Allahabad High Court
Anang Pal Singh vs State Of U.P. And Anr. on 13 July, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 42 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 1559 of 2015 Appellant :- Anang Pal Singh Respondent :- State Of U.P. And Anr. Counsel for Appellant :- Atul Pandey Counsel for Respondent :- Govt. Advocate,Jitendra Kumar Yadav Hon'ble Vivek Kumar Birla, J.
Hon'ble Vikas Budhwar, J.
Re: Criminal Appeal
1. No one is present on behalf of the appellant even in the revised call of additional cause list.
2. On perusal of the order sheet, almost on all occasions appeal is listed for admission and since 2013 itself either illness slip is sent or no one is present for the appellant. Accordingly, as observed in the order dated 9.5.2022, we proceed to consider the appeal on merits with the assistance of learned AGA.
3. Present Criminal Appeal under Section 372 Cr.P.C. has been filed against the judgement and order dated 11.9.2013 passed by the Additional District & Sessions Judge, Court No. 3, District Pilibhit in Sessions Trial No. 492 of 2013 (State vs. Mukesh Singh), arising out of Case Crime No. 201 of 2012, under Sections 376/511, 506 IPC, PS Sehra Mau, North District Pilibhit.
4. Prosecution story, in brief, on 20.6.2012 minor daughter Sandhya Devi aged about 11 years of the informant Anand Pal Singh was taken away by Seema (wife of the accused Mukesh) at her residence and thereafter she went to answers nature's call. In between accused Mukesh had taken her under the chappar (shed) by threatening her to kill her and raped her. Thereafter, the victim told her mother about strangulation and she was treated in the government hospital and when she did not get well, she told her mother about the commission of rape by accused Mukesh. Thereafter, her mother went to police station on 24.6.2012 and gave a written report for taking proper action against the accused. On that basis, a first information report being Case Crime No. 201 of 2012 was lodged on 24.6.2012 under Section 376, 506 IPC
5. In support of prosecution case, PW-1 Anagpal Singh (informant), PW-2 Uma Baksh, PW-3 Surendra Singh, PW-4 Km. Sandhya Devi, PW-5 Smt. Bitto Devi, PW-6 SI Rajendra Singh, PW-7 Dr. Anjali singh were produced and examined before the Court below. Medical report of the victim is Exhibit Ka-8. The Pathologist Report dated 25.3.2012 is also on record.
6. The judgement of acquittal was passed on the ground that the prosecution version has not been supported either by the oral evidence or by the medical report. As per prosecution case, the victim aged about 11 years old was taken by the wife of Mukesh Singh (accused respondent herein) to her residence and when she had gone out to answer the nature's call, the accused respondent Mukesh Singh committed rape on her. It was found that this story does not inspire confidence, as according to the medical report external and internal examination of the victim does not prove that any rape was committed on her. She was admittedly found minor aged about 12 years and was not having monthly cycle and her physique was not developed and there was no injury either external or internal on private parts and even the hymen was not torn and the finger test (as permissible at that time) also did not prove that rape has been committed or not. It was found that the allegation is that she was taken away by wife of the accused Mukesh on 20.6.2012, however, first information report was lodged after unexplained long delay of four days on 24.6.2012. It was also found that in her statement the victim herself had not supported the prosecution version and had submitted that she was being strangulated by accused Mukesh, therefore, she had levelled the allegation of rape against him. It was further found that she had admitted that she gave the statement as told by her mother. It was also found that there was a land dispute between the informant Anand Pal Singh and the accused Mukesh and they were not on even talking terms. Under such circumstances, it was found that the prosecution has failed to prove its case and judgement of acquittal was passed.
7. We have perused the record with the help of learned AGA.
8. In the memo of appeal, grounds to challenge the impugned judgement are that a too narrow and technical interpretation of the evidence has been taken and the same suffers from non-application of mind.
9. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
10. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities"
11. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against against an order of acquittal passed by a Trial Court in the following words:
"The power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ''possible view'. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."
12. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered. For ready reference, paragraphs 10, 11 and 12 are quoted as under:
"10. In the case of Babu vs. State of Kerala (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179, the Hon'ble Apex Court has observed that while dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Paragraphs 12 to 19 of the aforesaid judgment are quoted as under:-
"12. This court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more, the probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445).
13. In Sheo Swarup and Ors. King Emperor AIR 1934 PC 227, the Privy Council observed as under:
"...the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses...."
14. The aforesaid principle of law has consistently been followed by this Court. (See: Tulsiram Kanu v. The State AIR 1954 SC 1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu Mohton & Ors. v. State of Bihar AIR 1970 SC 66; Sambasivan and Ors. State of Kerala (1998) 5 SCC 412; Bhagwan Singh and Ors. v. State of M.P. (2002) 4 SCC 85; and State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755).
15. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under:
"(1) An appellate court has full power to review, re-appreciate 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."
16. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this Court re-iterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that an "order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
18. In State of Uttar Pradesh v. Banne alias Baijnath & Ors. (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances includes:
i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
ii) The High Court's conclusions are contrary to evidence and documents on record;
iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
v) This Court must always give proper weight and consideration to the findings of the High Court;
vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.
