In the case of Bannareddy and others v. State of Karnataka and others

1. Vide order dated 5.12.2024, lower court record was summoned by this Court and appeal was directed to be listed for admission.

2. Learned trial court record is now available, therefore we proceed to consider the appeal.

3. Heard Sri Rajendra Babu Gaur, learned counsel for the appellant, learned AGA for the State and perused the record.

4. Present appeal has been filed by the appellant against the judgement and order dated 10.10.2024 passed by learned Additional Session Judge/Special Judge Protection of Children From Sexual Offence Act, Court No. 42 Shahjahanpur in Session Trial No. 1807 of 2024, under section 363, 376 IPC and 3/4 POCSO Act and Session Trial No. 1836 of 2021 under section 363, 376 IPC and 16/17 of POCSO Act arising out of Case Crime No. 439 of 2021, P.S. Seharamau South, District Shahjahanpur both session trials have been consolidated and Session Trial No. 1807 of 2021 was made as leading case whereby respondent accused have been acquitted from the offence interalia on the amongst other.

5. As per the first information report, the victim aged about 16 years had gone away in the night of 2/3.10.2021 and she had also taken away her Adhar Card and Jewellery. Victim was recovered on 11.10.2021 while she was standing by the road side.

6. The judgement of acquittal has been passed on the ground that the victim in her statement recorded under section 161 Cr.P.C. has not supported the prosecution version and she has stated that she was aged about 18 years and educated upto class 8th. She has further stated that in the night of 2/3.10.2021, she had called Mohit, the accused herein and left around 11 P.M. along with him. She has further stated that Mohit had taken her away to Shahjahanpur where she lived with him and they had made consented physical relationship. On 11.10.2021 at about 12:00 noon, she was standing along with Mohit on Hardoi turn and Mohit had gone away to take something for eating, the police had recovered her. The victim has also stated that she wish to go with Mohit. Learned trial court has noticed that the victim admitted her signature on her statement recorded under section 161 Cr.P.C.

7. Learned trial court has also noticed that the victim made material improvement in her statement recorded under section 164 Cr.P.C. and specific allegations were levelled against Mohit that while she was sleeping on the roof, he had come there and after putting cloth on her mouth, he had thrown her down from the roof. His brother-in-law was standing there who caught her and both of them forcibly took her away on a motorcycle and she was kept in a room where she was raped by Mohit and the police rescued her.

8. Learned trial court has also noticed that the victim in her statement recorded as P.W. 2 has named Ram Singh, brother-in- law (Jija) of Mohit for the first time that he also committed rape on her. It has further been noticed by learned trial court that P.W. 8, the doctor who conducted radiological test on her found her age about 18 years as per radiological report. Therefore, learned trial court found that there were material contradictions in her statement recorded under sections 161 and 164 Cr.P.C. as well as in the statement recorded during trial as P.W. 2. Thus, learned trial court found that the victim has materially improved her statement at every stage.

9. The educational certificate produced before the court were not found worth belief wherein her date of birth was recorded as 3.1.2005. P.W. 9-Savita Shukla, Principal of School had stated no document in respect of date of birth was produced by her parents at the time of recording of her date of birth. She in her cross examination admitted that usually parents gives incorrect date of birth to show their child younger. Father of the victim P.W.1, the informant had also admitted in her cross examination that at the time of admission in school, lesser age was shown for registration in school and it was admitted by the informant in his statement dated 14.9.2022 that he was aged about 65 years.

10. Considering the entire circumstances it was found that educational certificate of the victim was not worth belief therefore, the radiological report and statement of doctor were considered and it was found that the victim was major.

11. Learned trial court has found that offence under section 376 IPC is not proved against the appellant as the victim has materially changed her statement at every stage as has already been noticed above.

12. Submission of learned counsel for the appellant is that as per educational certificate victim was minor and in her statement recorded under section 164 Cr.P.C. she had specifically levelled allegation against the appellant herein and remained consistent and in her statement recorded as P.W. 2, she has levelled allegation against Ram Singh as well as she remained consistent on that point and had specifically levelled that she was forcibly taken away and rape was committed.

13. We have considered the submissions made by learned counsel for the appellant and perused the record.

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

15. 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"

16. 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."

