Court No. - 37
Case :- GOVERNMENT APPEAL No. - 152 of 2020
Appellant :- State of U.P.
Respondent :- Mitthilesh And Another Counsel for Appellant :- G.A.
Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Ajai Tyagi,J.
1. This appeal under Section 378(3) of Cr.P.C. has been preferred by the State against the impugned judgment and order of acquittal dated 12.02.2020 passed by learned Sessions Judge, Etah in S.S.T. No.103 of 2016, arising out of Case Crime No.582 of 2015, under Sections 376-D, 120-B I.P.C. and Section 3(2)V of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘SC/ST Act’), Police Station Aliganj, District Etah, whereby the respondents/original accused persons have been acquitted of all the charged levelled against them.
2. The brief facts of the prosecution case are that an application under Section 156(3) Cr.P.C. was moved by complainant/victim before the court of competent Magistrate stating that she is poor widow lady. On 16.07.2015, she came to Zila Panchayat, Etah with Ajab Singh in search of job but there was no vacancy; when she and Ajab Singh were returning to their village, one lady namely, Mithlesh met them and she assured the victim to get employment for her in the farmhouse of Ramesh Verma. Victim and Ajab Singh went to the farmhouse of Ramesh Verma with Mithlesh. It is alleged by the complainant/victim that Ramesh Verma and one Kamal Verma committed rape with her at the farmhouse of Ramesh Verma.
3. The Case Crime No.582 of 2015 was registered at Police Station-Aliganj, District-Etah. Investigating Officer recorded the statements of prosecutrix and other witnesses under Section 161 Cr.P.C. Statement of prosecutrix was also recorded by competent Magistrate under Section 164 Cr.P.C. and she was medically examined. Site-plan was prepared and after completion of investigation, charge-sheet was submitted by Investigating Officer against the accused persons, namely, Mithlesh and Ramesh Verma under Section 376-D I.P.C. and Section 3(2)V of SC/ST Act. The case was triable by court of session, hence, the same was committed to the Sessions Court for trial.
4. The trial court framed charges against the respondent Ramesh Verma under Section 376-D, 120-B I.P.C. & Section 3(2)V of SC/ST Act and charge was framed against respondent Mithlesh under Section 120-B I.P.C. Charges were read over to the accused persons, who denied the charges and claimed to be tried. Prosecution led the evidence. Statements of accused persons were recorded under Section 313 Cr.P.C., in which they stated that the evidence is false against them. Accused Ramesh Verma examined himself as DW-1 in his defence and filed documentary evidence also. After considering the evidence on record, the learned trail court acquitted the accused persons of all the charges vide impugned judgment and order dated 12.02.2020. Hence, this appeal is preferred by the State.
5. Heard learned A.G.A. for the appellant and perused the material on record.
6. Learned A.G.A. has submitted that the learned trial court has committed grave error while acquitting the accused persons as there was sufficient evidence on record to connect them with the crime. Order of acquittal is illegal and erroneous. The learned trial court has not properly appreciated the evidence of the prosecution and has decided the case only on the basis of the conjectures and surmises.
7. Learned A.G.A. has also submitted that prosecutrix has supported the prosecution case and her testimony is corroborated by other witnesses produced by the prosecution. It is next submitted that prosecution case is supported by medical evidence also. The learned trial court has not assessed the evidence in its right perspective. There was enough evidence on record to lead the conviction of the accused persons, but they were wrongly acquitted by the trial court.
8. At the outset, it is required to be noted that the principles, which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial-court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S.Narayana Menon @ Mani vs. State of Kerala & Another, [(2006) 6 SCC 39], the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In paragraph-54 of the decision, the Apex Court has observed as under:
"54. In any event, the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court-below."
9. Further, in the case of Chandrappa vs. State of Kanataka [(2007) 4 SCC 415], the Apex Court laid down the following principles:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re- appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973, puts no limitation, restriction or condition on exercise of such power and and appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate curt to interfere with acquittal than to curtain the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that 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 shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial-court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial-court."
10. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial-court.
11. Even in the case of State of Goa vs. Sanjay Thakran & Anr. [(2007) 3 SCC 75], the Apex Court has reiterated the powers of the High Court in such cases. In paragraph-16 of the said decision, the Court has observed as under:
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court-below. However, the appellate court has a power to review the evidence it fit is of the view that the conclusion arrived at by the court-below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is case upon the appellate court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
12. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh vs. Ram Veer Singh & others, [2007 AIR SCW 5553] and in Girja Prasad (Dead) by LRs vs. State of MP [2007 AIR SCW 5589]. Thus, the powers, which this Court may exercise against an order of acquittal are well settled.
