Allahabad High Court
State Of U.P. vs Nekram S/O Sonpal on 19 August, 2025
Bench: Vivek Kumar Birla, Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:141619-DB Court No. - 42 Case :- GOVERNMENT APPEAL No. - 1085 of 2024 Appellant :- State of U.P. Respondent :- Nekram S/O Sonpal 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 Shashi Dhar Dubey, 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 13.08.2022 passed by the Additional Special Judge (POCSO Act), Court No.2/Additional Sessions Judge, Firozabad in Sessions Case No.1114 of 2020, arising out of Case Crime No.224 of 2019, under Sections, 342, 323, 376, 506 IPC and 3/4 of POCSO Act, PS Matsaina, District Firozabad.
3. Prosecution story, in brief, is that the victim’s father PW-1 gave a written complaint in police station Matsena, District Firozabad with these statements that on 12-09-2019 his daughter/victim aged about 16 years was alone at home. His son’s wife was cooking food on the roof. At around 7.00 pm, Nekram’s sister-in-law took his daughter to her house on the pretext of giving her Prasad, where Nekram’s mother Asha Devi was present at home. As soon as they reached home, Nekram, Sunita and Asha Devi started abusing her. Nekram’s mother started saying that you should marry my son Nekram, to which her daughter said that Nekram is neither of her caste nor is he related to her. On this, the above mentioned people threatened to kill informant’s daughter/victim and Nekram molested her and Nekram, Sunita and Ashadevi beat her. His daughter was locked in a room. On getting the information, his son Rahul and his brother’s brother-in-law Krishnakant reached their house. As soon as they reached there, the above mentioned people beat them too. Somehow, his son and brother-in-law and his daughter/victim came home from there and told him about the incident that happened with them.
4. In support of prosecution case, PW-1 informant (victim’s father), PW-2 brother of the victim, PW-3 maternal uncle of the victim, PW-4 Victim, PW-5 Dr. Kamlesh, PW-6 Constable Amit Kuamr, PW-7 Sarversh Kumar Investigating Officer, PW-8 Dr. Nasim Ahmad and PW-9 Rahul Kumar brother of the victim were produced and examined before the Court below.
5. The judgement of acquittal was passed on the ground that victim is not below the age of 18 years, therefore, POCSO Act is not applicable in the present case; there are major contradictions in the statements of PW-1 and PW-9 with regard to seeing the victim in the company of accused; there is a contradiction in the statement of PW-4 and PW-9 with regard to bolting the room from inside; and the victim was medically examined by PW-5 Dr. Kamlesh who opined that no mark of injury was found on the private part of the victim, though, hymen was torn but bleeding was not found and no definite opinion about rape can be given. It further transpires from the testimony of the witnesses that there was enmity between the parties in respect of flowing of water. During investigation, the victim did not state about rape upon her. The trial court found that statement of victim is not believable and she is not a witness of sterling quality as there are major contradictions and improvements in her statement. Under such circumstances, the trial court 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 Shashi Dhar Dubey, learned AGA submits that the trial Court has erred in appreciating the evidence on record. He further submits that judgment passed by the court below is contrary to facts, evidence and law. The finding of trial court that the victim is above 18 years of age is contrary to the fact and evidences, while she is 16 years of age at the time of incident, therefore, the POCSO Act would be applicable in the present case. It is further submitted that while appearing before the Investigating Officer, the victim was under fear and she could not narrate the complete story. The contradictions occurred in the statement of witnesses are trivial and minor in nature, which cannot be given much significance. Submission, therefore, is that the judgment and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused persons herein are 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, admittedly, there is no documentary evidence with regard to date of birth of the victim. The victim herself stated that she is not literate, therefore, her age was determined on the basis of radiological/ossification test. As per the statement of Dr. Nasim Ahmad epiphysis of the bone of hip and clavicle were not fused. On that basis, he opined that victim may be aged about 17 years. On the analysis of medical report, the trial court found that there happens difference of two years in the age both side, therefore, on that basis the trial court determined the age of victim as 18 years. That finding is neither perverse nor contrary to the facts and evidences. At the first instance, when statement of the victim was recorded under Section 161 Cr.P.C., she did not state a single word with regard to commission of rape on her. There are major contradictions in the statement of PW-4 and PW-9 in respect of bolting of the door from inside and there is also contradictory statement with regard to viewing the victim in the company of accused. Doctor, who examined the victim has categorically stated that she has not found any mark of injury on the inner side of the private part of the victim. No definite opinion of the rape was given on the basis of report of medical examination. It also transpires that there is enmity between the accused and victim’s family with regard to flowing of water. Defence witnesses have stated that there is previous enmity between the parties with regard to flowing of water. On perusal of record, it also transpires that PW-1 who is father of the victim and PW-2 brother of the victim are not eye-witnesses and they have adduced their evidence on the basis of information which they got and there is deviation and contradiction in the statement of PW-9 who is maternal uncle of the victim and rests are the formal witnesses. 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 :- 19.8.2025/S.A.