State Of U.P. vs Surya Bali And 3 Ors.
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

      
 
 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW BENCH, LUCKNOW
 

 
Court No. - 1       						
 
                                                                       
 
Case :- Government Appeal No. - 1000263 of 2007
 

 
Appellant :- State of Uttar Pradesh
 
Respondents :- (1) Surya Bali @ Surjoo
 
                      (2) Sukhma Devi
 
                       (3) Maghai  
 

 
Counsel for Appellant :- Ms. Smiti Sahay, Additional Government Advocate
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Mrs. Saroj Yadav,J.

(ORAL)

(Per Mrs. Saroj Yadav, J. for the Bench)

1. This appeal along with application under Section 378(3) of the Code of Criminal Procedure 1973 (in short "Cr.P.C.") has been filed by the State-appellant against the judgment and order passed by Additional Sessions Judge, Court No. 8, District Faizabad in Sessions Trial Nos. 428 of 2004 & 32 of 2005, Case Crime No. 428 of 2004, under Sections 363, 366 and 376 of The Indian Penal Code, 1860 (in short "IPC"), wherein the accused respondents have been acquitted of charges under Sections 363, 366 and 376 IPC.

2. Heard Ms. Smiti Sahay, learned Additional Government Advocate appearing on behalf of the State-appellant.

3. Shorn off unnecessary details, the facts necessary for disposal of this appeal are:-

A First Information Report (in short "F.I.R.") was registered on the basis of written report with thumb impression of Parshuram Kori (complainant) at Case Crime No. 288 of 2004, under Sections 363, 366, 504 and 352 IPC against the accused Surya Bali @ Surjoo, Maghai, wife of Maghai (Sukhma) and Kallu Kori. It was alleged that elder daughter of the complainant was married to Sri Ram son of Maghai Kori. On 02.05.2004 Maghai, his younger son aged about 25 years and wife of Maghai and Kallu Kori came to his house and asked him to marry his younger daughter with the younger son of Maghai, who had left his wife earlier. He refused to marry his younger daughter with Surya Bali @ Surjoo son of Maghai because his daughter was minor. In the evening, when the daughter of the complainant went to ease herself in the field and his wife went to the market to purchase groceries, these accused persons enticed away his daughter. When he came back and did not find his daughter in the house, he went for search of his daughter, then the neighbours and villagers told that the accused persons had taken away his daughter, then he went to search them and found that these persons were taking away his daughter by holding her hand. Thereafter, he came to know that the accused Surya Bali @ Surjoo has taken away her daughter to Ahmedabad (Gujarat), where he worked as labourer.

4. The case was investigated and two separate charge sheets were submitted against the accused-respondents. The Magistrate concerned after taking cognizance of the offence committed the case to Sessions Court for trial. Two Sessions Trial were registered. Sessions Trial No. 428 of 2004 was registered against the accused Surya Bali @ Surjoo, Maghai and Kallu and another Sessions Trial No. 32 of 2005 was registered against the accused Sukhma. Both these Sessions Trial were consolidated and tried together. The Sessions Court framed charges against the accused respondents. They denied the charges and claimed to be tried. In order to prove charges levelled against the accused respondents, the prosecution examined seven witnesses which includes:-

(I) P.W. 1- Parshuram Kori (complaiant);

(ii) P.W. 2- Ram Chander (brother of the victim and son of the complainant);

(iii) P.W. 3- Victim;

(iv) Awdhesh Rai (Investigating Officer);

(v) Dr. Ms. Sushma Gupta, who medically examined the victim;

(vi) Constable Chhote Lal, who proved the concerned G.D.;

(vii) Mr. M.P. Nigam, Senior Assistant to Chief Medical Officer, Faizabad, who has proved the signature of C.M.O. Sri O.P. Pathak on Exhibit Ka-9.

5. Necessary documents were also proved by the prosecution i.e. Exhibits Ka-1 to Ka-9, these are as under:-

(I) Exhibit Ka 1- written report of the complainant;

(ii) Exhibit Ka 2- recovery memo of the victim;

(iii) Exhibit Ka 3- Site-plan;

(iv) Exhibit Ka 4- Charge-sheet;

(v) Exhibit Ka 5- Charge-sheet against the accused Sukhma Devi in S.T. No. 32 of 2005;

(vi) Exhibit Ka 6- medical examination report of the victim;

(vii) Exhibit Ka 7- Chik F.I.R.;

(viii) Exhibit Ka 8- carbon coy of G.D.;

(ix) Exhibit Ossification test report of the victim.

6. Thereafter statements of the accused respondents were recorded under Section 313 Cr.P.C., wherein all the accused persons have denied the allegations and stated that witnesses have deposed falsely and they have been implicated falsely. The accused respondent Surya Bali @ Surjoo has stated that the victim married with him on her own sweet will and he has deposed falsely on the behest of her father. He has also stated that victim is major and she on her own volition came with him to the Court and they got registered their marriage and thereafter lived as husband and wife. The accused respondents did not adduce any evidence in defence.

