Allahabad High Court
State Of Up vs Sanjay @ Pintu Patel S/O Krishna Murari ... on 17 July, 2025
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:115152-DB Reserved On - 07.07.2025 Delivered On - 17.07.2025 Court No. - 42 Case :- GOVERNMENT APPEAL No. - 956 of 2024 Appellant :- State of U.P. Respondent :- Sanjay @ Pintu Patel S/O Krishna Murari Patel And Another Counsel for Appellant :- Shiv Kumar Pal Counsel for Respondent :- Akhilesh Kumar Mishra,Uma Shankar Tiwari Hon'ble Vivek Kumar Birla,J.
Hon'ble Jitendra Kumar Sinha,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Shri Rahul Asthana, learned AGA appearing for the appellant-State of UP and Shri Uma Shankar Tiwari, learned counsel appearing for the opposite party no.1.
2. Present Government Appeal has been preferred against the judgement and order dated 31.03.2022, passed by the learned Additional District & Session Judge/ Special Judge (POCSO Act), District Allahabad, in Special Trial No.148 of 2018 (State Vs. Sanjay alias Pintu Patel and another), arising out of Case Crime No.456 of 2017, under Sections 363, 366, 376D IPC, Section 5/6 POCSO Act and 3(2) (5A) SC/ST Act, Police Station Ghoorpur, District Allahabad.
3. Prosecution story, in brief, is that the complainant Sanno Devi, wife of Palchand Dhaikar, a resident of Village- Kanti, Thana Ghoorpur, District Allahabad gave a written report on 05-08-17, stating therein that at about 5:00 p.m., Pintu Patel son of Murari Patel of Bhairahi village lured and kidnapped the applicant's daughter/victim. Her daughter is 13 years old. On the basis of the application of the plaintiff, Exhibit A-1, a case was registered against accused Pintu Patel under Crime No. 456/17 under Sections 363, 366, IPC and Sections 7/8 of the POCSO Act and Section 3(2)(5) of the SC/ST Act, Exhibit A-11 and the investigation was handed over to the investigating officer. The investigating officer recorded the statement of the victim under Section 164 of the CrPC. While getting the victim medically examined, medical examination report Exhibit A-3 and supplementary medical report Exhibit A-4 were obtained and after collecting the evidence in this manner, charge sheet Exhibit A-8 against the accused Sanjay alias Pintu Patel and Shubham Patel alias Doctor under sections 363, 366, 376-D IPC, Section 5/6 POCSO Act and Section 3(2)(5A) SC/ST Act was submitted before the learned trial court, on which the case was decided.
4. In support of prosecution case, PW-1 complainant Sanno Devi, PW-2 victim, PW-3 Dr. Pratima Mishra, PW-4 Constable 3288 Gudiya Singh, PW-5 Mrs. Nusrat Jahan, Principal UPS Kanti, PW-6 C.O. Ratnesh Singh, PW-7 Amit Kumar Srivastava and PW-8 advocate Girja Shankar Tiwari have been examined as oral evidence. As documentary evidence, written complaint Exhibit A-1, statement of victim under section 164 Cr.P.C. Exhibit A-2, medical report Exhibit A-3, supplementary medical report Exhibit A-4, photocopy of victim's admission registration Exhibit A-5, date of birth certificate issued by school Exhibit A-6, victim's delivery letter Exhibit A-7, charge sheet Exhibit A-8, map map Exhibit A-9, victim's photocopy Exhibit A-1 and signature Exhibit A-10, Chik FIR, Exhibit A-11 and carbon copy of GD Exhibit A-12 were presented.
5. Learned trial court has passed the judgment of acquittal on the ground that there are material contradictions regarding the date, time and place of occurrence in the testimonies of victim-PW-2, her mother PW-1. The trial court has also found that the victim has made material improvement in her statement given before the learned trial court from her earlier statement given during investigation. Learned trial court has also found that the Investigating Officer did not make any effort to trace out the location of the victim and the accused persons from their mobile phones. Further, learned trial court has found that the prosecution story as narrated is imaginary.
6. Challenging the impugned judgment, Shri Rahul Asthana, learned AGA submits that the views of learned trial Court is not one of the possible view. Learned AGA further submits that learned trial court has erred in acquitting the respondent. Further contention of the learned A.G.A. is that testimonies of victim PW-2 and the informant PW-1 are worth believable. The victim has been consistent in her statement that she was kidnapped by the respondent and was raped for about nine months. He further submits that there might be some inconsistencies in her statement but they are not material. He further submits that PW-3 Dr. Pratima Mishra, who has medically examined the victim, has opined that the possibility of sexual offence is not ruled out. He further submits that other witnesses are of formal nature and prays for grant of leave to appeal.
7. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
8. 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"
9. 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 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."
10. 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."
11. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
12. On perusal of record, we find that the statement of victim PW-2 under Section 161 and 164 Cr.P.C. are contradictory regarding the date of incident. In her statement under Section 161 Cr.P.C., she has stated that the respondents/accused persons came to her on second day of the month and the incident took place on the next date, whereas in her statement under Section 164 Cr.P.C., she has stated that the incident took place on 05th August, 2017. The victim PW-2 has further stated before the trial court that while in custody of the respondents/accused persons she had made telephonic conversation with the mother in the month of December, 2017, whereas PW-1 informant, who is mother of the victim has deposed before the trial court that the victim had never made any telephonic conversation with her while in custody of the accused persons. Further statement of informant PW-1 is contradictory regarding the time of the incident. The victim PW-2 has deposed to the effect that once she had fled away from the custody of the accused persons but she was again caught hold of. PW-3 Dr. Pratima Mishra has not given any categorical finding regarding the offence of rape being committed on the victim and she has found her radiological age about 17 years and in the vaginal smear of the victim sperms were absent and her pregnancy test was negative. PW-3 Doctor has also found that there was no visible injury on her person and her hymen was torn and healed up. PW-3 has also stated that the clothes which the victim wore was not given for forensic examination as victim stated that since the clothes became dirty, she had washed it after taking bath. Other witnesses PW-4, PW-5 and PW-6 are of formal nature. PW-5 Smt. Nusrath Jahan, Principal of the school has appeared before the trial court regarding educational certificates of the victim. PW-5 has stated before the trial court that the date of birth of the victim was recorded as 02.11.2001 in the school register and the victim had taken admission in that school in Class-VI on 21.07.2012 and passed examination of Class-VIII on 01.07.2014 and on 08.04.2015, she was given the transfer certificate. From the above, it is clear that the education papers regarding her age, which were brought before the learned trial court, is not a high school certificate.
13. 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 :- 17.07.2025 RKM/Virendra