Allahabad High Court
State Of U.P. vs Durgesh Rajbhar & 2 Ors. on 10 July, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No.15 Crl. Misc. Case No.111 of 2019 (U/s 378 of Cr PC) State of Uttar Pradesh ....Appellant vs. 1. Durgesh Rajbhar 2. Indal Rajbhar 3. Rajitram .....Respondents *** For Appellant : Sri Prachish Pandey, AGA For Respondents : None Hon'ble Pritinker Diwaker, J.
Per: Pritinker Diwaker, J (10.7.2019)
1. This application has been preferred under Section 378 (3) of Cr PC for grant of leave to the State Government to file an appeal, assailing the impugned judgement dated 2.3.2019 passed by the learned Additional Sessions Judge (Second), Ambedkar Nagar in Sessions Trial No.81 of 2014, acquitting the accused-respondents of the offence under Sections 323, 504, 506, 336 of IPC read with Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
2. Brief facts of the instant case are that on 26.3.2012, NCR/FIR Ex.Ka.1 was lodged by complainant Omkar, alleging in it that he belongs to Scheduled Caste and on 8.3.2012 when his son Kulbhushan was returning to his house, he was apprehended by the accused persons and after abusing in the name of his caste he was beaten. It is alleged that his nephew Alok Kumar intervened in the matter and then, the accused persons after assaulting him and his son, fled away from the spot. Based on this FIR, offence under Sections 323, 504, 506, 336 of IPC read with Section 3 (1) (x) of SC/ST Act was registered against the accused persons and they were tried for the said offence.
3. So as to hold accused persons guilty, prosecution has examined seven witnesses, statements of the accused persons were recorded under Section 313 of Cr PC in which, they pleaded their innocence and false implication.
4. By the impugned judgement, the trial Judge has acquitted the accused persons of all the charges. Hence, this application seeking leave to file an appeal.
5. Learned counsel for the appellant submits:
(i) that the trial Court has erred in law in acquitting the accused-respondents; and
(ii) that sufficient evidence has been adduced by the prosecution on the basis of which, the trial Court ought to have convicted the accused-respondents.
6. From the record, it is apparent that there is 18 days delay in lodging the FIR and the said delay has not been explained by the prosecution. Record also reflects that, in between, no medical examination of any of the injured was conducted and the prosecution has utterly failed to prove any injury to the victims. Even the case of the complainant has not been proved as required under the law. Considering all these aspects of the case, the trial Court has come to the conclusion of acquitting the accused-respondents. The trial Court has further observed that even witnesses have not fully supported the prosecution case.
7. The view taken by the trial Court is one of the possible views. 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 reasonably 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 v. K Gopalkrishna1, 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."
In Sudershan Kumar v. State of Himachal Pradesh2, 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 a plethora of case laws on this proposition and we need not burden this judgement by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal v. State, (2009) 10 SCC 401, which is the judgement 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: (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 paragraph hereunder: (Dhanapal case (supra), SCC p. 414) "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."
In Dilawar Singh v. State of Haryana3, 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.
37. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415, 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, (2012) 1 SCC 602."
8. In this view of the matter, the impugned judgement of the trial Court does not call for any interference. Leave to appeal, as prayed for, is refused. The application filed by the State Government is rejected.
Date: 10.7.2019 RKK/-
(Pritinker Diwaker, J)