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2021 DIGILAW 1454 (ALL)

State of U. P. v. Khusi Ram

2021-11-30

AJAI TYAGI, K.J.THAKER

body2021
JUDGMENT : Ajai Tyagi, J. 1. This appeal, under Section 378 (3) Cr.P.C. at the behest of the State, has been preferred against the judgment and order dated 18.2.1986, passed by the learned Additional Sessions Judge-V, Shahjahanpur, in Session Trial No.300 of 1985 (State vs. Khushi Ram & another) arising out of Case Crime No.172 of 1985 under Sections 376, 380 and 376/114 IPC, Police Station-Sehramau (South), District-Shahjahanpur, whereby learned trial Judge acquitted both the accused persons of all the charges. 2. Brief facts of this case are that an FIR was lodged by the complainant stating that on 20.3.1985 at about noon, accused persons Khushi Ram and Satish entered the house of prosecutrix, who is a married lady, where she was alone. Her father and sister were also away from the home. Accused persons shut the main door of the house and accused-Khushi Ram committed the rape upon the prosecutrix forcibly. Accused-Satish caught hold the prosecutrix during the course of commission of the crime. Satish also took jewelry and cash of the prosecutrix at the time of running from the home. Investigation was taken up by SI-Bhagat Singh, who visited the spot and prepared the site-plan. Investigating Officer recorded the statements of the witnesses under Section 161 Cr.P.C. During the course of investigation, medical examination of the prosecutrix was conducted and medical report as well as supplementary report were prepared. After completing the evidence, charge-sheet was submitted against both the accused persons. The case being exclusively triable by court of session was committed to the court of session for trial by competent Magistrate. Learned trial-court framed charges against the accused-Khushi Ram under Sections 376 and 380 IPC and against the accused-Satish under Section 376 read with Sections 114 and 380 IPC. 3. To bring home the charges, the prosecution produced the following witnesses, namely:- 1. Prosecutrix PW1 2. Ram Swaroop PW2 3. S.I. Bhagat Singh PW3 4. In support of the ocular version of the witnesses, following documentary evidence was produced and contents were proved by leading the evidence :- 1. FIR Ex.ka1 2. Recovery Memo Ex.ka7 3. Medical Examination Report Ex.ka3 4. Supplementary Report Ex.ka4 5. Pathology Report Ex.ka5 6. Report of FSL Ex.ka10 7. Site-plan Ex.ka6 5. S.I. Bhagat Singh PW3 4. In support of the ocular version of the witnesses, following documentary evidence was produced and contents were proved by leading the evidence :- 1. FIR Ex.ka1 2. Recovery Memo Ex.ka7 3. Medical Examination Report Ex.ka3 4. Supplementary Report Ex.ka4 5. Pathology Report Ex.ka5 6. Report of FSL Ex.ka10 7. Site-plan Ex.ka6 5. After completion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C., in which they denied the evidence and said that they were falsely implicated due to enmity. No witness was examined in defence. 6. We have heard Shri Vikas Goswami, learned AGA for the State of UP as well as Shri Suresh Dhar Dwivedi, learned counsel for the accused-respondents and perused the record. 7. Before we embark on testimony and the judgment of the Court below, the contours for interfering in Criminal Appeals where accused has been held to be non guilty would require to be discussed. 8. The principles, which would govern and regulate the hearing of an appeal by this Court against an order of acquittal, passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. Narayana Menon @ Mani vs. State of Kerala and another, (2006) 6 S.C.C. 39 , the Apex Court has narrated 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: “54. 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.” 9. Further, in the case of Chandrappa vs. State of Karnataka, reported in (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. 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. [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.” 10. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views/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. 11. Even in the case of State of Goa vs. Sanjay Thakran and another, reported in (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. 11. Even in the case of State of Goa vs. Sanjay Thakran and another, reported in (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.” 12. Similar principle has been laid down by the Apex Court in cases of State of Uttar Pradesh vs. Ram Veer Singh and others, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by L.R.s vs. 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. 13. In the case of Luna Ram vs. Bhupat Singh and others, reported in (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 ankle 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 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 ankle 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 post-mortem 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.” 14. Even in a recent decision of the Apex Court in the case of Mookkiah and another vs. State Representatives by the Inspector of Police, Tamil Nadu, reported in 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 leveled 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. 