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TMI Blog2019 (8) TMI 1918X X X X Extracts X X X X X X X X Extracts X X X X ..... edient of Sections 363/366/376 IPC is missing. In the present case, it is only because of a misrepresentation by the prosecutrix with regard to her age, which the respondent-accused bonafidely believed to be true that he allowed her to accompany him - It is also settled law that any acquittal order cannot be lightly interfered with by the Appellate Court, though it has wide powers to review the evidence and to come to its own conclusion. The power to grant leave must be exercised with care and caution because the presumption of innocence is further strengthened by the acquittal of an accused. The present leave petition, being bereft of merit, is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... liberate withholding of matriculation certificate of victim, it cannot be held with certainty that the prosecutrix/victim girl was a minor on the day when she had left her home with the accused. xxxxx xxxxx xxxxx xxxxx 21. In the present case also the element of 'taking away' or 'enticement' is found to be lacking as there is no such averment in entire deposition of the prosecutrix, PW-1 who has categorically averred during her deposition on 06.10.2016 that she was having friendship with the accused since January, 2015. PW-1/ prosecutrix has also deposed that she went with accused after her last board exams. She further stated that she had changed her clothes at Mool Chand Metro Station and went with accused to a village situated near Vaishali Metro Station, Ghaziabad and they took a room on rent and they remained there for ten days and she categorically deposed that during her stay with the accused no beatings were given by accused to her nor he misbehaved or maltreated her. During the cross-examination of victim/PW-1 by the Ld. Addl. PP for the State she has categorically denied the suggestion that she did not go with the accused with her consent or that accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had left his minor daughter/prosecutrix 'K' (aged about 17 years) at her school around 9:30 a.m. on the previous day as she had her class Twelfth board examination. She had thereafter not returned home and he suspected that some unknown person had kidnapped her. In pursuance to the said complaint, a case was registered under Section 363 IPC and during the course of investigation, prosecutrix was recovered on 5th April 2015 from the possession of respondent-accused from House No. 187, 1st floor, Mausam Vihar, Village Pasonda, Sahibabad, Ghaziabad, Uttar Pradesh. 7. Subsequently, documents regarding age of the prosecutrix were obtained and her MLC was prepared. Statements of witnesses were recorded by the police and after completion of investigation, charge sheet was filed against the respondent-accused under Sections 376/366/363 IPC & Section 6 POCSO Act. The statement of the prosecutrix was also recorded under Section 164 Cr. P.C. and the same is reproduced hereinbelow:- "Statement of Victim Khushboo, age 17 years, D/o Sh. Vinod Kumar R/o C-453, Indra Kalyan Vihar, Okhla Phase 1, New Delhi. ON SA Tell, what happened? Ans. I liked Kesar Ali. I had made a call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pta Singh (In English) Metropolitan Magistrate (Traffic-II), South-East, Saket Court, New Delhi (emphasis supplied) 8. The relevant portion of the cross-examination of the prosecutrix is also reproduced hereinbelow:- "I stated in my statement u/s. 164 Cr. P.C. that I like Kesar from November, 2014. It is correct that I told in the statement that I have stated my age to Kesar as 18 years. It is correct that I stated in that statement that he did not commit any act forcefully. It is correct that in that statement I did not state that there was physical relations between us. It is wrong to suggest that I am deposing falsely in respect of physical relations between us under the threats of my parents. It is correct that I stated in my statement u/s. 164 Cr. P.C. that my father is threatening me to depose that I was taken forcefully. It is correct that I made my statement u/s. 164 Cr. P.C. voluntarily and without any pressure by anyone." (emphasis supplied) 9. A perusal of the aforesaid statement of the prosecutrix shows that she had misrepresented her age to be eighteen years to the respondent-accused. She had categorically stated that had she not done so, the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons " exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive. 2. The appellate court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 7. The Supreme Court in a subsequent judgment in Arulvelu & Anr. Vs. State Represented by the Public Prosecutor & Anr., (2009) 10 SCC 206 has held as under:- "40. Unquestionably, the Appellate Court has power to review and re-appreciate the entire evidence on record. The appellate court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial court is found to be perverse judgment. Interfering in a routine manner where other view is possible is contrary to the settled legal position cryst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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