Chhavi Nath vs State Of U.P. And Others
2022 Latest Caselaw 6435 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 6155 of 2011
 

 
Appellant :- Chhavi Nath
 
Respondent :- State of U.P. and Others
 
Counsel for Appellant :- Devraj Singh
 
Counsel for Respondent :- Govt. Advocate,Mayank Srivastava
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,J.

1. List revised. No one appears to press this appeal. Ms. Nand Prabha Shukla, learned AGA for the State is present.

2. Lower court's record has been received.

3. On 07.09.2012 following order was passed:-

"The learned counsel for the appellant is not present.

The lower court record has been received.

List peremptorily on 18.09.2012."

4. On 07.08.2018 following order was passed:-

"List has been revised. None appears for the appellant.

List after two months."

5. On 07.05.2022 following order was passed:-

"Case is taken up.

None is present for the appellant as well as for the accused respondents. Learned AGA is present.

Appeal is yet to be admitted.

List this case in the week commencing 11.07.2022 for hearing on admission.

It is made clear that if on the next date learned counsel for the appellant will not remain present, the Court will proceed to decide the case appointing Amicus Curiae or with the help of learned AGA."

6. On perusal of order sheet, we find that right since the year 2012 no one is present to press this appeal. Today again no one is present to press this appeal. We therefore, proceed to conclude the appeal on merits with the help of the learned AGA.

7. Present Criminal Appeal under Section 372 Cr.P.C. has been filed against the judgment and order dated 21.09.2011 passed by the Learned Sessions Judge/ F.T.C. Court-3, Kaushambi in Sessions Trial No. 38 of 1998 (State vs. Ayodhya Prasad), arising out of Case Crime No.128/1994, under Section 436, 504, 506 IPC and Section (1) (10) SC/ST Act, Police Station Charwa, District Kaushambi.

8. Prosecution story, in brief, is that the complainant submitted an application for boundary on his land being Araji no.180 situated in Village Kathara, Pargana Chayal, District Allahabad and on that an order in his favour was passed by the court below on 30.3.1994 in Case No. 11 of 1994. Thereafter, Kanoongo did the demarcation and also laid stone on the land in question. The complainant belongs to scheduled caste category and the allegation is that villagers Ayodhya Prasad, Beni Prasad and Chandrapal, who were very quarrelsome persons, broke the demarcation points and started fighting and created ruckus. On the basis of alleged incident, he gave a written report and thereafter a first information report was lodged against the accused persons under Sections Section 436, 504, 506 IPC and Section (1) (10) SC/ST Act.

9. In support of prosecution case, PW-1-Babulal, P.W.2-Chhavi Nath, P.W.3-Kailash, P.W.4-Vibhuti Prasad Gupta, P.W.5-Dr. Sazi Rahil, P.W.6- Constable- Sundar Lal and P.W.7-Sub Inspector- Krishna Kumar Mishra were produced and examined before the Court below.

10. The judgment of acquittal was passed on the ground that although allegations have been leveled against the accused-respondents under Sections 436, 504, 506 IPC read with Section (1) (10) S.C./S.T. Act, however, none of the prosecution witnesses including the informant has supported the prosecution version and it has specifically come on record in the cross examination that no oral or physical fight had taken place and no one had beaten the injured-appellant herein. Under such circumstances, the judgement of acquittal was passed.

11. The ground taken in the present appeal is that as many as 7 prosecution witnesses were produced by the prosecution and the prosecution has proved its case beyond reasonable doubt and the court below has failed to appreciate evidence on record in the right perspective and therefore, judgement of acquittal is liable to be reconsidered.

12. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against against an order of acquittal passed by a Trial Court in the following words:

"The power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ''possible view'. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."

13. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered. For ready reference, paragraphs 10, 11 and 12 are quoted as under:

"10. In the case of Babu vs. State of Kerala (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179, the Hon'ble Apex Court has observed that while dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Paragraphs 12 to 19 of the aforesaid judgment are quoted as under:-

"12. This court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more, the probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445).

13. In Sheo Swarup and Ors. King Emperor AIR 1934 PC 227, the Privy Council observed as under:

"...the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses...."

14. The aforesaid principle of law has consistently been followed by this Court. (See: Tulsiram Kanu v. The State AIR 1954 SC 1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu Mohton & Ors. v. State of Bihar AIR 1970 SC 66; Sambasivan and Ors. State of Kerala (1998) 5 SCC 412; Bhagwan Singh and Ors. v. State of M.P. (2002) 4 SCC 85; and State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755).

15. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under:

"(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 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 finding of acquittal recorded by the trial court."

16. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this Court re-iterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that an "order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of Uttar Pradesh v. Banne alias Baijnath & Ors. (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances includes:

i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

ii) The High Court's conclusions are contrary to evidence and documents on record;

iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

v) This Court must always give proper weight and consideration to the findings of the High Court;

vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.

A similar view has been reiterated by this Court in Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

11. Hon'ble Apex Court in the case of Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 : 1996 SCC (Cri) 972 has observed that while deciding appeal against acquittal, the High Court has to first record its conclusion on the question whether the approach of the trial court dealing with the evidence was patently illegal or conclusion arrived by it is wholly untenable which alone will justify interference in an order of acquittal.

12. The aforesaid judgments were taken note of with approval by Supreme Court in the case of Anwar Ali and another vs. State of Himachal Pradesh (2020) 10 SCC 166, Nagabhushan vs. State of Karnataka (2021) 5 SCC 222, and Babu (supra) in Achhar Singh vs. State of Himachal Pradesh (2021) 5 SCC 543."

14. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 2 SCC 471.

15. On perusal of order, we find that the P.W.1-Babulal had categorically stated that he is not aware as to when the incident had taken place and the accused persons, namely Ayodhya Prasad, Beni Prasad and Chandra Pal are known to him. He has also stated that Ayodhya Prasad, Beni Prasad and Chandrapal did not break the demarcation of land in front of him, nor did he have any information about it. P.W.2-Chhavi Nath-appellant herein had stated in his cross examination that he has not suffered any injury as no marpeet had taken place with him and he was not even orally abused by any persons. P.W.4-Vibhuti Prasad Gupta has also not supported the prosecution version. In such view of the matter, we find that virtually it is a case of no evidence and the court below has taken a correct possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court taking a different view as per the law discussed above.

16. Accordingly, present criminal appeal stands dismissed at the admission stage itself.

Order Date :- 11.7.2022

Nitendra