Allahabad High Court
State Of U.P. vs Chandrabhan And Others on 18 November, 2019
Bench: Vipin Sinha, Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 51 Case :- GOVERNMENT APPEAL No. - 1687 of 1998 Appellant :- State of U.P. Respondent :- Chandrabhan And Others Counsel for Appellant :- G.A. Hon'ble Vipin Sinha,J.
Hon'ble Umesh Kumar,J.
Heard learned AGA Sri Patanjali Mishra, on the application seeking leave to appeal as well as the appeal itself against the judgment and order dated 22.01.1998, passed in Session Trial No.838 of 1991, by means of which all the accused persons have been acquitted for the offence punishable under Sections 323, 326, 384, 406, 498-Ka IPC and Section 3/4 D.P. Act, Police Station Rohania, District Varanasi.
Learned A.G.A. has strongly pressed the application with the contention that the prosecution evidence has not been appreciated by the court concerned in its correct perspective. He has submitted that the finding of acquittal recorded by learned trial judge is against the evidence on record. He next submitted that the learned trial judge has committed a patent error of law and ignored the material evidence on record while holding that the prosecution had failed to prove the charge against the accused respondents beyond the reasonable doubt.
We have perused the impugned judgment, perusal of which shows that the concerned court has recorded categorical findings after perusing the entire evidence on record.
A perusal of the record shows that with regard to an incident said to have taken place on 06.01.1991 at about 4.00 P.M., an FIR was lodged on 09.01.1991, by the brother of the girl namely Ajay Kumar. It has not been disputed that on 06.01.1991 an incident has taken place, which as per the FIR was to the effect that the girl namely Pushpa Devi (who was examined as P.W.-3) was assaulted by her in-laws and an attempt was made to burn her by putting her on fire. With regard to the said incident it appears that an information was given to the father of the girl, who had arrived at the house of the girl and got the girl medically examined, and thereafter the FIR was lodged.
Perusal of record also shows that the court concerned has recorded categorical findings to the effect that with regard to an incident dated 06.01.1991, the FIR was lodged on 09.01.1991 and this delay has not even been explained. As far as the examination of the witnesses are concerned, the court again has recorded the categorical findings that the wife Pushpa Devi has made a categorical statement that at the time of occurrence, number of persons had arrived at the spot including neighbours, however, it remains undisputed that none of the persons/ neighbours have been produced as witnesses are examined. The P.W.-3 namely Pushpa Devi in her statement has categorically stated that "उसके पति ने लालटेन से मिट्टी का तेल छिड़का और उसके जेठ झिंगन से दियासलाई लेकर आग लगा दी। अ0 सा0 3 भागकर छत पर पहुंची, जहाँ से गाँव के सभी लोग देख रहे थे। तब उसकी जेठानी और देवर बृजभान ने उसकी साड़ी खींचकर आग बुझायी। जिरह में कहा कि दहेज की बात ससुरा वाले उसी से कहते थे। उसके पिता से नहीं कहते थे। दहेज के बाबत उसने कोई बात अपने पिता जी को नहीं दिया। रिपोर्ट उसके भाई अजय ने उसके और उसके पिता के बोलने पर लिखी। अ0सं0 3 ने आगे कहा कि जब वह अपने ससुराल से मायके आ गयी तो उसके बाद अपने पिता और दरोगा जी के साथ गंगापुर नहीं गयी थी। उसने दरोगा जी को यह ब्यान दिया कि उसकी साड़ी को देवर ब्रजभान और जेठानी ने खींचकर बुझाया। यह बयान सही था जब आग बुझ गयी तो जेठ, सास और सारे लोग ऊपर आये। दूसरी घटना के बारे में कहा कि मारपीट कमरे में नहीं हुयी। बल्कि मारपीट ऊपर हुयी और अ0सं0 3 हस्ताक्षर करा लिये गये। आगे कहा कि दीवान जी से पूछकर उसके पिता जी ने रिपोर्ट लिखायी थी। यह रिपोर्ट उसके पिता जी ने लिखी थी। स्वयं कहा कि उसके भीड़ ने रिपोर्ट लिखी और पिता जी को दे दिया आग लगने के आधा घंटा बाद उसके पति उसे ले आये। तब सारे अभियुक्त नीचे थे। उसके पिता को अभियुक्तों ने घसीट घसीट कर नहीं मारा था। जब कि उसने दरोगा जी को बताया था कि अभियुक्तों ने उसके पिता को खींचकर घसीट कर मारा पीटा था। मारपीट में अ0सा0 उर्फ सिर में चोट आयी थी। यह चोट डाक्टर को नहीं दिखायी।"
In the statement of P.W.-3 namely Pushpa Devi, it has also come that she has never ever made any complaint about the demand of dowry nor has written any letter. It has also come in her statement that on the date when the injuries were caused, the doctor was not consulted. We have also perused the injury reports which shows that injured have received burn injuries on their stomach.
