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2015 DIGILAW 1773 (ALL)

State of U. P. v. Chhotey Lal

2015-07-06

VIPIN SINHA

body2015
JUDGMENT Vipin Sinha, J. Heard learned Additional Government Advocate, learned counsel for the respondents and perused the record. 2. With the consent of learned counsel for the parties, the present government appeal is being heard finally. 3. The present government appeal arises out of the judgment and order dated 05.12.1986 passed by Special Sessions Judge, Jhansi in criminal special case no. 95 of 1985 whereby respondents, namely, Chhotey Lal and Ghanshyam have been acquitted for the offence under Section 392 IPC and Section 25 of the Arms Act. 4. Learned A.G.A. contends that the order of acquittal has been passed merely on the ground that there are no injuries on the neck of the victim of chain snatching and thus, the trial court has committed an error in acquitting the accused-respondents, though, one of the co-accused, namely, Chhotey Lal was arrested on the spot and a recovery of knife was also made from his possession. 5. The court below has specifically stated on the point of injury on the neck of the girl that "mYys[kuh; gS fd dqekjh uQhlk dh yxHkx lok rksys dh lksus dh tathj vfHk;qDr ?ku';ke us mlds xys ls [khapdj Hkkxk ysfdu mlds xys ij u rks [kjksap vk;h vkSj u gh dksbZ fu'kku iM+k ;g ckr vk'p;Ztud gS fd lk/kkj.kr;k lok rksys dh lksus dh tathj dks xys ls tksj ls [khpk tk; rks xys ij fu'kku iM+uk LokHkkfod gS ysfdu ,slk ugh gqvk gS ;g rF; Hkh ;g bafxr djrk gS fd ftl 6. The court below has further recorded that all the five eye witnesses only Nafisa and Babulal were present and all the three remaining witnesses were not produced by the prosecution nor any explanation was given for not producing the said three witnesses. It is also disputed that none of the witnesses, namely, Babulal, Kashiram, Abdul Gaffar and Imtyaz who had allegedly reached the place of incident are of the same locality and thus the presence of the said witnesses itself is doubtful. 7. It is also disputed that none of the witnesses, namely, Babulal, Kashiram, Abdul Gaffar and Imtyaz who had allegedly reached the place of incident are of the same locality and thus the presence of the said witnesses itself is doubtful. 7. The court below has also disbelieved the recovery of knife and has recorded a findings to the following effect that: - "NksVsyky ds gkFk esa [kqyk gqvk pkdw Fkk] ckcwyky ,oa xQQkj us idM+us esa lQyrk izkIr dj fy;k ysfdu NksVsyky us viuh fxjQrkjh ls cpus ds fy, pkdw dk dksbZ iz;ksx ugha fd;kA vxj okLro esa bl rjg dh dksbZ ?kVuk gq;h gksrh rks fuf'fpr : i ls NksVsyky idM+ ls cpus ds fy, pkdw dk iz;ksx vo'; djrk ysfdu ,slk dqN ugha gqvk blls Hkh vfHk;kstu dgkuh ,oa lk{; lafnX/k izrhr gksrh gS vkSj iqu% mlh ckr dk ladsr feyrk gS fd ftl 8. A bare perusal of the record shows that the date of incident is 21.04.1985, a period of almost 25 years has already elapsed. The findings as recorded by the court below clearly shows that the entire prosecution story with regard to the happening of the incident is disbelieved. The Court below has recored a finding to the following effect that: - "blhfy, oknh us foospudrkZ dks lwpuk nsus okys dk uke ugha crk;kA blls yxrk gS fd okLro esa ,slh dksbZ ?kVuk ugha gq;h vkSj oknh us fdlh dkj.k iqfyl ls feydj ,d dgkuh rS;kj fd;k vkSj vfHk;qDrx.k dks bl okn esa vkfyIr fd;kA" 9. The court below has also disbelieved the witnesses who had appeared on the ground that information of the witnesses are of the same locality and they are outsiders, thus, the presence of the alleged witnesses at the spot itself is doubtful. 10. After going through the evidence of all the witnesses, the Court has given a specific findings of fact and has thereafter concluded that: - "bu lEiw.kZ ifjfLFkfr;ksa ds vk/kkj ij eSa bl fu"d"kZ ij igqWprk gWw fd vfHk;kstu dFku vR;Ur vLokHkkfod vlEHkkO; ,oa lafnX/k gS ftl 11. It is not being disputed that the stand taken by the trial court is duly supported by the evidence on record and it cannot be said that the view taken by the trial court is absolutely perverse or illegal. 12. It is not being disputed that the stand taken by the trial court is duly supported by the evidence on record and it cannot be said that the view taken by the trial court is absolutely perverse or illegal. 12. Learned A.G.A. has strongly pressed the appeal with the contention that merely because there is no injury on the neck of the victim, it cannot be said that no such incident had occurred and the presence of the witnesses is also quite possible. Moreover much emphasis has been placed on the fact that one of the co-accused was arrested on the spot with a knife. 13. However, be as it may, 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 the judgment of the court below cannot be interfered with by this Court only on account of the fact that another view is possible. 14. Learned A.G.A. has not been able to point out any illegality and 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. 15. 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 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. 11. As early as in 1952, this Court in Surajpal Singh 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." 