Allahabad High Court
State Of U.P. vs Sagir Khan on 14 November, 2024
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:178674-DB Judgement reserved on : 25.09.2024 Judgement delivered on : 14.11.2024 Court No. - 47 Case :- GOVERNMENT APPEAL No. - 498 of 2024 Appellant :- State of U.P. Respondent :- Sagir Khan Counsel for Appellant :- G.A. Hon'ble Rajiv Gupta,J.
Hon'ble Surendra Singh-I,J.
Per : Hon'ble Surendra Singh-I, J.
Heard Sri Anil Kumar Mishra, learned A.G.A. for the State/appellant and perused the trial court record.
2. The instant government appeal has been instituted u/s 378 Cr.P.C. along with application for leave to appeal against impugned judgement and order dated 05.06.2018 passed by Additional Sessions Judge, Court No. 5, Etawah in Special Case No. 40 of 2015, State Vs. Saghir Khan arising out of Case Crime No. 340 of 2015 u/s 354(A), 354(D), 376, 506 I.P.C. and Section 3/4, 11(V)/12, POCSO Act, Police Station- Ikdil, District- Etawah.
3. By the impugned judgement and order, the trial court acquitted the accused-respondent, Saghir Khan from the charge u/s 354(A), 354(D), 376, 506 I.P.C. and Section 3/4, 11(V)/12, POCSO Act.
4. Learned A.G.A. for the State-appellant has submitted that on the basis of oral and documentary evidence, the prosecution had proved the charge beyond reasonable doubt against the accused/respondent, Saghir Khan but the trial Court without considering the evidence in right perspective, acquitted the accused-respondent from the charge framed against him.
5. Learned A.G.A. has next submitted that trial Court has acquitted the accused-respondent on the ground of minor and insignificant contradictions in the statements of witnesses.
6. Learned A.G.A. has further submitted that the impugned judgment and order passed by the trial Court is based on surmises and conjectures and therefore, the same is liable to be set-aside.
7. Learned A.G.A. has next submitted that according to the High School certificate, the age of the prosecutrix/victim at the time of the occurrence is 13 years 4 months and she was minor. The trial court without any legal justification and evidence refused to consider the victim as minor and has considered her to be major.
8. The prosecution case in brief is that the first informant Vinod Kumar @ Pappu, resident of Krishna Nagar Colony, Police Station- Ikdil, District- Etawah, submitted written report dated 03.07.2015 (Ext.Ka.1) to the S.S.P. Etawah stating that he carries on the work of printing press in his residence. Accused Saghir Khan, son of Amir Khan, resident of Balveer Nagar, Police Station- Kotwali used to work as a labourer in his press. He developed confidence in the first informant and started entering his house. One day, when the first informant had gone outside for some work, accused Saghir Khan downloaded from the computer pictures and other details of his niece/victim. When the first informant came to know of the misdeeds of the accused, he was sacked from his job. The accused started blackmailing his niece through his mobile nos. 9045723048, 9045475433 and 9037377573 to the mobile nos. 8439325380 and 9460640275 of his niece/victim. On 02.07.2015, at 10.30 a.m. when the first informant was working at his shop, accused-respondent, Saghir Khan along with unknown persons arrived there and started threatening him that he may handover his niece to him and he will keep her as his wife. He also threatened that he will spoil her face to such an extent that she will not be recognized by others. Due to fear of accused, his niece/victim is not able to go outside her house.
9. On the basis of written report of the first informant, on 04.07.2015 at 11.05 o'clock, Case Crime No. 340 of 2015 u/s 354(A), 354(D), 506 I.P.C. was registered against the accused and the registration of the case was entered into the G.D. of the concerned police station (Ext.Ka.4).
10. For the first time, the victim in her statement u/s 164 Cr.P.C. recorded on 09.07.2015 had stated that on the day of the incident as there was much work, she was working in the night in the printing press of her uncle with the accused-respondent. At 2 o'clock in the night, accused asked her to bring tea. When she brought tea, he asked her to bring water. When she had gone to bring water, he mixed some intoxicating substance in her tea. After taking the tea, she felt dizziness and lied on the ground. The accused-respondent awakened her at 3-4 o'clock. While she was lying unconscious on the floor of the printing press, the accused had committed rape with her. On being awakened, she felt that the accused had committed wrongful act with her genital organ. The accused-respondent clicked her obscene photos on the mobile and told her that if she complained to anyone, he will make the photos viral and also threatened to kill her family members.
