Allahabad High Court
State Of U.P. vs Smt. Rekha Alias Gudiya on 4 December, 2019
Bench: Vipin Sinha, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 51 Case :- GOVERNMENT APPEAL No. - 4596 of 2016 Appellant :- State of U.P. Respondent :- Smt. Rekha Alias Gudiya Counsel for Appellant :- G.A. Hon'ble Vipin Sinha,J.
Hon'ble Ajit Singh,J.
1. Heard Shri H.N. Mishra, learned A.G.A. appearing for the State appellant at length on the application seeking leave to appeal as well as the appeal itself against the judgment and order dated 09.06.2016 passed in Session Trial No. 213 of 2016 (State Vs. Smt. Rekha alias Gudiya) by learned Additional Sessions Judge/Fast Track Court (Mahila Utpidan), Court No. 1, Baghpat whereby the accused - respondent has been acquitted for the offences punishable under Sections 498A/34, 304-B/34, 302/34 of IPC and Section 3/4 of Dowry Prohibition Act, Police Station - Doghat, District Baghpat.
2. Learned A.G.A. has strongly pressed the application with the contention that the prosecution evidence has not been appreciated by the court concerned in its correct perspective. He has submitted that the finding of acquittal recorded by learned trial judge is against the evidence on record. He next submitted that the learned trial judge has committed a patent error of law and ignored the material evidence on record while holding that the prosecution had failed to prove the charges against the accused respondents beyond the reasonable doubt.
3. We have perused the impugned judgment, perusal of which shows that the concerned court has recorded categorical findings after perusing the entire evidence on record. Perusal of record shows that lower court record has been received in the matter and we have gone through the same carefully.
4. We have also heard the counsel for the parties at great length and also perused the findings as has been recorded by the sessions court. The First Information Report's version is extracted herein below :-
"la{ksi eas vfHk;kstu dFkkud bl izdkj gS fd oknh eqdnek txiky us xxu /kkek ls ,d rgjhj fy[kkdj Fkkuk nks?kV dks bl vk'k; dh nh fd& ^*mldh Hkrhth :ch dh 'kknh fgUnw jhfr fjokt ds vuqlkj 25 twu 2008 dks fcV~Vw ds lkFk gqbZ FkhA 'kknh ds ckn ls gh mldh Hkrhth dks eksfgr mQZ fcV~Vw] lksuw nsoj] js[kk uUn o lkl vejs'k us vkil esa feydj de ngst ykus ds dkj.k ijs'kku o rax djrs FksA bl izdj.k dks ysdj mUgksaus fj'rsnkjks fd iapk;r Hkh dh ysfdu mijksDr yksx viuh gjdr ls ckt ugha vk;s vkSj mldh Hkrhth :ch dks ijs'kku rax djrs jgsA fnukad 13-01-2015 dh 'kke dks mldh Hkrhth ds Åij feV~Vh dk rsy Mky dj mijksDr pkjksa us vkx yxk nh] tks mijksDr pkjksa us fnYyh lQnjtax vLirky esa nkf[ky dj j[kh gS] tks ftUnxh o ekSr ds chp tw> jgh gS] tks mlds yM+ds lksuw us Qksu ij crk;k gS Qksu lqurs gh og vius ifjokj ds lkFk viuh Hkrhth :ch dks vLirky fnYyh ls ns[kdj vk;k gS vkSj rgjhj nsdj dkuwuh dk;Zokgh djus dh izkFkZuk dh gSA"
5. It may also be noted at the very outset that as far as the PW - 1 Smt. Munesh is concerned, she has been declared as hostile. Similarly, PW - 2, the first informant Jagpal has also been declared as hostile. At this stage itself it may be noted that Jagpal in his testimony has clearly stated :-
"...lwpuk ij og o mldh iRuh Jherh equs'k lQnjtax vLirky fnYyh x;s ogkW ij mudh yM+dh csgks'k FkhA ogkW ij :ch ds llqj ekWxsjke o mlds ifr eksfgr Hkh ekStwn FksA og o mldh iRuh Jherh equs'k lQnjtax vLirky esa :ch ds ikl 13@14-01-2015 dh jkf= ls fnukad 15-01-2015 rd yxkrkj ekStwn jgsA yM+dh vLirky esa HkrhZ gksus ds le; ls vkSj mldh e`R;q rd dHkh Hkh gks'k esa ugha vk;hA yxkrkj csgks'k jghA bl nkSjku og c;ku nsus dh fLFkfr esa ugha Fkh vkSj :ch us HkrhZ gksus ds le; ls mldh e`R;q rd fdlh dks Hkh dksbZ C;ku ugha fn;kA :ch dh e`R;q fnukad 15-01-2015 dks vLirky esa gqbZ FkhA ..."
