Himachal Pradesh High Court
Sanjida vs Kabirudeen And Another on 15 September, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.217 of 2016.
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Reserved on : 12.09.2023.
Date of decision: 15.09.2023.
Sanjida .....Appellant.
of
Versus
Kabirudeen and another .....Respondents.
Coram
rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1 Yes For the Appellant : Mr. Ajay Kochhar, Senior Advocate with Mr. Vivek Sharma, Advocate.
For the Respondents : Mr. Surinder Saklani, Advocate, for respondent No.1.
Mr. I.N. Mehta and Mr. Yashwardhan Chauhan, Senior Additional Advocate Generals with Ms. Sharmila Patial, Additional Advocate General and Mr. J.S. Guleria, Deputy Advocate General, for respondent No.2.
Tarlok Singh Chauhan, Judge Respondent No.1 has been acquitted under Sections 376, 354-A and 506 of the Indian Penal Code (for short 'IPC') and 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 2 aggrieved thereby, appellant/complainant (hereinafter to be referred to as complainant) has filed the instant appeal.
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2. The entire case of the prosecution rests upon the testimony of complainant PW-9 Sanjida and, therefore, it would be necessary to refer her statement in extenso.
3. While appearing as PW-9, complainant stated that she of had been suffering from continuous headache and sometimes suffered fits and on account thereof would become unconscious for rt sometime. She got treatment from doctors, molvies and even in Kalisthan Temple at Nahan, but to no avail. In January/February, 2015, respondent came to her house and told that he was Principal in a 'Madrasa' and knew her father. She confirmed this fact from her mother and thereafter respondent started visiting her house off and on and she used to serve him tea etc. on visit. Later on, when respondent came to know about her illness, he stated that he had a religious power and could cure her disease. Respondent used to put his hand on her head by making her to sit on a chair and used to do 'Jharphook'. Respondent treated her for 1-2 months in this manner and thereafter he offered her medicine and asked her to take the same one hour prior to his arrival. She began to take relief by taking the medicine. Respondent would usually visit her house during 10.00 a.m. to 1.00 p.m., the time, when complainant would ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 3 be alone in her house. Respondent would ask her to lay down on the bed and used to touch her private parts in this process and when .
objected to by the complainant, he told her that this was a part of the treatment and that she had to satisfy the 'jinn' (holy soul) which was under his control. After taking the medicine, she used to become semi-conscious and allowed his act as she was recovering from her of illness.
4. After some days, respondent started committing sexual rt intercourse with her to which she protested. When she objected to the acts of the respondent, he stated that he had clicked her nude photographs as well as videographs and had videographed her and would make these viral in the public. When the respondent crossed all limits and she objected his acts and asked him not to visit her house, then he asked her to supply another woman for sex. Whenever, respondent used to come to her house, he used to physically assault her by pressing her breast and hips and when objected, he used to threaten her to make her nude photographs viral and by causing harm by spiritual powers.
5. One day, the respondent came to her house with another lady namely Reva and committed sexual intercourse with her in her house. Respondent brought Reva to her house 2-3 times and had sexual intercourse with her. She then strongly opposed the ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 4 visit of the respondent and threatened him to call the police. Then, for few months, the respondent did not come to her house.
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6. On 19.10.2015, the respondent again visited her house and touched her private parts and showed her nude photographs and was also having some C.Ds. She tried to take the photographs and C.Ds from the respondent but could not get them. Then, she of threatened the respondent by stating that she was calling the police.
It was then that the respondent left the house leaving behind two rt C.Ds inadvertently. She kept the C.Ds in her house as her mother was admitted at Nahan Hospital on that day. Next day, she came from the hospital and went to the office of an Advocate and asked him to write the complaint. After writing the complaint, the Advocate told her to go to the police station. Then, she met her cousin Nazakat Ali (PW-2) there and narrated the entire circumstances to him. Then, both of them went to the police station where an FIR came to be registered on the basis of the complaint Ext. PW-9/A. She was medically examined at hospital vide MLC Ext. PW-5/B. Her statement Ext. PW-9/B was recorded under Section 164 Cr.P.C.
After 4-5 days, police visited her house where she showed the bed where respondent had sex with her and also produced the bed sheet of the bed which was taken into possession vide memo Ext.
PW-2/A. Photographs of the spot were also clicked.
::: Downloaded on - 15/09/2023 20:35:25 :::CIS 57. At this stage, it will be apposite to refer to the complaint Ext. PW-9/A on the basis of which FIR came to be .
registered.
