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2018 DIGILAW 964 (MP)

Goverdhan v. State of M. P.

2018-11-16

S.C.SHARMA, S.K.AWASTHI

body2018
ORDER Awasthi, J. -- 1. The applicant - Goverdhan, father of the prosecutrix has preferred this petition under section 378(3) of CrPC for grant of leave to appeal against the judgment dated 26.3.2018 passed by VI Additional Sessions Judge, Mandsaur in S. T. No. 311/2013 whereby the accused/respondents No. 2 and 3 have been acquitted from the charges under sections 363, 366A, 376(1), 376(n), 344 and 376(d) of the IPC and section 3(A) r/w section 4 of protection of Children from Sexual Offences Act, 2012. 2. According to the prosecution case, on 6.8.2018 the minor daughter of the applicant was missing. He searched her but she was not found. Applicant lodged missing report at P. S. Malhargarh, District Mandsaur and on that basis Missing Report No. 9/13 was registered. The prosecutrix was recovered on 13.9.2013 and she made a written complaint to the police alleging that accused/respondents No. 2 and 3 along with co-accused persons kidnapped her and they took her to Delhi where they committed rape upon her. The prosecutrix was sent for medical examination and on the basis of aforesaid complaint, an FIR bearing Crime No. 204/2013 was registered against the respondents No. 2 and 3 and other co-accused persons. They were arrested by the police and after completion of investigation the chargesheet was filed against respondents No. 2 and 3. 3. Learned trial Court, after due appreciation of entire evidence on record, by the impugned judgment acquitted the respondents No. 2 and 3/accused from the aforesaid charges. Aggrieved by which, the father of the prosecutrix has filed this petition for grant of leave to appeal against the judgment of acquittal. 4. Heard learned counsel for the applicant and perused the impugned judgment. 5. Learned counsel for the applicant submits that as per the scholar register of the primary school, the age of the prosecutrix is below 18 years. The prosecutrix has categorically stated that respondents No. 2 and 3/accused had kidnapped her and forcefully took her to Delhi and thereafter committed rape on her. Her statement has got further support by the FIR and circumstantial evidence. Learned trial Court has wrongly disbelieved the statement of the prosecutrix and acquitted the respondents No. 2 and 3/accused persons, hence prayed for grant of leave to appeal against the impugned judgment. 6. On perusal of the statement of the prosecutrix (PW 1), it appears that she is a married woman. Learned trial Court has wrongly disbelieved the statement of the prosecutrix and acquitted the respondents No. 2 and 3/accused persons, hence prayed for grant of leave to appeal against the impugned judgment. 6. On perusal of the statement of the prosecutrix (PW 1), it appears that she is a married woman. In the missing report (Ex. P-15), her age is mentioned as 20 years. Her father-in-law Sukhlal (PW 24) accepted in his cross-examination that prosecutrix is married to his son - Mahendra, who was aged about 24 years at the time of marriage and at that time the age of the prosecutrix was about 20 years. After appreciating the date of birth mentioned in the scholar register, the trial Court has come to the conclusion that prosecution has not filed the scholar register of the school in which the prosecutrix was first admitted. The Headmaster of the school, Khiladilal (PW 12) has failed to explain that on what basis the date of birth of prosecutrix, i.e., 10.5.2000, was entered in the scholar register. 7. Respondents No. 2 and 3/accused - Devisingh and Akram are not named in the written complaint made by the prosecutrix vide Ex. P-2 and P-3 nor in the register of Hotel- Parshva in which she was kept by the kidnappers. In the aforesaid register, the room was booked on the name of the co-accused Tasleem. Similarly the trial Court has also come to the conclusion that there is no sign of any injury on the body of the prosecutrix. As per statement of Dr. Suman Meena (PW6), who examined the prosecutrix, it cannot be inferred that any forceful intercourse was committed on the prosecutrix. There are inconsistency in the statement of the prosecutrix regarding involvement of the respondents No. 2 and 3 in the present crime. Looking to the aforesaid facts and circumstances of the case, in our opinion the finding of acquittal recorded by the trial court does not appear to be perverse or illegal, which can be interfered by this court. It is settled principle of law that if the trial Court, after due appreciation of evidence comes to the conclusion about finding of acquittal, then normally if the finding is not perverse, this should not be interfered with by the appellate Court. It is settled principle of law that if the trial Court, after due appreciation of evidence comes to the conclusion about finding of acquittal, then normally if the finding is not perverse, this should not be interfered with by the appellate Court. For this, reliance can be placed on the decision of Hon. apex Court in the case of Chandrappa v. State of Karnataka, (2007) AIR SCW 1850 wherein the Hon. apex Court laid down the legal principle for entertaining the appeal against acquittal and held as under: “in Kallu v. State of M. P., (2006) 10 SCC 313 = AIR 2006 SC 831 , this Court stated; ‘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. 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) From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An appellate Court has full power to review, reappreciate 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 curtail extensive powers of an appellate Court in an appeal against acquittal. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize 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 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. In view of re-appreciation of entire evidence and on the basis of legal principle laid down by the Hon. apex Court, we are of the considered view that finding of acquittal recorded by the learned trial Court does not appear to be perverse. Resultantly, no grounds are available for grant of leave to appeal against the impugned judgment. Hence, the petition filed on behalf of applicant/father of the prosecutrix is dismissed accordingly.