State of U.P v. Rustam), arising out of Case Crime No

On the basis of the aforesaid, first information report of the present case was lodged and the investigating officer after due investigation has submitted charge sheet.

4. In support of prosecution case, PW-1 Victim, PW2 Lady Constable Sonam Rathi, PW3 Dr. Kuldeep Singh, PW4 Dr. Shweta Chauhan, PW5 Meena, PW6 Mahesh Singh Atri, Additional Superintendent of Police, PW7 Nishank Sharma A.C.P. and PW8 Mahesh Kumar.

5. The prosecution has proved Statement of victim recorded under Section 164 Cr.P.C. as Ext. Ka1, Chik FIR as Ext. Ka2, G.D.Report as Ext. Ka3, X-ray Report of victim as Ext. Ka4, Medical Report as Ext. K5, Pathology Slip as Ext. K6, Supplementary report as Ext. Ka7, Written Report as Ext. Ka8, Charge sheet as Ext. Ka9 and Site Plan as Ext. Ka10, Education Certificates as Ext. Ka11 to 13, as documentary evidence.

6. The judgement of acquittal has been passed by the learned trial Court on the ground that the she was taken away on 11.05.2014 whereas the first information report was lodged on 19.05.2014 after about 8 days and specific allegations were levelled against four accused persons that they have forcibly taken her away and they continued to rape her for about 6 days. However, in her statement recorded under Sections 161 Cr.P.C. and 164 Cr.P.C., it was alleged that she was forcibly taken away and was raped for 6 days by several accused persons, however, in the cross examination she has taken a 2 of 8 diametrically contrary stand. It was further found that in the medical examination conducted on 22.05.2014 i.e. after about 5 days only, her hymen was found intact and no definite opinion of rape was given by PW-4, who has conducted the medical examination. On this ground, it was also noticed that in her cross-examination, the victim clearly stated that on the date of incident, nobody met him on way and no intoxicating material was administered on him and Rustam had not taken her away to Delhi and he had not committed any rape on her. In this ground, the judgement of acquittal has been passed.

7. Challenging the submission of learned AGA is that the victim is aged about 15 years as per the first information report and as per per medical report, she was aged about 16 years and therefore, her consent is immaterial and in her statement recorded under Sections 161 Cr.P.C. and 164 Cr.P.C., she had supported the prosecution version and therefore, the judgement of acquittal is against the weight and evidence on record.

8. We have considered the submissions and have perused the record.

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

10. 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 3 of 8 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”

11. 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."

12. 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 4 of 8 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; 5 of 8

On the basis of the aforesaid, first information report of the present case was lodged and the investigating officer after due investigation has submitted charge sheet.

4. In support of prosecution case, PW-1 Victim, PW2 Lady Constable Sonam Rathi, PW3 Dr. Kuldeep Singh, PW4 Dr. Shweta Chauhan, PW5 Meena, PW6 Mahesh Singh Atri, Additional Superintendent of Police, PW7 Nishank Sharma A.C.P. and PW8 Mahesh Kumar.

5. The prosecution has proved Statement of victim recorded under Section 164 Cr.P.C. as Ext. Ka1, Chik FIR as Ext. Ka2, G.D.Report as Ext. Ka3, X-ray Report of victim as Ext. Ka4, Medical Report as Ext. K5, Pathology Slip as Ext. K6, Supplementary report as Ext. Ka7, Written Report as Ext. Ka8, Charge sheet as Ext. Ka9 and Site Plan as Ext. Ka10, Education Certificates as Ext. Ka11 to 13, as documentary evidence.

6. The judgement of acquittal has been passed by the learned trial Court on the ground that the she was taken away on 11.05.2014 whereas the first information report was lodged on 19.05.2014 after about 8 days and specific allegations were levelled against four accused persons that they have forcibly taken her away and they continued to rape her for about 6 days. However, in her statement recorded under Sections 161 Cr.P.C. and 164 Cr.P.C., it was alleged that she was forcibly taken away and was raped for 6 days by several accused persons, however, in the cross examination she has taken a 2 of 8 diametrically contrary stand. It was further found that in the medical examination conducted on 22.05.2014 i.e. after about 5 days only, her hymen was found intact and no definite opinion of rape was given by PW-4, who has conducted the medical examination. On this ground, it was also noticed that in her cross-examination, the victim clearly stated that on the date of incident, nobody met him on way and no intoxicating material was administered on him and Rustam had not taken her away to Delhi and he had not committed any rape on her. In this ground, the judgement of acquittal has been passed.

7. Challenging the submission of learned AGA is that the victim is aged about 15 years as per the first information report and as per per medical report, she was aged about 16 years and therefore, her consent is immaterial and in her statement recorded under Sections 161 Cr.P.C. and 164 Cr.P.C., she had supported the prosecution version and therefore, the judgement of acquittal is against the weight and evidence on record.

8. We have considered the submissions and have perused the record.

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

10. 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 3 of 8 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”

11. 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."

12. 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 4 of 8 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; 5 of 8