State Of Up vs Ashok Singh And 2 Others
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Allahabad High Court

State Of Up vs Ashok Singh And 2 Others on 23 July, 2025

Author: Vivek Kumar Birla

Bench: Vivek Kumar Birla

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:121141-DB
 
Court No. - 42
 

 
Case :- GOVERNMENT APPEAL No. - 15 of 2024
 
Appellant :- State of U.P.
 
Respondent :- Ashok Singh And 2 Others
 
Counsel for Appellant :- A. K. Sand
 

 
Hon'ble Vivek Kumar Birla,J.
 

Hon'ble Jitendra Kumar Sinha,J.

Re: Criminal Misc. Application (Leave to Appeal)

1. Heard Shri Ghanshyam Kumar, 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 12.10.2023 passed by the learned Additional District and Sessions Judge/ Special Judge POCSO Act, Jalaun at Orai, in Criminal Case No.55 of 2016 (State Versus Ashok Singh and others), under Sections 363, 366, 376 IPC and 7/8 POCSO Act, Police Station Kotwali Orai, District Jalaun.

3. The prosecution story is that the complainant has given a written report at concerned police station on 10.05.2016 at about 02:00 A.M. stating therein that the victim is aged about 17 years. Complainant heard his niece (Bhanji) talking to someone on the mobile on which the complainant scolded her. On 10.05.2016 morning, his niece went somewhere along with her cloths, ornaments, cash and all the educational certificate and when the complainant checked the same, he found a message on her mobile and thereafter he made her search but all in vain. Thereafter Mohd. Irfan Ansari told the complainant that he saw his bhanji at Bus Stand with Ashok Singh and his friend Harshit Awasthi. On the basis of the aforesaid, first information report of the present case was lodged and the investigating officer after due investigation has submitted charge sheet.

4. In support of prosecution case, PW-1 Atikurrahman (complainant), PW2 Victim, PW3 Jyotika (Principal), PW4 Lady Constable Vijay Laxmi, PW5 Inspector Arvind Kumar Singh.

5. The prosecution has proved Written Report as Ext. Ka1, Recovery Memo as Ext. Ka2, Statement under Section 164 Cr.P.C. as Ext. Ka3, Certified copy of S.R. as Ext. Ka4, G.D. Entry as Ext. K5, Chik FIR as Ext. K6, Site Plan as Ext. Ka7 and Charge sheet as Ext. Ka8, as documentary evidence.

6. The judgement of acquittal was passed by the learned trial Court on the ground that the date of birth as shown in the High School Certificate was 25.07.1999 and the victim had admitted that at the time of incident, she was aged about 17 years. However, in some other document, the year 1997 has been mentioned. The Court however found in the statement recorded under Section 161 Cr.P.C. as well as recorded under Section 164 Cr.P.C., the victim has not supported the prosecution version. Under Section 161 Cr.P.C. which is on record as paper no.13 Ka she had stated that in night of 9/10, she had called the accused herein Ashok Singh and left with him voluntarily. In her statement recorded under Section 164 Cr.P.C. she had clearly stated that on 10.05.2016 at 04:00 P.M. she left the house of her paternal uncle Atikur Rahman with Ashok Singh on her own sweet will and after leaving, they had gone to Gwalior and it was not the Ashok, who had asked her to accompany him and she had returned Orai with him only. This statement was recorded under Section 164 Cr.P.C. after about 17 days, on 27.05.2016 while she was in the company of the accused herein. Improving the statement, she stated that in the night of 09/10.05.2016, the Ashok had called her and had taken her to Kota and thereafter to Bhusiawal where they stayed in a Hotel and he forcibly made physical relationship and thereafter, they had gone to Gwalior again they stayed in a Room and for about 12 days, they were at Gwalior and he continued to make physical relationship with her. The Court also noticed that in her cross-examination, the victim had admitted that when she had left the house of her maternal uncle, she had taken away all her educational certificates, cloths and jewellery and therefore, the Court found that she had left voluntarily. In so far as the sexual offence is concerned, the victim has refused to going for internal or external medical examination. In this background, it was found that the offence as alleged is not made out.

7. Submission of learned AGA is that the judgemnet and acquittal is against the evidence on record while she has appeared as prosecution witness, she has supported the prosecution case as she was under 18 years of age on the date of incident, therefore, the offences as alleged has been made out.

8. We have considered the submissions and have perused the record.

9. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

10. 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"

11. 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."

12. 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."

13. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.

14. On perusal of record, we find that the victim was just short of 18 years of age even as per disputed educational certificate and was aged about 17 years as per medical age verification and therefore, benefit of two years is to be extended to the accused. Further, initially, twice she maintained her stand i.e., under Sections 161 Cr.P.C. and 164 Cr.P.C. that she had voluntarily left with Ashok Singh in the morning of 9/10.05.2016 and was with him at different places and returned after 12 days and they were having physical relationship and that while going away she had consciously taken away her Educational certificates, cloths and jewellery and refused to go in for her external or internal medical examination. This clearly shows that she was a consenting party and the ingredients of offences as alleged are not made out in the present case and therefore, the learned trial Court has taken a possible view of the matter.

15. 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.

16. 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 :- 23.07.2025

RKM