Allahabad High Court
State Of U.P. vs Constable 117 Civil Police Yogendra ... on 6 September, 2024
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:145218-DB Reserved Court No. - 47 Case :- GOVERNMENT APPEAL No. - 396 of 2024 Appellant :- State of U.P. Respondent :- Constable 117 Civil Police Yogendra Singh Counsel for Appellant :- G.A. Counsel for Respondent :- Hon'ble Rajiv Gupta,J.
Hon'ble Surendra Singh-I,J.
Per : Hon'ble Surendra Singh-I, J.
Heard Sri Jitendra Kumar Jaiswal, learned A.G.A. for the State and perused the material on record.
2. The instant government appeal has been instituted u/s 378 Cr.P.C. against impugned judgement and order dated 11.07.2014 passed by Sessions Judge, Bulandshahr, in Criminal Appeal No. 163 of 2013 which has been instituted against the judgement and order dated 03.12.2013 passed by Additional Chief Judicial Magistrate, Court No. 2, Bulandshahr, in Criminal Case No. 235 of 2013 arising out of Case Crime No. 410 of 2001 u/s 420, 467, 468, 471 I.P.C., P.S.- Kotwali City, District- Bulandshahr.
3. By the impugned judgement and order, the learned Sessions Judge has set-aside the judgement and order dated 03.12.2013 passed by Additional Chief Judicial Magistrate, Bulandshahr, convicting the accused-respondent, Yogendra Singh u/s 420, 467, 468, 471 I.P.C. and sentencing him u/s 420 I.P.C. for three years rigorous imprisonment and fine of Rs.10,000/-, u/s 467 I.P.C. for seven years rigorous imprisonment and fine of Rs.15,000/-, u/s 468 I.P.C. for five years rigorous imprisonment and fine of Rs.10,000/- and u/s 471 I.P.C. for seven years rigorous imprisonment and fine of Rs.15,000/- with default stipulation. All the sentences were directed to run concurrently.
4. It has been submitted by learned A.G.A. for the State that accused-respondent had applied for appointment to the post of police constable annexing forged certificate in which his date of birth was shown as 04.04.1968 whereas according to his High School certificate, his real date of birth is 04.12.1961. Accused obtained appointment on the basis of forged certificate by which his date of superannuation would be 7 years more than what it should be on the basis of his real date of birth certificate. He used forged date of birth certificate which is a valuable security and obtained appointment in the police department obtaining unlawful gain and causing unlawful loss to the police department. The prosecution had proved beyond reasonable doubt the charge u/s 420, 467, 468, 471 I.P.C. on the basis of oral and documentary evidence. The trial court after considering the evidence on record had rightly convicted and sentenced the accused under aforesaid sections. He has further submitted that the learned appellate court without considering the oral and documentary evidence on record and the well reasoned judgement of the trial court, set-aside the trial court's judgement and order and illegally acquitted the accused of the charge u/s 420, 467, 468, 471 I.P.C. framed against him.
5. It has further been submitted by learned A.G.A. that the first information report was lodged on the basis of complaint given by P.W.1 Mahkar Singh and P.W.2 Chandrapal Singh to Chief Minister, Uttar Pradesh and apart from other authorities to I.G. Police, Meerut Zone, D.I.G. Police, Meerut Zone, S.S.P. Meerut, S.P., Baghpat and Deputy S.P., Local Intelligence Unit, Meerut. On the basis of these complaints, enquiry was done by Circle Officer of Police, Baghpat and on the basis of enquiry report, S.P. Baghpat, directed registration of F.I.R. against the accused for the offence of obtaining appointment as police constable by submitting forged date of birth certificate. Relevant and essential documents were proved by the prosecution witnesses. On the basis of evidence on record, the trial court proved the charge against the accused and sentenced him accordingly.
6. Without considering the evidence on record, the appellate court set-aside the judgement and order passed by the trial court. Learned A.G.A. has prayed for setting aside the impugned judgement and order passed by the learned appellate court and restoring the judgement and order passed by the trial court.