11. On the basis of statement u/s 164 Cr.P.C. (Ext.Ka.2) of the victim as well as her High School marksheet (Ext.Ka.3) in which her date of birth is mentioned as 18.12.1999, Section 376 I.P.C. and Section 3/4, 11(V)/12, POCSO Act was added to the case crime number.
12. The victim was medically examined on 08.07.2015 at 12.45 p.m. in District Women's Hospital by Dr. Jyoti Singh who prepared her medical examination report (Ext.Ka.5). In the medical report, it is mentioned that height of the victim is 157 cm and her weight is 45 kg. At the time of her examination, her hymen was old, torn and healed. Her vaginal smear was taken and sent for pathological examination. The pathological examination report of the victim (13Ka/2 and 13Ka/3) is available in the trial court record but it has not been proved.
13. The case was investigated by S.I. Rajesh Kumar Tiwari who visited the place of occurrence, prepared site plan (Ext.Ka.6), recorded the statements of the witnesses and after investigation submitted charge-sheet (Ext.Ka.7) u/s 354(A), 354(D), 376, 506 I.P.C. and Section 3/4, 11(V)/12, POCSO Act against accused Saghir Khan. On 02.09.2015, the trial court framed charge u/s 354(A), 354(D), 376, 506 I.P.C. and Section 3/4, 11(V)/12, POCSO Act against the accused who denied the charge and claimed to be tried.
14. To prove the charge, the prosecution examined the first informant P.W.1 Vinod Kumar alias Pappu, P.W.2 prosecutrix/victim, P.W.3 Lady Constable Pinki Devi, P.W.4 Medical Officer Dr. Jyoti Singh and Investigating Officer P.W.5 S.I. Rajesh Kumar Tiwari.
15. On 08.02.2017, the trial court recorded the statement of the accused u/s 313 Cr.P.C. The accused stated that the witnesses of fact, P.W.1 Vinod Kumar alias Pappu and P.W.2 prosecutrix/victim have given false statement against him. He has also stated that P.W.3 Lady Constable Pinki Devi has wrongly proved the carbon copy of the G.D. (Ext.Ka.4). He has also stated that P.W.4 Dr. Jyoti Singh has wrongly proved the medical report of the victim (Ext.Ka.5). The accused also stated that the Investigating Officer P.W.5 S.I. Rajesh Kumar Tiwari has done false investigation. The accused further stated that he used to work as a labourer for the first informant. On his making demand for wages, the informant registered a false case against him.
16. In order to appreciate the controversy in question and determine the correctness of the conclusions recorded by the trial court, it would be apposite to discuss the evidence adduced by the witnesses examined by the prosecution.
17. The first informant P.W.1 Vinod Kumar alias Pappu who is the uncle of the victim has proved the facts given by him in his written report (Ext.Ka.1). He has proved the written report (Ext.Ka.1) submitted by him to the S.S.P. Etawah. He has stated that her niece's date of birth is 18.12.1999 and she is a minor. He has also deposed that two days after registration of the F.I.R., her niece was weeping and informed him that the accused had given her tea after mixing something in it from which she became intoxicated and he committed rape on her. He threatened her that he will make her obscene photos viral. He threatened the informant that he should settle the matter with him.
18. P.W.1 Vinod Kumar alias Pappu stated in his cross-examination that two years before the incident, the victim came to him and she was studying there. Earlier, the victim had passed her High School examination from school situated in Ahoripur, Etawah. While studying with him in his house, she was doing intermediate from Suman Vidyapeeth situated in her colony. He used to run a printing press in his house. From one year before the incident, accused Saghir was working in his printing press. After registration of the F.I.R., he was sacked as an employee. Saghir was working as a labourer on the wage of Rs.200/- per day. The accused Saghir has threatened the informant that he should handover the victim, his niece. After threatening the victim, he was blackmailing the victim on the ground that he has her naked photos. He had downloaded the photos of the victim from the computer kept in the press. When the accused started blackmailing her niece, he sacked him from his job on 15.06.2015. The victim had told him that she has an apprehension that if she goes out of her home, the accused may commit some untoward act against her.
