State Of U.P. vs Zahoor And Another
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Allahabad High Court

State Of U.P. vs Zahoor And Another on 28 July, 2025

Author: Vivek Kumar Birla

Bench: Vivek Kumar Birla

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:124809-DB
 
Court No. - 42
 

 
Case :- GOVERNMENT APPEAL No. - 296 of 2025
 

 
Appellant :- State of U.P.
 
Respondent :- Zahoor And Another
 
Counsel for Appellant :- Ashutosh Kumar Sand
 

 
Hon'ble Vivek Kumar Birla,J.
 

Hon'ble Jitendra Kumar Sinha,J.

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

1. Heard Sri Jai Narayan, 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 25.02.2025 passed by the Additional District and Sessions Judge/Special Judge, POCSO Act, Court No.-2, Muzaffar Nagar in Sessions Trial No.-1191 of 2019 (State of U.P. Vs. Zahoor and others) arising out of Complaint Case No. 829/9 of 2016 under Section 376D, 506, 120B IPC, PS- Nai Mandi, District- Muzaffar Nagar.

3. Prosecution story, in brief, is that on 02.09.2014 at about 10 A.M. the victim went to her field to get fodder. Then Zahoor, Munsif, Liyaqat and Walees of the village saw the victim alone in the field and Zahoor and Walees caught hold of the victim with bad intention and dragged her to the fodder field nearby. Liyaqat and Munsif kept guard outside the field and Zahoor and Walees committed rape upon the victim. Walees said that if she makes noise, he would shoot her. When the victim protested, both the accused beaten her and attacked her face and body. The bangles of victim was broken on the spot. Then Mrs. Mehraj wife of Noor Mohammad came to the field and asked Lilyaqat and Munsif why they were standing on our field. The Munsif called Walees and Zahoor to leave the victim and run away. Mrs. Mehraj raised an alarm and all the four accused persons ran away. Then the victim also started crying, Mrs. Mehraj hold the victim and put clothes on her. There are marks of injuries inflicted by the accused persons on the victim's body. Then other people also came to the spot. On the basis of aforesaid incident, first information report was lodged against the above accused persons and on the basis of evidence the Investigating Officer has submitted final report, upon which protest petition was filed two times, upon which the case was converted into complaint case and learned Magistrate has summoned the accused persons to face the trial in the court below.

4. In support of prosecution case, PW-1 Hasani, PW-2 Victim, PW-3 Mehraj, PW-4 Abha Atrey, PW-5 Head Constable Ankit Kumar, PW-6 Inspector Bharat Lal Shah and PW-7 Dr. Azad Veer Singh were produced and examined before the Court below.

5. The judgement of acquittal was passed on the ground that the victim was initially medically examined on 02.09.2014, whereon she had not named any person and stated that someone had raped her while she had gone to agricultural field. In her statement she stated that there was only one person and she again went for medical examination on 03.09.2014 and it was found that the injuries mentioned in the medical report on 02.09.2014 was not mentioned in the medical report dated 03.09.2014 and as such there was material contradiction. The first information report was lodged after four days and names of the accused persons figured for the first time in the first information report. The trial court also noticed the fact that as per medical report there was no sign of rape. The trial court also found that in fact 15 days back of the alleged incident dated 02.09.2014 vide judgement dated 16.08.2024 passed in Session Trial No.- 216 of 2007 (State Vs. Afsaroon and others) several persons of the victim side were convicted under Section 452, 307/34, 325/34, 324/34 and 323/34 IPC for seven years rigorous imprisonment, fine and other punishment, therefore it was due to this enmity. It was also found by the trial court that between the parties several litigations are pending and for this reason there was a established enmity between the parties hence in this background particularly in view of evidence on record that PW-7 Dr. Azad Veer Singh had stated Doctor was not told about any sexual assault on her while getting medical examination done. The re-medical examination done on 03.09.2014 by Dr. Abha Atrey in which she had stated that one person had tried to rape her. Even at this time the name was not disclosed and therefore, the story was not found to be worth belief. The trial court further found that PW-3 Mehraj claims herself to be the eye-witness of the account, however, she had admitted to the effect that before she reached spot a large number of other persons were also present and it is not known that who were such persons and how they have reached and how she got the information about the incident. Her presence on the spot being eye-witness was also found doubtful. In this background the judgement of acquittal was passed.

6. Challenging the impugned judgment, Sri Jai Narayan, learned AGA submits that the trial Court has erred in appreciating the evidence on record. He further submits that there may be minor contradictions in the statement of the victim and PW-3 Mehraj and there may be enmity, however this by itself could not dislodge the prosecution case and she being a married lady it is not necessary that any medical evidence may or may not support the prosecution case. The medical evidence may or may not support the case. 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 the the enmity between the parties is known as several cases were pending between both the sides and about 15 days back several persons of the victim side including husband of PW-3 Mehraj were convicted and the medical evidence does not support the prosecution version. We further find that it is quite surprising that if some injuries were existing on 02.09.2014 when the first medical was conducted how they could have vanished and not mentioned in the repeated medical examination conducted on 03.09.2014. She has not disclosed any sexual offence having been committed to the Doctor, who conducted medical examination on 02.09.2014, whereas the victim on 03.09.2014 for the first time to Dr. Abha Atrey had stated that one person has committed sexual assault whereas, the first information report was lodged after four days against four named persons. We, therefore, find that there are material contradictions in the statements. Further, presence of PW-3 Mehraj was doubtful on the spot and in any case she states that she has reached subsequently and before her, large number of persons were already gathered there and therefore, narration so given by Mehraj appears to be tainted and guided by the factor that her husband was convicted 15 days back in a session trial the prosecution whereof was lodged by the accused side and therefore, she was highly interested witness. We therefore find that the victim herself is not of sterling quality and other witnesses are interested witness due to admitted enmity between the parties. 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 :- 28.7.2025

Virendra