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Judgment
This appeal under Section 378 of the Code of Criminal Procedure, 1973 has been filed by the appellant/State assailing the judgment and order of acquittal dated 23.01.2023 passed in Special Case No.57 of 2021 (State of M.P. vs. Rohit) by the learned Special Judge, POCSO Act, Balghat, District Balaghat (M.P.), whereby the respondent/accused has been acquitted of the offences under Sections 354 and 457 of the Indian Penal Code and Sections 3(1)(w)(I) and 3(II)(Va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Briefly stated, the prosecution case is that on 21.11.2020, the prosecutrix, who belongs to the Gond community, was present alone at her house situated in village Tengnitola, while her parents and brother had gone to the market. At about 07:30 PM, accused Rohit Bisen allegedly came to her house and asked for drinking water. When the prosecutrix went to bring water, the accused allegedly caught hold of her waist with ill intention, kissed her on the cheek, threw her on the ground and laid himself upon her. Upon the prosecutrix raising alarm, Rupakali Uikey, Sukhran and other villagers reached the spot. Seeing them, the accused attempted to flee, but he was apprehended by the villagers. Thereafter, information was given to Dial-100, upon which the police arrived at the spot and took the accused into custody. On the basis of the aforesaid incident, Crime No.495/2020 was registered on 21.11.2020 at Police Station Lalbarra.
During investigation, statements of witnesses were recorded and other necessary investigation proceedings were carried out. Upon finding prima facie material against the accused, the charge-sheet was filed before the competent Court. Thereafter, the learned trial Court framed charges against the accused. The accused abjured guilt and claimed to be tried. During his examination under Section 313 of the CrPC, the accused pleaded innocence and stated that he had been falsely implicated in the matter.
In order to bring home the charges, the prosecution has examined as many as 10 witnesses namely prosecutrix (PW-1), mother of the prosecutrix (PW-2), father of the prosecutrix (PW-3), Rajendra Kumar Uikey (PW-4) Sonali Dhok (PW-5) and Raghunath Khatarkar (PW-6) and placed Ex.P/1 to P/12 and Ex.D/1, the documents on record. In defence, the respondent/accused did not choose to examine any witness.
5 . Learned trial Court after recording the evidence of both the parties acquitted the present respondent/accused. Hence, this appeal.
Learned counsel appearing on behalf of the appellant/State contends that the prosecutrix (PW-1) has fully supported the prosecution case in material particulars. It is further submitted that the testimony of the prosecutrix stands duly corroborated by the statements of her mother (PW-2) and father (PW-3). The learned trial Court has itself recorded a finding that, at the time of the incident, the prosecutrix (PW-1) was a minor and aged about 15 years, 8 months and 7 days and that she belonged to a Scheduled Tribe community. However, despite the aforesaid findings, the learned trial Court disbelieved the testimony of the prosecutrix (PW-1) and her family members on flimsy and insignificant grounds. The learned trial Court has given undue importance to minor omissions, discrepancies and variations in the evidence, which are natural and has thereby erroneously acquitted the accused. In such circumstances, the findings and observations recorded by the learned trial Court, after due appreciation of the oral and documentary evidence available on record, cannot be said to be perverse, erroneous or contrary to law. Accordingly, it is prayed that the present appeal be allowed, the impugned judgment of acquittal be set aside and the respondent/accused be convicted and sentenced in accordance with law.
I have heard the learned counsel for the appellant and perused the record meticulously.
The prosecutrix (PW-1) has supported the prosecution case in material particulars and her testimony stands corroborated by the statements of her mother (PW-2) and father (PW-3). However, no independent witness has been examined by the prosecution, despite the fact that, as per the statements of the aforesaid witnesses, a “Madhai” (fair) was being held in front of the house of the prosecutrix and several persons were present there at the relevant time. Further, it has also come in the evidence that the houses of Mehtar Uikey, Ramesh Uikey, Thakur Uikey and other villagers were situated in the neighbourhood, yet none of these persons were examined by the prosecution during trial. It is true that the testimony of the prosecutrix (PW-1) cannot be discarded merely on the ground that it is not supported by independent witnesses. However, in such circumstances, her evidence is required to be scrutinized with due care and caution.
From this perspective, if the statements of the aforesaid three witnesses are carefully scrutinized, it becomes evident that the prosecutrix has narrated a materially different version before the Court from that disclosed in the First Information Report (Ex.P/1) and in her statement recorded under Section 164 of the Cr.P.C. (Ex.P/4). In the FIR (Ex.P/1) as well as in her statement under Section 164 CrPC (Ex.P/4), the prosecutrix stated that at about 07:00 PM, when she was alone in her house, the accused came there and asked for water. After she handed over a glass of water to him, the accused initially went out of the kitchen, but thereafter returned, caught hold of her waist and braid (choti) and threw her on the ground. It was further stated that when she raised alarm, the accused fled from the spot. However, while deposing before the Court, the prosecutrix materially improved her version by stating that the accused had taken her into the adjoining room near the almirah and attempted to kiss her. She further stated that when her mother arrived there, the accused concealed himself near the chulha; thereafter, her brother Harsh called her father, who allegedly assaulted the accused and drove him away. According to her deposition, the accused again returned to the spot, hurled filthy abuses and was thereafter tied to a pole, following which the father of the prosecutrix informed the police. Thus, the version narrated by the prosecutrix before the Court contains material improvements and deviations from her earlier statements, which materially affect the consistency and reliability of the prosecution case.
