State of U.P. v. Pappu Yadav And Another

HIGH COURT OF JUDICATURE AT ALLAHABAD

GOVERNMENT APPEAL DEFECTIVE No. - 51 of 2026

State of U.P. .....Appellant(s) Versus

Pappu Yadav And Another .....Respondent(s) Counsel for Appellant(s) : Patanjali Mishra Counsel for Respondent(s) :

Court No. - 43 HON'BLE SALIL KUMAR RAI, J. HON'BLE DR. AJAY KUMAR-II, J. Order on Criminal Misc. Delay Condonation Application.

1. The present Government Appeal under Section 419 (3) BNSS, 2023, has been filed against the judgment of acquittal dated 31.05.2025 passed by Additional District and Sessions Judge, 1st, Hamirpur, in Sessions Trial No. 976 of 2022 (State of U.P. vs. Pappu Yadav and another), under Sections 457, 380 and 413 IPC, Police Station Smerpur, District Hamirpur, with the delay of 111 days.

2. The learned A.G.A. for the State has filed the instant delay condonation application.

3. The delay in filing the present appeal has been satisfactorily explained in the affidavit accompanying the delay condonation application and the same does not seems to be deliberate one, therefore, the delay in filing the present appeal is condoned.

4. Office shall allot regular number to the appeal.

Order on Appeal

1. This is a Government Appeal under Section 419 (3) B.N.S.S., 2023 against the judgment and order of acquittal dated 31.05.2025 passed by Additional District and Sessions Judge, 1st, Hamirpur, in Sessions Trial No. 976 of 2022 (State of U.P. vs. Pappu Yadav and another), under Sections 457, 380 and 413 IPC, Police Station Smerpur, District Hamirpur. An application under Section 419 (3) of BNSS, 2023, has also been filed praying for leave to appeal.

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2. Brief facts of the case are that the informant Surendra Kumar lodged an First Information Report on 09.04.2022 regarding theft of Rs.30,000/- cash and jewellery worth of Rs. 50,000/- from his house by unknown thieves after breaking wall of his house.

3. On the aforementioned written report (Tehrir) Ext. Ka-1 of informant, an FIR under Sections 457, 380 and 413 IPC was lodged on 09.04.2022 at 05:56 pm against unknown persons at Police Station Smerpur, District Hamirpur bearing Case Crime No. 129 of 2022. Thereafter the Investigating Officer started the investigation and prepared the site plan of the place of incident and recorded the statements of the witnesses. The accused-opposite parties Pappu Yadav, Shivpal @ Natey were arrested and on their pointing out, stolen jewellery was recovered from the basket (diggi) of one stolen motor-cycle.

4. After completion of investigation, the charge-sheet was submitted against accused-opposite parties under Sections 457, 380 and 413 IPC. Thereafter, cognizance was taken upon same and the case was committed to the Court of Sessions.

5. After hearing both the parties, charges under Sections 457, 380 and

413 IPC were framed against accused-opposite parties. However, the accused-opposite parties denied the charges levelled against them and claimed trial.

6. In order to prove it's case, the prosecution adduced PW-1 Surendra Kumar (informant) PW-2 Pankaj Kumari (wife of the informant), PW-3 Head Constable Devlal, PW-4 Bacchan, PW-5 Inspector Rajkumar Verma and PW-6 S.I. Roshanlal Saroj. The witnesses adduced by the prosecution have given their respective oral evidence and also proved 7 prosecution papers and 5 material objects, which were marked as exhibits. The same is tabulated herein below:

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5. Recovery Memo Exhibit Ka-5 PW-5 Inspector Rajkumar Verma

7. After the prosecution evidence was over, all adverse/incriminating circumstances relied upon by the prosecution were disclosed to accused in question answer form for their version of occurrence as per mandate of Section 313 Cr.P.C. Accused denied all those adverse/incriminating facts put to them and claimed their innocence. They further stated that they have been falsely implicated.

8. By the impugned judgment dated 31.05.2025, the Court below has acquitted the accused-opposite parties of the charge under Sections 457, 380 and 413 IPC. Thus, feeling aggrieved by the aforementioned impugned judgment passed by the Court below, the present appeal has been preferred by the State.

