Allahabad High Court
State Of Up vs Surendra Singh S/O Bhagwat Singh on 10 September, 2024
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:147742-DB Court No. - 47 Case :- GOVERNMENT APPEAL No. - 673 of 2024 Appellant :- State of U.P. Respondent :- Surendra Singh S/O Bhagwat Singh Counsel for Appellant :- Shiv Kumar Pal Counsel for Respondent :- Ashok Kumar Upadhyay, Shailendra Kumar Pathak Hon'ble Rajiv Gupta,J.
Hon'ble Surendra Singh-I,J.
1. Heard Shri Arun Kumar Pandey, learned AGA for the State/appellant, Shri Shailendra Kumar Pathak, learned counsel for the accused-respondent and perused the trial court record.
2. The instant Government Appeal along with an application to grant leave to appeal has been filed by the State of U.P. against the impugned judgment and order dated 19.10.2021 passed by Special Judge (POCSO Act)/Additional District and Sessions Judge, Ghaziabad in Sessions Trial No. 248 of 2018 (State of U.P. Vs. Surendra Singh), arising out of Case Crime No. 2091 of 2018, under Sections 376AB IPC and Section 5m/6 POCSO Act, P.S. Sahibabad, District Ghaziabad, by which the accused-respondent has been acquitted of all the charges framed against him.
3. As per the prosecution case, as unfurled in the FIR, lodged at the instance of one Anshu, wife of Rajeev Kumar on 12.07.2018, it is alleged that the accused-respondent Surendra, who is also her relative has been doing indecent act with her eight year old daughter X. It is further alleged that on 11.06.2018 at around 06:00 p.m., he inserted his fingers in her private part. The said fact was disclosed to her by her minor daughter, who was very much scared.
4. On the basis of written report, an FIR was lodged on 12.07.2018 after one month of the incident under Section 376 IPC and Sections 5k, 5n and 6 of POCSO Act. After registration of the said case, the investigation of the same was entrusted to P.W.4 S.I. Arun Kumar. The Investigating Officer thereafter recorded the statement of the first informant as well as her husband Rajeev Kumar and thereafter produced the victim X before the Magistrate for recording of her statement under Section 164 Cr.P.C. and after collecting the relevant evidence and material submitted the charge-sheet against the accused respondent before the Special Judge (POCSO Act) under Section 376AB IPC and Section 5k, 5n and 6 of POCSO Act. The said charges were read out and explained to the accused-respondent, who abjured the said charges, pleaded not guilty and claimed to be tried.
5. To prove the guilt against the accused-respondent, the prosecution has produced P.W.1 Anshu, first informant and mother of the victim, P.W.2 X, as witnesses of fact and P.W.3, Satish Chand Sharma, Head Constable, who had drawn the check FIR and prepared the corresponding G.D. entry and P.W.4 S.I. Arun Kumar.
6. After recording of the entire evidence, the statement of the accused-respondent was recorded under Section 313 Cr.P.C. wherein he categorically stated that the victim's parents Rajeev and Anshu earlier had repeatedly asked him to pay a sum of Rs.30,00,000/- being the pension amount and had tried to pressurize his mother for giving a share in the property and by adopting illegal means had pressurized him to give an affidavit. After registration of the case, they met him in the jail and clearly stated to part Rs.30,00,000/- else they would falsely implicate his son also, who will also be sent to jail. The accused-respondent, in his defence, has produced his mother Ratan Kaur as D.W.1.
7. After recording the testimonies of the witnesses, the trial court vide impugned judgment and order dated 19.10.2021 has acquitted the accused-respondent of all the charges framed against him.
8. Being aggrieved and dissatisfied by the said judgment and order, the instant Government Appeal has been filed along with an application to grant leave to appeal and with a prayer to reverse the acquittal of the accused-respondent and to convict him of the offence charged with.
9. Learned AGA for the State/appellant has submitted that the trial court has not appreciated the evidence and material on record in right perspective and has illegally recorded the finding of acquittal against the accused-respondent, which is bad in law and liable to be set aside.
10. Learned AGA for the appellant/State has further submitted that the finding recorded by the trial court is based on surmises and conjectures and is therefore, liable to be set aside by allowing the instant Government Appeal.
11. Learned AGA has next submitted that the prosecution witnesses in their testimony have corroborated the prosecution story and their testimony remain intact and consistent as to the accusation made against the accused-respondent. The trial court completely misread and misinterpreted the evidence on record and illegal recorded the finding of acquittal in favour of the accused-respondent, which is bad in law and liable to be set aside.
12. Per contra, Shri Shailendra Kumar Pathak, learned counsel for the accused-respondent has submitted that the trial court has appreciated the evidence and record in right perspective and after carefully scrutinizing the evidence has reached a legitimate conclusion recording the finding of acquittal against the accused-respondent. He further submitted that while arriving at the said conclusion, the trial court has considered the unexplained delay in lodging the FIR. The incident, admittedly, has been reported on 11.06.2018 to her mother, however, the FIR was lodged after one month with due deliberation and consultation. The very day of lodging the FIR, the victim was produced before the hospital for her medical examination, however, the mother of the victim refused to get her medically examined, which raises clouds of doubt about the veracity and truthfulness of the prosecution story.
13. Learned counsel for the accused-respondent has next drawn the attention of the court the statement of D.W.1 Ratan Kaur, mother of the accused-respondent and great grandmother of the victim wherein she has categorically stated that her husband was employed in Indian Army and died leaving behind his two sons Mahendra and Surendra. Mahendra is the real grandfather of the victim whereas Surendra is cousin grandfather of the victim.