Similar versions have been narrated by the mother of the prosecutrix (PW-2) and father of the prosecutrix (PW-3); however, their statements also contain material improvements and exaggerations. Various omissions and contradictions have emerged from their evidence when compared with the earlier version of the prosecution case, which adversely affects the credibility and reliability of their testimony.
The veracity and authenticity of the First Information Report (Ex.P/1) also become doubtful in view of the admissions made by the prosecutrix (PW-1) during her testimony. The prosecutrix stated that the FIR was got written by her father and that she had signed the same at the instance of the police. She further admitted that she did not know the accused prior to the incident and that the name of the accused was disclosed to her by her father at the time when her statement under Section 164 of the CrPC was recorded. The prosecutrix further stated that the police madam and her parents had instructed her to take the name of Rohit Bisen. The aforesaid admissions made by the star witness of the prosecution create serious doubt regarding the genuineness of the FIR (Ex.P/1) and materially affect the credibility of the entire prosecution story.
It is also revealed from the statement of the prosecutrix (PW-1) that upon raising alarm, persons from the neighbourhood had gathered at the spot; however, none of such independent persons have been examined by the prosecution. The mother of the prosecutrix (PW-2) has also admitted that she did not know the accused from before. Further, there exists material inconsistency in the evidence of the witnesses. The father of the prosecutrix (PW-3) has stated that his daughter was alone in the house at the time of the incident, whereas the prosecutrix (PW-1) has admitted in paragraph 4 of her cross-examination that her parents were present in the house at the relevant time. Moreover, the father of the prosecutrix (PW-3) has denied the suggestion that he had tied the accused to a pole and assaulted him. In view of the aforesaid contradictions, variations and omissions on material aspects, the prosecution case becomes doubtful. The findings and observations recorded by the learned trial Court, having been based on proper appreciation of evidence on record, cannot be said to be illegal, perverse or unsustainable.
It is well-settled that an appellate Court ought not to interfere with an order of acquittal unless the findings recorded by the trial Court are perverse, manifestly erroneous, or wholly unreasonable.
In H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 , the Hon’ble Supreme Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:
“8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2.The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8 . 3 . The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5.The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”
(Emphasis Supplied)
In Babu Sahebagouda Rudragoudar Vs. State of Karnataka, 2024 SCC Online SC 561, the Hon’ble Supreme Court, after referring to relevant precedents, has observed as follows:-
“39.Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:
(a)That the judgment of acquittal suffers from patent perversity;
(b)That the same is based on a misreading/omission to consider material evidence on record;
(c)That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40.The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.”
(Emphasis Supplied)
In case of Sadhu Saran Singh vs. State of U.P., (2016) 4 SCC 397 , the Hon'ble Supreme Court has held that:-
"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 arise 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 Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] has held : (SCC p. 415, para 7)
“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 court 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.This 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."
Similar, in case of Harijan Bhala Teja vs. State of Gujarat , (2016) 12 SCC 665, the Hon'ble Supreme Court has held that:-
"12.No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open for the appellate court to express the right conclusion after re-appreciating the evidence if the charge is proved beyond reasonable doubt on record, and convict the accused."
Recently in case of Mallappa & others v. State of Karnataka, (2024) 3 SCC 544, the Hon'ble Apex Court has again summarized the principles while deciding the appeal against acquittal which are as follows :-
"42.Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarised as :
(i)Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive — inclusive of all evidence, oral or documentary;
(ii)Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii)If the court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv)If the view of the trial court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v)If the appellate court is inclined to reverse the acquittal in appeal on a reappreciation of evidence, it must specifically address all the reasons given by the trial court for acquittal and must cover all the facts;
(vi)In a case of reversal from acquittal to conviction, the appellate court must demonstrate an illegality, perversity or error of law or fact in the decision of the trial court."...
In the light of the aforesaid discussion and the ratio of law laid down by Hon'ble Apex Court in aforesaid cases, on careful analysis of the evidence, the observations made by the learned trial Court in the impugned judgment are not found to be faulty. The learned trial Court on proper appreciation of evidence available on record has rightly acquitted the respondent/accused. There is no ground for interference with the findings of the trial Court.
2 0 . Ex. consequenti, while affirming the findings of acquittal of present respondents by the learned trial Court, the appeal being bereft of merit is hereby dismissed.