Informent vs State Of U.P. And Another on 21 July, 2025

Allahabad High Court

Informent vs State Of U.P. And Another on 21 July, 2025

Author: Vivek Kumar Birla

Bench: Vivek Kumar Birla

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:117949-DB
 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 518 of 2024
 

 
Appellant :- Informent
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Ved Prakash Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.
 

Hon’ble Jitendra Kumar Sinha,J.

1. Heard Shri Ved Prakash Pandey, learned counsel for the appellant-informant, Shri Rahul Asthana, learned AGA for the State and perused the record.

2. Present criminal appeal under Section 372 Cr.P.C. has been filed against the judgement and order dated 08.08.2024, passed by the learned Additional Sessions Judge/Special Judge (POCSO Act), District Ghazipur in Special Sessions Trial No.507 of 2022 (State Vs. Sunny Deval), arising out of Case Crime No.82 of 2022, under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act, Police Station Kasimabad, Disrict Ghazipur.

3. Trial Court’s record were summoned by this Court vide order dated 03.10.2024 and the appeal was directed to be listed for admission. Trial Court records have been received.

4. We find that in fact affidavit filed in support of the present appeal at page 55 of the paper book is of Arti Gupta, wife of Anil Gupta whereas the informant in the present case is Anil Gupta, father of the victim, who has not come forward to file the present appeal, however, without going into technicality we proceed to consider the appeal on merits for admission.

5. Prosecution story in brief is that a written tehrir was submitted by the informant/complainant before the Police Station Kasimabad, District Ghazipur stating therein that on 16.04.2022 at about 10:30 AM his daughter-victim aged about 16 years, was missing from his house. It was informed by his wife on phone that one Sunny Deval and his mother Buchani Devi for the last several days were luring his daughter for taking money and jewellery away from her house and were also threatening her to insult. On the basis of aforesaid information, first information report was lodged against the accused- respondent no.2. Thereafter, investigation was started and after completion of investigation chargehseet was submitted against accused -respondent no.2 under Section 363, 366, 376 IPC and Section 3/4 POCSO Act.

6. In support of prosecution case, PW-1 Anil Gupta (complainant), PW-2-Arti Gupta, PW-3 Victim, P.W.4-Dr. Priyanka Rai, P.W.5-Constable Reema Paswan, P.W.6-Aram Nazeer (Principal) P.W.7-Sub Inspector Suneel Kumar Dubey, P.W.8-Head Constable Pramod Yadav were produced and examined before the Court below.

7. The judgement of acquittal has been passed on the ground that although it was claimed in the first information report that the victim was aged about 16 years, however, it was held that she was aged about 19 years at the time of incident. P.W.3-Victim herself had given her age in her statement recorded under section 164 Cr.P.C. as 19 years. Scholar Register of the M.M. Girls School, Bahadurpur, Ghazipur was submitted wherein the date of birth of the victim was noted as 15.02.2006 and the Principal of the said School was also appeared as PW.6., however, he stated that victim had taken admission in the School in Class VII and School is only upto Class VIII and at the time of her admission no Transfer Certificate or any other certificate in respect of proof of date of birth of the victim was filed and even no affidavit in respect of her date of birth was ever submitted. The Trial Court found that in the Scholar Register there was overwriting in the year 2006. It was also noted that the victim was 10th pass, however, no certificate in this regard was submitted by the informant, therefore, she was subjected for medical examination for verification of her age. In the report it was opined that she is aged about 19 years. As per supplementary report, Exhibit Ka-3 her ‘wrist and knee epiphysis is fused & pelvis iliai crest is fused’ coupled with the fact that she herself had stated in her statement recorded under section 164 Cr.P.C. that her age is 19 years. The Trial Court also found that there is material contradiction in the statement of the victim recorded under Section 164 Cr.P.C. and as PW-3. In respect of entire episode, under Section 164 Cr.P.C. she had categorically stated that she had voluntarily left home as her mother Arti Gupta and sister- Sweta scolded her, therefore, she left home on her own and went to Mau Railway Station by Taxi and thereafter had gone to Mumbai and never raised any alarm and in respect of her recovery also there was material contradiction in the statement of prosecution witnesses. The Trial Court also found that the victim refused for her internal medical examination and she nowhere stated that any offence whatsoever including the offence taking her away and rape or any offence under the POCSO Act was ever committed. The Trial Court also noted the fact that in her cross examination the victim had admitted that she had voluntarily left home as her mother Arti Gupta and sister- Sweta scolded her, therefore, she left home on her own and Sunny had never threatened her brother and that she was not raped, as such she had categorically denied the commission of any such offence. On these grounds, the judgment of acquittal was passed by the learned Trial Court.

8. By drawing attention to the High School Certificate of the victim annexed with the appeal, learned counsel for the appellant-informant submitted that the date of birth of the victim is 15.02.2006 and she was minor at the time of incident and in her examination-in-chief she has supported the prosecution version. It is further submitted that the judgment of acquittal can be passed on the sole testimony of the prosecutrix/victim, therefore, the judgment of acquittal is against weight and evidence on record. Submission, therefore, is that the judgement and order of acquittal passed by the Trial Court requires serious consideration and reversal and the accused Sunny is liable to be convicted.

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

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

11. 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”

12. 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.”

13. 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.”

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

15. On perusal of record, we find that the cross examination of the victim as PW.3 was conducted on 12.12.2023 and 15.12.2023, however, only cross examination conducted on 12.12.2023 has been annexed alongwith appeal and part of cross examination conducted on 15.12.2023 has not been annexed, therefore, there appears to be a deliberate concealment of fact on the part of the appellant.

16. We further find that in respect of date of birth of the victim, photocopy of the High School Certificate has been annexed alongwith the present appeal, however, judgment of acquittal reflects that in spite of the admitted position that she had done her High School, no High School Certificate was produced through out trial that was continuing from 2022 till delivery of impugned judgment and the same was also not produced during the investigation. In any case we have carefully gone through the statement of PW.1-complainant (father of the victim), P.W.2-Arti Gupta (mother of the victim) as well as statement of PW.3 (victim). We find that PW.1 and PW.2 were not the eye witnesses of the incident and instead of making statement that the accused had taken their daughter away nothing was found in their statements. The victim herself had denied this allegation that the accused had taken her away. She had categorically denied that she had ever raped by accused coupled with the fact that she had refused to go for her internal medical examination and in the present case she was subjected to medical examination for the purpose of determining her age only, wherein she was found to be 19 years of age and she herself had stated in her statement recorded under Section 164 Cr.P.C. that she was aged about 19 years. In such view of the matter, we find that material contradiction in the statement of the victim herself have been clearly noticed alongwith other material evidence by the trial court at internal page 10 to 13 of the impugned judgment, therefore, it was found that the evidence of the victim is not worth belief and she is not a sterling witness.

17. 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 and we do not find any infirmity in the order impugned.

18. The appeal is accordingly dismissed at the admission stage itself.

Order Date :- 21.7.2025

Nitendra