It may also be appreciated that as far as the things which were said to have been recovered i.e. Sari, Blouse etc., they were never produced before the court concerned. No Lantern or any 'Dhibari' was recovered from the place of occurrence.
In the statement under Section 313 Cr.P.C. all the accused persons have taken defense that they have been falsely implicated in the present case. That the father of the girl himself had taken away the girl on 07.01.1991, itself in the presence of Chairman Sahab. It has also been appreciated that no independent witnesses i.e. the neighbors, who as per the version of the P.W.-3, themselves have arrived at the spot, were examined.
The contention is that the defense as taken before the court concerned was that the wife was in a relationship with one of the neighbor namely Om Prakash. The said Om Prakash had written a letter to the wife and while she was reading the latter, she was caught red handed by the Jethani, who had made a complaint to the father of the girl and on account of some disgust and ashamed, the wife tried to commit suicide, and the family of her in-laws had no role to play in the controversy in issue and this FIR has been lodged, after much consultation and after almost two days of the alleged incident.
The court concerned after considering the facts and circumstances of the case, arrived at the following conclusions:-
"ऐसा प्रतीत होता है कि 7-1-91 की घटना के समय बहुत से लोग थे। किन्तु उनमें से किसी गवाह को अथवा ससुराल के पड़ोस के साक्षियों को पेश नहीं किया गया जिससे यह साबित कराया जा सकता था कि पुष्पा देवी को दहेज के लिए प्रताड़ित किया गया और उसके साथ दुर्व्यवहार हुआ। अन्य कारण भी है। पुलिस ने अधिग्रहित वस्तुओं को न्यायालय में पेश नहीं किया। अन्वेषक अधिकारी ने गवाहों के ब्यान विलम्ब से लेख बद्ध किये। उन्होंने चेयर मैन जैसे महत्पूर्ण गवाह का ब्यान लेख बद्ध नहीं किया और वह कहा कि स्थल चित्र तैयार करते समय वादी और उसकी पुत्री को 5.3--.91 को गंगापुर लाया गया था। जब कि अ0सा0 3 ने कहा कि वह घटना के बाद गंगापुर नहीं गयी। उस लालटेन को पुलिस ने कब्जे में नहीं लिया जिसे मिट्टी का तेल छिड़का गया। मेरी राय में अन्वेषण सही नहीं हुआ और जब अभियुक्तों के विरुद्ध एक सामान्य अभिकथन किया गया तो न्यायालय स्वाभाविक रुप से उन सभी अभीयुक्तों को अस्पष्ट साक्ष्य के आधार पर दोष सिद्ध करने में हिचकता है। अभियुक्तों का दोष युक्तियुक्त सन्देह से परे साबित नहीं हो पाया है। उनको दोष सिद्ध कर देना निरापद न होगा और उन्हे सन्देह का लाभ दिया जाना चाहिए।"
At this stage reference has been made to a recent judgment of the Apex Court, rendered in the case of "Mohinder Singh Vs. State of Punjab", 2018 18 SCC 540, wherein the Apex Court had laid down the parameters, with regard to interference in an appeal against acquittal by the appellate court. The relevant portion of the order is quoted herein below:-
"15. In an appeal against acquittal, the High Court will not interfere unless there are substantial and compelling reasons to reverse the order of acquittal. The mere fact that on reappreciation of evidence the appellate court is inclined to arrive at a conclusion which is at variance with the trial court, the same cannot be the reason for interference with the order of acquittal. After referring to various judgments in Chandrappa and others v. State of Karnataka (2007) 4 SCC 415, this Court summarised the general principles regarding the powers of the appellate court while dealing with an appeal against the order of acquittal and held as under:-
"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 finding of acquittal recorded by the trial court." The same principles were reiterated in number of judgments viz. Jugendra Singh v. State of Uttar Pradesh (2012) 6 SCC 297, State of Uttar Pradesh v. Ram Sajivan and Others (2010) 1 SCC 529, Bhaskar Ramappa Madar and others v. State of Karnataka (2009) 11 SCC 690, Chandrappa and others v. State of Karnataka (2007) 4 SCC 415 and other judgments."
As regards the exercise of the powers of the appellate court, the Supreme Court in Sanmwat Singh vs. State of Rajasthan reported in 1961 SC 715 has laid down three broad principles:
(I) Appellate Court has full powers to review the evidence upon which the order of acquittal is found it.
