Allahabad High Court
State Of U.P. vs Sukhram Azad on 12 September, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 23.08.2024 Delivered on 12.09.2024 Neutral Citation No. - 2024:AHC-LKO:63295-DB Case :- GOVERNMENT APPEAL No. - 850 of 2018 Appellant :- State of U.P. Respondent :- Sukhram Azad Counsel for Appellant :- Govt. Advocate Counsel for Respondent :- Saket Tiwari,S.A.Khan Hon'ble Attau Rahman Masoodi,J.
Hon’ble Mohd. Faiz Alam Khan,J.
(Per Hon’ble Mohd. Faiz Alam Khan, J.)
1. Heard Shri Sanjay Kumar Srivastava, learned A.G.A., for the State as well as Shri Saket Tiwari, learned counsel for the sole respondent-accused, and gone through the record.
2. The instant appeal has been preferred by the State under Section 378 Cr.P.C. against the judgment and order dated 25.07.2011 passed by the learned Additional Chief Judicial Magistrate, Court No. 32, Lucknow in Criminal Case No.11027 of 2010 (State Vs. Sukhram Azad), arising out of Case Crime No.061 of 1994, under Sections 409, 420, 467, 468 and 471 IPC lodged at Police Station B.K.T., District Lucknow whereby the sole respondent-accused has been acquitted of all the charges framed against him.
3. The brief facts, necessary for disposal of the instant appeal, appear to be that the then Block Development Officer, B.K.T., Lucknow moved a written application before the S.H.O. of Police Station B.K.T., Lucknow alleging that the respondent-accused, who at the relevant point of time, was posted as Store Keeper has misappropriated Rs.1,01,656.95 pertaining to the Salary, GPF, Pension and Gratuity of the employees by making interpolation in the documents and instead of paying the amount of the above-mentioned Salary, GPF, Pension and Gratuity to the employees, he has withdrawn and misappropriated the same and he is also running absent from duty since 17.04.1994. It is also stated that on account of his absence, his Almirah and cash-chest was broken open under the orders of the District Magistrate (Planning), Lucknow on 29.04.1994 and 06.05.1994, but the aforesaid amount was not found and some important documents were also found missing.
4. On the aforesaid written information, FIR at Case Crime No.061 of 1994, under Sections 409, 420, 467, 468 and 471 I.P.C. was lodged against the respondent-accused.
5. The investigating officer after conclusion of the investigation has filed charge sheet against respondent.
6. Charges were also framed against the accused-respondent under sections 409, 420, 467, 468, 471 I.P.C. to which he denied and claimed trial.
7. Prosecution, in order to prove its case beyond reasonable doubt, has produced P.N. Verma (informant) as PW-1, Ram Mohan Shukla as PW-2, Harishanker as PW-3, P.N. Katiyar as PW-4, Girish Chandra Tripathi as PW-5 and Rajesh Prasad Mishra as PW-6 and has also relied on various documentary evidence e.g. written information, chik FIR, G.D. Kayami, site-plan and charge-sheet etc.
8. On completion of the evidence by the prosecution, statement of the respondent-accused was recorded under Section 313 Cr.P.C. wherein he denied all the evidence produced against him and has also denied to produce any evidence in his defence.
9. The Trial Court, after hearing learned counsel for the parties and after appreciating evidence, found the case of the prosecution doubtful and not proved beyond reasonable doubt and acquitted the respondent-accused of all the charges framed against him.
10. Aggrieved by the the same, the State has preferred the instant appeal.
11. Perusal of the record would reveal that necessary leave, as required under Section 378 (3) Cr.P.C., has already been granted to the State by a Coordinate Bench of this Court vide order dated 14.05.2018.
12. Learned A.G.A., appearing for the State, vehemently submits that the Trial Court has committed manifest illegality in appreciating the evidence available on record and has acquitted the respondent-accused on the basis of surmises and conjectures and reasons, which have been given for acquitting the respondent-accused, are not substantiated by any evidence. It is further submitted that the findings recorded by the Trial Court in order to arrive at the conclusion that the prosecution has not proved its case beyond reasonable doubt are not supported by any cogent reasoning. It is vehemently submitted that an accused is only entitled for a doubt which may be termed as ‘reasonable’ and the prosecution is not obliged to prove its case beyond every doubt, rather the duty of the prosecution is to prove its case beyond ‘reasonable doubt’ and there is no reasonable doubt emerging in the instant case and, therefore, an illegality has been committed by the Trial Court in acquitting the respondent-accused.