14. D.W.1 in her statement categorically stated that she, in fact, was receiving two pensions, one from the Indian Army and other as dependent of freedom fighter. The pensions she was getting were distributed by her between her two sons Mahendra and Surendra. Subsequently, Mahendra died and the father of the victim namely Rajeev started insisting upon her to part with her pension. To quote:
" मेरा बेटा महेन्द्र खत्म हो गया तो उसके बेटे राजीव ने पूरी पेंशन मांगनी शुरू कर दी फिर इसी बात पर खूब झगड़ा होता था। दिवाली 2017 पर खूब झगड़ा हुआ था और तब से हमारा आना जाना बिल्कुल बन्द हो गया। राजीव उसकी माँ व उसकी पत्नी खूब लडे थे और पेंशन के 30 लाख रूपये की मांग करके खूब झगड़ा किया था। मेरा बेटा झूठा फंसाया गया। मेरा बेटे को 30 लाख रूपये के लिये झूठा फंसाया गया है।"
15. During cross-examination, she further stated that:
"मैनें महेन्द्र बेटे की मृत्यु के बाद उसमें राजीव को कोई भाग नही दिया खुद कहा कि वह सारा पेंशन मांगता था अगर वो आधी मांगता तो पेंशन आधी दे देती। चार साल पहले 2017 को दीवाली पर पेंशन को लेकर झगड़ा हुआ। झगड़ा मेरे साथ हुआ था।"
16. Thus, from the said testimony, it is evident that there existed dispute between the family for the reason that the victim's father wanted a sum of Rs.30,00,000/- to be paid to him out of the pension funds and to pressurize her for the payment of said money, a false case has been cooked up and concocted implicating her younger son Surendra.
17. The trial court after considering the entire evidence and material on record has reached a just and fair conclusion that prosecution has miserably filed to prove the case against the accused-respondent beyond reasonable doubt and has thus acquitted the accused-respondent, which order is just, proper and legal and do not call for any interference by this Court. He has further submitted that against the impugned judgment and order dated 19.10.2021, first informant Anshu has preferred Criminal Appeal under Section 372 Cr.P.C. No.267 of 2021 (Smt. Anshu Vs. State of U.P. and another). The said appeal has already been dismissed by a co-ordinate Bench of this Court vide judgment and order dated 31.03.2023. The said order has not been challenged before the higher court and has thus become final.
18. Having considered the rival submissions made by the parties and after carefully scrutinizing the judgment challenged in this appeal, we do not find any illegality or perversity in the finding recorded by the trial court acquitting the accused-respondent. While going through the testimonies, we find that, in fact, in order to settle the personal scores for the non-payment of the pension funds, the instant case has been cooked up and concocted after about one month of the incident with much deliberations and consultations. It is further evident that the minor victim, though taken to the hospital, was not medically examined so as to corroborate the prosecution story. The vital delay in lodging the FIR has also not been explained at all which clearly suggests that after much deliberation and consultation the FIR has been lodged as an afterthought. From the testimony of D.W.1, we find that there existed a strong motive for false implication of the accused.
19. Upon going through the testimony of D.W.1, we further find that she is a reliable witness and there is no earthly reason as to why the great grandmother would falsely depose against her great grand daughter, who is hardly eight years of age. Moreover, as pointed out by the counsel for the accused-respondent, the Criminal Appeal filed by the first informant Smt. Anshu against the same impugned judgment and order dated 19.10.2021 has already been dismissed by a co-ordinate Bench of this Court vide its order dated 31.03.2023 in Criminal Appeal u/s 372 Cr.P.C. No. 267 of 2021. The said order has, admittedly, not been challenged before the higher court and has become final.
20. Now coming to the scope of reversal of acquittal in Govt. Appeal, we may say that the Hon'ble Apex Court in several of its decisions has laid down the principles governing the scope of interference by the High court in an appeal filed by that state for challenging the acquittal of the accused recorded by the trial court. This Court in the case of Rajesh Prasad v. State of Bihar and Another, (2022) 3 SCC 471, encapsulated the legal position covering the field after considering various earlier judgments and held as below: -
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415] "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, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 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. Such phraseologies are more in the nature of "flourishes of language" to emphasise 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 distrub the finding of acquittal recorded by the trial court."
21. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:-
"8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
22. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused persons has to be exercised within the four corners of the following principles:-
a) That the judgment of acquittal suffers from patent perversity;
b) That the same is based on a misreading/omission to consider material evidence on record;
c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
23. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors, if it is inclined to reverse the judgment of acquittal rendered by the trial Court.
24. In the light of above settled proposition of law, when we go through the impugned judgment and order, we find that the trial court had given cogent and convincing reasons for recording the finding of acquittal in favour of the accused-respondent and that the acquittal of the accused-respondent is plausible and justifiable view emanating from the discussion of the evidence available on record and does not suffer from any infirmity or perversity. Moreover, since the criminal appeal filed by the first informant under Section 372 Cr.P.C. challenging the impugned judgment and order has already been dismissed by a Co-ordinate Bench of this Court vide its order dated 31.03.2023, which order has not been further challenged in higher court and has become final, therefore, we are of the opinion that the impugned judgment and order passed by the trial court is just, proper and legal and do not call for any interference by this Court.
25. Accordingly, prayer to grant leave to appeal is refused and the application is rejected. Consequently, the instant government appeal is also devoid of merit and is accordingly dismissed.
26. Let a certified copy of this judgment and order be forwarded to the court concerned for information and necessary compliance alongwith the trial court record.
Order Date :- 10.09.2024 Subham