Allahabad High Court
State Of U.P. vs Vijay Kumar S/O Ram Aasre Gautam on 13 August, 2025
Bench: Vivek Kumar Birla, Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:137620-DB Court No. - 42 Case :- GOVERNMENT APPEAL DEFECTIVE No. - 379 of 2025 Appellant :- State of U.P. Respondent :- Vijay Kumar S/O Ram Aasre Gautam Counsel for Appellant :- Patanjali Mishra Hon'ble Vivek Kumar Birla,J.
Hon’ble Pramod Kumar Srivastava,J.
Re: Criminal Misc. Delay Condonation Application
1. Cause shown is sufficient.
2. Delay in filing the appeal is condoned.
3. Application is allowed.
4. Office is directed to allot regular number to this appeal.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Shri Rahul Asthana, 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 30.01.2025 passed by the Special Judge POCSO Act/learned Additional District & Sessions Judge, Farrukhabad in Sessions Trial No. 68 of 2016 (State of U.P. vs. Vijay Kumar), arising out of Case Crime No. 338/2016, under sections 363, 366, 376 and Section 4 POCSO Act, Police Station Mohammadabad, District Farrukhabad.
3. Prosecution story in brief is that informant Rajendra Singh gave a written complaint dated 18.07.2016 to the Police Station Mohammadabad, District Farrukhabad to the effect that on 01.07.2016 at about 10.00 AM her daughter aged about 17 years wanted to talk her mother from mobile number 8896648064 but could not talk and on that date the said mobile number was found switched off. Her daughter was enticed away by the accused whose mobile no is 8896648064. On the basis of aforesaid information, the first information report was lodged.
4. In support of prosecution case, PW-1 Rajendra Singh (complainant), PW-2-Ratiram, PW-3 Sub Inspector Shilesh Gautam, P.W.4-Victum were produced and examined before the Court below.
5. The judgement of acquittal has been passed by the learned Trial Court on the ground that the victim herself has not supported the prosecution version in her statement recorded under sections 161 and 164 Cr.P.C. The learned Trial Court, however, find that in her statement so recorded she had categorically stated that she was continuously talking with the accused for the last several months and on 01.07.2016 on her own she had gone to the accused place at Sultanpur where they had voluntarily got married in a temple on 06.07.2016 and thereafter they had started living as husband and wife. She had also stated that the accused Vijay Kumar is her husband. She was recovered after one month and her statement under section 164 Cr.P.C. was recorded wherein also she had supported her earlier statement recorded under section 161 Cr.P.C. and had categorically stated that she was neither enticed away nor force was used on her to go with the accused and she left her resident on her own. She, however, stated that she wanted to go with her parents but there was life threat from her two brothers, therefore, proper security may be provided to her. It has also come on record that as per High School Certificate date of birth of the victim is 01.10.1998 and on the date of incident i.e. on 01.07.2016 she was aged about 17 years and 9 months, however, the court below found that she was above 18 years of age. She has also appeared as prosecution witness and the crux of the cross examination is to the effect that she does not remember as to what statement was made by her under section 164 Cr.P.C. and such statement was made by her under fear. She had also refused for her internal medical examination. In this background the court below after considering the case laws found that the victim is not a sterling witness and therefore the judgment of acquittal was passed.
6. Challenging the impugned judgment, learned AGA submitted that the judgment passed by the Trial Court is against weight and evidence on record. The finding of the learned Trial Court that the victim is above 18 years of age is contrary according to the High School Certificate. As per High School Certificate the victim is aged about 17 years and 9 months on the date of incident, therefore, the offences as alleged are made out. He further submitted that the victim while appearing as prosecution witness had stated that she had made statement under section 164 Cr.P.C. under fear and she does not remember as to what she had stated before the Magistrate. Submission, therefore, is that the judgement and order of acquittal passed by the trial Court requires serious consideration and reversal.
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 admittedly as per High School Certificate date of birth of the victim is 01.10.1998, therefore, same is conclusive in nature and first preference has to given to the same in respect of ascertaining the age of the victim, therefore, the Trial Court has committed an error in recording the finding that the victim is above 18 years of age and on the date of incident she was aged about 17 years and 9 months. However, we find that at the first instant in her statement recorded under section 161 Cr.P.C. she had categorically stated that she left her resident on her own and got married with the accused in a temple. She stated that she was not enticed away by the accused person and no force was used on her, she had even stated that she left her resident alone and had gone to the accused place at Sultanpur. It is also not in dispute that she was in the company of the accused for about one month and they were living as husband and wife and had made consented physical relationship. There was material improvement in her statement recorded as prosecution witness over the statements recorded under sections 161 and 164 Cr.P.C. to the effect that she was enticed away by the accused person and offence as alleged was committed. On a close scrutiny of the cross examination, we find that the victim had not disputed the statement so made under section 164 Cr.P.C. but only states to the extent that such statement was made under fear and therefore, under these circumstances we find that even if the victim was just below 18 years of age but when she had categorically stated that she left her resident on her own and on her own had gone to the accused at Sultanpur where they had voluntarily got married in a temple on 06.07.2016 and thereafter they had started living as husband and wife, the ingredients of Section 363, 366 and 376 IPC as well as Section 4 POCSO Act are missing.
14. In such view of the matter, we, 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 :- 13.8.2025
Nitendra