The High Court dismissed an appeal filed by the State against the acquittal of accused persons. The Court held that the trial judge's view was a possible one, supported by cogent reasons, and thus required no interference.
Leave to appeal was refused and the government appeal was 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. - 6027 of 2011 Appellant :- State Of U.P. Respondent :- Hari Om Upadhyay & Others Counsel for Appellant :- Govt. Advocate
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri Rajesh Mishra, learned Additional Government Advocate on the application seeking leave to appeal and perused the record.
The present government appeal has been filed along with an application for seeking leave to appeal against the judgment and order dated 19.7.2011 passed by Special Judge (SC/ST Act), Jalaun in S.T. Nos. 75/2009 and 86/2009 whereby accused-respondents, namely, Hari Om Upadhyay, Shaym Singh and Vivek Tiwari have been acquitted for the offences under Sections 302/34, 323/34, 504, 506, 452 IPC & 3(2)(5) SC/ST Act and under Section 25 of the Arms Act, P.S. Rampura, District Jalaun.
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 learned trial judge is against the evidence on record. He has next submitted that the learned trial judge 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 respondents beyond the reasonable doubt.
We have perused the judgment and order dated 19.7.2011 and the findings as recorded therein.
Perusal of the judgment shows that the FIR is anti-timed and there is a vast contractions in the testimony of PW-1 and PW-2 even the recovery has been disbelieved by the court concerned and there are a number of discrepancies in the testimony of PW-1 and PW-2.
While recording the verdict of acquittal, the court concerned has recorded the following conclusion:
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“ lk{kh ih0MCyw0&2 Jherh Å"kk nsoh us ?kVuk ds lEcU/k esa dFku fd;k gS fd esjs ifr ?kVukLFky lh/ks jkeiqjk x;s Fks vkSj eSus vius ifr ?kVuk dks vdsys tkrs ns[kk Fkk mlds ckn xkao ds vkSj yksx ftlesa lqnkek izlkn] jkedsl] lqnkek izlkn vk x;s Fk vkSj tc iqfyl ekSds ij vk;h rks eSa s ekSds ij ekStwn Fkh vkSj iwNrkN ds le; eSus iqfyl okyks dks dqN ugh crk;k Fkk iqfyl okyks us eq>ls u iwNk vkSj u crk;k tcfd ;g ?kVuk dh izR;{kn'khZ lk{kh Fkh bldks Lo;a gh ?kVuk ds ckjs esa iqfyl dks crkuk pkfg;s blus ugh crk;k vkSj foospd us Hkh bldk c;ku ?kVuk ds 17 fnu ckn vafdr djuk crk;k gS vkSj vfHk;qDrx.k }kjk lkr Qk;j djuk crk;k x;k tcfd ekSds ls dksbZ Hkh [kks[kk dkjrwl cjken ugh fd;k x;k vkSj u gh mldh QnZ cuk;h x;hA
mDr lk{kh dh mifLFkfr ds lEcU/k esa ih0MCyw0&5 ,l-vkbZ- Jhdsl us dFku fd;k gS fd iapk;rukek Hkjus ds nkSjku eq>s erd ds ifjokj dk dksbZ Hkh lnL; ekStwn ugh Fkk erd ds 'kjhj ij eSus Lo;a diM+s mrkjs Fks vkSj ;g Hkh dFku fd;k gS fd iapk;rukek ds le; eSus ,d pksV ik;h Fkh pksV esa dksbZ diM+k ugh ca/kk ik;k Fkk tc eSa iapukek Hkjus x;k Fkk rc iap jkeLo:i] jes'k] dYyw o cCyw o jkedsl dks eSus iap fu;qDr fd;k Fkk ;g ?kVuk ds lk{kh Fks ;k ugh] eSa ugh crk ldrk gw¡ vkSj mDr iapks dks ih0MCyw0&1 lk{kh us vius lkFk ?kVuk dh rgjhj nsus Fkkus tkus dk dFku fd;k vkSj lqnkek izlkn }kjk ?kVuk dh rgjhj fy[kdj Fkkus esa vafdr djk;k x;k tkuk ftls lqnkek izlkn us badkj fd;k gS mDr ds lEcU/k esa Åij foLr`r
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fo'ys"k.k fd;k tk pqdk gS vkSj rgjhj ds lEcU/k esa lafnX/krk] ,UVh MsfVM o ,UVh Vkbe gksus dk fu"d"kZ iwoZ es gh fn;k tk pqdk gSA
jk; iapkuu ds xokg ih0MCyw0&6 jkeLo:i us Hkh vius ftjg esa dFku fd;k gS fd jke iapkuu fy[krs le; Jhdsl Fkkusnkj ds vykok vU; dksbZ njksxk ;k vf/kdkjh ugh ekStwn ugh Fks ckdh yksx ckn esa vk;s Fks vkSj eSus mDr vfHk;qDrx.k dks lUrks"k dks ekjrs gq;s ugh ns[kk vkSj bl xokg us ;g Hkh dFku fd;k fd erd pSdnkj deht igus Fkk vkSj ml ij [kwu ds /kCcs ds lEcU/k esa dqN ugh dgk tcfd ih0MCyw0&1 us lUrks"k dks ?kj ls Hkkxrs gq;s dU/ks ij lkQh o 'kVZ Mkydj Hkkxuk crk;k gS vkSj lk{kh ih0MCyw0&5 ftlus erd ds 'kjhj ls diM+s mrkjs Fks mlesa erd ds 'kjhj ls lQsn ukMsnkj vaMjfo;j] lQsn cfu;ku] yaqxh pkj [kkus uhys yky /kkjnkj o lQsn lkQh dk mYys[k fd;k gS vkSj ih0MCyw0&7 ,l-vkbZ- lUrks"k fxfj us ,d 'kVZ [kwu vkywnk le{k xokgku jkedsl o jkeLo:i dCts esa ysdj mldh QnZ cukus dk dFku fd;k gS tcfd bl lEcU/k ds fof/k foKku iz;ksx'kkyk dh tkWp vk[;k izn'kZ d&21 esa oLrq izn'kZ &1 'kVZ ij lcls cM+s /kCcs dh yEckbZ 20 ls-eh- vafdr gS mDr ds izdk'k esa tc erd 'kVZ igus ugh Fkk vkSj mldh vyx QnZ cuk;h x;h vkSj vU; lk{kh us Hkh e`rd ds 'kjhj ls 'kVZ dks cjken ugh fd;k vkSj u gh mldh pksV dks cka/kuk crk;k rc 'kVZ ij jDr dk 20 ls-eh- yEck /kCck fdl izdkj ls vk;k bldk vfHk;kstu i{k }kjk fdlh izdkj dk dksbZ Li"V dkj.k vafdr ugh fd;k ftlls lk{khx.k ds c;ku esa fojks/kkHkkl izrhr gksrk gS vkSj ?kVuk lUnsg ds ?ksjs esa vk
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tkrh gSA
