State Of U.P. vs Ikram Kureshi S/O Ikhlakh Alias Lakha on 18 July, 2025

Allahabad High Court

State Of U.P. vs Ikram Kureshi S/O Ikhlakh Alias Lakha on 18 July, 2025

Author: Vivek Kumar Birla

Bench: Vivek Kumar Birla

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:116699-DB
 
Court No. - 42
 

 
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 327 of 2025
 

 
Appellant :- State of U.P.
 
Respondent :- Ikram Kureshi S/O Ikhlakh Alias Lakha
 
Counsel for Appellant :- Patanjali Mishra
 

 
Hon'ble Vivek Kumar Birla,J.
 

Hon’ble Jitendra Kumar Sinha,J.

Re: Criminal Misc. Delay Condonation Application

1. Heard Sri Jai Narain, learned A.G.A. for the State and perused the record.

2. There is delay of 66 days in filing the present appeal.

3. Cause shown is sufficient.

4. Delay is condoned. Application is allowed.

5. Office is directed to allot regular number to this appeal.

Re: Criminal Misc. Application (Leave to Appeal)

1. Heard Sri Jai Narain, learned A.G.A. appearing for the appellant-State of UP and perused the record.

2. Present government appeal has been preferred against the judgement and order dated 28.1.2025 passed by Special Judge, POCSO Act, Court No. 14, Saharanpur, in Special Case No. 39 of 2018, arising out of Case Crime No. 180 of 2018 under Sections 363, 366, 452, 376 IPC and 3/4 POCSO Act, PS Gangoh, District Saharanpur.

3. Prosecution story, in brief, is that the complainant moved an application at Police Station Gangoh, District Saharanpur stating therein that on 10.3.2018 at about 4:00 pm, the minor niece of the complainant, daughter of Dharm Veer Pal was alone at home. Taking undue advantage of the situation, the accused-respondent Ikram Kureshi son of Ikhlakh Kala Alias Lakha resident of locality Qureshian Lakhnauti entered into the house of the complainant and lured the minor niece of the complainant and took her away along with five thousand cash, a pair of silver anklets weighing around 15 tolas and a gold ring weighing around one tola which was kept in the house. When the informant and his family returned home, they found the minor niece and the above-mentioned items missing from the house. When the informant searched for his minor niece, one Gurnam son of Jai Singh of the village told him that he saw the victim going with the accused-respondent. When the informant asked about the incident to the family members of the accused-respondent, they promised him to return the minor to her family but on the date of application i.e. 12.03.2018 in the morning, the family members of the accused-respondent clearly refused to return the minor niece of the informant and also threatened to kill them in front of the witness Somma son of Mamaraj of village Sarajpur Takipur. On the basis of the aforesaid facts, the first information report of the present case was registered in which the investigating officer after due investigation has submitted charge-sheet.

4. In support of prosecution case, PW1 Anagpal (complainant), PW2 victim, PW3 Gurunam, PW4 HC Sushil, PW5 Dr. Manorama Gopal, PW6 SI Lokendra Rana and PW7 Brijesh Kumar Garg were produced and examined before the Court below.

5. The judgement of acquittal was passed on the ground that as per school record, the date of birth of the victim is mentioned as 05.7.2001 whereas in the medical examination, she was found aged about 17 years and benefit of two years have to be extended in favour of the accused. In so far as the manner in which the incident took place, there were material contradictions in the statements of the victim recorded under sections 161 Cr.P.C, 164 Cr.P.C. and in her statement recorded as PW2 before the Court. The incident had taken place on 10.3.2018 and she was recovered on 14.3.2018 and she made a statement under section 161 Cr.P.C. on 14.3.2018 to the effect that she knows the accused Ikram Qureshi and she herself had left her home with him on a motorcycle and they had gone to Dehradun and Mussourie and stayed there in a hotel as husband and wife and she treats him as her husband. In her statement recorded under section 164 Cr.P.C., she stated that on 10.3.2018, she got annoyed with her mother and in sheer anger, she left her home and went to Dehradun all alone and returned to Saharanpur, thereafter, she was detained by the police. She categorically stated that no offence was committed with her and she was not raped by the accused and that she had come on her own whereas appearing as PW2, she had given her date of birth as 05.7.2001 and stated that accused Ikram Qureshi was known to her for about three years and on the pretext of getting married, he had taken her to Dehradun on a motorcycle and thereafter to Mussourie and established physical relationship against her wishes and on 14.3.2018, she was detained by Nanauta Chand of Saharanpur. It was stated that she got her statement recorded under section 164 Cr.P.C. under threat. However, in her cross examination, she admitted that while she was being taken away on motorcycle from Saharanpur to Dehradun, there was several localities, however, she never raised any alarm because she was under threat. On this ground, the court below found that she was major on the date of the incident and had voluntarily left with the accused person and no offence whatsoever was made out.

6. Challenging the aforesaid judgment, the submission of learned A.G.A. is that the judgment of acquittal is against the weight of evidence on record. The victim has appeared as PW2 and had stated that she had made statement under section 164 Cr.P.C. under threat. Rape was committed upon her for about four days under threat and that sole testimony of the prosecutrix is sufficient to convict the accused person. Therefore, the judgement of the trial court is clearly liable to be set aside.

7. We have considered the submissions and have perused the record.

8. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

9. 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 re-appreciated 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”

10. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, 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.”

11. 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.”

12. Similar view has been reiterated by Hon’ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.

13. We find that as already noticed by the trial court, there were material contradictions in the statements of the victim recorded under sections 161 and 164 Cr.P.C as well as in her statement recorded as PW2. In her statement recorded under section 161 Cr.P.C, she had admitted that accused Ikram was known to her and they were having relationship for the last three years and she had voluntarily left her home with him on a motorcycle and went to Dehradun and Mussourie and lived there as husband and wife and she treats him as her husband. In her statement recorded under section 164 Cr.P.C, she had taken a different stand that she had left her home for Dehradun all alone and returned back on her own and that she did so as she was angry with her mother. In this statement also, the victim has not supported the prosecution version, however, she narrated the entire story in a different way. In her cross examination as PW2, she had admitted that she had gone with the accused person on motorcycle, however, from Saharanpur to Dehradun, there were several localities but she did not raise any alarm. Coupled with this, it is also on record that from the educational certificate as well as from the medical examination report, she was aged about 17 years and, therefore, the court below has rightly extended the benefit of two years in favour of the accused person.

14. In such view of the matter, we, 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.

15. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.

Re: Government Appeal

1. Since Criminal Misc. Application (Leave to Appeal) is rejected by order of date, the present government appeal is also dismissed.

Order Date :- 18.7.2025

Madhurima