6. PW - 3 Birendra has also been declared as hostile and even though he was thoroughly cross-examined but nothing could be elucidated. He categorically states;
"bl rjg lk{kh ds mDr c;ku ds vk/kkj ij vfHk;kstu i{k dh izkFkZuk ij lk{kh dks i{knzksgh ?kksf"kr fd;k x;k vkSj vfHk;kstu i{k dks lk{kh ls izfr ijh{kk djus dk volj fn;k x;k] rks lk{kh us viuh izfr ijh{kk esa dgk gS fd izn'kZ d&3 esa iqfyl us D;k fy[kk gS] mls tkudkjh ugha gSA mlds Fkkus ij dksjs dkxt ij gLrk{kj djk;s FksA iqfyl us bl dkxt ij D;k fy[kk Fkk mls tkudkjh ugha gSA mlds lkeus iqfyl us eqfYteku ds ?kj ls dksbZ dSu] ftlesa feV~Vh ds rsy dh xa/k vk jgh Fkh] cjken ugha dh FkhA bl ?kVuk ds ckjs esa iqfyl us mldk dksbZ c;ku ugha fy;k FkkA xokg dks /kkjk&161 n0iz0la0 dk C;ku i<+dj lquk;k x;k rks xokg us dgk fd mlus njksxk th dks ,slk dksbZ c;ku ugha fn;k] mUgksaus dSls fy[k fy;k mldh dksbZ otg og ugha crk ldrkA "
7. P.W. - 5 Doctor Nikhil Mehta has stated herein below that :-
"..et:c dks fnukad 14-01-2015 dks xaHkhj jsLihjsVjh fMLV~Sl gks x;k Fkk et:c dk dksbZ c;ku mlds lkeus fdlh vf/kdkjh us ugha fy;k FkkA ejht dk csM] gSM] fVdV ftl ij mldk gokyk fy[kk gksrk gS oks vkt mlds lkeus ugha gSA lk{kh us [kqn dgk fd c;ku ysus rglhynkj@eftLVsªV vk;s Fks ftUgsa mlus fQVusl 12-45 cts ih0,e0 ij fnukad 14-01-2015 dks fn;k FkkA ysfdu eftLVsªV lkgc us et:ck dk c;ku fdrus cts fy[kk Fkk og ;g ugha crk ldrkA og ;g Hkh ugha crk ldrk fd et:ck c;ku nsrs le; gks'k esa Fkh ;k ughaA"
8. It may also be noted that P.W. - 9 Ajeet who happens to be brother of the deceased, has also been declared as hostile.
9. In view of the aforesaid discussion, the Session Court has observed thus:-
"....e`rdk dk e`R;qiwoZ c;ku fnukad 14-01-2015 dks ntZ dj fy;k x;k Fkk ijUrq mldk gokyk izFke lwpuk fjiksVZ izn'kZ d&4 esa ugha fn;k x;k gS] ftlls e`rdk ds e`R;q iwoZ c;ku lansgkLin gSA vfHk;kstu i{k }kjk cpko i{k ds rdZ dk fojks/k fd;k x;k rFkk ;g dgk x;k gS fd e`rdk ds e`R;q iwoZ c;ku dk gokyk izFke lwpuk fjiksVZ esa u gksuk dksbZ ,slk rF; ugha gS] tks e`rdk ds e`R;q iwoZ c;ku ij lokfy;k fu'kku [kM+s dj ldsA U;k;ky; }kjk izFke lwpuk fjiksVZ izn'kZ d&4 dk voyksdu fd;k x;kA izn'kZ d&4 esa ;g fy[kk x;k gS fd&^*e`rdk dks mldk ifr eksfgr] nsoj lksuw] llqj ekWxsjke] uUn js[kk o lkl Jherh vejs'k de ngst ykus ds dkj.k rax o ijs'kku djrs Fks] bl fy;s fnukad 13-01-2015 dh 'kkke dks mijksDr lHkh yksxksa }kjk e`rdk ds Åij feV~Vh dk rsy Mkydj vkx yxk nhA dkuwuh dk;Zokgh dh tk,A^* oknh txiky dks izLrqr