(ii) The Principles laid down by the judicial committee of the privy council in Sheo Swaroop vs. King Emperor (AIR 1934 PC) page 227 afford a correct guide for the appellate court approach to a case in disposing of such an appeal. These principles require that the appellate court should give proper weight and consideration to such matters as, the view of the trial Judge as to credibility of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to the benefit of doubt, and the slowness of an appellate court in disturbing the findings of fact arrived at by a Judge who had the advantage of seeing the witnesses. These matters and guidelines are the "Rules and Principles" in the administration of justice.
(iii) The appellate court in coming to its conclusion should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal, but should also express those reasons to hold that the acquittal was not justified; Damodar Prasad Chandrika Prasad vs. State of Maharashtra 1972 (1) SCC 107.
It follows as a corollary from the above, that if two views of the evidence are reasonably possible, one supporting an acquittal and the other indicating conviction, the appellate court should not interfere merely because it feels, that it would, sitting as a trial court have taken the other view. Two views and conclusions cannot be right and one in favour of the acquittal of the accused must be preferred over the other because our criminal jurisprudence demands that the benefit of doubt must prevail. If, two reasonably, probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of reasonable doubt. Even otherwise we find that the consistent legal position as laid down by the Apex Court with regard to the scope of interference in an appeal against acquittal is to the effect that until or unless it can be pointed out that there is some illegality or perversity with the findings as have been recorded by the court concerned or until or unless it can be shown that the view taken by the court concerned while writing a verdict of acquittal is perverse or not possible, the appellate court ought not to interfere.
"Suffice it to say that the Apex Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and
(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
Regard may also be had to the consistent legal position with regard to the scope and interference by the High Court in the judgement and order of acquittal. The Apex Court in the case of Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011 has observed as under:
"The Supreme Court started by citing Lord Russell in Sheo Swarup highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said,....."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." The opinion of the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "..........the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."
12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.
Reference may also be made to the case of Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal No. 512 of 2014, wherein the Apex Court has observed as under:
"8. The High Court in an appeal under Section 378 of Cr.PC is entitled to reappraise the evidence and conclusions drawn by the trial court, but the same is permissible only if the judgment of the trial court is perverse, as held by this Court in Gamini Bala Koteswara Rao and Others v. State of Andhra Pradesh through Secretary[1]. To quote: "14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so." (Emphasis supplied)
9. It is also not the case of the prosecution that the judgment of the trial court is based on no material or that it suffered from any legal infirmity in the sense that there was non-consideration or misappreciation of the evidence on record. Only in such circumstances, reversal of the acquittal by the High Court would be justified. In K. Prakashan v. P.K. Surenderan [2], it has also been affirmed by this Court that the appellate court should not reverse the acquittal merely because another view is possible on the evidence. In T. Subramanian v. State of Tamil Nadu [3], it has further been held by this Court that if two views are reasonably possible on the very same evidence, it cannot be said that the prosecution has proved the case beyond reasonable doubt.
