The Allahabad High Court dismissed the State's appeal against an acquittal in a POCSO case. Finding no perversity or illegality in the trial court's decision due to lack of direct evidence, the Court refused leave to appeal and dismissed the appeal.
Leave to appeal refused; appeal dismissed; no interference with order of acquittal.
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Court No. - 14
Case :- GOVERNMENT APPEAL No. - 1000086 of 2018
Appellant :- State of U.P. Respondent :- Kamal Kishore Counsel for Appellant :- Govt. Advocate
Hon'ble Shamim Ahmed,J.
The case is taken up in the revised call. None has appeared on behalf of the respondents.
Heard Sri Aniruddh Singh, learned A.G.A.-1 for the Stateappellant and perused the material available on record.
The present leave to appeal under Section 378(3) Cr.P.C. has been filed against the judgment and order dated 25.09.2017 passed by Special Judge POCSO Act/ Additional Session Judge Court no.1, Hardoi passed in Session Trial No.790 of 2013, Case Crime No.528 of 2013 under Sections 354A,452 IPC and 4 POCSO Act. Police Station Sahabad, District Hardoi.
The brief facts of the prosecution case are that one Nirdesh Kumar S/o Kastori given a written report to police-station Sahabad, District Hardoi alleging therein that on 06.10.2013 at about 12.00 O'clock in the night, Kamal Kishore S/o Hemraj entered into his house where the sister of the complainant Aarti aged about 16 years was sleeping and near her Vimlesh was sleeping . The accused- Kamal Kishore caught hold and embarrassed her and tried to out raise her modesty . At that movement, Vimlesh awaken up and started crying. The accused- Kamal Kishore ran away from the sop who was seen by Vijay Kumar. It is further alleged that on account of fear , he could not lodge the report earlier. On the basis of written report , a case under case crime no.528 of 2013 under Section 3543A,452 IPC and 4 POSCO Act was registered at Police Station Sahabad, District Lucknow.
The court below after taking into consideration the facts and circumstances of the case and evidence available on record, passed the judgment and order of acquittal dated 25.09.2017.
Learned A.G.A. for the State submits that the court below did not appreciate the evidence on record. He further submits that prosecution has successfully proved the offence against the accused on the basis of evidence. The judgment was passed without considering the statement of witnesses and the case set up by the prosecution and the judgment of the acquittal was passed on surmises and conjectures.
I have heard the learned counsel for the appellant and considered the ground and gone through the judgment passed by the court below.
The present appeal is of the year, 2018. Moreover, there appears no illegality or infirmity in the judgment and order of acquittal passed by the court below and the statements given by the witnesses produced by the prosecution, I found that prosecution has failed to establish that the crime in question has been committed by the accused and there was no direct evidence produced by the prosecution regarding involvement of the respondent No. 1 in the crime.
Further, learned counsel for the appellant could not point out any illegality or infirmity in the judgment and order of acquittal passed in favour of respondents which is before this Court.
Further, this Court observed that an appeal against acquittal stands on a different footing from the appeal against conviction. Hon'ble the Apex Court in a very recent judgment in the case of Sadhu Saran Singh Vs. State of Uttar Pradesh and Others reported in (2016) 4 SCC 357 has considered this difference and has observed in paragraph nos.20 and 21 as under:
"20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of
fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can raise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasiva V. State of Kerala 1998 SCC (Cri) 1320 has held:
"7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal."
21. The Court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative."
In the light of the aforesaid guidelines, the impugned judgment has to be considered from the point of view whether the view taken by the court below was a probable view based on the material on record or it is an absolutely erroneous judgment devoid of merits.
A criminal trial proceeds with the presumption of innocence of the accused persons. With the acquittal of the accused persons this presumption of innocence stands fortified. So very strong and cogent reasons must exist in interfering the judgment of acquittal.
Keeping in view the aforesaid weakness of the prosecution case, as noted by the court below, I am of the view that the view taken by the court below was a probable and logical view, which is based on valid reasons. The judgment of the court below cannot be said to be illegal, illogical and improbable and not based on material on record or is based on erroneous views and is against the settled position of law. So, this Court is satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference is called for.
Leave to appeal is refused.
Application for leave to appeal is rejected.
Accordingly, the appeal does not survive, and in view of above, the appeal is also dismissed.
No order as to costs.
Copy of this judgment be sent to the court below for its compliance.
Order Date :- 24.8.2022
dk/-
Digitally signed by DEVENDRA KUMAR Date: 2022.09.09 13:04:44 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether the appellate court should interfere with the order of acquittal in a Section 378(3) Cr.P.C. appeal.
Whether the prosecution failed to establish the crime due to lack of direct evidence.
Colour shows how this judgement treated each authority
Sadhu Saran Singh Vs. State of Uttar Pradesh and OthersApplied¶14
Sadhu Saran Singh Vs. State of Uttar Pradesh and Others (2016) 4 SCC 357 · Who else cites this
Sambasiva V. State of KeralaApplied¶16
Sambasiva V. State of Kerala 1998 SCC (Cri) 1320 · Who else cites this
4 provisions across 3 enactments
State of U.P.
Kamal Kishore
Shamim Ahmed
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