ekeys esa ih0MCyw0&2 ds :i esa ijhf{kr djk;k x;k gS] ftlus viuh eq[; ijh{kk eas bl ckr ls badkj fd;k gS fd vfHk;qDrx.k e`rdk dks ngst dh ekWx dks ysdj rax o ijs'kku djrs FksA oknh us ;g dFku fd;k gS fd fnukad 13-01-2015 dks e`rdk ds llqj ekWxsjke us mls VsyhQksu ij lwpuk nh Fkh fd e`rdk [kkuk cukrs le; vkx yxus ls ty x;h gS] ftls lQnjtax vLirky fnYyh esa HkrhZ djk;k x;k gS] ftldh lwpuk feyus ij og viuh iRuh Jherh equs'k ds lkFk lQntax vLirky fnYyh x;s vkSj ogkW ij fnukad 13@14-01-2015 dh jkf= ls fnukad 15-01-2015 rd yxkrkj vLirky esa ekStwn FksA oknh us viuh eq[; ijh{kk esa ;g dFku fd;k gS fd ftl nkSjku og vLirky esa jgs ml nkSjku e`rdk us fdlh dks Hkh dksbZ c;ku ugha fn;kA bl izdkj U;k;ky; dh jk; esa vxj e`rdk ds e`R;q iwoZ c;ku dk gokyk izFke lwpuk fjiksVZ izn'kZ d&4 esa ugha gS rks bldk dksbZ izHkko vfHk;kstu dFkkud ij ;k e`rdk dh e`R;q iwoZ c;ku ij ugha iM+rk gSA"
10. Thus, after discussing the evidence the Session Court has concluded herein as under:-
"U;k;ky; dh jk; esa e`rdk dk e`R;q iwoZ c;ku ,d egRoiw.kZ lk{; gksrk ;fn mls fy[krs le; fy[kus okys vf/kdkjh }kjk dkuwu esa nh x;h lko/kkfu;ksa dk ikyu fd;k tk,A izLrqr ekeys esa lk{kh ih0MCyw0&7 MkDVj jktho dqekj }kjk e`rdk dk e`R;q iwoZ c;ku fy[kus esa dkuwu esa nh x;h lko/kkfu;ksa dk ikyu ugha fd;k x;k gSA vr% e`rdk dk e`R;q iwoZ c;ku izn'kZ d&10 vfHk;qDrx.k dk nks"k fl) fd;s tkus ds fy;s dkQh ugha gSA cpko i{k ds fo}ku vf/koDrk dk ;g Hkh rdZ gS fd e`rdk ds e`R;q iwoZ c;ku izn'kZ d&10 dks fnukad 22-01-2015 dks 'kkfey fely fd;k x;kA mijksDr c;ku dks 'kkfey fely djus esa gqbZ nsjh dk dksbZ Li"Vhdj.k lk{kh ih0MCyw0&11 {ks=kf/kdkjh pUnziky flag }kjk ugha fn;k x;k gSA U;k;ky; }kjk lk{kh ih0MCyw0&11 ds c;ku o lEcfU/kr dkxtkrksa dk voyksdu fd;k x;kA voyksdu ls ;g Li"V gS fd e`rdk dh e`R;q iwoZ c;ku dks fnukad 22-01-2015 dks 'kkfey fely fd;k x;kA tcfd og fnukad 14-01-2015 dks vafdr fd;k tk pqdk FkkA mijksDr nsjh dk dksbZ Li"Vhdj.k foospd }kjk ugha fn;k x;k gS] ftldk izfrdwy izHkko vfHk;kstu dFkkud ij iM+sxkA ........
izLrqr ekeys esa oknh eqdnek txiky e`rdk dk firk] e`rdk dh ekrk Jherh equs'k o e`rdk ds nksuks HkkbZ fojsunz o vthr us vfHk;kstu dFkkud dk leFkZu ugha fd;k gS rFkk MkDVj }kjk tkjh fd;k x;k fQVusl izek.k i= o vf/kdkjh }kjk fy;k x;k e`rdk dk e`R;q iwoZ c;ku larks"ktud ugha gSA vr% vfHk;qDrk dks nks"k fl) fd;s tkus ds fy;s e`rdk dk e`R;q iwoZ c;ku dkQh ugha gSA vr% ,slh fLFkfr esa vfHk;qDrk Jherh js[kk mQZ xqfM+;k lansg dk ykHk ikus ds vf/kdkjh gSA..."