13. On the other hand, learned counsel for the respondent-accused submits that the Trial Court has not committed any illegality in acquitting the respondent-accused and also that where two possible views are emerging from the evidence tendered/produced before the Trial Court and if the Trial Court has adopted a logical and plausible view, the finding of the Trial Court in this regard may not be termed as either illegal or irregular, moreover, the respondent-accused was having presumption of innocence in his favour before the Trial Court and the same has been fortified by his acquittal, therefore, very strong and cogent reasons are required to reverse the findings/judgment of acquittal which is not emerging in this case and, therefore, the appeal, preferred by the State, appears to be without any force and is liable to be dismissed as such. Learned counsel, appearing for the respondent-accused, has relied on the law laid down in the following cases:-
i. (2013) 2 SCC 17 (Subhash Chand Vs. State (Delhi Administration);
ii.(2021) 16 SCC 371 (State of Uttar Pradesh Vs. Ambarish);
iii.(2022) 13 SCC 115 (Joseph Stephen and others Vs. Santhanasamy and others);
iv. (2022) 3 SCC 471 (Rajesh Prasad Vs. The State of Bihar and Ors;
v. 2022 SCC OnLine SC 57 (Geeta Devi Vs. State of U.P. and others); and
vi (2023) 5 SCC 391 (Ravasaheb alias Ravasahebgouda and others Vs. State of Karnataka.
14. Having heard learned counsel for the parties and having perused the record, it is desired that before entering into the area of appreciation of evidence in order to assess as to whether the Trial Court has committed any illegality in appreciating the evidence available on record or not, it is worthwhile to recall the law pertaining to the manner in which an appeal against acquittal is required to be dealt with by the appellate Court and the same is now no-more res integra and has been set at rest by catena of judgments passed by the Hon’ble Supreme Court. It is also worth to recall that Section 134 of Evidence Act do not require any particular number of witnesses to prove any fact. Plurality of witnesses in a criminal trial is not the legislative intent, it is not the quantity but quality which matters. Therefore, if the testimony of a witness is found reliable on the touch stone of credibility, accused can be convicted on the basis of testimony of even single witness. This principle was highlighted in ‘Vadivelu Thevar V/s. State of Madras; MANU/SC/0039/1957 : AIR 1957 SC 614’, wherein it is held by Hon’ble Apex Court that,
“We have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid down that no particular witnesses shall in any case be required for the proof of any fact.”
” The Indian Legislature has not insisted or laying any such exceptions to the general rule recognized in Section 134 quoted above. The Section enshrines the well recognized maxim that “Evidence has to be weighed and not counted.” It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of single witness only could be available in proof of the crime, would go unpunished. It here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstance of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.”
“Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony.”
25. Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. (MANU/SC/0282/1994 : AIR 1994 SC 1251). It was held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short ‘the Evidence Act’). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.”
In Lallu Manjhi vs. State of Jharkhand, MANU/SC/0004/2003 : AIR 2003 SC 854 Hon’ble Supreme Court held that “The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable, nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness.”
26. In State of Gujarat vs. J.P. Varu reported in MANU/SC/0756/2016 : 2016 Cr. L.J. 4185 (Supreme Court) it has been propounded by the Supreme Court that, the burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favorable to the accused should be adopted.
In MANU/SC/0468/2013 : AIR 2013 SUPREME COURT 3150, Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan Hon’ble Supreme Court held that “Suspicion, however grave it may be, cannot take place of proof and there is a large difference between something that ‘may be’ proved and ‘will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between ‘may be’ and ‘must be’ is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ‘may be’ true and ‘must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ‘may be’ true and ‘must be’ true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.”
