High Court of Punjab and HaryanaCRM-A/3/2022dismissed

State Of Haryana v. Ankit And Others

2023-07-0610 pages

!"!

#$ %&'& (

)*# &&&&&&& ++ ,,# - )"." #/!

&&&&&& "+ #0 # "

$ 23 & ( ( 23 & ( ( 444

444 ( 5 &

!"# $ $ % & & '

( &) *+ , ,*- . / &

))

. * 1*2

+3$ ,

*- *- ,* . , ** ) ) '

)$$

& & ) (

& ' & (

& . 4 5

) 37 (.

& $8 5 ) $ . )

4 5

5 )'

% &

& ( ) & ) .

) ) (

. 6*!

*- ,* . - ** )

) ) &

3 ) )

)

& . )

)

) 6.

) &

)

) & %')

)

& )

* +3$ ,1 ) &

)

) 6

) '

$ $ $ + 6 & )

))

. * 1*23$

+3$

2 * ,*!

9 ) ) ,! & '

.) &

)

' ( :

)

;<< %

) (

;<2< $

(' ' .

=<7

;<<

=<7 ) >9<;<2?4 8 <7

)

>9<;<-?

. ' ) 8 <7

)

& )

( .;<< *!

*- ,* ' ) );<,< 9 ;<<

% & ) &

. .

. '

& &

( ;<< )

) ";<# ";<,# % ";<,*# .

)

' )

& ;<< %

)

* 3

$ )

)

' )

' )) ) '

& . . @ :">9<=#

)

"# ')

3(( #0 (- (

4& & '

& )

$ %9 ) ).

$ <

& '

) (

' & &

A five Judge Bench of the Privy Council in Sheo Swarup and others v. King Emperor, 1934 AIR(Privy Council) 227, speaking through Lord Russell of Killowen, held as under:

# $!

# (!

# )!

+ , .# / &4

)$ , * 6& (

&&5 7899 (.+) :

;' /

"5. It has been by the learned counsel for the appellant

that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on a mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417, Criminal Procedure Code came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence

% +

, c) A / & 4

) $ Kali Ram v. State of H.P., 1973 (2) SCC 808 & /

held as under:

$- .

, d) A/ &4

)$ Arulvelu v. State represented by the Public Prosecutor, 2009 (4) R.C.R. (Criminal) 638 .

' ' &

$ & /

' 4

"22. In our considered opinion, the approach of the High Court in the impugned judgment is not in consonance with the settled principles of criminal jurisprudence. The High Court while reversing the judgment of the trial court observed that

"in all probabilities, I am inclined to hold that there was demand of dowry and the deceased was harassed by the first accused and therefore, she committed suicide." In criminal cases the conviction can be sustained only when there is clear evidence beyond reasonable doubt. The accused cannot be convicted on the ground that in all probabilities the accused may have committed the crime. The approach of the High Court is wholly fallacious and unsustainable in law.

23. The real question which falls for our consideration is whether the view which has been taken by the trial court was a possible or a plausible view.

$) /

25. We also fail to arrive at the conclusion that the discussion and appreciation of the evidence of the trial court is so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse and the findings rendered by the trial court are against the weight of evidence. The law is well settled that, in an appeal against acquittal, unless the judgment of the trial court is perverse, the Appellate Court would not be justified in substituting its own view and reverse the judgment of acquittal.

26. The expression 'perverse' has been dealt with in number of cases. In Gaya Din (Dead) through LRs. & Others v. Hanuman Prasad (Dead) through LRs. & Others, (2001)1 SCC 501 this Court observed that the expression 'perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.

27. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. & Others, AIR 1966 Calcutta 31, the Court observed that 'perverse finding' means a finding which is not only against the weight of evidence but is altogether against the evidence itself.

28. In Triveni Rubber & Plastics v. Collector of Central Excise, Cochin, AIR 1994 Supreme Court 1341, the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.

29. In M.S. Narayanagouda v. Girijamma & Another, AIR 1977 Karnataka 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order.

30. In Moffett v. Gough, 1 L.R. 1r. 371, the Court observed that a perverse verdict may probably be defined as one that is

not only against the weight of evidence but is altogether against the evidence.

31. In Godfrey v. Godfrey, 106 NW 814, the Court defined 'perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.

32. The expression "perverse" has been defined by various dictionaries in the following manner :

1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE : Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.

2. Longman Dictionary of Contemporary English - International Edition PERVERSE : Deliberately departing from what is normal and reasonable.

3. The New Oxford Dictionary of English - 1998 Edition PERVERSE : Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.

4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE : Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.

5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE : A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.

33. In Shailendra Pratap & Another v. State of U.P., (2003)1 SCC 761, the Court observed thus : "We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."

34. In Kuldeep Singh v. The Commissioner of Police & Others, 1999(1) SCT 303 : (1999)2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under : "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.

10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."

35. The meaning of 'perverse' has been examined in H.B.

Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others, 1992 Supp

(2) SCC 312, this Court observed as under : "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the factfinding authority under the statute.

The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."

) $ Chandrappa v. State of Karnataka, (2007) 4 SCC 415

) & $

%% & :

"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;

(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 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." f) A/ &4

)$ Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka & Ors, 2019 (2) SCC 752 & /

4 :% held as under:

"86. Dealing with the issue, as to whether a victim should seek leave to appeal, one must first understand the concept behind introducing the concept of leave to appeal, especially when the appeals are filed in the High Courts. The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. Therefore, the High Court would at the initial stage of deciding whether the leave is to be granted or not go into the merits of the case.

Only if arguable points are involved, the High Court normally grants leave to appeal. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court.

94. One also cannot be oblivious to the fact that one of the bedrocks of our criminal jurisprudence is that every person is presumed innocent unless found guilty. This presumption of innocence gets strengthened when the person is acquitted. Therefore, the legislature felt that before a person who has been acquitted after a protracted trial is called to face proceedings in the High Court in an appeal, the High Court should look into the matter and first decide whether there are sufficient reasons to grant leave to file appeal or not. This is, in a manner of speaking a preliminary hearing to decide whether the matter is worth looking into or not. I see no reason why such scrutiny should not be done in appeals filed by the victim. The victim cannot be placed on a higher pedestal than the State or the complainant." - 9 )

;<< " ( #

, ) & ' ) 8 <7

' ' @37 8 +-2,* &

@37. / 3$

( &) * * ,*!

8 7& 8 - & ' ) 8 ,<

% 8 <7

@37 ' '

' @37 %

@37 @ : ) . % '

3( * 3'

)

$ . &

' &

)

$ & &

)

' 7 )

)

(

%&'&

;

7 ?

&B?8 ;

7 . B?8