In R/CRIMINAL APPEAL NO. 1368 of 2022-BOM HC- While dealing with judgment of acquittal, unless reasoning by Trial Court is found to be perverse, acquittal cannot be upset: Bombay HC reiterates Top Court’s settled law
Justices S.H.Vora & Rajendra M. Sareen [04-10-2022]

Read Order: LAKHARA TINA W/O DAYARAM Vs. STATE OF GUJARAT 

Tulip Kanth 

Nagpur, October 6, 2022:  Taking note of the fact that there was a prior property dispute between the parties and there was also a delay of five years in lodging the FIR for which no explanation was given by the prosecutrix, the Nagpur Bench of the Bombay High Court has confirmed the Trial Court’s decision of acquitting the accused in an alleged case of rape.

Referring to the judgment in, the Division Bench of Justice S.H.Vora and Justice Rajendra M. Sareen said, “It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.”

The Division Bench of Justice S.H.Vora and Justice Rajendra M. Sareen was considering a matter where the original complainant got divorce from her first husband and thereafter, her marriage was solemnized with the second prosecution witness. It was the complainant’s case that  prior to five years, the aunt and uncle came to the house of the appellant to see the grandfather and when all were sleeping in night, the respondent accused physically assaulted the appellant and  the respondent accused had forcefully established physical relationship with the appellant. 

On account of fear and threat, the appellant did not inform anyone but later the  complainant lodged the complaint with regard to the incident before Shaher Kotda Police Station. This appeal was filed by the appellant – original complainant u/s 372 of the Code of Criminal Procedure, 1973, after the Additional Sessions Judge acquitted the respondent-accused for the offences punishable u/s 376 of the IPC.

Noting that there existed property dispute between the parties and there was a delay of 5 years in lodging the present FIR against the respondent accused, the Bench also observed that there were also material omissions and contradictions in the testimony of the prosecutrix and there was no any explanation with regard to delay of five years in registration of the impugned FIR.

According to the Bench the trial Judge had rightly acquitted the respondent accused considering that the entire case had been created to settle the property dispute and there was no explanation for delay of five years in registration of the impugned FIR.

The Bench also asserted, “As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.”

In such circumstances, the Bench held that no case was made out to interfere with the impugned judgment and order of acquittal and dismissed the criminal appeal.