State of U.P v. Alok Rajbhar) arising out of Case Crimes No

1. Heard Sri Anuj Kumar Mishra, 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 20.11.2021 passed by Additional District & Sessions Judge/Special Judge (POCSO Act), Court No.2, Varanasi, in Sessions Trial No. 298 of 2021 (State of U.P. Vs. Alok Rajbhar) arising out of Case Crimes No. 782 of 2020 under Sections 363, 366, 376 IPC and Section 3/4 of POCSO Act, PS- Lanka, District-Varanasi.

3. Prosecution story, in brief, is that the complainant lodged a first information report dated 17.11.2020 at Police Station Lanka alleging therein that his daughter, aged about 16 years, without any information went somewhere on 16.11.2020. On the basis of aforesaid information, the first information report was lodged under Section 363 I.P.C. On 20.11.2020 the victim was recovered. The Investigating Officer, after completing all formalities and on the basis of sufficient material evidences, submitted charge sheet against the accused respondent under Sections 363, 366, 3786 I.P.C. and Section 3/4 of POCSO Act int he court below.

4. In support of prosecution case, PW-1 Victim, PW-2 complainant Sanjay Kumar, PW-3 Raj Dulari, PW-4 S.I. Rajesh Kumar Giri, PW-5 S.I. Durga Prasad Yadav, PW-6 Dr. Alka Singh, PW-7 Anuradha Srivastava, Lecturer, PW-8 Menka Kumari, Principal and PW-9 Constable Ravi Prakash Gaur were produced and examined before the Court below.

5. The judgement of acquittal was passed on the ground that the victim has not supported the prosecution version in her statement recorded under Section 164 Cr.P.C. wherein she had clearly stated that the accused Alok Rajbhar was her distant relative and she had voluntarily left with him as both of them have been liking each other and on 16.11.2020 on promise of marriage he had taken her away to Lucknow and from there to Delhi and as she wanted to marry him they got married in a temple in Delhi and thereafter they returned to Lucknow and from there to Banaras, where they stayed in a guest house and they had physical relationship. It is on information to his family members by Alok Rajbhar, we left for Ashapur where his parents, maternal uncle and aunty (bua) met them. That apart while appearing as PW-1 she had not supported the prosecution version. PW-2 father of the victim, informant and PW-3 mother of the victim have also not supported the prosecution version and stated that their daughter, on her own, had gone to Lucknow. Under such circumstances it was found that none of the witnesses supported the prosecution version. It was also found that there was no external or internal injury and her hymen was old torn and there was no evidence of rape. In this background, the judgment of acquittal was passed.

6. Challenging the impugned judgment, Sri Anuj Kumar Mishra, learned AGA submits that the trial Court has erred in appreciating the evidence on record. He further submits that as per educational certificates the victim was below 18 years of age and therefore the offence has been committed. He further submits that the witnesses are intact and have supported the prosecution case and the findings recorded by 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.

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.

1. Heard Sri Anuj Kumar Mishra, 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 20.11.2021 passed by Additional District & Sessions Judge/Special Judge (POCSO Act), Court No.2, Varanasi, in Sessions Trial No. 298 of 2021 (State of U.P. Vs. Alok Rajbhar) arising out of Case Crimes No. 782 of 2020 under Sections 363, 366, 376 IPC and Section 3/4 of POCSO Act, PS- Lanka, District-Varanasi.

3. Prosecution story, in brief, is that the complainant lodged a first information report dated 17.11.2020 at Police Station Lanka alleging therein that his daughter, aged about 16 years, without any information went somewhere on 16.11.2020. On the basis of aforesaid information, the first information report was lodged under Section 363 I.P.C. On 20.11.2020 the victim was recovered. The Investigating Officer, after completing all formalities and on the basis of sufficient material evidences, submitted charge sheet against the accused respondent under Sections 363, 366, 3786 I.P.C. and Section 3/4 of POCSO Act int he court below.

4. In support of prosecution case, PW-1 Victim, PW-2 complainant Sanjay Kumar, PW-3 Raj Dulari, PW-4 S.I. Rajesh Kumar Giri, PW-5 S.I. Durga Prasad Yadav, PW-6 Dr. Alka Singh, PW-7 Anuradha Srivastava, Lecturer, PW-8 Menka Kumari, Principal and PW-9 Constable Ravi Prakash Gaur were produced and examined before the Court below.

5. The judgement of acquittal was passed on the ground that the victim has not supported the prosecution version in her statement recorded under Section 164 Cr.P.C. wherein she had clearly stated that the accused Alok Rajbhar was her distant relative and she had voluntarily left with him as both of them have been liking each other and on 16.11.2020 on promise of marriage he had taken her away to Lucknow and from there to Delhi and as she wanted to marry him they got married in a temple in Delhi and thereafter they returned to Lucknow and from there to Banaras, where they stayed in a guest house and they had physical relationship. It is on information to his family members by Alok Rajbhar, we left for Ashapur where his parents, maternal uncle and aunty (bua) met them. That apart while appearing as PW-1 she had not supported the prosecution version. PW-2 father of the victim, informant and PW-3 mother of the victim have also not supported the prosecution version and stated that their daughter, on her own, had gone to Lucknow. Under such circumstances it was found that none of the witnesses supported the prosecution version. It was also found that there was no external or internal injury and her hymen was old torn and there was no evidence of rape. In this background, the judgment of acquittal was passed.

6. Challenging the impugned judgment, Sri Anuj Kumar Mishra, learned AGA submits that the trial Court has erred in appreciating the evidence on record. He further submits that as per educational certificates the victim was below 18 years of age and therefore the offence has been committed. He further submits that the witnesses are intact and have supported the prosecution case and the findings recorded by 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.

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.