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu, Madan Mohan Singh, Atley , Aher Raja Khima, Balbir Singh, M.G. Agarwal, Noor Khan, Khedu Mohton, Shivaji Sahabrao Bobade, Lekha Yadav, Khem Karan, Bishan Singh, Umedbhai Jadavbhai, K. Gopal Reddy, Tota Singh, Ram Kumar, Madan Lal, Sambasivan, Bhagwan Singh, Harijana Thirupala, C. Antony, K. Gopalakrishna, Sanjay Thakran and Chandrappa. 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. 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. 16. Reference may also be made to the case of Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal No. 512 of 2014, wherein the Apex Court has observed as under: "8. The High Court in an appeal under Section 378 of Cr.PC is entitled to reappraise the evidence and conclusions drawn by the trial court, but the same is permissible only if the judgment of the trial court is perverse, as held by this Court in Gamini Bala Koteswara Rao and Others v. State of Andhra Pradesh through Secretary. To quote: "14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so." (Emphasis supplied) 9. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so." (Emphasis supplied) 9. It is also not the case of the prosecution that the judgment of the trial court is based on no material or that it suffered from any legal infirmity in the sense that there was non-consideration or misappreciation of the evidence on record. Only in such circumstances, reversal of the acquittal by the High Court would be justified. In K. Prakashan v. P.K. Surenderan, it has also been affirmed by this Court that the appellate court should not reverse the acquittal merely because another view is possible on the evidence. In T. Subramanian v. State of Tamil Nadu , it has further been held by this Court that if two views are reasonably possible on the very same evidence, it cannot be said that the prosecution has proved the case beyond reasonable doubt. 10. In Bhim Singh v. State of Haryana , it has been clarified that interference by the appellate court against an order of acquittal would be justified only if the view taken by the trial court is one which no reasonable person would in the given circumstances, take. 11. In Kallu alias Masih and others v. State of Madhya Pradesh , it has been held by this Court that if the view taken by the trial court is a plausible view, the High Court will not be justified in reversing it merely because a different view is possible. To quote: "8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court." (Emphasis supplied) 12. In Ramesh Babulal Doshi v. State of Gujarat, this Court has taken the view that while considering the appeal against acquittal, the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable and if the court answers the above question in negative, the acquittal cannot be disturbed. 14. The exercise of power under Section 378 of Cr.PC by the court is to prevent failure of justice or miscarriage of justice. There is miscarriage of justice if an innocent person is convicted; but there is failure of justice if the guilty is let scot-free. As cautioned by this Court in State of Punjab v. Karnail Singh: "6. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence even where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. ..." 17. Last but not the least, reference may also be made to the recent judgement of Supreme Court in the case of Ashok Rai Vs. State of U.P. & Ors. Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005. " 8. Several Judgments of this court have been cited on the principles which should guide the court while dealing with an appeal against order of acquittal. The law is so well settled that it is not necessary to refer to those judgments. Suffice it to say that the appellate court has to be very cautious while reversing an order of acquittal because order of acquittal strengthens the presumption of innocence of the accused. If the view taken by the trial court is a reasonably possible view it should not be disturbed, because the appellate court feels that some other view is also possible. A perverse order of acquittal replete with gross errors of facts and law will have to be set aside to prevent miscarriage of justice, because just as the court has to give due weight to the presumption of innocence and see that innocent person is not sentenced, it is equally the duty of the court to see that the guilty do not escape punishment. Unless the appellate court finds the order of acquittal to be clearly unreasonable and is convinced that there are substantial and compelling reasons to interfere with it, it should not interfere with it." 18. 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. 19. 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. 19. It is an established position of law that if the court below has taken a view which is a possible view in a reasonable manner, then the same shall not be interfered with moreso in view of the fact that more than 25 years have already elapsed as the incident is of the year 1985. 20. On a bare perusal of the judgement and order dated 05.12.1986, it cannot be said that the view taken by the trial court is not a possible view or a feasible view that could be taken by a reasonable person. Moreover as no illegality or perversity has been pointed out, this Court refuses to grant any indulgence whatsoever to the appellant-State. 21. In view of the aforesaid facts and circumstance of the case, the appeal is dismissed. 22. Consequences to follow. Let a copy of this order be certified to the court concerned.