A similar view has been reiterated by this Court in Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
11. Hon'ble Apex Court in the case of Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 : 1996 SCC (Cri) 972 has observed that while deciding appeal against acquittal, the High Court has to first record its conclusion on the question whether the approach of the trial court dealing with the evidence was patently illegal or conclusion arrived by it is wholly untenable which alone will justify interference in an order of acquittal.
12. The aforesaid judgments were taken note of with approval by Supreme Court in the case of Anwar Ali and another vs. State of Himachal Pradesh (2020) 10 SCC 166, Nagabhushan vs. State of Karnataka (2021) 5 SCC 222, and Babu (supra) in Achhar Singh vs. State of Himachal Pradesh (2021) 5 SCC 543."
13. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
14. On perusal of record, we find that the victim herself has not supported the prosecution version and has stated that she was taken to the police station on the same day and was also examined in the hospital on the same day. She further admitted that the land dispute is going on between her father and the accused Mukesh and they were not in talking terms and did not visit each other whereas prosecution version is that the wife of accused Mukesh had taken the victim to her residence, which is not at all convincing. Moreover, in the first information report the time when she was taken away by her has not been mentioned, however, in the statement recorded under Section 161 Cr.P.C. the informant Anand Pal Singh had stated that the victim was taken by Seema, wife of the accused Mukesh at 4:00 o'clock, however, whether it is AM or PM has not been mentioned. On the other hand, in the cross-examination the victim had stated that she came back to her house from the house of accused Mukeh at about 7-8 AM and thereafter during day time she was taken to the police station by her parents and was got medically examined. It is not at all indisputable as to why so early in the morning at 4:00 o'clock even before day broke, how wife of accused had taken the victim to her residence and why and how the informant and mother of the victim had permitted the same, that too, when they were not on even talking terms. In her cross-examination, she had stated that she was wearing underwear and frock at the time of incident and she was wearing the same clothes when she was taken to the police station as well as to the hospital, however, the informant stated that she was wearing Salwar Suit on which he had seen blood but such clothes were not produced or recovered. The victim had further stated that her mother had told the meaning of rape and whatever she had sated her mother, had told her to state. In other words, whatever statement was made by her before the Court below was tutored by her mother. PW-5 Bitto Devi (wife of the informant) in her statement had stated that after return for 2-3 days the victim never disclosed about the commission of offence of rape on her. Formal witness PW-6 Sub-Inspector Rajendra Singh had stated that the informant told him that the clothes worn by the victim at the time of alleged rape had been washed as his daughter never disclosed about the commission of rape on her. He further stated that although he had asked for recording of statement of the victim under Section 164 Cr.P.C., however, the family members of the victim had refused to get the same done.
15. Relevant extract of Medical Examination Report (Exhibit Ka-8) of the victim conducted by Dr. Anjali Singh on 25.6.2012 at 9:35 am at District Hospital, Pilibhit is mentioned below:
"External Examination:- No marks of injury present on any part of body. Ht= 134 cm, Wt= 25 kg, Teeth= 14/14. Breast are not fully developed (are small in size), Axillary and pubic hairs absent. Menasure has not yet started.
Internal Examination:- No marks of injury present on the private parts. Hymen intact. Vagina does not admits even the little finger. No conjestion, no edema, no tenderness. No BPV at the time of examination. Two vaginal smear prepared, sealed and send to the pathologist of Distt Hospital Pilibhit for examination of dead and alive spermatozoa."
16. PW-7 Dr. Anjali Singh, Medical Officer, Zila Mahila Chikitshalya had supported the medical report and in her cross-examination she clearly stated that there was no injury whatsoever on the body of the victim and on the internal examination also she did not find any swelling, pain and redish or injury and her hymen was intact and even the little finger was not entering into. She had also certified that the victim was aged about 12 years. The Pathologist Report dated 25.3.2012 is also to the effect that no living or dead spermatozoa were found in the test slide of the victim.
17. In this background, we find that admittedly there was a delayed FIR (four days) and no convincing explanation was given for the same and and correct picture about information of commission of rape on the victim given to the parents has also not come forward as the mother in her statement stated that the victim had informed about commission of rape after 2-3 days whereas as per victim she was taken to the police station and hospital on the same day (i.e. 20.6.2012) for medical examination whereas admittedly the first information report was lodged after four days and this delay has not been explained properly so as to generate confidence regarding cause of delay in lodging the FIR. From the evidence available on record, it is clear that the victim was minor and in case had there being any rape committed on her she must have suffered some kind of injury on her body particularly oh her private parts whereas there was no such injury, which was categorically proved by the doctor who has conducted the medical examination, coupled with the fact that there is evidence of enmity between the parties due to the land dispute (situated in front of the home of the information). In such view of the matter, we find that a correct view has been taken by the court below, which does not require any interference by this Court by taking a different view.
18. Accordingly, present criminal appeal stands dismissed at the admission stage itself.
Re: Criminal Misc. Application (Leave to Appeal)
1. As already held by this Court in number of cases that leave application filed under Section 378(3) Cr.P.C. is not required in the appeal filed by the victim under Section 372 Cr.P.C. like the present appeal. A reference may be made to the order dated 4.8.2021 passed in Criminal Appeal U/S 372 Cr.P.C. No. 123 of 2021 (Rita Devi vs. State of U.P. and another). As such, the application for leave to appeal stands rejected as not maintainable and / or not required.
2. Since the office has already allotted regular number, there is no need to allot fresh regular number.
Order Date :- 13.7.2022 Abhishek