State of U.P v. Vishwanath Singh and Others

Court No.10 Government Appeal No.113 of 1993 State of U.P. ---- Appellant Vs

¶1Vishwanath Singh (deceased)

¶2Ram Pratap Singh

¶3Kamla Devi

---- Respondents For Appellant : Sri Prachish Pandey, AGA For Respondents : Anil Kumar Verma Hon'ble Pritinker Diwaker, ACJ. Hon'ble Rajan Roy, J. Per: Pritinker Diwaker, ACJ.

¶1Challenge in the present Government Appeal is to the impugned judgment and order dated 30.11.1992 passed by III Additional District & Sessions Judge, Lucknow in Sessions Trial No. 253 of 1990 (State Vs. Vishwanath Singh and Others), acquitting the respondents of the offences under Sections 323/34 & 302/34 of IPC.

¶2Brief facts of the case are that on 18.05.1989, deceased Asha was subjected to murder by the acquitted accused persons by firearm injury and other injuries by hockey stick. Immediately after the incident, the matter was reported to the police station by the complainant, mother of the deceased Avadh Rani, and the FIR was registered.

¶3The trial court framed the charges against the accused persons under Sections 323/34 and 302/34 of IPC.

¶4At the time of recording the evidence, none of the witness has been produced by the prosecution for the reasons best known to it and, therefore, under the compelling circumstances, the trial court has acquitted all the accused persons. Hence the present appeal by the State, assailing the acquittal of the accused persons.

¶5Learned counsel for the appellant-State submits:

(I) that the trial judge has erred in law in acquitting the respondents;

(II) that the trial court ought to have given further opportunity to the prosecution for adducing the evidence and in a hurried manner, the impugned judgement has been passed acquitting the accused persons;

(III) that there was sufficient justification on the part of the prosecution as to why the prosecution witnesses could not be produced.

¶6On the other hand supporting the impugned judement, learned counsel appearing for the accused-respondents has argued:

(I) that the incident occurred on 18.05.1989 whereas charges were framed on 09.01.1991 and despite several opportunities, prosecution has utterly failed to produce any witness.

(II) that even before passing the impugned judgement, it was made clear to the prosecution that if on the next date, witnesses are not produced, the court may proceed further.

¶7We have heard learned counsel for the parties and perused the record.

¶8From the record, it is apparent that the charges were framed on

09.01.1991 and the matter was fixed for recording the evidence, however, despite several opportunities, none of the witnesses has been produced by the prosecution and the trial judge was left with no option but to pass the impugned order acquitting the respondents of all the charges in absence of material evidence against them. Moreover, the incident occurred on

18.05.1989 i.e. more than 33 years back, the deceased accused no. 1 Vishwanath Singh has already expired and from the record, it appears that surviving accused Kamla Devi may be of 90 years of age whereas it has been informed that the third surviving accused Ram Pratap Singh is of unsound mind and, therefore, no useful purpose would be served in sending the accused persons behind the bars.

¶9Considering all these aspects of the case, trial judge has acquitted all the respondents granting benefit of doubt to the respondents. The view taken by the trial court is one of the possible view and it cannot be said to be perverse.

¶10While 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 Hon'ble Supreme Court, while dealing with an appeal against acquittal, observed as under: "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 evidence 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."

¶11In Sudershan Kumar v. State of Himachal reported in (2014) 15 SCC 666 the Hon'ble Supreme Court observed thus;- "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: - "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.

(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.

(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 emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(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.

(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."

¶32Thereafter, in para 39, the Court curled out five principles and we would like to reproduce the said para hereunder: "39. The following principles emerge from the cases above:

¶1The 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.

¶2The 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.

¶3The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanor of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

¶4The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

¶5If 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."

¶12In Dilawar Singh v. State of Haryana, (2015) 1 SCC 737, the Supreme Court reiterated the same in paragraphs 36 and 37 as under : "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.

¶36In 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.

(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." 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."

¶13Considering the above legal position and the factual aspect of the case, we are of the view that the trial Judge was fully justified in acquitting the respondents.

¶14The appeal has no substance, same is, accordingly, dismissed. Date: 16.03.2023 SK (Rajan Roy,J) (Pritinker Diwaker, ACJ.) High Court of Judicature at Allahabad, Lucknow Bench