19. P.W.2 prosecutrix/victim has stated in her evidence that her uncle's Neelam Press was running in his house at Krishna Colony, Pakkabagh. She stayed with him and was studying in 12th class. As she knew operating computer, in her spare time, she helped her uncle in the printing press. On the day of occurrence during marriage season, she was working at 2 a.m. In the printing press, Saghir was also working there. He asked her to bring tea. When she brought tea, he asked her to bring water. When she went to bring water, Saghir mixed something in her tea. After consuming the tea, she felt dizziness and fell on the floor. At 3-4 o'clock in the morning, accused Saghir awakened her and he committed rape on her. After she awoke, accused showed her obscene photos on his mobile and told him that if she complained to anyone, he would make these photos viral. He also threatened that he will throw acid on her face and kill her family members. On 03.05.2015 when she was going to her village- Jagmohanpur on Magic vehicle, he alighted her from the vehicle and after slapping her, compelled her and forcibly carried her to Baldeo Hotel. There he clicked her obscene photos with himself. He carried her at different places in the city on motorcycle and left her at the Bakevar tempo stand. From there, she went to her village- Jagmohanpur. When she returned from her village, accused Saghir threatened her that if she complained against him, he will make her photo viral from his mobile. Then she informed about the occurrence to her uncle (phufa), the first informant.
20. P.W.2 victim proved her statement u/s 164 Cr.P.C. (Ext.Ka.2). At the time of recording of her evidence, she had brought the original High School marksheet. She proves and files the copy of marksheet (Ext.Ka.3). She also deposes that on 02.07.2015, the accused came with 3-4 persons and threatened her uncle and asked him to give her custody to him as he will keep her as his wife. He also threatened that if it is not done, he will throw acid on her and get her defaced so that she cannot be recognized.
21. P.W.2 victim stated in her cross-examination that she had three other sisters and two brothers. She is the eldest. The age of the youngest sister is three years. At the age of three years, she had taken admission in Siddharth Bal Shiksha Sansthan in Class 1. She has denied that her date of birth 18.12.1999 mentioned in the marksheet is false. At the time of the occurrence, she was doing intermediate from Lalaram Inter College, Champanir. She deposed that her age shown as 20 years in the medical report is false. She has passed her High School examination at the age of 13 years 4 months and her intermediate examination at the age of 15 years 4 months. On 02.05.2015 as there was much work, therefore, she was working in the printing press as helper. Saghir did not commit any incident with her in the night of 01/02.05.2015. At 2 a.m., when the accused committed the incident, her uncle was not there. He had gone to sleep. She denied that she had given any statement to the Investigating Officer that on the behest of the accused on 02.05.2015 at 2 p.m., she had mixed sleeping pill in her uncle and aunty's food. She does not know why the Investigating Officer has written such statement. P.W.2 victim has stated that after the accused had left her at the Bakevar tempo stand, she went to her village in Jagmohanpur on tempo but due to fear of the accused, she did not tell her parents about the incident. She further stated that in the printing press of her uncle, only her uncle and accused Saghir Khan used to work but when the work increased, she also used to help in the printing press. In the night at 2 o'clock, accused Saghir committed the incident with her. That night her uncle was not working there. He had gone to sleep. When she drank the tea given by accused Saghir, she experienced intense dizziness and she could not enter into the house and fell there unconscious. She woke up when accused Saghir awakened her. Then she came to know that accused had committed wrongful act (गलत काम) with her. When she woke up, she was still feeling dizziness. She continued to have dizziness for 10-15 minutes after she woke up. Thereafter, she entered into her house. Since the accused had threatened her to refrain from telling anyone about the occurrence, she did not tell her aunt about the incident. After the 3rd day of the incident, she went to her village. There she stayed for one month. Thereafter, when her uncle made a phone call and told her to come to Etawah then she returned to her uncle's home. On the next day of returning there, accused Saghir threatened her again. Then on that day, she told her uncle about the occurrence committed by accused Saghir with her. She denied that as her uncle had not paid 8 days salary to the accused, therefore, his uncle had lodged a false report against the accused.
22. P.W.3 Lady Constable Pinki Devi has proved by her evidence the chik report (Ext.Ka.3) which was modified on 04.07.2015 and the carbon copy of G.D. regarding Case Crime No. (Ext.Ka.4). She denied that chik F.I.R. and G.D. was written ante-timed.
