Court No. - 51
Case :- GOVERNMENT APPEAL No. - 565 of 2018
Appellant :- State of U.P. Respondent :- Pramod Counsel for Appellant :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Rajendra Kumar-IV,J.
Heard learned AGA for the State-appellant, on the application seeking leave to appeal against the judgment and order dated 16.2.2018, passed by learned Additional Sessions Judge, Court No. 15, Muzaffar Nagar in Sessions Trial No.1492 of 2007, by means of which accused- respondent has been acquitted for the offence punishable under Section 302 IPC, Police Station Fugana, District Muzaffar Nagar.
Learned A.G.A. has strongly pressed the application with the contention that the prosecution evidence has not been appreciated by the court concerned in its correct perspective. He has submitted that the finding of acquittal recorded by learned trial judge is against the evidence on record. He next submitted that the learned trial judge has committed a patent error of law and ignored the material evidence on record while holding that the prosecution had failed to prove the charge against the accused respondent beyond the reasonable doubt.
We have perused the impugned judgment, perusal of which shows that the concerned court has recorded categorical findings after perusing the entire evidence on record.
We have perused the record which shows that initially F.I.R. was lodged by first informant Ombiri with regard to murder of her husband Jitendra. The incident is said to have taken place on 22.10.2006 at about 9:00 P.M. In the F.I.R., it has been mentioned that three accused persons, namely, Bittu, Pramod and Tripal alias Tripathi have taken the deceased from his home and thereafter, he was murdered, to which Harbir and Kaluram, who are the eye witnesses, have seen the incident. It was only on the basis of informant Harbir, First Information Report was lodged after almost of 12 hours delay. We have noted that so far as PW-1 Ombiri is concerned, who has been declared hostile. She has completely denied the prosecution story as set up in the First Information Report. Relevant portion of her statement reads as under:
“okfn;k ih0MCyw0&1 vksechjh us viuh eq[; ijh{kk esa e`rd ftrsUnz dks ?kj ls cqykdj ys tkus okyksa dks ugha ns[kus dk dFku fd;k gS vkSj lkFk gh ;g Hkh dFku fd;k gS fd e`rd ftrsUnz tc ?kj ls x;k rc] okfn;k ih0MCyw0&1 vksechjh Nr ij lks jgh FkhA okfn;k ih0MCyw0&1 vksechjh ds lkeus e`rd ftrsUnz dks dksbZ ?kj ls cqykdj ugha ys x;k FkkA okfn;k ih0MCyw0&1 vksechjh dks ;g Hkh ugha irk fd e`rd ftrsUnz dh gR;k xksyh ekjdj fdlus dhA vfHk;kstu dh ;kfpdk ij okfn;k ih0MCyw0&1 vksechjh dks i{knzksgh lk{kh ?kksf"kr fd;k x;k gSA izfrijh{kk esa okfn;k ih0MCyw0&1 vksechjh us ?kVuk dh rgjhj izn'kZ d 1 lqHkk"k efyd iq= lalkj flag xkao dkcMksr ls fy[kokdj fn;k tkuk Lohdkj fd;k gSA fdUrq lkFk gh lkFk izfrijh{kk ls ;g dFku fd;k gS fd mls ugha irk fd e`rd ftrsUnz dk dRy djrs gq, vfHk;qDrx.k fcV~Vw] izeksn o f=iky mQZ f=ikBh] dkywjke us ns[kk ;k ughaA okfn;k ih0MCyw0&1 vksechjh us izfrijh{kk esa ;g Hkh dFku fd;k gS fd rgjhj izn'kZ d &1 esa vfHk;qDrx.k fcV~Vw] izeksn o f=iky mQZ f=ikBh }kjk e`rd ftrsUnz dks dksbZ ?kj ls cqykdj ys tkus okyh ckr ugha fy[kokbZ FkhA okfn;k ih0MCyw0&1 vksechjh us ;g Hkh dFku fd;k gSA vUos"k.k vf/kdkjh us mldk c;ku ugha fy;k FkkA dFku vUrxZr /kkjk 161 n0iz0la0 ls okfn;k ih0MCyw0&1 vksechjh us bUdkj fd;k gSA rgjhj ys[kd lqHkk"k efyd us okfn;k ih0MCyw0&1 vksechjh dks rgjhj i<dj ugha lqukbZ Fkh okfn;k dks i<uk ugha vkrk gSA bl izdkj rgjhj izn'kZ d 1 ds vuqlkj okfn;k ih0MCyw0&1 vksechjh us e`rd ftrsUnz dks vkf[kjh ckj thfor voLFkk esa vfHk;qDrx.k fcV~Vw] izeksn o f=iky mQZ f=ikBh }kjk e`rd ftrsUnz dks dksbZ ?kj ls cqykdj ys tkus ds rF; ls Li"V :i ls bUdkj fd;k gSA”
As for as PW-2 Harveer is concerned, it has not been disputed that he was aged about 80 years at the time of incident and it was not in dispute that he was a Gram Pradhan.
