Court No. - 51

Case :- GOVERNMENT APPEAL No. - 433 of 2018

Appellant :- State Of U.P.

Respondent :- Mukesh

Counsel for Appellant :- G.A.

Counsel for Respondent :- Vikrant Neeraj

Hon'ble Vipin Sinha,J.

Hon'ble Ifaqat Ali Khan,J.

Heard learned AGA on the application seeking leave to appeal

against the judgment and order dated 23.11.2017 by means of which all

the accused – respondents have been acquitted for the offence

punishable under sections 376, 511, 392 of IPC and 3(1)X SC/ST Act.

We have perused the impugned judgment. Perusal of the judgment

dated 23.11.2017 shows that the concerned court has recorded

categorical findings after perusing the entire evidence on record.

Keeping in view the contentions as have been raised by the learned AGA

at the bar, we have perused the findings as recorded by the court below in

the order impugned. The record shows that victim is a maried woman and

the allegation as have been made in the F.I.R. cannot be believed even

otherwise the victim herself has been examined as P.W. 3 and the court

below with regard to her statement testimony has observed

hereinasunder:

izLrqr ekeys esa lk{kh ih-MCyw-&3 y{ehnsoh ds c;ku vfHkfyf[kr fd;s tkus ds iwoZ

U;k;ky; }kjk mls l{ke lk{kh ekuk tkuk vo/kkfjr fd;k x;k gS ysfdu bl lk{kh us tks

c;ku b'kkjs ls U;k;ky; ds le{k fn;k gS] mlesa vfHk;qDr dh vijk/k esa lafyIrrk fo'oluh;

ugha dgh tk ldrh gS vkSj ek= bl lk{kh ds mijksDr c;kuksa ls vfHk;qDr dh vijk/k esa

nks"kfl)h fdlh rjg lqjf{kr ugha gksxhA

The medical examination was also done after a period almost after

six days of the incident and the medical examination does not support the

case of the prosecution.

Reference may be made to the recent judgment of the Apex Court

rendered in the case of Bannareddy & Ors. vs. The State of Karnataka &

Ors reported in 2018 (5) SCC 790 wherein the Apex Court has held as

under:

11. Before we proceed further to peruse the finding of

the High Court, it is relevant to discuss the power and

jurisdiction of the High Court while interfering in an

appeal against acquittal. It is well settled principle of

law that the High Court should not interfere in the well

reasoned order of the trial court which has been

arrived at after proper appreciation of the evidence.

The High Court should give due regard to the findings

and the conclusions reached by the trial court unless

strong and compelling reasons exist in the evidence

itself which can dislodge the findings itself. This

principle has further been elucidated in the case of

Sambhaji Hindurao Deshmukh and Ors. vs. State of

Maharashtra, (2008) 11 SCC 186, para 13, wherein

this Court observed that: “The High Court will interfere

in appeals against acquittals, only where the trial court

makes wrong assumptions of material facts or fails to

appreciate the evidence properly. If two views are

reasonably possible from the evidence on record, one

favouring the accused and one against the accused,

the High Court is not expected to reverse the acquittal

merely because it would have taken the view against

the accused had it tried the case. The very fact that

two views are possible makes it clear that the

prosecution has not proved the guilt of the accused

beyond reasonable doubt and consequently the

accused is entitled to benefit of doubt.

12. It is not in dispute that the presumption of

innocence is further reinforced, reaffirmed and

strengthened against the acquitted accused by the

judgment in his favor. [Vide Rabindra Kumar Pal @

Dara Singh vs. Republic of India, (2011) 2 SCC 490 in

para. 94].

27. Keeping in view the facts and circumstances of the

case, we hold that the prosecution was not able to

establish the guilt of the accused persons beyond

reasonable doubt. Further, the High Court should not

have re-appreciated evidences in its entirety,

especially when there existed no grave infirmity in the

findings of the trial court. There exis