9. We have heard the learned A.G.A. for the State-appellant and perused the record.

10. While considering the scope of interference in an appeal against acquittal, it has been held by the Supreme Court that if two views are possible, one supporting the acquittal and other indicating conviction, the High Court should not, in such a situation, reverse the order of acquittal recorded by the Court below. However, an Appellate Court must bear in mind 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

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competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by Court below. It has also been observed that the Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.

11. The Supreme Court in Gamini Bala Koteswara Rao vs. State of Andra Pradesh, (2009) 10 SCC 636, has observed that interference in an appeal against acquittal should be rare and in exceptional circumstance. It was further held that it is open to the High Court to reappraise the evidence and conclusions arrived at by the Court below. However, it is limited to those cases where the judgment of Court below was perverse. Apex Court went on to declare that the word "perverse", as understood in law, has been understood to mean, "against the weight of evidence". If there are two views and Court below has taken one of the views merely because another view is plausible, the Appellate Court will not be justified in interfering with the verdict of acquittal.

12. Perusal of the impugned judgment in the light of above-noted well settled legal position reveals that the trial Court, while acquitting the accused, has carefully analyzed the deposition of the informant PW-1 Surendra Kumar and his wife PW-2 Pankaj Kumari.

13. In the present case, the prosecution story is that the informant Surendra Kumar Verma PW-1 lodged the first information report against unknown persons. In the written report (Tehrir) Ext. Ka-1, moved by the informant, no detail of jewellery or cash was specifically given. However, as per the prosecution story, accused-opposite parties were arrested in Case Crime No. 127 of 2022 and when they were arrested in said case crime, they confessed the theft of the present case also. On this information, the Investigating Officer of this case, Inspector Rajkumar Verma PW-5 (who was then posted as Sub Inspector) got the police custody remand of accused-opposite parties from 9:00 am to 5:00 pm on 05.08.2022. When the accused-opposite parties were taken out for police custody remand, then on their pointing out, one allegedly stolen black Hero Honda Motor-cycle was recovered and from the basket (diggi) of said motor-cycle, one ladies purse was recovered. Riya Jewellery, Ramlila Ground, Bharua, Smerpur was printed on the said ladies purse. Inside the said purse, a pair of white metal anklet, four toe rings of white metal, one ring of white metal having red coloured jem, one locket yellow

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metal, one ladies ring of yellow metal (old used), were recovered. The said motor-cycle and stolen jewellery was taken into possession and thereafter the informant Mukesh Kumar of Case Crime No. 127 of 2022 and the informant Surendra Kumar of Case Crime No. 129 of 2022 were informed on their mobile phones. The informant Surendra Kumar arrived on recovery spot and identified the recovered jewellery as his stolen jewellery.

14. Therefore, recovery of stolen jewellery on the pointing out of accused-opposite parties and it's identification by informant and his wife is the very basis of the prosecution story, on the strength of which, the prosecution is pressing for conviction of accused-opposite parties by setting-aside the impugned judgment.

15. The informant Surendra Kumar has been examined as PW-1 and his wife Pankaj Kumari has been examined as PW-2 in the trial Court. The informant Surendra Kumar PW-1 in his examination-in-chief has supported the prosecution story regarding theft of cash and jewellery from his house in the night of 07.04.2022. However, this witness in his deposition has stated that after one month of the incident, he was called in the police station, where he was shown the stolen jewellery, which was identified by him. This witness also stated that recovery memo bore his signature and has proved the recovery memo as Ext. Ka-5. This witness in his cross-examination fairly conceded that he does not know from where his stolen jewellery was recovered by Investigating Officer. This witness further stated that thieves were not got identified from him by the Investigating Officer. This witness further stated that he has no knowledge of thieves and even recovered jewellery was not handed over to him. He further stated that 2-4 days after the incident, he was called in police station to see and identify the stolen jewellery.

16. Pankaj Kumari PW-2 in her deposition also supported the prosecution story of theft. However, this witness has not stated anything regarding identification of the stolen jewellery by her during the course of investigation. She further stated that no recovery was affected in her presence, however, she was shown jewellery after 4-5 days of the incident by police at her residence.

