Allahabad High Court
State Of U.P. vs Salim And 4 Ors. on 28 January, 2020
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 20.1.2020. Delivered on 28.1.2020. Government Appeal No.506 of 2019 State of U.P. ---- Appellant Vs 1. Salim, 2. Sultan, 3. Rukhsana, 4. Sultan alias Chuha & 5. Dharamveer ---- Respondents For Appellant : Sri Amit Shinha, For Respondents : None. Hon'ble Pritinker Diwaker, J.
Hon'ble Shekhar Kumar Yadav, J.
Per: Pritinker Diwaker, J.
1. Heard on Admission.
2. Challenge in the present government appeal is to the judgment and order dated 20.08.2019 passed by Additional Sessions Judge, Court No. 5, Bulandshahr in Sessions Trial No. 643 of 2014 (State Vs. Salim and another) and in Sessions Trial No. 993 of 2014 (State vs. Rukhsana and others) acquitting all the respondents of the offence under Sections 364, 302 and 201 of IPC.
3. As per prosecution case, on 08.04.2014, deceased Dilshad was last seen in the company of accused persons at about 3:00 p.m as they were going towards village Pachauta. When he did not return for a long time, on 9.4.2014, Jamshed lodged a missing report. Further case of the prosecution is that after killing the deceased, his body was thrown behind the garden of mango trees near a petrol pump and on 7.5.2014, one skeleton was found outside the village, which was identified to be that of the deceased on the basis of piece of cloth found on the body of the deceased and the belt. On the basis of written report Ex. Ka.1 dated 23.4.2014, FIR, Ex.Ka.9 was registered against accused respondents Rukhsana, Salim and Sultan under Section 364 of IPC.
4. After investigation, charge sheet was filed against the respondents under Sections 364, 302 and 201 of IPC and while framing charge, the trial Judge has framed the charge against them for the said offence.
5. So as to hold accused persons guilty, prosecution has examined seven witnesses, whereas one defence witness has also been examined. 313, Cr.P.C. statement of accused persons was recorded in which, they pleaded their innocence and false implication.
6. By the impugned judgement, trial Judge has acquitted all the respondents of the offence as mentioned in para 1 of this judgement. Hence the present appeal by the State, assailing the acquittal.
7. Learned counsel for the appellant-State submits:-
that the trial judge has erred in law in acquitting the respondents.
8. We have heard Sri Amit Sinha, learned AGA for the appellant and perused the record.
9. Undisputedly while lodging the FIR, there is inordinate delay of about 15 days and the said delay has not been explained by the prosecution, as required under the law. The main piece of evidence which has been adduced by the prosecution against accused persons is evidence of last seen by PW-1. The evidence of last seen has been considered by the court below to be a weak evidence in respect of other corroborative piece of evidence. Even the identity of the dead body has not been proved by the prosecution as per requirement of law. No DNA test was conducted by the prosecution and the skeleton has been identified to be that of the deceased only on the basis of certain piece of clothes and the belt found on the body of the deceased. Even the motive part has not been proved by the prosecution.
10. Finding the evidence collected by the prosecution to be inadequate, the court below has acquitted all the accused-respondents. The view taken by the trial court is one of the possible view and it cannot be said to be perverse.
11. 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 Hon'ble 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 evnidence 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."
12. In Sudershan Kumar v. State of Himachal reported in (2014) 15 SCC 666 the Hon'ble 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."
13. 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.
37. 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."
14. Considering the above legal position and the factual aspect of the case, we are of the view that the trial Judge was justified in acquitting the respondents.
15. 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: 28.1.2020
RK/SY
(Shekhar Kumar Yadav, J) (Pritinker Diwaker, J)