Allahabad High Court
State Of U.P. vs Waseem Kotedar on 23 January, 2020
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 10 Case :- U/S 378 Cr.P.C. Defective No. - 166 of 2019 Applicant:- State of U.P. Respondents:- Waseem Kotedar Counsel for the Applicant:- Govt. Advocate Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
(Ref:- Crl. Misc. Application No.116890 of 2019)
1. Heard learned A.G.A. for the State and perused the record.
2. In pursuance of the order dated 01.10.2019 of this Court, notice was issued to respondent- Waseem Kotedar and as per the report of the office dated 07.01.2020, the respondent has been served personally, however, no one has appeared on his behalf when the case was called nor any power has been filed on his behalf.
3. As per the report of the office, the application moved by the State is delayed by 45 days.
4. Having perused the grounds enumerated in the affidavit annexed with the application under Section 5 of the Limitation Act, we are of the considered view that the delay which has occurred in preferring this application has been sufficiently explained. In view of above, the application under Section 5 of the Limitation Act moved by the State to condone the delay is allowed and the delay occurred in filing the application is hereby condoned.
(Mohd. Faiz Alam Khan, J.) (Devendra Kumar Upadhyaya, J.) Order date :- 23.1.2020 Saif Court No. - 10 Case :- U/S 378 Cr.P.C. Defective No. - 166 of 2019 Applicant:- State of U.P. Respondents:- Waseem Kotedar Counsel for the Applicant:- Govt. Advocate Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
1. Copies of statement of witnesses filed by learned A.G.A. is taken on record.
2. Heard learned A.G.A. for the State and perused the record.
3. Through instant application moved under Section 378(3) of the Cr.P.C., the State has prayed to grant leave to appeal against the judgment and order dated 27.05.2019 passed by Additional District and Sessions Judge/F.T.C. Unnao in Sessions Trial No.152 of 2017, "State Vs Waseem Kotedar" arising out of Case Crime No.113 of 2017, under Sections 452, 376 and 506 I.P.C., Police Station- Ajgain, District- Unnao, whereby the respondent- Waseem Kotedar has been acquitted of the charges under Sections 452, 376 and 506 I.P.C.
4. Brief facts necessary for the disposal of instant application is that a written application was moved by prosecutrix before Superintendent of Police, Unnao stating therein that on 25.01.2017 at about 11:00 in the night respondent- Waseem Kotedar came to her house and called her on the pretext that the headlight of his vehicle is not working and a wrench is required by him for its repair. She bonafidely opened the door of her house on which the respondent grabbed her and by putting a country-made pistol on her chest, dragged her in a room of her house and committed rape on her. It is further stated that on a hue and cry made by her, her children, namely, Ms.'X' (daughter of prosecutrix) and two sons awoke and thereafter respondent threatened her to face dire consequences if she makes any complaint against him. On 26.01.2017, she went to P.S.- Ajgain to lodge the First Information Report and presented a written application and the police personnel of Police Station- Ajgain also detained the respondent, but they pressurized the prosecutrix to make a compromise and released the respondent on the same day in the evening and neither her report was lodged nor was she medically examined.
5. On an order passed by the Superintendent of Police, Unnao on the application of prosecutrix, a case under Sections 452, 376 and 506 I.P.C. was registered at P.S.- Ajgain, Unnao against the respondent as Case Crime No.113 of 2017 and after the investigation, a charge-sheet was filed against the respondent under Sections 452, 376 and 506 I.P.C. On the case being committed to the Court of Sessions, the charges under Sections 452, 376 and 506 I.P.C. were framed against the respondent. Respondent denied the charges and claimed trial.
6. Prosecution in order to prove its case produced P.W.1- prosecutrix, P.W.2- Dr. Seema Srivastava, P.W.-3 Ms.'X' (daughter of prosecutrix), P.W.4- Head Constable Rameshwar Yadav and P.W.5- S.H.O., Arun Pratap Singh. Apart from the above-mentioned witnesses, the prosecution also relied on (i)Written Application (Exhibit ka-1), (ii)Statement of the prosecutrix recorded under Section 164 of the Cr.P.C. (Exhibit ka-2), (iii)Medical Examination Report (Exhibit ka-3), (iv)Pathology Report (Exhibit ka-4), (v)Chik F.I.R. (Exhibit ka-5), (vi)Copy of G.D. (Exhibit ka-6), (vii)Site Plan (Exhibit ka-7), (viii)Memo of arrest (Exhibit ka-8) & (ix)Charge-sheet (Exhibit ka-9).
7. In his statement recorded under Section 313 Cr.P.C., the respondent denied the evidence presented by the prosecution and further stated that he was falsely roped in by prosecutrix as she had borrowed some money from him and when he asked her to return the same, she falsely implicated him in this false case. Respondent in his defence also produced D.W.1- Mohammad Ibrahim and D.W.2- Raju.
8. The trial court after appreciating the evidence available on record acquitted the respondent from all the charges levelled against him. Aggrieved by the impugned judgment and order, the State has challenged the same by filing the instant appeal and has also moved an application for grant of leave to file appeal.
9. Learned A.G.A. while pressing the application for grant of leave to appeal submits that the trial court has committed manifest error in appreciating the evidence available on record and has wrongly acquitted the respondent while it was proved beyond reasonable doubt that the respondent is guilty of committing rape on the prosecutrix. It is further submitted that the trial court has erred in rejecting the testimony of prosecutrix on the basis of minor contradictions and discrepancies occuring in her testimony and has completely disregarded the settled law that on the basis of minor contradictions, the testimony of an injured witness could not be brushed aside and, therefore, the view adopted by the trial court could not be sustained and hence, the State be granted leave to file the criminal appeal in order to challenge the impugned judgment and order.
