Court No. - 51
Case :- GOVERNMENT APPEAL No. - 2174 of 2013 Appellant :- State Of U.P.
Respondent :- Surendra @ Kallu & 4 Others Counsel for Appellant :- Govt. Advocate
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri Rahul Srivastava, learned AGA appearing for State on the application seeking leave to appeal against the judgment and order dated 28.1.2013 passed by Special Judge, DAA, Etah in ST No. 37 of 2004 (State of UP Vs. Surendra @ Kallu and others) by means of which the accused-respondents have been acquitted for offence under sections 394, 302/34, 201 and 412 IPC.
Heard learned AGA at length and we have also perused the findings and record of the court concerned. The counsel for the respondents states that the court concerned has given elaborate and cogent reasons for acquitting the accused-respondents. Some of the relevant observations of the court are extracted hereinbelow:
blh dze esa vfHk;kstu lk{; ij fopkj fd;k tk; rks ;g Li"V gks jgk gS fd xokg ih0 MCyw0&2 fulkj vyh tks dfFkr e`rd bdjkj dk HkkbZ gS us viuh eq[; ijh{kk esa loZ izFke bl vk'k; dk lk{; fn;k gS fd vfHk;qDrx.k lqjsUnz mQZ dYyw vt; mQZ Hkwjs vkSj Hkwjs o eukst mlds HkkbZ bdjkj dks cqyk dj ys x;s FksA egRoiw.kZ rF; ;g gS fd mDr xokg us Fkkuk tSFkjk ij bdjkj ds xk;c gksus dh lwpuk nsus dh ckr dgh gS tcfd xokg ih0 Mcyw0&5 dsMh /kwfeyk us fulkj vyh }kjk bdjkj ds xk;c gksus dh dksbZ lwpuk Fkkuk tSFkjk ij ugha fn;s tkus dh ckr dgh gSA egRoiw.kZ rF; ;g Hkh gS fd fulkj vyh vkSj bdjkj dk ?kj Fkkuk ifV;kyh {ks= ds vUrZxr iM+rk gS ;fn dfFkr :i ls vfHk;qDr bdjkj dks Fkkuk ifV;kyh {ks= ls cqyk dj ys x;s vkSj bdjkj ?kj ugha ykSVk rks Fkkuk ifV;kyh {ks= esa gh bdjkj ds xk;c gksus dh lwpuk LokHkkfod :i ls nh tkuh pkfg, Fkh fdUrq fulkj vyh }kjk ,slk ugha fd;k tkuk mldh lk{; dks vLokHkkfod cukrk gS vkSj ;g Hkh fl) gks jgk gS fd dsl es cy nsus ds fy;s vfHk;kstu us loZizFke eq[; ijh{kk ds nkSjku ;g dFku djk;k fd vfHk;qDrx.k bdjkj dks ?kksMk cqXxh ds lkFk cqyk dj ys x;s FksA egRoiw.kZ fcUnq ;g Hkh gS fd xokg ih0 MCyw0&2 fulkj vyh us ftjg ds nkSjku ;g Hkh crk;k fd Fkkuk esa njksxk th us mls cqykdj ohjiky o lqjasUnz mQZ dYyw dh igpku djk nh Fkh vkSj ml le; bdjkj dh QksVks o yk'k ugha fn[kk;h FkhA lcls egRoiw.kZ rF; ;g gS fd xokg ih0 Mcyw0&6 Mk0 ds0 ds0 xqIrk us ;g dgk fd ftl yk'k dk 'ko foPNsnu mUgksus fd;k gS og yk'k gjfxt eqlyeku dh ugh cfYd fgUnw dh FkhA xokg us bl vk'k; dk Hkh lk{; fn;k fd e`rd ds gkFk es dykok cU/k FkkA bl izdkj dykok gkFk es ca/kk gksus ij o eqlfye gksus dk y{k.k ;kuh [kruk dk vHkko bl rF; dks fl) dj jgk gS fd xokg ih0 Mcyw&6 Mk0 ds0 ds0 xqIrk dh lk{; fo'oluh; gSA dfFkr e`rd bdjkj dh yk'k dks dgka nQu fd;k ;g ckr iqfylokyksa us xokg ih0 MCyw0&2 fulkj vyh dks ugha crk;k rks ;g ugha ekuk tk ldrk gS fd ek= QksVks o diMk+s ds vk/kkj ij fulkj vyh us dfFkr :i ls feyh yk'k vius HkkbZ bdjkj dk gksuk lgh crk;kA This court has rightly concluded as under :
dqy feyk dj fLFkfr ;g gS fd ,d rjQ rks bdjkj dh gR;k ywVikV ds fy;s fd;k tkuk fl) ugh gS ] nwljh vksj bdjkj o vfHk;qDrx.k dk vkf[kjh ckj lkFk ns[ks tkus dk rF; Hkh fdlh fo'oluh; lk{; ls fl) ugh gS vkSj bdjkj dh ?kksMk cqXxh Hkh vfHk;qDr lqjsUnz o ohjiky ds ikl ls cjken gksus dk rF; ;qDr ;qfDr lUnsg ls ijs fl) ugh gS rks bu lc ifjfLFkfr;ksa esa vfHk;kstu lk{; fdlh Hkh izdkj ls fl) ugha ekuk tk ldrk gSA /;ku ;g j[kuk gksxk fd iz'uxr ekeyk Mk;jsDV lk{; ij vk/kkfjr ugha gS cfYd ifjfLFkfr tU; lk{; ij vk/kkfjr gS vkSj ifjfLFkfr tU; lk{; ds ekeys esa ifjfLFkfr;ksa dh bl izdkj dh vVwV J`a[kyk fl) gksuh pkfg, vkSj dsoy vkSj dsoy vfHk;qDrx.k ds gh nks"k fl) dj jgh gksA ,slh fof/k ds ifjisz{; es iz'uxr ekeys ds vfHk;kstu lk{; ij fopkj fd;k tk; rks ;gh fu"d"kZ fudyrk gS fd vfHk;kstu dFkkud fl) ugh gks ik;k gS vkSj vfHk;qDrx.k lqjsUnz mQZ dYyw] vt; mQZ Hkwjs] Hkwjs] eukst mQZ euohj] ohjiky dks lUnsg dk ykHk nsrs gq, vUrZxr /kkjk 394]302@34]201]412 Hkk0 n0 l0 ds rgr n.Muh; vijk/k ls nks"k eqDr fd;k tkuk U;k;ksfpr gksxkA It has been clearly stated that the body is of Hindu and not Muslim and thus entire prosecution story collapsed.
No illegality or perversity has been attributed to the view taken by the court concerned while acquitting the accused persons.
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 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."
In view of 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.
Reference, may also be made to the judgment 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.
In view of the aforesaid facts and circumstances of the case, it cannot be said that the view taken by the Court below is not possible and plausible thus the judgment of the court below cannot be interfered with by this Court only on account of the fact that another view is possible.
Learned A.G.A. has 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.
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. 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.
Let a copy of this order be certified to the court concerned for necessary compliance.
Order Date :- 30.7.2018 SKS