Court No. - 41
Case :- GOVERNMENT APPEAL No. - 4516 of 2012
Appellant :- State Of U.P.
Respondent :- Asif
Counsel for Appellant :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J. Hon'ble Mrs. Vijay Lakshmi,J.
Heard learned A.G.A. for the State appellant and perused the material on record.
This Government appeal along with an application seeking leave to appeal has been filed by the State appellant with the prayer that leave to appeal may be granted against the Judgement and order dated 30.07.2012 passed by learned Additional Sessions Judge, Court No.14, District Muzaffar Nagar, in Sessions Trial No.1717 of 2007 arising out of Case Crime No.221 of 2007 under Sections 363, 376, 506 I.P.C., Police Station Kandhla, District Muzaffar Nagar whereby the accused-respondent has been acquitted for the offence punishable under the Sections referred to above.
We have carefully perused the lower Court's record which has received in the light of the findings recorded by the trial Court.
On a careful perusal of the impugned Judgement in the wake of the evidence available on lower Court's record, it appears that the prosecutrix was found major after her ossification test as her radiological age was found to be above 18 years. The doctor had not found any injuries on her body during her medical examination. The evidence also shows that she has travelled to various places by bus but has not raised any alarm. She has been recovered by the police from the bus stand, which is a public place but she has not made any complaint against the accused- respondent to any one. The learned Court below on the basis of the aforesaid evidence found the prosecution case doubtful and gave the benefits of doubt to the accused- respondent, resulting into his acquittal.
We do not find any factual or legal error in the assessment of evidence by the court below while acquitting the accused respondents. Moreover, the view taken by the court below is a possible view and as per settled legal position, the golden thread which runs through the administration of criminal justice while hearing the appeal against the acquittal is that even if two views are possible on the evidence, one pointing towards the guilt of the accused and other towards their innocence, the view which is favourable to the accused should be accepted and the finding of acquittal recorded by the trial court should not be disturbed by the appellate court. The reason is that while passing the order of acquittal, the presumption of innocence in favour of the accused is re-inforced In Ramesh Babulal Doshi Vs. State of Gujrat; 1996 (9) SCC 225, the Hon'ble Supreme Court has held as under : -
"...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 should be presumed to be innocence unless he is proved to be guilty by a competent court and secondly the accused having secured an acquittal, the presumption of innocence is, re-enforced and strengthened by the trial court "
In Mahadeo Laxman Sarane vs. State of Maharashtra, (2007) 12 SCC 705, the Apex Couirt has observed that : -
"It is true, that the settled legal position is that in an appeal against acquittal the High Court ought not to interfere with the order of acquittal if on the basis of the same evidence two views are reasonably possible-one in favour of the accused and the other against him. In such a case if the trial court takes a view in favour of the accused, the High Court ought not to interfere with the order of acquittal."
In C. Antony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1, the Apex Court has laid down the law as follows:-
Unless the findings of trial court are perverse or contrary to the material on record, High Court cannot, in appeal, substitute its finding merely because another contrary opinion was possible on the basis of the material on record."
In Sirajuddin Vs. State of Karnataka, (1980) 4 SCC 375, the Apex Court has reiterated the same principle in the following words:-
"Where trial Court's order of acquittal is based on a reasonably possible view, High court should not, as a rule of prudence, disturb the acquittal."
Considering the facts and circumstances in wake of the above cited legal position, we do not consider it to be a fit case for grant of leave to appeal to the applicant.
The application seeking leave to appeal is rejected and consequently the appeal is dismissed.
The lower Court record be sent back to the concerned Court below.
Order Date :- 26.4.2018 S.Ali