Court No. - 51
Case :- GOVERNMENT APPEAL No. - 3857 of 2007 Appellant :- State Of U.P.
Respondent :- Mahendra And Others Counsel for Appellant :- Govt.Adcocate
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Ms. Sanyukta Singh, learned AGA on the application seeking leave to appeal and perused the record.
The present government appeal has been filed alongwith an application for seeking leave to appeal against the judgment and order dated 18.1.2007 passed by Additional Sessions Judge / FTC Court no. 2, Etah in ST No. 617 of 2006 by means of which accused-respondents have been acquitted from charges under sections 147, 148, 149, 307, 336, 353, 332, 504, 427 IPC.
Learned AGA has strongly pressed that there is no evidence to show as to who has fired from inside the mob. The group of record has not been connected. There is no independent witness. The Court further concluded as under:
var esa tgka rd vkjksi vUrZxr nQk&427 Hkk0 n0 l0 dk loky gS ] pwafd vfHk;kstu i{k us U;k;ky; esa ljdkjh thi dh rksM+QksM ds ckcr Bksl lcwr is'k ugha fd;k gS] uk gh U;k;ky; esa rksaMQksM+ dh x;h thi dks is'k fd;k x;k gS] uk gh ijhf{kr xokgksa ds C;ku esa Li"V ;g ckr gq;h gS fd rksaM+QksM+ esa fdrus :i;ksa dk uqdlku gqvkA vr% bl vkjksi ds ckcr Hkh] esa bl fu"d"kZ ij igqWprk gWw fd vfHk;kstu i{k] vfHk;qDrx.k ds fo:) mDr vkjksi dks Hkh lansg ls ijs lkfcr djus esa vlQy jgk gS rFkk vfHk;qDrx.k] mijksDr nQk&427 Hkk0 n0 l0 esa Hkh lansg dk ykHk nsrs gq, nks"keqDr fd;s tkus ;ksX; gSA The court concerned has clearly observed as under:-
bl izdkj ls mijksDr o.kZu ds vk/kkj ij eSa bl fu"d"kZ ij igqWprk gwW fd ijhf{kr xokgksa ds C;ku ns[kus ls ;g ckr lansg ls ijs lkfcr ugha gksrh gS fd vfHk;qDrx.k oLrqr% izn'kZu djus okys yksxksa esa ls gh Fks lkFk gh muds }kjk HkhM+ ds vanj ls] tks tku ls ekjus dh fu;r ls Qk;j djuk crk;k tkrk gS] og iqfyl ikVhZ ij fu'kkuk cukdj fd;s x;s Qk;j FksA ;g ckr Hkh lansgkLin izrhr gksrh gS rFkk cjken [kks[kks ds ckcr vfHk;kstu i{k us leqfpr lk{; is'k ugha fd;k gS fd ;g ogh [kks[ks gS] tks HkhM+ es ls Qk;j fd;s x;s Fks] lkFk gh ijhf{kr iqfyl dehZ xokg ds C;ku ds vk/kkj ij] rc tc fd ?kVuk Lfky ij ifCyd ds xokg miyC/k Fks] vfHk;qDrx.k ds f[kykQ vkjksi vUrZxr nQk& 147] 148] 307 lifBr /kkjk& 149 Hkkjrh; n.M+ lafgrk] lansg ls ijs lkfcr ugha gksrs gSA vr% bu nQkvksa ds rgr vfHk;qDrx.k @lansg dk ykHk nsrs gq, nks"keqDr fd;k tkuk U;k;ksfpr izrhr gksrk gSA tgka rd vijk/k nQk&336] 353] 332 Hkkjrh; n.M+ lafgrk dk loky gSA tSlk fd mijksDr o.kZu esa vk pqdk gS] vfHk;kstu i{k bl ckr dks lansg ls ijs lkfcr djus esa vlQy jgk gS fd fxj¶rkj vfHk;qDrx.k ds }kjk iqfyl ikVhZ ij bZV iRFkj ekjs x;s rFkk iqfyl deZpkfj;ksa dks vius drZO;ksa dk fuoZgu djus ls jksdk x;k] D;ksafd ?kVuk LFky ij] tSlk fd rF; ds xokgksa ds C;ku esa vk pqdk gS] i'kq iSB Hkh yxrh gS] ftlesa gtkjksa yksx Fks lkFk gh lCth fodzsrk oxSjg ls ;gh yksx FksA vr% ;g ckr lansgkLin izrhr gksrh gS fd vfHk;qDRkx.k ds }kjk gh bZV iRFkj Qsads x;s rFkk iqfyl dfeZ;kas dks muds drZO;ksa ds fuoZgu ls jksdk x;k gksA vr% vfHk;kstu i{k vfHk;qDrx.k ds f[kykQ vijk/k vUrZxr /kkjk nQk& 336]353]332 Hkkjrh; n.M+ lafgrk dks Hkh lansg ls ijs lkfcr djus esa vlQy jgk gS vkSj vfHk;qDrx.k dh bu nQkvksa ds rgr Hkh lansg dk ykHk nsrs gq, nks"keqDr fd;k tkuk U;k;ksfpr izrhr gksrk gSA No illegality or perversity has been attributed to the view taken by the court concerned while acquitting the accused persons.
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 SKS