State Of U.P. vs Navratan Lal And Others
2021 Latest Caselaw 11418 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 45						     (AFR)
 

 
Case :- GOVERNMENT APPEAL No. - 82 of 1987
 

 
Appellant :- State of U.P.
 
Respondent :- Navratan Lal And Others
 
Counsel for Appellant :- A.G.A.
 
Counsel for Respondent :- Kameshwer Singh
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Oral Judgment by Hon'ble Ajai Tyagi, J.)

1. This appeal under Section 378 (3) of Criminal Procedure Code (in short 'Cr.P.C.'), at the behest of the State, has been preferred against the judgment and order dated 29.9.1986, passed by learned Special & Additional Sessions Judge, Banda in Sessions Trial No.522 of 1985 (State vs. Navratan Lal and others) arising out of Case Crime No.1229 of 1985 under Secions 147, 342, 323, 506, 498-A, 307, 376/511, 306 & 406 Indian Penal Code (in short 'IPC') along with Section3/4 Dowry Prohibition Act, 1961, Police Station-Kotwali, District-Banda, whereby the learned trial-court acquitted all the accused-respondents of all charges.

2. The brief facts of this case are that a First Information Report was lodged at Kotwali, District-Banda by complainant/victim with the averments that she was married with Kallu Gupta S/o Navratan Lal before three years ago and the accused persons were not happy with the dowry given in the marriage and they did not want to keep her in their house. After marriage, she lived in her parental house for near about two years and thereafter under pressure of relatives, she was taken to matrimonial home by her husband, but all the accused persons used to torture her for want of additional dowry. On 29.8.1985 at about 6 o'clock in the morning, they all conspired to kill her by pouring kerosene-oil on her and started beating her. Anyhow, she ran away from there and went to the house of her cousin (brother).

3. On the basis of aforesaid report, a Case Crime bearing No.1229 of 1985 was registered at Kotwali, Banda, against all the accused-respondents for aforementioned offences.

4. Investigation of the case was taken up by Investigating Officer, who visited the spot and prepared the site-plan. Medical examination of victim was conducted and her statement under Section 164 Cr.P.C. was recorded by competent Magistrate. After completing the investigation, Investigating Officer has submitted charge-sheet against the accused persons. The case being exclusively triable by court of session was committed for trial to the court of session by competent Magistrate.

5. Learned trial-court framed charges against accused persons under Section 147, 342 read with Section 149, 307 read with Section 149 and Section 498-A read with Section 149 IPC. Additional charge under Section 376 read with Section 511 IPC was framed against Navratan Lal. Accused persons denied charges and claimed to be tried.

6. To bring home the charges, the prosecution produced following witnesses, namely:

1.

Victim

PW1

2.

Laxman Prasad

PW2

3.

Dr.Ashok Upadhyay

PW3

4.

Hawaldar Singh

PW4

7. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:

1.

Written Report

Ex.ka1

2.

F.I.R.

Ex.ka3

3.

Injury Report

Ex.ka2

4.

Site-plan

Ex.ka5

8. After completing prosecution evidence, accused persons were examined under Section 313 Cr.P.C. One witness, namely, Prem Bihari (DW1) was examined by accused persons in defence.

9. We have heard Shri N.K.Srivastava, learned AGA for the State-appellant and perused the record.

10. Before we embark on testimony and the judgment of the Court below, the contours for interfering in Criminal Appeals where accused has been held to be non guilty would require to be discussed.

11. The principles, which would govern and regulate the hearing of an appeal by this Court against an order of acquittal, passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. Narayana Menon @ Mani vs. State of Kerala and another, (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

12. Further, in the case of Chandrappa vs. State of Karnataka, reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:

[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

[3] Various expressions, such as,"substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

[4] An appellate Court, however, 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 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.

[5] 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."

13. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views/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.

14. Even in the case of State of Goa vs. Sanjay Thakran and another, reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under:

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

15. Similar principle has been laid down by the Apex Court in cases of State of Uttar Pradesh vs. Ram Veer Singh and others, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by L.R.s vs. State of MP, 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

16. In the case of Luna Ram vs. Bhupat Singh and others, reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under:

"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.

11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."

17. Even in a recent decision of the Apex Court in the case of Mookkiah and another vs. State Representatives by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SC 321, the Apex Court in para 4 has held as under:

"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while hoosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]"

18. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka vs. Hemareddy, AIR 1981, SC 1417, wherein it is held as under:

" ... This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

19. In a recent decision, the Hon'ble Apex Court in Shivasharanappa and others vs. State of Karnataka, JT 2013 (7) SC 66 has held as under:

"That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."