17. Bacchan PW-4 has stated in his deposition that theft was committed in the house of Surendra Verma by breaking his back wall. This witness further stated that some outsider were seen wandering in the fields of

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their village and probably those persons have committed aforesaid theft. He informed this to police and also informed the police that if those unknown persons are brought before him, he can identify them. However, this witness has not stated in his deposition that he has seen anyone committing theft. However when this witness was asked to identify the accused out of six accused persons in Court, this witness failed to identify the accused-opposite parties of this case, who were present in Court. Therefore, the deposition of this witness as far as involvement of accused-opposite parties in theft are concerned, does not help the prosecution story at all.

18. The recovery of jewellery has been proved by the Investigating Officer Inspector Rajkumar Verma PW-5 (the then Sub Inspector) and in his deposition, he has clearly stated that he received information that the accused-opposite parties have been arrested in Case Crime No. 127 of 2022, under Sections 382 and 411 IPC, Police Station Smerpur and have also confessed, the crime of present Case Crime No. 129 of 2022.

19. This witness PW-5 has also stated that he got police custody remand of accused-opposite parties and during said police custody remand, the accused-opposite parties again confessed their crime and on their pointing out stolen jewellery of Case Crime No. 129 of 2022, was recovered. It is very surprising that in-spite of having prior knowledge, no independent witness was associated by him during this alleged recovery proceedings. This witness has also admitted his signature on recovery memo (Ext. Ka-

5). He further stated that at the spot of recovery, the informant Surendra Kumar Verma identified the stolen jewellery alongwith his wife Pankaj Kumari.

20. The prosecution has examined Sub Inspector Roshanlal as PW-6, who was also associated with the recovery proceedings and this witness has fairly stated that on the recovery spot, the informant of Case Crime No. 127 of 2022, namely, Mukesh Kumar and the informant of present Case Crime No. 129 of 2022, namely, Surendra Kumar, came present. The informant Surendra Kumar identified the recovered jewellery as his stolen jewellery.

21. In the aforesaid factual background, it is clear that PW-1 and PW-2 had not seen the thieves. Both these witnesses have clearly stated that thieves were not got identified from them during investigation. Both these witnesses have stated that police had shown them their jewellery after 2-4

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days/4-5 days of the incident. PW-1 in his cross-examination has stated that stolen jewellery was shown to him in the police station, whereas PW- 2 in his cross-examination has stated that stolen jewellery was shown to her at her residence. Both these witnesses have shown ignorance regarding place of recovery of stolen jewellery. It is thus apparent from their depositions that no recovery was actually affected in their presence. As per their depositions, the alleged recovered jewellery was shown within one week of the incident. However, as per prosecution story, stolen jewellery was recovered after one month of the incident. Therefore, alleged recovery becomes highly suspicious.

22. PW-1 the informant Surendra Kumar in his cross-examination refused that the alleged recovered jewellery was ever handed over to him. However, on the request of the prosecution, PW-1 Surendra Kumar was re-examined and in his re-examination, he has fairly stated that he has no purchase receipt of the recovered jewellery and recovery of stolen jewellery was not affected in his presence. PW-1 failed to prove the ownership of recovered jewellery and he even fairly conceded that stolen jewellery was not with him. It is important to observe here that stolen jewellery was produced by the Investigating Officer of this case S.I. Rajkumar Verma PW-5 and the said stolen jewellery was produced in a sealed plastic container, which supports the depositions of PW-1 and PW- 2 that stolen jewellery was not handed over to them.

23. The trial Court after evaluating the depositions of PW-1 and PW-2, came to the conclusion that none of these witnesses have stated that stolen jewellery was recovered in their presence and none of these witnesses have even seen the thieves committing the theft in their house. Even in the written report (Tehrir) Ext. Ka-1, no specification of the stolen jewellery were mentioned and even in the recovery memo, Ext. Ka-5, no specific mark of identification of any article of recovered jewellery was written. The alleged stolen jewellery was not even handed over to the informant or his wife. It is thus, clear that PW-1 and PW-2 have not identified the stolen jewellery on the alleged recovery spot. Therefore, recovery as well as identification of the recovered jewellery is completely suspicious. The said jewellery was not got identified by mixing with similar jewellery, therefore, the trial Court came to the conclusion that the prosecution has failed to prove that the recovered jewellery belongs to the wife of the informant. No identification of the accused was conducted by the Investigating Officer, therefore, the trial Court came to the conclusion that the prosecution has failed to prove the

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charges levelled against the accused-opposite parties beyond reasonable doubt.

