State Of U.P. Thru. Prin. Secy. ... vs Rajaram
2022 Latest Caselaw 22445 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
(LUCKNOW)
 
Criminal Misc. Application No. 101 of 2022
 
(Under Section 378(3), Cr.P.C.)
 

 
State of U.P.						 .....Applicant
 
Versus
 
Rajaram							......Opposite party                                     
 
Reserved on: September 28, 2022  
 
Delivered on: December 22, 2022
 
CORAM: 	HON'BLE RAJAN ROY, J.
 
		HON'BLE SANJAY KUMAR PACHORI, J.
 
ORDER

SANJAY KUMAR PACHORI, J.

1. We have heard learned A.G.A. and perused the leave application and grounds of appeal and judgment of the court below.

2. The application seeking leave to appeal against the common judgment and order of acquittal dated 12.5.2022 passed by IXth Additional Sessions Judge, Raebareli in Session Trial No. 9 of 2018 (State of U.P. v. Rajaram), arising out of case crime no. 1061 of 2017, under Sections 366, 376(1), 342, IPC Police Station Mohanganj, District Amethi, has been filed by the State.

3. Brief facts of the prosecution case are that on 15.7.2017 at about 1:00 p.m. while the victim was waiting for conveyance at Tempo Stand Tiloi West to go to her matrimonial house from her parental house, accused-respondent reached there by a Tempo and asked her to sit and stated that he will immediately go without waiting for passengers. She sat in the Tempo along with her children then he moved his Tempo and just after reaching Fatehpur, he changed the way towards Jagdishpur. On her query, he replied that he had some work in Jagdishpur and after that he would go to her house. In Jagdishpur, he offered some sweet (Barfee) and cold water to the victim and after consuming the same, her brain stopped working and was not able to understand anything. The accused-respondent brought her along with her children to Amritsar and locked her in a house and raped repeatedly for 6 days. Anyhow, she managed to send information regarding her whereabouts to her parents with the help of an unknown person. After being informed, her parents, sister, brother-in-law (Bahnoi), and husband reached and saved her from his clutches, but the respondent escaped from the spot.

4. In order to prove the charges, the prosecution examined as many as 5 witnesses, PW-1 victim/informant aged about 25 years, PW-2 Nand Lal (husband of the victim), PW-3 Dr. Anju Singh, PW-4 CP Vishnu Kumar (scribe of the chik FIR) and PW-5 SI Banarasi Yadav (Investigating Officer).

5. After examining the prosecution evidence, the statement of the accused-respondent was recorded under Section 313 Cr.PC. wherein he stated that the prosecution evidence is false and he has been implicated due to enmity. The accused-respondent did not lead any evidence in defence.

6. Learned trial court after thorough examination of the prosecution evidence, found that the accused-respondent is neighbour of the matrimonial house of the victim. The victim is a consenting party in the present case as she travelled with the accused-respondent by public conveyance about 1000 Km. Firstly she reached Jagdishpur, then she went to Amritsar (Punjab) from her parental house along with her two children aged about 4 years and 1 year, wherein she lived six days in a rented room.

7. The trial court further found that no missing report was lodged with regard to missing of the victim by her husband after having information of missing of his wife and children on 15.7.2017 at 6:00-7:00 p.m. It is further found that near the place of the incident (rented room in Amritsar) some other tenants who were known to the victim were residing, but the victim has not raised any alarm. There is material contradiction in the testimony of the victim with regard to the fact of intoxication with an adulterated substance.

8. Learned AGA submits that the victim was kidnapped along with her children by the accused-respondent and he committed rape on her. The trial court without considering the evidence on record and after disbelieving the material evidence on record, acquitted the accused-respondent. The judgment and order impugned cannot be sustained.

9. We have given thoughtful consideration to the submissions of learned AGA and have carefully perused the judgment passed by the court below.

10. Before we proceed to examine the weight of the submissions made on behalf of the State, it would be useful to notice the law with regard to the scope of power of the appellate court in interfering with the judgment of acquittal recorded by the trial court.

11. In Sampat Babso Kale & Anr. v. State of Maharashtra, (2019) 4 SCC 739, the Supreme Court observed as under: (SCC para 8 page 742)

"8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in Chandrappa v. State of Karnataka1, laid down the following principles: (SCC, p.432, para 42)

'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, reappreciate 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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise 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 findings of acquittal recorded by the trial court."

12. Keeping in mind the legal principles noticed above, now, we shall examine the weight of the submissions with reference to the evidence led by the prosecution and the findings returned thereon. Before that, at the outset, it may be observed that in the application seeking leave to appeal as well as in the memorandum of appeal, it has not been stated that the trial court has misread or misquoted the statement of the prosecution witnesses. We have therefore to first ascertain whether the findings of the trial court are sustainable or not. The thrust of the submission of the learned A.G.A. is that the trial court has not appreciated the evidence of the victim as well as the statement of the victim recorded under Section 164 Cr. PC. wherein the victim has supported the prosecution version.

13. It is noticeable that no missing report was lodged with regard to missing of the victim by husband or her parents, as stated by PW-2 Nandlal that he got knowledge about missing of his wife on 15.7.2017 at 6:00-7:00 p.m., when he reached his Sasural and enquired whereabouts of the victim. The incident took place on 15.7.2017 at 1:00 p.m. PW-1 victim stated that she had gone to her parental house 6 - 7 days before the incident and she had travelled along with her children with the accused-respondent to Jagdishpur then Fatehpur on 15.7.2017 by a Tempo and lastly reached Amritsar (Punjab) where she resided 6 - 7 days in a rented accommodation. The other tenants of the same house were known to her. There is no evidence with regard to the fact that the victim had raised alarm during 6-7 days after having opportunity. It is further submitted that the accused-respondent is a neighbour of the matrimonial house of the victim.

14. It is settled position of law that a statement under Section 164 of the Cr.PC. is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. (Vide: Ram Kishan Singh v. Harmit Kaur and another2).

15. Considering the facts and circumstances of the case, and with reference to the principles governing the weighing of evidence, we do not find any factual or legal error in the assessment of the evidence by the trial court while acquitting the accused-respondent. Hence, keeping in mind the settled legal position that in an appeal against acquittal the appellate court should not interfere unless there are compelling reasons to differ with the finding of the trial court. We are of the considered view that no compelling reasons have been shown to us to grant leave to the State so as to entertain appeal against the judgment and order of acquittal passed by the court below. Consequently, the application seeking leave to appeal is rejected. As a result, the Government Appeal is dismissed.

16. We may put on record that according to the office report no appeal has been filed by the victim against the judgment and order of the court below.

Date: December 22, 2022

T. Sinha

(Hon'ble Sanjay Kumar Pachori, J.) (Hon'ble Rajan Roy, J.)