23. P.W.4 Dr. Jyoti Singh who was posted on 08.07.2015 as Medical Officer in District Women's Hospital, Etawah has proved the medical report of the victim (Ext.Ka.5). She has stated in her cross-examination that she did not find any symptom of rape on the person of the victim.
24. Investigating Officer P.W.5 S.I. Rajesh Kumar Tiwari has given evidence about recording of the statement of prosecution witnesses. He has proved the site plan (Ext.Ka.6) and charge-sheet (Ext.Ka.7) filed against the accused Saghir Khan u/s 354(A), 354(D), 376, 506 I.P.C. and Section 3/4, 11(V)/12, POCSO Act.
25. P.W.5 S.I. Rajesh Kumar Tiwari has stated in his cross-examination that the victim had told him that when she felt dizziness after consuming tea, she fell in the room where the printing press was situated and remained lying on a mat. Thereafter, she did not know what happened with her.
26. We have carefully gone through the statements of the witnesses and the documentary evidence filed by the prosecution.
27. The charge which had been framed against the accused is that in the night of 01/02.05.2015 at 2 o'clock at the printing press situated in the house of the informant, accused-respondent, Saghir Khan mixed the tea of informant's niece/victim aged 16 years, with some intoxicating substance and committed rape with her. He made indecent and obscene request to the victim with sexual intention. He obtained obscene photos of the victim and threatened to make it viral on the internet. The accused also threatened her that he will kill her and her family members if she ever complained to anyone about the incident.
28. P.W.2 victim has stated in her evidence that since the accused had threatened her, she did not inform about the incident to her aunt. When she visited her village- Jagmohanpur, she did not inform her parents about the incident. On her return from her home to his uncle's house, when the accused-respondent again threatened her to kidnap her and keep her as his wife, she informed her uncle, the first informant, about the incident who submitted the written report on 03.04.2015 to S.S.P., Etawah and the F.I.R. was registered thereafter. P.W.2 victim and P.W.1 Vinod Kumar has given evidence in support of the prosecution case. As per the High School marksheet of the victim (Ext.Ka.3), her date of birth is 18.12.1999 and at the date of commission of alleged offence, she was below 16 years and she was a child u/s 2(d) of the Protection of Children from Sexual Offences Act, 2012.
29. From the perusal of the impugned judgement and order, it transpires that the trial court has accepted the arguments of the learned counsel for the defence that in the medical examination of the victim, her age was found to be 20 years and her date of birth mentioned in the High School certificate is false. The trial court has considered the victim to be a major and has concluded that provision of POCSO Act does not apply to the case. For the offence u/s 3/4 as well as 11(V)/12 of POCSO Act, consent of the victim is immaterial and if the ingredients of the offence is proved, it shall be concluded that offence has been committed by the accused-respondent.
30. From the perusal of the trial court record as well as statement of witnesses, it transpires that the victim was medically examined by P.W.4 Dr. Jyoti Singh at District Women's Hospital, Etawah on 08.07.2015 at 12:45 o'clock. P.W.4 Dr. Jyoti Singh prepared the medical report (Ext.Ka.5). In the medical report of the victim, P.W.4 Dr. Jyoti Singh has not mentioned the age of the victim. The victim was not referred to the radiologist for determining her medical age by taking x-ray of her knee and ankle joint.
31. Section 24 r/w 19 provides the provisions regarding determination of the age of the victim. The Hon'ble Apex Court in P. Yuvaprakash Vs. State Rep. By Inspector of Police, 2023 SCC Online SC 846 has held regarding presumption regarding age of the victim u/s 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 which is as follows :-
"94. Presumption and determination of age. - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining -
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
From perusal of Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, that first preference for determining the age of the victim shall be her school leaving certificate and matriculation certificate. If it is not available then the birth certificate or records to that effect issued by local or municipal authority is to be considered and only if all the documents mentioned in 94 (1) and (2) are not available then her age will be determined by ossification test or any other latest age determination test conducted on the order of the committee or board.
32. Since High School certificate of the victim was available, the Committee or Board did not recommend for determination of the age of the victim by ossification test or any other latest age determination test. But the trial court appreciated the evidence on record on the presumption that the victim was of more than 18 years of age.