7. The prosecution case as disclosed by the complaint dated 01.09.2001 submitted by first informant, Mahkar Singh to S.S.P. Meerut, S.P., Baghpat and other higher police authorities, is that accused-respondent, Yogendra Singh, is posted as Constable at S.O.G., Baghpat City. His real date of birth was 04.12.1961 (certificate attached). He submitted forged and false date of birth certificate in which his date of birth is shown as 04.01.1961 and obtained appointment in police department. He has been working under S.P., Baghpat from 15.02.1988 to 19.09.2000. On the earlier complaint of the complainant, enquiry was held against the accused-respondent and Enquiry Officer submitted report against him but due to his influence in the department, no action was taken against him.
8. Similar complaint dated 05.04.2001 was submitted by P.W.2 Chandrapal Singh to D.G.P., U.P. and D.I.G., Meerut Range.
9. On the basis of complaint of Mahkar Singh, S.P., Baghpat instituted an enquiry against the accused to be conducted by Circle Officer. On the basis of aforesaid enquiry conducted by Circle Officer, Baghpat, S.P. Baghpat, ordered registration of criminal case against the accused-respondent and Case Crime No. 410 of 2001 u/s 420, 467, 468, 471 I.P.C. was registered in P.S.- Kotwali City, District- Bulandshahr, accordingly. The Investigating Officer, S.I. S.M. Sharma, conducted investigation of the offence. After recording the statements of witnesses and procuring relevant documentary evidence, he submitted charge-sheet (Ext.Ka.7) u/s 420, 467, 468, 471 I.P.C., against accused-respondent, Yogendra Singh.
10. On 12.03.2004, the trial court framed charge u/s 420, 467, 468, 471 I.P.C. against the accused-respondent. He denied the charge and prayed for trial.
11. The prosecution examined complainant P.W.1 Mahkar Singh, P.W.2 Chandrapal Singh, P.W.3 Shailendra Saxena, P.W.4 Pramod Chauhan, P.W.5 Akiuddin, P.W.6 R.B. Ram, an official of Intermediate Board of Education, U.P., Allahabad, P.W.7 R.N. Singh, Chief Security Officer, P.W.8 Constable Rajendra Singh and P.W.9 Constable Jagpal Giri. P.W.1 Mahkar Singh and P.W.2 Chandrapal Singh proved their complaints as (Ext.Ka.1 and Ext.Ka.2) respectively. P.W.3 Shailendra Saxena proves order of S.P., Baghpat for registration of F.I.R. (Ext.Ka.3). P.W.4 Pramod Chauhan proves letter of Additional S.P., Dr. Arvind (Ext.Ka.4) to S.P. Baghpat, recommending registration of F.I.R. against the accused. P.W.5 Akiuddin proved police documents. P.W.6 R.B. Ram proved report of Intermediate Board of Education, U.P., Allahabad (Ext.Ka.5). P.W.7 R.N. Singh has proved enquiry report (Ext.Ka.6), P.W.8 Chandrapal Singh proved (Ext.Ka.7). P.W.9 Jagpal Giri has proved chik report (Ext.Ka.8) and copy of relevant G.D. (Ext.Ka.9).
12. After considering the oral and documentary evidence adduced by the prosecution, the trial court vide judgement and order dated 03.12.2013 convicted and sentenced the accused under the aforesaid sections.
13. Consequently, vide impugned judgement and order dated 11.07.2014, the appellate court set-aside the order of the trial court convicting and sentencing the accused. In its judgement, the appellate court has held that prosecution had not filed original complaints submitted by complainant, P.W.1 Mahkar Singh and P.W.2 Chandrapal Singh (Exts.Ka.1 and Ka.2). Original report of Intermediate Board of Education, U.P., Allahabad regarding the age of the accused (Ext.Ka.5) has not been produced in the trial court. Only the photocopy thereof has been submitted. Only the photocopy of the enquiry report (Ext.Ka.6) prepared by Circle Officer, Baghpat, Anand Singh against the age certificate of the accused and the character certificate issued by the school regarding the age of the accused was submitted. The prosecution witnesses who proved the aforesaid documents did not bring the original documents at the time of recording their evidence. Therefore, the documents on the basis of which the accused was convicted for submitting false date of birth certificate with his application form for getting appointment as police constable has not been proved in accordance with law and the trial court has convicted the accused on the basis of unproved documents which is not sustainable in the eyes of law. Thus, the appellate court set-aside the conviction and sentence rendered by the trial court against the accused-respondent and acquitted him of the charge.
