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2017 DIGILAW 1089 (ALL)

State of U. P. v. Nooruddin

2017-04-24

K.J.THAKER

body2017
JUDGMENT : Kaushal Jayendra Thaker, J. 1. The present appeal under Section 378 of the Code of Criminal Procedure is filed by the State challenging the judgment and order of acquittal passed by learned Additional Sessions Judge, Raebareilly, in Sessions Trial No. 66 of 1996 on 13.2.1998 whereby the respondent-original accused was acquitted of the offences punishable under Sections 363 and 366 of Indian Penal Code (hereinafter referred to as "IPC"). 2. The matter was though listed for hearing, an attempt was made to serve the respondent-original accused. However, on going through the record, the Court is of the opinion that the matter can be decided on merits after hearing learned counsel for the appellant. Therefore, the matter is taken up for hearing on merits. 3. By way of this appeal State has felt aggrieved whereby accused was acquitted in Sessions Trial No.66 of 1996 whereby he was charged for having alleged to have committed offence under section 366 read with Section 363 of IPC. The matter was committed to the Court of Sessions being a sessions triable case. 4. The prosecution examined about five witnesses. The prosecutrix unfortunately did not support the prosecution case. 5. Learned AGA appearing for the appellant-State has submitted that the trial Court has committed error in acquitting the respondent-original accused of the offences punishable under Sections 363, 366 of IPC. He further submitted that the trial Court has discarded the evidence of the prosecution witness on the ground that there are minor contradictions in the evidence which have no bearing on the prosecution case. Hence he submitted that the order of acquittal is required to be set aside. It is further submitted that the accused was last seen with the prosecutrix. 6. At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr, (2006) 6 S.C.C. 39 , the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr, (2006) 6 S.C.C. 39 , the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." 7. Further, in the case of Chandrappa v. State of Karnataka (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles; "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An appellate Court has full power to review, re appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that 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 shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." 8. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 9. Even in the case of State of Goa v. Sanjay Thakran & Anr, (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under: "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 10. A duty is cast upon the appellate Court, in such circumstances, to re appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 10. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs v. State of MP, 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 11. In the case of Luna Ram v. Bhupat Singh and Ors, (2009) SCC 749, the Apex Court in para 10 and 11 has held as under: "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his anke was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. 11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." 12. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. v. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 321 , the Apex Court in para 4 has held as under: "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges levelled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyse the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]. 13. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka v. Hemareddy, AIR 1981, SC 1417, wherein it is held as under: "... This Court has observed in Girija Nandini Devi v. Bigendra Nandini Choudhary (1967) 1 SCR 93 : ( AIR 1967 SC 1124 ) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." 14. Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence is not necessary. Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence is not necessary. I am supported in my view in the decision of Apex Court in Vinod Kumar v. State of Haryana, AIR 2015 SC 1032 and Gulbar Husain v. State of Assam, 2015 (11) SCC 242 which holds that if reasonable and probable view of the Trial Court in granting benefit of acquittal, the Appellate Court should not easily disturb the acquittal. 15. Further, learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In above view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order. 16. The ingredients of Section 363 read with Section 366 and the evidence was not sufficient to convict the accused. The prosecutrix in a testimony in unequivocal statement stated that she went of her own. Apart from the above, the Trial Court has given a finding that just because the accused with other two persons was last seen together would itself not be sufficient to convict the accused. Over and above, the key witness in the case has turned hostile. In that view of the matter, the view taken by the Court below is not required to be disturbed. I do not find any case made out any interference with the finding of trial court whereby Trial Court has opined that primary school certificate of the prosecutrix was not authenticated piece of evidence which would permit me to take a different view and record conviction on the basis of said unproved document. Further a finding of fact goes to show that the witness also did not support the prosecution case and the age of girl was not conclusively proved to be below 18 years. In that light of the matter, when the age of the girl could not be ascertained, conviction could not have been recorded in absence of definitive age of prosecution. 17. In that light of the matter, when the age of the girl could not be ascertained, conviction could not have been recorded in absence of definitive age of prosecution. 17. I am, therefore, of the considered opinion that the findings recorded by the trial Court acquitting the accused of the charges levelled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court below. No interference is warranted with the judgment and order of the trial Court. Hence, the appeal is hereby dismissed.