Point of law: In any event High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, High Court should have borne in mind well settled principles of law that where two view are possible, appellate Court should not interfere with finding of acquittal recorded by Court.

Headnote:
Indian Penal Code, 1860 - Sections 376 and 511 – Offence of Rape – Appeal against Acquittal - Accused who was nephew of prosecutrix tried to commit tress pass entered the house tried to molested her, but in process when she tried to catch him, he ran away - Prosecutrix was moved into motion and the charge sheet was laid - State of Uttar Pradesh has felt aggrieved while convicting accused - Learned trial Judge has convicted under Section 354 of Indian Penal Code as the learned Judge has considered case under Section 354 as though the charge against the accused was for commission of offence under Section 376 of IPC and 511 IPC. The said offences were held to be not proved.
Finding of the court:
It is a settled principle that while exercising appellate powers, even if two reasonable views/conclusions are possible on basis of evidence on record, the appellate Court should not disturb finding of acquittal recorded by the trial Court - It is also a settled legal position that in acquittal appeals, appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper - Accused who was the nephew of the prosecutrix tried to commit tress pass entered the house tried to molested her, but in the process when she tried to catch him, he ran away. Prosecutrix was moved into motion and the charge sheet was laid - It would not permit us to take a different view then that taken by the learned Judge who has convicted the accused. The evidence on record also will not permit us to take a different view as far as punishment under Section 354 and not 376 IPC is considered. Thus, the above-mentioned decisions will not permit this Court to take a different view except infliction of fine. In this case it is not proved beyond doubt that the original accused respondent, herein, indulged into commission of rape of his own aunt - Provision of Section 511 IPC with which he was charged is also not be attracted. There was no charge under Section 457 of IPC, but the learned Judge has also convicted under Section 457 of IPC read with 354 IPC.
Result: Appeal fails

JUDGMENT :

1. Heard learned AGA for the State and perused the record.

2. This appeal, at the behest of the State, has been preferred against the judgment and order dated 18.10.2005, passed by the Additional Sessions Judge/F.T.C., Maharajganj, acquitting accused-respondent, who has been tried for commission of offence under Sections 376 and 511 of Indian Penal Code (hereinafter referred to as, ‘I.P.C’).

3. The State of Uttar Pradesh has felt aggrieved while convicting the accused. The learned trial Judge has convicted under Section 354 of the Indian Penal Code as the learned Judge has considered the case under Section 354 as though the charge against the accused was for commission of offence under Section 376 of IPC and 511 IPC. The said offences were held to be not proved. The accused had entered the house of his uncle and aunt and tried to ravish her. The learned Judge has considered the judgment in Shiv Shankar v. State of Uttar Pradesh reported in 2002 Crl. Law Journal 2673 and come to the conclusion that he held lost the right of being in the house of the uncle and, therefore, he has been considered to be an accused and is punished for committing offence under Section 457 IPC also read with 354 IPC.

4. Learned Judge while sentencing has considered the fact that this is first offence and he was under mental shock as he had lost his elder brother and wife of his younger brother. The accused tried to molest his aunt and, therefore, the court ordered his incarceration for 2 years under Section 354 of IPC and one year under Section 457 of the IPC but looking to his state of mind did not order recovery of fine or default sentence.

5. After recording the evidence of the witnesses and perusing the material on record, the trial Court passed the impugned order. Hence, the present appeal contending that offence committed was under Section 376 IPC.

6. We are not aware whether the accused has challenged the sentence or not, but the State has challenged. The order sheet does not reveal that since 2006 whether the accused ever was issued with summons, though the record has been summoned and it is with this court since August, 2021.

7. The term shall also be liable to fine in section 457 and, therefore, we are of the opinion that while hearing the appeal, we find that error has occurred by not imposing fine for conviction under Section 457 IPC. The view taken by learned Judge is against the mandate of the Statute and no reasons are assigned by the learned Judge, as to why he has not inflicted punishment of fine though the sentencing as per Section 457 of Indian Penal Code uses the word 'and fine'.

8. As far as the facts are concerned, the accused was charged with commission of offence under Section 376 read with Section 511 of the IPC that he had committed rape of his aunt on 2.2.1995 by entering into his house, he had tried to commit rape and he was also liable for tress pass.

9. Learned AGA for the appellant-State, vehemently submitted that the trial Court committed a grave error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective. It is submitted that taking into consideration the oral evidence of the witnesses examined by the prosecution as well as the documentary evidences produced by it, the trial Court ought to have held the accused guilty of the charges leveled against them. It is, therefore, prayed that the appeal be allowed.

10. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of “M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR”, (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under :

“54. In any event the High Court entertained an appeal treating to