Ram Krishna Yadav vs State Of U.P. And Anr.
2022 Latest Caselaw 10549 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 12
 
Case :- APPLICATION U/S 378 No. - 327 of 2017
 
Applicant :- Ram Krishna Yadav
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Akhilesh Kumar Pandey
 
Counsel for Opposite Party :- Govt. Advocate,R.S.Pawar
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

No one is present for the applicant/appellant when this appeal is taken up for hearing, while learned A.G.A. for the State is present.

Perusal of the order sheet pertaining to this appeal would reveal that the delay condonation application moved by the applicant/appellant has been allowed by this Court on 11.10.2017 and thereafter the case was listed on 28.04.2022. No one was present for the applicant/appellant on 28.04.2022 and the case was directed to be listed on 21.07.2022 and 03.08.2022 and on both the occasions the appellant was unrepresented. On 21.07.2022 it was specifically observed that if learned counsel for the applicant/appellant will choose to remain absent on the next date of listing also the case shall be taken to its logical end even in his absence. The record of the trial Court has been summoned and is also available before this Court.

The Hon'ble Supreme Court in ''K.S. Panduranga vs. State of Karnataka' reported in 2013 (3) SCC 271, has clarified that in those cases where learned counsel for the applicant/appellant is not appearing, there is no requirement for appointment of any Amicus and the Court in its wisdom may peruse the grounds on which the judgment of the trial Court has been challenged and after appreciating the evidence available on record may pass suitable judgment.

Having regard to the number of criminal appeals pending before this Court, in the considered opinion of this Court, a proactive approach is required. Thus, having regard to the law laid down by the Hon'ble Supreme Court in ''K.S. Panduranga vs. State of Karnataka's case (supra), this Court is proceeding to adjudicate the appeal on merits.

The instant appeal has been filed by the appellant- Ram Krisna Yadav under Section 372 Cr.P.C. against the judgment and order dated 03.03.2017 passed by the Additional District and Sessions Judge/F.T.C., Pratapgarh in S.T. No. 255 of 2016 (State vs. Mahendra Verma), arising out of Case Crime No. 93 of 2015, under Section 363 and 366 I.P.C., Police Station Antu, District Pratapgarh, whereby the respondent was acquitted of the charges framed against him under Section 363 and 366 I.P.C.

The necessary facts required for the disposal of this appeal are that on the basis of a written information provided to the S.H.O., Police Station Antu, District Pratapgarh by the informant/appellant, Ram Krishna Yadav, an F.I.R. was lodged at Police Station Antu, District Pratapgarh alleging therein that on 02.03.2015 at about 7:30 hours the grand-daughter of the informant aged about 17 years, who is also a student of Class-XII had gone to her college where from she could not be traced and she did not return for a long time, the informant had gone to the college where he was informed that the prosecutrix did not attend her examination and thereafter the prosecutrix was searched on all possible whereabouts, but could not be traced.

On the basis of the above-mentioned written information, an F.I.R. was lodged at the Case Crime No. 93 of 2015, under Section 363 I.P.C. and the Investigating officer after investigating the allegations of the F.I.R. and after getting the statement of the prosecutrix recorded under Section 164 Cr.P.C. submitted the charge-sheet against the respondent/accused under Section 363 and 366 I.P.C.

After the case being committed to the Court of Sessions the charges under Section 363 and 366 I.P.C. were framed against the respondent/accused, who denied the charges and claimed trial. The prosecution in order to prove its case beyond reasonable doubt had presented P.W.1/Ram Krishna Yadav (appellant), P.W.-2/Prosecutrix, P.W.-3/Dr. Vartika Singh.

Apart from the above oral evidence, the prosecution had also relied on documentary evidence:-

''Tehrir', (Exhibit-ka-1), Statement of prosecutrix recorded under Section 164 Cr.P.C. (Exhibit-ka-2), Medical Examination Report, (Exhibit-ka-3), Supplementary Medical Examination Report, (Exhibit-ka-4), Chik F.I.R., (Exhibit-ka-5), ''Fard Baramadgi'/G.D. Qayami, (Exhibit-ka-6), Site Map (Exhibit-ka-7), X-ray Report, (Exhibit-ka-8), First Information Report, (Exhibit-ka-9), Charge-sheet, (Exhibit-ka-10) and Paper No. 8A, Photo Copy of High School Mark-sheet/Certificate 2013.

