Allahabad High Court
State Of U.P. vs Chhedi Yadav S/O Sri Kailash Yadav on 22 August, 2025
Bench: Vivek Kumar Birla, Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:145383-DB Court No. - 42 Case :- GOVERNMENT APPEAL DEFECTIVE No. - 82 of 2025 Appellant :- State of U.P. Respondent :- Chhedi Yadav S/O Sri Kailash Yadav Counsel for Appellant :- Ashutosh Kumar Sand Hon'ble Vivek Kumar Birla,J.
Hon’ble Pramod Kumar Srivastava,J.
RE: Criminal Misc. Delay Condonation Application
1. Heard Sri Pankaj Saxena, learned AGA appearing for the State and perused the affidavit filed in support of delay condonation application.
2. No one is present on behalf of the sole respondent.
3. There is delay of 68 days in filing the appeal. No counter affidavit has been filed as yet.
4. Cause shown is sufficient. Delay in filing the appeal is condoned. Delay condonation application stands allowed.
5. Office is directed to give regular number to this appeal
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Sri Pankaj Saxena, 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 19.09.2024 passed by the Additional District & Sessions Judge, Court No. 12, Aligarh in Sessions Trials No.131 of 2018, arising out of Case Crime No.354 of 2018, under Sections 376, 323, 504, 506, 354, 452, 467, 468, 471, IPC and 5N/6 POCSO Act, PS Cantt., District Varanasi.
3. Prosecution story, in brief, is that the complainant has filed an application under Section 156 (3) Cr.P.C. with the allegation that the accused is the son of his first wife and he is involved in committing crimes alongwith criminal nature persons; he is a gambler and drunker, from the wedlock of the complainant and his second wife a female child born and the complainant living with his second wife and minor daughter, but the accused since beginning was in a chance to oust the complainant, his wife and daughter and to sale out the house, the accused having evil eyes upon minor daughter of the complainant and prior to commit the incident of marpit by the accused, complainant has lodged a report in which the accused was obtained bail and in bail bond the accused mentioned his name as Chhedi Yadav Son of late Vishwanath, though in the voter list he mentioned the name of his father as Mahangi and in Assessment in Nagar Nigam he mentioned the name of his father as Kailash Yadav and complaint made in the court which is pending, the accused has committed fraud. On 06.12.2017 at 6 p.m., the complainant was out from his house for labour work at that time the accused entered in the house and abused the wife of the complainant and his daughter and committed marpit and done wrong act with the minor daughter of complainant and threatened for life. After this incident, when at late evening, the informant reached his house then the wife of the complainant disclosed the incident, upon that the informant enquired from the accused upon which, the accused threatened for life, if the complainant will not leave the house. The complainant given information at Police Station concerned but no report was lodged, then he moved application to the Senior Superintendent of Police, Varanasi but no action was taken against the accused, then the complainant filed application under Section 156 (3) Cr.P.C. and on the direction of the court, First Information Report was registered against the accused for offence under Sections 323, 354, 376, 452, 467, 468, 471 504, 506 IPC and 4 POCSO Act, in which after due investigation, the investigating officer has submitted charge-sheet against the accused under Sections 323, 354, 376(2)(1), 452, 467, 468, 471 504, 506 IPC and 5N/6 POCSO Act.
4. In support of prosecution case, PW-1 victim, PW-2 informant/victim’s father, PW-3 Ashok Kumar, Principal, PW-4 Dr. Rashmi Gupta and PW-5 S.I./Investigating Officer Ajay Kumar Shukla were produced and examined before the Court below.
5. The judgement of acquittal was passed on the ground that prosecution has failed to prove its case beyond reasonable doubt. The victim has appeared as PW-1 and for the first time she alleged that her clothes were torn and penetrative sexual assault was committed. The court below found that this allegation of use of force and penetration was neither alleged in the statement of victim recorded under Sections 161 Cr.P.C. nor in the statement made under Section 164 Cr.P.C. The court below further found that there was a litigation going on between the accused Chhedi and father of the victim. This fact was admitted by PW-2, father of the victim in his statement. The court below further found that PW-4 Dr. Rashmi Gupta has proved her medical report to the effect that there was no external or internal injury and the hymen of the victim was found intact and that there was no other injury on the internal part of the victim. The court below also found that during cross examination, the victim has admitted that when the accused has entered her house, her mother and she were beaten by the accused and thereafter, the offence of sexual assault was committed. The victim further admitted that, at the time when they were being beaten, about 8-10 people were present at the spot, therefore, it is not possible to commit rape in their presence. The court below, therefore, found that there was a consistent material improvement and contradiction in the statement of the victim recorded under Sections 161 and 164 Cr.P.C. and as prosecution witness PW-1. Under such circumstances, the Court below found that the prosecution could not prove his case beyond doubt and the accused was given benefit of doubt and judgement of acquittal was passed.
6. Challenging the impugned judgment, Sri Pankaj Saxena, learned AGA submits that the trial Court has erred in appreciating the evidence on record. He further submits that prosecution has clearly proved its case beyond reasonable doubt and burden shifted to the accused persons to demolish the case of the prosecution in view of the provisions of the POCSO Act. He further submits that victim was aged about 11 years at the time of incident and has supported the prosecution version. He further submits that the learned trial Court has given undue weightage to the evidence of defence and has wrongly ignored the prosecution evidence. He further submits that the witnesses are intact and have supported the prosecution case and the findings recorded by the learned trial Court is not one of the possible view. Submission, therefore, is that the judgement and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused herein is liable to be convicted.
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 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”
10. 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.”
11. In a 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. On perusal of record, we find that no external or internal injury was found during the medical examination of the victim by PW-4 Dr. Rashmi Gupta, who has proved the medical report. We further find that this was admitted by PW-2 father of the victim that he had already filed one case against accused Chhedi. We further find that the present criminal prosecution was lodged by filing an application under Section 156(3) Cr.P.C. on 11.12.2017 which was filed within five days of the incident and no cogent reason was given to the effect as to why the FIR was not lodged, though, it is alleged that police authority was intimated by sending a letter. The victim herself alleged that before the incident, she and her mother were beaten by the accused persons and about 8-10 people were present at the spot and, thereafter, sexual assault was committed. In these circumstances, we find that it would not have been possible to commit such offence once about 8-10 people were present on the spot. The victim never stated in her statements recorded under Sections 161 and 164 Cr.P.C. that any sexual assault was committed upon her, whereas, for the first time, she narrated the incident in detail to the effect that her clothes were torn and penetrative sexual assault was made upon her but significantly, the medical report does not support the same, as no external or internal injury was found on any body part of the victim and hymen was found intact. 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.
14. 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) has been rejected by order of date, the present government appeal is also dismissed.
Order Date :- 22.8.2025
S.A.