Allahabad High Court
State Of U.P. vs Raj Kumar And Others on 8 July, 2025
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:107582-DB Court No. - 42 Case :- GOVERNMENT APPEAL No. - 429 of 2024 Appellant :- State of U.P. Respondent :- Raj Kumar And Others Counsel for Appellant :- G.A. Counsel for Respondent :- Hon'ble Vivek Kumar Birla,J.
Hon’ble Jitendra Kumar Sinha,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Shri Anuj Kumar Mishra, learned AGA appearing for the appellant-State of UP and perused the record.
2. Present government appeal has been preferred against the judgement and order dated 04.07.2009 passed by the Additional Sessions Judge, Court No. 2, Bijnor, in Sessions Trial No.72 of 2009 (State Vs. Babloo and others), Sessions Trial No.132 of 2009 (State Vs. Bhagirath), arising out of Case Crime No. 179 of 2005, under Sections 366, 323/34, 506, 376G and Section 120-B IPC, Police Station Noorpur, District Bijnor.
3. The prosecution story is that the complainant Smt. Bano wife of Latif resident of Gau Senipura Police Station Turpur District Bijnor gave a written complaint on dated 8-3-2005 at Police Station Noorpur along with the statements that the complainant has three daughters. Her husband has passed away. On 26-2-08 she had gone to get fodder for the buffalo leaving her daughter Najuk alias Nanhi aged about 20-21 years. When at about 11 o’clock when Bane returned to her house, her other daughter Marjina told her that Nanhi had gone there and she had not returned. The complainant searched for her daughter. Sajjad son of Shahur, Ejaz and Yusuf told her that they saw Nanhi at about 10 o’clock in the day going with Rajkumar near the bus stand. The complainant says that Rajkumar had lured and kidnapped the girl. On the basis of the above written complaint, a case was registered at Police Station Noorpur under Section 366 IPC. The kidnapped girl Nanhi alias Naazak was recovered from Nahtaur Chauraha Noorpur on 6-4-05, who was with the accused Rajkumar, FIR was lodged as Exhibit-1. The kidnapped girl’s hand was examined at the Hoshiarpur Hospital Bijnor on 6-4-05, whose report is Exhibit-2. During the investigation, the investigating officer recorded the statements of the witnesses, inspected the scene of the incident and prepared the site-plan Exhibit-6 and after completing the investigation, a case was registered against the accused Rajkumar under Section 366 IPC.
4. In support of prosecution case, PW-1 STO Madan Tyagi, 30 PW2 Smt. Bano, 10 PW3 Najuk, 10 PW4 Sajjad Khan, 30 PW6 STO Binnu Gupta and PW6 SI Dev Drishn Sharma. PW1 STO Madan Tyagi in his statement has proved the First Information Report of this case as Exhibit-1 and the copy of the GD of the case disclosure as Exhibit-2.
5. The judgement of acquittal was passed by the learned trial Court on the ground that initially the first information report was lodged under Section 366 IPC against one Raj Kumar only, wherein the charge sheet was submitted. However, after submission of charge sheet, a complaint case was filed, wherein statement of witnesses were recorded under Sections 200 and 202 Cr.P.C. The other accused persons were summoned and the prosecution of all the accused persons took place and the case was committed for trial. The trial Court found that the victim PW-3 was admittedly aged about 20-21 years old on the date of the incident, when she was allegedly taken away. The victim in her statement had stated that she was taken away by Sunita and Bhagirath along with Raj Kumar and Babloo and they put her in Maruti van at gunpoint and took her to Pahalwan’s house in village Hafsabad. Sunita and Bhagirath returned after telling Rajkumar that you have fun with her and will sell her later. Rajkumar and Babloo kept her there for one month and raped her against her will and threatened her by showing gun. After one month Bhagirath and Sunita came there and said that they have talked to police, now take her away, will hand her over. Rajkumar and Babloo took her to Noorpur bus stand. When she raised hue and cry at Noorpur Bus station, Babloo ran away and Rajkumar was caught by the people there and handed over to the police. The trial Court noticed in her cross-examination that she has stated that she was being beaten every day and was being raped every day and her private parts were bleeding. She had also suffered open wounds. However, she has recovered from some of the wounds caused by the accused. She has further stated that her lower (Salwar) was also bloodstained but as it was too dirty and the same was washed by her. She had also stated that on the date of her recovery, she was also raped. However, PW-5 Dr. Veenu Gupta clearly stated in her medical report that there was no external or internal injuries on private part of the victim and hymen was old torn. There was no swelling or bleeding on the same.