After conclusion of the evidence of the prosecution the statement of the accused under Section 313 Cr.P.C. was recorded, wherein the respondent/accused person had claimed to have been falsely implicated. However, the respondent/accused had not produced any oral or documentary evidence.

The trial Court after considering the evidence available on record was of the view that the prosecution has failed to prove its case beyond reasonable doubt and, thus, acquitted the respondent/accused of the charges framed against him.

Aggrieved by the judgment and order of acquittal, the informant/victim of the crime has filed instant appeal under Section 372 Cr.P.C. This Court had not got an opportunity to hear the submissions of learned counsel for the appellant as he chooses to remain absent. However, the grounds of appeal would reveal that the judgment and order of the trial Court has been challenged by the appellant inter alia on the following grounds:-

(I) That the impugned judgment and order passed by the court below has been passed incomplete ignorance of the evidence available on record;

(II) That the trial Court had committed manifest illegality in appreciating the evidence available on record;

(III) That the trial Court had dealt with the evidence in a very cursory manner and had not appreciated that the case of the prosecution was supported by the informant/appellant and the date of birth of the prosecutrix was 01.05.1997 and thus, there was sufficient evidence for the purpose of proving of the charges against the respondent/accused;

(IV) That the trial Court has ignored the evidence of a witness Ashok Kumar who had stated about the enticement given by the respondent/accused to to the prosecutrix;

(V) That the trial Court had ignored the medical examination report of the prosecutrix.

Learned A.G.A. on the other hand submits that it is on the wisdom of this Court to appreciate the evidence available on record as the appeal has been preferred by the victim.

Having gone through the grounds on which the judgment and order of the trial Court has been challenged by the appellant/victim and having perused the record as well as the judgment of the trial Court, it is transpired that the trial Court had acquitted the accused/respondent on the score that the prosecution has failed to prove that any enticement was given to the prosecutrix by the respondent/accused as the prosecutrix herself, in her statement recorded before the trial Court, had stated that she was not enticed away by the appellant and she had herself left her home on her own volition and did not go to appear in her examination rather she proceeded towards the Pratapgarh Railway Station from where she had gone to Allahabad/Prayagraj where she remained there for two days and thereafter returned to the Pratapgarh from where she was apprehended by the police. The trial Court was also of the view that the prosecutrix in her statement had categorically admitted to have married the accused respondent and has specifically stated that she did not know the respondent/accused from before her marriage and he did not meet her nor he had done anything wrong with her and as the accusation of enticing her away had brought a bad name to the respondent-accused, she had decided to marry yer.

The trial Court has also considered and believed the statement of the prosecutrix wherein she had stated that her family members wanted to get her marry with a person of older age and it is on account of this she had fled away from her house.

The Hon'ble the Apex Court in the case of Ajmer Singh v. State of Punjab, 1953 SCR 418 wherein the accused was acquitted by the trial Court but was convicted by the High Court in an appeal against acquittal filed by the State. The aggrieved accused approached Apex Court. It was contended by him that there were 'no compelling reasons' for setting aside the order of acquittal and due and proper weight had not been given by the High Court to the opinion of the trial Court as regards the credibility of witnesses seen and examined by him. It was also contended that the High Court committed an error of law and the Hon'ble Supreme Court found substance in the argument that when a strong 'prima facie' case is made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and cannot state that the law entitles him to keep his lips sealed. It was further held that in an appeal, the High Court had full power to review the evidence upon which the order of acquittal was founded ...

Upholding the contention, it has also been held in para 6 as under ;

"We think this criticism is well-founded. After an order of acquittal has been made, the presumption of innocence is further reinforced by that order, and that being so, the trial court's decision can be reversed not on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons."

