Allahabad High Court
State Of Up vs Nirdosh S/O Rame Singh on 6 December, 2024
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment Reserved On: 12.11.2024 Judgment Delivered On: 06.12.2024 Neutral Citation No. - 2024:AHC:191329-DB Court No. - 47 Case :- GOVERNMENT APPEAL No. - 835 of 2024 Appellant :- State of U.P. Respondent :- Nirdosh S/O Rame Singh Counsel for Appellant :- Shiv Kumar Pal Hon'ble Rajiv Gupta,J.
Hon'ble Surendra Singh-I,J.
(Delivered by Hon'ble Rajiv Gupta, J.)
1. The present Government Appeal under Section 378(3) Cr.P.C. along with an application for leave to appeal has been filed against the impugned judgment and order dated 22.09.2022 passed by Additional Sessions Judge/Special Judge (POCSO Act), Court No.2, Muzaffarnagar in Special Sessions Trial No.343/9 of 2016 (State Vs. Nirdosh), arising out of Case Crime No.213 of 2016, Police Station Sikheda, District Muzaffarnagar, under Sections 377 and 506 IPC and Section 3/4 POCSO Act, whereby the accused-opposite party has been acquitted of all the charges framed against him.
2. We have heard Shri Ashish Tiwari, learned AGA for the State/appellant at length and perused the trial court record.
3. The prosecution story, in a nutshell, lodged by one Mohd. Danish is that on 29.06.2016, his brother (X) along with his friend (Y) were taking a bath in the nearby village canal at about 01:00 p.m. At the relevant time, Nirdosh, resident of the same village had taken his brother (X) and his friend (Y) in a sugarcane field and committed unnatural offence with them and further threatened them not to disclose this fact to anyone, else they would be done to death. Thereafter, both the victims (X) and (Y) returned back to their house and disclosed the fact of the said incident. Consequent thereto, on the basis of a written report of the first informant, FIR was lodged vide Case Crime No.213 of 2016, under Section 377 and 506 IPC and Section 3/4 POCSO Act.
4. After registration of the FIR, the victims were medically examined. The Investigating Officer thereafter recorded the statement of the said witnesses under Section 161 and 164 Cr.P.C. and after collecting the relevant material, submitted the charge-sheet against the accused-opposite party. On the basis of the said charge-sheet, learned Magistrate had taken cognizance of the offence and since the case was exclusively triable by the court of Sessions, committed the case to the court of Sessions for trial.
5. The trial court thereafter framed the charges against the accused-opposite party under Section 377 and 506 IPC and Section 4 of the POCSO Act. The charges were read out and explained to the accused-opposite party, who abjured the said charges, pleaded not guilty and claimed to be tried.
6. The prosecution, in order to prove the guilt against the accused-opposite party, produced as many as six prosecution witnesses. In addition to it, the prosecution also produced number of documents, which were duly exhibited and proved. After conclusion of the prosecution evidence, incriminating material and circumstances were put to the accused in his statement under Section 313 Cr.P.C, in which, the accused alleged that the prosecution evidence is false and fabricated and on account of dispute over return of his money, he has been falsely implicated in the present case.
7. D.W.1 Rohit Kumar was examined as defence witness to prove the innocence of the accused-opposite party in the instant case.
8. The learned trial court after thrashing the evidence and critically analysing it, acquitted the accused from the said charges framed against him and he was set at liberty.
9. Aggrieved by the said judgment and order, the instant Government Appeal under Section 378 (3) Cr.P.C. on behalf of the State/appellant has been preferred along with an application for leave to appeal.
10. Learned State Counsel relying upon the prosecution witnesses has submitted that the trial court has failed to appreciate the evidence in its true perspective and acquitted the accused-opposite party by wrong appreciation of the evidence available on record. Findings recorded by the trial court in the impugned judgment and order are perverse and against the record warranting interference by this Court.
11. Since this appeal is against the acquittal, it will be relevant to note the principles of law laid down by the Apex Court with regard to the appreciation of evidence and approach to be adopted while dealing with an appeal against acquittal.
12. In Jafarudheen and others vs. State of Kerala, 2022 SCC Online SC 495, reiterating the principle on the subject the Hon'ble Apex Court reminded to the Courts as extracted below:
"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
13. In Mohan alias Srinivas alias Seena alias Tailor Seena vs. State of Karnataka, (2022) 12 SCC 619, the Hon'ble Apex Court held as hereunder:
"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
14. In Atley v. State of U.P., 1955 Cri. LJ 1653, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same.
15. The Hon'ble Apex Court in the case of Bannareddy v. State of Karnataka, (2018) 5 SCC 790, has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and held as under:
"26. The High Court should not have re-appreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities".
16. In Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, the Hon'ble Apex Court observed vis-a-vis the powers of an appellate court while dealing with a judgment of acquittal and held like this :
"7. While sitting in judgment over an 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. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions."