14. Admittedly, the date of birth of accused-respondent, Yogendra Singh, as mentioned in his application form for appointment to the post of Constable is 04.04.1968. According to prosecution case, his real date of birth as mentioned in the High School certificate is 04.12.1961. The prosecution has examined P.W.6 R.B. Ram, an official of Intermediate Board of Education, U.P., Allahabad who proved his age as mentioned in his High School certificate. He produced letter of Secretary, Intermediate Board of Education, U.P., Allahabad sent to Deputy S.P., Baraut, Baghpat dated 11.10.2008 (Ext.Ka.5). This is photocopy of the letter issued by the aforesaid Secretary regarding the date of birth of accused-respondent, Yogendra Singh, as mentioned in the records of Intermediate Board of Education, U.P., Allahabad. From the perusal of this letter, it is conspicuous that it is a certified copy of the original letter regarding the age of the accused-respondent as mentioned in the Intermediate Board of Education, U.P., Allahabad. The statutory provision relating to proof of contents of documents, primary evidence and secondary evidence and necessary conditions for granting permission to a party to file secondary evidence is given in Sections 61 to 65 of Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act').
15. According to Section 64 of the Evidence Act, document must be proved by primary evidence except when the party is permitted to proved it by means of secondary evidence. According to definition given in Section 63 of the Evidence Act, (Ext.Ka.5) being certified copy of the original is secondary evidence of the original. According to Section 65 of the Evidence Act, the Court can permit the party to prove the document by secondary evidence only when any of the conditions mentioned in Section 65 is proved by a party.
16. Section 65 of the Evidence Act is reproduced as follows :
Section 65 in The Indian Evidence Act, 1872
65. Cases in which secondary evidence relating to document may be given.
Secondary evidence may be given of the existence, condition or contents of a document in the following cases :
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of section 74;
(f) [When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] [[[Cf. the Bankers' Books Evidence Act, 1891 (18 of 1891), Section 4.]], to be given in evidence;
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
17. From the perusal of the trial court record, it is obvious that the prosecution has not proved existence of any of the conditions mentioned in Section 65 of the Evidence Act. The court had not permitted the prosecution to produce secondary evidence to prove original of (Ext.Ka.5). Thus, the date of birth of the accused-respondent cannot be proved by aforesaid (Ext.Ka.5) which is a secondary evidence.
18. In J. Yashoda Vs. K. Shobha Rani, (2007) 5 SCC 730, the Hon'ble Apex Court held that :
"the conditions laid down in Section 65 of the Evidence Act must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the clauses provided in Section 65. Only when conditions prescribed in Section 65 are satisfied, can document be admitted as secondary evidence."
19. The prosecution has not been granted permission by the trial court to file secondary evidence in proof of original letter issued by the Secretary of Intermediate Board of Education, U.P., Allahabad. Thus, on the basis of (Ext.Ka.5), it cannot be proved that the date of birth of accused as mentioned in the records of Intermediate Board of Education, U.P., Allahabad is 04.12.1961.
20. Similarly, prosecution has filed only the photocopy of remaining documents i.e. (Exts.1 to 4) and (Exts.6 to 9) which are also secondary evidence of the original. The prosecution has not obtained permission for producing secondary evidence for the original of the aforesaid documents. Thus, this document cannot also be considered and taken into consideration in proof of the matters mentioned therein.
21. The law relating to reversal of the judgement of the trial court by the appellate criminal court is well settled by a catena of decisions pronounced by Hon'ble Apex Court.
22. In State of U.P. Vs. Pappu, Government Appeal No. 483 of 2019, it has been held by the Hon'ble High Court Allahabad as follows :
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.
23. 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.
24. 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.
25. 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 judgement of acquittal rendered by the trial court.
26. From the above discussion of the evidence on record and in view of the settled principle of law regarding reversal of acquittal, we are of the considered opinion that the finding of acquittal rendered by the appellate 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, prayer for leave to appeal is refused.
27. Consequently, the present government appeal filed by the State has no force and is accordingly dismissed.
28. The trial court record be remitted back forthwith.
29. Let a certified copy of this judgement and order be forwarded to the court concerned along with trial court record for information and necessary compliance.
Order Date :- 06.09.2024 KS