Allahabad High Court
State Of U.P. vs Aman Gangwar And Another on 17 December, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.48 Government Appeal No.479 of 2019 State of Uttar Pradesh ---- Appellant Vs 1. Aman Gangwar 2. Babu alias Imran ---- Respondents For Appellant : Sri O P Mishra, AGA For Respondents : None Hon'ble Pritinker Diwaker, J.
Hon'ble Dinesh Pathak, J.
Per: Pritinker Diwaker, J (17.12.2019) Heard on admission.
2. Challenge in this appeal is to the judgment and order dated 27.7.2019 passed by Additional Sessions Judge (Fast Track Court) Bareilly in Sessions Trial No.660 of 2017 (State of UP vs. Aman Gangwar & another) acquitting the respondents-accused of the offence under Sections 376-D and 506 of IPC.
3. Brief facts of the instant case are that on 1.8.2017, FIR Ex.Ka.2 was lodged by prosecutrix (PW-1) aged about 24 years, alleging in it that on that date at about 8:30 pm, when she was going to Lucknow on foot from her house, on the way, respondents-accused met her on their Scooty and had asked for dropping her to Railway Station, Bareilly. She accompanied the accused persons on their vehicle, but on the way, the accused persons took her in a Garden and committed forcible sexual intercourse one after another. Based on this FIR, offence under Sections 376-D of IPC was registered against the respondents-accused, vide Ex.Ka.4.
Prosecutrix was sent for medical examination immediately and in the night intervening 1/2.8.2017, she was medically examined; however, no external or internal injury was found on her body.
4. While framing charge, the trial Judge has framed charge against the respondents-accused under Sections 376-D and 506 of IPC.
5. So as to hold accused persons guilty, prosecution has examined four 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 respondents-accused 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 respondents-accused. He submits that once in the Court, prosecutrix has made serious allegation of gang rape against the respondents-accused, the trial Judge ought to have convicted them.
8. We have heard learned counsel for the appellant-State and perused the record.
9. As per prosecutrix, she took the lift from the respondents-accused to go to the Railway Station Bareilly, but on the way, she was subjected to gang rape by the accused persons. In the FIR, prosecutrix has nowhere alleged that her mouth was gagged, whereas in the Court, she has stated that while she was being taken to Garden, a piece of cloth was inserted in her mouth. Further, as per prosecution case, she (prosecutrix) jumped from the vehicle of respondents-accused as a result of which, she sustained injuries and likewise, she also suffered injuries at the time of gang rape allegedly committed by the respondents-accused; but in her medical examination report, no external or internal injury has been found. Prosecutrix has further admitted the fact that earlier also, she lodged a case against one Pushpendra under Section 376 of IPC. She also admitted the fact that the said Pushpendra was known to the accused persons. Yet another case was lodged by the prosecutrix against one Ajay Tyagi under Section 354 of IPC. In the vaginal report prepared by the doctor, no spermatozoa has been found.
10. Considering all aspects of the case, the Court below has come to a conclusion that the prosecution has failed to prove its case against the respondents-accused; held that the respondents-accused are not guilty of the offences, as alleged, and given them benefit of doubt. The view taken by the trial Court is one of the possible views and it cannot be said to be perverse.
11. 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."
12. 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."
13. 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."
14. 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 respondents-accused.
15. 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:17.12.2019 RKK/-
(Dinesh Pathak, J) (Pritinker Diwaker, J)