11. The learned A.G.A. is pressing the appeal saying that there exists a dying declaration and the same could not be disbelieved by the Session Court. However, fact remains that it has not been disputed that the dying declaration was recorded before the lodging of the First Information Report and the First Information Report is absolutely silent about the said dying declaration. Had it been there, it would have certainly been mentioned in the First Information Report itself. The dying declaration was rightly not believed by the Session Court in as much as it was recorded without following the legal precautions and in case there was some suspicion about the same, the same had to be corroborated by some other evidence on record. In the present case, the dying declaration does not find any corroboration.
12. The reliance placed on the case of Laltu Ghosh Vs. State of West Bengal, AIR 2019 SC 1058 is misplaced one and has no application to the the present case. In that very case the doctor concerned, who recorded the statement of the deceased which was ultimately treated as his dying declaration, has fully supported the case of the prosecution by deposing about recording the dying declaration. In the present case, the concerned doctor has not deposed about recording of the dying declaration.
13. In a recent judgment rendered in the case of Sampat Babso Kale and another Vs. State of Maharashtra, 2019 (4) SCC 739, the Apex Court has clearly observed thus:-
".......the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion, and (2006) 13 SCC 165 therefore, there is a need to look for corroborative evidence in the present case."
14. In the present case we find that a very recording of the dying declaration is suspicious and there is no corroborative evidence whatsoever. All the witnesses of fact have been declared hostile.
15. As regards the exercise of the powers of the appellate court, the Supreme Court in Sanmwat Singh vs. State of Rajasthan reported in 1961 SC 715 has laid down three broad principles:-
"(i) Appellate Court has full powers to review the evidence upon which the order of acquittal is found it.
(ii) The Principles laid down by the judicial committee of the privy council in Sheo Swaroop vs. King Emperor (AIR 1934 PC) page 227 afford a correct guide for the appellate court approach to a case in disposing of such an appeal. These principles require that the appellate court should give proper weight and consideration to such matters as, the view of the trial Judge as to credibility of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to the benefit of doubt, and the slowness of an appellate court in disturbing the findings of fact arrived at by a Judge who had the advantage of seeing the witnesses. These matters and guidelines are the "Rules and Principles" in the administration of justice.
(iii) The appellate court in coming to its conclusion should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal, but should also express those reasons to hold that the acquittal was not justified; Damodar Prasad Chandrika Prasad vs. State of Maharashtra 1972 (1) SCC 107.
It follows as a corollary from the above, that if two views of the evidence are reasonably possible, one supporting an acquittal and the other indicating conviction, the appellate court should not interfere merely because it feels, that it would, sitting as a trial court have taken the other view. Two views and conclusions cannot be right and one in favour of the acquittal of the accused must be preferred over the other because our criminal jurisprudence demands that the benefit of doubt must prevail. If, two reasonably, probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of reasonable doubt. Even otherwise we find that the consistent legal position as laid down by the Apex Court with regard to the scope of interference in an appeal against acquittal is to the effect that until or unless it can be pointed out that there is some illegality or perversity with the findings as have been recorded by the court concerned or until or unless it can be shown that the view taken by the court concerned while writing a verdict of acquittal is perverse or not possible, the appellate court ought not to interfere.
"Suffice it to say that the Apex Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and
(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
16. Regard may also be had to the consistent legal position with regard to the scope and interference by the High Court in the judgement and order of acquittal. The Apex Court in the case of Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011 has observed as under:-
"The Supreme Court started by citing Lord Russell in Sheo Swarup highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said,....."the High Court should and will always give proper weight and consideration to such matters as:
(1) The views of the trial Judge as to the credibility of the witnesses;
(2) The presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial;
(3) The right of the accused to the benefit of any doubt; and (4) The slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "..........the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."
