmendra Singh & Ors.
45

9. In the final count leave to appeal is
refused and this appeal loses its force and
the same is dismissed.
----------
(2020)02ILR A45
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.01.2020

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I,
J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Government Appeal No. 2949 of 2003

State of U.P. ...Appellant
Versus
Dharmendra Singh & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
------

A. Criminal Law-Indian Penal Code-Ss. 498A
& 304-B-Leave to appeal-against order of
acquittal-no independent corroboration foundtestimony not trustworthy-no evidence foundpresumption of innocence-no latent or patent
infirmity-in the judgment of the Trial CourtAppeal Dismissed.

B. Held, it would be relevant to take note of
fact that we after careful scrutiny of the
impugned judgment discover no perversity in
the judgment of trial court. We are fully
conscious
of
fact
that
presumption
of
innocence is available to the accused even up
to this appellate stage which got strengthened
by order of acquittal in favour of accused by
the trial court. Thus the view taken by the trial
court in recording finding of acquittal is just
and reasonable. Even if other view is possible it
would not be proper to substitute our own view
in place of finding recorded by the trial court.
This approach is to be avoided and the view as
taken by the trial court has got to be affirmed.
Hon'ble Apex Court has observed that while
dealing with an appeal against acquittal the
court should keep in view the presumption of
innocence in favour of the accused as the same
gets fortified by his acquittal if the view taken
by the trial court is well grounded and based
on material on record. We are, accordingly, not
inclined to interfere with the judgment and the
order of acquittal recorded by the trial Judge in
respect of the accused-respondents. The
instant appeal is liable to be dismissed. Leave
to appeal is thus refused. Accordingly, the
instant appeal is dismissed.

Govt. Appeal dismissed. (E-8)

List ofcases cited: -

1.
Bhadragiri
Venketa
Ravi
Vs.
Public
Prosecutor High Court of A.P., Hyderabad 2013
(4) Supreme 450.

2. Kanhaiya Lal and others Vs. State of
Rajasthan AIR 2013 SC 1940

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.
Hon'ble Gautam Chowdhary, J.)

1. Heard learned A.A.G. for the
State-appellant and perused the material
on record.

2. The application has been filed by
the State-appellant with the prayer that
leave to appeal may be granted against the
judgement and order dated 23.01.2003
passed by Additional Sessions Judge,
Court No.2, Agra, in Sessions Trial
No.925 of 1999, State Vs. Dharmendra
and others arising out of Case Crime
No.28 of 1999, under Sections 498A,
304B, 201 IPC, Police Station Basoni,
District Agra whereby the accusedrespondents Dharmendra Singh, Hawaldar
Singh and Chameli Devi have been
acquitted of charge under Sections 498A,