Allahabad High Court
State Of U.P. vs Shivdheesh Kumar S/O Balvir Singh on 23 September, 2025
Author: Pramod Kumar Srivastava
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:171439-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
GOVERNMENT APPEAL DEFECTIVE No. - 414 of 2025
State of U.P.
.....Appellant(s)
Versus
Shivdheesh Kumar S/o Balvir Singh
.....Respondent(s)
Counsel for Appellant(s)
:
Patanjali Mishra
Counsel for Respondent(s)
:
Court No. - 42
HON'BLE J.J. MUNIR, J.
HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
(Order on Criminal Misc. Delay Condonation Application No. 1 of 2025)
1. There is a delay of 101 days in preferring this appeal against acquittal by the State.
2. We have perused the affidavit filed in support of this application under Section 5 of the Limitation Act, 1963, which explains from paragraph nos. 3 to 10, the delay on a day-to-day in preferring this appeal.
3. There is sufficient cause to condone the delay in preferring the appeal.
4. Accordingly, this delay condonation application stands allowed and the delay in preferring this Government Appeal is condoned.
(Order on Criminal Misc. Application (Leave to Appeal) No. Nil of 2025)
1. The delay in preferring this appeal against acquittal having been condoned by our order of date made on Criminal Misc. Delay Condonation Application No. 1 of 2025, let this application be numbered by the office.
2. Heard Mr. Rahul Asthana, learned Additional Government Advocate appearing for the State-appellant.
3. By the impugned judgment passed in Sessions Trial No. 238 of 2018, State of U.P. v. Shivdheesh Kumar, the learned Special Judge (POCSO Act), Kasganj has acquitted the respondent of charges under Sections 363, 366 and 376 of the Indian Penal Code, 1860 and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station Kasganj, District Kasganj.
4. According to the first informant, the prosecutrix is a minor, aged about 15 years, and in the evening hours of 05.06.2017, at about 5 o'clock, she had left home for the fields, but did not return for an hour. The informant launched a search, whereupon, one Munish, a native of the same village as the informant, told him that his daughter was riding a motorcycle with Shivdheesh Kumar, the respondent. Munish had seen the prosecutrix riding the motorcycle last mentioned, going towards Kasganj. There was another man, riding pillion, by the name Kunwar Pal. One Sher Singh was riding another motorcycle, that was accompanying. The other motorcycle also had two pillion riders. One was Shivdheesh's younger brother and another, who was a stranger.
5. The informant, upon acquisition of the said information, went to Village Naktai, Police Station Aliganj, where, apparently, Shivdheesh lived, but found his house locked. There was no one at home. The informant says that his daughter was wearing a gold chain weighing about 10 grams (one tola) and some earrings, besides a gold ring and other ornaments. It was on the basis of this First Information that a crime giving rise to the impugned judgment was registered at Police Station Kasganj, District Kasganj. The Police, after investigation, filed a charge-sheet.
6. The prosecutrix, in her testimony, appeared as P.W.1 and said that about two years ago, in the evening hours, she left home without telling anyone and proceeded to Kasganj. She called Shivdheesh over and the two went to Farrukhabad, where they married in a temple, the next day, came to Prayagraj and apparently filed some writ petition for civil protection, where her statement was recorded. According to the prosecutrix, she was living with the accused-respondent, Shivdheesh Kumar, as his lawfully wedded wife and was in the family way. There was absolutely no coercion, but a consensual relationship, that had culminated into marriage.
7. The crucial point involved in this case is if the prosecutrix was a major so as to consent to a consensual relationship or enter matrimony.
8. The learned Additional Government Advocate points out that according to Class IX records from the prosecutrix's school, Shri Puttoo Lal Baghel Manpal Singh Inter College, Girdharpur, Nameni, Kasganj ('School' for short) her date of birth is 08.03.2002, which made a mere fifteen years and three months on the date of the occurrence.
9. It appears that the prosecutrix has not passed her High School, but there is some record about her called a Cross List, where her date of birth is the same as that entered in school records. The learned Trial Judge had before him various school records, that were produced in evidence, which include the Scholar Register and the Transfer Certificate, besides Attendance Record and Fee Register, apart from the Cross List relating to the High School Examination, 2016. All these documents were proved by the Principal of the School, who appeared in the witness box as P.W.7.
10. The learned Trial Judge has very carefully analysed evidence about the prosecutrix's age, permissible under the law, relating to determination of age of minor victims. He has opined that the Principal of the School was not the same man who was there in office at the time when the prosecutrix was admitted. The learned Trial Judge has noticed that in his cross-examination, the Principal of the School has acknowledged that he did not know on what basis the prosecutrix's age was entered in the school records. He is also noticed to have said in his cross-examination that he has not seen the prosecutrix, because she had left the School before he joined. This witness also acknowledged that admission is granted on the basis of documents produced, the accuracy whereof is not scrutinised. It has also been acknowledged by this witness in his cross-examination, a fact noticed by the learned Trial Judge, that the date of birth, while admitting a scholar to school, is recorded on the basis of whatever is disclosed by the guardian. The learned Trial Judge has inferred that according to this witness, when a scholar is admitted to the institution, rules relating to scrutiny of documents about various particulars are not followed and often, dates of birth of scholars being admitted are recorded on the basis of whatever is disclosed by the guardian. The learned Trial Judge has refused to believe the fidelity of the school records. The learned Judge has then considered the fact that the prosecutrix has asserted her age to be 19-20 years old. The evidence that has next been considered by the learned Trial Judge is the medico-legal opinion of Dr. Rajiv Kumar, who undertook a medical examination of the prosecutrix for determination of her age. The doctor apparently did an ossification test, and on its basis, issued a report bearing Ex.Ka.5. According to the said report, the prosecutrix's estimated age was 17 years. The learned Trial Judge, extending the benefit of the permissible variation of two years to the advantage of the accused, held the prosecutrix aged 19 years. It is on that basis and the categorical testimony of the prosecutrix that the respondent has been acquitted of the charges.
11. In our considered opinion, there is no such perversity in the opinion of the learned Trial Judge carried in the impugned judgment, which may require it to be overturned in an appeal against acquittal. It is well settled that in an appeal against acquittal, the standard is different from one in an appeal against conviction. In an appeal against acquittal, interference is permissible only if the view taken by the Trial Judge is perverse, to wit, one which no reasonable person could have taken on the evidence available. If two views of the same evidence are possible, and the Trial Judge has taken one view, which has led to a judgment of acquittal, this Court, sitting in appeal from a judgment of acquittal, would not interfere with those conclusions. Going by those standards, we do not find this case to be a fit one, where we should grant leave to appeal.
12. The application for leave to appeal is, accordingly, rejected.
(Order on the memo of Appeal)
Criminal Misc. Application (Leave to Appeal) No. Nil of 2025 having been rejected by our order of date, the memorandum of appeal stands rejected.
(Pramod Kumar Srivastava,J.) (J.J. Munir,J.)
September 23, 2025
I. Batabyal
