Allahabad High Court
State Of U.P. vs Shaukeen S/O Prakash Kushwaha on 24 July, 2025
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:121664-DB
Court No. - 42
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 235 of 2025
Appellant :- State of U.P.
Respondent :- Shaukeen S/O Prakash Kushwaha
Counsel for Appellant :- Ashutosh Kumar Sand
Hon'ble Vivek Kumar Birla,J.
Hon'ble Jitendra Kumar Sinha,J.
Re: Criminal Misc. Delay Condonation Application
1. Vide order dated 15.5.2025, notice was issued to the respondent on this application.
2. As per office report dated 23.7.2025, notice has been served on the respondent secondary through his family members and he is currently living in Mumbai.
3. No one is present on behalf of the appellant.
4. There is delay of about 62 days in filing the present appeal.
5. Cause shown is sufficient.
6. Delay is condoned. Application is allowed.
7. Office is directed to allot regular number to this appeal.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Sri Jai Narain, learned A.G.A. for the State and perused the record.
2. Present government appeal has been preferred against the judgement and order dated 19.11.2024 passed by the Special Judge, POCSO Act/Additional District & Sessions Judge, Farrukhabad in Sessions Trial No.74 of 2016 (State of U.P. vs. Shaukeen) arising out of Case Crimes No. 330 of 2016 under Sections 363, 366, 376 IPC and 3/4 POCSO Act, PS Maudarwaza, District Farrukhabad.
3. Prosecution story, in brief, is that on 28.08.2016, the informant Ram Teerth gave a written application at Police Station Maudarwaza, Farrukhabad stating therein that one Prakash Kumar who belongs to the same community and village used to visit his house. On 26.08.2016, the daughter of the informant, aged about 15 years, was enticed away by Shaukeen son of Prakash. The daughter of the informant also took away Rs. 55,000/- in cash kept in the house and her mother's jewelry including a chain, a pair of earrings, a girdle, a toe ring, a pair of anklets and one pair of todiya along with her. The family members of Shaukeen are also involved in enticing away the daughter of the informant and they are fully aware about her whereabouts. On the basis of aforesaid application, present FIR was lodged against the accused and after investigation, chargesheet was submitted against the accused.
4. In support of prosecution case, PW1 victim, PW2 Ramteerth, the informant, PW3 Dr. Asha Arora, PW4 Shivam Dubey, PW5 Dr. Yogendra Singh, PW6 HC Anirudh Kumar and PW7 SI Harpal Singh Yadav, were produced and examined before the Court below.
5. The judgement of acquittal was passed on the ground that there was a considerable improvement in the statements of the victim recorded under section 161 Cr.P.C., 164 Cr.P.C. and as prosecution witness. It was found that two dates of birth as per educational certificate were produced before the court to contend that the victim was a minor, however, the date of birth of the year 2001 was not proved and it was found that even as per educational certificate of class VIth to VIIIth, her date of birth was 27.8.1999 and, therefore, she was aged about 17 years. In view of the dispute in the date of birth as per documents produced before the court, medical examination was conducted in which, the victim was found aged about 17 years. Therefore, benefit of two years was extended to the accused. It was found that subsequently, she had changed her statement under section 164 Cr.P.C. but as prosecution witness, in her cross-examination, she pleaded ignorance as to how so many statements of facts were made under section 164 Cr.P.C. That apart, in her statement recorded under section 161 Cr.P.C., signatures whereon were admitted before the court, she had stated that she had voluntarily left with Shaukeen on 25.8.2016 and on 26.8.2016, they got married in a temple and then returned to Farrukhabad on 28.8.2016. She gave the same statement to Dr. Asha Arora when she was taken to her for medical examination. In her medical examination, her hymen was found old torn with no external or internal injuries on her person. She subsequently changed her statement. The court also found that it was being claimed that she had taken away with her cash of Rs. 55,000/- and some jewellery. However, in this regard also, there were discrepancies in the statements of the informant i.e. father of the victim and the victim herself. She had stated that she was carried away by the accused Shaukeen on a motorcycle, however, when she sat on the same, some anesthetic substance was administered to her and she fell unconscious. It is not understandable that she had gone to a considerable distance in an unconscious state without any support. Therefore, we find that judgment of acquittal was passed by giving benefit of doubt to the accused.
6. Challenging the impugned judgment, submission of learned A.G.A. is to the effect that as per educational certificate, she was below 18 years of age and in the medical examination also, she was found to be of 17 years of age. The statement of the victim recorded under section 161 Cr.P.C. has no evidentiary value and, therefore, she had supported the prosecution version in her statement recorded as prosecution witness.
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 the story of the prosecution that the minor victim was being forcibly taken away by the accused on a motorcycle is under doubt as she had taken along with her some cash and jewellery. Subsequently, there were improvements in her version that some anesthetic substance was administered to her due to which she fell unconscious, however, she went on the motorcycle with the accused without any support is highly improbable. In her statement under section 161 Cr.P.C., she admitted that she had voluntarily gone with the accused Shaukeen and had married him and this statement was also made by her before the doctor who examined her. Therefore, she made this statement twice and as per medical examination report, she was found aged about 17 years with no external or internal injury marks on her person. Under such circumstances, 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) is rejected by order of date, the present government appeal is also dismissed.
Order Date :- 24.7.2025
Madhurima
