Allahabad High Court
State Of U.P. vs Indra Pal Sharma on 2 July, 2025
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:102986-DB Court No. - 42 Case :- GOVERNMENT APPEAL No. - 396 of 2022 Appellant :- State of U.P. Respondent :- Indra Pal Sharma Counsel for Appellant :- Shiv Kumar Pal Hon'ble Vivek Kumar Birla,J.
Hon’ble Jitendra Kumar Sinha,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Sri Krishna Mohan Tiwari, 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 29.3.2022 passed by the Additional Sessions Judge/Fast Track Court, Court No.2, Bulandshahar in Sessions Trial No. 650 of 20189 arising out of Case Crime No. 207 of 2018 under Sections 452, 376, 506 IPC, PS Dibai, District Bulandshahar.
3. Prosecution story, in brief, is that the informant Renu Sharma wife of Gopal Sharma had given an application to the SHO stating therein that she is very poor and helpless lady and her husband is an alcoholic due to which, her brother-in-law (devar) always keep an evil eye upon her and also use to instigate his brother against her. As a result, her husband assaults her. On 04.5.2018 at around 9 p.m. when the informant was sleeping in her room with her younger son, her brother-in-law Indrapal Sharma entered the room and raped her forcefully. He also threatened to kill her son. When the informant informed about this incident to her husband and mother-in-law, they told her to keep her mouth shut. Taking advantage of such circumstances, her brother-in-law is continuously exploiting the informant and threatening to kill her son. The husband of the informant does not confronts his brother due to fear of the society and the informant is mentally disturbed with all this and she is unable to live a normal life. On the basis of this application, FIR was lodged and investigation was conducted and chargesheet was submitted against the appellant.
4. In support of prosecution case, six witnesses were examined namely PW1 the informant, PW2 Dr. Saumya Yadav, Medical Officer, PW3 Smt. Jaishree, Constable, PW4 Hani Sharma, son of the informant, PW5 S.I. Anil Kumar and PW6 S.I. Bachhoo Singh.
5. The judgement of acquittal was passed mainly on the ground that there was material contradiction regarding place of the incident in this statement of the victim informant PW1. The medico-legal report has not supported the prosecution version. PW2 Dr. Saumya Yadav has reported that the victim has refused internal examination and no injury was found on her person and there was no evidence of rape having been committed on her. The trial court has also placed reliance on various judgments passed by Hon’ble Apex Court in Ram Raj versus state of Chhattisgarh 2010 Crl. L.J. 2062 SC and Sham Singh versus state of Haryana AIR 2018 SC 3976 as well as the judgment of this court in Dinesh Kumar Maurya versus state of U.P. (Criminal Appeal No. 2073 of 2017) and Foolchandra and others versus State of U.P. 2004 Crl. L.J. 1904. The crux of all such judgments is that there can be no presumption that prosecutrix would always tell the entire story truthfully and the conviction cannot be solely based on the statement of the victim recorded under section 164 Cr.P.C. Under such circumstances, the Court below found that the prosecution could not prove its case beyond doubt and the accused was given benefit of doubt and the judgement of acquittal was passed.
6. Challenging the impugned judgment, Sri Krishna Mohan Tiwari, learned AGA submitted that there may be minor discrepancy in the statements of the victim, however, the same are not major in nature and the court below has committed mistake of law in not placing reliance on the statement of the victim who had appeared as PW1. He further pointed out that the husband of the victim who had appeared as DW1 stated against her as the accused is his real brother. It was next submitted that the minor son of the victim Honey Sharma who had appeared as DW has supported the prosecution version. Submission, therefore, is that the judgement and order of acquittal passed by the trial court requires serious consideration and reversal and the accused person 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 at every stage PW1/victim has disclosed a different place where she was sleeping when the offense was committed. This may be a minor discrepancy in her statement, however, we have noticed that she had stated in categorical terms that her husband used to drink heavily and used to beat her and the offence was committed when she was sleeping with her younger son Honey Sharma and that her clothes were torn and when this story was narrated by her to her husband and mother-in-law, they asked her to keep quiet and because of this reason her brother-in-law (devar) by threatening to kill her sons was exploiting her whereas PW4 Honey Sharma, the younger son of the victim, who was stated to be sleeping with her at the time of the incident had clearly stated in his cross examination that his mother was not living with his father since the very beginning whereas the victim has denied this suggestion that her husband was not living with them, therefore, there were material contradictions in the statements of PW1 and PW4.
14. We further find that DW1 Gopal who is husband of the victim and real brother of the accused had stated that he was sleeping with his wife and both the sons right from 7:00 PM of the date of the incident till 7:00 in the next morning and no such incident had taken place whereas DW2 Prince, aged about 14 years, who is the elder son of the victim had stated that his parents are living separately for the last 14 years. He had also stated that there was some dispute between his parents in respect of the property. We, therefore, find that the prosecution has failed to prove its case beyond reasonable doubt as there are material contradictions in the statements of the witnesses and the court below has rightly considered the law laid down by the Apex Court and by this Court to the extent that merely because the victim as stated against the accused in her statement recorded under section 164 Cr.P.C. and her statement recorded before the court below it would not be sufficient to convict the accused person. 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 Criminal Misc. Application (Leave to Appeal) is rejected by order of the date, the present government appeal is also dismissed.
Order Date :- 2.7.2025
Madhurima
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