8. It would be noticed that this complaint was drafted by Shri Tomar, Advocate. A perusal thereof would go to show that complainant has specifically mentioned that when she objected to of the acts of the respondent, he threatened that it will affect her adversely, if she would not succumb to his acts.
rt It was also mentioned in the complaint that the complainant did not get any relief from the treatment by the respondent even for 10-11 months and then she opposed his acts. Now when it gets down to the statement made by the complainant under Section 164 Cr.P.C. Ext.
PW-9/B, it would reveal that the complainant has made material improvements in her earlier versions that were put forth by way of complaint Ext. PW-9/A. The statement is a detailed one wherein the complainant stated that, for the first time, when the respondent visited her house, he told that he was a friend of her father and thereafter started visiting her house. When the respondent started treatment by 'Jharphook', then he used to touch her private parts and told that this was also the part of the treatment. She further deposed that respondent started giving some tablets and asked her to take these tablets before the treatment and due to these tablets, ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 6 she used to become semi-conscious and the respondent used to indulge in sexual intercourse with her several times. It was also .
stated by the complainant in her statement that she did not depose regarding the acts of the respondent because he threatened that he was having spiritual powers and he would treat her adversely.
Further, the complainant stated that on 19.10.2015, he showed her of C.Ds and nude photographs and when she tried to snatch these photographs, in which she was shown nude, then, in that scuffle, the rt photographs got torn.
9. It would be noticed that in the statement under Section 164 Cr.P.C. Ext. PW-9/B, the complainant added two new versions.
Firstly, that the respondent had given her intoxicated tablets and asked her to take them before the treatment and after taking these tablets, she used to become semi-conscious and, in that process, the respondent used to commit sexual intercourse with her several times. Secondly, the complainant added that on 19.10.2015 when respondent came to her house, he showed C.Ds and photographs to her and when she tried to snatch the photographs, in that scuffle, the photographs got torn.
10. Now, if the testimony of complainant as given in the Court and referred to in the earlier part of the judgment is perused, it would reveal that there are material averments in the said statement ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 7 when compared to earlier statement made under Section 154 Cr.P.C. Ext. PW-9/A and statement made before the Magistrate .
under Section 164 Cr.P.C. Ext. PW-9/B. In her statement under Section 154 Cr.P.C., complainant had deposed that respondent started sexually assaulting her on the pretext of treatment and when she objected to it, then he threatened her that this was the part of of the treatment and if she would refuse, then it would adversely affect her. But, in her statement given in the Court, she deposed that rt initially she had allowed his obscene acts as she was recovering from illness.
11. Further, in her statements Ext. PW-9/A and Ext.
PW-9/B, the complainant deposed that she again objected to the acts of the respondent and he threatened that he had spiritual powers which could adversely affect her. In these statements, the complainant had not deposed that respondent threatened her that he would make viral the nude C.Ds and as per these statements, the complainant came to know about the nude photographs and C.Ds only on 19.10.2015. But, while appearing in the Court, complainant deposed that she initially opposed the acts of the respondent, but thereafter he started black-mailing her by showing her nude photographs and C.Ds. This is in total contradiction to the ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 8 previous statements made by the complainant under Sections 154 and 164 Cr.P.C.
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12. Further, in the FIR, complainant stated that respondent came to her house with one other lady named Reva and indulged in sexual intercourse with her, but, in the Court, she stated that respondent came to her house and there he had sexual intercourse of with her 2-3 times.
13. If that was not enough, the case of the complainant gets rt completely shattered when the complainant was cross-examined.
She admitted in her cross-examination that she had studied upto matric and knew Hindi and English. She admitted that she was earlier married to one Abdul Quim and later divorced in the year 1997 and thereafter solemnized second marriage. She had a son from earlier marriage and two children from current marriage. She also admitted that her house was situated in a thickly populated locality. She feigned ignorance regarding the first visit of the respondent to her house. She was also not aware how many times, the respondent visited her house and duration of such visits. She could not give any satisfactory reason as to why over such a long period of time, she had not disclosed about the incident to her family members. She further stated that the respondent had sexually assaulted her for two months prior to 2015. She also deposed that ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 9 she allowed the acts of the respondent as he had threatened her with nude photographs.
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14. What is more important is that complainant specifically admitted that Rewa had lodged an FIR against her (complainant) and Nazakat Ali (PW-2) regarding false or obscene C.D. made by them. She also admitted that she had not seen the C.Ds produced of by her along with the complaint.
