Court No. - 51
Case :- APPLICATION U/S 378 No. - 75 of 2018 Applicant :- Shanti Devi Opposite Party :- State Of U.P. And 5 Others Counsel for Applicant :- Arun Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri Arun Kumar Singh, learned counsel appearing for the appellant who happens to be the first informant on the application seeking leave to appeal against the judgment and order dated 21.05.2018 passed by learned Additional District and Sessions Judge/Special Judge (Dacoity Affected Area) Ramabai Nagar (Kanpur Dehat) by means of which the accused/respondents have been acquitted of the offence under Section 395 IPC.
We have heard learned counsel for the appellant at great length and we have also perused the findings has been recorded by the court concerned, even though Smt. Shanti Devi submits and states that she was an eye witness to the incident in which her husband aged about 75 years and another Pataidaar Kamal Kishore had received injuries but nevertheless the fact remains none of the injured has appeared to the court concerned and they were not examined as witness. As far as testimony of Shanti Devi is concerned court concerned has observed here is as under:
ifjokfnuh Jherh 'kakfr nsoh us fnukad 26-10-2017 dks 'kiFk ysdj U;k;ky; esa ;g c;ku fn;k gS fd%& fnukad 26@27-04-2009 dks jkr yxHkx 1-00 cts esjs ifr o caVkbZnkj dey fd'kksj [ksrksa dh j[kokyh dj jgs FksA mlh le; eqfYteku vt; o xksyw gkFkksa esa dVVs fy;s gq, ,oa eqfYteku Hkksyw o nhucU/kq gkFkksa esa ykBh rFkk vatw] latw o ckyfd'ku vius gkFkksa esa MaMs fy;s nhucUnq ds VsªDVj la- 3522 ij cSBdj 75 cksjk xsgwW ykndj tcjtLrh ys tkus yxs rks mlds ifr o dey fd'kksj us euk fd;kA vt; o nhucU/kq us mlds ifr o cVkbZnkj dh dVVs ls ekjihV dhA esjs ifr o dey fd'kksj dks pksVsa vk;h FkhA esjs ifr ds flg ij pksV vk;h FkhA dey fd'kksj dh ,p0 ,e0 Vh0 ?kMh+ o lksus dh psu rFkk 500@&:0 vt; ys x;k FkkA esjs ifr dh vaxwBh o eksVksjksyk eksckby rFkk 1000@&:0 lkS&lkS ds uksVks ds :i esa Fks] vt; cktisbZ vkfn eqfYte ywV dj ys x;sA 75 cksjk xsgwa Hkh ywVdj ys x;sA eqfYteku ds } kjk tkrs oDr ;g dgk x;k fd vxj iqfyl esa fjiksVZ dh rks tku ls ekj nsxsA rst ukjk;.k o deyfd'kksj dks vk;h pksVksa dk MkDVjh eqvk;uk ds0 ih0 ,e0 vLirky dkuiqj esa gqvk ftldh udysa i=koyh ij nkf[ky gSA viuh eq[; ijh{kk esa ifjokfn;k Jherh 'kakfr nsoh us blds vfrfjDr dksbZ ckr ugha dgh gSA Li"V gS fd blus ;g Hkh nkok ugha fd;k gS fd og vfHkdfFkr ?kVuk tks fnukad 26@27-04-2009 dks jkr 1- 00 cts dkfjr dh tkuh dgh x;h gS] ds le; ekSds ij ekStwn Fkh ;k ughaA lkekU;r% nsj jkr esa efgyk;sa [ksrksa ij ugha tkrh gSA blls ;gh /ofur gksrk gS fd ;fn ifjokfn;k ds ifr vkSj mlds caVkbZnkj ds lkFk dksbZ ?kVuk gq;h Hkh gS rks [kqn ifjokfn;k mldh dksbZ izR;{kn'khZ lk{kh ugha jgh gksxhA dnkfpr bl fcUnq dks Li"V djus ds fy, cpko{k us mlls ftjg dh rks ftjg esa mlus ;g dgk fd] Þ?kVuk ds le; eSa ogha ij FkhA ge ihNs&ihNs x;s FksA ge tkurs Fks fd ;g gksuk gSA vt;
/kedh ns x;s Fks fd ;g gksuk gSA ;g dg x;s Fks fd dksbZ x;k rks ogka ls ykSVsxk ughaA gekjs ifr gkVZ ds ejht FksAß ftjg esa vk;s gq, bu rF;ksa ls ;gh /ofur gksrk gS fd ifjokfnuh ds vuqlkj mlds ifr rst ujk;u vfHkdfFkr ?kVuk ds le; 75 o"khZ; o`) O;fDr Fks rFkk gkVZ ds ejht Fks vkSj vfHk;qDr /kedh Hkh ns x;s Fks blds ckotwn og ?kVuk LFky ij nsj jkr esa x;s FksA ftlds lkFk ifjokfn;k [kqn ugha x;h Fkh vfirq og /kedh dh otg ls ihNs&ihNs x;h FkhA ;g ckr fcydqy vLokHkkfod yxrh gS fd 1-00 cts jkr esa ifjokfn;k dk o`) ifr [ksr ij tk;s vkSj vius lkFk viuh iRuh dks u fyok ys tk;sA blds ckotwn ifjokfnuh ihNs& ihNs ekSds ij x;h gks vkSj ?kVuk ns[kh gksA The fact remains that she is the solitary witness who claims to be an eye witness. In view of the fact and circumstances and in view of the observation which has been recorded by the court concerned in which no illegality or perversity has been pointed out to the findings recorded by the court concerned.