15. The Apex Court in the case of Ajmer Singh v. State of Punjab, MANU/SC/0042/1952 : 1953 SCR 418 wherein the accused was acquitted by the trial Court but was convicted by the High Court in an appeal against acquittal filed by the State, approached Apex Court, it was contended by him that there were ‘no compelling reasons’ for setting aside the order of acquittal and due and proper weight had not been given by the High Court to the opinion of the trial Court as regards the credibility of witnesses examined by him. It was also contended that the High Court committed an error of law and the Hon’ble Supreme Court found substance in the argument that when a strong ‘prima facie’ case is made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and cannot state that the law entitles him to keep his lips sealed. It was further held that in an appeal, the High Court had full power to review the evidence upon which the order of acquittal was founded. Upholding the contention, it has also been held in para 6 as under;
“We think this criticism is well-founded. After an order of acquittal has been made, the presumption of innocence is further reinforced by that order, and that being so, the trial court’s decision can be reversed not on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons.”
16. In the case of Sanwat Singh and others v. State of Rajasthan, MANU/SC/0078/1960 : AIR 1961 SC 715 after placing the reliance on the judgment given by Privy Council in Sheo Swarup and others vs. The King Emperor MANU/PR/0043/1934 : AIR 1934 PC 227 (2) and many other authorities Hon’ble the Apex Court on the point in issue held as under:-
“Para 16- The foregoing discussion yields the following results:
(1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup’s case afford a correct guide for the appellate court’s approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) “substantial and compelling reasons”, (ii) “good and sufficiently cogent reasons”, and (iii) “strong reasons” are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified”.
17. Hon’ble the Apex Court in the case of Sadhu Saran Singh Vs. State of Uttar Pradesh and Others reported in MANU/SC/0236/2016 : 2016 Crlj 1908 has considered this difference and has observed as under:
“18 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 Sambasiva V. State of Kerala MANU/SC/0356/1998 : 1998 SCC (Cri.) 1320 has held:
“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.”
19. 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.”
18. From the above decisions some general principles which may emerge are that the appellate court is having full power to review or re-appreciate or reconsider the evidence upon which the order/judgment of acquittal has been based and there is no limitation, restriction in exercise of such power by the appellate court and the appellate court may reach at it is own conclusion on the same set of evidence, both on question of facts as well as on law. However, it is to be kept in mind that in case of acquittal, the presumption of innocence which was initially with the accused persons has been fortified, reaffirmed, strengthened and also the golden principle which runs through the Web of criminal jurisprudence is that if two reasonable and logical conclusions can be derived on the basis of evidence on record and the trial court has taken a possible view, the appellate court should not normally disturb the finding of the trial court. But simultaneously it is also to be kept in mind that the benefit of only a reasonable doubt can be given to accused persons in a criminal trial. The accused persons cannot claim the benefit of each and every doubt. To get the benefit of a doubt the same has to pass the test of reasonableness and a reasonable doubt is a doubt which emerges out of the evidence itself.
19. While appreciating the evidence in the instant case, in the background of the above-mentioned legal position, it would reflect that the Trial Court, in order to arrive at a finding that the prosecution has failed to prove its case beyond reasonable doubt, has stated that though PW-2- Ram Mohan Shukla has stated that after the bills were cleared by the treasury the money was withdrawn from the State Bank of India and he did not go to the State Bank of India in order to know as to whom the payment of the bills passed by the treasury has been made and when he was categorically asked, this witness replied that the respondent is accused of receiving the payment from the State Bank of India, but he had never seen him accepting the payment and he is not sure as to who has received the payment of treasury bills from the State Bank of India and, in this regard, the Trial Court has opined that this witness, namely, Ram Mohan Shukla (PW-2) is not a direct witness of fact and his testimony is hearsay. We also do not find any perversity in this conclusion drawn by the trial court.
