Allahabad High Court
State Of U.P. vs Head Constable Khadag Singh And Another on 28 July, 2023
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:152170Court No. - 83 Case :- GOVERNMENT APPEAL No. - 262 of 2021 Appellant :- State of U.P. Respondent :- Head Constable Khadag Singh And Another Counsel for Appellant :- G.A. Counsel for Respondent :- Sanjay Kumar Dwivedi Hon'ble Sanjay Kumar Pachori,J.
Order on Criminal Misc. Application under Section 378(3), Cr.P.C. No. 1 of 2021
1. Shri Moti Lal, learned A.G.A. for the State and Shri Sanjay Kumar Dwivedi, learned counsel for the respondent Nos. 1 & 2 are present.
2. Present Leave Application under Section 378(3) Cr.P.C. has been filed by the State against the judgment dated 9.4.2021 passed by Additional Chief Judicial Magistrate, Court No. 6, Ghaziabad in Criminal Case No. 2217 of 2017, arising out of Case Crime No. 1022 of 2009, under Sections 223 and 224 I.P.C., Police Station Kavi Nagar, District Ghaziabad by which the trial court acquitted the accused-respondents under Sections 223 and 224, IPC.
3. Brief facts of the case are that the first information report was lodged by Sub Inspector Sukhdev Singh of Delhi Police stating that on 3.8.2009 he along with the respondents and Head Constable 2290 Satpal, Constable 7603 Suresh, Constable 2409 Surendra, Constable 7773 Ramjeet, Constable 7780 Hira Lal, Constable Hari Pal, Constable 2460 Brijendra and Constable 7727 Dharamveer brought the under trial prisoner Rahimuddin and four others by Prison Van No. DL 1 VB-5273 for appearance to the District Court Ghaziabad. The respondents brought the under trial prisoner Rahimuddin for appearance in the court of Chief Judicial Magistrate from the Prison Van and the first informant along with other five police personnel brought the other two under trial prisoners Rukmesh and Sobharam for appearance in the other court. The respondents after completing the appearance of under trial prisoner Rahimuddin returned back to Prison Van with under trial prisoner where Constable Suresh, Constable Hari Pal, Constable Brijendra and Constable Dharamveer were also present with under trial prisoners Kishor and Saleem after their appearance in the court. When the first informant reached to the Prison Van at lunch time, the respondent Khadag Singh told him that under trial prisoner Rahimuddin has absconded.
4. In order to prove the charges against the accused-respondents, the prosecution examined as many as 7 witnesses namely PW-1 Jaipal Singh (Retired HCP), PW-2, S.I., Sukhdev Singh, PW-3 A.S.I. Hira Lal, PW-4 Head Constable Suresh Chand, PW-5 Station House Officer Anil Kumar, PW-6 Rajesh Chaudhary and PW-7 Ashok Kumar Sishodiya.
5. After examining the prosecution evidence, the statements of the accused-respondents were recorded under Section 313 of Cr.PC., wherein they denied the prosecution allegations and claimed to be tried.
6. The trial court after thorough examination of the prosecution evidence found that under trial prisoner Rahimuddin has been brought to the court in the custody of accused-respondents and from the court again he has been brought in the police van safely. PW-5 to 7 have clearly stated in their statements that accused-respondents have safely brought the under trial prisoner Rahimuddin to the C.J.M. court and after that in the police van. PW 3 & 4 have accepted that there was no fault of accused-respondents. From the evidence of prosecution witnesses, it is clear that the under trial prisoner Rahimuddin has been brought to the vehicle and at that time other under trial prisoners have also been come back in the vehicle. Therefore, on the basis of aforesaid consideration, the trial court was of the opinion that the charge under Section 223, IPC is not proved against the accused-respondents beyond reasonable doubt. On the basis of aforesaid consideration, the trial court acquitted the accused-respondents under Sections 223 and 224, IPC.
7. Learned Additional Government Advocate submits that the trial court without considering the evidence on record and after disbelieving the material evidence acquitted the accused-respondents. The judgment and order impugned cannot be sustained.
8. I have given thoughtful consideration to the submissions of learned A.G.A. and have carefully perused the judgment passed by the trial court.
9. Before we proceed to examine the weight of the submissions made on behalf of the State, it would be useful to notice the law with regard to the scope of power of the appellate court in interfering with the judgment of acquittal recorded by the trial court.
10. In Sampat Babso Kale & Anr. v. State of Maharashtra, (2019) 4 SCC 739, the Supreme Court observed as under: (SCC para 8 page 742) "8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in Chandrappa v. State of Karnataka1, laid down the following principles: (SCC, p.432, para 42) '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 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 findings of acquittal recorded by the trial court."
11. Keeping in mind the legal principles noticed above, now I will examine the weight of the submissions with reference to the evidence led by the prosecution and the findings returned thereon. Before that, at the outset, it may be observed that in the application seeking leave to appeal as well as in the memorandum of appeal, it has not been stated that the trial court has misread or misquoted the statement of the prosecution witnesses. I have to therefore, ascertain whether the findings of the trial court are sustainable or not. The thrust of the submission of the learned A.G.A. is that the trial court has not appreciated the evidence.
12. Having gone through the evidence, following facts emerged:-
(i) As per prosecution evidence, the respondents have brought under trial prisoner from the Prison Van to the court of Chief Judicial Magistrate and returned back with under trial prisoner and detained him in Prison Van;
(ii) PW-5 and PW-7 have stated that the respondents have safely brought the under trial prisoner Rahimuddin in the Prison Van after his appearance;
(iii) PW-3 and PW-4 have also accepted that there was no fault in the duty of the respondents.
12. Considering the facts and circumstances of the present case, and with reference to the principles governing the weighing the evidence, I do not find any factual or legal error in the assessment of the evidence by the trial court while acquitting the accused-respondents. Hence, keeping in mind the settled legal position that in an appeal against acquittal the appellate court should not interfere unless there are compelling reasons to differ with the finding of the trial court, I am of the considered view that no compelling reasons have been shown to me to grant leave to the State so as to entertain appeal against the judgment and order of acquittal passed by the court below. Consequently, the application seeking leave to appeal is rejected.
Order on Memo of Appeal
1. As a result, Government Appeal is dismissed.
Order Date :- 28.7.2023 T. Sinha (Sanjay Kumar Pachori, J.)