State sought leave under Section 378(3) CrPC for appeal against acquittal of accused charged with kidnapping/enticement. Court reviewed precedents on appeals against acquittal, found trial court's view on prosecutrix's age and consent plausible and evidence-based, and rejected the application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2024:AHC-LKO:26726
Court No. - 16
Case :- APPLICATION U/S 378 No. - 14 of 2013
Applicant :- State of U.P. Opposite Party :- Sewakram And Another Counsel for Applicant :- Govt. Advocate
Hon'ble Mohd. Faiz Alam Khan,J.
(i) That the prosecutrix appears to be aged about 19 years at the date and time of the incident.
(ii) The prosecutrix appears to be a consenting party as she has been seen in the company of accused persons by P.W.-2 Bechelal and P.W.-3 Sarvesh at a petrol pump and even after seeing them, she did not raise any alarm or asked them to help her.
(iii) Nobody has seen the prosecutrix being taken away or enticing away by the accused persons.
(iv) She was major and was a consenting party.
Upholding the contention, it has also been held in para 6 as under;
"We think this criticism is well-founded. After an order of acquittal has been made, the presumption of innocence is further reinforced by that order, and that being so, the trial court's decision can be reversed not on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons."
"Para 9- The foregoing discussion yields the following results :
(1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case afford a correct guide for the appellate court's approach to a case in disposing of such an
appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified".
"20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can raise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasiva V. State of Kerala 1998 SCC (Cri) 1320 has held:
"7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal."
21. The Court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and
relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative."
"19. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal "shall be entertained except with the leave of the High Court". It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub-section (3) of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code.
20. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.
21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial Court must be allowed by the appellate Court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the Court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial Court could not be said to be `perverse' and, hence, no leave should be granted.
24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate Court against an order of acquittal recorded by the trial Court. We only state that in such cases, the appellate Court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial Court should not be disturbed. Where there is application of mind by the appellate Court and reasons (may be in brief) in support of such view are recorded,
the order of the Court may not be said to be illegal or objectionable. At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and re-appreciation, review or reconsideration of evidence, the appellate Court must grant leave as sought and decide the appeal on merits. In the case on hand, the High Court, with respect, did neither. In the opinion of the High Court, the case did not require grant of leave. But it also failed to record reasons for refusal of such leave."
person in the school record is also relevant and the age of a person as recorded in the school record may not be the be all and end all of the matter. It is evident that it has been rightly discussed by the trial court at page nos.7 of its judgement that the father of the prosecutrix has categorically stated that the prosecutrix may also be of the age of 20 years at the date and time of the incident and as per ossification test the age of the prosecutrix has been assessed as 19 years. It is also evident to be an admitted situation that in the certificate issued by the Principal of the school, date of birth of the victim/prosecutrix though has been shown as 05.12.1988, but the Principal of the school has not been produced/tendered as prosecution witness before the trial court and the accused appears to have been deprived of cross examining the Principal of the school concerned in order to know the basis, on which, the date of birth of the prosecutrix was recorded in the school.
Order Date :- 1.4.2024 Anupam S/-
Digitally signed by :- ANUPAM SINGH PATEL High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Should leave to appeal be granted to the State against acquittal of accused under Sections 363, 366 IPC?
Whether the trial court erred in assessing the prosecutrix's age and treating her as a consenting major?
Colour shows how this judgement treated each authority
Ajmer Singh v. State of PunjabRelied on¶10
1953 SCR 418 · Who else cites this
Sanwat Singh v. State of RajasthanRelied on¶11
AIR 1961 SC 715 · Who else cites this
Sheo Swarup v. R. EmperorReferred¶11
AIR 1934 PC 227 (2) · Who else cites this
Sadhu Saran Singh Vs. State of Uttar Pradesh and OthersRelied on¶12
(2016) 4 SCC 357 · Who else cites this
State of Maharashtra vs. Sujay Mangesh PoyarekarRelied on¶13
(supra)
2 provisions across 2 enactments
State of U.P.
Sewakram
Maniram
Mohd. Faiz Alam Khan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
