Allahabad High Court
State Of U.P. Thru. Prin. Secy. Home … vs Manaki on 6 July, 2026
Bench: Abdul Moin, Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW APPLICATION U/s 378 DEFECTIVE No. - 71 of 2023 [Natural Citation 2026:AHC-LKO:45994-DB] State of U.P. Thru. Prin. Secy. Home Lucknow ..Applicant(s) Versus Manaki ..Opposite Party(s) Counsel for Applicant(s) : G.A., Counsel for Opposite Party(s) : Court No. - 11 HON'BLE ABDUL MOIN, J.
HON’BLE PRAMOD KUMAR SRIVASTAVA, J.
[Dictated by Pramod Kumar Srivastava, J.]
[Order on Criminal Misc. Application (Leave to Appeal)]
1. Although an application for condonation of delay has been filed yet as per fresh office report dated 21.06.2023 submitted pursuance to the order of this Court dated 16.06.2023, the appeal is said to be in time up to 19.06.2023. In turn, the appeal has been filed on 14.06.2023. Thus, the appeal is within time.
2. Heard Sri Anurag Verma, learned Additional Government Advocate for the State-appellantand perused the record.
3. The present government appeal has been preferred against the impugned judgment and order dated 18.05.2022 passed by leaned Additional Sessions Judge, Court No. 10, Sitapur, in Sessions Trial No. 59 of 2013, arising out of Case Crime No. 340 of 2010, under Sections 363, 366, 376 IPC, Police Station Mishrikh, District Sitapur.
4. The prosecution story, in brief, is that on 14.07.2010, the complainant’s minor daughter, the victim, went for natural call out of her house at about 5:00 a.m., but she could not return. Then the complainant tried to trace her but this fact came into his knowledge that accused-Manaki had enticed and took her away.
5. On the application written application, given by the complainant, the First Information report (hereinafter referred as FIR in short) has been lodged against the accused/respondent under Sections 363, 366, 376 of the IPC.
6. In support of the prosecution case, PW1 Kallu (complainant), PW2 Dr. Arun Kumar, PW3 Victim, PW4 Head constable Shiv Gulam Chaudhary, PW5 Nanhe Lal (Investigating Officer), PW6 Dr. Nisha Pandey and PW7 Principal Ram Sundar Mishra were produced and examined before the trial court.
7. The judgment of the acquittal was passed on the ground that as per the School Leaving Certificate, the name of the student and her father was found different from the name of the victim and her father mentioned in the FIR. The learned trial court found that the prosecution could not proved the age mentioned in the academic documents of the victim and on the basis of medical report, the age of the victim was determined as 20 years at the time of incident. The learned trial court also found that there is a major contradiction in the statement of the victim, which is not corroborated by other witnesses or facts. The victim has deviated her statement at every stage. The learned trial court also observed that as per the statement of victim, the accused/respondent forcibly took her away and she travelled for many destination but when she was in transit, she did not make any alarm to attract the attention the public, where she was detained about for a period of one year, and she neither disclose her identity to anyone nor she intimated to her parents or neighbours regarding the incident. The learned trial court also observed that as per statement of the doctor, Nisha Pandey, PW-4, no injury was found on the private part of the victim, hymen was found old torn and healed. No internal and external injury was found. The trial court further found that there was material discrepancies in shifting of stand of the victim. Her statement was not worth belief. Under such circumstances, the trial court found that the prosecution could not prove its case beyond reasonable doubt, and the accused was given benefit of doubt and the accused was given benefit of doubt and judgment of acquittal was passed.
8. Challenging the impugned judgment, the learned AGA for the State-appellant submits that the trial court has erred in appreciating the evidence on record. He further submits that as per school Leaving Certificate, the date of birth of the victim was found 14.07.2010 and according to her date of birth, she was below the age of 18 years at the time of incident but the learned trial court did not appreciated the evidence, in above regard, in correct manner and erroneously rests its opinion on the ossification test.
9. The next argument is that in the statement under section 164 of the Cr.P.C. and in cross-examination, the victim has supported the prosecution version but the learned trial court has given undue weightage to the minor discrepancies occurred in the testimony of the witnesses and has wrongly ignored the evidence of the prosecution. He further submits that witnesses are intact and have supported the prosecution case and the finding recorded by the trial court is not one of the possible view. Submission, therefore, is that the judgment and order of acquittal passed by the trial court requires serious consideration and reversal and the accused/respondent is is liable to be convicted.
10. We have considered the submissions of learned AGA for the State-appellant and have perused the record.
11. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
12. 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”
13. 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.”
14. In a 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.”
15. 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.
16. 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.”
