Allahabad High Court
State Of Up vs Akash Alias Bunti And 2 Others on 11 August, 2025
Bench: Vivek Kumar Birla, Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:135399-DB Court No. - 42 Case :- GOVERNMENT APPEAL No. - 292 of 2025 Appellant :- State of U.P. Respondent :- Akash Alias Bunti And 2 Others 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 Pandey, 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 17.2.2025 passed by the Additional Sessions Judge, Jhansi in Sessions Trial No. 324 of 2015 (State Vs. Akash alis Banti and others) under Sections 406, 506 IPC, arising out of Case Crimes No. 292 of 2025. Police Station Kotwali, District Jhansi.
3. Prosecution story, in brief, is that 18.06.2015 informant gave a written complaint at Police Station Kotwali to the effect that she received education upto B.A. and in her neighborhood accused Akash alias Banti S/o Dhakurdas, R/o Aligoal Khirki Andar, Dhimariya, Police Station Kotwali Jhansi lived. The prosecutrix had friendship with his sister, namely, Reenu Sahu and because of this she started visiting his house. About five years ago from today Akash came at the house of prosecutrix at about 8.00 in the night and said that his sister Reenu is calling her. When the prosecutrix reached his house, no one was present at the house, only Akash was there. He closed the door and said that Reenu is coming soon and till then you have tea. The prosecutrix drank that tea and after two hours of drinking tea when she regained consciousness then her clothes were completely removed and Akash alias Banti said her that he wanted to marry her and he made relationship with you. Then the prosecutrix said that you have cheated her and made physical relationship with her and she will tell to her family members. After that Ashok showed his mobile in which there was naked photo of the victim and he said to the prosecutrix that if she said anything to her family members then he would paste poster in the surrounding vicinity. He further said that you are just like my wife and after the marriage of his sister he will marry with her. Due to fear of reputation she did not say anything to anyone. After that showing the obscene photo he was making physical relationship with her and also he was promising that he will solemnize marriage after the marriage of his sister Reenu. On 21.4.2015 marriage of Akash’s sister, namely, Reenu was fixed then Akash demanded the prosecutrix ornament and cash. On which she gave her ornament. Next day he called the proxecutrix at his home where his mother, Smt. Prabha and his Chachi, were also present. His mother demand rupees one lac and she gave that money to her in the presence of his sister Reenu and Smt. Sudha. and after the marriage of his sister Reenu, he refused to marry her. She requested to Smt. Sudha and Smt. Prabha but they refused to do any thing they thrown out her from their house on 10.6.2014 at 12.00 am. Akash also warned that if she said anything to anyone then he will kill the prosecutrix and her family member.
4. In support of prosecution case, PW-1 prosecutrix, PW-2 Smt. Savitri Devi, PW-3 Investigating Officer Sunil Kumar, P.W.4 Dr. Rashmi Singh, P.W. 5 Head Constable, 05 Gurudev Singh were produced and examined before the Court below.
5. The judgement of acquittal was passed on the ground that admittedly the victim was having consented physical relationship with the accused Akash @ Banti for about more than five years and that it has also come on record that they were known to each other since childhood. After investigation the charge sheet under Sections 493, 328, 406 and 405 IPC was submitted against Akash @ Banti and charge sheet was submitted under Section 406 and 506 IPC against co-accused Smt. Prabha and Smt. Sudha. Subsequently, on the application filed by the victim the charges were framed against Akash under Sections 376, 328 IPC. The judgment of acquittal was passed on the ground that as per evidence on record and admittedly victim and accused Akash were having consented physical relationship for about five years and she never complaint that such physical relationship was being made on the ground of false promise of marriage. The allegation was that some nude photographs were also taken by the accused person by his mobile, however, the same were not recovered by the Investigating Officer. The trial court also found that in the medical examination there was no evidence of committing rape upon the victim and hymen of victim was old torn and Dr. Rashmi who appeared as P.W. 4 has clearly stated that there was no sign of rape. It was also additionally found that although there was allegation that rupees one lac and some ornaments were also taken by the accused side, as admitted by the victim herself as well as her mother who also appeared as prosecution witness admitted that the financial condition was extremely poor and the marriage of the victim was performed in community marriage ceremony and the brother of the victim ran away after taking loan as he was not in a position to repay the same and has not returned. In this background the court below found that none of the offences as alleged could be proved and the victim was not of sterling quality. Under such circumstances, the Court below found that the prosecution could not prove his case beyond doubt and the accused persons were given benefit of doubt and judgement of acquittal was passed.
6. Challenging the impugned judgment, Sri Shashi Dhar Pandey, learned AGA submits that the Trial Court has erred in appreciating the evidence on record. He further submits that the victim has clearly supported the prosecution version. She has categorically stated that her naked photographs were taken by the victim and on the false promise of marriage she was being sexually exploited by the accused persons, therefore, the offence is made out. He further submits that the learned Trial Court has given undue weight 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 version 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 persons herein are liable to be convicted. It is also submitted that the prosecution has also proved extraction of cash and ornaments by the accused side and, therefore, the other offences have also been made out It is submitted that it is a case of sexual exploitation on the false promise of marriage, therefore, internal medical examination of the victim is immaterial and the judgment of acquittal is liable to be reversed.
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 the victim and accused were known to each other since childhood and the victim is a B.A. pass major girl. Admitted case was that for the first time sexual offence was committed about five years back and thereafter on several occasions they continued to have physical relationship, however, allegation is that the accused was committing the offence on the ground of false promise of marriage and promised that after marriage of his sister Reenu and allegation was that even after the marriage of Reenu had taken place on 21.4.2015, however, still he refused to marry her and she had also given rupees one lac and certain ornaments for the purpose of marriage of sister of the accused. We also find that during investigation. Investigating Officer has exonerated the accused persons under Section 376 and 420 IPC, however, the offence having been committed under Section 493 and 328 IPC. Subsequently, the charge sheet was filed under Section 493, 318, 504, 506 IPC against Akash @ Banti and Section 406 and 506 IPC against co-accused Smt. Prabha and Smt. Sudha and it is only on the application filed by the victim the charges were framed under Sections 376, 328 IPC. The admitted case is that for the first time alleged sexual assault was made by the accused persons about five years back and the first information report was lodged in 2015. The allegation is that thereafter they continued to have physical relationship. Although it is alleged that as the accused had taken naked photographs of the victim, therefore, under threat he was committing rape, however, there was no recovery of any nude photograph from the mobile of the accused and there is no evidence to that effect. So far as extraction of money of Rs. 1 lakh and other ornaments for the purpose of marriage of the accused is concerned it has also come on record that the informant side is very poor and this fact has been admitted by the mother of the victim herself who appeared as prosecution witness and the brother of the victim had run away after taking loan as he was unable to re-pay the same. Further there was no withdrawn of money from any bank account, therefore, the oral allegation about extraction of cash and ornament is also not proved. The medical evidence also does not support the prosecution version. For five years continuous, the victim, who is an educated major girl has never raised any alarm or lodged criminal prosecution about such sexual harassment for commission of rape on her by the accused side which also does not support the prosecution version. 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
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: 11.8.2025
Kumar Manish