State Of U.P. vs Kamal Singh S/O Megh Singh And 6 Others
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Allahabad High Court

State Of U.P. vs Kamal Singh S/O Megh Singh And 6 Others on 25 July, 2025

Author: Vivek Kumar Birla

Bench: Vivek Kumar Birla

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:122950-DB
 
Court No. - 42
 

 
Case :- GOVERNMENT APPEAL No. - 106 of 2022
 

 
Appellant :- State of U.P.
 
Respondent :- Kamal Singh S/O Megh Singh And 6 Others
 
Counsel for Appellant :- Shiv Kumar Pal
 

 
Hon'ble Vivek Kumar Birla,J.
 

Hon'ble Jitendra Kumar Sinha,J.

Re: Criminal Misc. Application (Leave to Appeal).

1. Heard Sri Rahul Asthana, 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 28.10.2021, passed by the Additional District and Sessions Judge (Fast Track), Court No.01, Aligarh in Sessions Trial No. 960 of 2007 (State of U.P. Vs. Kamal Singh and others), arising out of Case Crime No. 176 of 2002, under Sections 147, 452, 323/149, 344, 506ii, 376, 304/149 and 201 IPC, PS- Pali Mukeempur, District- Aligarh.

3. Prosecution story, in brief, is that the complainant namely Ramkhildi send the written complaint Exhibit A-1 to the Senior Superintendent of Police, Aligarh on 06-04-2002, stating therein that the incident took place on 07-02-2002 at about 4 o'clock when Naubat Singh, Kamal Singh, Bhura, Kanhi, Gangaram, Bhuri Singh, came together with pistols, sticks and guns in their hands and forcibly dragged his mother Premvati wife of Kehri Singh and his wife (victim) and her child from the shed and took them to their village Nagla Desi, when he resisted, the above mentioned accused persons beat him due to which he sustained severe injuries and if his father Kehri Singh and Mahavir Singh had not saved him, these people would have killed him. Informant?s mother Premvati was also beaten with kicks and punches and his child was strangulation to death by Srinivas, Ramnaresh and Balveer resident of Katka and Bhagwan Sahay, Pappu and the said persons raped his wife. On the above mentioned complaint of the complainant, under the orders of the Senior Superintendent of Police, a first information report was registered on 25-04-2002 at about 18.20 p.m., in Police Station Pali Muqimpur, District Aligarh, against the accused persons namely, Nauwat, Kamal Singh, Bhura, Kanhi, Ganga Ram, Bhuri Singh, Srinivas, Ramnaresh, Balveer, Bhagwan Sahay and Pappu, under Sections 364, 323, 376, 506 of the IPC. After investigation by the investigating officer, charge sheet no. 98 and 98A/2002 (Exhibit Ka-7 and Exhibit Ka-8) were submitted against the accused persons.

4. In support of prosecution case, PW-1 First informant, PW-2 Premwati, PW-3 Victim, PW-4 HCP Dharmveer, PW-5 Chandrapal, PW-6 Anek Singh and PW-7 Investigating Officer Jasveer Singh were produced and examined before the Court below.

5. The judgement of acquittal was passed on the ground that there was a considerable delay in lodging the first information report, which was lodged after about two and half months and one month and ten days after recovery of the victim and there is no explanation for the delay in lodging the F.I.R. The trial court has also found that in the first information report it was mentioned that there were several persons who got injured when the victim was being taken away. However, on a specific query it was informed by the prosecution in writing that there was no medical of any such person who alleged to have received any injury in the incident while the victim was being taken away. The trial court further found that though the allegation is that new born child of the victim was killed by strangulation, however, no inquest report or post-mortem was conducted of the new born child. The trial court also noticed that the statement of the victim to that fact that all eleven persons had raped her for several months on a floor and she had suffered bodily injuries and her private part was also swelling even at the time when she had gone for medical examination. However, the medical report does not indicate any internal or external injury. The trial court also found that earlier the victim was married to one Jamuna Das, nephew of the accused persons and she was her legally wedded wife. Subsequently she developed love relationship with the informant Ram Khiladi and was living with him at the time of the incident. This was the cause of the dispute between the two parties and for this reason this criminal prosecution was lodged and in this background the judgment of acquittal was passed. 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 Rahul Asthana learned AGA submits that the trial Court has erred in appreciating the evidence on record. He further submits that the judgement of the trial court is against the material available on record. It is a case of gang rape where the victim was subjected to gang rape for months together and minor contradictions in her statement cannot be treated as fatal to the prosecution case and as she was a married lady, after a considerable time the physical injuries may not reflect in the medical report. He further submits that the witnesses are intact and have supported the prosecution case 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.

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 there is no explanation whatsoever for lodging the F.I.R. after about two and half months from the date of incident and more than one month and ten days after the victim was recovered. The victim had categorically stated that she was continuously raped by all the eleven accused persons at different places including one mud house situated at an agricultural field and she was raped on floor and suffered injuries on her back as well as her vagina was swelling. She had categorically stated that when she had gone for medical examination, her vagina was in swelling condition, however, the medical report does not reflect any such internal or external injury. So far as the death of her new born baby is concerned the victim in her statement recorded under Section 161 Cr.P.C. before the Investigating Officer has categorically that her new born baby got blue because of cold whether and died. No inquest or postmortem was conducted. We further find that all the accused persons are father, real brothers and sons and therefore, it does inspire confidence that all such closely related family members would commit rape together for several months constantly remaining in company as the allegation is that they all used to live in single room together. Although the prosecution case is that the victim was forcefully taken away and several persons of the prosecution side got injured, however, on a specific query a report was submitted by the prosecution that except the victim, no other person from the informant's side was subjected to any medical examination at any point of time. In this background coupled with the fact that the informant was the person with whom the victim was living even though she was already married with one Jamuna Das, nephew of the accused persons. Therefore, possibility of false implication of the accused persons of one family in whole sole cannot be ruled out. We find that the court has taken possibility of matter. 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) is rejected by order of date, the present government appeal is also dismissed.

Order Date :- 25.7.2025

AS