Allahabad High Court
State Of U.P. vs Asha Ram on 25 February, 2022
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW BENCH, LUCKNOW
Court No. - 1 "A.F.R"
Case :- Government Appeal No. - 1000120 of 2007
Appellant :- State of U.P.
Respondent :- Asha Ram
Counsel for Appellant :- Sri Vishwas Shukla, Additional Government Advocate
Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Saroj Yadav,J.
(ORAL) (Per Saroj Yadav, J. for the Bench)
1. This appeal along with application under Section 378(3) of the Code of Criminal Procedure 1973 (in short "Cr.P.C.") has been filed by the State-appellant against the judgment and order passed by Additional Sessions Judge/F.T.C., Court No. 5, District Gonda in Sessions Trial No. 80 of 2006, under Sections 376/511 of The Indian Penal Code, 1860 (in short "IPC"), wherein the accused respondent has been held guilty and punished under Section 354 IPC in place of Sections 376/511 IPC.
2. Heard Sri Vishwas Shukla, learned Additional Government Advocate appearing on behalf of the State-appellant.
3. Shorn off unnecessary details, the facts necessary for disposal of this appeal are:-
A First Information Report (in short "F.I.R.") was registered in pursuance of the order passed on the application under Section 156(3) Cr.P.C. moved by the complainant. It was alleged in the FIR that daughter of the complainant Km. "X" aged about 10 years was coming back to the village after putting sugarcane into the field on 21.11.2004 at about 12.30 PM during the day. When she reached near Devi Patan Bank, the accused respondent Asha Ram took her away and gone into the bushes behind the bank and made attempt to commit rape on her. The girl/victim raised noise then Radhey Shyam, Pappu, Rakesh and many other people of the village reached there, only then the victim could be saved. The complainant was on duty for administering Polio drops at a nearby School. So after hearing the noise raised by her daughter, he also reached there and came to know about the incident. He went to the Police Station but his FIR was not registered. He also moved an application to the Superintendent of Police, Gonda but no action was taken. Thereafter he moved an application under Section 156(3) Cr.P.C. in the court and the Court passed the order, only then the FIR was registered against the accused respondent.
4. The case was investigated and charge sheet submitted against the accused-respondent. The Magistrate concerned after taking cognizance of the offence committed the case to Sessions Court for trial. The Sessions Court framed charges against the accused respondent. He denied the charges and claimed to be tried. The prosecution in order to prove charges levelled against the accused respondent examined the victim as P.W. 1, complainant and father of the victim Mithai Lal as P.W. 2, brother of the victim Rakesh as PW 3, Constable Ram Kumar as PW 4 & Satish Kumar Misra Sub-inspector/Investigating Officer of the case as P.W. 5.
5. Necessary documents were also proved by the prosecution i.e. Exhibits 1 to 5. Thereafter statement of the accused respondent was recorded under Section 313 Cr.P.C., wherein he stated that witnesses have deposed falsely and he has been implicated due to enmity. He also examined Mohd. Ishaq as D.W. 1 in defence.
6. Learned Trial Court after hearing the arguments of both the sides on the basis of evidence available on record came to the conclusion that P.W. 2 and P.W. 3 father and brother of the victim respectively were not eye witnesses of the crime and that only offence under Section 354 IPC was committed by the accused respondent. The reasons for such conclusion have been given by the Trial Court that there are contradictions in the evidence of witnesses of facts and the independent witness mentioned in the FIR has not been examined. Old enmity has also been pleaded by the accused respondent. On the basis of evidence available on record, the Trial Court concluded that only offence under Section 354 IPC has been committed by the accused respondent and held guilty and punished accused-respondent accordingly.
7. Being aggrieved of this judgment, the present appeal has been preferred by the State.
8. Learned A.G.A. assailed the impugned judgment submitting that learned Trial Court discarded the evidence of the victim, complainant as well as brother of the victim without any proper and legal reason. Learned Trial Court did not appreciate the evidence in the right perspective. Impugned judgment is based on surmises and conjecutres. Hence the impugned judgment and order is illegal, not sustainable in the eyes of law and liable to be set aside. Hence the accused respondent should be punished under Sections 376/511 IPC.