13. In the case of Luna Ram vs. Bhupat Singh and others [(2009) SCC 749], the Apex Court in paragraphs-10 & 11 has held as under :
"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye-witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.
11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."
14. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. vs. State, represented by the Inspector of Police, Tamil Nadu [AIR 2013 SC 321], the Apex Court in paragraph-4 has held as under :
"4. It is not in dispute that the trial-court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court, the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinction or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal [Vide State of Rajasthan vs. Sohan Lal and others (2004) 5 SCC 573]."
15. It is also a settled legal position that in acquittal appeal, the appellate court is not required to rewrite the judgment or to give fresh reasoning, when the reasons assigned by the court- below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Kanataka vs. Hemareddy [AIR 1981 SC 1417], wherein it is held as under :
"... This Court has observed in Girija Nandini Devi vs. Bigendra Nandini Choudhary [(1967) 1 SCR 93 : AIR 1967 SC 1124] that it is not the duty of the appellate court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial-court expression of general agreement with the reasons given by the court the decision of which is under appeal, will ordinarily suffice."
16. Thus, in case, the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
17. We have gone through the impugned judgment and order passed by learned trial court as well as perused the evidence on record and submissions made by learned A.G.A. In this case, First Information Report is lodged through the application under Section 156(3) Cr.P.C. by the prosecutrix in which it is said that Ramesh Verma and Kamal Verma committed rape with her on 16.07.2015 at the farmhouse of Ramesh Verma, but no evidence was found against Kamal Verma and he was not charge-sheeted even.
18. It is submitted by learned A.G.A. that prosecutrix has supported the prosecution case in her statement and her testimony is corroborated by other witnesses.
19. Learned trial court has not found the testimony of prosecutrix reliable. Prosecution has examined P.W.-2,Vishnu Pal Singh in its support. This witness is not eye witness of the occurrence. Moreover, it is transpired from the record that this witness was nowhere around the farmhouse of Ramesh Verma. The testimony of Ajab Singh (PW7) does not support the prosecution case. As far as medical evidence is concerned, Dr.Aneeta Kumari medically examined the prosecutrix. She has deposed before learned trial court as PW3. The medical evidence does not at all support the prosecution version and it is not in favour of prosecution. Pathology report of prosecutrix is also not in her favour.
20. It is pertinent to mention that accused Ramesh Verma has examined himself as DW-1 in his defence. He has taken the plea of alibi. He shows his presence in Nepal in connection with his business at the time of occurrence. To prove the plea of alibi, the accused Ramesh Verma has produced documentary evidence of flight tickets, taxi bills, hotel bills, etc. to show his presence in Nepal. On the said date of occurrence, learned trial court has meticulously examined documentary evidence and came to the conclusion that on the said date of occurrence, accused Ramesh Verma was in Nepal and in the whole scenario of this case, no indulgence of accused Mithlesh was found in the occurrence. Learned trial-court very elaborately considered and appreciated the evidence on record.
21. Recently, the Apex Court in The State of Gujarat vs.
B.L. Dave [(2021) 2 SCC 735] has held that High Court, being first appellate court, is required to re-appreciate entire evidence on record and reasonings given by the trial court are also required to be looked into. The decision of Umedbhai Jadavbhai vs. State of Gujarat [(1978) 1 SCC 228] is also considered by us. In this case, the trial court has acquitted the accused and on perusal of impugned judgment and order of acquittal, passed by the learned trial judge, we find that the decision is based on totality of the facts and circumstances. There is no ignoring of settled legal position by the learned trial judge. The approach of the trial court in dealing with the evidence was absolutely legal and cannot be said to have led to miscarriage of justice. We are of the opinion that the order passed by learned trial court does not require any interference.
22. More so, learned AGA was not in a position to show any evidence to take a contrary view in the matter that the accused persons have committed offence as alleged against them. The ingredients of said offence were also held not to be proved.
23. In such view of the matter, we are of the considered view that the findings recorded by the court-below are absolutely just and proper and while recording the said findings, no illegality or infirmity has been committed by court-below. We are also in complete agreement with the reasoning and the findings arrived at by the learned trial-court. Therefore, we hold that the learned trial Judge has not committed any error, which requires any interference by this Court under Section 378 (3) of the Criminal Procedure Code.
24. The appeal is dismissed , accordingly.
(Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.) Order Date :- 25.10.2021 P.S. Parihar