Court No. - 41
Case :- GOVERNMENT APPEAL No. - 314 of 2018
Appellant :- State Of U.P. Respondent :- Santosh Bhardwaj Counsel for Appellant :- G.A.
Hon'ble Rajesh Dayal Khare,J. Hon'ble Mrs. Vijay Lakshmi,J.
Heard learned A.G.A. for the State appellant and perused the material on record.
This Government appeal along with an application seeking leave to appeal has been filed by the State appellant with the prayer that leave to appeal may be granted against the judgement and order of acquittal dated 22.09.2017 passed by learned Additional Sessions Judge/Fast Track Court No.1, District Aligarh in Sessions Trial No.324 of 2014 State Vs. Santosh Bhardwaj, arising out of Case Crime No.1350 of 2013 under Sections 376, 506 I.P.C., Police Station Quarsi, District Aligarh, whereby the accused respondent has been acquitted for the offence punishable under the sections referred to above.
Learned A.G.A. contends that as per the prosecution version, a written complaint was filed by one Kishan Kumar on 22.10.2013 at Police Station Quarsi, District Aligarh, wherein it has been averred that on 21.10.2015, the wife of his younger brother namely, Sapna aged about 20 years had gone to take bath in river Ganga and when she was returning back on a tempo, the tempo became out of order and stopped. When she was waiting for another conveyance, in the meantime, the accused-respondent came on a motor cycle and asked her to sit on it. Thereafter, the accused-respondent took the victim to a lonely place and committed rape with her and fled away. However the wallet of the accused fell down at the spot which was recovered and which is sufficient for proving the complicity of the accused-respondent in commission of offence. Learned A.G.A. contends that not only the aforesaid evidence but the medical evidence has also been wrongly disbelieved by the trial Court. Therefore order impugned cannot be sustained.
We have carefully perused the lower Court's record in the light of the findings recorded by the trial Court.
On a careful perusal of the impugned Judgement in the wake of the evidence available on lower Court's record, it is clearly evident that the victim in the late evening i.e. at 7:00 P.M. had herself sat on motor cycle of the accused-respondent and when she was being taken away to a lonely place, she did not raise any alarm. Perusal of the record also reveals that she has admitted the fact that she did not sustain any injury. The contents of wallet said to be recovered from the place of occurrence viz some cash, the photograph and visiting card are such which can be easily obtained by any person. It is note worthy that the victim does not know even the names of her family members. The Court below has taken note of the fact, that the accused-respondent is a builder. One Gyan Prakash used to work with him and due to dispute of payment of salary various cases were filed between them, on account of which, said Gyan Prakash, in collusion with the first informant falsely implicated the accused-respondent by using his old visiting card and photograph. The learned trial Court under these circumstances did not find the prosecution case proved against the accused-respondents beyond reasonable doubt and acquitted him from the charges levelled against him.
We do not find any factual or legal error in the assessment of evidence by the court below while acquitting the accused respondents. Moreover, the view taken by the court below is a possible view and as per settled legal position, the golden thread which runs through the administration of criminal justice while hearing the appeal against the acquittal is that even if two views are possible on the evidence, one pointing towards the guilt of the accused and other towards their innocence, the view which is favourable to the accused should be accepted and the finding of acquittal recorded by the trial court should not be disturbed by the appellate court. The reason is that while passing the order of acquittal, the presumption of innocence in favour of the accused is re-inforced In Ramesh Babulal Doshi Vs. State of Gujrat; 1996 (9) SCC 225, the Hon'ble Supreme Court has held as under : -
"...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 should be presumed to be innocence unless he is proved to be guilty by a competent court and secondly the accused having secured an acquittal, the presumption of innocence is, re-enforced and strengthened by the trial court "
In Mahadeo Laxman Sarane vs. State of Maharashtra, (2007) 12 SCC 705, the Apex Couirt has observed that : -
"It is true, that the settled legal position is that in an appeal against acquittal the High Court ought not to interfere with the order of acquittal if on the basis of the same evidence two views are reasonably possible-one in favour of the accused and the other against him. In such a case if the trial court takes a view in favour of the accused, the High Court ought not to interfere with the order of acquittal."
In C. Antony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1, the Apex Court has laid down the law as follows:-
Unless the findings of trial court are perverse or contrary to the material on record, High Court cannot, in appeal, substitute its finding merely because another contrary opinion was possible on the basis of the material on record."
In Sirajuddin Vs. State of Karnataka, (1980) 4 SCC 375, the Apex Court has reiterated the same principle in the following words:-
"Where trial Court's order of acquittal is based on a reasonably possible view, High court should not, as a rule of prudence, disturb the acquittal."
Considering the facts and circumstances in wake of the above cited legal position, we do not consider it to be a fit case for grant of leave to appeal to the applicant.
The application seeking leave to appeal is rejected and consequently the appeal is dismissed.
The lower Court record be sent back to the concerned Court below.
Order Date :- 27.4.2018 S.Ali