State of Up v. Hemant Kumar Yadav Alias Sonu

Court No. - 42

Case :- GOVERNMENT APPEAL No. - 644 of 2024

Appellant :- State of U.P. Respondent :- Hemant Kumar Yadav Alias Sonu Counsel for Appellant :- A. K. Sand

Hon'ble Vivek Kumar Birla,J. Hon'ble Pramod Kumar Srivastava,J. Re: Criminal Misc. Application (Leave to Appeal)

¶1Heard Sri Pankaj Saxena, learned A.G.A. and perused the record.

¶2Present government appeal has been preferred against the judgement and order dated 24.5.2024 passed by the Additional Sessions Judge, Fast Track Court No. 4, Bulandshahr in Sessions Trials No. 4739 of 2022 (State of U.P. Vs. Hemant Kumar Yadav alias Sonu), arising out of Case Crimes No. 227 of 2022 under Sections 376, 354, 354-Gha, 504, 506 IPC, PS Khurja Nagar, District Bulandshahr.

¶3Prosecution story, in brief, is that the informant, Rajveer Singh lodged a First Information Report dated 15.3.2022 mentioning therein that the age of her daughter is about 25 years who after completing B.Ed. is teaching in Alpine Public School, Khurja since August, 2020 and she lives in Panchbati Colony, Khurja. Her marriage was solemnized with Akash Kumar S/o Ram Pal, R/o village and P.S. Akbarabad, District-Aligarh on 11.12.2021. The son-in-law of informant's 'Saru', namely, Hemant Yadav @ Sonu S/o Rakesh Kumar, R/o Raja Ka Tal, District-Firozabad used to vulgar talk on telephone and pressurized to make physical relationship. On 14.2.2022 at about 6.00 p.m. when she was going from Panchwati to Khurja, in the way, nearby N.R.E.C. College, Hemant Yadav @ Sonu Rakesh Kumar molested her and torn her cloth. When she objected then nearby persons came there and then accused went away after abusing and threatening her to kill.

¶4In support of prosecution case, P.W.1, first informant-Raj Veer Singh, P.W.2-victim, P.W. Sumit Kumar, P.W.4 Dr. Manju Agrawal, P.W.5 Constable Deepak Kumar, P.W.6 S.I. Dinesh Kumar, P.W. 7 S.I. Chail Bihar Sharma and P.W.8 Vinay Kumar were produced and examined before the Court below.

¶5The judgement of acquittal was passed on the ground that the victim is a 26 years old married lady and the accused is also a married person. Both are relative are having family terms. They were known to each other since 2016 and photograph to this effect from 16.2.2022 are also on record. The victim has stated that she does not remember as to how many times she has met the accused at building material place. Victim herself is a highly educated lady and there were material discrepancies in her statement recorded under Section 164 Cr.P.C. as well as recorded as P.W.2. There was difference in the date of marriage, as given by the victim. She had taken consented divorse under section 13B of the Hindu Marriage Act. The court below in this background found that the victim and the accused persons both were adult and married and were having consented physical relationship, as such, offences so alleged are missing and benefit of doubt was given acquitting the accused person. Under such circumstances, the Court below found that the prosecution could not prove his case beyond doubt and the accused persons were given benefit of doubt and judgement of acquittal was passed.

¶6Challenging the impugned judgment, Sri Pankaj Sasena, learned AGA submits that the trial Court has erred in appreciating the evidence on record. He further submits that the learned trial Court has given undue weightage to the evidence of defence and has wrongly ignored the prosecution evidence. He further submits that the witnesses are intact and have supported the prosecution case and the findings recorded b 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.

¶7We have considered the submissions and have perused the record.

¶8Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

¶9In 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"

¶10In 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."

¶11In 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).

¶13In 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...."

¶14The 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).

¶15In 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."

¶16In 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.

¶17In 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."

¶18In 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.

¶19Thus, 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."

¶11Hon'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.

¶12The 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."

¶12Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.

¶13We have gone through the aforesaid judgment and order. We do not find any good ground to take a different view in the matter. Accordingly, the present application to leave stands rejected.

¶14Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected. Re: Government Appeal 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 :- 19.8.2025 Kumar Manish High Court of Judicature at Allahabad