24. We are of the considered opinion that the prosecution has failed to prove the alleged recovery of stolen jewellery beyond reasonable doubt and the prosecution has also failed to prove that the informant or his wife identified the stolen jewellery at the place of recovery. Moreover, the alleged recovery was affected after one month of the incident, whereas the informant and his wife in their cross-examinations have deposed that alleged recovered jewellery was shown to them within one week of the incident. The informant has deposed that alleged recovered jewellery was shown to him in police station whereas the informant's wife has deposed that alleged stolen jewellery was shown to her at her residence. Therefore, the recovery of alleged stolen jewellery as well as it's identification are fully suspicious.

25. Apex Court in the case of "Bhaskarrao and others Vs. State of Maharashtra", (2018) 6 SCC 591 has observed in Paragraph Nos. 14, 15, and 23 as under:-

"14. As the trial court and High Court, having appreciated the evidence on record, has come to diametrically opposite conclusions, mandating herein to observe certain witness statements which may have an important bearing in this case In the processes of appreciating the evidence at the appellate stage, we need to keep in mind the views of this court as expressed in Tota Singh and Anr. v. State of Punjab,1987 Cri LJ 974.

"The High Court has not found in its judgment that the reasons given by the learned Sessions Judge for discarding the testimony of PW2 and PW 6 were either unreasonable or perverse. What the High Court has done is to make an independent reappraisal of the evidence on its own and to set aside the acquittal merely on the ground that as a result of such re-appreciation, the High Court was inclined to reach conclusion different from the one recorded by the learned Sessions Judge.

This Court has repeatedly pointed out that the mere fact that the Appellate Court in inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse.

Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is plausible one, the Appellate Court cannot legally interfere with an order of acquittal evgen if it is of the opinion that the view taken by the Court below on its consideration

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of the evidence is erroneous."

15. In Ramesh Babulal Doshi v. State Of Gujarat ., 1996 CriLJ 2867, this Court observed:

"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 appellate 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 appellate court answers the above question in the negative the order of acquittal is not to be disturbed."

"23. Before we proceed to analysis of the case, we must first focus on the aspect concerning the standard the High Court has to apply, while hearing a case against an acquittal order of the trial court. In the case on hand, the trial court, followed by a fullfledged trial, comes to the conclusion and by cogent reasoning acquits the accused. In such a case the appellate Court is further burdened with the task of reaffirming the innocence of the accused. In such cases, the appellate Court is expected to be very cautious and its interference with the order of acquittal is called for only when there are compelling reasons and substantial grounds. In other words, the High Court has full power to review the evidence upon which an order of acquittal is founded, yet the presumption of innocence of the accused being further reinforced by his acquittal by the trial Court, the findings of that Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons (refer Surajpal Singh & Ors. v. The State, 1952 Cri LJ 331)".

26. Keeping in view the above referred discussion and the law laid down by Supreme Court, it can be safely concluded that the impugned judgment of trial Court is based on sound reasons. We do not find any perversity in the judgment so as to interfere with the findings returned by Court below. The conclusion drawn by Court below is the outcome of due appreciation of evidence on record. No misreading or omission could be pointed out by the learned A.G.A. for the State-appellant. Being the last Court of fact, we have ourselves evaluated the evidence on record to find out whether there is any perversity in the impugned judgment or Court below has misconstrued any material evidence. However, we could not gather any such fact from the record so as to conclude that the conclusion drawn by Court below is against the weight of evidence on record. It thus, cannot be said that only the view consistent with the guilt of accused is possible as per the evidence on record.

27. The application for leave to appeal filed under Section 419 (3) BNSS, 2023, is dismissed and consequently, the appeal also stands rejected.

28. The present appeal has been dismissed at the stage of admission after

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condoning the delay in filing the present appeal and office has already been directed to allot regular number to this appeal, which shall be so allotted for the purpose of record.

29. Let the file be consigned to records after allotment of regular number to the appeal and after certifying a copy of the present judgment to the trial Court.

February 11, 2026

Monika

(Dr. Ajay Kumar-II, J.) (Salil Kumar Rai, J.)