15. It is clearly evident rt from what has been observed above that the statement of the complainant is not trustworthy as it is full of contradictions, improvements and embellishments which makes it extremely difficult to rely upon her testimony. No plausible explanation has been given by the complainant for not reporting the matter promptly with the police and little explanation, that has been offered by her for keeping mum was only because her husband was very strict or that she was afraid of society, is not at all probable because the complainant in her cross examination clearly admitted that she had earlier lodged an FIR against Ashok Kumar accusing him of harassing her.
16. Shri Ajay Kochhar, learned Senior Advocate assisted by Shri Vivek Sharma, Advocate, for the appellant, would then argue that in cases like the instant one, the Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 10 no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved .
in the commission of rape on her. In such cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies of are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. Strong reliance is placed on rt the judgment of the Hon'ble Supreme Court in Rajinder alias Raju vs. State of Himachal Pradesh (2009) 16 SCC 69, more particularly, para-19 thereof, which reads as under:
"19. In the context of Indian Culture, a woman - victim of sexual aggression - would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 11 rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent."
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17. Obviously, there can be no quarrel with the proposition laid down by the Hon'ble Supreme Court. But, at the same time, this Court cannot lightly brush aside the fact that the complainant in the instant case is not an uneducated, rural and rustic woman, but of an educated lady living in the District Headquarter of Nahan, who admittedly knows Hindi and English and is also horning her skills in rt driving as admitted by her in her cross examination. She is an informant lady and that is why complaints Exts. DX/A, DX/B and DX/C were lodged by her against Ashok Kumar. In case, the complainant had been sexually assaulted by the respondent, as claimed by her, then her story would have been consistent as there was no occasion or for that matter even a reason to improve her statement.
18. It is difficult to comprehend why the complainant would permit a stranger to keep another woman in her house and then permit him to have sex with her that too more than once. It is further difficult to believe that the complainant was being sexually assaulted over a long period of time and yet she chose to remain mum that too initially on account of the fact that her condition was improving and later that the respondent had threatened her with ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 12 nude pictures and photos on the pretext that he would make them viral, more especially, when such photographs or for that matter .
videos have not seen the light of the day and even when the complainant had not seen them as admitted by her in her cross-
examination.
19. The complainant as well as her husband appeared in of the witness box as PW-8 and have specifically stated that their house was situated in a thickly populated place, but no person from rt the locality was examined to prove the presence of the respondent in her house on 19.10.2015 or any other day and even the fact that the respondent had been a frequent visitor to the house of the complainant. The complainant in her statement deposed that she had asked the respondent regarding his whereabouts upon which he told that he was a friend of her father. In her cross-examination, the complainant admitted that her father died in the year 1986.
20. In such circumstances, as rightly observed by the learned Court below, it is difficult to believe that when father of the complainant died 30 years back and the respondent is claimed to be his friend, the complainant simply relied upon him and allowed him to visit her home regularly. There is otherwise no reason for the complainant to have told lie regarding Nazakat Ali, PW-2, who had accompanied her to the police station and otherwise a cousin of ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 13 her's, as stated by her in the Court. The complainant in her statement before the Court stated that she got drafted the .
complaint from Shri N.K. Tomar, Advocate and then she noticed Nazakat Ali in the Court Complex and asked him to accompany her to the police station. But, when Nazakat Ali appeared as PW-2 and cross-examined regarding this fact, he deposed that complainant of had called him on telephone and at that time he was at his house.
The complainant had asked him to come to the police station. She rt deposed regarding the incident to him when he came to Paonta.
Further, it would be noticed that the complainant has specifically stated that on 19.10.2015 when respondent had left her house, she went to meet her mother, who was admitted in the hospital at Nahan and on the next day i.e. 20.10.2015, she lodged the FIR. This version was maintained by her even in the cross-examination.
However, in case the FIR is perused, it would be noticed that the complainant specifically stated that respondent came to her house on 19.10.2015 and she lodged the report after two days i.e. on 21.10.2015.
21. Moreover, the medical evidence does not support the claim of the complainant and if that was not enough, even the mobile location of the respondent on 19.10.2015 clearly shows that the ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 14 mobile location of the respondent was not found to be anywhere in or around the house of the complainant.
