Allahabad High Court
State Of U.P. vs Rahul Chaubey And 2 Others on 18 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 616
Bench: Bachchoo Lal, Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 49 Case :- GOVERNMENT APPEAL No. - 90 of 2021 Appellant :- State of U.P. Respondent :- Rahul Chaubey And 2 Others Counsel for Appellant :- A.G.A. Hon'ble Bachchoo Lal,J.
Hon'ble Sanjay Kumar Pachori,J.
In Re:-Criminal Misc. (Leave to Appeal) Application No. 90 of 2021, under Section 378 (3) Cr.PC.
1. We have heard learned A.G.A and have perused the leave application, the grounds of appeal and the judgment of the court below.
2. The application seeking the leave to appeal against the common judgment and order of acquittal dated 2.12.2020 passed by the Additional District and Sessions Judge/Special Judge POCSO Act1, 2012, Court no. 2, Varanasi in Special Sessions Trial No 96 of 2014 (State of UP. v. Rahul Chaube and 2 others), under Sections 363, 366, 376A, 506, 342, 386 Indian Penal Code (in short 'I.P.C.') and under sections 4, 16, 17 of the POCSO Act, 2012 and Special Sessions Trial No. 67 of 2014 (State v. Sanjay Chaube), under Sections 363, 366, 506, 342, 386 I.P.C. and under Sections 16, 17 of the POCSO Act, 2012, arising out of case crime no. 173 of 2014, Police Station Lanka, District Varanasi, has been filed on behalf of the State (the appellant).
3. The accused-respondents Rahul Chaube, Smt. Reeta Chaube and Shiv Dutt Tiwari were sent for trial on the charges under Sections 363, 366, 376A, 506, 342, 386 I.P.C. and under Sections 4, 16, 17 of the POCSO Act. The accused Sanjay Chaube died during the course of the trial, as such, proceeding against him was abated on 5.1.2018.
4. The first information report2 (Ex.Ka.-1) of the incident was lodged by Kripa Shankar Singh (PW-1/informant/father of the victim) against the accused-respondents and Sanjay Chaube (since deceased) as case crime no. 173 of 2014 has been registered on 2.5.2014 under Sections 363, 366 I.P.C. P.S. Lanka, District Varanasi, by alleging that his daughter/victim, whose date of birth is 5.7.1999, was residing at the residence of his son-in-law (PW-3) and she is the student of Ist year in Ambition Polytechnic College, Parav, Varanasi; and accused Rahul Chaube son of Sanjay Chaube, resident of Parav, P.S. Ramnagar, District Varanasi, who was also student of IIIrd year in the said college, used to visit the place of his daughter; on 27.3.2014 at about 8:00 a.m., accused Rahul Chaube, Sanjay Chaube, Grand-father of Rahul Chaube and mother of Rahul Chaube met his daughter/victim on her way to college and enticed away the victim, by a tempo.
5. During the course of investigation, the prosecutrix was recovered, on the information given by her that she was subjected to rape by the appellant Rahul Chaube, an offence under Section 376A IPC was added. Thereafter, the prosecutrix was sent for medical examination, her ossification test was conducted. Medical examination report (Ex.Ka.-4) and pathology report (Ex.Ka.-5) dated 11.06.2014 were prepared by Dr. Manju Singh (PW-4). The statements of the prosecutrix, her father (informant) and son-in-law of the informant (PW-3) were recorded under section 161 Cr.PC., viginal slides which were received from the hospital were sent to FSL. The Investigating Officer collected the victim's date of birth certificate, prepared a site plan of the place of the incident and victim's statement under Section 164 Cr.PC. was recorded.
6. After concluding the investigating, charge sheet (Ex.Ka.-9) was submitted against Sanjay Chaube under Sections 363, 366, 506, 342, 386 I.P.C. and under Sections 16, 17 of the POCSO Act, by PW-7 S.I. Vinod Kumar Yadav. Another charge sheet (Ex.Ka.-10) was also submitted by the investigating officer against the accused-respondents under Sections 363, 366, 376A 506, 342, 386 I.P.C. and under Sections 4, 16, 17 of the POCSO Act.
