Allahabad High Court
State Of U.P. vs Vikki Alias Mohit Bhadauria on 13 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 328
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.48 Government Appeal No.423 of 2019 State of Uttar Pradesh ---- Appellant Vs Vikki alias Mohit Bhadauria ---- Respondent For Appellant : Sri Amit Sinha, AGA For Respondent : None Hon'ble Pritinker Diwaker, J.
Hon'ble Dinesh Pathak, J.
Per: Pritinker Diwaker, J (13.1.2020) Heard on admission.
2. Challenge in this appeal is to the judgment and order dated 31.5.2019 passed by Additional Sessions Judge, Court No.6, Mainpuri in Sessions Trial No.37 of 2018 (State of Uttar Pradesh vs. Vikki alias Mohit Bhadauria) acquitting the accused-respondent under Sections 460 and 411 of IPC.
3. As per prosecution case, on 8.11.2017 at about 7:55 pm, deceased Rameshwari, aged about 70 years, who was living all alone in her house, was found dead on her cot. When her nephew Sarvesh Singh (PW-1) could not see deceased Rameshwari, he climbed up on the roof of the house of deceased and found her dead inside her house. On the basis of written report Ex.Ka.1, lodged at 8.50 pm, FIR Ex.Ka.8 was registered against unknown persons under Section 460 of IPC.
4. Inquest on the dead body of the deceased was conducted on 8.11.2017 vide Ex.Ka.3 and the body was sent for postmortem, which was conducted on 9.112017, vide Ex.Ka.10.
As per Autopsy Surgeon, following injuries were noted on the body of the deceased:
AMI: (1) Abraded contused swelling size of 8.0 x 7.0 cm in front of Neck up to Chin.
(2) Abrasion size of 2 x 1.00 cm on (Lt.) side of Cheek.
(3) Abrasion size of 2 x 1.00 cm on (Lt.) upper part of Chest over medial end of (Lt.) Clavicle."
Cause of death of the deceased was Asphyxia as a result of Ante-mortem throttling.
5. From the possession of the accused-respondent, one mobile phone and certain other articles, like ornaments, cheque book and Aadhar etc., allegedly belong to the deceased, were seized vide Ex.Ka.2. From the spot, finger prints were lifted and charge was framed against the accused-respondent under Sections 460 and 411 of IPC.
6. So as to hold accused-respondent guilty, prosecution has examined nine witnesses. Statement of accused-respondent was recorded under Section 313 of Cr PC in which, he pleaded his innocence and false implication.
7. By the impugned judgment, the trial Judge has acquitted the accused- respondent of the offence under Sections 460 and 411 of IPC. Hence this appeal against acquittal by the State.
8. Learned counsel for the State-appellant submits that the trial Court has erred in law in acquitting the accused-respondent.
9. We have heard learned counsel for the parties and perused the record.
10. Present case is totally based on circumstantial evidence and the main circumstance against the accused-respondent is the recovery of certain articles, including alleged cell-phone of the deceased from his possession. However, no electronic evidence has been adduced by the prosecution that the said cell-phone was used in commission of offence or was of the deceased. Even the identification of the cell-phone and the other articles, is doubtful because no independent person has supported the prosecution case. No forensic examination report in respect of this fact has been produced by the prosecution. Most importantly, finger prints lifted from the place of occurrence and that of the accused respondent does not tally with each other.
11. Considering all these aspects of the case and placing reliance on the basic principle of conviction, being based on circumstantial evidence, the trial Court has come to a conclusion that chain of circumstantial evidence is not complete in the present case; prosecution has failed to prove its case against the accused-respondent; the accused-respondent is not guilty of the offences, as alleged; and, accordingly, given him benefit of doubt. The view taken by the trial Court is one of the possible views and it cannot be said to be perverse.
12. While considering the scope of interference in an appeal or revision against acquittal, it has been held by the Supreme Court that if two views of the evidence are reasonable possible, one supporting the acquittal and other indicating conviction, the High Court should not, in such a situation, reverse the order of acquittal recorded by the trial Court. In the matter of State of Karnataka vs. K. Gopalkrishna, reported in (2005) 9 SCC 291, the Supreme Court, while dealing with an appeal against acquittal, observed as under:
"In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal."
13. In Sudershan Kumar v. State of Himachal, reported in (2014) 15 SCC 666 the Supreme Court observed thus;-
"31. It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal v. State which is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to. In para 37, propositions laid down in an earlier case are taken note of as under: -
"37. In Chandrappa v. State of Karnataka, this Court held: ( SCC p. 432 para 42), (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. 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 disturb the finding of acquittal recorded by the trial court."
32. Thereafter, in para 39, the Court curled out five principles and we would like to reproduce the said para hereunder:
"39. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re- appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."
14. In Dilawar Singh v. State of Haryana, (2015) 1 SCC 737, the Supreme Court reiterated the same in paragraphs 36 and 37 as under :
"36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record.
36. In Chandrappa v. State of Karnataka, the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: (SCC p.432 para 42) "42....(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."
Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan v. Shera Ram."
15. Considering the above legal position and the factual aspects of the case, we are of the view that the trial Judge was fully justified in acquitting the accused-respondent.
16. Taking all the circumstances as it is, leave as prayed for by the State, is refused. Hence, the appeal is dismissed at the admission stage itself.
Date:13.1.2020 RKK/-
(Dinesh Pathak, J) (Pritinker Diwaker, J)