Satender Cuad Thesis Above grounds of appeal against acquittal of respondent under Section 376 IPC was dismissed. Bench held that trial court assumptions were reasonable and evidence supported acquittal. No case for interference. Appeal dismissed.
Leave to appeal refused; appeal dismissed; order of acquittal affirmed.
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Court No. - 51
Case :- GOVERNMENT APPEAL No. - 432 of 2018 Appellant :- State Of U.P. Respondent :- Om Prakash Counsel for Appellant :- G.A. Counsel for Respondent :- Saksham Srivastava
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard learned AGA on the application seeking leave to appeal against the judgment and order dated 10.10.2017 by means of which all the accused – respondents have been acquitted for the offence punishable under section 376 IPC.
It may be appreciated at the very outset itself that as far as first information is concerned, he was not examined; the record further shows that with regard to testimony of victim the court below has observed herein as under:
ihfM+rk dk fpfdRlh; ijh{k.k fnukad 24-10-2008 dks vFkkZr bl ?kVuk ds 12 fnu ckn lEiUu djk;k x;k gSA fnukad 24-10-2008 dks fpfdRlh; fjiksVZ ds vuqlkj ihfM+rk ds isV esa 35 lIrkg dk cPpk vFkkZr 8 ekg 21 fnu dk cPpk mlds isV esa Fkk tks LoLFk Fkk rFkk cPps ds vUnj os lHkh jklk;fud rRo i;kZIr :i esa fo|eku Fks tks 35 lIrkg ds cPps ds vUnj gksuk pkfg, vkSj cPpk gjdr esa FkkA fnukad 25-10-2008 dks vFkkZr fpfdRlh; ijh{k.k fd;s tkus ds ,d fnu ckn dh frfFk fpfdRld }kjk cPpk iSnk gksus dh lEHkkfor frfFk crk;h x;h gSA blh vk'k; dk c;ku vfHk;kstu vksj dh i{k ls ijhf{kr fpfdRlh; lk{kh ih0MCyw0&2 us fd;k gSA tSlk fd ihfM+rk ds c;ku ls ;g Li"V gS fd bl ? kVuk ds 9&10 eghus igys ls mlds lkFk lEHkksx gks jgk gSA ;g lEHkksx ihfM+rk dh bPNk ds fo:) vkSj tcjnLrh fd;k tk jgk gS] ihfM+rk }kjk fd;k x;k ;g c;ku iwjh rjg ls vfo'oluh; izrhr gksrk gSA lkekU;r;k;g rF; Lohdkj ugha fd;k tk ldrk fd fdlh efgyk ds lkFk mldh bPNkds fo:) yxkrkj 10 eghus rd cykRdkj fd;k tk;s vkSj og efgyk mDr ?kVuk ds fo"k; esa vius ifjokj ds fdlh Hkh lnL; dks u crk;sA lkFk gh lkFk ;g rF; Hkh fo'oluh; ugha gS fd fdlh vfookfgr yM+dh ds xHkZ esa 35 lIrkg dk cPpk iy jgk gks vkSj bldh tkudkjh mlds ifjokj ds fdlh lnL; dks u gksA tSlk fd izFke lwpuk fjiksVZ o fpfdRlh; fjiksVZ ls Li"V gS fd ;g ?kVuk ftl frfFk dh crk;h x;h gS] ml frfFk ds 15 fnu ds vUnj cPpk iSnk gksus dh vof/k iw.kZ gksrh gS vkSj blh vof/k ds vUnj cPpk iSnk gksuk gSA cPpk iSnk gksus ds 15 fnu ds iwoZ fdlh efgyk ds izfr fdlh iq:"k }kjk tcjnLrh cykRdkj fd;k tkuk Hkh vfo'olh; izrhr gksrk gSA D;ksa fd og vof/k ,slh vof/k gksrh gS tc efgyk dk pyuk fQjuk Hkh cgqr vklku ugha gksrk gSA ;gha ij ;g rF; Hkh mYys[kuh; gS fd vfHk;qDr ,d iSj dk fodykax gS] tks Lohd`r rF; gSA ,d iSj ds fodykax O;fDr }kjk fdlh LoLFk efgyk ds lkFk tcjnLrh cykRdkj fd;k tkuk Hkh vfo'oluh; izrhr gksrk gSA D;ksa fd ,d iSj dk fodykax O;fDr LoLFk efgyk dh vis{kk 'kkjhfjd :i ls detksj gksxk vkSj ,slh fLFkfr esa ;fn efgyk }kjk okLro esa cykRdkj djus dk fojks/k fd;k tkrk rks fdlh Hkh fLFkfr esa ,sls fodykax O;fDr }kjk tcjnLrh cykRdkj fd;k tkuk lEHko u gksrkA izLrqr ekeys esa ,slk izrhr gksrk gS fd ihfM+rk dh lgefr ls vfHk;qDr }kjk v;qDr lEHkksx fd;k x;k vkSj tc ihfM+rk xHkZorh gks x;h vkSj mldks cPpk iSnk gksus dk le; vk x;k rks mlds firk }kjk dfFkr ?kVuk dh frfFk ij xyr rjhds ls ihfM+rk ds izfr tcjnLr cykRdkj djuk crkrs gq, izFke lwpuk fjiksVZ vafdr djk;h x;hA ihfM+rk }kjk fd;k x;k ;g dFku fd mlus Mj dh otg ls yxkrkj 10 eghus ls gks jgs cykRdkj ds fo"k; esa vius ifjokj okyksa dks ugha crk;k gS] iwjh rjg ls vlR; ,oa vfo'oluh; gSA mijksDr fLFkfr esa ,d ek= lk{kh ihfM+rk dk c;ku ? kVuk ds lUnHkZ esa lafnX/k izrhr gksrk gS vkSj ?kVuk dh iqf"V ugha djrkA vr% ihfM+rk dk ,dy lk{; vfo'oluh;] fojks/kkHkk"kh gksus ds dkj.k ,dek= mlds lk{; d vk/kkj ij ?kVuk dh iqf"V gksuk ugha
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ekuk tk ldrkA ?kVuk ds vU; p'enhn lk{kh ?kVuk dk leFkZu ugha fd;s gSA ihfM+rk dh ekW tks cpko i{k dh rjQ ls izLrqr dh x;h gS] mlus vfHk;qDr }kjk viuh yM+dh ds izfr cykRdkj dh ?kVuk ls bUdkj fd;k gSA
The record shows that the findings as recorded in the order impugned are cogent and fully supported by the evidence on record and it cannot be said by any stretch of imagination that the view taken by the concerned court is perverse or illegal and is not possible or that the view as taken by the concerned court is not supported by the evidence on record. It is also not being disputed that the stand taken by the trial court is duly supported by the evidence on record and it cannot be said that the view taken by the trial court is absolutely perverse or illegal.
