Allahabad High Court
State Of U.P. vs Anil Alias Katar Singh S/O Jagdish Singh on 18 July, 2025
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:116641-DB Court No. - 42 Case :- GOVERNMENT APPEAL DEFECTIVE No. - 326 of 2025 Appellant :- State of U.P. Respondent :- Anil Alias Katar Singh S/O Jagdish Singh Counsel for Appellant :- Patanjali Mishra Hon'ble Vivek Kumar Birla,J.
Hon’ble Jitendra Kumar Sinha,J.
Re: Criminal Misc. Delay Condonation Application
1. Cause shown is sufficient.
2. Delay of 60 days in filing the appeal is condoned.
3. Application is allowed.
4. Office is directed to allot regular number to this appeal.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Shri 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 24.01.2025 passed by the learned Special Judge (POCSO Act), Court No.14, Saharanpur in Sessions Trial No. 172/2018 (State of U.P. vs. Anil Alias Katar Singh), arising out of Case Crime No. 284 of 2018, under sections 363, 366, 376 IPC and Section 5/6 POCSO, Police Station Behat, District Saharanpur.
3. Prosecution story in brief is that the complainant- Vikram Singh gave a written report at Police Station Behat, District Saharanpur stating therein that on 25/26.09.2018 in the night his daughter aged about 16 years was sleeping in the house and when complainant woke up in the morning, he found that his daughter was not home and when he made her search, one Amit son of Mahendra Singh told him that in the morning one Katar Singh (accused) had taken away his daughter. On the basis of the aforesaid the first information report of the present case was registered in which the investigating officer after due investigation has submitted charge-sheet.
4. In support of prosecution case, PW-1 Vikram Singh (complainant), PW2- Victim, PW3- Dr. Dipika Singh, PW4-Sub-Inspector Radhey Shyam Bharti, PW5 Yogendra Kumar (Head Master) were produced and examined before the Court below.
5. The judgement of acquittal was passed on the ground that although as per first information report lodged by the father of the victim-complainant, the victim was aged about 16 years at the time of incident, however, S.R. Register of the School of Class 5th was not worth belief and is not a conclusive with regard to date of birth of the victim. It was found that there was material contradiction in the oral statement of the father of the victim and in the educational certificate in respect of the age of the victim, therefore, it was held that on the date of alleged incident dated 25/26.09.2018 the victim was not a minor. The Trial Court further found that in the first information report one Amit son of Mahendra was mentioned as witness of last seen, however, he appeared as D.W.1 in the present case and categorically denied that he had seen the victim going with the accused on 25/26.09.2018. The Trial Court further found that in her statement recorded under Section 164 Cr.P.C. the victim had categorically stated that on her own free will she accompanied the accused and they both have gone to Dehradun and stayed there for about 6 days where they made consented physical relationship and no force was used and while they were returning, she was recovered by the police and accused was arrested. However, when she appeared as prosecution witness, she submitted that she had given statement under section 164 Cr.P.C. as threat was extended to her by the accused. As prosecution witness she stated that the accused was holding knife in his hand and for this reason she accompanied him on motorcycle to Dehradun where she was raped. The court below found that there was material improvement in the statement of the victim given before the Court as prosecution witness and the statement given by him under section 164 Cr.P.C. The Trial Court, therefore, found that in the facts and circumstances of the case the sole testimony of the prosecutrix cannot form basis for the purpose of convicting the accused herein.
6. Challenging the impugned judgment, learned AGA for the appellant submitted that the Court below has committed gross mistake of law in appreciating the evidence on record. The victim appeared as prosecution witness and had clearly stated that she had given statement under Section 164 Cr.P.C. under threat. Submission, therefore, is that the judgement and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused Vijay is 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. We have considered the submission advanced by the learned AGA and gone through the judgment of the Trial Court. We find that the statement of the informant himself about his missing daughter, as alleged against the accused-Anil alias Katar Singh, is based on the information received from one Amit son of Mahendra whereas Amit has appeared as DW-1 and denied in categorical terms that he had not given any such information to the informant. The informant admittedly has not seen the victim being taken away by the accused person forcibly. In the statement recorded under section 164 Cr.P.C. the victim has not supported the prosecution version. As per S.R. Register of the School date of birth of the victim was 15.07.2003 whereas as per statement of the informant himself the court below found that no document in this respect was given by the informant while getting her daughter admitted in the school. According to the victim she was elder than her four brothers whereas according to the informant the she was his youngest child and as such, there was material contradiction in their statement. It has also come on record that the Head Master of the School had appeared and said that the admission form and T.C. of the victim was destroyed during flood in the year 2013-14. Under such circumstances, we find that there is no infirmity in the order of the Trial Court and possible view was taken that the victim was adult and was not a minor on the date of incident. Further, there is material improvement in the statement of the victim, who appeared as prosecution witness whereas under Section 164 Cr.P.C. she has categorically denied the prosecution version and submitted that on her own free will she accompanied the accused and they both have gone to Dehradun and stayed there for about 6 days where they made consented physical relationship and no force was used. In her cross examination she had stated that after seeing the knife in the hand of the accused she had gone to Dehradun alongwith accused on the motorcycle, however, she was free to move while sitting on the motorcycle as neither her hands were tied nor her mouth was gagged by the accused and no hue and cry was ever raised by the victim during the entire journey.
14. In such view of the matter, we, 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) has been rejected by order of date, the present government appeal is also dismissed.
Order Date :- 18.7.2025
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