33. Therefore, the finding rendered by the trial court regarding the age of the victim that the victim is a major is perverse vis-a-vis evidence on record. 34. From careful perusal of the evidence on record, it is disclosed that the first informant P.W.1 Vinod Kumar @ Pappu who is the uncle (phufa) of the victim submitted a written report on 03.07.2015 (Ext.Ka.1) to S.S.P., Etawah that accused Saghir Khan is a labour in his printing press. One day, when the first informant had gone outside for some work, the accused downloaded pictures and other details of his victim/niece from his computer. When the first informant came to know of the misdeeds of the accused, he sacked the accused from his job. The accused started blackmailing his niece through his mobile by sending message to her niece/victim. On 02.07.2015 at 10.30 a.m. when the first informant was working in his shop, accused-respondent along with other persons arrived there and asked him that he may handover his niece to him and he will keep her as his wife. He also threatened that he will spoil her face to such an extent that she will not be recognized by others.
35. The first informant lodged a written report on 03.07.2015 alleging that the accused-respondent, Saghir Khan and some unknown persons had visited his shop on 02.07.2015 and threatened him that if he did not handover her niece to him to keep her as his wife, he will deface the face of her niece beyond recognition. In the first information report, there is no mention of the alleged incident of rape in the morning of 01/02.05.2015 committed by the accused with his niece/victim.
36. The act of rape committed by the accused-respondent with the victim was first disclosed in her statement u/s 164 Cr.P.C. which was recorded on 09.07.2015 i.e. two months after the alleged incident of rape. P.W.2 victim has stated in her evidence that since the accused-respondent had threatened to cause injury to her and her family members, she had not disclosed about the incident dated 01/02.05.2015 to her uncle. In the statement of P.W.2 victim, it has been mentioned that after 3rd day of the incident, she had left her village- Jagmohanpur. During this period also, victim did not disclose the incident to her uncle. She has stated in her evidence that while she was going to her village, in the way, the accused-respondent stopped her and carried her to Baldeo Hotel. There he clicked her obscene photos with himself. He carried her at different places in the city on motorcycle and left her at the Bakevar tempo stand. The accused-respondent threatened the victim that if she complained against the accused to anyone, he will make her obscene photos viral. From there, she went to her village- Jagmohanpur where she stayed for about one month. During this period, when the accused-respondent was moving along with the victim, she did not raise any alarm and complained to the passers-by that she was forcibly being carried by the accused-respondent. Even during the period of one month when she stayed at her village, she did not inform about the incident to her parents. When she was in her village, her aunt asked her on phone to return back to her uncle's house. Then she returned to her house but during the period of one month, she did not inform her parents about the incident. Even when the accused-respondent threatened her uncle, she did not inform about the offence committed by the accused-respondent on 01/02.05.2015. The first informant has lodged the F.I.R. only when he was threatened regarding his niece on 02.07.2015. Even in this F.I.R., there is no mention of the alleged incident of rape dated 01/02.05.2015 committed by the accused with the victim.
37. The victim had stated in her evidence that since the accused-respondent had threatened her to cause injury to her and her family members, she did not inform about the incident to her uncle or her parents.
38. It is settled law that in the case of sexual offence, delay in loding the F.I.R. does not adversely affect the prosecution case if there is reasonable explanation for the delay. The victim not informing her uncle or parents even after two months of the incident raises serious doubt about the veracity of the incident.
39. Thus for the first time, the victim disclosed about alleged incident of rape dated 01/02.05.2015 committed by the accused-respondent with her after the gap of more than two months. In her statement u/s 164 Cr.P.C., she has only stated that after consuming the intoxicating tea, she laid herself on the ground and became unconscious. When the accused-respondent awakened her at 3 a.m., she felt that the accused had done some misdeed with her genital organ. From the statement of victim, it cannot be inferred that the accused committed rape with her on the night of 01/02.05.2015 between 2 a.m. - 3 a.m.
40. In her medical report dated 08.07.2015 (Ext.Ka.5) which has been proved by P.W.4 Dr. Jyoti Singh, it has been mentioned that there was no injury on her person and no definite inference can be drawn about the rape being committed on her.
41. P.W.2 victim had given similar statement in her evidence about the incident as she had given in her statement u/s 164 Cr.P.C.
