State Of Madhya Pradesh vs Rishikesh Mishra And Others

Rajendra Kumar Vani, J

This appeal under Section 378(3) of the Code of Criminal Procedure, 1973 has been filed by the appellant/State assailing the judgment and order of acquittal dated 22.09.2016 passed in Special Case No.04 of 2015 (State of M.P. vs. Rishikesh Mishra and Anr.) by the learned Special Judge Panna, District-Panna (M.P.), whereby the respondents/accused have been acquitted of the offence under Sections 457, 504, 506 (Part-II) of the Indian Penal Code and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Briefly stated, the prosecution case is that on 26.08.2014 at about 09:00 pm, the complainant, Vimlesh Singh, was present at her government residence bearing No. F-20, Civil Line. At that time, the accused Rishikesh Mishra, son of Narendra Mishra, resident of Jaisingh Nagar, along with his brother Ranu Mishra, resident of Bajrang Nagar, arrived at the complainant's residence. It is alleged that both accused persons were under the influence of alcohol and were carrying a revolver. Acting in furtherance of their common intention, they forcibly entered the house of the complainant without permission. After entering, they began to abuse the complainant in a filthy and obscene manner. During the course of the incident, they used derogatory caste-related words such as "Godin" and "Adivasi," thereby intentionally insulting and humiliating the complainant. The accused persons also criminally intimidated the complainant by threatening to kill her and further threatened that they would have her kidnapped in broad daylight through hired persons. In addition, they attempted to physically scuffle with the complainant, creating fear and disturbance. During the incident, the accused persons forcibly snatched the complainant's mobile phone and took it into their possession. Due to this, the complainant was temporarily prevented from seeking immediate help. Approximately half an hour after the incident, upon regaining possession of his mobile phone, the complainant informed the Deputy Superintendent of Police about the occurrence. Upon receiving the information, a PCR van was immediately dispatched to the complainant's residence. The complainant also narrated the entire incident to the PCR personnel upon their arrival and thereafter, an offence vide Crime No.528 of 2014 for an offence punishable under Sections 452, 294, 506-B/34 of the Indian Penal Code has been registered at Police Station-Civil Lines, District-Rewa (M.P.) and the accused persons were thereafter, arrested.

Upon completion of investigation and other formalities, the charge-sheet was filed before the Court of the Judicial Magistrate First Class, District Rewa. Since the offences were triable exclusively by the Court of Special Judge, the case was committed accordingly. The learned trial Court framed charges against the accused persons under Sections 457, 504, 506 (Part-II) of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The respondents/accused abjured guilt and claimed to be innocent, contending that they have been falsely implicated. No evidence has been adduced by the respondents/accused in their defence.

4 . In order to bring home the charges, the prosecution has examined as many as 03 witnesses, namely complainant (PW-1), Soukhilal Kushwaha (PW-2), Ashutosh Pandey (PW-3) and placed Ex.P/1 to P/6 and Ex.D/1 to Ex.D/24, the documents on record. In defence, the respondents/accused examined Shivendra Pratap Singh (DW-1) and Harish Kumar Namdeo (DW-2) as defence witnesses.

5 . Learned trial Court after recording the evidence of both the parties acquitted the present respondents/accused. Hence, this appeal.

Learned counsel appearing on behalf of the appellant/State has there is ample evidence inform of statements of witnesses namely Vimlesh (PW-1) and Soukhilal Kushwaha (PW-2) and the prosecution has established the guilt of the accused persons in light of statement of these witnesses despite that, the learned trial Court has erroneously acquitted the accused persons on the ground that there were previous relationship remain in exist prior to the incident between the complainant and respondents/accused and the accused persons used to visit the house of complainant frequently but that is not a sole ground to reject the testimony of PW-1 and PW-2, who remained intact in their cross-examination. On these grounds, it is contended that the judgment of acquittal passed by the learned trial Court is erroneous and unsustainable in law. Accordingly, it is prayed that the present appeal be allowed, the impugned judgment of acquittal be set aside, and the respondents/accused be convicted and sentenced in accordance with law.

I have heard the learned counsel for the appellant and perused the record meticulously.

The complainant (P.W.1) though has supported the story of prosecution in chief examination which is further substantiated by Soukhilal Kushwaha (P.W.2) and they both are the interested witnesses in this case. Therefore, their statements are subject to close and careful scrutiny. No eye witness has been examined on behalf of prosecution.

The complainant (P.W.1) has stated that, at the time of the alleged incident, she was posted as S.D.M. at Jaisinghnagar, District Shahdol, and the accused was working there as a computer operator. It has further emerged from her testimony that the accused used to visit her residence frequently and that even the family members of the accused visited her house without any restriction. From paragraph 8 of her deposition, it is also evident that the conduct and behaviour of the accused were cordial and humane, and owing to his good behaviour, she had permitted him to meet her whenever he visited Rewa. She has further admitted that she used to call the accused for official work and that WhatsApp messages were exchanged between them. In paragraph 9 of her statement, the complainant has categorically admitted that there existed close intimacy between her and the accused. She has further stated that the brother of the accused, namely Rishikesh @ Ranu, also used to visit her residence along with the accused Rishikesh. The complainant has further deposed that she used to tie Rakhi to accused Rishi and that he is about 12 to 15 years younger than her. She has also stated that she is unable to understand as to why the accused persons would commit such an offence as alleged by her, which indicates absence of any apparent motive on the part of the accused persons to commit the alleged offence. She has further admitted various photographs reflecting her close association and intimacy with accused Rishikesh.