9. Considered the submissions advanced by learned A.G.A., perused the impugned judgment and order and the record of the Trial Court.
10. Admittedly, the witnesses Radhey Shyam and Pappu mentioned in the FIR has not been examined. The witness Kanchhed Verma, who has been mentioned in the charge sheet was also not examined by the prosecution. The victim has been examined as P.W. 1, she was only 10 years old at the time of incident and 12 years old when her statement was recorded in the Court. She has stated before the Court that the accused took her away and when he opened her underwear, she raised hue and cry, then her father came there and the accused ran away when her father scolded him. Upon her cry, Kanhaiya, Tilak Ram, Radhey Shyam etc. also came there. She has stated that in her cross-examination that as soon as Asharam caught her, she raised noise and before reaching near the bush, her father came there. She has further stated that first of all her father reached upon her cry. This statement of victim girl shows that the act of the appellant Asharam travels only upto the offence defined under Section 354 IPC. P.W. 2-father of the victim and the complainant of the case has stated in the FIR that first of all Radhey Shyam, Pappu and Rakesh and other people of the village reached there and he also reached after sometime as he was on duty for administering Polio drops in a nearby School. P.W. 3 - brother of the victim, who is elder to the victim by 9 years as he himself has told in the cross-examination, has stated that on the date of incident, his sister was coming back from the field and accused took her away in the bushes behind the bank. Upon her cry, he, Pappu and Radhey Shyam reached there and saw the accused running. P.W. 2-father of the victim, has stated that his son Rakesh was coming behind her daughter at the time of incident. This is a major contradiction. Perusal of the statement of P.W. 2 and 3 make it clear that they were not present at the spot and they did not see the incident. Independent witness has not been examined though mentioned in the FIR. Old enmity with the complainant has also been pleaded by the accused respondent and there is no independent witness to prove the factum of attempt to rape. Hence, the learned Trial Court has rightly convicted the accused respondent under Section 354 IPC instead of Section 376/511 IPC.
11. The aforesaid analysis makes it clear that prosecution failed to prove charges levelled under Sections 376/511 IPC against the accused respondent beyond reasonable doubt.
12. Learned A.G.A. could not evince that the findings given by the Court below while acquitting the accused-respondent were factually or legally incorrect.
13. Hon'ble Apex Court in the case of Achhar Singh Vs. State of Himachal Pradesh reported in 2021 SCC Online HP 870 in this regard has laid down as under:-
"It is thus a well crystalized principle that if two views are possible, the High Court ought not to interfere with the trial Court's judgment. However, such a precautionary principle cannot be overstretched to portray that the "contours of appeal" against acquittal under Section 378 CrPC are limited to seeing whether or not the trial Court's view was impossible. It is equally well settled that there is no bar on the High Court's power to re-appreciate evidence in an appeal against acquittal11. This Court has held in a catena of decisions (including Chandrappa v. State of Karnataka, (2007) 4 SCC 415, 42. State of Andhra Pradesh v. M. Madhusudhan Rao, (2008) 15 SCC 582 20-21 and Raveen Kumar v. State of Himachal Pradesh, 2020 SCC Online SC 869, 11.) that the Cr.P.C does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate Court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused".
14. We do not find any factual or legal error in the appreciation of evidence by the trial Court while acquitting the accused-respondent under Sections 376/511 IPC and convicting him under Section 354 IPC only. Moreover, the view taken by the trial Court is a possible view. Hon'ble Apex Court recently in Geeta Devi Versus State of Uttar Pradesh & Others, 2022 SCC Online SC 57, has rehashed the principle of law laid down in Chandrappa Versus State of Karnataka (2007) 2 SCC (Cri) 162, which is as under:-
" 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."
15. The trial Court has given valid, convincing and satisfactory reasons while passing the order of acquittal for not relying on the evidence of victim. For the aforesaid reasons, there appears no ground to disturb the acquittal of the respondent/accused under Sections 376/511 of IPC recorded by the trial Court.
16. We, therefore, do not consider it to be a fit case for grant of leave to appeal to the appellant. The application seeking leave to appeal is, accordingly, rejected. The appeal is also dismissed.
(Saroj Yadav, J.) (Ramesh Sinha, J.)
Order Date :- 25.02.2022
Arun