The High Court rejected the application for leave to appeal against acquittal in an offense under IPC 460. The court held that the trial court's finding was not perverse and the Appellant failed to show any illegality. Consequently, the appeal was dismissed.
Application seeking leave to appeal rejected; Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Court No. - 51
Case :- GOVERNMENT APPEAL No. - 1150 of 2014 Appellant :- State Of U.P. Respondent :- Narsu Alias Nasruddin And 5 Others Counsel for Appellant :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri Arun Kumar Singh, learned AGA appearing for the State at length on the application seeking leave to appeal against the judgment and order dated 31.10.2013 by means of which the accused-respondents Narsu @ Nasruddin, Salman, Akbar @ Dukhna, Afzal, Mukhtyar & Kammu @ Shobhi have been acquitted for the offences under section 460 IPC.
We have also perused the findings as recorded by the court concerned.
Sri Arun Kumar Singh, learned AGA has taken the Court to the entire evidence on record and the findings recorded by the court concerned. However, he has failed to attribute any illegality or perversity with the findings as recorded by the court concerned on the basis of which the court concerned has recorded the verdict of acquittal in favour of the accused-respondents.
Without going into the details of the findings of the court, we would like to extract here-in-below the discussion of the court below with regard to the testimony of P.W.-3 and P.W.10 namely Sandhya and Amit Kumar, who happened to be real brother and sister of the deceased and who were present on the spot.
mijksDr lk{; dh ehekalk djus ij ih0MCyw0 3 la/;k mQZ lk/kuk vfHk;qDrx.k ds [kqys psgjs crk;s gSa] tcfd ih0MCyw0 10 vfer dqekj us vfHk;qDrx.k ds psgjksa ij diMs dk <kaVk ca/kk gksuk crk;k gS la/;k us ?kj ds vUnj fctyg dk cYc tyuk crk;k gS] ftlesa vfHk;qDrx.k dks igpukuuk crk;k tcfd vfer us ?kj ds
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vUnj FkksMk va/ksjk o ckgj dh jks'kuh esa vfHk;qDrx.k dks igpkuuk crk;k gSA ?kj esa jks'kuh ds lanHkZ esa dksbZ izdk'k dk Jksr cYc ;k V~;wqv ykbV uD'kk utjh esa u rks ntZ gS vkSj u gh dksbZ QnZ ;k b.MSDl esa vafdr fd;k x;k gSAih0MCyw0 10 ds vuqlkj mldk c;ku iqfyl us ?kVuk ds nks rhu ckn vLirky esa fy;k gS tc fd ih0MCyw0 3 ds vuqlkj mldk o ih0MCyw0 10 dk c;ku iqfyl us ?kVuk ds Ms< ekg ckn Fkkus ij cqykdj fy;k gSA foospd }kjk fdlh Hkh lk{kh ds c;ku esa vfHk;qDrx.k dk uke ?kVuk dkfjr djus esa ugha crk;k x;k gS vkSj u gh dksbZ igpku o f'kuk[r djuk crk;k gS rFkk vfHk;qDrx.k dh igpku djus Fkkus ij ugha cqyk;k gS vlls ;g rF; Li"V gS fd vfHk;qDrx.k dh fu;ekuqlkj f'kuk[r ugha djkbZ x;h gS vkSj ih0MCyw0 3 o 10 tksfd p{kn'khZ lk{kh gS] us /kkjk 161 n0iz0la0 ds c;ku esa u rks vfHk;qDrx.kdh igpku] jax:i igukok o mez vkfn ds ckjs esa dgk gS vkSj u gh Fkkus ij vfHk;qDrx.k dks ns[kk gS] cfYd egRoiw.kZ ;g gS fd ih0MCyw0 3 vkgr dq0 la/;k mQZ lk/kuk us vfHk;qDrx.k d [kqys psgjs crk;s gS] tcfd ih0MCyw0 10 vkgr vfer us vfHk;qDrx.k ds psgjksa ij <kaVs ca/ks gksyj crk;k gSA ,d gh le; nks lkf{k;ksa }kjk vfHk;qDr x.k dh igpku ?kVuk ds le; eqag ij <kVs cka/kuk o eqag [kqys gksuk crk;k gS rFkk fdlh Hkh lk{kh us foospd dks;g izkFkfedh esa vfHk;qDrx.k ds uke o mudh 'kDy lwjt ds ckjs esa ugha dgk gS vkSj egRoiw.kZ iz'u ;g gS fd lk{kh ih0MCyw0 3 o 10 us izFke ckj U;k;ky; esa fnukad& 02-09-2011 o 04-9-2013 dks vfHk;qDrx.k dh igpku dk dFku fd;k gS[ cfYd lk{kh ih0MCyw0 3 us ;g Hkh dgk gS fd og vfHk;qDrx.k ds uke ugh tkurh gS] psgjs ls igpkurh gS] ysfdu viuh eq[' ijh{kk esa vfHk;qDrx.k ds uke mudh miuke lfgr
