Dismissed

State of U.P. v. Surendra Singh

Allahabad HC20 Jan 2020GOVA/511/2019

Case brief

AI extract

What is this about?

Government Appeal filed by State against acquittal of Surendra Singh in asexual offence case. High Court held trial court view was reasonable given prosecutrix's statement of prior relationship, absence of injuries, and inordinate FIR delay. Appeal dismissed without deep probe into evidence.

What did the court decide?

Leave as prayed for by the State is refused; appeal is dismissed at the admission stage.

State of U.P. Vs Surendra Singh — Writ and Judicial Review | Allahabad HC (2020)

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Court No.48

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Gover	nme	nt Appeal No.511 of 2019
State of U.P.		---- Appellant
		Vs
Surendra Singh		---- Respondents
For Appellant	:	Sri J.K. Upadhyay, A.G.A
For Respondent	:	None

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Hon'ble Pritinker Diwaker, J. Hon'ble Shekhar Kumar Yadav, J.

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Per: Pritinker Diwaker, J.

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(20.01.2020)

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Heard on admission. 2. Challenge in the present Government Appeal is to the judgment and order dated 26.07.2019 passed by Ist Additional Sessions Judge, Kasganj in Sessions Trial No. 78 of 2014 (State Vs. Surendra Singh) acquitting the respondent of the offences under Sections 363, 366, 376 of IPC and 4 of POCSO Act.

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As per prosecution case, on 23.06.2014, written report (Ex.Ka.1) was lodged by Veerpal (PW-1) alleging in it that on 4.6.2014 respondent accused Surendra Singh, his father Amar Singh, mother Ramwati and brother Charan Singh had taken his minor daughter along with them on the pretext of attending one marriage function in the other village. After attending the marriage, except accused Surendra Singh, other accused persons returned back and when he enquired about his daughter, they informed him that the prosecutrix had gone along with respondent Surendra Singh. Based on this written report, FIR (Ex.Ka.4) was registered against four accused persons, including respondent Surendra Singh under Sections 363, 366 of IPC. On 14.07.2014, prosecutrix was recovered from the custody of respondent. Her medical examination was done and no internal or external injury was found on her body. As per Radiologist, her age was about 18 years. In Sections 161 and 164 Cr.P.C. statements, the prosecutrix has categorically stated that she was having affair with the respondent.

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While framing charge, the trial Judge has framed charge against the

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respondent under Sections 363, 366, 376 of IPC and 4 of POCSO Act.

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So as to hold accused-respondent guilty, prosecution has examined as many as eight witnesses. Statement of the accused-respondent was recorded under Section 313 of Cr.P.C. in which, he pleaded his innocence and false implication.

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By the impugned judgment, the trial Judge has acquitted the respondent-accused of all the charges. Hence the present appeal by the State assailing the acquittal.

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Learned counsel for the appellant-State submits that the trial court has erred in law in acquitting the respondent.

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We have heard learned counsel for the appellant and perused the record.

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From the evidence, it is apparent that there was inordinate delay in lodging the FIR and the said delay has not been explained by the prosecution as required under the law. Further, the medical report of the prosecutrix does not support the prosecution case and that no external or injury injury has been found on her body. As per radiological examination, age of the prosecutrix was 18 years. Considering the veracity in the statements of the prosecutrix, the court below has found her to be totally unreliable and has acquitted the respondent. In the evidence, it has also come that the prosecutrix has visited various places along with accused without offering any protest. Thus, according to the court below, prosecutrix was a consenting party.

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Considering all these aspects of the case, trial court has drawn a particular conclusion of acquitting the respondent. The view taken by the court below is one of the possible view and it cannot be said to be perverse.

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While considering the scope of interference in an appeal or revision against acquittal, it has been held by the Supreme Court that if two views of the evidence are reasonable possible, one supporting the acquittal and other indicating conviction, the High Court should not, in such a situation, reverse the order of acquittal recorded by the trial Court. In the matter of State of Karnataka vs. K. Gopalkrishna reported in (2005) 9 SCC 291, the

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Hon'ble Supreme Court, while dealing with an appeal against acquittal, observed as under:

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"In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evnidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal."

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In Sudershan Kumar v. State of Himachal reported in (2014) 15 SCC 666 the Hon'ble Supreme Court observed thus;-

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"31.It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal v. State which is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to. In para 37, propositions laid down in an earlier case are taken note of as under: -

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"37. In Chandrappa v. State of Karnataka , this Court held: ( SCC p. 432 para 42), (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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(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.

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(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 "flourishes of language" to emphasise the reluctance of an appellate court

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to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

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(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.

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

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Thereafter, in para 39, the Court curled out five principles and we would like to reproduce the said para hereunder:

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"39. The following principles emerge from the cases above:

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The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

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The power of reviewing evidence is wide and the appellate court can re- appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.

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The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

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The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

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If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."

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In Dilawar Singh v. State of Haryana, (2015) 1 SCC 737, the Supreme Court reiterated the same in paragraphs 36 and 37 as under :

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"36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record.

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In Chandrappa v. State of Karnataka , the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: (SCC p.432 para 42) "42....(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.

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

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Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan v. Shera Ram."

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Considering the above legal position and the factual aspects of the case, we are of the view that the trial Judge was fully justified in acquitting the respondent.

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Taking all the circumstances as it is, leave as prayed for by the State is refused. Hence the appeal is dismissed at the admission stage itself.

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Date: 20.01.2020 Nethra/ C.Mani

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(Shekhar Kumar Yadav, J) (Pritinker Diwaker, J)

State of U.P. v. Surendra Singh

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State of U.P. v. Surendra Singh

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