7. Learned Trial Court after hearing the arguments of both the sides on the basis of evidence available on record came to the conclusion that story narrated by the complainant P.W. 1 is not trustworthy because in the F.I.R, he has stated that accused persons took her daughter away by holding her hand on foot and he along with other villagers and neighbours saw them but did not try to catch them or to save his daughter. In the medical evidence, age of the victim was found about 17 years and according to settled law margin of two years may be read on either side and benefit of doubt in this regard shall always be given to the accused. The victim remained for 20-22 days with accused in Ahmadabad (Gujarat) and other places but she did not try to get help of anybody to save herself. In the medical examination Doctor did not find any internal or external injury on the body of the victim. She was found used to sexual intercourse. She admitted in her cross-examination that she used to live with the accused Surya Bali @

Surjoo as husband and wife. Hence learned Trial Court came to the conclusion that prosecution could not prove the charges levelled against the accused persons beyond reasonable doubt and acquitted all the accused persons.

8. Being aggrieved of this judgment, the present appeal has been preferred by the State.

9. Learned A.G.A. assailed the impugned judgment submitting that learned Trial Court discarded the evidence of the victim, complainant as well as brother of the victim without any proper and legal reason. Learned Trial Court did not appreciate the evidence in the right perspective. Impugned judgment is based on surmises and conjecutres. Hence the impugned judgment and order is illegal, not sustainable in the eyes of law and  liable to be set aside.

10. Considered the submissions advanced by learned A.G.A., perused the impugned judgment and order and the record of the Trial Court.

11. The allegations made in the F.I.R. shows that the complainant along with his wife and some villagers saw the accused respondents taking his daughter away and they all went to catch them but could not do that and the accused respondent took her daughter by holding her hand on foot. The complainant has stated the same thing in his statement before the Court but the allegations made in the F.I.R. and the statement of the complainant has rightly been disbelieved by the Trial Court because it is not trustworthy that complainant, his wife and so many other villagers could not get her daughter freed when the accused persons were going on foot while taking her daughter away. It is also noteworthy that no internal or external injury was found on the person of the victim by the Doctor, who medically examined her when she was recovered by the police in the company of accused respondent Surya Bali @ Surjoo. The statement of victim recorded under Section 164 Cr.P.C. is on record though not marked as Exhibit. The victim has stated in her cross-examination that her statement was recorded by the Magistrate and she told her age there as 17 years as she was under threat of the accused persons. She has also admitted in her cross-examination that when her statement was recorded by the Magistrate, at that time, accused respondent Surya Bali @ Surjoo was confined in jail. The statement of the victim recorded under Section 164 Cr.P.C. shows that victim has stated her age as 17 years and she told before Magistrate that accused respondent Surya Bali @ Surjoo enticed her away and took her to Ahmadabad (Gujarat) and she married him and wanted to go with him. She did not want to go with her parents. In her statement recorded under Section 164 Cr.P.C. she had stated nothing against other accused persons. In her cross-examination, the victim has also stated that she went with the accused respondent Surya Bali @ Surjoo to get her photo clicked and she has also stated that when photo was get clicked, her father had already lodged the F.I.R. These all shows that she went with the accused respondent Surya Bali @ Surjoo willingly. In the Ossification Test, her age has been found as 17 years and as per the settled law two years margin can be read on either side and in such a situation benefit of doubt will be given to the accused.

12. The aforesaid analysis makes it clear that prosecution failed to prove charges levelled against the accused respondents beyond reasonable doubt.

13. Learned A.G.A. could not evince that the findings given by the Court below, while acquitting the accused-respondents were factually or legally incorrect.

14. Hon'ble Apex Court in the case of Achhar Singh Vs. State of Himachal Pradesh reported in 2021 SCC Online HP 870 in this regard has laid down as under:- 

"It is thus a well crystalized principle that if two views are possible, the High Court ought not to interfere with the trial Court's judgment. However, such a precautionary principle cannot be overstretched to portray that the "contours of appeal" against acquittal under Section 378 CrPC are limited to seeing whether or not the trial Court's view was impossible. It is equally well settled that there is no bar on the High Court's power to re-appreciate evidence in an appeal against acquittal11. This Court has held in a catena of decisions (including Chandrappa v. State of Karnataka, (2007) 4 SCC 415, 42. State of Andhra Pradesh v. M. Madhusudhan Rao, (2008) 15 SCC 582 20-21 and Raveen Kumar v. State of Himachal Pradesh, 2020 SCC Online SC 869, 11.) that the Cr.P.C does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate Court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused".

15. We do not find any factual or legal error in the appreciation of evidence by the trial Court while acquitting the accused-respondents. Moreover, the view taken by the trial Court is a possible view. Hon'ble Apex Court recently in Geeta Devi Versus State of Uttar Pradesh & Others, 2022 SCC Online SC 57, has rehashed the principle of law laid down in Chandrappa Versus State of Karnataka (2007) 2 SCC (Cri) 162, which is as under:-

" 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. The trial Court has given valid, convincing and satisfactory reasons while passing the order of acquittal for not relying on the evidence of victim. For the aforesaid reasons, there appears no ground to disturb the acquittal of the accused respondents under Sections 363, 366 and 376 of IPC recorded by the trial Court.

17. We, therefore, do not consider it to be a fit case for grant of leave to appeal to the appellant. The application seeking leave to appeal is, accordingly, rejected. The appeal is also dismissed.

(Saroj Yadav, J.)     (Ramesh Sinha, J.) 
 
		Order Date :- 05.05.2022
 
		Arun