State Of U.P. vs Subedar Singh And Others
2021 Latest Caselaw 11391 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 45					   (AFR)
 

 
Case :- GOVERNMENT APPEAL No. - 3804 of 2001
 
Appellant :- State of U.P.
 
Respondent :- Subedar Singh And Others
 
Counsel for Appellant :- R.P. Dubey,A.G.A.
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Vikas Budhwar,J.

(Oral Judgment by Hon'ble Vikas Budhwar, 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 21.8.2001, passed by learned IIIrd Additional Sessions Judge, Banda, in Criminal Session Trial No.520 of 1995 arising out of Case Crime No.135 of 1992 under Sections 364/34, 323/34, 336/34 and 376 of Indian Penal Code (in short 'IPC'), Police Kotwali Dehat, District-Banda, whereby the learned trial-court acquitted the accused-respondents.

2. The brief facts of this case are that prosecutrix W/o Sadla Yadav R/o village Chhehraon, under precincts of P.S. Kotwali Dehat, district Banda was sleeping in her house on 30.7.92 in the night. All the accused persons came to her house at about 11 P.M. Accused Subedar Singh jumped into the house of prosecurtrix woke up, the accused entered in her room in the mean time, the house was locked from outside. The accused Subedar Singh caught hold of prosecutrix and dragged her in the courtyard. He was armed with gun (country made). Prosecutrix started crying and became much frightened. The accused asked her to hand over the keys. She was thrown away outside the house when she refused to handover the key. Accused Jageshwar, Munna and Rajju were present outside the house. These persons tied up prosecutrix and accused Subedar Singh also came out of the house. The accused persons had ligated the rope around the neck of prosecutrix and dragged her upto the bank of river Jamuna. Thereafter accused Subedar Singh, Munna Singh and Rajju committed rape upon her at the bank of Jamuna. Accused Jageshwar had assisted the accused persons at the house of prosecutrix but had not come to the bank of Jamuna while the rape was committed by the aforesaid three accused. All the accused were under the influence of liquor and committed rape one by one. Thereafter accused Subedar Singh hit prosecutrix at the point of left eye with butt of the gun. Thereafter she was stripped, by stripping her petticoat and sari. The petticoat was torn away and thrown. The sari was torn into pieces and her hands and legs were tied up with pieces of Sari and she was put in a boat. The boat was rowed in the middle of the river by the accused persons and the tied body of prosecutrix was thrown into the river. She was drowned and she started suffocating and thereafter she succeeded in releasing her hands and legs from the tying position and was pushed to the bank of river by heavy flow of water at the distance of 1 km. from the place she was thrown. Her left eye was not working due to injury. She remained sit at the bank of river the whole night and a person came there at about 4A.M. and made inquiry from her when prosecutrix narrated her story, the gentlemen provided her a lungi which she put on her body. She was brought to Kotwali Dehat on 31.7.92 and was medically examined. It is noteworthy that the matter of her kidnapping was reported by the Chaukidar of the village on 31.7.1992 at about 2.30 P.M. on the basis of which an unnamed F.I.R. was lodged U/s 364 I.P.C. and the police has already came into action after the registration of the F.I.R. prosecutrix was brought to District Hospital, Banda where she was medically examined.

3. On the basis of this report, Case Crime bearing No.135 of 1992 was registered against all the accused-respondents under Sections under Sections 364/34, 323/34, 336/34 and 376 of Indian Penal Code (in short 'IPC'), Police Kotwali Dehat, District-Banda,

4. Investigation started by SI-M.P. Pal, who recorded statement of witnesses under Section 161 Cr.P.C., visited the spot, prepared site-plan and after completing the investigation, submitted charge-sheet against all the respondents. The case being exclusively triable by court of session was committed for trial to the court of session by competent Magistrate.

5. Accused Raju the main culprit died during the trial. Therefore, proceedings against him were abated. Learned trial-court framed charges against the accused Dharmendra and Subedar Singh, Munna Singh and Jagewshwar Singh under Sections 364/34,323/34, 376 and 336/34 IPC. Accused denied the charges and claimed to be tried.

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

1.

Prosecutrix

PW1

2.

Shiv Narain

PW2

3.

Maiyadeen

PW3

4.

Dr. P.M. Kalani

PW4

5.

S.I. M.P. Pal (IO)

PW5

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

1.

Statement u/S 164 Cr.P.C

Ex.ka1

2.

F.I.R.

Ex.ka2

3.

Injury Report

Ex.ka4

4.

Injury Report

Ex.ka5

5.

Pathology Report

Ex.ka6

6.

Site-plan

Ex.ka7

7.

Recovery memo

Ex.ka 8

8. We have heard Shri Ashwani Prakash Tripathi, learned AGA for the State-appellant.

9. 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.

10. 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."

11. 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."

12. 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.

13. 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."

14. 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.

15. 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."

16. 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]"

17. 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."

18. 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."

19. 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."

20. 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."

21. 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.

22. On the contours of the decisions referred herein above, the judgment of the trial court will have to be looked into. It is an admitted position of fact that the prosecutrix had old enmity and, therefore, it was alleged that the accused were roped in the aforesaid crime. The independent witness Devraj son of Jageshwar has opined against the statement of the prosecutrix.

23. The main accused Raju, who is alleged to have committed the rape, has passed away. The statement given by prosecutrix under Section 164 Cr.P.C. was also full of flaws. Contradictions in the statement of the prosecutrix are such that it has led to infirmity. Sattu who happened to be the husband of the prosecutrix has been examined in defence.

24. Findings recorded by the learned Sessions Judge in exonerating the accused, who had no role to play in the aforesaid crime, are reproduced herein below in verbatim :

"The defence witness D.W.1 Sadlu who happened to be the husband of the proscutrix has been examined in defence. He has stated that his wife prosecutrix disappeared from the house on 30.7.92 and did not turn back and came back the next day. When he made an inquiry she had told that some outsiders had dragged her but has not revealed the complicity of the accused persons. He has further stated that his wife is a lady of dubious character and she had been made a tool of certain influential persons of the village for falsely implicating the accused persons. He has further stated that she had illicit relations with one Mangal Singh of Village Pathri and, therefore, she has been acting at their behest. Though I do not find the defence story as gospel truth but in such confusing circumstances as unfolded against the accused persons might have been falsely implicated due to local rivalry.

25. It is evident from the record that there was oral rivalry and enmity and the prosecution story was not plausible story even as per the medical evidence, though there were multiple injuries found on her body, they were simple in nature. There was no injury on her private parts and therefore also we cannot differ with the view taken by the learned Judge.

26. Hence, in view of the matter & on the contours of the judgments of the Apex Court, we have no other option but to concur with the learned Sessions Judge.

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

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

(Vikas Budhwar, J.)      (Dr. Kaushal Jayendra Thaker,J.)
 

 
Order Date :- 27.11.2021
 
piyush