Court No. - 76
Case :- APPLICATION U/S 378 No. - 41 of 2019 Applicant :- Suraj Prasad Rai Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Divya Ojha Counsel for Opposite Party :- G.A.,Shiv Shankar Prasad Gupta,Vijay Kumar Gupta
Hon'ble Subhash Chandra Sharma,J.
1. Heard Ms. Divya Ojha, learned counsel for the applicant as well as Sri Vijay Kumar Gupta for respondent and perused the record.
2. The complainant has filed this application to grant leave to appeal against the order dated 28.01.2019 passed by the learned C.J.M., Jhansi acquitting the accused in Complaint Case No.4252 of 2014 (3168 of 2009), under Sections 452, 323, 504, 506, 427 I.P.C., Police Station Prem Nagar, District Jhansi.
3. Facts in brief are that complainant Suraj Prasad Raj filed a complaint before the court against Harikant Sharma and Abhishek Sharma stating that he works in railway workshop Jhansi and Harikant Sharma are also working there as Motor Mechanic Grade-I. Harikant Sharma is mischievous person. He abused and threatened on 02.04.2009 at about 6:00 P.M. when complainant was sitting in the hall of his house. Accused Harikant Sharma and his son Abhishek Sharma alongwith some other unknown persons came into the house of the complainant and while abusing Harikant Sharma assaulted him with danda and others assaulted with kicks and fists. Brother of complainant Harish Chandra Rai came there for rescue but they pushed him also. Kashiram and Imran Khan had also witnessed the incident. Accused persons caused damage to plastic chairs which were in the house of complainant and also threatened to kill him. In the course of assault his spectacle and wrist watch was also got broken. F.I.R. in this regard was also lodged at the police station. Application was also sent to S.S.P. but no action was taken as a result complaint was filed. Statement of complainant was recorded under Section 200 Cr.P.C. and statement of Kashiram and Harish Chandra Rai was recorded under Section 202 Cr.P.C. thereafter accused persons were summoned for trial under Section 452, 323, 504, 506, 427 I.P.C. Statement of complainant was also recorded under Section 244 Cr.P.C. and charge was framed against the accused persons. Complainant adduced himself as PW-1, Harishchandra Rai as PW-2 as witnesses of fact, Naushad as PW-3 (Assistant Record Keeper) and Atul Gupta as PW-4 (medical expert) and all were examined under Section 246 Cr.P.C. After conclusion of trial accused persons were acquitted by the trial court.
4. Learned trial court considered the evidence of complainant as PW-1 and his real brother Harishchandra as PW-2. It was also found that there was litigation between the complainant and accused persons on account of which relations between both the parties were strained. Learned trial court found that there was material contradiction in the statements of complainant and his brother Harishchandra Rai. Medical report did not support the version of complainant in which it was stated that injury was caused on his face but no injury was shown in the report prepared by the doctor conducting medical examination. Chairs and wrist watch were said to be broken during the course of assault but no evidence in this regard was found on record. Kashiram and Imran Khan were said to be the witnesses of the incident but they were not produced by the complainant as witness during the trial and as a result learned trial court did not get any independent evidence in support of the version made by the complainant, so acquitted the accused persons from the charges.
5. 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 acquital. 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."
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.
6. 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.
7. 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.
8. Thus, in view of the aforesaid consistent legal position as elaborated above and also in view of the fact that learned counsel for the complainant has failed to point out any illegality or perversity with findings so recorded in the impugned order, no case for interference has been made out. No intereference with the impugned judgment and order of acquittal is warranted.
9. Accordingly, the application seeking leave to appeal is rejected. Consequently, the appeal is also dismissed.
Order Date :- 27.7.2021 Ashok Gupta