Allahabad High Court
State Of U.P. vs Chootoo Alias Ramesh Gupta on 10 July, 2019
Author: Pradeep Kumar Srivastava
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 82 Case :- GOVERNMENT APPEAL No. - 2982 of 1998 Appellant :- State Of U.P. Respondent :- Chootoo Alias Ramesh Gupta Counsel for Appellant :- A.K. Misra Hon'ble Pradeep Kumar Srivastava,J.
This appeal is of the year 1998 and from perusal of order sheet, it appears that after filing leave petition, it has been listed today for the first time and as such long period has already been lapsed.
Heard Sri M.P. Singh Gaur, learned A.G.A. for the State-appellant on the application seeking leave to appeal against the judgement and order dated 22.6.1998 by means of which accused-respondent has been acquitted for the offence under Section 20-B (ii) of N.D.P.S. Act.
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 the learned trial court is against the evidence on record. He next submitted that the learned trial court has committed a patent error of law and ignored the material evidence on record while holding that the prosecution had failed to prove the charge against the accused-respondent beyond the reasonable doubt.
From perusal of judgment of learned trial court, it appears that learned trial court has found that no statement was taken by the Investigating Officer that Investigating Officer was junior officer to the officer who conducted search and recovered Charas from the accused, on what basis the place of incident was shown in the site map was not clarified by the prosecution. The mandatory provision of Section 42 of N.D.P.S. Act was not complied with as no information was rendered to the superior officer about the arrest of the accused and recovered charas. Lastly, the learned trial court found that the mandatory provision of Section 50 of N.D.P.S. Act was also not complied with and the reason given by the prosecution witnesses was found to be unbelievable by the trial court. The learned trial court further found that no effort was made to arrange any public witness at the time of recovery nor any public witness was examined in support of prosecution version.
Finding that mandatory provisions of N.D.P.S. Act which have been incorporated as safeguard for protection of accused were not complied with by the police team while conducting search of accused, the admitted fact is that charas was recovered from personal search, therefore, the finding of learned trial court for compliance of Sections 42 and 50 was mandatory.
It is 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."
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.
Reference, may also be made to the judgment of the Apex Court rendered in the cases of Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal No. 512 of 2014, Ashok Rai Vs. State of U.P. & Ors, Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005, Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990, Murugesan vs. State through Inspector of Police reported in 2012 AIR SCW 5627, which also lay down the same proposition of law on the point.
In view of above, it cannot be said that the view taken by the Court below is not possible and plausible thus the judgment of the court below cannot be interfered with by this Court only on account of the fact that another view is possible.
Learned A.G.A. has not been able to point out any illegality or perversity with the findings as recorded by the court below and thus it cannot be said that the view taken by trial court is a perverse view.
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. No interference with the impugned judgment and order of acquittal is warranted.
Accordingly, the application seeking leave to appeal is rejected. Consequently, appeal is also dismissed.
Let a copy of this order be certified to the court concerned for necessary compliance.
Order Date :- 10.7.2019 RCT/-