GA/26/2021
2021 Latest Caselaw 3135 UK

           IN THE HIGH COURT OF UTTARAKHAND
                             AT NAINITAL
        THE HON'BLE THE CHIEF JUSTICE Mr. RAGHVENDRA SINGH CHAUHAN

                                       AND

                 THE HON'BLE JUSTICE Mr. ALOK KUMAR VERMA

            GOVERNMENT APPEAL NO. 26 OF 2021

                                   WITH

        SPECIAL LEAVE TO APPEAL NO. 60 OF 2021

                        17th AUGUST, 2021

BETWEEN:

State                                                         .....Appellant.
and

Vipul                                                         ....Respondent.

Counsel for the appellant : Mr. J.S. Virk, learned Deputy Advocate General for the State.

The Court made the following:

COMMON JUDGMENT: (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

Leave granted.

Aggrieved by the acquittal of the respondent-

accused, Mr. Vipul, under Section 302/34 of IPC, the State of

Uttarakhand has challenged the judgment dated 06.03.2021,

passed by the learned IIIrd Additional District & Session

Judge, Rudrapur, District Udham Singh Nagar.

2. Briefly, the facts of the case are that, on

20.10.2010, Mr. Arun Kumar (P.W. 1), lodged a complaint

with P.S. Rudrapur, District Udham Singh Nagar, wherein he

claimed that "on the same day around 12:30 PM, there was a

fight between his brother, Mohit, and Rakesh. During the

fight, Rakesh stabbed his brother on stomach. Due to the

injury, Mohit fell on the ground; Rakesh ran away. At the

time of the incident, he was at his shop located at Sanjay

Nagar Market. As soon as he was informed about the

incident, he ran to the place of incident. He discovered that

his brother was lying on the ground, and was bleeding from

his stomach. He, immediately, informed his parents at home.

Consequently, his mother also came there. The complainant

took his brother in an auto to the nearest Government

Hospital. But, considering the condition of his brother, his

brother was referred to Sushila Tiwari Hospital".

3. Initially, the case was registered for the offence

under Section 307 of IPC. However, with Mohit's death, the

case was converted and registered for offence under Section

302 read with Section 34 of IPC.

4. In order to prove its case, the prosecution

examined six witnesses, and submitted fourteen documents.

The accused neither examined any witness, nor submitted

any document. After going through the evidence, the learned

Trial Court acquitted the accused-respondent, Mr. Vipul.

Hence, the present appeal before this Court.

5. Mr. J.S. Virk, the learned Deputy Advocate General

appearing for the State, has contended that, firstly, despite

ample evidence produced by the prosecution, the learned

Trial Court has erred in acquitting the respondent-accused.

Secondly, according to Bhola Pandey (P.W. 4), an

eye-witness, he had seen that both Vipul and Rakesh were

assaulting the deceased. Therefore, Vipul's presence at the

scene of crime cannot be doubted. Despite the over-whelming

evidence, the learned Trial Court has acquitted the

respondent-accused.

6. Heard the learned counsel, and perused the

impugned order.

7. It is, indeed, trite to state that in a case of direct

evidence, the prosecution is required to prove its case beyond

a shadow of doubt.

8. There are certain established principles with regard

to the jurisdiction of the High Court while dealing with an

acquittal order. In the case of Sampat Babso Kale v. State

of Maharashtra, [(2019) 4 SCC 739], the Hon'ble

Supreme Court has laid down the principles with regard to

the powers of an appellate Court in an appeal against an

acquittal order. The Hon'ble Supreme Court observed as

under:-

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

Karnataka [(2007) 4 SCC 415, 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 finding of acquittal recorded by the trial court."

9. In the case of State of Rajasthan v. Naresh,

[(2009) 9 SCC 368], the Hon'ble Supreme Court opined

that "an order of acquittal should not be lightly interfered with

even if the court believes that there are some evidence

pointing out the finger towards the accused".

10. These principles have recently been reiterated by

the Hon'ble Supreme Court in the case of Anwar Ali &

another v. State of Himachal Pradesh, [(2020) 10 SCC

166]. Therefore, these settled principles of criminal

jurisprudence would have to be kept in mind while examining

the legality or illegality of the impugned judgment.

11. It is, indeed, trite to state that the scope of

interference with an acquittal order is extremely limited. In

case, the view taken by the learned Trial Court is a

reasonable and plausible one, then the acquittal order should

not be interfered with lightly by the Appellate Court. It is

only when the learned Trial Court has failed to admit an

evidence, which was admissible, or ignored the evidence,

which was readily available on record, or mis-appreciated the

evidence, or has acquitted the accused on the basis of

surmises and conjectures, or there is perversity in the

reasoning of the learned Trial Court, only in such

circumstances, would the Appellate Court be justified in

overturning the verdict of acquittal and in convicting the

accused. Therefore, while dealing with an acquittal order, the

Appellate Court has to reassess the evidence available on

record, and evaluate the reasoning given by the learned Trial

Court.

12. A bare perusal of the testimony of Mr. Arun Kumar

(P.W. 1) clearly reveals that in his cross-examination, he

clearly admits that he did not mention Vipul's name

(respondent-accused) in the F.I.R. lodged by him. Moreover,

in the FIR, no overt act was assigned to Vipul. In fact, the

F.I.R. was lodged only against Rakesh. Moreover, the overt

act of stabbing the deceased in his stomach was assigned to

Rakesh, and not to Vipul.

13. Although, Arun Kumar (P.W. 1) claims that his

friends Mithilesh, Bhola, Kapil Sapan and others were

standing near the place of incident, only Mithilesh Sarkar

(P.W. 2) and Bhola (P.W. 4) have been examined. According

to Mithilesh Sarkar (P.W. 2), they rushed at the scene of

crime only after hearing the shouts of Mohit. Thus, there is

contradiction between the testimonies of Arun Kumar (P.W.

1), and Mithilesh Sarkar (P.W. 2). For, according to Arun

Kumar (P.W. 1), his friends Mithilesh, Bhola, Kapil Sapan

were standing right next to the place of incident. Yet,

according to Mithilesh Sarkar (P.W. 2), they were not

standing near the place of incident. They rushed to the scene

of crime only after hearing shouts and cries of Mohit. Even

Bhola (P.W. 4) admits, in his cross-examination, that by the

time he and others reached at the place of incident, the

incident had already occurred. The said admission clearly

belies his claim in his examination-in-chief that he is an eye-

witness of the actual incident, which was described by him in

his examination-in-chief.

14. Due to the glaring gaps in the evidence produced

by the prosecution, the learned Trial Court was justified in

acquitting the respondent-accused, Mr. Vipul, on the following

grounds:-

Firstly, that the presence of the respondent-

accused, Mr. Vipul, at the scene of crime is unclear.

Secondly, the allegation made by the prosecution

against the respondent-accused, Mr. Vipul, that he hit the

deceased on the head with stick (Danda), or that he caught

hold the deceased, is unproven.

Thirdly, that even the alleged eye-witness admits

that the incident had already occurred at the time he reached

at the place of incident. Hence, the view taken by the learned

Trial Court is a reasonable one.

15. Hence, the prosecution has failed to prove its case

beyond a shadow of doubt. Therefore, the learned Trial Court

is certainly justified in acquitting the respondent-accused, Mr.

Vipul.

16. For the reasons stated above, this Court does not

find any merit in the present appeal. Hence, the appeal is

hereby dismissed.

17. Pending application, if any, stands rejected.

(RAGHVENDRA SINGH CHAUHAN, C.J.)

(ALOK KUMAR VERMA, J.) Dated: 17th August, 2021 NISHANT