Court No. - 51
Case :- GOVERNMENT APPEAL No. - 3531 of 2008 Appellant :- State Of U.P.
Respondent :- Bhura @ Neetu Counsel for Appellant :- Govt. Advocate
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri Arun Kumar Singh, learned AGA, appearing for the State on the application seeking leave to appeal against the judgment and order dated 30.01.2008 passed by Special/Addl. Sessions Judge, Muzaffar Nagar. By means of which the accused-respondent has been acquitted of the offecne under Section 364 IPC.
We have heard Sri Arun Kumar Singh, learned AGA at great length and have also gone through the findings as recorded by the court concerned. The record shows that the court concerned has given cogent reason while returning the verdict of acquittal. The court has gone through the entire evidence on record and have thereafter concluded herein is as under:
i=koyh ij miyC/k leLr lk{; dk voyksdu djus ds ckn eSaus ik;k fd vfHk;qDr dh dksbZ Hkh jaft'k dfFkr viâ~r vkfnR; mlds ekrk firk vFkok ekek }kjk ugha crk;h x;h gS rFkk fdlh vijk/k dk dksbZ eksfVo Hkh gksrk gSA izLrqr ekeys esa vijk/k djus dk dksbZ eksfVo Hkh fl) ugha gS rFkk dksbZ Hkh fQjkSrh dh jde dh ekax Hkh fdlh us viâr vkfnR; ds ekrk firk vFkok mlds ekek ls ugha dh rFkk vfHk;qDr viâr vkfnR; ds xk;c gksus ds ckn Hkh yxkrkj mlds ekek ds xkao HkwjkgsMh+ es cuk jgk ftl xkao es og jgrk FkkA blds foijhr lebZ lk{kh Mh0 MCyw0 1 txeksgu flg izLrqr gqvk gS tks mlh Ldwy esa d{kk &12 dk Nk= Fkk tgka ij viâr vkfnR; i<+rk FkkA mlus viuh eq[; ijh{kk es crk;k fd og vEckyk esa vius pkpk fnykoj ls feyus tk jgk Fkk rks fnukad 25-7-2008 dks lka; 4-00 cts vEckyk dSUV cl LVS.M ds ikl vkfnR; lM+d ij mls [kMk+ feyk FkkA vkSj fnukad 29-8-2003 dks ch- ,l- lh- esa dkyst ,Mfe'ku ysus tkus ds le; mls tkudkjh feyh fd vkfnR; djhc 5 ekg igys dgha pyk x;k FkkA mlds lkFk vEckyk esa uhVw ugha FkkA Mh0 MCyw0 2 lksguohj flg us Hkh viuh eq[; ijh{kk esa crk;k fd og vkfnR; dks tkurk gS] tks xkao dkth[ksMk+ dk jgus okyk gS vkSj bl lk{kh ds xkao ds ujsUnz o egdkj flg dk HkkUtk Fkk] mlds xkao esa vkrk tkrk jgrk Fkk vkSj mld xkao es jg dj i<+rk Fkk] mldk vkpj.k Bhd ugha FkkA bl lk{kh }kjk crk;k x;k fd bl ?kVuk ds igys Hkh vkfnR; ,d yM+ds dks ysdj Hkkx x;k Fkk vkSj 5&6 fnu ckn okfil ykSV vk;k vkSj mlds ckn vkfnR; ds ekeks us mls crk;k Fkk fd vkfnR; fQj ekpZ ds vfUre lIrkg es tc izSfDVdy py jgs Fks dgh pyk x;k gSA i=koyh ij miyC/k lk{; ds vk/kkj ij ;g Hkh egRoiw.kZ gS fd /kkjk 156¼3½ n0 iz0 l0 fd tks fjiksVZ vij eq[; U;kf;d eftLVsªV] dksVZ la0 1 ds ;gka izLrqr dh xbZ] mles bl rF; dks oknh }kjk ugha fy[kk;k x;k fd ujsUnz dqekj }kjk mls ;g crk;k x;k Fkk fd mldk iq= vkfnR; dks vfHk;qDr uhVw mQZ Hkwjk dgha ys x;k gSA /kkjk 156¼3½ n0 iz0 l0 ds izkFkZuk i= esa ;g vafdr fd;k x;k gS fd mldk iq= uhVw ds lkFk x;k Fkk vkSj nks fnu mldk iq= uhVw dh ekSlh ds ;gka xkao lkoV es jgk gSA ,slh Hkh dksbZ lk{; i=koyh ij vfHk;kstu i{k }kjk izLrqr ugha dh xbZ fd vkfnR; xkao lkoV esa uhVw ds lkFk mldh ekSlh ds ;gka 2 fnu jgk gksA blds foijhr ih- MCyw- 1 egsUnz flga fuoklh xkao lkoV] ftldk fd vfHk;qDr uhVw ] lk<w dk yMdk gS] mlus vfHk;kstu i{k ds dFku dk leFkZu ugha fd;k vkSj dgk fd xkao lkoV esa viâr vkfnR; ds lkFk uhVw ?kVuk ds nks fnu ckn ugha vk;k vkSj u ogka jgkA At the very outset it may be appreciated that Aditya Kumar son of first informant had got missing on 30.03.2003 no missing report or gumsudgi report was lodged because only on 05.08.2003 an application under section 156 (3) Cr.P.C was filed and thereafter, application was rejected. It is also come on record even earlier boy had ran away from home as come out in the testimony of DW-2 Sohan Veer Singh.
And on the basis of said conclusion the verdict of acquittal has been returned, even though the learned AGA has strongly press the application seeking leave to appeal. Therefore, no illegality or perversity has been pointed out to the findings recorded by the court concerned ought to the conclusion arrive at by the court concerned. No one can be said that the view taken by the court concerned is a perverse view or not a possible and plausible view. no case for indulgence has been made out.
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 :- 25.7.2018 Vikram