Allahabad High Court
State Of U.P. vs Imtiyaz S/O Mohammad Nabi on 11 August, 2025
Bench: Vivek Kumar Birla, Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:135247-DB Court No. - 42 Case :- GOVERNMENT APPEAL No. - 291 of 2025 Appellant :- State of U.P. Respondent :- Imtiyaz S/O Mohammad Nabi Counsel for Appellant :- Ashutosh Kumar Sand Hon'ble Vivek Kumar Birla,J.
Hon’ble Pramod Kumar Srivastava,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Sri Rahul Asthana, 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 07.2.2025 passed by the Additional Sessions Judge (Fast Track Court), Bareilly in Sessions Trial No. 566 of 2021 arising out of Case Crime No. 624 of 2018 under Sections 452, 376, 323, 504, 506 IPC, P.S. Bhojipura, District Bareilly.
3. Prosecution story, in brief, is that complainant Sarwar Ali son of Asgar Ali resident of Itaua Kedarnath, Police Station Bhojipura District Bareilly filed an application under 156 (3) Cr.P.C. before the concerned Magistrate, on which, FIR was registered at the concerned police station in compliance with the order dated 04.09.2018 passed by the concerned court. In brief, the prosecution story is that the applicant had fixed the marriage of his daughter/victim with Imtiyaz son of Mohd. Nabi in December, 2017 and their engagement took place on 06.6.2018. Being residents of the same village, Imtiaz and his family used to visit their house and being the bride’s family, they respected them a lot and Imtiaz also started talking to her daughter on phone. One day i.e. a day or two after Eid, when all the family members had gone to attend Eid feast in the locality, Imtiaz came to his house and after knowing that his daughter is alone at home, he caught her daughter’s hand with bad intentions of disgracing her by doing obscene acts, he threw her on the ground with a knife and started trying to dishonour her. When her daughter protested, he said that it has to happen tomorrow, it will happen today itself, so what is the harm in it. By then the whole family came back home and on seeing them, Imtiaz left his daughter and got scared and went to his house. Then his daughter told him the whole thing and the informant went to the house of Imtiaz to complaint about the incident with his relatives. On hearing this, after some time, Imtiaz along with his friends Ishtiyak, Mohd. Nabi, Kabulan, Afsar Jahan, Mubarik and Parveen entered his house with the intention of killing him and his daughter and they started abusing him and his daughter and beat him badly with kicks, punches and slaps in his own house. On hearing his screams, many people came, who saw the incident and saved him, then they threatened that if this thing is told to anyone or if a complaint is made anywhere, then he will not marry his daughter and will kill both of them. On the basis of the above written complaint given by the complainant, a first information report was lodged. The investigating officer after completing all formalities and collecting sufficient material evidences submitted charge sheet against the accused respondent in the Court below.
4. In support of prosecution case, PW1 Sarvar Ali, PW2 the victim, PW3 Constable Sunil Kumar, PW4 Dr. Anita Dasmana and PW5 S.I. Harpat Singh were produced and examined before the Court below.
5. The judgement of acquittal has been passed on the ground that there was allegation that sagai of the victim had taken place with accused Imtiyaz on 06.6.2018, however, there was no proof of any such engagement and no evidence in this regard including photograph to indicate any such ceremony. The criminal prosecution was lodged by filing application under section 156 (3) Cr.P.C. on 21.8.2018 which was allowed and FIR was lodged on 08.9.2018. The court further found that in the statement of the victim recorded under section 161 Cr.P.C., there was no allegation that rape was actually committed and only this much was mentioned that an attempt was made to sexually assault the victim. It was found that the informant was not the eye witness. The court below also found that there was material improvement in the prosecution version as narrated by the victim herself and for the first time she alleged in her statement under section 164 Cr.P.C. that rape was committed upon her on 16.4.2018, however, this fact was never disclosed in the application under section 156 (3) Cr.P.C. or in her statement recorded under section 161 Cr.P.C. The victim appeared as PW2 and in her cross examination, she stated that the accused Imtiyaz had committed rape on her on several occasions, however, the family members were not informed about the same and no complaint whatsoever was made. She admitted in her cross examination that as the sagai had already taken place and the accused persuaded her that in modern times there is no harm in maintaining physical relationship, therefore, she agree to the same. The court also found that on the alleged date of incident, the victim herself had called the accused at least six times on his phone and the accused had also called her at least nine times on the same date and, therefore, they were having continuous communication. There is material improvement in the statements of the victim recorded under section 161 Cr.P.C. and as prosecution witness coupled with the fact that victim has refuse to undergo internal medical examination. On these grounds, the court below found that the victim was not of sterling quality and, therefore, judgment of acquittal was passed.
6. Challenging the impugned judgment, Sri Rahul Asthana, learned A.G.A. submits that the judgment of the court below is against the evidence on record. The statement of the victim was sufficient to convict the accused even if she has refused to undergo internal medical examination. 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 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. On perusal of record, we find that that there was a considerable delay in lodging the prosecution. Even if the date of incident is taken to be 16.6.2018 as the application under section 156 (3) Cr.P.C. was allowed after more than two months on 21.8.2018 and even in this application, the date of incident was not given and this much was not stated that the accused committed rape on the victim. In her statement under section 161 Cr.P.C., the victim never made any allegation of commission of offence under section 376 IPC. The record further reflects that even though there is no evidence that sagai of the victim had taken place with the accused on 06.6.2018, still it is clearly reflected from the record that the accused and the victim were having relationship including physical relationship and this material fact was concealed up to the stage of recording of statement under section 164 Cr.P.C. as well as in her statement recorded as prosecution witness. In any case, she had also admitted that on some early occasions also she had developed physical relationship with the accused, however, she only submits that she continued to tolerate the same. She had deliberately refused to undergo internal medical examination and at every subsequent stage, she had improved her versions, firstly, she never gave any specific date of commission of offence, subsequently, she disclosed the first date of offence as 16.6.2018 in her cross examination wherein she also admitted that she was subjected to rape on earlier occasions as well though she never opposed the same. We further find that there is no dispute that the victim is major girl. In this background, we find that the this witness is not of sterling quality as is rightly held by the trial court and the trial court has rightly acquitted the accused.
14. 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.
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. Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by order of date, the present government appeal is also dismissed.
Order Date :- 11.8.2025
Madhurima