Point of law: In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, High Court should have borne in mind the well settled principles of law that where two view are possible, appellate Court should not interfere with finding of acquittal recorded by Court.

JUDGMENT :

Kaushal Jayendra Thaker, J.

1. Heard learned A.G.A. for the State and perused the judgment and order impugned.

2. The State has felt aggrieved as accused-respondent, Mankeshwar son of Ram Murat alias Bawali who was charged for commission of offences under Sections 363, 366, 376 of Indian Penal Code, 1860 (in brevity 'IPC') and also under Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (in brevity 'POSCO Act') in Sessions Trial No.91 of 2020 has been acquitted by the Special Judge (POSCO Act), Azamgarh vide order dated 5.8.2021.

3. The prosecution story as it unfurls from the record is that prosecutrix, the daughter of the complainant, when she was studying in class 11, the accused enticed her away. The incident occurred on 11.11.2019 when the prosecutrix/victim had gone to school. The accused even threatened them with dire consequences, but unperturbed by the dire consequence, the complainant lodged First Information Report on 25.12.2019 for commission of the aforesaid offences. The accused, having been committed to the Court of Sessions, denied the prosecution allegation and claimed to be tried. In order to prove its case, the prosecution examined prosecutrix (P.W.1), Brijbhan, complaiant, (P.W.2), Shiv Prashad Mishra (P.W.3), Chandra Shekhar Yadav (P.W.4), Radhika Yadav (P.W.5), Dr. Roshan Ara (P.W.6) and Dr. Dharmendra Kumar Singh (P.W.7). The prosecution also filed documentary evidence so as to bring home the charges levelled against the accused-respondent.

4. Learned A.G.A. has taken us through the record and has submitted that the version of defence has been given more importance rather than sifting the evidence on record. The acquittal has resulted into perversity of the judgment and even on the contours for hearing the appeal against the acquittal, this is a clear case where the accused should be punished as done in the decision of the Apex Court in Guru Dutt Pathak Vs. State of Uttar Pradesh, 2021 (5) LAWS (SC) 5.

5. It is further submitted by learned A.G.A. that the version of the medical evidence has been given less importance to come to the conclusion that the prosecutrix was not a minor. It is further submitted that the learned Trial Judge has given undue importance to the fact that there was delay in filing of the F.I.R. though the delay has been properly explained. The incident occurred on 11.11.2019 and the F.I.R. was lodged on 25.12.2019. On this basis, it is submitted that the judgment of acquittal be reversed and the accused be convicted.

6. Before we embark on testimony and the judgment of the Court below, the contours for interfering in criminal appeals where accused has been held to be not guilty would require to be discussed.

7. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of “M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr.”, (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:

“54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below.”

8. Further, in the case of “Chandrappa Vs. State of Karnataka”, reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;

“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:

[1] An appellate Co