7. The trial court framed the charges against Rahul Chaube under Sections 363, 366, 376A, 506, 342, 386 I.P.C. and under sections 4, 16, 17 of the POCSO Act, and against Smt. Reeta Chaube, Sanjay Chaube and Shiv Dutt Tiwari under Sections 363, 366, 506, 342, 386 read with Section 34 I.P.C. and under sections 16, 17 of the POCSO Act.
8. In order to substantiate the charges against the accused-respondents the prosecution examined as many as 8 witnesses. P.W.-1 victim, P.W.-2 Kripa Shankar Singh (Informant/father of the victim), P.W.-3 Ashutosh Kumar Singh, (son-in-law of the informant) an eye-witness of the incident, P.W.-4 Dr. Manju Singh, (who conducted medical examination of the victim), P.W.-5 Virendra Kumar Singh (Principal, Saraswati Bal Vidhya Mandir High School, Jamaniya Station, Ghazipur), P.W-.6 CP Ram Pratap Yadav, (scribe) to prove the registration of the FIR (Ex.Ka.-7) and its G.D. Report (Ex.Ka.-8), P.W.-7 Vinod Kumar Yadav (IInd Investigating officer3) and P.W.-8 Mohd. Alamgir (Ist I.O.) were examined by the prosecution to prove various stages of the investigation such as preparation of site plan.
9. Out of aforesaid eight witnesses examined from the side of prosecution P.W.-1 victim, P.W.-2 Kripa Shankar Singh and P.W.-3 Ashutosh Kumar Singh are the witnesses of facts, they did not support the prosecution case and declared hostile by the prosecution.
10. Accused-respondents stated in their statement under Section 313 Cr.PC. that they have been falsely implicated by the police. No witness was examined by the defence.
11. The learned trial court, after thorough examination of the evidence led by the prosecution observed that as per written complaint, it is stated that the victim enticed away by the accused-respondents on the way of college; no place of incident was ascertained by the informant, but in the Chik F.I.R., P.W-.6 CP Ram Pratap Yadav has mentioned the place of incident Ganeshdham colony; site plan proved by PW-8 S.I. Mohd. Alamgir, who stated that he prepared the site plan on instance of the informant, inspite of that he admitted that the informant (PW-1) was not eye-witness of the incident.
12. The trial court found that alleged the recovery of the victim on 7.6.2014 is false because recovery memo of the victim has not been prepared; PW-1 victim in her statement under Section 164 Cr.PC. stated that she returned on 26.5.2014 after one and half month of the incident; whereas PW-2 father of the victim stated that he does not know from where the police recovered his daughter on 7.6.2014.
13. The trial court further found that there is cutting and overwriting in transfer leaving certificate (Ex.Ka.-6) at the place of date of birth of the victim, as mentioned 5.7.1999. PW-1 victim stated that her parents had written her age lower in school in order to conceal her actual age. She was 18 years 6 months old at the time of the incident. PW-2 father of the victim also admitted and corroborated the above facts and stated that he had written victim's age lower in school to her actual age. She was 18 years 6 months old at the time of the incident. She was adult at the time of the incident. Learned trial court after considering testimony of PW- 5 Veerendra Kumar Singh and the radiologial age of the victim held that at the time of the incident the victim was below 18 years age.
14. The trial court further found that PW-1 victim stated that she voluntarily went to Delhi on a tour with other students. Rahul Chaube did not entice her away and so far as other accused persons are concerned, they have no concern with the alleged incident. Rahul Chaube did not commit rape with her because she was staying with other girls. She returned home after one and half month and she further stated that the statement under section 164 Cr.PC. was recorded under the pressure of the police. PW-2 Kripa Shankar Singh corroborated the above facts and stated that victim told him that she voluntarily went to Delhi on a tour with other students. Rahul Chaube and other accused persons did not entice her away. PW-3 Ashutosh Kumar Singh stated that he did not know Rahul Chaube before the incident. He was not an eye-witness of the incident. When his sister-in-law (Sali) informed him by mobile call from Mugalsarai then he gone along with police to take her from Mugalsarai.