20. Further, in the case of State of Punjab vs. Madan Mohan Lal Verma, (2013) 14 SCC 153, the Apex Court has held as under:

"The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convincing the accused person."

21. The Apex Court recently in Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219, has laid down the principles for laying down the powers of appellate court in re-appreciating the evidence in a case where the State has preferred an appeal against acquittal, which read as follows:

"10. It is by now well settled that the Appellate Court hearing the appeal filed against the judgment and order of acquittal will not overrule or otherwise disturb the Trial Court's acquittal if the Appellate Court does not find substantial and compelling reasons for doing so. If the Trial Court's conclusion with regard to the facts is palpably wrong; if the Trial Court's decision was based on erroneous view of law; if the Trial Court's judgment is likely to result in grave miscarriage of justice; if the entire approach of the Trial Court in dealing with the evidence was patently illegal; if the Trial Court judgment was manifestly unjust and unreasonable; and if the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert etc. the same may be construed as substantial and compelling reasons and the first appellate court may interfere in the order of acquittl. However, if the view taken by the Trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case, the Appellate Court generally will not interfere with the order of acquittal particularly in the absence of the aforementioned factors.

.........................It is relevant to note the observations of this Court in the case of Ramanand Yadav vs. Prabhu Nath Jha & Ors., (2003) 12 SCC 606, which reads thus:

"21.There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of 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 the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not."

22. The Apex Court recently in Shailendra Rajdev Pasvan v. State of Gujarat, (2020) 14 SC 750, has held that the appellate court is reversing the trial court's order of acquittal, it should give proper weight and consideration to the presumption of innocence in favour of accused, and to the principle that such a presumption sands reinforced, reaffirmed and strengthened by the trial court and in Samsul Haque v. State of Assam, (2019) 18 SCC 161 held that judgment of acquittal, where two views are possible, should not be set aside, even if view formed by appellate court may be a more probable one, interference with acquittal can only be justified when it is based on a perverse view.

23. The victim has levelled allegations against all the accused persons/respondents that they tortured her for want of additional dowry and tried to kill her by pouring kerosene oil on her body. It is also the charge against the accused Navratan Lal that he tried to commit rape also with the victim. To prove the allegations made against the respondents, prosecution has produced two witnesses of facts, namely, the victim (PW1) and Laxman Prasad (PW2). Laxman Prasad, who has examined as PW2 is cousin of the victim. Learned trial court has scrutinized his testimony and put the conclusion that he was interested witness. It is concluded by the trial court that he is not the eye-witness of the facts, which took place inside the house of the victim. It is admitted fact in defence that PW2 was not present inside the house of the victim, therefore, learned trial court has rightly opined that he could not depose the version of facts, which took place inside the house. Moreover, his testimony was not found reliable. Learned trial-court has examined the statement of victim (PW1) also and concluded that there are several contradictions in her evidence and statements under Sections 161 and 164 Cr.P.C.

24. We also threadbare examined the statements of witnesses of fact. Victim (PW1) has nowhere mentioned the demand of additional dowry in the form of the gold and her torture in her statement under Sections 161 and 164 Cr.P.C. There is no evidence of fact that when she ran out of her home, anybody saw her. It is alleged by the victim that she ran out from her in-laws house and reached to the house of her cousin (brother), but no such witness is produced by prosecution, who had seen her between the two houses. Laxman Prasad (PW2) is her cousin and admittedly he is not the eye-witness of the facts relating to alleged offences inside the house of the victim. The sole evidence of victim does not find any corroboration by any independent or impartial witness. There is no evidence of this fact also on the record that after coming out of the house of her in-laws, the victim had raised any alarm or any hue and cry outside the house, which seems unnatural. Hence, keeping in view the evidence put forward by PW1 and PW2 as also the conduct of the victim, learned trial-court has rightly concluded that charges levelled against the respondents are not proved.

25. In view of above, we are of the considered opinion that no two views are possible and we cannot take different view from that taken by the learned trial-court. We also do not find any infirmity in the impugned judgment and order, therefore, we have no other option, but to concur with the findings recorded by the learned trial Judge.

26. The appeal lacks merit and is dismissed, accordingly.

27. The record and proceedings be sent back to the court-below.

(Ajai Tyagi, J.)      (Dr. Kaushal Jayendra Thaker,J.)
 

 
Order Date :- 3.12.2021
 
LN Tripathi