20. The Trial Court has also appreciated the statement of Harishanker (PW-3) and has highlighted his admission wherein this witness has admitted that receiving of GPF money by respondent-accused was informed to him by the Block Development Officer, however, he did not see any document pertaining to any misappropriation made by the respondent-accused and, in this regard, the Trial Court has opined that this witness (PW-3) is neither a direct witness of any fact nor of any misappropriation alleged to have been done by the respondent-accused. Likewise, the Trial Court has also considered the statement of Girish Chandra Tripathi (PW-5) and opined that this witness has categorically admitted that he is not having any information as to who has received the money from bank and thereafter the Trial Court taking into account the cumulative assessment of the statements of PW-2 (Ram Mohan Shukla), PW-3 (Harishanker) and Girish Chandra Tripathi (PW-5) came to the conclusion that these witnesses are not the eye-witnesses of any transaction or offence and, therefore, their evidence is not admissible.
21. Having regard to all the facts and circumstances of this case and evidence produced before the Trial Court, we do not find any illegality in these findings recorded by the Trial Court. A witness may only give evidence of the fact which he can perceive from his senses and any hearsay information or evidence which might have been received from others is liable to be termed as ‘hearsay evidence’ and the same is not admissible and, therefore, there is nothing wrong in the conclusions drawn by the Trial Court with regard to the evidence of three prosecution witnesses i.e. PW-2 (Ram Mohan Shukla), PW-3 (Harishanker) and Girish Chandra Tripathi (PW-5), who appear to be not reliable.
22. Perusal of the record, including the impugned judgment and order, would further reveal that the Trial Court has noticed that the Block Development Officer, B.K.T., Lucknow had entrusted the respondent-accused the work of presenting bills in the treasury and another person, namely, L.M. Ansari, who was Senior Assistant in the office, was also entrusted with the work of presenting the bills in the treasury and in this regard the Trial Court has opined that the respondent-accused was only entrusted with the work of presenting the bills in the treasury and he was not entrusted to receive any withdrawal or money as the same is the prerogative of drawing & disbursing officer. In this regard, the Trial Court has further highlighted statement of Rajesh Prasad Mishra (PW-6) wherein he has admitted that as per set procedure for drawing & disbursing, the bills are presented in the treasury through the entrusted person and after, passing of the bills from the treasury, it is the drawing & disbursing officer who can collect the money through an employee to whom such an entrustment has been made to receive money from the bank and it has been observed by the Trial Court that no evidence has been produced before the Trial Court as to whether the respondent-accused was ever entrusted to receive or withdraw money from the bank. It is also highlighted by the Trial Court that Rajesh Prasad Mishra (PW-6) has categorically admitted that he is not in a position to tell with regard to the fact as to how-much money has been received by the respondent-accused and he also could not tell as to whether the respondent-accused has misappropriated any amount. The Trial Court has also highlighted the statement of PW-1 (P.N. Verma) wherein he has admitted that with regard to withdrawal of Rs.40,000/-, he did not receive any bank-statement nor any such statement has been given to the investigating officer and, therefore, the Trial Court has opined that the prosecution has not discharged its obligation to prove its case beyond reasonable doubt.
23. In our considered opinion, the Trial Court has correctly appreciated the evidence which was placed before the Trial Court and no illegality, in this regard, appears to have been committed by the Trial Court. It is to be recalled that a criminal trial commences with a presumption of innocence in favour of an accused person and the same is fortified, re-affirmed and strengthened by his acquittal and a Golden principle, which runs through the web of criminal jurisprudence is where two logical/plausible views can be derived, and trial Court has adopted one possible view on the basis of record, the appellate Court should not normally disturb these findings of the Trial Court which are based on logical/plausible view adopted by the Trial Court. It it also to be highlighted and admitted at Bar that no disciplinary proceedings have been initiated against the respondent-accused with regard to the allegations of misappropriation of money levelled against him in the FIR. It appears to be something unusual that no departmental proceedings have been initiated against the respondent-accused in this regard which is also a circumstance in favour of the respondent-accused.
24. Having regard to all the facts and circumstances of the case and evidence available on record, we do not find any force in the appeal preferred by the State and there is no good ground to interfere in the impugned judgment and order. Thus, the instant criminal appeal is hereby dismissed.
25. A copy of this order be sent to the trial court for the purpose of information/compliance.
26. The record of the trial court be also sent to the trial court forthwith.
[Mohd. Faiz Alam Khan,J.] [Attau Rahman Masoodi,J.]
Order Date :-12.09.2024
MVS/-