Allahabad High Court
State Of U.P. vs Ramu And Anr. on 12 August, 2024
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:138288-DB Court No. - 47 Case :- GOVERNMENT APPEAL No. - 604 of 2024 Appellant :- State of U.P. Respondent :- Ramu And Anr. Counsel for Appellant :- G.A. With Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 403 of 2018 Applicant :- Km. Kajal Opposite Party :- State Of U.P. And 2 Ors. Counsel for Applicant :- Prayogendra Pal Singh Counsel for Opposite Party :- G.A. Hon'ble Rajiv Gupta,J.
Hon'ble Surendra Singh-I,J.
1. Heard learned A.G.A. and Shri Preyogendra Pal Singh for the first informant and perused the material on record.
2. The instant Government Appeal alongwith an application for leave to appeal tagged with criminal appeal u/s. 372 Cr.P.C. has been filed against the common judgement and order dated 22.09.2018 passed by the VIIIth Additional District and Sessions Judge/ Special Judge (POCSO Act), Bulandshahar in Special Criminal Case No. 345 of 2016, (State of U.P. Vs. Ramu) and Special Criminal Case No. 182 of 2017, (State of U.P. Vs. S.P. @ Manish), arising out of case crime no. 281 of 2015, under section 376D, 506 I.P.C and Section 6 of The Protection of Children from Sexual Offences Act (hereinafter referred to as 'POCSO Act'), P.S. Khurja Dehat, District Bulandshahar, whereby both the accused-respondents have been acquitted by the trial court.
3. Since both the appeals arise out of common impugned judgment and order as such are being decided by a common judgment.
4. Learned counsel for the respective appellants has submitted that the prosecution case, as unfurled in the first information report is that the victim 'X' has lodged an F.I.R at P.S. Khurja Dehat, District Bulandshahar alleging therein that she is a minor girl aged about 13 years and on 29.12.2015 she had gone in her field in order to collect fodder for her animals, where at about 3.00 p.m. while she was cutting the fodder in the mustard field of one Sonpal, the accused-respondents, S.P. @ Manish and Ramu reached there and committed the offence of rape on her and made its video clip. On raising alarm they made their escape good after extending death threats to her and her family members. On account of which she had lodged F.I.R on 31.12.2015 after two days of the incident. On the basis of written report F.I.R. was lodged vide case crime no. 281 of 2015, under sections 376D, 506 I.P.C. and Section 6 of The Protection of Children from Sexual Offences (POCSO) Act. Pursuant to the said F.I.R., the victim was taken to the hospital for medical examination at P.H.C. Khurja, District Bulandshahar. A supplementary report for determining her age has also been prepared and was sent to the police station. The Investigating Officer has recorded the statement of the victim under section 161 Cr.P.C. in which she has stated that one Soni by enticing her had taken her to the field where Ramu and S.P. @ Manish were present who tied her up and after undressing her committed rape on her and prepared video clip and threatened not to disclose the said fact to the family members of her house else they would viral the video on internet and threatened her for life. On raising alarm they gagged her mouth. The Investigating Officer, Baljeet Singh P.W.6, after recording the statement of the victim and relevant witnesses and collecting the relevant material collected during course of investigation submitted charge sheet against both the accused-respondents. On the basis of the said charge sheet, Special Judge framed the charges under section 376D, 506 I.P.C. and 6 of POCSO Act against both the accused persons. The accused-respondents pleaded not guilty abjured the charges and claimed to tried.
5. The prosecution in order to prove the guilt of the accused-respondents has produced the first informant 'X' as P.W. 1 Constable Sonam Chaudhary, P.W.2 Smt. Prakashi Devi, mother of the victim, P.W.3 Dr. Urmila Singh, P.W.4 Smt. Manisha Raghav, Incharge Principal, P.W.5.
6. After recording their testimonies, the statement of accused-respondents were recorded under Section 313 of the Code of Criminal Procedure wherein accused-respondent Ramu categorically stated that prior to the said incident, father of the victim had poured kerosene oil on him and set himself on fire and was medically treated for which they had borrowed a sum of Rs. 2.00 lacs from them which they were not returning. Consequent to which there was quarrel between them. Apart from the said incident victim was also apprehended while committing theft of paddy from their fields which also resulted in quarrel between the two and in the backdrop of the said circumstances they have been falsely implicated in the present case, though at the relevant date and time he infact was present at his house. The same version has been reiterated by accused-respondent S.P. @ Manish in his statement recorded under section 313 Cr.P.C. However, they have not furnished any documentary evidence in their defence nor produced any witness.