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22. If all these circumstances were not enough, another fact which needs to be noticed is that the complainant specifically stated that the respondent had left two obscene C.Ds in her house which she had handed over to the police, however, in the cross of examination, complainant admitted that she had not seen those C.Ds. The investigating Officer (PW-10) admitted that the C.Ds rt produced by the complainant were not sealed by him and that no photographs were taken from the C.Ds. The Investigating Officer also admitted that the Investigating Agency had not sent the C.Ds to SFSL for their examination with regard to contents contained therein. Thus, there is nothing on record to show what these C.Ds contained.
23. At this stage, it would also be necessary to discuss the defence of the respondent, particularly, bearing in mind the trend of cross-examination of the witnesses and the examination of the respondent under Section 313 Cr.P.C. in which he filed his written statement wherein he stated that he was Principal of 'Madrasa Kadria' and living there for the last 35 years, even though, he originally belonged to Bihar. Nizakat Ali (PW-2), who was a local Mohammedan Leader wanted to oust the respondent from 'Madrasa' ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 15 regarding which he had organized a press conference and also made various complaints against the respondent and when he filed .
suit for injunction against Nazakat Ali (PW-2), it was then that PW-2 planted a false case upon him through the complainant.
24. In this background, it needs to be noticed that Nazakat Ali appeared in the witness box as PW-2 and was cross-examined of about these facts. He denied that he had organized a press conference in the 'Madrasa' to oust the respondent from there.
rt Even though, the photographs of his presence in the press conference were shown to him, but he feigned ignorance regarding those photographs. Further, when PW-2 was cross-examined regarding his visit to the Model Central Jail, Nahan to meet the respondent, who was lodged therein, to bargain with him, in this case, PW-2 also denied that he pressurized respondent in the jail to leave the 'Madrasa' and assured him that then they will withdraw the case against him. He further denied that he wanted to take the control of the 'Madrasa' and also denied that he had made several complaints against respondent and his 'Madrasa' to Deputy Commissioner, Sirmaur and S.D.M., Paonta Sahib.
25. At this stage, it would be necessary to refer to the testimonies of defence witnesses. DW-1, Sunil Sharma, Warder, Model Central Jail, Nahan, in his testimony proved on record the ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 16 copy of visitors' register Ext. DW-1/A in which it was mentioned that Nazakat Ali had visited the jail on 30.10.2015 to meet Kabirudeen.
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Thus, this falsifies the version put forth by PW-2 that he had not visited the jail to meet respondent.
26. DW-2, Akshay Gill was a reporter with the T.V. News Channel and had clicked the photographs of Nazakat Ali in of 'Madrasa' and proved his presence there which was repeatedly being denied by Nazakat Ali in his cross-examination.
rt
27. DW-3, Anil Kumar Sharma, proved on record the complaints Ext. DW-3/A-1 to Ext. DW-3/A-4 which were submitted by Nazakat Ali against Kabirudeen and his 'Madrasa'.
28. The evidence led by the respondent probabilises his defence that PW-2 Nazakat Ali in connivance with the complainant had invented this false story and thereby tried to rope in the respondent so as to compel him to succumb his illegal demand of handing over the controls of the 'Madrasa' to PW-2, who even as per the complainant was her cousin and had accompanied her to lodge the FIR. The story put-forth by the complainant is absolutely improbable and above all un-natural and not at all trustworthy.
29. In Chandrappa vs. State of Karnataka (2007) 4 SCC 415, the Hon'ble Supreme Court has laid down that the Appellate Court, in the case of acquittal, must bear in mind that there is ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 17 double presumption in favour of the accused. It was also emphasized that when two views are possible, one favouring the .
accused is to be leaned on. The powers of the Appellate Court have recently been summarized by the Hon'ble Supreme Court in Jafarudheen and others vs. State of Kerala (2022) 8 SCC 440 and it shall be apt to reproduce paras 25 to 27 thereof which read as of under:
"DISCUSSION rt Scope of Appeal filed against the Acquittal:
25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused.
Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.
Precedents:
26. Mohan @Srinivas @Seena @Tailor Seena v. State of Karnataka, [2021 SCC OnLine SC 1233] as hereunder:
(SCC paras 20-23) "20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 18 speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of .
innocence gathers strength before the Appellate Court.
As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself of whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the rt advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.
22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided.
::: Downloaded on - 15/09/2023 20:35:25 :::CIS 19The Appellate Court is expected to maintain a degree of caution before making any remark.