10. Having heard learned A.G.A. for the State and having perused the judgment of the trial court in the background of the submissions made by learned A.G.A., what we find is that the trial court has recorded the finding of acquittal of the respondent on the basis that the evidence of the prosecutrix is not reliable. The statement of the prosecutrix with regard to the fact that she raised on alarm during the commission of crime could not be believed as the houses of Ashok Yadav, Anees, Shafiq, Nazma and Saheba Alam are situated around her house and if she would have raised an alarm, they might have arrived at the scene of occurrence and the fact that her house is situated at a lonely place has been wrongly stated by her. The trial court has also recorded a finding that there are contradictions in the statement of prosecutrix recorded under Section 164 of the Cr.P.C. and her statement recorded before the trial court. No injury has been found on her person. Her daughter, who has been testified as P.W.3, has also stated that she has not seen the respondent committing rape on her mother and neither she nor her family members have done anything to apprehend the respondent at the scene of crime. It has also been recorded by the trial court that P.W.3 - (daughter of prosecutrix) stated to have arrived at the room, where alleged incident was taking place, she could not see any occurrence and what she has stated before the Court is only on the information provided by her mother (prosecutrix). The age of the prosecutrix is about 50 years. It is also recorded by the trial court that the statement of the prosecutrix pertaining to the fact that she was not having any concern with the respondent from before the incident, is not true as she has admitted that she used to take ''ration' from the shop of respondent and at the time of incident she was having a mobile phone but she did not inform the police from her phone.
11. We have very carefully perused the evidence of the prosecutrix and P.W.3 (daughter of the prosecutrix) in the background of the submissions made by learned A.G.A. and the evidence recorded by the trial court and have found that there are inherent contradictions and inconsistencies in the statement of the prosecutrix. The prosecutrix is a lady aged about 50 years, his eldest son is about 18 years and her daughter (P.W.3) is aged about 16 years and she is having two more sons aged about 12 and 10 years respectively. No information of the incident was given by the prosecutrix by the cell phone which she was having at the time of alleged incident. There are contradictions in her statement recorded before the court and statement recorded under Section 164 Cr.P.C. We have also noticed inconsistencies in her statement highlighted by the trial court pertaining to the situation of her house and it appears that her house is situated in a densly populated area surrounded by the houses of the persons mentioned by the trial court in its judgment. No injury has been found on her person by the doctor, who had examined her and the testimony of her daughter is also not of such a nature that any corroboration could be taken from the same. Having perused the record we are of the considered view that the view adopted by the trial court is not erroneous.
12. There cannot be any other view to the proposition that in an appeal against acquittal, the Court has full power to review the evidence upon which the acquittal has been recorded. However, it has to be remembered and kept in mind that the initial presumption of innocence, which was available to the respondent at the time of trial has been further fortified by the order of acquittal and the decision of the trial court could be reversed only for very substantial and compelling reasons. However, substantial or compelling or strong reasons are not to be meant to curtail undoubted powers of an appellate court in an appeal against acquittal and the appellate court may come to its own conclusion on the basis of re-appreciation of evidence, but in doing so, the Court should not only consider every evidence available on record which may have a bearing on the questions of fact and the reasons given by the trial court in support of the order of acquittal in arriving at a conclusion, but also to express those reasons in its judgment to show that the acquittal was not justified. Our view is fortified by the judgments of the Hon'ble Supreme Court passed in Ajmer Singh Vs. State of Punjab, 1953 SCR 418, Sanwat Singh and Others Vs. State of Rajasthan, AIR 1961 SC, 715 and Sadhu Sharan Singh Vs. State of Uttar Pradesh and Others reported in 2016 Cr.L.J. 1908.
13. Having perused the judgment of the trial court in the background of the above-mentioned legal position as well as keeping in view the settled principles of appreciation of evidence, we are of the view that the prosecution has to prove the guilt of the accused person(s) beyond reasonable doubt and if on a reasonable appreciation of evidence two views appear to be possible, then the view which is favourable to the accused person(s) should be adopted. However, the Court is to put itself on guard that benefit of each and every doubt could not be claimed by the accused person(s). It is only reasonable doubt, benefit of which could be extended to the accused of a crime. Keeping in view the above propositions of law in an appeal from acquittal, very strong and cogent reasons are required for interfering in the judgment of acquittal, and if, the findings of the trial court are based on the evidence available on record and there is nothing which may brand the appreciation of evidence done by the trial Court as perverse, the finding of acquittal should not be easily disturbed.
14. Keeping in view the inherent weaknesses appearing in the prosecution evidence, we are of the considered opinion that the view taken by the trial court was a probable and logical view and the judgment of the trial court cannot be said to be not based on material on record or either illegal, illogical or improbable. Therefore, we are satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference in the judgment of the trial court is called for. Hence, the prayer for grant of leave to appeal is hereby rejected and the application to grant leave to file appeal is dismissed.
Since application for grant of leave to appeal has been rejected, the appeal also does not survive. Consequently, the appeal is also dismissed.
(Mohd. Faiz Alam Khan, J.) (Devendra Kumar Upadhyaya, J.) Order date :- 23.1.2020 Saif