15. The trial court, in addition to above, also noticed that there is unexplained delay of 35 days in lodging the FIR of the present case, the prosecution has not given any reason or explaination about delay of lodging the F.I.R. PW-2 Kripa Shankar Singh stated that he lodged the F.I.R. on the basis of information given by other persons. He did not know the names of the persons, who have given the information about the incident. The statement of victim under section 164 Cr.PC was recorded on 17.6.2014 after 10 days of the alleged recovery of the victim on 7.6.2014. The trial court further noticed that the statement of victim under section 164 Cr.PC. was recorded actually after 20 days after her return, during the custody of her parents.
16. Apart from this, learned trial court found that the victim (PW-1), informant (PW-2) and eye-witness (PW-3) have not supported the prosecution version, the prosecution has failed to prove the charges levelled against the accused-respondents, therefore, acquitted them.
17. Learned A.G.A. submits that as per the prosecution case, the F.I.R. of case crime No. 173 of 2014 has been lodged under section under Sections 363, 366 I.P.C. against the accused/respondents and Sanjay Chaube on 2.5.2014 at P.S. Lanka, District Varanasi.
18. Learnded A.G.A. further submitted that the prosecutix was minor at the time of the incident, as per High School certificate and there is sufficient evidence to prove the complicity of the accused-respondents in commission of offence. It is further contended that medical evidence of the victim has also been wrongly disbelieved by the trial court. The victim was enticed away by Rahul Chaube from the lawful guardianship along with other accused-respondents and she was raped by Rahul Chaube. The learned trial court without considering the evidence on record acquitted the accused-respondents. The judgment and order impugned cannot be sustained.
19. We have given thoughtful consideration to the submissions of the learned A.G.A. and have carefully persued the judgment passed by the court below.
20. Before we proceed to examine the weight of the submissions made on behalf of the State, it would be useful to notice the law with regard to the scope of power of the appellate court in interfering with the judgment of acquittal recorded by the trial court.
21. The Supreme Court in various judgments has repeatedly laid down that unless the findings of trial court are perverse or contrary to the material on record, High Court cannot, in appeal, substitute its findings merely because another contrary view was possible on the basis of the evidence. (Vide: C. Antony v. K.G. Raghavan Nair4). If the view of the evidence taken by the trial court is reasonably possible, the High Court should not, as a rule of prudence, disturb the acquittal. (Vide: Sirajuddin @ Siraj v. State of Karnataka5)
22. In State of Madhya Pradesh v. Ramesh And Another,6 the Apex Court, while considering the scope of intereference in appeal against acquittal observed in paragraph no. 15 of the aforesaid judgment which is reproduced herein below:
Appeal against acquittal "15. We are fully alive of the fact that we are dealing with an appeal against acquittal and in the absence of perversity in the said judgment and order, intereference by this Court exercising its extraordinary jurisdiction, is not warranted. It is settled proposition of law that the appellate court being the final court of fact is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court and there can be no quarrel to the said legal proposition that if two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal."
23. In Mrinal Das and Others v. State of Tripura,7 the Supreme Court further observed similar position of law as provided in para 14 of the aforesaid judgment which is as under:
"14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are 'compelling and substantial reasons' for doing so. If the order is 'clearly unreasonable', it is a compelling reason for intereference. When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc., the appellate court is competent to reverse the decision of the trail court depending on the materils placed."