The First Information Report (Exhibit P/2) bears the date 27.08.2014. As per the prosecution case, the alleged incident occurred on 26.08.2014 at about 9:00 P.M.; however, the information was admittedly given at the police station only on 01.09.2014. In this regard, the complainant has stated that she had submitted a complaint before the concerned Superintendent of Police on the following day. However, she has admitted that the said complaint (Exhibit P/2) neither bears any receipt nor any complaint number, and there is nothing on record to show that the same was ever communicated to or forwarded by the Superintendent of Police to any authority concerned. It is evident that the said complaint does not contain any endorsement or acknowledgment indicating that it was submitted before the Superintendent of Police, Rewa. Moreover, the complaint itself mentions that the accused persons had not been arrested "till then" and that no action had been taken against them, which creates a strong suspicion that the complaint was prepared subsequently and thereafter submitted before the police authorities. Therefore, the statement of the complainant that she had submitted the complaint before the Superintendent of Police, Rewa on the very next day does not appear to be reliable or trustworthy.

This circumstance is further corroborated by the testimony of Ashutosh Pandey (P.W.3), who has categorically stated that complaint (Exhibit P/2) was received at Police Station Rewa for the first time on 01.09.2014, and that the said complaint was directly submitted by the complainant at the police station. Exhibit P/2 further mentions that, on the night of the alleged incident itself, the complainant had informed the police through a mobile phone call and that a PCR van had also reached the spot, before whom she narrated the entire incident. However, no police official of the alleged PCR van has been examined by the prosecution. Furthermore, the complainant, in her deposition, has not supported this version regarding any information having been given through a mobile phone call to S.P. instead she has stated that the said recital in Exhibit P/2 was erroneously mentioned therein. The complainant has further stated that she had informed the Additional Superintendent of Police telephonically; however, she has neither clarified as to who was posted as the Additional Superintendent of Police at the relevant time nor furnished any details of such officer. Significantly, the said officer has also not been examined on behalf of the prosecution.

It is further evident from the testimony of the complainant that she did not communicate the alleged incident to any of her neighbours. Had such an incident actually occurred, the neighbours would naturally have had knowledge thereof. However, no such neighbour has been examined on behalf of the prosecution, nor have their particulars been brought on record before the Court. The complainant also appears to have made material improvements and exaggerations in her version of the incident, which are apparent from the omissions reflected in paragraphs 10 and 11 of her cross-examination.

So far as the testimony of Sokhilal (P.W.2) is concerned, he was admittedly a subordinate employee serving as a peon under the complainant , who was then posted as S.D.M. In this regard, the complainant has admitted in her cross-examination that the duty hours of Sokhilal were from 10:30 A.M. to 5:00 P.M. in the office. She has further stated that Sokhilal used to cook food and perform other domestic chores at her residence. Sokhilal (P.W.2), in his cross-examination, has also admitted that his official duty in the office was that of a process writer. Therefore, the presence of this witness at the spot at the time of the alleged incident appears to be doubtful. He has further admitted that he did not inform any neighbour about the alleged incident, nor did he lodge any complaint before the police or any other authority. He also admitted that he did not raise any alarm or protest at the time of the alleged occurrence.

The accused has examined Shivendra Pratap Singh (D.W.1) and Harish Kumar Namdeo (D.W.2) in his defence. Harish Kumar Namdeo (D.W.2) has categorically deposed that, at the relevant time of the alleged incident, accused Rishikesh was posted at Jaisinghnagar in the office of the S.D.O. as a Computer Operator. The testimony of this witness creates a serious doubt regarding the presence of accused Rishikesh at Rewa at the time of the alleged occurrence.

15 . The learned trial Court has elaborately discussed and meticulously analysed the entire evidence available on record in paragraph 17 onwards of the impugned judgment and has rightly recorded an order of acquittal in favour of the accused persons by disbelieving the testimony of prosecution witnesses P.W.1 and P.W.2. The findings and observations recorded by the learned trial Court constitute a plausible and reasonable view based upon proper appreciation of the evidence available on record. It cannot be said that the learned trial Court committed any illegality, infirmity, or perversity in passing the judgment of acquittal, nor can the impugned judgment be termed as erroneous or unsustainable in law. It is well settled that an appellate Court should be slow in interfering with an order of acquittal unless the findings recorded by the trial Court are shown to be perverse, wholly unreasonable, or contrary to the evidence on record.

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.

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:-

"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. Appellate Curt, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has not absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded."

Similar, in case of Harijan Bhala Teja vs. State of Gujarat , (2016) 12 SCC 665, the Hon'ble Supreme Court has held that:-

"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."

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.

21.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.