Allahabad High Court
State Of U.P. vs Rajiv Kumar Sonkar on 9 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 1014
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.48 Government Appeal No.515 of 2019 State of U.P. ---- Appellant Vs Rajiv Kumar Sonkar ---- Respondents For Appellant : Sri O.P. Mishra A.G.A For Respondent : None Hon'ble Pritinker Diwaker, J.
Hon'ble Dinesh Pathak, J.
Per: Pritinker Diwaker, J.
(09.01.2020)
1. Heard on admission.
2. Challenge in the present Government Appeal is to the judgment and order dated 22.08.2019 passed by IIIrd Additional District & Sessions Judge, Pilibhit in Sessions Trial Nos. 209 of 2017 and 210 of 2017 (State Vs. Rajiv Kumar Sonkar) acquitting the respondent of the offences under Sections 302, 201, 404 of IPC and 3/25 of Arms Act.
3. As per prosecution case, deceased Sanjeev Kumar was working as a Class-IV employee in the Zilla Panchayat and was residing along with his mother and children in the guest house. It is said that on 15.06.2017 at about 2.00 PM, accused-respondent took the deceased along with him for collecting some luggage and the deceased joined him after carrying Rs.20,000/- cash, ATM card and cell-phone. When the deceased did not return till evening, he was searched and on the next day i.e. on 16.06.2017, a missing report was lodged by his mother Sukhrani Devi. On 17.06.2017, dead body of the deceased was found in an agricultural field outside the village and the matter was reported by his brother Mohanlal (PW-1).
4. Further case of the prosecution is that Deepak (PW-4), brother of the deceased, saw the respondent and deceased together, when they had left the house. After filing of the charge-sheet, the trial Judge has framed charge against the respondent under Sections 302, 201 and 404 of IPC and a separate charge under Section 3/25 of the Arms Act was also framed against him.
5. So as to hold accused-respondent guilty, prosecution has examined as many as eleven witnesses. Statement of the accused-respondent was recorded under Section 313 of Cr.P.C. in which, he pleaded his innocence and false implication.
6. By the impugned judgment, the trial Judge has acquitted the respondent-accused of all the charges. Hence the present appeal by the State.
7. Learned counsel for the appellant-State submits that the trial court has erred in law in acquitting the respondent. It has been argued that the evidence of last seen is apparently very clear and believing the same, court below ought to have convicted the accused.
8. We have heard learned counsel for the appellant and perused the record.
9. But for the evidence of last seen by (PW-4) Deepak, there is no other legally admissible evidence against the accused. Even the evidence of (PW-4) Deepak is not very clear as to at what point of time he saw the respondent and the deceased together and the court below has not found the said evidence reliable. The most important witness of last seen could have been the mother of the deceased Sukhrani Devi, who lodged the missing report, but she has not been examined by the prosecution for the best reasons known to it. Another important aspect of the case is that the amount allegedly taken by the deceased, while leaving the house, was seized along with the motorcycle and likewise the other articles including the bank documents have also been found in the motorcycle of the deceased.
10. Considering the evidence of last seen weak and not conclusive, the court below has come to the conclusion that there is no sufficient evidence against the accused. Granting him benefit of doubt, the court below has acquitted the accused. The view taken by the court below is one of the possible and plausible view.
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 Hon'ble 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 evnidence 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 Hon'ble 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 respondent.
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: 09.01.2020
Nethra/ C.Mani
(Dinesh Pathak, J) (Pritinker Diwaker, J)