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 analyze 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 hoosing 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 vs. Sohan Lal and Others, (2004) 5 SCC 573 ]” 15. It is also a settled legal position that in acquittal appeals, 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 vs. 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.” 16. In a recent decision, the Hon’ble Apex Court in Shivasharanappa and others vs. State of Karnataka, JT 2013 (7) SC 66 has held as under: “That appellate Court is empowered to re-appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence.” 17. Further, in the case of State of Punjab vs. Madan Mohan Lal Verma, (2013) 14 SCC 153 , the Apex Court has held as under: “The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convincing the accused person.” 18. The Apex Court recently in Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219 , has laid down the principles for laying down the powers of appellate court in re-appreciating the evidence in a case where the State has preferred an appeal against acquittal, which read as follows: "10. It is by now well settled that the Appellate Court hearing the appeal filed against the judgment and order of acquittal will not overrule or otherwise disturb the Trial Court's acquittal if the Appellate Court does not find substantial and compelling reasons for doing so. If the Trial Court's conclusion with regard to the facts is palpably wrong; if the Trial Court's decision was based on erroneous view of law; if the Trial Court's judgment is likely to result in grave miscarriage of justice; if the entire approach of the Trial Court in dealing with the evidence was patently illegal; if the Trial Court judgment was manifestly unjust and unreasonable; and if the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert etc. the same may be construed as substantial and compelling reasons and the first appellate court may interfere in the order of acquittal. However, if the view taken by the Trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case, the Appellate Court generally will not interfere with the order of acquittal particularly in the absence of the aforementioned factors. .................It is relevant to note the observations of this Court in the case of Ramanand Yadav vs. Prabhu Nath Jha & Ors., (2003) 12 SCC 606, which reads thus: "21.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. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not." 19. The Apex Court recently in Shailendra Rajdev Pasvan v. State of Gujarat, (2020) 14 SC 750, has held that the appellate court is reversing the trial court’s order of acquittal, it should give proper weight and consideration to the presumption of innocence in favour of accused, and to the principle that such a presumption sands reinforced, reaffirmed and strengthened by the trial court and in Samsul Haque v. State of Assam, (2019) 18 SCC 161 held that judgment of acquittal, where two views are possible, should not be set aside, even if view formed by appellate court may be a more probable one, interference with acquittal can only be justified when it is based on a perverse view. 20. 20. Learned AGA submitted that prosecutrix has supported the prosecution version in her statement as PW1. She has narrated the story, which took place with her by the accused persons in detail, but the learned trial court did not rightly appreciate her evidence. It is also submitted that Ram Swaroop (PW2) had seen the accused persons while running from the house of prosecutrix at the given date and time, but this evidence was also not considered by trial court in right perspective. 21. We had perused the evidence on record. Prosecutrix has stated that rape was committed upon her by the accused-Khushi Ram, but the medical evidence suggests that no rape was committed upon her. Medical Report (Ex.ka3) says that at the time of internal medical examination, hymen was found old torn and well-healed up. No fresh-injury detected. Therefore, as per medical-report, there was no external or internal injury on the person of the prosecutrix rather it was concluded by the doctor that she has used to sexual intercourse. In ossification-test, her age was found above 19 years and the doctor had opined that 'no opinion about rape can be given'. In pathology-report, it is mentioned that 'no spermatozoa was seen'. It is also pertinent to mention as far as the offence of theft under Section 380 IPC is concerned, no recovery is made from any of the accused persons. 22. We have considered the evidence on record meticulously and we are of the considered opinion that learned trial Judge had rightly appreciated the evidence on record and it was correctly opined by the learned trial Judge that offence of rape or theft was not proved by the prosecution case. 23. In view of above, we cannot take a different view from that of taken by the learned trial-court. We also do not find any infirmity in the impugned judgment and order dated 18.2.1986, therefore, we have no other option, but to concur with the findings recorded by the learned trial court and appeal is liable to be dismissed. 24. Hence, appeal sans merit and is dismissed. 25. We are thankful to Shri Vikas Goswami, learned AGA for the State of UP and Shri Suresh Dhar Dwivedi, learned counsel for the accused-respondents for ably assisting the Court.