Reference may be made to the recent judgment of the Apex Court rendered in the case of Bannareddy & Ors. vs. The State of Karnataka & Ors reported in 2018 (5) SCC 790 wherein the Apex Court has held as under:
11. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in the case of Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 11 SCC 186, para 13, wherein this Court observed that: “The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence
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properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt.
12. It is not in dispute that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favor. [Vide Rabindra Kumar Pal @ Dara Singh vs. Republic of India, (2011) 2 SCC 490 in para. 94].
27. Keeping in view the facts and circumstances of the case, we hold that the prosecution was not able to establish the guilt of the accused persons beyond reasonable doubt. Further, the High Court should not have re-appreciated evidences in its entirety, especially when there existed no grave infirmity in the findings of the trial court. There exists no justification behind setting aside the order of acquittal passed by the trial court, especially when the prosecution case suffers from several contradictions and infirmities. No specific assertion could be proved regarding the role and involvement of the accused persons. Further, certain actions of the victimrespondents themselves are dubious, for instance admitting themselves later in a Multi-speciality
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hospital without proper cause. It has further come to our notice that respondents have already compromised and have executed a compromise deed to that extent, though the same is not the basis for our conclusion.
Reference may also be made to the judgments of the Apex Court rendered in the cases of Sanmwat Singh Vs. State of Rajasthan reported in 1961 SC 715 , Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011, Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appea
l 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 and Murugesan v. State through Inspector of Police reported in 2012 AIR SCW 5627 . 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.
It is an established position of law that if the court below has taken a view which is a possible view in a reasonable manner, then the same shall not be interfered with.
After perusal of the impugned judgment shows that the trial court after a thorough marshalling of the facts of the case and a microscopic scrutiny of the evidence on record has held that the prosecution has failed to prove the charge against the accused respondents and the findings recorded by the learned trial judge in the impugned judgment are based upon evidence and supported by cogent reasons.
No interference with the impugned judgment and order of acquittal is warranted. Accordingly leave to appeal is refused and application is rejected. Consequently, the appeal also stands dismissed.
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Copy of the order be certified to the court concerned for consequential follow up action.
Order Date :- 20.7.2018/A.N. Mishra
3 issues framed by the court
Whether the High Court can interfere with the acquittal of the accused when the trial court's findings are supported by evidence and are reasonably possible views.
Whether the prosecution has established the guilt of the accused beyond reasonable doubt based on the available evidence.
Whether any illegality or perversity exists in the impugned order of acquittal warranting interference.
Colour shows how this judgement treated each authority
Bannareddy & Ors. vs. The State of Karnataka & OrsReferred¶11
Bannareddy & Ors. vs. The State of Karnataka & Ors reported in 2018 (5) SCC 790 · Who else cites this
Sambhaji Hindurao Deshmukh and Ors. vs. State of MaharashtraReferred¶12
Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 11 SCC 186 · Who else cites this
Rabindra Kumar Pal @ Dara Singh vs. Republic of IndiaReferred¶12
Rabindra Kumar Pal @ Dara Singh vs. Republic of India, (2011) 2 SCC 490 · Who else cites this
Sanmwat Singh Vs. State of RajasthanReferred¶18
Sanmwat Singh Vs. State of Rajasthan reported in 1961 SC 715
Murlidhar @ Gidda & Anr. Vs. State of KarnatakaReferred¶18
Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011
Basappa Vs. State of KarnatakaReferred¶18
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.Referred¶18
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.Referred¶18
Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990 · Who else cites this
Murugesan v. State through Inspector of PoliceReferred¶18
Murugesan v. State through Inspector of Police reported in 2012 AIR SCW 5627 · Who else cites this
State Of U.P.
Om Prakash
Vipin Sinha
Ifaqat Ali Khan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