6. In such view of the matter, it was found that the prosecution has failed to prove its case beyond reasonable doubt and all the accused persons were acquitted.
7. Challenging the impugned judgment, Shri Anuj Kumar Mishra, learned AGA submits that the victim was being raped repeatedly, therefore, there is every possibility that no evidence of rape is left on the person of the victim and the victim was being raped under threat and therefore, minor contradictions in the statement of the prosecution witnesses including the statement of SI Krishna Deo Sharma, who had appeared as prosecution witness no.6, cannot be a ground of acquittal.
8. We have considered the submissions and have perused the record.
9. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
10. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon’ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that “the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities”
11. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon’ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against against an order of acquittal passed by a Trial Court in the following words:
“The power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ”possible view’. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact.”
12. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered. For ready reference, paragraphs 10, 11 and 12 are quoted as under:
“10. In the case of Babu vs. State of Kerala (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179, the Hon’ble Apex Court has observed that while dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Paragraphs 12 to 19 of the aforesaid judgment are quoted as under:-
“12. This court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more, the probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445).
13. In Sheo Swarup and Ors. King Emperor AIR 1934 PC 227, the Privy Council observed as under:
“…the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses….”
14. The aforesaid principle of law has consistently been followed by this Court. (See: Tulsiram Kanu v. The State AIR 1954 SC 1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu Mohton & Ors. v. State of Bihar AIR 1970 SC 66; Sambasivan and Ors. State of Kerala (1998) 5 SCC 412; Bhagwan Singh and Ors. v. State of M.P. (2002) 4 SCC 85; and State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755).
15. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under:
“(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
16. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this Court re-iterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court’s acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that an “order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused.”
18. In State of Uttar Pradesh v. Banne alias Baijnath & Ors. (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances includes:
i) The High Court’s decision is based on totally erroneous view of law by ignoring the settled legal position;
ii) The High Court’s conclusions are contrary to evidence and documents on record;
iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
iv) The High Court’s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
v) This Court must always give proper weight and consideration to the findings of the High Court;
vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.
A similar view has been reiterated by this Court in Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.”
11. Hon’ble Apex Court in the case of Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 : 1996 SCC (Cri) 972 has observed that while deciding appeal against acquittal, the High Court has to first record its conclusion on the question whether the approach of the trial court dealing with the evidence was patently illegal or conclusion arrived by it is wholly untenable which alone will justify interference in an order of acquittal.
12. The aforesaid judgments were taken note of with approval by Supreme Court in the case of Anwar Ali and another vs. State of Himachal Pradesh (2020) 10 SCC 166, Nagabhushan vs. State of Karnataka (2021) 5 SCC 222, and Babu (supra) in Achhar Singh vs. State of Himachal Pradesh (2021) 5 SCC 543.”
13. Similar view has been reiterated by Hon’ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
14. On perusal of record, we find that initially the case against Raj Kumar only was filed by lodging first information report under section 366 IPC only and subsequently when the charge sheet was submitted under the aforesaid section against one accused Raj Kumar a complaint case was filed and in prosecution of the aforesaid complaint case, other accused persons were summoned and the matter was committed under Sections 366, 323/34, 506, 376G IPC and the trial proceeded further. There is no explanation as to why the complete allegations were not levelled in the first information report itself whereas PW-1 has admitted his thumb impression on the F.I.R. However, she states that she was not aware of the contents of such first information report and the police has lodged the first information report on its basis, whereas she was forced to put thumb impression on blank paper. We further find that the victim is a major girl aged about 20-21 years old. As per medical report, there was no internal or external injury found and doctor had appeared to support its case. It is also pertinent to note that the contents of cross-examination of PW-3, the victim herself, who states that she was having bleeding open wound and her private part was also bleeding and all parts of the body and her back and hands were also having injury. However, by the time, she was examined by doctor, she has recovered from all such injuries and on the last date, she was only slightly slapped. She had stated in categorical terms that on the last date, on which she was recovered, she was raped and her lower (Salwar) was also dirty which was washed by her. The medical report does not support the prosecution version as there was no evidence of any internal or external injuries and there was no sign of any intercourse having taken place within short period of time. There is no evidence of any sexual assault or even intercourse when she was examined. Admittedly, she was recovered on 06.04.2005 and her medical examination was conducted on the same day i.e. on 06.04.2005. In this background, her statement was that she was raped on the same date itself is not worthy of credence.
15. In such view of the matter, we, therefore, find that the court below has taken possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court taking a different view as per the law discussed above.
16. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
Re: Government Appeal
1. Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by order of date, the present government appeal is also dismissed.
Order Date :- 08.07.2025
RKM