Court No. - 51
Case :- GOVERNMENT APPEAL No. - 3026 of 2012 Appellant :- State Of U.P.
Respondent :- Mahipal & Another Counsel for Appellant :- Govt. Advocate Hon'ble Vipin Sinha,J.
Hon'ble Ifaqat Ali Khan,J.
Heard Sri Om Prakash Mishra, learned A.G.A. appearing for the State on the application seeking leave to appeal against the judgment and order dated 27.4.2012 by means of which the accused-respondents have been acquitted of the offences under Sections 363, 366, 376, 376(g) and 392 IPC.
Having heard learned A.G.A. at length and having perused the findings given by the Court concerned, we find that as far as the accused-respondent No.2 is concerned he had no role to play in the controversy in issue. He was implicated on the basis of statement of Bhudev and Tabir, however, they were not examined. The Court has further observed with regard to the role of Amar Singh in paragraph No.40 and paragraph No. 59 of the affidavit that there is no evidence which may show the participation of Amar Singh in the alleged crime and he has been implicated solely on account of previous political enmity.
Thus in view of the aforesaid, the present appeal, inasmuch as it pertains to Amar Singh, the accused- respondent No.2 is concerned, is dismissed.
Reference may be made to the recent judgment of the Apex Court rendered in the case of Bannareddy & Ors. vs. The State of Karnataka & Ors reported in 2018 (5) SCC 790 wherein the Apex Court has held as under:
11. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in the case of Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 11 SCC 186, para 13, wherein this Court observed that: "The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt.
12. It is not in dispute that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favor. [Vide Rabindra Kumar Pal @ Dara Singh vs. Republic of India, (2011) 2 SCC 490 in para. 94].
27. Keeping in view the facts and circumstances of the case, we hold that the prosecution was not able to establish the guilt of the accused persons beyond reasonable doubt. Further, the High Court should not have re-appreciated evidences in its entirety, especially when there existed no grave infirmity in the findings of the trial court. There exists no justification behind setting aside the order of acquittal passed by the trial court, especially when the prosecution case suffers from several contradictions and infirmities. No specific assertion could be proved regarding the role and involvement of the accused persons. Further, certain actions of the victim-respondents themselves are dubious, for instance admitting themselves later in a Multi-speciality hospital without proper cause. It has further come to our notice that respondents have already compromised and have executed a compromise deed to that extent, though the same is not the basis for our conclusion.
Reference may also be made to the judgments of the Apex Court rendered in the cases of Sanmwat Singh Vs. State of Rajasthan reported in 1961 SC 715, Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011, 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 and Murugesan v. State through Inspector of Police reported in 2012 AIR SCW 5627.
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.
It is an established position of law that if the court below has taken a view which is a possible view in a reasonable manner, then the same shall not be interfered with moreso in view of the fact that more than 10 years have already elapsed as the incident is of the year 2008.
Sri Om Prakash Mishra, learned A.G.A. has strongly placed the present appeal with regard to the Respondent No.1 Mahipal with the contention that Mahipal was also named in the FIR. He was also named in the statement of Anil as a person who helped Anil in kidnapping the victim. The victim in her statement under Section 164 Cr.P.C. has corroborated the prosecution case, thus, the case for grant of indulgence has been made out.
Accordingly, the present appeal is admitted only as accused-Respondent No.1, Mahipal.
The Court has been informed that the record is already available and has been received.
Issue bailable warrant against the accused- Respondent No.1, Mahipal returnable at an early date for execution to the CJM concerned. In the event the accused respondent is arrested or he appears in the court of CJM concerned and applies for bail, he may be released on bail on executing a personal bond of Rs. 25,000/- with two sureties each in the like amount to the satisfaction of the CJM concerned and further on the undertaking that he shall appear before this Court on 23rd October, 2018 either personally or through his counsel.
List on 23rd October, 2018. Order date: 21.8.2018 Manish Tripathi