17. In the light of the submissions made by learned counsel for both the sides, we have carefully gone through the evidence available on record, analysis and appreciation thereof and conclusion arrived at by the trial court in the impugned judgment and order dated 22.09.2022.
18. The genesis of the prosecution story in the instant case is that the two minor boys were allured and taken away in a sugarcane field where unnatural offence is said to have been committed with them. The prosecution, in order to prove its case, mainly relied upon the testimonies of P.W.1 victim (X) and P.W.4 victim (Y). P.W.1, in his testimony, has stated that on 29.06.2016 at about 01:00 p.m., in the day time, they were bathing in the village canal, where accused Nirdosh allured them for providing jamun fruit on his field. It is further stated that after moving a few paces with the accused-opposite party, he tried to run away due to fear, however, accused-opposite party took him along with his friend victim (Y) in the sugarcane filed and committed unnatural offence with them, consequent to which, blood oozed out from his anus. The accused thereafter threatened them not to disclose this fact to anyone, else he would slit their throat by a spade. He returned back to his house and disclosed this fact to the inmates of his house, on the basis of which, the present FIR was lodged and he was medically examined. He was thereafter examined by the police as well as by the Magistrate, who recorded his statement.
19. P.W.2 Mohd. Danish is the first informant of the case but is not an eye witness and he, on the basis of hearsay, has lodged the FIR and has proved the same, which has been marked as Ext.Ka-2.
20. P.W.3 Dr. Nadeem is the Medical Officer, who had medically examined the two victims and has proved the medical report as well as the supplementary medical report. On the basis of his medical report, he has opined that no definite opinion about committing of unnatural offence can be given by him.
21. P.W.4 is the other victim (Y), who in his examination-in-chief has stated that on 29.06.2016 at about 01:00 p.m., they were taking bath in village canal, when accused-opposite party Nirdosh reached there and on the pretext of providing them jamun fruit, took them in a field and committed unnatural offence with them. He further stated that the accused-opposite party threatened them not to disclose this fact to anyone, else they would be killed by a spade. He was medically examined by the doctor and had disclosed about the incident to the police and his statement under Section 164 Cr.P.C. was also recorded, which has been proved and marked as Ext.Ka-6.
22. P.W.5 Ajay Kumar is the Head Constable, who on the basis of the written report had drawn the check-FIR and its corresponding G.D., which has been proved and marked as Ext.Ka-7.
23. P.W.6 S.I. Naresh Kumar is the Investigating Officer of the case, who was entrusted with the investigation and after collecting the relevant material and after getting recorded the statement of the witnesses under Sections 164 Cr.P.C., had submitted the charge-sheet against the accused-opposite party.
24. After collecting the entire prosecution evidence, the statement of the accused-opposite party was recorded under Section 313 Cr.P.C., wherein he stated that the entire prosecution story is false and fabricated and on account of dispute over return of money, which was borrowed by grandmother of the first informant Danish, he has been falsely implicated by them.
25. The accused-opposite party also produced D.W.1 Rohit Kumar as defence witness, who proved the factum that the grandmother of Danish had borrowed a sum of Rs.5000/- from the accused-opposite party Nirdosh, however, did not return back the same, and on his insistence falsely implicated him in the instant case.
26. The trial court in the impugned judgment and order has examined all the relevant aspects of the matter and taking into consideration the entire evidence and material on record has come to the conclusion that the trial court has miserably failed to prove its case beyond reasonable doubt against the accused-opposite party and giving benefit of doubt to the accused-opposite party has acquitted him of all the charges.
27. When we go through the evidence led in the instant case, we find that there are material contradictions in the statement of P.W.1, P.W.2 and P.W.4, on one hand, and P.W.3, P.W.5 and P.W.6 on the other and the prosecution case has been developed from one stage to another. Going through the evidence, we further find that in the instant case, P.W.2, the first informant of the case is not an eye witness of the case and on the basis of hearsay has adduced his evidence, relying upon which, the finding of conviction against the accused-opposite party cannot be recorded, as held by the trial Court.
28. Furthermore, when we go through the evidence of P.W.4, the victim of the instant case, we find that he in his statement recorded under Section 164 Cr.P.C. has completely denied the prosecution case and has categorically stated that he is not acquainted with the accused-opposite party Nirdosh nor with the first informant Danish and nobody has committed any unnatural act with him. Further, we find that P.W.4, in his examination-in-chief, has taken a somersault and has supported the prosecution story, which is quite contrary to his statement recorded under Section 164 Cr.P.C., however, again in his cross-examination, he has reiterated his statement recorded under Section 164 Cr.P.C. and stated that he is neither acquainted with Nirdosh nor with Danish nor anybody has committed any unnatural offence with him. He has further stated that on 30.06.2016, the Investigating Officer has recorded his statement wherein he has categorically stated that no untoward incident took place with him. He even showed his ignorance in respect of the allegations made in the FIR.
29. Thus, taking the entire testimony of P.W.4, we find that he is a wholly unreliable witness and no credence can be attached to his testimony to record the finding of conviction against accused-opposite party, as held by the trial Court.