10. In Bhim Singh v. State of Haryana [4], it has been clarified that interference by the appellate court against an order of acquittal would be justified only if the view taken by the trial court is one which no reasonable person would in the given circumstances, take.
11. In Kallu alias Masih and others v. State of Madhya Pradesh [5], it has been held by this Court that if the view taken by the trial court is a plausible view, the High Court will not be justified in reversing it merely because a different view is possible. To quote: "8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court." (Emphasis supplied)
12. In Ramesh Babulal Doshi v. State of Gujarat [6], this Court has taken the view that while considering the appeal against acquittal, the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable and if the court answers the above question in negative, the acquittal cannot be disturbed.
14. The exercise of power under Section 378 of Cr.PC by the court is to prevent failure of justice or miscarriage of justice. There is miscarriage of justice if an innocent person is convicted; but there is failure of justice if the guilty is let scot-free. As cautioned by this Court in State of Punjab v. Karnail Singh[8]:
"6. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence even where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. ..."
Last but not the least, reference may also be made to the recent judgement of Supreme Court in the case of Ashok Rai Vs. State of U.P. & Ors. Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005;
"8. Several Judgments of this court have been cited on the principles which should guide the court while dealing with an appeal against order of acquittal. The law is so well settled that it is not necessary to refer to those judgments. Suffice it to say that the appellate court has to be very cautious while reversing an order of acquittal because order of acquittal strengthens the presumption of innocence of the accused. If the view taken by the trial court is a reasonably possible view it should not be disturbed, because the appellate court feels that some other view is also possible. A perverse order of acquittal replete with gross errors of facts and law will have to be set aside to prevent miscarriage of justice, because just as the court has to give due weight to the presumption of innocence and see that innocent person is not sentenced, it is equally the duty of the court to see that the guilty do not escape punishment. Unless the appellate court finds the order of acquittal to be clearly unreasonable and is convinced that there are substantial and compelling reasons to interfere with it, it should not interfere with it."
Reference may also be made to a judgment rendered in the case Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990 wherein the Hon'ble Apex Court has observed as under:
"only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the 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 innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
Reference may also be made to another judgment of the Hon'ble Apex Court rendered in the case of Murugesan v. State through Inspector of Police reported in 2012 AIR SCW 5627 wherein the Hon'ble Apex Court has observed as under:
"the reversal of the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. The use of the expression "possible view" is conscious and not without good reasons. The said expression is in contradistinction to expressions such as "erroneous view" or "wrong view". A possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court."
Thus, in view of aforesaid consistent legal position as elaborated above and also in view of the fact that learned A.G.A. has failed to point out any illegality or perversity with the findings so recorded in the impugned order, no case for interference has been made out.
It is an established position of law that if the court below has taken a view which is a possible view in a reasonable manner, then the same shall not be interfered with moreso in view of the fact that long time have already elapsed as the incident is of the year 1991.
After perusal of the impugned judgment shows that the trial court after a thorough marshalling of the facts of the case and a microscopic scrutiny of the evidence on record has held that the prosecution has failed to prove the charge against the accused respondents and the findings recorded by the learned trial judge in the impugned judgment are based upon evidence and supported by cogent reasons.
No interference with the impugned judgment and order of acquittal is warranted. Accordingly leave to appeal is refused and application is rejected. Consequently, the appeal also stands dismissed.
Copy of the order be certified to the court concerned for consequential follow up action.
Order Date :- 18.11.2019/VKG