Allahabad High Court
State Of U.P. vs Raju @ Rajkumar on 25 July, 2025
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:122784-DB
Court No. - 42
Case :- GOVERNMENT APPEAL No. - 97 of 2022
Appellant :- State of U.P.
Respondent :- Raju @ Rajkumar
Counsel for Appellant :- G.A.
Hon'ble Vivek Kumar Birla,J.
Hon'ble Jitendra Kumar Sinha,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Shri Jai Narain, 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 23.11.2021 passed by the learned Additional District and Sessions Judge/ (POCSO Act), Court No.3, Bulandshahr, in Session Trial No.233 of 2017 (State of U.P. Versus Raju @ Rajkumar and others), arising out of Case Crime No.346 of 2017, under Sections 376D, 120-B, 504 IPC, Police Station Narsaina, District Bulandshahr.
3. The prosecution story is that the complainant/ victim aged about 29 years, resident of village Kariyari, District Bulandshahr has given a written report at concerned police station stating therein that on 14.12.2006 she was sitting alone at her house at about 7 O'Clock in the night, one boy, namely, Sanjay came to me and told that his mother was calling her, then she went there because her gas cylinder was also kept there. She found two persons Sachin and Naren belonging to the same village sitting there in intoxicated condition. All the three accused persons had raped her in Vidhya Devi's house. On the basis of the aforesaid, first information report of the present case was lodged and the investigating officer after completing all formalities, collecting sufficient material evidence has submitted charge sheet.
4. In support of prosecution case, PW-1 Victim, PW2 Km. Aastha, PW3 Dr. Sudha Sharma, Mahila Chikitsalaya, Bulandshahr, PW4 Mahila Constable Savita, PW5 Bhanwar Pal, PW6 Gayashree, PW7 I.O., Chitranjan Chauhan, PW8 1st I.O. Raghunath Singh.
5. The prosecution has proved Written Report of victim as Ext. Ka1, Statement of victim recorded U/s 164 Cr.P.C. as Ext. Ka2, Medicolegal Report as Ext. Ka3, Pathology Report as Ext. Ka4, Chik FIR as Ext. K5, Carbon Copy of GD Report as Ext. K6, Statement of victim recorded u/s 161 Cr.P.C. as Ext. Ka7, Charge sheet as Ext. Ka8, Site plan as Ext. Ka9 and Recovery memo as Ext. Ka10, as documentary evidence.
6. The judgement of acquittal has been passed by the learned trial Court on the ground that there was a delay of 20 hours in lodging the first information report. The victim claimed that she had called the police immediately but still the report was not lodged for more than 20 hours and there is no explanation whatsoever for such delay. The Court below has also found that as per prosecution story, the victim was raped inside the house of Vidya Devi and out of four accused persons, two accused persons, namely, Sachin and Naresh are sons of co-accused Vidya Devi and the allegation is that Vidya Devi locked the door and was standing guarding on the door and her sons were rapping the victim in front of her, which is highly improbable. The Court below has noticed the fact that the victim is a divorcee aged about 29-30 years and as per medical examination, there was no external or internal injuries, although, she had stated that she was subjected to forcibly anal sexual assault. The medical report reflects that there was no anal injury and the other external or internal injuries in the medical report. It has also come on record that even the anal slide was taken and as per pathological report, no sperms were found in the aforesaid report. The Court below found that although, the panty of the victim collected, which was handed by her to the Investigating Officer contained dull as per the FSL report. However, this was handed over by the victim after one day of the incident taking out from her residence and was not collected on the spot. Therefore, this find itself is not sufficient to convict the accused persons. The Court also noticed that it has come in the defence that there was a money dispute between Vidya Devi and the victim and on the earlier occasion also, she had lodged criminal prosecution against Prem Shankar and others registered as FIR No.321 of 2015 with the allegations levelled under Section 376/511 IPC, wherein she compromised the matter and filed affidavit to the effect that she never filed any such FIR. The defence version therefore was that she is habitual of lodging such false prosecution to extract money. The Court also found that the daughter of the victim, who appeared as prosecution witness admitted that there was some money dispute/ transaction between Vidya Devi and the victim. In this background, the judgement of acquittal has been passed.
6. Submission of learned AGA is that the judgement and acquittal is against the weight and evidence on record. The victim herself has narrated the entire incident and her sole testimony was sufficient for conviction. It was found that she being a married lady was necessary that any evidence of physical assault may have appeared in the medical examination and a bloodstained panty was also found therefore, the judgement 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 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 prosecution case is that the victim was called by Sanjay who was not known to her that Vidya Devi was calling her and she accompanied her. She was locked inside the room, where all the four accused persons were present. Vidya Devi locked the door and stood as a guard there while her two sons including the other accused persons raped the victim, which is highly improbable that the sons would rape anybody in presence of their mother. That apart the allegation is that that she was forcibly raped which include the anal raped as well. However, as per medical report, there was no anal injury or any other sign of rape on the person of victim. Dr. Sudha Sharma, who appeared as PW-4 had clearly stated the same. The supplementary pathological report also did not indicate any anal intercourse or any other evidence of rape and no sperms were found in the slides so prepared. We also find that although, one bloodstained panty was taken as Ext. and was sent for FSL report, according to which, the human blood was found on that, however it has come on record that piece of evidence was handed over by the victim herself after one day of the incident taking it out from her residence. The daughter of the victim had admitted that there was some money dispute between Vidya Devi and the victim. We also find that there is a documentary evidence on record that earlier also, the victim had lodged criminal prosecution under Section 376 and 511 IPC against Prem Shankar and others, wherein she filed affidavit to the effect that she had never filed first information report. Therefore, in this background, we find that the learned trial Court has taken a possible view of the matter.
14. 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.
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 :- 25.07.2025
RKM
