State Of U.P. vs Sachin
2021 Latest Caselaw 11233 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

[AFR]
 

 
Court No. - 37
 

 
Case :- GOVERNMENT APPEAL No. - 149 of 2020
 

 
Appellant :- State of U.P.
 
Respondent :- Sachin
 
Counsel for Appellant :- G.A.
 

 
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) Cr.P.C. has been preferred by the State against the judgment and order of acquittal dated 18.2.2020, passed by learned Additional Sessions Judge/Fast Track Court-II, Gautambudh Nagar, in S.T. No.69 of 2016 arising out of Case Crime No.199 of 2015 under Sections 452, 376 IPC, Police Station-Jarcha, District-Gautambudh Nagar, whereby the respondent-original accused has been acquitted of all the charges levelled against him.

2. The brief facts of the prosecution case are that a first information report was lodged at Police Station-Jarcha by Sube Singh, husband of the prosecutrix, stating that on 14.8.2015, he had gone to school where he was teacher. At about 11:30 am, his neighbor Sachin (accused/respondent) entered his house where his wife was alone. On the pointing out of knife, Sachin threatened his wife and by molesting, tried to rape her and on making hue and cry by his wife, Sachin fled away by giving life threat to her.

3. A case crime bearing No.199 of 2015 was registered at the police station under Sections 452, 376 IPC against accused Sachin. Investigating Officer recorded statement of prosecutrix and other witnesses under Section 161 Cr.P.C. and prepared site-plan. The statement of prosecutrix was also recorded under Section 164 Cr.P.C. before competent Magistrate and she was also medically examined. On completion of investigation, the Investigating Officer submitted charge-sheet under Sections 452, 376 IPC.

4. The case was triable exclusively by the court of sessions, therefore, it was committed to the court of sessions for trial. The trial-court framed charges against the accused under Sections 452, 376 IPC. The accused pleaded not guilty and claimed to be tried. After recording the evidence, the court-below acquitted the respondent of all the charges vide impugned judgment and order dated 18.2.2020. Hence, this appeal.

5. Heard Ms.Alpana Singh, learned AGA appearing on behalf of State of UP and perused the record.

6. Learned AGA submitted that the trial-court has committed grave error while acquitting the respondent/accused since there was sufficient evidence on record to connect the accused with the crime; learned trial-court has failed to appreciate the evidence in right perspective. She has also submitted that evidence on record is enough to lead the conviction of the respondent because the prosecutrix has supported the prosecution version in her statement under Section 161 Cr.P.C. as well as under Section 164 Cr.P.C. and even she has supported the prosecution case before learned trial-court, but the trial-court failed to give correct appreciation of evidence and wrongly acquitted the accused-respondent.

7. At the outset, it is required to be noted that the principles, which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial-court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S.Narayana Menon @ Mani vs. State of Kerala & Another, [(2006) 6 SCC 39], the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In paragraph-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 views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court-below."

8. Further, in the case of Chandrappa vs. State of Kanataka [(2007) 4 SCC 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 and 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", 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 curt to interfere with acquittal than to curtain 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."

9. Thus, it is a settled principle that while exercising appellate power, even 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.

10. Even in the case of State of Goa vs. Sanjay Thakran & Anr. [(2007) 3 SCC 75], the Apex Court has reiterated the powers of the High Court in such cases. In paragraph-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 it fit 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 case upon the appellate court, in such circumstances, to reappreciate 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."

11. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh vs. Ram Veer Singh & others, [2007 AIR SCW 5553] and in Girja Prasad (Dead) by LRs vs. State of MP [2007 AIR SCW 5589]. Thus, the powers, which this Court may exercise against an order of acquittal are well settled.

12. In the case of Luna Ram vs. Bhupat Singh and others [(2009) SCC 749], the Apex Court in paragraphs-10 & 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."

13. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. vs. State, represented by the Inspector of Police, Tamil Nadu [AIR 2013 SC 321], the Apex Court in paragraph-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 re-appreciate the entire evidence, though while choosing 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 distinction 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]."

14. It is also a settled legal position that in acquittal appeal, the appellate court is not required to rewrite the judgment or to give fresh reasoning, 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 Kanataka vs. Hemareddy [AIR 1981 SC 1417], wherein it is held as under :

"... This Court has observed in Girija Nandini Devi vs. 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."

15. Thus, in case, the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.

16. We have gone through the judgment and order passed by learned trial-court as well as perused the evidence on record and considered the submissions made by learned AGA. In this case, first information report is written and lodged by Sube Singh, husband of the prosecutrix, in which it is said that the accused, on the date of occurrence, entered the house of prosecutrix and threatened her on the point of knife. It is further submitted that the accused molested the complainant's wife and tried to commit rape with her. First information report was lodged under Sections 452 and 376/511 IPC because as per the prosecution case, accused only tried to commit rape, but later on, the prosecutrix stated in her statements that accused succeeded in committing rape. In the light of circumstances above, the report of medical examination becomes more relevant and important. Medical examination of prosecutrix was conducted by medical officer. This report does not support the version of prosecutrix. Dr.Anshu Gupta, the doctor, who conducted the medical examination, is examined as PW4. She has stated in her oral testimony that at the time of medical examination of the prosecutrix, she did not find any mark of injury on the private-parts of the prosecutrix. Her hymen was old torn. It is also stated in her evidence that vaginal smear was collected for the examination of spermatozoa, but as per the pathological report, no spermatozoa was found. As per statement of the doctor (PW4), hair and piece of nail of prosecutrix was sent for DNA examination, but no such DNA test-report is produced by prosecution on record. Learned AGA also admitted the fact that DNA test-report was not filed. It is admitted case that prosecutrix was married-lady of 30 years at the time of said occurrence and having two children. It is also admitted case that the accused was handicapped by one leg because prosecution story is that on making hue and cry by prosecutrix, accused fled away by jumping the wall of her house. Learned trial-court very elaborately considered and appreciated the evidence on record.

17. Recently, the Apex Court in The State of Gujarat vs. B.L. Dave [(2021) 2 SCC 735] has held that High Court, being first appellate court, is required to re-appreciate entire evidence on record and reasonings given by the trial court have also required to be looked into. The decision of Umedbhai Jadavbhai vs. State of Gujarat [(1978) 1 SCC 228] is also considered by us. In this case, the trial court has acquitted the accused and on perusal of impugned judgment and order of acquittal, passed by the learned trial judge, we find that the decision is based on totality of the facts and circumstances. There is no ignoring of settled legal position by the learned trial judge. The approach of the trial court in dealing with the evidence was absolutely legal and cannot be said to have led to miscarriage of justice. We are of the opinion that the order passed by learned trial court does not require any interference.

18. More so, learned AGA was not in a position to show any evidence to take a contrary view in the matter that the accused had committed offence as alleged against him. The ingredients of said offence were also held not to be proved on the touchstone of the judgments on which the learned Judge placed reliance.

19. In such view of the matter, we are of the considered view that the findings recorded by the court-below are absolutely just and proper and while recording the said findings, no illegality or infirmity has been committed by court-below. We are also in complete agreement with the reasoning and the findings arrived at by the learned trial-court. Therefore, we hold that the learned trial Judge has not committed any error, which requires interference by this Court under Section 378 (3) of the Criminal Procedure Code.

20. The appeal is dismissed, accordingly.

(Ajai Tyagi, J.)         (Dr. Kaushal Jayendra Thaker, J.)
 
Order Date :- 23.10.2021
 
LN Tripathi