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crk;s gSaA va/ksjs dh ?kVuk gS] igpku dk dksbZ izdk'k dk Jksr vfHk;kstu fl) ugha dj ldk gS rFkk ih0MCyw0 3 }kjk vfHk;qDrx.k ds uke crk;s gS] tcfd mlds }kjk vius firk dks] foospd dks ;k vU; fdlh izdkj ls vfHk;qDrx.jk ds uke c;ku ls iwoZ fdlh dks ugha crk;s gSA ih0MCyw0 10 }kjk vfHk;qDrx.k ds psgjs diMs ds <kaVs ls ca/ks gksuk crk;s gSa rFkk vU; dksbZ igpku] tSlsfd vfHk;qDrx.k dk cksyuk] tks fd vfHk;kstu us badkj fd;k gS fd vfHk;qDrx.k cksy ugha jgs Fks] pky] ÅapkbZ] ftLe dh cukoV vkfn ds lanHkZ esa dksbZ dFku ugha fd;k gSA foospd }kjk u rks dksbZ f'kuk[r ] f'kuk[r ijsM ds ek/;e ls djkbZ x;h gS vkSj u gh Fkkus ij djkbZ gSA
Learned AGA, has not been able to show that the findings as has been extracted hereinabove are not based on evidence on record or are perverse.
Thus, in view of the fact that the Court has given cogent reasons after going through the entire evidence on record as there is absence of any illegality or perversity being attributed to the court concerned or to the view taken by the court concerned and also in view of law laid down of the Apex Court in the case of Murlidhar @ Gidda & Another vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No.791 of 2011, wherein it has been observed as under:
The Supreme Court started by citing Lord Russel 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;
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(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
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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 reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgement 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. & others, 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.
In view of the aforesaid facts and circumstances of the case, 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.
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The lower court record be sent back to the court concerned at the earliest.
13.07.2018 SKD
3 issues framed by the court
Whether the appellate court should interfere with the trial court's acquittal when no illegality or perversity is established.
Whether the view of the trial court regarding witness credibility can be disturbed without substantial and compelling reasons.
Whether the application for leave to appeal against the acquittal was maintainable.
Colour shows how this judgement treated each authority
Murlidhar @ Gidda & Another vs. State of KarnatakaRelied on¶15
Murlidhar @ Gidda & Another vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No.791 of 2011
Surajpal SinghExplained¶21
Surajpal Singh (2)
Tulsiram KanuExplained¶22
Tulsiram Kanu (3)
Basappa vs. State of KarnatakaReferred¶25
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. & othersReferred¶25
Ashok Rai vs. State of U.P. & others, decided on 15.04.2014 in Criminal Appeal No.1508 of 2005
Ramesh Harijan vs. State of U.P.Referred¶25
Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990 · Who else cites this
Murugesan vs. State through Inspector of PoliceReferred¶25
Murugesan vs. State through Inspector of Police reported in 2012 AIR SCW 5627 · Who else cites this
2 provisions across 2 enactments
State Of U.P.
Narsu Alias Nasruddin
Salman
Akbar @ Dukhna
Afzal
Mukhtyar
Vipin Sinha
Ifaqat Ali Khan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
