IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Leave Application 112/2008 With Government Appeal No. 350/2008 State of Uttarakhand …….Applicant/appellant Versus Sukhpal & Ors. …….Respondents June 18, 2010 Hon’ble Dharam Veer, J. This appeal, preferred by the State/appellant u/s 378(3) of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 20.6.2008 passed by the Additional Sessions Judge/Ist FTC, Haridwar in Sessions Trial No. 10/2006, State v. Sukhpal & Ors., whereby the respondents no. 1, 2, 5 & 6, viz., Sukhpal, Smt. Mamta, Srinivas and Ratan Lal and co-accused Raju @ Rajkumar have been acquitted of the charge of offence punishable under Section 366 and 368 of The Indian Penal Code, 1860 (for short, IPC). Respondent no. 5 Srinivas has also been acquitted of the charge punishable under Section 376 IPC. It is pertinent to mention here that Deo Singh and Smt. Geeta have been made respondents no. 3 & 4 respectively in the instant appeal, however, they have not been acquitted by the learned trial court. Furthermore, co-accused Raju @ Rajkumar has not been arrayed as respondent in this appeal although his case is on the similar footing as to the rest of the aforesaid respondents no. 1, 2, 5 & 6. Heard Mr. Prabhkar Joshi, Brief Holder for the State and perused the impugned judgment and order dated 20.6.2008. In brief, the prosecution case is that on 25.7.2002 at about 1.10 pm, the aforesaid respondents no. 1, 2, 5 & 6 and the co- accused Raju @ Rajkumar were arrested along with other co- 2 accused by the police from the Roadways Bus Stand, Haridwar on the allegation that they were engaged in sale and purchase of innocent girls and they had brought Smt. Nirmal, Sangeeta and Gulnara for this purpose. The aforesaid three girls were major and they were along with the respondents and other co-accused at the time of incident. With these averments, an FIR was lodged against the respondents and other co-accused and after investigation chargesheet was filed. Prosecution has examined PW1 SI DK Tyagi; PW2 Constable Bhawar Singh; PW3 Constable Jagatveer Tyagi; PW4 Constable Anil Kumar; PW5 Head Constable Sukhpal Singh; PW6 Lady Homeguard Pushpa; PW7 Constable Bhagwati Prasad and PW8 SI Ramotar Shankvar. Thereafter statements of the respondents and other co- accused were recorded under Section 313 CrPC. The oral and documentary evidence were put to them in question form, who denied the allegations made against them. However, they did not produce any oral or documentary evidence in their defence. After hearing learned Counsel for the parties and after appreciating the evidence on record, learned trial court vide the judgment and order dated 20.6.2008 acquitted the aforesaid respondents no. 1, 2, 5 & 6 and the co-accused Raju @ Rajkumar as discussed above. Against the aforesaid judgment and order dated 20.6.2008, this appeal has been preferred. Learned trial court has acquitted the respondents no. 1, 2, 5 & 6 and the co-accused Raju @ Rajkumar on the ground that the all the witnesses examined by the prosecution are the police personnel and even the statements of these witnesses are contradictory to each other and no independent public witness could be examined by the prosecution in support of its case although it is the case of prosecution that the aforesaid respondents and other co-accused were arrested in the daytime at 1.10 pm from the Roadways Bus Stand, Haridwar where a number of other people were present and many of them had 3 collected at the place of occurrence at the time of incident. The trial court has also taken the ground that Smt. Nirmala, Sangeeta and Gulnara, the victims of the case, who were allegedly brought for sale, were not examined by the prosecution before the trial court, which creates reasonable doubt on the prosecution story. Even the Medical Officer who had examined Smt. Sangeeta was also not produced by the prosecution before the trial court and even his name has not been mentioned as a witness in the chargesheet. In these circumstances, learned trial court has taken the view that the prosecution has not proved its case against the aforesaid respondents and the co-accused Raju @ Rajkumar beyond reasonable doubt and accordingly acquitted them. From the aforesaid facts, it is clear that the allegedly affected parties i.e. the victims of the case Smt. Nirmala, Sangeeta and Gulnara were not examined by the prosecution before the trial court. Even no independent public witness could be examined though so many of them were present at the place of occurrence at the time of incident and even no independent witness was named in the chargesheet. Medical Officer who allegedly examined Smt. Sangeeta also could not be produced before the trial court. Thus, prosecution has not produced any credible evidence on the record to prove its case that the aforesaid respondents and co-accused Raju @ Rajkumar were engaged in sale and purchase of innocent girls and they had brought Smt. Nirmala, Sangeeta and Gulnara for the said purpose. Therefore, the prosecution has miserably failed to prove its case against the respondents no. 1, 2, 5 & 6, viz., Sukhpal, Smt. Mamta, Srinivas and Ratan Lal and the co- accused Raju @ Rajkumar beyond reasonable doubt and the trial court has rightly acquitted them and as such, the impugned judgment and order of the trial court is correct and justified and it warrants no interference by this Court. Further, it is settled law that where two views are possible and one of the possible views has been taken by the trial court, 4 then the appellant court shall not ordinarily interfere with the judgment of acquittal. Reliance has been placed on paras 7 and 8 of the judgment rendered by the Hon’ble Apex Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which are reproduced as under: - “7. The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do not, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible. 8. We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two views are possible, the High Court should not have interfered with the judgment of acquittal passed by learned Sessions Judge. We, therefore, set aside the impugned judgment and allow this appeal. The appellant is in jail, he is directed to be released forthwith if not required in connection with any other case.” On the basis of the evidence and legal proposition discussed above, I am of the considered opinion that when one view is also possible which was taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the interference with the judgment of the trial court at this stage is not warranted. Therefore, there is no reason to disagree with the 5 view taken by the trial court on the basis of the evidence discussed above. The impugned judgment and order of the trial court dated 20.6.2008 seems to be correct and justified on the basis of the evidence discussed by him. Learned Brief Holder for the State/appellant also could not point out any mistake in the impugned judgment and order of the trial court on the basis of which leave to appeal can be granted. Hence, leave to appeal is refused. Consequently, the appeal is also dismissed. (Dharam Veer, J.) 18.6.2010 PRABODH