Regard may also be had to the statement of PW-2 Harbeer and finding as recorded by the court concerned, which reads as under:
“ih0MCyw0&2 gjohj flg dks ?kj ls V;wcoSy ij tkus ds lanHkZ esa fHkUu&fHkUu le; izfrijh{kk esa crk;k x;k gSA eq[; ijh{kk esa ih0MCyw0&2 gjohj flag us ?kj ls [ksr ds fy, pyus dk le; ugha crk;k FkkA c;ku vUrxZr /kkjk&161 n0iz0la0 esa Hkh ? kj lss ?kVuk okys fnu ?kj ls [ksr ij tkus dk le; vafdr ugha gSA ?kVuk jkf= 9-00 ls 9-15 cts dh dgh xbZ gSA ?kVuk dk le; tkuus ds fy, ih0MCyw0&2 gjohj flag ds ikl ?kM+h ugh FkhA ih0MCyw0&2 gjohj flag iz'uxr ?kVuk ds ckn okil vius xkao jkf= 10-00 cts ykSVkA eq[; ijh{kk ds vuqlkj ?kVuk dh tkudkjh e`rd ftrsUnz dh iRuh ih0MCyw0&1 vksechjh dks ns nh Fkh vkSj mlds ckn ih0MCyw0&2 gjohj flag vius ?kj pyk x;kA izfrijh{kk ds vuqlkj ih0MCyw0&2 gjohj flag us jkf= 10-00 cts e`rd ftrsUnz dh iRuh vksechjh dks gR;k ds ckjs esa crkus ds fy, mlds ?kj x;kA ml oDr ih0MCyw0&1 vksechjh ds ?kj ds fdokM+ [kqys FksA ih0MCyw0&2 gjohj flag us ckgj ls gh crk fn;k Fkk fd ftrsUnz ekj fn;k gSA nwljs xokg dkywjke us vksechjh dks dqN ugha crk;kA dkywjke okil vius ij vius ?ksj esa :d x;k FkkA izfrijh{kk esa ih0MCyw0&2 gjohj flag ds dFkukas ls ;g Li"V gS fd ih0MCyw0&2 gjohj flag us vksechjh ds edku ds [kqys njokts ij [kMs gksdj e`rd ftrsUnz dh gR;k dh lwpuk jkf= 10-00 cts nsdj okil vius ?kj pys x;sA dkywjke Hkh ?kVuk dk p{kqn'khZ lk{kh gksus ds ckotwn vius ?ksj esa gh :d x;kA e`rd ftrsUnz dh iRuh ih0MCyw0&1 vksechjh dks flQZ ih0MCyw0&2 gjohj flag ds }kjk gR;k dh lwpuk ekSf[kd rkSj ij nh xbZ Fkh blds ckotwn iwjh jkr gR;k dh lwpuk iqfyl dks nsus dk iz;kl rd ugha fd;kA ;gka rd fd e`rd ftrsUnz dh iRuh ih0MCyw0&1 vksechjh ds } kjk Hkh lwpuk iqfyl dks ugha nh xbZA ih0MCyw0&2 gjohj flag us xkao ds iz/kku gksrs gq, Hkh vijk/k dh lwpuk Fkkus ij nsus dk iz;kl ugha fd;kA ;gka rd dh ih0MCyw0&2 gjohj flag ,oa e`rd ftrsUnz dh iRuh ih0MCyw0&1 vksechjh ds }kjk Hkh gR;k dh tkudkjh xkao ds fdlh Hkh vU; O;fDr dks fdlh Hkh :i esa nsus dh dksf'k'k rd ugha dhA ih0MCyw0&1 vksechjh ds fy, ;g uSlfxZd Fkk fd e`rd ftrsUnz dh e`R;q dh lwpuk ikdj e`rd ftrsUnz ds ekrk&firk] HkkbZ&cgu o vU; fj'rsnkj dks lkFk ysdj e`rd ftrsUnz dh thou j{kk vFkok e`r 'kjhj dks izkIr djus ds fy, ekSds ij igaqpuk pkfg, FkkA e`rd ftrsUnz dh gR;k ds p{kqn'khZ lk{kh ih0MCyw0&2 gjohj flag] dkywjke ,oa ih0MCyw0&1 vksechjh dks e`rd ftrsUnz dh gR;k ds lEcU/k esa iwjh jkr [kkeks'k jguk ,dne vLoHkkfod gS vkSj ekeys esa yxHkx 12 ?k.Vs ds foyEc ls ntZ dh xbZ izkFkfedh esa vfHk;qDrx.k dh >wBh uketnxh dh lEHkkouk dks cy iznku djrk gSA ,slk dksbZ dkj.k ugha Fkk fd e`rd ftrsUnz dh gR;k dh lwpuk ikdj ih0MCyw0&1 vksechjh ¼iRuh½] ih0MCyw0&2 gjohj flag ¼xzke iz/kku½] vfoyEc Fkkus