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Allahabad High Court
Lila Prasad vs State Of U.P. And 2 Others on 21 July, 2025
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:118180-DB Court No. - 42 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 677 of 2024 Appellant :- Lila Prasad Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Rajendra Babu Gaur Counsel for Respondent :- G.A. Hon'ble Vivek Kumar Birla,J.
Hon’ble Jitendra Kumar Sinha,J.
1. Vide order dated 5.12.2024, lower court record was summoned by this Court and appeal was directed to be listed for admission.
2. Learned trial court record is now available, therefore we proceed to consider the appeal.
3. Heard Sri Rajendra Babu Gaur, learned counsel for the appellant, learned AGA for the State and perused the record.
4. Present appeal has been filed by the appellant against the judgement and order dated 10.10.2024 passed by learned Additional Session Judge/Special Judge Protection of Children From Sexual Offence Act, Court No. 42 Shahjahanpur in Session Trial No. 1807 of 2024, under section 363, 376 IPC and 3/4 POCSO Act and Session Trial No. 1836 of 2021 under section 363, 376 IPC and 16/17 of POCSO Act arising out of Case Crime No. 439 of 2021, P.S. Seharamau South, District Shahjahanpur both session trials have been consolidated and Session Trial No. 1807 of 2021 was made as leading case whereby respondent accused have been acquitted from the offence interalia on the amongst other.
5. As per the first information report, the victim aged about 16 years had gone away in the night of 2/3.10.2021 and she had also taken away her Adhar Card and Jewellery. Victim was recovered on 11.10.2021 while she was standing by the road side.
6. The judgement of acquittal has been passed on the ground that the victim in her statement recorded under section 161 Cr.P.C. has not supported the prosecution version and she has stated that she was aged about 18 years and educated upto class 8th. She has further stated that in the night of 2/3.10.2021, she had called Mohit, the accused herein and left around 11 P.M. along with him. She has further stated that Mohit had taken her away to Shahjahanpur where she lived with him and they had made consented physical relationship. On 11.10.2021 at about 12:00 noon, she was standing along with Mohit on Hardoi turn and Mohit had gone away to take something for eating, the police had recovered her. The victim has also stated that she wish to go with Mohit. Learned trial court has noticed that the victim admitted her signature on her statement recorded under section 161 Cr.P.C.
7. Learned trial court has also noticed that the victim made material improvement in her statement recorded under section 164 Cr.P.C. and specific allegations were levelled against Mohit that while she was sleeping on the roof, he had come there and after putting cloth on her mouth, he had thrown her down from the roof. His brother-in-law was standing there who caught her and both of them forcibly took her away on a motorcycle and she was kept in a room where she was raped by Mohit and the police rescued her.
8. Learned trial court has also noticed that the victim in her statement recorded as P.W. 2 has named Ram Singh, brother-in-law (Jija) of Mohit for the first time that he also committed rape on her. It has further been noticed by learned trial court that P.W. 8, the doctor who conducted radiological test on her found her age about 18 years as per radiological report. Therefore, learned trial court found that there were material contradictions in her statement recorded under sections 161 and 164 Cr.P.C. as well as in the statement recorded during trial as P.W. 2. Thus, learned trial court found that the victim has materially improved her statement at every stage.
9. The educational certificate produced before the court were not found worth belief wherein her date of birth was recorded as 3.1.2005. P.W. 9-Savita Shukla, Principal of School had stated no document in respect of date of birth was produced by her parents at the time of recording of her date of birth. She in her cross examination admitted that usually parents gives incorrect date of birth to show their child younger. Father of the victim P.W.1, the informant had also admitted in her cross examination that at the time of admission in school, lesser age was shown for registration in school and it was admitted by the informant in his statement dated 14.9.2022 that he was aged about 65 years.
10. Considering the entire circumstances it was found that educational certificate of the victim was not worth belief therefore, the radiological report and statement of doctor were considered and it was found that the victim was major.
11. Learned trial court has found that offence under section 376 IPC is not proved against the appellant as the victim has materially changed her statement at every stage as has already been noticed above.
12. Submission of learned counsel for the appellant is that as per educational certificate victim was minor and in her statement recorded under section 164 Cr.P.C. she had specifically levelled allegation against the appellant herein and remained consistent and in her statement recorded as P.W. 2, she has levelled allegation against Ram Singh as well as she remained consistent on that point and had specifically levelled that she was forcibly taken away and rape was committed.
13. We have considered the submissions made by learned counsel for the appellant and perused the record.
14. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
15. 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”
16. 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.”
17. 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.”
18. Similar view has been reiterated by Hon’ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
19. We find that in the totality of circumstances, the educational certificate including the statement of principal of the school and father of the victim, it is clear that lesser age was shown in the educational certificate of the victim by showing date of birth as 3.1.2005 and as per the age of informant itself, she would have been major.
20. The victim P.W. 2 has made material improvements at every stage. In her statement recorded under section 161 Cr.P.C. wherein she has stated that she had gone with Mohit on her free will and she had entered into consented physical relationship with him whereas in her statement recorded under section 164 Cr.P.C., she has stated that the appellant Mohit came on the roof of her house while she was sleeping in the night and after putting cloth on her mouth he threw her down where brother-in-law (jija) was standing who caught her and thereafter Mohit and his brother-in-law took her away on a motorcycle. She has further stated that her father was sleeping on nearby Khadanja and when she appeared as P.W. 2 during trial, she has stated for the first time accused Ram Singh also committed rape on her. There was no medical report to the effect that the victim was subjected to rape. It is also pertinent to note that in the first information report lodged by P.W. 1, the father of the victim stated that she had taken away her Adhar Card along with certain jewellery whereas P.W. 3 the brother of the victim has denied that the victim took away jewellery with her. Thus, the statement of the victim suffers from major contradictions and victim is not a witness of sterling quality.
21. In such view of the matter, we find that learned trial court 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 judgement impugned.
22. Accordingly, the appeal is dismissed at the admission stage itself.
Order Date :- 21.7.2025
SY
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