Court No. - 51
Case :- GOVERNMENT APPEAL No. - 5994 of 2011 Appellant :- State Of U.P.
Respondent :- Pramod Counsel for Appellant :- Govt. Advocate
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri Rajesh Mishra, learned AGA appearing for the State on the application seeking leave to appeal against the judgment and order dated 30.06.2011 passed by Fourth Additional District & Sessions Judge, Gautam Budh Nagar by means of which sole accused/respondent has been acquitted of the offence under Sections 307, 324, 504, 506/34 IPC.
We have perused the impugned judgment and order and the findings as recorded therein by the court concerned while returning the verdict of acquittal. The court concerned while recording the evidence of P.W. 3 Dr. Kushal Pal Singh has clearly observed herein as under.
**bl izdkj Lo;a MkWDVj ds lk{; ds vuqlkj pqVSy ds 'kjhj ij ik;h x;h pksVs lqijfQfl;y Fkh vkSj vkRedkfjr ¼lsYQ bfUQfyDVsM½ gks ldrh gSA MkDVj us ;g Hkh ekuk gS fd pksV la[;k&1 gkWdh ds izgkj ls ugha vk ldrh D;kasfd blls cM+h lkbt dh pksV vk;sxhA ;g pksV jkSMh ij fxjus ls vk;sxhA MkDVj ds lk{; ds vuqlkj ;fn dksbZ O;fDr lkbfdy fy;s gq;s tk jgk gS vkSj lkbfdy mlds Åij fxj tk;s rks nkfguh rjQ dh pksVs vk ldrh gSA ;fn lMd ij 'kh'ks vkfn ds VqdMs iM+s gks rks lhu dh pksV la[;k &2 ldrh gSA bl izdkj Lo;a ih0 MCyw0&3 ds lk{;kas ds vuqlkj Hkh pqVSy nsoh flg ds 'kjhj ij MkWDVj }kjk ik;h x;h pksV lansgkLin gS vkSj gkWdh ds izgkj ls ftu pksVkas dk mYy[;s fd;k x;k gSA ,ls h pkVs sa MkWDVj ds vuqlkj ugha vk ldrh gS tSls fd ih0 MCy0w&1 ds 'kjhj ij dfFkr :i ls ik;h x;h gSA** It may also be appreciated that even if the prosecution story is believed to be true, as per own statement of doctor himself, the injuries on the body of the victim are simple in nature. The court concerned has further observed that Vikal, who claims to be the eye witness to the alleged incident, had reached at the place of occurrence after the incident took place and apparently he is not an eye witness to the actual crime.
With regard to the allegation as has been made against Girraj Sharma, the main accused, it has been mentioned that Girraj Sharma was not present at the place of occurrence and his presence was shown by the defence in the meeting of Nagar Panchayat as he was a member of the said Panchayat and in this regard relevant record was also produced before the court concerned and thus, it has been recorded that in absence of the main accused at the place of occurrence, the entire prosecution story becomes doubtful. It has also been recorded that with regard to an incident of 14.09.2007 said to have taken place at 9:30 A.M., an FIR was lodged after a period of about 5 days to the alleged incident i.e. on 19.09.2007 even though the distance of police station from the place of occurrence is about 2 kms only and no explanation has been given with regard to the same. The court concerned after going through the entire evidence on record has reached to the conclusion which is extract herein below.
**bl ekeys eas bl rF; dks /;ku eas j[krs gq;s fd vfHk;qDr jkds'k o izeksn rFkk pqVSy nsoh flg ds chp iwoZ jaft'k ,d Lohd`r rF; gS] tc ;g lkfcr gksrk gS fd izFke lwpuk fjiksVZ dks dfFkr ?kVuk ds ikap fnu foyEc ls ntZ djk;s tkus dk dksbZ ;qfDr;qDr Li"Vhdj.k vfHk;kstu }kjk ugh fn;k x;k gS] ;g lkfcr gqvk gS fd jcwiqjk izkFkfed LokLF; dssUnz eas ?
kVuk okys fnu vkSj le; ij fpfdRld MkWDVj vjfoUn dqekj ekStwn FksA blds ckotwn ;g dgrs gq, fd jcwiqjk ds fpfdRld ml fnu vodk'k ij FksA ddksM+ izkFkfed LokLF; dsUnz ls pqVSy dk fpfdRlh; ijh{k.k djk;k tkuk Hkh ,d vR;Ur lansgkLin ifjfLFkfr gS] Lo;a pqVSy ds 'kjhj ij fpfdRlh; ijh{k.k vk[;k eas tks dfFkr pksVas fn[kk;h x;h gS] mudks fpfdRlh; ijh{k.k djus okys MkWDVj us gh lansg dh utjks ls ns[krs gq;s lk{; fn;k gS vkSj bl ekeys eas u rks reapk ls okj fd;s tkus dk dksbZ izek.k i=koyh ij gS vkSj u gh vfHk;qDr fxjkZt 'kekZ ds ?kVuk ds le; ? kVukLFky ij ekStwn gksus dk lk{; gS cfYd cpko i{k }kjk izLrqr fd;s x;s nLrkostks ,oa ekSf[kd lk{;kas ls ;g lkfcr gqvk gS fd ?kVuk ds le; vfHk;qDr fxjkZt ?kVukLFky ij gks gh ugha ldrk D;ksafd og ml le; jcwiqjk uxj iapk;r eas py jgh lHkklnksa dh ehfVax eas 'kkfey FkkA ,slh fLFkfr eas ;g Li"V gksrk gS fd bl ekeys es ijr&nj&ijr dMh& nj& dMh gj lk{; dks feF;k :i ls x<+us dk vfHk;kstu lk{;ksa dk iz;kl Li"V :i ls lkeus vk;k gSA ,slh fLFkfr eas vfHk;kstu dFkkud fdlh Hkh :i es u rks fo'oluh; gS u gh lkfcr gksrk gSA** Learned A.G.A. has also 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.
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."
Reference may be made to the judgment of the Apex Court rendered 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 judgments 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.
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 and 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.
A certified copy of this order be placed on record in the Government Appeal No. 5995 of 2011.
Let a copy of this order be certified to the court concerned for necessary compliance.
Order Date :- 25.7.2018 Vikram