Allahabad High Court
State Of U.P. vs Waseem And Anr. on 10 January, 2020
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 6.1.2020 Delivered on 10.1.2020 Government Appeal No.498 of 2019 State of Uttar Pradesh ---- Appellant Vs 1. Waseem 2. Rafeeq alias Rafi ---- Respondents For Appellant : Sri J K Upadhyay, AGA For Respondents : None Hon'ble Pritinker Diwaker, J.
Hon'ble Dinesh Pathak, J.
Per: Pritinker Diwaker, J (10.1.2020) Heard on admission.
2. Challenge in this acquittal appeal is to the judgment and order dated 17.7.2019 passed by Special Judge (POCSO Act)/Additional Sessions Judge, Court No.3, Rampur in Special Sessions Trial No.03/2015 (State of Uttar Pradesh vs. Waseem & Another) acquitting the accused-respondents of the offences under Sections 363, 366, 376, 504 and 506 of IPC and Section 4 of POCSO Act.
3. Brief facts of the instant case are that on 30.11.2014, a written report Ex.Ka.1 was lodged by (PW-1) Maqsood, father of prosecutrix, alleging in it that her minor daughter has been abducted by the accused-respondents and two other persons. Based on this report, FIR Ex.Ka.10 was registered against all the accused persons under Sections 363, 366, 504 and 506 of IPC. Prosecutrix was recovered on 3.12.2014 when she was returning from Madras; she was medically examined by the Doctors, but no external or internal injury has been found on her person and she was found habitual to sexual intercourse. As per Radiologist, age of the prosecutrix was about 18 years.
4. While framing charge, the trial Judge has framed charge against the accused-respondents under Sections 363, 366, 376, 504, 506 of IPC and Section 4 of POCSO Act.
5. So as to hold accused persons guilty, prosecution has examined six witnesses. Statements of accused persons were recorded under Section 313 of Cr PC in which, they pleaded their innocence and false implication.
6. By the impugned judgment, the trial Judge has acquitted the accused-respondents of all the offences. Hence this appeal by the State, assailing the acquittal.
7. Learned counsel for the appellant-State submits that the trial Judge has erred in law in acquitting the accused-respondents. He submits that once in the Court, prosecutrix has made allegation of rape against accused-respondent Waseem, the trial Judge ought to have convicted him.
8. We have heard learned counsel for the appellant-State and perused the record.
9. In 161 Cr PC statement, prosecutrix has stated that accused persons have taken her against her consent, she was taken to various places, including Delhi and Madras and at Madras, she was subjected to sexual intercourse by accused Waseem against her wishes. In 164 Cr PC statement, prosecutrix has stated that she had accompanied accused persons of her own sweet will and visited several places, including Delhi and Madras and but for accused Waseem no other accused had committed any offence. She has further stated that she was in contact with accused Waseem for last one year and she does not want accused Waseem to be punished. She has further stated that her parents, on their own, had reported the matter to the police, otherwise she is not interested to do so.
Though the prosecutrix, in Court, has admitted the fact that she was taken by accused persons and subjected to rape by accused Waseem on the point of knife, but in 164 Cr PC statement she has not deposed anything against the accused persons.
10. Considering the conduct of prosecutix, her age and statements, the Court below has arrived at a conclusion that the prosecutrix appears to be a consenting party. Statements of the prosecutrix reveal that she never raised any protest or alarm/cry or showed any resistance while she was being taken in a Bus or in a Train to Delhi and Madras. From her statements, it is apparent that she was a consenting party.
11. Considering the entire evidence available on record, the Court below has come to a conclusion that the prosecution has failed to prove its case against the accused-respondents beyond all reasonable doubt; held that the accused-respondents are not guilty of the offences, as alleged, and given them benefit of doubt. The view taken by the Court below is one of the possible and plausible view and it cannot be said to be perverse.
12. While considering the scope of interference in an appeal or revision against acquittal, it has been held by the Supreme Court that if two views of the evidence are reasonable possible, one supporting the acquittal and other indicating conviction, the High Court should not, in such a situation, reverse the order of acquittal recorded by the trial Court. In the matter of State of Karnataka vs. K. Gopalkrishna, reported in (2005) 9 SCC 291, the 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."
13. In Sudershan Kumar v. State of Himachal, reported in (2014) 15 SCC 666 the 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, this Court held: ( SCC p. 432 para 42), (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."
14. 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.
36. In Chandrappa v. State of Karnataka, the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: (SCC p.432 para 42) "42....(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."
Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan v. Shera Ram."
15. Considering the above legal position and the factual aspects of the case, we are of the view that the trial Judge was fully justified in acquitting the accused-respondents.
16. Taking all the circumstances as it is, leave as prayed for by the State, is refused. Hence, the appeal is dismissed at the admission stage itself.
Date:10.1.2020
RKK/-C.Mani
(Dinesh Pathak, J) (Pritinker Diwaker, J)