42. According to medical examination report dated 08.07.2015 of the victim prepared by P.W.4 Dr. Jyoti Singh, it appears that slide of her vaginal swab was sent for pathological examination for determining the presence of spermatozoa in it. The pathological report dated 09.07.2015 about the slide of vaginal swab of the victim has been filed with the charge-sheet but this document has not been proved by P.W.4 Dr. Jyoti Singh when she was examined in Court. Therefore, this report cannot be taken into consideration in favour of prosecution or the defence.
43. The statement of the victim that after the accused had committed wrong act during her remaining unconscious, he woke her up at 3 a.m. and threatened her, appears unnatural that if the accused had committed rape on the victim, he will remain there for about one hour and leave the place after awakening and threatening the victim. In such circumstances, the natural conduct of the accused will be to leave the place after committing the offence before the victim awakens.
44. P.W.1 Vinod Kumar @ Pappu, uncle (phufa) of the victim has given his evidence only regarding the obscene photos of the victim downloaded by the accused from his computer and blackmailing the victim after threatening that he will make these photos viral. The F.I.R. does not mention about the alleged offence of rape committed by the accused with the victim. The statement given by P.W.1 Vinod Kumar @ Pappu about the accused-respondent committing rape with her niece and forcibly alighting the victim from a Magic vehicle on 03.05.2015, taking her at different places in the city and obtaining obscene photos of her with him, is based on the information given by the victim to the first informant. P.W.1 Vinod Kumar @ Pappu. P.W.1 is not the eye witness of this incident. The alleged obscene photo taken by the accused-respondent with the victim has not been filed with the charge-sheet and has not been exhibited during trial by the evidence of the witnesses. Therefore, only on the basis of the statements made by the first informant and the victim about the accused taking obscene photos with the victim and threatening her to make it viral, cannot be said to be proved.
45. Considering the inordinate delay in lodging of the F.I.R. without proper explanation, inconsistencies and contradictions in the statement of prosecution witnesses particularly regarding rape of the victim, the victim deposing about the incident of penetrative sexual assault u/s 3/4 of POCSO Act on the basis of her assumption, the alleged incident not being corroborated by the medical evidence, facts and circumstances of the case and the accused not fleeing from the place of occurrence after committing the offence, we are of the considered view that prosecution has failed to prove the charge under Sections under Sections 376, 506 I.P.C. against the accused-respondent.
46. The said finding recorded by the trial court does not suffer from any perversity, illegality or misappreciation of the evidence on record.
47. The law relating to reversal of the judgment of the trial court by the appellate criminal court is well settled by a catena of decisions pronounced by Hon'ble Apex Court.
48. In State of U.P. Vs. Pappu, Government Appeal No. 483 of 2019, it has been held by the Hon'ble High Court Allahabad that :-
11. .......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 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."
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, (2007) 4 SCC 415 this Court held: (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.
49. After surveying of relevant decisions regarding the scope of intervention by the appellate court against the judgement of acquittal of the accused, the Apex Court has held in paragraph nos. 25, 26, 27, 28 and 29 of Mallappa and Others Vs. State of Karnataka, (2024) 3 SCC 544 as follows :
25. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
26. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the trial court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The "two-views theory" has been judicially recognised by the courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eye of the law.
50. Thus, it can be concluded that the scope of interference by an appellate court for reversing the judgement of acquittal recorded by the trial court in favour of the accused has to be exercised within the corners of the following principles :-
(i) that the judgement of acquittal suffers from patent perversity;
(ii) that the same is based on a misreading/omission to consider material evidence on record.
51. The appellate court, in order to interfere with the judgement of acquittal, would have to record pertinent findings on the above factors, if it is inclined to reverse the judgment of acquittal rendered by the trial court.
52. From the above discussion of the evidence on record, we are of the considered opinion that the finding of acquittal rendered by the trial court is a reasonable and plausible one and it cannot be said to be perverse, illegal or not plausible. We are not inclined to grant the State leave to appeal under Section 378 (3) Cr.P.C. Thus, leave to appeal stands refused.
53. Consequently, the present government appeal filed by the State has no force and is accordingly dismissed.
54. The trial court record be remitted back forthwith.
55. Let a copy of this judgement and order be forwarded to the court concerned along with trial court record for information and necessary compliance.
Order Date :- 14.11.2024 KS