ij tkdj ekeys esa izkFkfedh ntZ djus dk iz;kl rd ugha fd;kA ;gka rd fd xkao okykas ls Hkh ijhw jkr fNik;s jgsA bl rF; ls ;g Hkh fu"d"kZ fudyrk gS fd ih0MCyw0&2 gjohj flag dks gks ldrk gS e`rd ftrsUnz dh gR;k ds ckjs esa iwjh jkr irk gh u pyk gks vkSj lqcg irk pyus ij fgrc) lk{kh gksus ds dkj.k ?kVuk dk p{kqn'khZ lk{kh Lo;a o dkywjke dks izk;ksftr fd;k gSA ih0MCyw0&2 gjohj flag us viuh izfrijh{kk esa ;g Lohdkj fd;k gS fd iqfyl fnukad 23&10&2006 ds fnu ds 10-00 cts xkao vkbZ FkhA ih0MCyw0&2 gjohj flag vius ?kj ij ekStwn FkkA iqfyl lh/ks ih0MCyw0&2 gjohj flag ds ?kj ij gh vkbZ FkhA ih0MCyw0&2 gjohj flag us ;g Lohdkj fd;k gS fd og iz/kku gSA blfy, iqfyl muds ?kj ij vkrh gSA gR;k tSls vijk/k ds p{kqn'khZ lk{kh gksus ds ckotwn rFkk xkao dk l'kDr O;fDr gksus ds ckotwn ih0MCyw0&2 gjohj flag us e`rd ftrsUnz dh gR;k dh lwpuk fdlh Hkh xzkeoklh vFkok Fkkus ij nsus ds ctk; okil vius ?kj vkuk ih0MCyw0&2 gjohj flag dk ?kVuk p{kqn'khZ lk{kh gksus esa lansg mRiUu djrs gSA ih0MCyw0&2 gjohj flag dh ekSf[kd xokgh ds vk/kkj ij vfHk;qDr izeksn ds nks"kfl) ds fy, fdlh lEiqf"Vtud lk{; dh vko';drk gSA ih0MCyw0&2 gjohj flag ds vuqlkj e`rd dks uketn rhukas vfHk;qDrx.kkas }kjk vius& vius gkFkksa esa fy, voS/k vk;q/k ls rhu xksfy;ka ekjh xbZ FkhA fdUrq e`rd ftrsUnz ds 'kjhj ij flQZ nks xksfy;ksa ds izgkj iksLVekVZe esa ik;s x;s gSSA bl izdkj ih0MCyw0&2 gjohj flag ds ekSf[kd lk{; dks fpfdRlh; lk{; iksLVekVZe ls leFkZu izkIr ugha gksrk gSA uketn vfHk;qDrx.kkas ds lEcU/k esa foopus k ds vk/kkj ij gh 'ks"k vfHk;qDrx.k fcV~Vw] o f=iky mQZ f=ikBh dh uketnxh >wBh ikbZ xbZ gSA rgjhj izn'kZ d&1 ds fy[ks tkus dk LFkku nf'kZr ugha gSA rgjhj ys[kd lqHkk"k efyd dks U;k;ky; esa iszf"kr ugha djk;k x;kA eqdnek dk;eh dh jiV izn'kZ d&3 esa rgjhj ys[kd lqHkk"k efyd Fkkus ij rgjhj izn'kZ d&1 fn;s tkrs le; ekStwn ugha FkkA okfn;k ih0MCyw0&1 vksechjh us vfHk;kstu dFkkud dk leFkZu ugha fd;k gSA ”
Thus, in view of the aforesaid, the sessions court has concluded herein as under:-
“vr% mDr rF;kas ,oa ifjfLFkfr;kas esa ih0MCyw0&1 Jherh vksechjh] ih0MCyw0&2 gjohj dh ekSf[kd rF;ksa dh xokgh ls ekeys esa vfHk;qDr izeksn ds fo:) vkjksi vUrxZr /kkjk 302 Hkk0na0la0 ;qfDr&;qDr lansg ls ijs lkfcr ugha gksrk gSA vfHk;kstu vfHk;qDr izeksn ds fo:) vkjksi vUrxZr /kkjk 302 Hkk0na0la0 ;qqfDr&;qDr lansg ls ijs lkfcr ugha dj ldk gSA rn~uqlkj vfHk;qDr izeksn ij yxk;s x;s vkjksi vUrxZr /kkjk 302 Hkk0na0la0 ls vfHk;qDr izeksn nks"k eqDr fd;s tkus ;ksX; gSA”
As regards the exercise of the powers of the appellate court, the Supreme Court in Sanmwat Singh vs. State of Rajasthan reported in 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 council 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."