i=koyh ij miyC/k lk{; ds mijksDr fo'ys"k.k ds izdk'k esa vfHk;qDrx.k gfjvkse] ';ke flag] lqjtu flag mQZ ckck o foosd frokjh ds fo:) /kkjk 302@34] 323@34] 504] 452] 506 Hkk0na0la0 o /kkjk 3¼2½¼5½ ,l-lh-@,l-Vh,DV dk vkjksi rFkk vfHk;qDr gjhvkse mik/;k; ds fo:) /kkjk 25 vk;q/k vf/kfu;e dk vkjksi vfHk;kstu i{k ;qfDr lUnsg ls ijs lkfcr djus esa vlQy jgk gS rnuqlkj vfHk;qDrx.k gjhvkse mi/;k;] ';ke flag] lqjtu flag mQZ ckck o foosd frokjh /kkjk 302@34] 323@34] 504] 452] 506 Hkk0na0la0 o /kkjk 3¼2½¼5½ ,l-lh-@,l-Vh- ,DV o vfHk;qDr gjhvkse mik/;k; ds /kkjk 25 vk;q/k vf/kfu;e ds vkjksi ls nks"keqDr fd;s tkus ;ksX; gSA ”
As regards the exercise of the powers of the appellate court, the Supreme Court in Sanmwat Singh vs. State of Rajasthan reported in 1961 SC 715 has laid down three broad principles:
(I) Appellate Court has full powers to review the evidence upon which the order of acquittal is found it.
(ii) The Principles laid down by the judicial committee of the privy council in Sheo Swaroop vs. King Emperor (AIR 1934 PC) page 227 afford a correct guide for the appellate court approach to a case in disposing of such an appeal. These principles require that the appellate court should give proper weight and consideration to such matters as, the view of the trial Judge as to credibility of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to the benefit of doubt, and the slowness of an appellate court in disturbing the findings of fact arrived at
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by a Judge who had the advantage of seeing the witnesses. These matters and guidelines are the “Rules and Principles” in the administration of justice.
(iii) The appellate court in coming to its conclusion should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal, but should also express those reasons to hold that the acquittal was not justified; Damodar Prasad Chandrika Prasad vs. State of Maharashtra 1972 (1) SCC 107 .
It follows as a corollary from the above, that if two views of the evidence are reasonably possible, one supporting an acquittal and the other indicating conviction, the appellate court should not interfere merely because it feels, that it would, sitting as a trial court have taken the other view. Two views and conclusions cannot be right and one in favour of the acquittal of the accused must be preferred over the other because our criminal jurisprudence demands that the benefit of doubt must prevail. If, two reasonably, probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of reasonable doubt. Even otherwise we find that the consistent legal position as laid down by the Apex Court with regard to the scope of interference in an appeal against acquittal is to the effect that until or unless it can be pointed out that there is some illegality or perversity with the findings as have been recorded by the court concerned or until or unless it can be shown that the view taken by the court concerned while writing a verdict of acquittal is perverse or not possible, the appellate court ought not to interfere.
“Suffice it to say that the Apex Court has
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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 reappreciation 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."
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Reference may also be made to the judgments of the Apex Court rendered in the cases of 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 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 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 moreso in view of the fact that more than 9 years have already elapsed as the incident is of the year 2009.
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.
Let the lower court record be sent back to the court concerned forthwith.
Copy of the order be certified to the court concerned for consequential follow up action.
Order Date :- 04.07.2018 Anand
3 issues framed by the court
Whether the High Court could interfere with the trial court's acquittal on grounds of reappreciation of evidence.
Whether the prosecution evidence was appreciated correctly by the trial court to justify the acquittal.
Whether the delay of 9 years since the incident warranted interference with the finding of acquittal.
Colour shows how this judgement treated each authority
Sanmwat Singh vs. State of RajasthanDistinguished¶20
1961 SC 715
Sheo Swaroop vs. King EmperorDistinguished¶21
AIR 1934 PC page 227 · Who else cites this
Damodar Prasad Chandrika Prasad vs. State of MaharashtraDistinguished¶25
1972 (1) SCC 107 · Who else cites this
Ramesh Harijan vs. State of U.P.Referred¶35
2012 AIR SCW 2990 · Who else cites this
Murugesan v. State through Inspector of PoliceReferred¶35
2012 AIR SCW 5627 · Who else cites this
3 provisions across 3 enactments
State Of U.P.
Hari Om Upadhyay
Shaym Singh
Vivek Tiwari
Vipin Sinha
Ifaqat Ali Khan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
