Court No. - 58
Case :- GOVERNMENT APPEAL No. - 2524 of 1997 Appellant :- State Of U.P.
Respondent :- Vivek Kumar @ Tinku Counsel for Appellant :- Vijay Shanker Mishra
Hon'ble Ravindra Nath Kakkar,J.
Heard learned A.G.A. for State-appellant and perused the material placed on record.
The instant appeal has been filed alongwith application seeking leave to appeal against impugned judgement and order dated 27.03.1997 passed by A.C.J.M.-IVth, Aligarh in Case Case No. 200 of 1996 (State Vs. Vivek) whereby he has acquitted the opposite party of charges under Section 354 I.P.C.
Prosecution story in brief is that the daughter of complainant namely Sneh kumari alongwith his brother Mohan Singh has gone to doctor to take medicine for her nephew. After taking medicine from doctor when she was returning alongwith his brother in the way at Sikandarpur accused- respondent met them. On asking the accused-respondent, brother of the victim got her seated on his motorcycle. Thereafter, accused-respondent with intention to rape the victim brought her in the field of sugarcane (Ikh). When daughter of the complainant raised an alarm, on hearing the noise Ombir Singh and Raghuvir Singh, who were working in their filed at that time, came to the place of incident. Brother of the victim also reached there. Thereafter, the accused-respondent fled away from the spot.
On the basis of aforesaid information given by the complainant F.I.R. of the aforesaid incident was registered in the police station concerned against the accused-respondent and Investigation Officer after proper investigation has submitted the charge sheet under Section 354 I.P.C. against the accused-respondent. Accused-respondent has denied the prosecution allegation and claimed trial.
Witnesses PW1 Ranbir Singh, PW2 Dharambir Singh, PW3 Kumari Sneh, PW4 Ombir Singh, PW5 Ct. Umashankar and PW6 S.I. R.K. Sharma have examined themselves before the court below to prove the aforesaid case.
Perusal of the impugned judgement and order reveals that, learned court below recorded the acquittal against the accused on the ground that there are material contradictions in the statements of the fact witnesses including prosecutrix. There are material contradictions with regard to the place of incident. PW4 Ombir Singh is not an independent witness and he is an interested witness. Moreso, the charge sheet was submitted by the I.O. within 24 hours of the incident without fair investigation which also creates doubt on the prosecution story.
It is relevant to mention that in Gamini Bala Koteswara Rao Vs. State of Andhra Pradesh, AIR 2010 SC Page 589 the Hon'ble Apex Court has held that:-
"Only in a case when the judgement of the trial court is stated to be perverse i.e. against the weight of evidence, only then conclusion drawn by the trial Court could be re-appraised."
In K. Prakashan Vs. P. K. Surenderan (2008) 1 SCC, 258, Hon'ble Apex Court held that:-
" When two views are possible appellate Court should not reverse the judgement of acquittal merely because the other view was possible when judgement of trial court was neither perverse nor suffered from any illegality or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified."
In T. Subramanyan Vs. Tamilnadu (2006) 1 SCC, page 401, Hon'ble Apex Court laiddown that:-
"Where two views are reasonably possible from the very same evidence prosecution cannot be said to have proved its case beyond reasonable doubt."
In light of above legal propositions and on a careful perusal of the impugned judgement and record, it cannot be said that the view taken by the trial judge is perverse or unreasonable. Simply because another view might have been taken of the evidence, does not provide any ground for interfering with the order of acquittal, unless the view taken by the trial judge is not a possible view. The Court below has given cogent, convincing and satisfactory reasons while passing the impugned judgement and order. The impugned judgement and order passed by the Court below does not suffer from any infirmity. On the evidence, available on record, it cannot be said that the view taken by the trial judge was not a reasonably possible view.
In this view of the matter, there is no merit in the application for leave to appeal which is hereby rejected and consequently the present appeal is, accordingly, dismissed.
Order Date :- 27.3.2018 AKT