Smt. Nasarin vs State Of U.P. And Others
2023 Latest Caselaw 6756 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 02.01.2023
 
Delivered on 02.03.2023
 

 
Court No. - 88
 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 5402 of 2011
 
Appellant :- Smt. Nasarin
 
Respondent :- State of U.P. and Others
 
Counsel for Appellant :- Suresh Chand Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Raj Beer Singh,J.

1. Heard learned AGA on behalf of the State. None has appeared on behalf of the informant/appellant.

2. This criminal appeal has been preferred by the informant of the case under Section 372 Cr.P.C. against the judgement and order dated 30.07.2011, passed by the Additional District & Sessions Judge, Court No. 17, Bulandshahr in criminal appeal no. 51 of 2008, (State vs. Khurshid & Ors.) and also against the judgment and order dated 30.07.2008, passed by the Additional Civil Judge, Court No. 4/J.M., Bulandshahr in criminal case no. 1225 of 2008, (State vs. Khurshid & Ors.), arising out of case crime no. C-10 of 2004, under Sections 498-A IPC and Section 3/4 of Dowry Prohibition Act, P.S. Kotwali Dehat, District Bulandshahr, whereby the respondent nos. 2 to 5 have been acquitted for the aforesaid offences.

3. Perusal of record shows that informant/appellant has filed an application under Section 156(3) Cr.P.C., alleging that she was married with Javed Abrar but after her marriage, she was harased by her husband and his family members including private respondents on account of dowry and she was subjected to cruelty and later on she was turned out from her matrimonial home.

4. On the direction of the court, the case was registered against the private respondents and after completion of the investigation, they were charge-sheeted under Sections 498-A IPC and Section 3/4 of Dowry Prohibition Act.

5. In evidence, the informant/appellant was examined as PW-1 and other witnesses, namely, (PW-2) Hazi Iqbal, (PW-3) Muntaz and (PW-4) Yatan Pal Singh were also examined besides the formal witnesses. The accused persons/private respondents have also led defence evidence and one Allauddin was examined as DW-1.

6. After hearing and considering evidence, the trial court has acquitted the private respondents of the said charges vide judgment and order dated 30.07.2008. The State has preferred an appeal against the said judgment and order dated 30.07.2008 before the Session Court and that appeal (criminal appeal no. 51 of 2008) was also dismissed vide judgement and order dated 30.07.2011, passed by the Additional District & Sessions Judge, Court No. 17, Bulandshahr.

7. I have considered the rival submissions of learned AGA and perused the entire material on record.

8. It is an appeal against the order of acquittal. It is well settled 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 if it 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 cast 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.

9. 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 & Anr, reported in (2006) 6 S.C.C. 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:

"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 judgement of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

10. In the case of Chandrappa Vs. State of Karnataka reported in (2007) 4 S.C.C. 415, the Apex Court laid down 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, 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 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 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 thebasis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."

11. In case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SC 321, the Apex Court in para 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 distinctions 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]"

12. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgement or to give fresh reasonings, 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 Karnataka Vs. Hemareddy, reported in AIR 1981, SC 1417, wherein it is held as under:

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

13. 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. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 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. In this regard the decision of Apex Court in Vinod Kumar Vs. State of Haryana, AIR 2015 SC 1032 and Gulbar Husain Vs. State of Assam, 2015 (11) SCC 242 may be referred.

14. In the instant case, perusal of record shows that the trial court has considered the entire evidence and found that there were material contradictions and inconsistencies in the statements of witnesses and that prosecution version was suffering from various other infirmities. After considering material on record, it appears that there is no patent illegality or perversity in the impugned judgment of acquittal passed by the trial court. Similarly the appellate court below has also considered the entire evidence in correct perspective and the appeal was dismissed by a reasoned order. Strong reasons have been shown as to why the evidence of prosecution witnesses has not been believed by the trial court and lower appellate court.

15. In view of the material on record, the view taken by the trial court as well as by the appellate court below, cannot be said to be perverse or against the provisions of law. It is an established position of law that if the court below has taken a view, which is a possible view in a reasonable manner, then the same shall not be interfered with. After considering the entire evidence, it cannot be said that the view taken by the trial court or by the appellate court below is not a possible view or a feasible view that could be taken on the facts and evidence of the case. Moreover, no illegality or perversity has been pointed out in the impugned judgment of the trial court as well as of the appellate court.

16. In view of the aforesaid, the instant criminal appeal under Section 372 Cr.P.C. is dismissed.

Dated: 02.03.2023

Neeraj/Anand

(Raj Beer Singh)