Allahabad High Court
State Of U.P. vs Praveen Kumar Alias Kallu Yadav on 25 November, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 48
Government Appeal No. 190 of 2019
State of Uttar Pradesh ------- Appellant
Vs.
Praveen Kumar alias Kallu Yadav ------ Accused-Respondent
For Appellant : Sri J.K. Upadhyay, A.G.A.
For Respondent-Accused : None
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
(Per: Raj Beer Singh, J)
1. The present government appeal arises out of impugned judgement and order dated 22.01.2019 passed by learned Additional Sessions Judge/Special Judge, (POCSO Act), Auraiya in Special Case No. 29-P of 2016, under Sections 376, 302 IPC, Sections 3/4 of POCSO Act and Sections 3(2)(v) of SC/ST Act, P.S. Ajeetmal, District Auraiya, whereby accused-respondent Praveen Kumar alias Kallu Yadav has been acquitted of the charge under Sections 376, 302 IPC, Sections 3/4 of POCSO Act and Sections 3(2)(v) of SC/ST Act.
2. Perusal of record shows that PW-1/complainant Karan Singh Dohare has filed an FIR against unknown persons, alleging that on 08.03.2016 at about 3:00 PM, his daughter Km. Shabnam, aged 8-9 years, has gone to agricultural field for collecting fodder. One Km. Archana and Km. Pratima have also gone with her. At about 5:00 PM, some unknown miscreants have subjected his daughter to rape and committed her murder by strangulating her and that her dead body was found in the field of one Vimal Kishore Dubey alias Lalla.
3. During investigation, on the basis of statements of Km. Archana and Km. Pratima, accused-respondent Praveen Kumar alias Kallu Yadav was arrested and after completion of investigation, he was charge-sheeted for the offence under Sections 376, 302 IPC, Sections 3/4 of POCSO Act and Sections 3(2)(v) of SC/ST Act.
4. Learned trial court has framed charge under Sections 376, 302 IPC, Sections 3/4 of POCSO Act and Sections 3(2)(v) of SC/ST Act against the accused-respondent. Accused-respondent pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused-respondent, prosecution has examined eight witnesses. Accused-respondent was examined under Section 313 Cr.P.C., wherein he denied prosecution evidence and claimed false implication. However, no evidence was adduced in defence.
6. After hearing and analysing the evidence on record, accused-respondent was acquitted under Sections 376, 302 IPC, Sections 3/4 of POCSO Act and Sections 3(2)(v) of SC/ST Act vide impugned judgment and order dated 22.01.2019.
7. Being aggrieved by the acquittal of accused-respondent, State has preferred the present government appeal.
8. We have heard Sri J.K. Upadhyay, learned State Counsel for appellant. None has appeared on behalf of the accused-respondent.
9. It has been argued by learned State Counsel that learned trial court has not appreciated the evidence in correct perspective and committed error by acquitting accused-respondent. As per statement of PW-2 Km. Vandana, on day of incident at around 4:00-4:30 PM, she has seen that accused-respondent was running out from land of one Anand Tailor by wrapping towel (Angaocha) and later on, she found that her younger sister Shabnam was lying dead in the field of one Vimal Kishore Dubey alias Lalla. It was further submitted that there was strong circumstantial evidence against the accused-respondent and there were no reasons to disbelieve the same. State Counsel further argued that accused-respondent has been acquitted on the basis of minor contradictions and inconsistencies, whereas the same cannot be a ground for acquittal and thus, the impugned judgment of acquittal is not sustainable in the eyes of law.
10. We have considered the rival contentions of learned counsel for the appellant and perused the record.
11. It is an appeal against the order of acquittal. It is well settled 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 reappreciate 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. 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 Vs. State of Kerala & Anr, reported in (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 judgement 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."
13. 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, 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 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 thebasis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
14. In case of Mookkiah and Anr. Vs. State, rep. 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 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 vs. Sohan Lal and Others, (2004) 5 SCC 573]"
15. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgement 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, reported in 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. 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. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 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. In this regard the decision of Apex Court in Vinod Kumar Vs. State of Haryana, AIR 2015 SC 1032 and Gulbar Husain Vs. State of Assam, 2015 (11) SCC 242 may be referred.
17. In the present case, perusal of record shows that PW-2 Km. Vandana is daughter of complainant and as per her statement at around 4:00-4:30 PM, she has seen that accused-respondent was running out from field of one Anand Tailor and he was wrapping a towel (Angaocha) at his body. At that time, she has not suspected anything foul and after that her sister Shabnam was found lying dead in the field of one Vimal Kishore Dubey alias Lalla. Though, PW-2 is daughter of complainant Karan Singh Dohare, but despite that complainant has not named the accused-respondent in the FIR. In her cross-examination, PW-2 Vandana has also stated that when she was going in search of her sister, her father was also with her, but no such version was mentioned in the FIR. Except the alleged statement of PW-2 Vandana, no other incriminating evidence could be pointed out against the accused-respondent. Learned trial court has found several material contradictions and inconsistencies in the statement of PW-2 Vandana and her alleged version that she has seen the accused-respondent running out from the land of one Anand Tailor by wrapping a towel (Angaocha), is suffering from serious infirmities.
Further, it appears from the record that during investigation underwear and trouser of accused-respondent were seized and it were sent to FSL along with vaginal swab of deceased and after DNA examination, as per FSL report, the alleged biological material has not matched with material found on underwear and trouser of accused-respondent and thus, the FSL report also supports the case of the accused-respondent.
18. Learned trial court after appreciating evidence, has found that there are serious contradictions between statements of PW-1 Karan Singh Dohare and PW-2 Vandana and the version of PW-2 Vandana that she has gone to search her sister, has been found thoroughly doubtful.
19. In the instant case, as noticed above, the only incriminating piece of evidence is that PW-2 Vandana has seen the accused-respondent running out from field of one Anand Tailor by wrapping towel (Angaocha), but that version is suffering from various serious contradictions and infirmities and that learned trial court after examining the entire evidence, in detail, has not found that evidence reliable. Even otherwise, that circumstance alone is not sufficient to complete chain of circumstances so as to point out the guilt of accused-respondent.
20. Alleged Km. Archana and Km. Pratima, who as per FIR have gone with deceased, have not been examined by the prosecution.
21. In view of the aforesaid, the view taken by the learned trial court cannot be said to be perverse or against the provisions of law. Learned State Counsel has failed to point out any patent illegality or perversity in the findings so recorded in the impugned order and thus, no case for interference is made out. It is an established position of law that if the court below has taken a view, which is a possible view in a reasonable manner, then the same shall not be interfered with. After considering entire evidence, it cannot be said that the view taken by the trial court is not a possible view or a feasible view that could be taken on the facts and evidence of the case. Moreover, no illegality or perversity has been pointed out in the impugned judgment.
22. In view of the aforesaid facts and circumstance of the case, the application seeking leave to appeal is declined and, accordingly, the government appeal is dismissed.
Dated: 25.11.2019
Anand
(Raj Beer Singh) (Pritinker Diwaker)