1 S.B.CRIMINAL LEAVE TO APPEAL NO.328/2007 (State Vs. Jan Mohd. and ors.) Date of Judgment : 19-11-2008 HON'BLE MR.JUSTICE GUMAN SINGH Mr.D.D.Sharma, Public Prosecutor for State. Mrs.Naina Saraf, for accused-respondents. This application for leave to appeal has been filed by the State against the judgment of acquittal passed by learned Addl.Sessions Judge No.2, Kishangarh Bas, Camp-Tijara, Distt. Alwar dated 14.12.2005 whereby the accused-respondents were acquitted of the offence under Sec.366 IPC while the co- accused Kamruddin was convicted for the offence under Sec.376 and sentenced for 10 years R.I. and fine; and for offence under Sec.366 IPC-sentenced to 5 years R.I. and fine. Heard learned Public Prosecutor for the State and learned counsel for the accused- respondents. The learned Public Prosecutor has contended that the learned trial court has failed to appreciate the evidence in right perspective while acquitting the accused- respondents and application for leave to appeal may be granted. 2 Per contra, learned counsel for the accused-respondents has supported the judgment of the trial court and submitted that it has appreciated the evidence in right perspective. It is further submitted that the girl was of matured understanding. She had gone at her own with the co-accused that co-accused Kamruddin was convicted under Sec.376 IPC on the ground that she was less than 16 years of age and her consent had no meaning. It is also submitted that witnesses produced have not deposed anything against the accused-respondents and they have been declared hostile and, as such, the petition for leave to appeal may be dismissed. In view of rival submissions and having gone through the record and examining the judgment of the trial court, it is revealed that the learned trial court has taken into consideration the evidence adduced on record against the accused-respondents and has given finding that there is no sufficient evidence to convict the accused for the offence under Sec.366 IPC in the facts & circumstances of the case. On going through 3 the evidence and examining the judgment of the trial court, there appears to be no perversity or illegality in the finding arrived at by the trial court and same calls for no interference. The Hon'ble Supreme Court in the case of State of M.P. Vs. Bacchudas @ Balaram and ors. (2007 AIR SCW 1305) while considering the scope of section 378 Cr.P.C., held that even if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted and the judgment of acquittal should be interfered with only when there are compelling and substantial reasons for doing so. “9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden threat which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused 4 should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re- appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh Vs. State of M.P. 2003 (3) SCC 21). The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so....” Accordingly, in view of above position of law, there is no ground to admit the application for leave to appeal and consequently the same is dismissed. (GUMAN SINGH),J. sandeep/- item no.6