12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
17. Reference may also be made to the case of Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal No. 512 of 2014, wherein the Apex Court has observed as under:-
"8. The High Court in an appeal under Section 378 of Cr.PC is entitled to reappraise the evidence and conclusions drawn by the trial court, but the same is permissible only if the judgment of the trial court is perverse, as held by this Court in Gamini Bala Koteswara Rao and Others v. State of Andhra Pradesh through Secretary[1]. To quote: "14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so." (Emphasis supplied)
9. It is also not the case of the prosecution that the judgment of the trial court is based on no material or that it suffered from any legal infirmity in the sense that there was non-consideration or misappreciation of the evidence on record. Only in such circumstances, reversal of the acquittal by the High Court would be justified. In K. Prakashan v. P.K. Surenderan [2], it has also been affirmed by this Court that the appellate court should not reverse the acquittal merely because another view is possible on the evidence. In T. Subramanian v. State of Tamil Nadu [3], it has further been held by this Court that if two views are reasonably possible on the very same evidence, it cannot be said that the prosecution has proved the case beyond reasonable doubt.
10. In Bhim Singh v. State of Haryana [4], it has been clarified that interference by the appellate court against an order of acquittal would be justified only if the view taken by the trial court is one which no reasonable person would in the given circumstances, take.
11. In Kallu alias Masih and others v. State of Madhya Pradesh [5], it has been held by this Court that if the view taken by the trial court is a plausible view, the High Court will not be justified in reversing it merely because a different view is possible. To quote: "8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court." (Emphasis supplied)
12. In Ramesh Babulal Doshi v. State of Gujarat [6], this Court has taken the view that while considering the appeal against acquittal, the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable and if the court answers the above question in negative, the acquittal cannot be disturbed.
14. The exercise of power under Section 378 of Cr.PC by the court is to prevent failure of justice or miscarriage of justice. There is miscarriage of justice if an innocent person is convicted; but there is failure of justice if the guilty is let scot-free. As cautioned by this Court in State of Punjab v. Karnail Singh[8]:
"6. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence even where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. ..."
18. Last but not the least, reference may also be made to the recent judgement of Supreme Court in the case of Ashok Rai Vs. State of U.P. & Ors. Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005;
"8. Several Judgments of this court have been cited on the principles which should guide the court while dealing with an appeal against order of acquittal. The law is so well settled that it is not necessary to refer to those judgments. Suffice it to say that the appellate court has to be very cautious while reversing an order of acquittal because order of acquittal strengthens the presumption of innocence of the accused. If the view taken by the trial court is a reasonably possible view it should not be disturbed, because the appellate court feels that some other view is also possible. A perverse order of acquittal replete with gross errors of facts and law will have to be set aside to prevent miscarriage of justice, because just as the court has to give due weight to the presumption of innocence and see that innocent person is not sentenced, it is equally the duty of the court to see that the guilty do not escape punishment. Unless the appellate court finds the order of acquittal to be clearly unreasonable and is convinced that there are substantial and compelling reasons to interfere with it, it should not interfere with it."
19. Reference may also be made to a judgment rendered in the case Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990 wherein the Hon'ble Apex Court has observed as under:-
"Only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
21. Reference may also be made to another judgment of the Hon'ble Apex Court rendered in the case of Murugesan v. State through Inspector of Police reported in 2012 AIR SCW 5627 wherein the Hon'ble Apex Court has observed as under:-
"The reversal of the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. The use of the expression "possible view" is conscious and not without good reasons. The said expression is in contradistinction to expressions such as "erroneous view" or "wrong view". A possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court."
22. Thus, in view of aforesaid consistent legal position as elaborated above and also in view of the fact that learned A.G.A. has failed to point out any illegality or perversity with the findings so recorded in the impugned order, no case for interference has been made out.
23. It is an established position of law that if the court below has taken a view which is a possible view in a reasonable manner, then the same shall not be interfered with moreso in view of the fact that long time have already elapsed.
24. After perusal of the impugned judgment shows that the trial court after a thorough marshalling of the facts of the case and a microscopic scrutiny of the evidence on record has held that the prosecution has failed to prove the charge against the accused respondents and the findings recorded by the learned trial judge in the impugned judgment are based upon evidence and supported by cogent reasons.
25. No interference with the impugned judgment and order of acquittal is warranted. Accordingly, leave to appeal is refused and application is rejected. Consequently, the appeal also stands dismissed.
27. Copy of the order be certified to the court concerned for consequential follow up action.
28. Lower Court Record be sent back to the court below.
Order Date :- 4.12.2019 LBY