7. After concluding the entire testimony of the relevant witnesses, the trial Court acquitted both the accused-respondents of all the charges framed against them by the impugned judgment and order dated 22.9.2018. Being aggrieved by the said judgment and order, the present government appeal has been preferred by the State with the prayer to reverse the acquittal of the accused-respondents and to convict them for the offences charged with.
8. Learned A.G.A. as well as counsel for the first informant has submitted that 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-respondents. He has further submitted that P.W.1, victim in her testimony has proved the prosecution case to the hilt yet the trial court illegally acquitted the accused-respondents on the basis of surmises and conjectures.
9. Learned A.G.A. as well as counsel for the first informant has next submitted that the material placed before the Court is sufficient to prove the guilt of the accused-respondents and the instant Government Appeal alongwith leave to appeal against the impugned judgment and order deserves to be allowed.
10. Upon hearing learned counsel for the parties and perusal of the impugned judgement and order, testimony of the witnesses recorded before the trial court and other material placed on record, we find that on the oral report of the victim, an F.I.R. in question was registered and according to her statement she was 13 years of age at the time alleged incident. She further stated that on the date of incident she had gone to collect the fodder in a mustard field of Sonpal, both accused-respondents reached there and committed offence of rape on her and made a video clip. On raising alarm they left. However, if we go to the statement of the victim recorded under section 164 Cr.P.C. she has given completely different version of the incident wherein she stated that one girl Soni by enticing her taken her in a field where accused-respondents were sitting who tied her up and undressed her and committed offence of rape on her and made its video clip and thereafter threatened her not to disclose this fact to any one else the said video would be made viral. She further stated that Soni did not rescue her and the accused-respondents had gagged her mouth at the time of incident. Even in the statement before the trial court she had narrated the said incident in a different manner which is in complete contrast to her earlier statement recorded during course of investigation. Furthermore, when we go to the testimony of P.W.1 and P.W.3, mother of the victim, we find there are sharp inconsistency in their statements regarding the date of lodging of the F.I.R. As per the statement of P.W.1, F.I.R. was lodged on the date of incident i.e. 29.12.2015 itself whereas as per the statement of P.W.3, F.I.R. was lodged on 31.12.2015 on which date the factum of incident was disclosed to her. It is further relevant to point out here that in the statement recorded before the magistrate, it is stated by the victim that one Soni had enticed her away to the field where the accused-respondents are said to have committed offence of rape but she did not rescue her. It is further germane to point out here that, though she was a material witness but has not been produced by the prosecution and withheld. From the testimony of P.W.1, it is further revealed that while committing the offence of rape on her there was a scuffle between her and that of the accused-respondents, consequent to which she suffered injuries on her arms and legs which was shown to the police personnel but P.W. 2 has categorically stated in her testimony that at the time of lodging the report no apparent injury was found on her person, even P.W.4, Doctor Urmila Singh has categorically stated that she did not suffer any internal or external injury on her person. Even in the injury report Ex. Ka. 5 it is noted that no injury was found on the person of the victim or on her private part. Thus, medical report also does not corroborate the prosecution story. We further find that there is inconsistency and contradictions in the statement of witnesses. Thus, we find that in the instant case trial court has considered each and every aspect of the matter and passed a well reasoned and detailed order holding that the prosecution has failed to prove the charges under section 376D, 506 I.P.C. and section 6 of POCSO Act against the accused-respondents. The said finding, in our opinion, is just, proper and legal and do not call for any interference particularly in view of the various judgments passed by the Apex Court in regard to reversal of acquittal.
11. 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."
12. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka (2023) 9 SCC 581 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."
13. 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 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.
14. 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.
15. 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 against the accused-respondents and that the acquittal of the accused-respondents is plausible and justifiable view emanating from the discussion of the evidence available on record and does not suffer from any infirmity or perversity. Therefore, we are of the opinion that the impugned judgement and order passed by the trial court is just, proper and legal and do not call for any interference by this Court.
16. In the backdrop of the said facts and circumstances, we are of the opinion that the judgment and order passed by the trial court needs no reversal of acquittal.
17. Accordingly leave to appeal is refused and application is rejected. Consequently, the instant government appeal stands dismissed alongwith the appeal under section 372 Cr.P.C. filed by the first informant.
18. Copy of the order be certified to the court concerned for consequential follow up action.
Order Date :- 12.8.2024 R