17. Similar view has been reiterated by Hon’ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
18. In Ramesh and Others v. State of Haryana; (2017) 1 SCC 529, the Hon’ble Supreme Court made the following observations:
“24. We have duly appreciated the submissions advanced by counsel for the parties on both sides. No doubt, the High Court was dealing with the appeal against the judgment of the trial court which had acquitted the appellants herein. The scope of interference in an appeal against acquittal is undoubtedly narrower than the scope of appeal against conviction. Section 378 of the Code of Criminal Procedure, 1973 confers upon the State a right to prefer an appeal to the High Court against the order of acquittal. At the same time, sub-section (3) thereof mandates that such an appeal is not to be entertained except with the leave of the High Court. Thus, before an appeal is entertained on merits, leave of the High Court is to be obtained which means that normally judgment of acquittal of the trial court is attached a definite value which is not to be ignored by the High Court. In other words, presumption of innocence in favour of an accused gets further fortified or reinforced by an order of acquittal. At the same time, while exercising its appellate power, the High Court is empowered to reappreciate, review and reconsider the evidence before it. However, this exercise is to be undertaken in order to come to an independent conclusion and unless there are substantial and compelling reasons or very strong reasons to differ from the findings of acquittal recorded by the trial court, the High Court, as an appellate court in an appeal against the acquittal, is not supposed to substitute its findings in case the findings recorded by the trial court are equally plausible.
19. In Jafarudheen vs State Of Kerala; (2022) 8 SCC 440, the Hon’ble Supreme Court made the following observations:
“25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court’s view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”
20. In Manoj Rameshlal Chhabriya v. Mahesh Prakash Ahuja & Another; 2025 SCC OnLine SC 451 the Hon’ble Supreme Court made the following observations regarding the parameters that must be considered while dealing with the applications seeking leave to appeal under Section 378 of CrPC:
“7. The question as to how the application for grant of leave to appeal filed under Section 378(3) of the Cr.P.C. should be decided by the High Court and what are the parameters which the High Court should keep in mind remains no longer res integra. This issue was examined by this Court in State of Maharashtra v. Sujay Mangesh Poyarekar reported in (2008) 9 SCC 475. C.K. Thakker, J. speaking for the Bench held in paras 19, 20, 21 and 24 respectively as under:
“19. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal “shall be entertained except with the leave of the High Court”. It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by subsection (3) of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code.
20. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.
21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and, hence, no leave should be granted.
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24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate court against an order of acquittal recorded by the trial court. We only state that in such cases, the appellate court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial court should not be disturbed. Where there is application of mind by the appellate court and reasons (may be in brief) in support of such view are recorded, the order of the court may not be said to be illegal or objectionable. At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and reappreciation, review or reconsideration of evidence, the appellate court must grant leave as sought and decide the appeal on merits. In the case on hand, the High Court, with respect, did neither. In the opinion of the High Court, the case did not require grant of leave. But it also failed to record reasons for refusal of such leave.
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12. We are of the view that at the stage of considering grant of leave under sub-section (3) of Section 378 of the Cr.P.C., a prima facie case should be looked into by the High Court, of course, not ignoring the materials on record.”
21. On perusal of the record, we find that the court below has made a detailed discussion and after marshalling the evidence with regard to the age of the victim, has clearly observed that the School Leaving Certificate, produced by the prosecution to prove the date of birth of the victim, was highly doubtful, since there was having a totally different name of the victim and her father, as mentioned against the name of the victim and her father in the FIR. Ultimately, the learned trial court rests its opinion on the basis of radiological report. In this regard, Dr. Arun Kumar, Radiologist, PW-3 categorically stated that on the basis of radiological examination, age of the victim was found about 19 years but in no case she was less than 18 years and there may be a variation of two years either side and on that basis, the learned trial court determined the age of the victim that she was more than 18 years at the time of incident. Apart from this, the father of the victim, PW-1, has also stated that at the time of lodging of the FIR, the age of his daughter was 19 years old. The complainant has also admitted that he did not see the accused/respondent taking away to her daughter. He also stated in cross-examination that her daughter did not tell him that accused took her away forcibly and he also admitted this fact that accused/respondent did not take away her daughter forcibly.
22. In the statement recorded under section 164 of the Cr.P.C., the victim stated that on 14.07.2010, at about 12:00 in the night, she went outside of the house for toilet, where accused met her and she went with the accused to Charbagh Railway Station, Lucknow from where she went to Madhya Pradesh. Surprisingly, in cross-examination, she had stated that accused handcuffed her in the motorcycle but she did not raise alarm although she had explained that accused threatened her, but she also admitted that thereafter the accused took her to Madhya Pradesh, where she was detained for one year, but during this interval of one year, she did not intimate to anyone with regard to happening. Thus, her statement was not found reliable. As per the statement of Dr. Nisha Pandey PW6, no internal or external injury was found on the person of the victim, hymen was old, torn and healed. On close scrutiny, we also find that there was a material changes in the statement of the victim at different stages and, therefore, she was not a sterling witness. 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.
23. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
[Re: Government Appeal]
24. Consequently, since the Criminal Miscellaneous Application (Leave to appeal) has been rejected by order of the date, the present Government Appeal is also dismissed.
(Pramod Kumar Srivastava,J.) (Abdul Moin,J.)
July 06, 2026
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