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23.This court, time and again has laid down the law on the scope of inquiry by an Appellate court while dealing with an appeal against acquittal under Section 378 CrPC. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this court in Anwar Ali v. State of Himanchal Pradesh, (2020) 10 SCC 166: (SCC pp. 182-85, para 14) 14.2. When can the findings of fact recorded by a court of be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under : (Babu case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri ) 1179, rt SCC p. 199) "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC ( L&S ) 131], Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312], Triveni Rubber & Plastics v. CCE [Triveni Rubber & Plastics v. CCE, 1994 Supp (3) SCC 665], Gaya Din v. Hanuman Prasad [Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501], Aruvelu [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] and Gamini Bala Koteswara Rao v. State of A.P. [Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372] )"
It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429], that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 20 and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied .
upon, the conclusions would not be treated as perverse and the findings would not be interfered with.
14.3. In the recent decision of Vijay Mohan Singh [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 :
(2019) 2 SCC (Cri) 586], this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by the High Court [State of Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine Kar of 10732] in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under: (Vijay Mohan Singh case12, SCC pp.447-49) rt "31. An identical question came to be considered before this Court in Umedbhai Jadavbhai [Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108]. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233) '10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence.
This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.' 31.1. In Sambasivan [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 21 1320], the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the .
entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal of passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of rt conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) '8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972] viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well considered judgment duly meeting all the contentions raised before it. But then will this noncompliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 22 the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a .
case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate of court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard rt to the above discussion, we shall proceed to examine the judgment of the trial court in this case.' 31.2. In K. Ramakrishnan Unnithan [K. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309: 1999 SCC (Cri ) 410] , after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable.
This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 23 order of acquittal passed by the learned Sessions Judge.
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31.3. In Atley [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653] , in para 5, this Court observed and held as under : (AIR pp. 809-10) '5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on of behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not rt correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-
established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the 9riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
::: Downloaded on - 15/09/2023 20:35:25 :::CIS 24If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot .
be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52]; Wilayat Khan v. State of U.P. [Wilayat Khan v. State of U.P., 1951 SCC 898 : AIR 1953 SC 122]) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not of justified in reviewing the entire evidence and coming to its own conclusions.' rt 31.4. In K. Gopal Reddy [K. Gopal Reddy v.
State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305], this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."
27.N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] as hereunder: (SCC pp. 695-99, paras 20-21 & 23-24) "20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for the appellant that the view taken by the trial court is a "possible view", having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 CrPC, no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC ( Cri) 325 has laid down the general principles regarding the powers of the appellate Court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under: (SCC p. 432) ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 25 "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 of 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.
rt (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."::: Downloaded on - 15/09/2023 20:35:25 :::CIS 26
21. Further in the judgment in Murugesan [Murugesan v. State, (2012) 10 SCC 383: (2013) 1 SCC (Cri) 69] relied on by the learned Senior .
Counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of "possible of view" to "erroneous view" or "wrong view" is explained. In clear terms, this Court has held that if the view taken by the trial court is a "possible view", the High Court not to reverse the acquittal rt to that of the conviction.
Xxx xxx xxx
23. Further, in Hakeem Khan v. State of M.P., (2017) 5 SCC 719 : (2017) 2 SCC ( Cri) 653 this court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it is held that if the "possible view" of the trial court is not agreeable for the High Court, even then such "possible view" recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Para 9 of the judgment reads as under: (SCC pp. 722-23) "9. Having heard the learned counsel for the parties, we are of the view that the trial court's judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons accused of the crime of murder i.e. under Section 302 read with Section 149 of the Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m. to 7.00 p.m. of a ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 27 winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, .
coupled with the fact that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all of probability, a scuffle that led to injuries on both sides. While the learned counsel for the respondent may be right in stating that the trial court went overboard in stating that the rt complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place."
24. By applying the abovesaid principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellant- accused, the appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the ::: Downloaded on - 15/09/2023 20:35:25 :::CIS 28 tainted notes and the cellphone were given to the appellant at 5.45 p.m. no recordings were made and the appellant was not tested by PW 11 till .
7.00 p.m."
30. The view taken by the learned Court below is possible one and warrants no interference, more particularly, when the entire evidence on record has been analyzed. Accordingly, we find no of merit in this appeal and the same is dismissed, so also the pending application, if any.
rt (Tarlok Singh Chauhan)
Judge
(Ranjan Sharma)
Judge
15th September, 2023.
(krt)
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