State of U.P v. Thakur Prasad

Court No. 10 Government Appeal No. 970 of 2001 State of Uttar Pradesh ----- Appellant Vs Thakur Prasad ----- Respondent ________________________________________________________ For Appellant : Sri Dhananjay Kumar, AGA For Respondent : None Hon'ble Pritinker Diwaker, Acting Chief Justice Hon'ble Rajan Roy, J. Per: Pritinker Diwaker, Acting Chief Justice (16.03.2023)

¶1Heard Sri Dhananjay Kumar, learned counsel for the State. No one is present for the accused respondent.

¶2Challenge in this appeal is to the judgment and order dated 11.07.2001 passed by Second Additional Sessions Judge, Lakhimpur Kheri in Sessions Trial No.554 of 1996 acquitting the respondent under Section 376 IPC.

¶3Brief facts of the case are that on 14.03.1993, F.I.R. (Ex. Ka-6) was lodged by the prosecutrix P.W.-1 alleging in it that on the previous date at about 05:00 P.M., when she was all alone in her house whereas other inmates of the house had gone to the field, the accused respondent gained entry in her house and committed forceful sexual intercourse. She further states that upon hearing her cries, her jethani (sister-in-law) Brijrani, P.W.-2 also reached the place of occurrence. However, the accused respondent threatened her for similar consequences and then committed rape upon her. She further states that after commission of rape, the accused left her house and then her father-in-law and mother-in-law came, to whom she narrated the entire incident. She also states that as it was getting dark and on account of fear, she could not go to the police station, however, on the next date F.I.R. was lodged.

¶4Based on this F.I.R., the offence under Section 376 IPC was registered against the accused person. The prosecutrix was medically examined vide Ex. Ka-2 and her ossification test was also done.

¶5While framing the charge, the trial judge has framed the charge against the accused person under Section 376 IPC.

¶6So as to hold accused-person guilty, prosecution has examined as many as five witnesses. Statement of the accused was also recorded under Section 313 of Cr.P.C. in which, he pleaded his innocence and false implication.

¶7By the impugned judgment, the trial judge has acquitted the respondent of all the charges. Hence, this appeal by the State.

¶8Counsel for the State-appellant submits that the trial court has erred in law in acquitting the respondent disbelieving the statement of the prosecutrix. He submits that it is not only the prosecutrix, who has supported the prosecution case but her jethani (sister-in-law) P.W.-2 has also supported the prosecution case. He further submits that there was no occasion for the prosecutrix to falsely implicate the accused and the trial court has erred in law in acquitting the accused respondent.

¶9We have heard the learned State counsel and also perused the record.

¶10In her statement, the prosecutrix has stated that when she raised her cries, her sister-in-law reached to the place of occurrence and saw both of them in a compromising position. She has also stated that the accused respondent threatened her sister-in-law, as a result of which she left her house. It has also been stated by the prosecutrix that after the entire incident was over, her father-in-law and mother-in-law also reached the place of occurrence and then she narrated the entire incident to them. It is also relevant to note that neither the father-in-law of the prosecutrix nor her mother-in-law has been examined in the court. In the medical report also, no major injury has been noticed on the body of the prosecutrix. Based on which, it can be said conclusively that the prosecutrix was subjected to rape.

¶11Considering all the aspects of the case, the trial court has acquitted the respondent granting him benefit of doubt. The view taken by the court below is one of the possible and plausible view, and it cannot be said to be perverse.

¶12While 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 reasonably 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 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."

¶13In 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 emphasise 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: (Dhanapal case, SCC p. 414) "39. The following principles emerge from the cases above:

(1) 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.

(2) 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.

(3) 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.

(4) 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.

(5) 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."

¶14In 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.

¶37In 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."

¶15Considering 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 accused respondent granting him benefit of doubt.

¶16Taking all the circumstances as it is, the appeal has no substance and the same is accordingly dismissed. Order date : 16.03.2023 Saurabh/SK (Rajan Roy, J.) (Pritinker Diwaker, ACJ.) High Court of Judicature at Allahabad, Lucknow Bench