Allahabad High Court
State Of U.P. vs Omendra Singh Thakur on 20 August, 2025
Bench: Vivek Kumar Birla, Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:143768-DB
Court No. - 42
Case :- GOVERNMENT APPEAL No. - 491 of 2024
Appellant :- State of U.P.
Respondent :- Omendra Singh Thakur
Counsel for Appellant :- G.A.
Hon'ble Vivek Kumar Birla,J.
Hon'ble Pramod Kumar Srivastava,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Sri Pankaj Saxena, 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 23.02.2017 passed by the Special Judge SC/ST Act, Bareilly in Sessions Trial No. 561 of 2014 (State of U.P. Vs. Omendra Singh Thakur), arising out of Case Crime No.189 of 2014 under Sections 363, 366, 376 IPC and Section 3(2) (V) S.C./S.T. Act, P.S. Aonla, District Bareilly.
3. Prosecution story, in brief, is that informant Mahendrapal son of Ramlal resident of village Warikheda police station Aaula district Bareilly gave an application on 17-5-2014 in police station Aaula to the effect that his daughter Kiran aged about 17 years went somewhere from her house on 11-5-2014 at 11 am without informing anyone and despite search, till date she has not traced out. In view of the above, a report about missing of informant's daughter was registered on the same day.
Again, on 19-05-2014, the informant Mahendrapal gave an application to the Aula police station to the effect that the applicant's daughter Kiran, aged about 17 years, had disappeared from home on 11-5-14, regarding which a missing report was filed in the Aula police station on 17-5-2014. Now his daughter has been found. His daughter was lured and kidnapped from home by Omendra Singh, son of Shri Nathu Singh, caste Thakur, of his own village. Therefore, please register a report against the said Omendra Singh and take action.
4. In support of prosecution case, PW-1 is Sri Mahendra Pal, PW-2 Km. Kiran alias Jugnu, PW-3 Dr. Neelam Arya, PW-4 Sri Kishul Pal Singh and PW-5 Sri Ashok Kumar Singh were produced and examined before the Court below.
5. The judgement of acquittal was passed on the ground that victim was above 16 years at the time of alleged incident. The trial Court determined the age of victim after analysing the evidence and found that age of victim is about 17 years. Informant lodged the first information report, where it is narrated that his daughter is missing who has left his house without informing him. In his examination-in-chief, informant stated that at the time of incident, he and his wife were not present in the house. Therefore, they were not found eye witness by the Court. On 19.05.2014, informant has given another information to the police station that he has lodged the report regarding missing of his daughter but she has traced out who was enticed away by the accused but that statement was not found reliable, as he has narrated this fact only on the information given by the victim and this was not on his personal knowledge. One another glaring fact was found by the Court that on 12.05.2014, informant got information that his daughter is in the Chandigarh, despite of this fact, he has lodged report in police station after five days i.e. on 17.05.2014 stating wherein that his daughter is missing, he did not mention specifically this fact that he has got information that his daughter is in Chandigarh. Learned Trial Court has also found that she has not told to the Investigating Officer with regard to the fact that accused enticed her away. The Court has found another glaring fact that the informant in his cross-examination admitted that on 19.05.2014, he has given the written report to the effect that the accused had taken away his daughter but that written report was not so written as he narrated. Thus, he declined the authenticity of the F.I.R. Learned trial Court also found that there are material contradictions in the evidence of witnesses which are not consonance with the prosecution version therefore, the evidence of factual witnesses are not found reliable. The charge levelled against the accused is not proved beyond reasonable doubt therefore, accused was given benefit of doubt and judgment of acquittal was passed.
6. Challenging the impugned judgment, Sri Pankaj Saxena, learned AGA submits that the trial Court has erred in appreciating the evidence on record. He further submits that there is minor deviation in the statement of the witnesses of the fact, which cannot be given much significance. The evidence of the prosecution witnesses will be seen in totality not a piecemeal manner and by virtue of that prosecution was successful to prove the charge levelled against the accused. He further submits that the findings recorded by the learned trial Court is contrary to the facts, evidence and law and another view is also possible. 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.
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 initially informant has lodged the first information report to the police station with regard to the fact that his daughter is missing. While this fact was came into his knowledge that his daughter is present in Chandigarh. Despite of this fact, after five days, he has lodged missing report about his daughter and no explanation to this effect has been given by the prosecution. The role of informant was found not credible. On the perusal of the record, it also transpires that victim did not disclose the fact at the first occasion when she met with to the Investigating Officer to the effect that she was enticed away by the accused. Apart from medical report, no sign of rape was found on her. Thus, there is material contradictions in the statements of prosecution witnesses who does not inspire confidence. It is also not proved by the prosecution that alleged offence was committed by the accused due to the reason that the victim belongs to reserve category. 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 :- 20.8.2025
SFH