As regards the exercise of the powers of the Appellate court the Supreme Court in Sanmwat Singh vs. State of Rajasthan 1961 SC 715 has laid down three broad principles.
(i) Appellate Court has full powers to review the evidence upon which the order of acquittal is found it.
(ii) The Principles laid down by the judicial committee of the privy counsel in Sheo Swaroop vs. King Emperor (AIR 1934 PC) page 227. Afford a correct guide for the appellate court approach to a case in disposing of such an appeal. These principles require that the appellate court should give proper weight and consideration to such matters as, the view of the trial Judge as to credibility of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to the benefit of doubt, and the slowness of an appellate court in disturbing the findings of fact arrived at by a Judge who had the advantage of seeing the witnesses. These matters and guidelines are the “Rules and Principles” in the administration of justice.
(iii) The appellate court in coming to its conclusion should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal, but should also express those reasons to hold that the acquittal was not justified Damodar Prasad Chandrika Prasad vs. State of Maharashtra 1972 (1) SCC 107.
It follows as a corollary from as regards the exercise of the powers of the Appellate court the Supreme Court in Sanmwat Singh vs. State of Rajasthan 1961 SC 715 has laid down three broad principles.
(i) Appellate Court has full powers to review the evidence upon which the order of acquittal is found it.
(ii) The Principles laid down by the judicial committee of the privy counsel in Sheo Swaroop vs. King Emperor (AIR 1934 PC) page 227. Afford a correct guide for the appellate court approach to a case in disposing of such an appeal. These principles require that the appellate court should give proper weight and consideration to such matters as, the view of the trial Judge as to credibility of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to the benefit of doubt, and the slowness of an appellate court in disturbing the findings of fact arrived at by a Judge who had the advantage of seeing the witnesses. These matters and guidelines are the “Rules and Principles” in the administration of justice.
(iii) The appellate court in coming to its conclusion should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal, but should also express those reasons to hold that the acquittal was not justified Damodar Prasad Chandrika Prasad vs. State of Maharashtra 1972 (1) SCC 107.
It follows as a corollary from the above, that if two views of the evidence are reasonably possible, one supporting an acquittal and the other indicating conviction, the appellate court should not interfere merely because it feels, that it would, sitting as a trial court have taken the other view. Two views and conclusions cannot be right and one in favour of the acquittal of the accused must be preferred over the other because our criminal jurisprudence demands that the benefit of doubt must prevail. If, two reasonably, probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of reasonable doubt. Even otherwise we find that the consistent legal position as laid down by the Apex Court with regard to the scope of interference in an appeal against acquittal is to the effect that until or unless it can be pointed out that there is some illegality or perversity with the findings as have been recorded by the court concerned or until or unless it can be shown that the view taken by the court concerned while writing a verdict of acquittal is perverse or not possible, the appellate court ought not to interfere.
“Suffice it to say that the Apex Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and
(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
In view of the above, that if two views of the evidence are reasonably possible, one supporting an acquittal and the other indicating conviction, the appellate court should not interfere merely because it feels, that it would, sitting as a trial court have taken the other view. Two views and conclusions cannot be right and one in favour of the acquittal of the accused must be preferred over the other because our criminal jurisprudence demands that the benefit of doubt must prevail. If, two reasonably, probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of reasonable doubt. Even otherwise we find that the consistent legal position as laid down by the Apex Court with regard to the scope of interference in an appeal against acquittal is to the effect that until or unless it can be pointed out that there is some illegality or perversity with the findings as have been recorded by the court concerned or until or unless it can be shown that the view taken by the court concerned while writing a verdict of acquittal is perverse or not possible, the appellate court ought not to interfere.
“Suffice it to say that the Apex Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and
(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
Regard may also be had to the consistent legal position with regard to the scope and interference by the High Court in the judgement and order of acquittal. The Apex Court in the case of Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011.
Reference, may also be made to the judgment of the Apex Court rendered in the cases of Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal No. 512 of 2014, Ashok Rai Vs. State of U.P. & Ors, Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005, Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990, Murugesan vs. State through Inspector of Police reported in 2012 AIR SCW 5627.
In view of the aforesaid facts and circumstances of the case, it cannot be said that the view taken by the Court below is not possible and plausible thus the judgment of the court below cannot be interfered with by this Court only on account of the fact that another view is possible.
Learned A.G.A. has not been able to point out any illegality or perversity with the findings as recorded by the court below and thus it cannot be said that the view taken by trial court is a perverse view.
Thus in view of aforesaid consistent legal position as elaborated above and also in view of the fact that learned A.G.A. has failed to point out any illegality or perversity with the findings so recorded in the impugned order, no case for interference has been made out. No interference with the impugned judgment and order of acquittal is warranted. Accordingly the application seeking leave to appeal is rejected. Consequently, appeal is also dismissed.
Let a copy of this order be certified to the court concerned for necessary compliance.
Order Date :- 30.7.2018 Vikram