24. In Mahadeo Laxman Sarane and Another v. State of Maharashtra,8 the Apex Court has observed in para 20 of the aforesaid judgment which is as under:
"...............We are conscious of the settled legal position that in an appeal against acquittal the High Court ought not to interfere with the order of acquittal if on the basis of the same evidence two views are reasonably possible- one in favour of the accused and the other against him. In such a case if the trial court takes a view in favour of the accused, the High Court ought not to interfere with the order of acquittal. However, if the judgment of acquittal is perverse or highly unreasonable or the trial court records a finding of acquittal on the basis of irrelevant or inadmissible evidence, the High Court, if it reaches a conclusion that on the evidence on record it is not reasonably possible to take another view, it may be justified in setting aside the order of acquittal............."
25. In Ramesh Babulal Doshi v. The State of Gujarat,9 the Apex Court observed in para 7 of the aforesaid judgment which is as under:
"..........This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot consitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusion arrived at by it were wholly untenable. 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 pulpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not 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 conclusion.........."
26. In Rohtash v. State of Haryana,10 the Apex Court held in para 27 of the aforesaid judgment which is reproduced herein below:
"..........The law of interering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolesters the presumption of innocence. Intereference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
27. In Sampat Babso Kale and Another v. State of Maharashtra,11 the Apex Court observed in para 8 of the aforesaid judgmnet which is reproduced herein below:
"8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is accquited by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in Chandrappa v. State of Karnataka12, laid down the following principles: (SCC, p.432, para 42) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(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 'flourshes of language' to emphasise the reluctance of an appeallate 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 findings of acquittal recorded by the trial court."
28. The above principle of law has been reiterated and affirmed further in Mookkiah and Another v. State, rep. by the Inspector of Police, Tamil Nadu13 and in Ramesh and Others v. State of Haryana,14 where it has been held that the scope of intereference in an appeal against acquittal is narrower, than an appeal against conviction because presumption of innocence gets further fortified by an order of acquittal and the appellate court need not substitute its finding unless there is substantial and compelling reasons to differ with the findings of the trial court, or where the finding of the trial court is perverse or against the settled position of law.
29. Keeping in mind the legal principles noticed above, now, we shall examine the weight of the submissions with reference to the evidence led by the prosecution and the findings returned thereon. Before that, at the outset, it may be observed that in the application seeking leave to appeal as well as in the memorandum of appeal, it has not been stated that the trial court has misread or misquoted the statement of the prosecution witnesses. We have therefore to first ascertain whether the findings of the trial court are sustainable or not. The thurst of the submission of the learned A.G.A. is that the trial court has not appreciated the statement of the victim recorded under Section 164 Cr.PC. wherein the victim has supported the prosecution version.
30. It is case in which ocular evidence of the prosecution i.e. PW-1 victim, PW-2 Kripa Shankar Singh and PW-3 Ashutosh Kumar Singh did not support the prosecution case and they declared hostile by the prosecution after leave of the court. After close scrutiny of the whole judgment, we have not found any evidence which suggests any complicity of the accused-respondents in the present case.
31. It is settled position of law that a statement under Section 164 of the Cr.PC. is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. (Vide: Ram Kishan Singh v. Harmit Kaur and another15).
32. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. (Vide: Bhajju @ Karan Singh v. State of Madhya Pradesh16)
33. Considering the fact and circumstances of the case, and with reference to the principles goveringing the weighing of evidence, we do not find any factual or legal error in the assessment of the evidence by the court below while acquitting the accused-respondents. Hence, keeping in mind the settled legal postition that in an appeal against acquittal the appellate court should not interfere unless there are compelling reasons to differ with the finding of the trial court and not merely because the other view is also possible, we are of the considered view that no compelling reasons has been shown to us to grant leave to the State so as to entertain appeal against the judgment and order of acquittal passed by the court below. Consequently, the application seeking leave to appeal is rejected. As a result, the government appeal is dismissed.
34. We may put on record that according to the office report no appeal has been filed by the victim against the judgment and order of the court below.
Order Date :- 18.3.2021
aks
(Sanjay Kumar Pachori, J.) (Bachchoo Lal, J.)