30. Now the testimony of P.W.1 remains being the solitary witness of the incident, however, when we go through his testimony, we find that even his testimony is not reliable and there are several contradictions in his statement. He categorically, in his testimony, has stated that the accused-opposite party committed unnatural offence one after the other with the two victims, however, the said factum has been completely denied by P.W.4, which creates serious dent in his testimony.
31. Even the testimony of P.W.1 is in sharp contrast to the medical report submitted by the doctor, who in his report has categorically stated that no definite opinion about the unnatural offence can be given. The medical report also do not specifically corroborate the prosecution story and leaves much to be desired. It is further germane to point out here that P.W.1 in his testimony has categorically stated that after committing of unnatural offence, he suffered injuries on his anus and it started bleeding which was cleaned by water and not by his clothe, however, in his cross-examination, he further states that when unnatural offence was committed with him, his clothes got smeared and his pant was taken in possession by the police and that he received injuries all around his anus.
32. When we go through his injury report, he merely suffered a small abrasion over upper side of the anus, which is angling at 12 'o' clock position. Even the testimony of P.W.1, who is the sole witness of the said case is not of sterling quality. It is further germane to point out here that in the instant case, even the place of incident has not been fixed. P.W.1 in his testimony has stated that the incident has taken place in the filed of sugarcane of accused-opposite party, however, as per the site plan, the place of incident has been shown to be the sugarcane field of Dharamveer, which further creates serious dent in the prosecution story.
33. P.W.1 in his cross-examination has further stated that after the incident, he did not went to the place of incident nor he was taken by the police or the inmates of his house to the said place which further creates doubt about the exact place of incident and even as per the testimony of P.W.1, the exact place of incident has not been fixed.
34. Thus, on careful analysis of the evidence adduced by P.W.1, we find that even he does not fall in the category of wholly reliable witness and being a child witness, it cannot be ruled out that his testimony has been tutored and therefore, do not inspire our confidence to be of sterling quality.
35. Even the Police in the instant case has failed to comply with the provisions of Section 53-A Cr.P.C. and no incriminating article/evidence has been sent for forensic examination and no such report has been brought on record, which further dents the prosecution story and makes it highly doubtful.
36. It is notable that in cases of sexual offences, the evidence of victim has got a distinguished place, which must be duly considered but in the instant case, we find that the testimony of P.W.4 one of the victim is wholly unreliable, who has developed his case from one stage to another, which is in sharp contrast to his statement recorded under Section 164 Cr.P.C. and even in his cross-examination, he has not supported the prosecution story and does not fall in the category of reliable witness.
37. Even the testimony of P.W.1 suffers from material contradictions and in the backdrop of which, does not inspire our confidence and cannot fall in the category of reliable or sterling witness on the testimony of whom, the conviction can be recorded, moreso, when the other victim has completely denied the factum of commission of unnatural offence with him.
38. Thus, we find that P.W.1, who is one of the victim in the said cases is not a witness falling in the category of 'sterling witness'. Hence, in our considered opinion, it was not safe for the learned trial court to rely upon the sole testimony of victim (X) to record the finding of conviction against the appellant.
39. It is settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasoning, when the reasons assigned by the trial Court are found to be just and proper.
40. In the case of State of Karnataka vs. Hemareddy, AIR 1981, SC 1417, it has been held by the Hon'ble Apex Court as under :
" ... This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
41. The Hon'ble Apex Court in Shivasharanappa and others vs. State of Karnataka, JT 2013 (7) SC 66 has held as under:
"That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."
42. The Apex Court in Shailendra Rajdev Pasvan v. State of Gujarat, (2020) 14 SC 750, has held that if the appellate court is reversing the trial court's order of acquittal, it should give proper weight and consideration to the presumption of innocence in favour of accused, and to the principle that such a presumption sands reinforced, reaffirmed and strengthened by the trial court and in Samsul Haque v. State of Assam, (2019) 18 SCC 161 held that the judgment of acquittal, where two views are possible, should not be set aside, even if view formed by appellate court may be a more probable one, interference with acquittal can only be justified when it is based on a perverse view.
43. In view of the aforesaid discussions, we are of the view that the learned trial Court has given logical and plausible findings in the impugned judgment and has rightly concluded that the prosecution has miserably failed to prove its case beyond reasonable doubt. The judgment and order of the trial court under judicious scrutiny is just and proper and carries no perversity therein, hence it does not warrant any interference by this Court. The reasoning adopted by the learned Trial Judge is based upon proper application of judicial mind. No illegality or infirmity is found in the impugned judgment and order and it needs no interference by this Court.
44. In view of the foregoing discussions, we are of the opinion that the application for leave to appeal filed by the State has no force and it is, accordingly, dismissed. Consequent thereto, the instant Government Appeal also stands dismissed.
45. Let a copy of this judgment and order be forwarded to the court concerned alongwith trial court record for information and necessary compliance.
Order Date :- 06.12.2024 Subham