17. 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.

1. Vide order dated 5.12.2024, lower court record was summoned by this Court and appeal was directed to be listed for admission.

2. Learned trial court record is now available, therefore we proceed to consider the appeal.

3. Heard Sri Rajendra Babu Gaur, learned counsel for the appellant, learned AGA for the State and perused the record.

4. Present appeal has been filed by the appellant against the judgement and order dated 10.10.2024 passed by learned Additional Session Judge/Special Judge Protection of Children From Sexual Offence Act, Court No. 42 Shahjahanpur in Session Trial No. 1807 of 2024, under section 363, 376 IPC and 3/4 POCSO Act and Session Trial No. 1836 of 2021 under section 363, 376 IPC and 16/17 of POCSO Act arising out of Case Crime No. 439 of 2021, P.S. Seharamau South, District Shahjahanpur both session trials have been consolidated and Session Trial No. 1807 of 2021 was made as leading case whereby respondent accused have been acquitted from the offence interalia on the amongst other.

5. As per the first information report, the victim aged about 16 years had gone away in the night of 2/3.10.2021 and she had also taken away her Adhar Card and Jewellery. Victim was recovered on 11.10.2021 while she was standing by the road side.

6. The judgement of acquittal has been passed on the ground that the victim in her statement recorded under section 161 Cr.P.C. has not supported the prosecution version and she has stated that she was aged about 18 years and educated upto class 8th. She has further stated that in the night of 2/3.10.2021, she had called Mohit, the accused herein and left around 11 P.M. along with him. She has further stated that Mohit had taken her away to Shahjahanpur where she lived with him and they had made consented physical relationship. On 11.10.2021 at about 12:00 noon, she was standing along with Mohit on Hardoi turn and Mohit had gone away to take something for eating, the police had recovered her. The victim has also stated that she wish to go with Mohit. Learned trial court has noticed that the victim admitted her signature on her statement recorded under section 161 Cr.P.C.

7. Learned trial court has also noticed that the victim made material improvement in her statement recorded under section 164 Cr.P.C. and specific allegations were levelled against Mohit that while she was sleeping on the roof, he had come there and after putting cloth on her mouth, he had thrown her down from the roof. His brother-in-law was standing there who caught her and both of them forcibly took her away on a motorcycle and she was kept in a room where she was raped by Mohit and the police rescued her.

8. Learned trial court has also noticed that the victim in her statement recorded as P.W. 2 has named Ram Singh, brother-in- law (Jija) of Mohit for the first time that he also committed rape on her. It has further been noticed by learned trial court that P.W. 8, the doctor who conducted radiological test on her found her age about 18 years as per radiological report. Therefore, learned trial court found that there were material contradictions in her statement recorded under sections 161 and 164 Cr.P.C. as well as in the statement recorded during trial as P.W. 2. Thus, learned trial court found that the victim has materially improved her statement at every stage.

9. The educational certificate produced before the court were not found worth belief wherein her date of birth was recorded as 3.1.2005. P.W. 9-Savita Shukla, Principal of School had stated no document in respect of date of birth was produced by her parents at the time of recording of her date of birth. She in her cross examination admitted that usually parents gives incorrect date of birth to show their child younger. Father of the victim P.W.1, the informant had also admitted in her cross examination that at the time of admission in school, lesser age was shown for registration in school and it was admitted by the informant in his statement dated 14.9.2022 that he was aged about 65 years.

10. Considering the entire circumstances it was found that educational certificate of the victim was not worth belief therefore, the radiological report and statement of doctor were considered and it was found that the victim was major.

11. Learned trial court has found that offence under section 376 IPC is not proved against the appellant as the victim has materially changed her statement at every stage as has already been noticed above.

12. Submission of learned counsel for the appellant is that as per educational certificate victim was minor and in her statement recorded under section 164 Cr.P.C. she had specifically levelled allegation against the appellant herein and remained consistent and in her statement recorded as P.W. 2, she has levelled allegation against Ram Singh as well as she remained consistent on that point and had specifically levelled that she was forcibly taken away and rape was committed.

13. We have considered the submissions made by learned counsel for the appellant and perused the record.

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

15. 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"

16. 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."

17. 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.