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 has observed as under:
“The Supreme Court started by citing Lord Russell in Sheo Swarup highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said,.....“the High Court should and will always give proper weight and consideration to such matters as:
(1) The views of the trial Judge as to the credibility of the witnesses;
(2) The presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial;
(3) The right of the accused to the benefit of any doubt; and
(4) The slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.” The opinion of the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, “……….the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.”
12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G.
Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. Suffice it to say that this 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.
Reference may also be made to the case of Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal No. 512 of 2014, wherein the Apex Court has observed as under:
“8. The High Court in an appeal under Section 378 of Cr.PC is entitled to reappraise the evidence and conclusions drawn by the trial court, but the same is permissible only if the judgment of the trial court is perverse, as held by this Court in Gamini Bala Koteswara Rao and Others v. State of Andhra Pradesh through Secretary[1]. To quote: “14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word “perverse” in terms as understood in law has been defined to mean “against the weight of evidence”. We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so.” (Emphasis supplied)
9. It is also not the case of the prosecution that the judgment of the trial court is based on no material or that it suffered from any legal infirmity in the sense that there was non-consideration or misappreciation of the evidence on record. Only in such circumstances, reversal of the acquittal by the High Court would be justified. In K. Prakashan v. P.K. Surenderan [2], it has also been affirmed by this Court that the appellate court should not reverse the acquittal merely because another view is possible on the evidence. In T. Subramanian v. State of Tamil Nadu [3], it has further been held by this Court that if two views are reasonably possible on the very same evidence, it cannot be said that the prosecution has proved the case beyond reasonable doubt.
10. In Bhim Singh v. State of Haryana [4], it has been clarified that interference by the appellate court against an order of acquittal would be justified only if the view taken by the trial court is one which no reasonable person would in the given circumstances, take.
11. In Kallu alias Masih and others v. State of Madhya Pradesh [5], it has been held by this Court that if the view taken by the trial court is a plausible view, the High Court will not be justified in reversing it merely because a different view is possible. To quote: “8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court.” (Emphasis supplied)
12. In Ramesh Babulal Doshi v. State of Gujarat [6], this Court has taken the view that while considering the appeal against acquittal, the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable and if the court answers the above question in negative, the acquittal cannot be disturbed.
14. The exercise of power under Section 378 of Cr.PC by the court is to prevent failure of justice or miscarriage of justice. There is miscarriage of justice if an innocent person is convicted; but there is failure of justice if the guilty is let scot-free. As cautioned by this Court in State of Punjab v. Karnail Singh[8]:
“6. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence even where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. …”
Last but not the least, reference may also be made to the recent judgement of Supreme Court in the case of Ashok Rai Vs. State of U.P. & Ors. Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005;
“ 8. Several Judgments of this court have been cited on the principles which should guide the court while dealing with an appeal against order of acquittal. The law is so well settled that it is not necessary to refer to those judgments. Suffice it to say that the appellate court has to be very cautious while reversing an order of acquittal because order of acquittal strengthens the presumption of innocence of the accused. If the view taken by the trial court is a reasonably possible view it should not be disturbed, because the appellate court feels that some other view is also possible. A perverse order of acquittal replete with gross errors of facts and law will have to be set aside to prevent miscarriage of justice, because just as the court has to give due weight to the presumption of innocence and see that innocent person is not sentenced, it is equally the duty of the court to see that the guilty do not escape punishment. Unless the appellate court finds the order of acquittal to be clearly unreasonable and is convinced that there are substantial and compelling reasons to interfere with it, it should not interfere with it.”
Reference may also be made to a judgment rendered in the case Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990 wherein the Hon'ble Apex Court has observed as under:
“only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.”
Reference may also be made to another judgment of the Hon'ble Apex Court rendered in the case of Murugesan v. State through Inspector of Police reported in 2012 AIR SCW 5627 wherein the Hon'ble Apex Court has observed as under:
“the reversal of the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. The use of the expression “possible view” is conscious and not without good reasons. The said expression is in contradistinction to expressions such as “erroneous view” or “wrong view”. A possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.”
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 13 years have already elapsed as the incident is of the year 2006.
After perusal of the impugned judgment shows that the trial court after a thorough marshalling of the facts of the case and a microscopic scrutiny of the evidence on record has held that the prosecution has failed to prove the charge against the accused respondents and the findings recorded by the learned trial judge in the impugned judgment are based upon evidence and supported by cogent reasons.
No interference with the impugned judgment and order of acquittal is warranted. Accordingly leave to appeal is refused and application is rejected. Consequently, the appeal also stands dismissed.
Copy of the order be certified to the court concerned for consequential follow up action.
Order Date :- 28.11.2019 Manoj