Dismissed

State of U.P. v. Mahavir and Others

Allahabad HC16 Jul 2018GOVA/3539/2008

Case brief

AI extract

What is this about?

This court rejected an application for leave to appeal and dismissed the appeal against an order of acquittal in a criminal prosecution. The High Court held that there was no illegality or perversity in the trial court's findings, relying on the heavy presumption of innocence and the trial judge's advantage in assessing witness credibility.

What did the court decide?

Application for leave to appeal rejected; appeal dismissed; lower court record sent back.

State of U.P. Vs Mahavir and Others — Criminal Trial and Appeal | Allahabad HC (2018)

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Court No. - 51

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Case :- GOVERNMENT APPEAL No. - 3539 of 2008

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Appellant :- State Of U.P. Respondent :- Mahavir & Others Counsel for Appellant :- Govt. Advocate

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Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.

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Heard Sri Rajesh Mishra, learned A.G.A. appearing for the State on the application seeking leave to appeal against the judgment and order dated 28.1.2008 by means of which the accused-respondent Nos. 1 to 5 have been acquitted by learned Additional District and Sessions Judge, Court No.3, Agra in S.T. No. 680 of 1995 (State Vs. Mahavir and others) under Section 147, 148, 323 read with section 149, 307 read with section 149 and 506 IPC.

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We have also heard learned A.G.A. at great length and we has also perused the findings as recorded by the court concerned.

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The learned A.G.A. has failed to point out any illegality and perversity in the findings recorded by the lower court. The relevant findings for the purpose of ready reference are being quoted hereinbelow:

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tc fd pqVsy lk{kh iw.kZr% fo'oluh; ugha gS vkSj rF; ds nksuks ijhf{kr lk{khx.k ihMCyw&1 o ih0MCyw&2 Hkh mijksDr foospu ds vk/kkj ij egRoiw.kZ fcUnqvksa ij fojks/kkHkklh c;ku nsrs gS vkSj dzkl dsl ntZ gksus ds ckctwn vthr ih0MCyw0&3 o oknh ih0MCyw0&1 ? kVuk Lfky viuk /kj crkrs gS vkSj bl Lfkku ij foospd dh LohdkjksfDr ds vuqlkj reapksa fd, x, Qk;jksa ds fpUg nhokjksa vkfn ij ugha feyrs gS vkSj u dksbZ NjkZ o fVDyh vkfn feyrs gS rFkk Lo;a brus xEHkhj :is ls ?kk;y xhre flag dk u fpfdRlh; ijh{k.k djk;k tkrk gS vkSj u mls lk{; esa is'k fd;k tkrk gS rkj }kjk ftykf/kdkjh o ofj"B iqfyl v/kh{kd dks izf"kr lwpuk dk dksbZ izek.k ugha fn;k tkrk gS vkSj ukgh ;g U;k;ky; ds le{k yk;k tkrk gS fd ml rkj esa izFke ckj D;k ckrs mfYyf[kr dh xbZ Fkh] ftl rgjhjh ij eqdnek dk;e gksrk gS ml Vkbi 'kqnk rgjhj ij dksbZ frfFk rd vafdr ughs gS o Lohdr :i ls izFkelwpuk fjiksVZ izn'kZ d&1 ds vk/kkj ij eqdnek vR; vf/kd fcyEc ls iathdr gqvk gS rFkk bu dqy ifjfLFkfr;ksa dks n`f"Vxr j[krs gq, esls fopkj ls vfHk;qDrx.k ds fo:} vfHkdfFkr :i ls lUnsg ls ijs vfHk;kstu dFkkud fl} gksuk ugha ekuk tk ldrk fo'ks"kdj tc fd cpko i{k ds vXus;kL= dh pksVs gSa vkSj bldk Li"Vhdj.k izFkeckj ih0MCyw0&3 vthr vlR; :i ls nsus dk iz;kl djrk gSA

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Regard may also be had to the consistent legal position with regard to the scope and interference by the High Court in the judgement and order of acquital. 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:

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"The Supreme Court started by citing Lord Russell in

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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:

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(1) The views of the trial Judge as to the credibility of the witnesses;

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(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.

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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."

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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

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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 reevaluation 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.

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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.

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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.

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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.

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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

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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.

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Order Date :- 16.7.2018 Manish Tripathi

State of U.P. v. Mahavir and Others

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State of U.P. v. Mahavir and Others

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