In the case of Sanwat Singh and others v. State of Rajasthan, AIR 1961 SC 715 after placing the reliance on the judgment given by Privy Council in Sheo Swarup and others vs. The King Emperor AIR 1934 PC 227 (2) and many other authroities Hon'ble the Apex Court on the point in issue held as under:-

"Para 16- The foregoing discussion yields the following results:

(1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified".

Hon'ble the Apex Court in the case of Sadhu Saran Singh Vs. State of Uttar Pradesh and Others reported in 2016 Crlj 1908 has considered this difference and has observed as under:

"18 Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasiva V. State of Kerala 1998 SCC (Cri) 1320 has held:

"The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal."

19. This Court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative."

From the above decisions some general principles which may emerge out are that the appellate court is having full power to review or re-appreciate or reconsider the evidence upon which the order/ judgment of acquittal has been based and there is no limitation, restriction in exercise of such power by the appellate court and the appellate court may reach at it is own conclusion on the same set of evidence, both on question of facts as well as on law. However, it is to be kept in mind that in case of acquittal, the presumption of innocence which was initially with the accused persons has been fortified, reaffirmed, strengthened and also the golden principle which runs through the Web of criminal jurisprudence is that if two reasonable and logical conclusions can be derived on the basis of evidence on record the appellate court should not normally disturb the finding of the trial court. But simultaneously it is also to be kept in mind that the benefit of only a reasonable doubt can be given to accused persons in a criminal trial. The accused persons cannot claim the benefit of each and every doubt. To get the benefit of a doubt the same has to pass the test of reasonableness and a reasonable doubt is a doubt which emerges out of the evidence itself.

I have considered the evidence made available by the prosecution before the trial Court. Admittedly, P.W.2/Prosecutrix was the star witness of this crime, as the case of the prosecution was that the prosecutrix had been enticed away by the accused-respondent. However, the prosecutrix in her statement recorded before the trial Court had completely belied the case of the prosecution as she has stated to have left her home on her own volition and that she was not enticed away by the respondent-accused. It was also stated by her that she had chosen to marry the respondent-accused on account of her own volition and free wish and will and is remaining with him as his wife.

So far as the age of the prosecutrix is concerned, that appears to be not of any substance as she had completely denied the prosecution story and specifically contended that she was not enticed away by the respondent-accused.

The necessary ingredient for the purpose of proving the offence of Section 363 and 366 I.P.C., apart from the age of the prosecutrix is also that the prosecution must prove that the prosecutrix was enticed away from the legal guardianship and the evidence which has been made available on record was not sufficient to bring home the charge levelled against the respondent-accused, as the story of the prosecution has not been supported by the prosecutrix and in the background of the statement of the prosecutrix whose testimony is at par with the testimony of an injured person the statement of PW-1/appellant with regard to enticing away of the prosecutrix by the respondent-accused is meaningless and has not been rightly given any weight and importance by the trial court.

Having regard to all the facts and circumstances of the case and the evidence available on record, I am of the considered view that the trial court has rightly appreciated the evidence available on record and has not committed any illegality or to say any irregularity so far as the appreciation of the evidence is concerned and thus, having regard to all the grounds which have been taken by the appellant in order to challenge the judgment and order of the trial court whereby the respondents-accused has been acquitted, I do no find any force in those grounds and the judgment and order of the trial Court appears to be legally sound and based on evidence available on record and the same do not any interference by this Court.

It is to be reminded that every accused person is having presumption of innocence in his favour and the same is fortified by his acquittal by the trial Court, so very strong and cogent grounds are required for interfering in the judgment of acquittal while in this case having regard to the above mentioned facts, evidence and legal position, I am of the considered view that the prosecution had failed to prove its case beyond reasonable doubt before the trial Court and the view which has been taken by the trial Court could not be termed as either perverse or unreasonable rather the view adopted by the trial Court is a possible and probable view, which is emerging from the appreciation of evidence made available on record. Therefore, I am satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference in the judgment of the trial Court is called for.

Thus, the appeal filed by the victim lacks merit and is, hereby, dismissed and the order of the trial Court dated 03.03.2017 is, hereby, affirmed.

The record of the trial Court be transmitted to the lower court along with a copy of instant judgment, forthwith.

Order Date:- 18.08.2022

Praveen