# Anang Pal Singh v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 711
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-13
- **Case number:** Criminal Appeal No.1559 of 2015
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anang-pal-singh-v-state-of-u-p-ors-48934
- **Pages:** 8

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 376/511 & 506 - Minor daughter
taken away by accused's wife -and she went to
answer nature's call-in between accused raped
her-Delayed FIR (Four Days)-no convincing
explanation- no injury to victim- evidence of
enmity between the parties due to the land
dispute.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

8 All. Anang Pal Singh Vs. State of U.P. & Ors.
711
was
killed.
No
general
presumption
regarding appellant's presence in the house
can be drawn as according to the
prosecution own witness (PW-13), who is
the son of the deceased, he and the
appellant had left to watch Ramleela. When
they left the house, the deceased was alive.
On their return after watching Ramleela
they found deceased dead. This witness
also
states
that
the
appellant
was
throughout with him watching Ramleela.
PW-13,
therefore,
shatters
the
very
foundation
of
the
prosecution
case.
Moreover, this is not a case where the
appellant has absconded. He reported the
incident to the villagers in the night itself
and, thereafter, reported the incident to the
police in the wee hours of the morning.
Once this is the position and as we have
found the incriminating circumstances on
which the trial court has based the order of
conviction not proved beyond reasonable
doubt, the benefit of doubt would have to
go to the accused-appellant. Consequently,
the appeal is allowed. The judgment and
order of the trial court convicting and
sentencing the appellant is set aside. The
accused-appellant is acquitted of the charge
for which he has been tried and convicted.
The appellant is reported to be in jail. He
shall be released forthwith unless wanted in
any other case, subject to compliance of the
provisions of Section 437-A CrPC to the
satisfaction of the trial court.

50. Let a copy of this order be
forwarded to the court below along with the
record for information and compliance.
----------
(2022) 8 ILRA 711
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No.1559 of 2015
(U/S 372 Cr.P. C.)

Anang Pal Singh ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Atul Pandey

Counsel for the Opposite Parties:
Govt. Advocate, Sri Jitendra Kumar Yadav

Criminal Law - Indian Penal Code,1860 -
Sections 376/511 & 506 - Minor daughter
taken away by accused's wife -and she went to
answer nature's call-in between accused raped
her-Delayed FIR (Four Days)-no convincing
explanation- no injury to victim- evidence of
enmity between the parties due to the land
dispute.

Appeal dismissed. (E-9)

List of Cases cited:

1. Bannareddy & ors. Vs St. of Kar. & ors.

2. Jayamma Vs St. of Kar., 2021 (6) SCC 213

3.Virendra Singh Vs St. of U.P. & ors., 2022 (3)
ADJ 354 DB

4. Tulsiram Kanu Vs The State AIR 1954 SC 1

5. Balbir Singh Vs St. of Pun. AIR 1957 SC 216

6. M.G. Agarwal Vs St. of Mah. AIR 1963 SC 200

7. Khedu Mohton & Ors. Vs St. of Bih. AIR 1970
SC 66

8. Sambasivan & ors. Vs St. of Ker. (1998) 5
SCC 412

9. Bhagwan Singh & ors. Vs St. of M.P. (2002) 4
SCC 85
712 INDIAN LAW REPORTS ALLAHABAD SERIES
10. St. of Goa Vs Sanjay Thakran & anr. (2007)
3 SCC 755)

11. Chandrappa & ors. Vs St. of Kar. (2007) 4
SCC 415

12. Ghurey Lal Vs St. of U.P. (2008) 10 SCC 450

13. St. of U.P. Vs Banne alias Baijnath & ors.
(2009) 4 SCC 271

14. St. of Raj. Vs Naresh @ Ram Naresh (2009)
9 SCC 368

15. Dhanapal Vs State by Public Prosecutor,
Madras (2009) 10 SCC 401

16. Ramesh Babulal Doshi Vs St. of Guj. (1996)
9 SCC 225 : 1996 SCC (Cri) 972

17. Rajesh Prasad Vs St. of Bih. & anr.,(2022) 3
SCC 471

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Vikas Budhwar, J.)

1. No one is present on behalf of the
appellant even in the revised call of
additional cause list.

2. On perusal of the order sheet,
almost on all occasions appeal is listed for
admission and since 2013 itself either
illness slip is sent or no one is present for
the appellant. Accordingly, as observed in
the order dated 9.5.2022, we proceed to
consider the appeal on merits with the
assistance of learned AGA.

3. Present Criminal Appeal under
Section 372 Cr.P.C. has been filed against
the judgement and order dated 11.9.2013
passed by the Additional District &
Sessions Judge, Court No. 3, District
Pilibhit in Sessions Trial No. 492 of 2013
(State vs. Mukesh Singh), arising out of
Case Crime No. 201 of 2012, under
Sections 376/511, 506 IPC, PS Sehra Mau,
North District Pilibhit.

4. Prosecution story, in brief, on
20.6.2012 minor daughter Sandhya Devi
aged about 11 years of the informant
Anand Pal Singh was taken away by Seema
(wife of the accused Mukesh) at her
residence and thereafter she went to
answers nature's call. In between accused
Mukesh had taken her under the chappar
(shed) by threatening her to kill her and
raped her. Thereafter, the victim told her
mother about strangulation and she was
treated in the government hospital and
when she did not get well, she told her
mother about the commission of rape by
accused Mukesh. Thereafter, her mother
went to police station on 24.6.2012 and
gave a written report for taking proper
action against the accused. On that basis, a
first information report being Case Crime
No. 201 of 2012 was lodged on 24.6.2012
under Section 376, 506 IPC

5. In support of prosecution case, PW1 Anagpal Singh (informant), PW-2 Uma
Baksh, PW-3 Surendra Singh, PW-4 Km.
Sandhya Devi, PW-5 Smt. Bitto Devi, PW6 SI Rajendra Singh, PW-7 Dr. Anjali
singh were produced and examined before
the Court below. Medical report of the
victim is Exhibit Ka-8. The Pathologist
Report dated 25.3.2012 is also on record.

6. The judgement of acquittal was
passed on the ground that the prosecution
version has not been supported either by the
oral evidence or by the medical report. As per
prosecution case, the victim aged about 11
years old was taken by the wife of Mukesh
Singh (accused respondent herein) to her
residence and when she had gone out to
answer the nature's call, the accused
respondent Mukesh Singh committed rape on
8 All. Anang Pal Singh Vs. State of U.P. & Ors.
713
her. It was found that this story does not
inspire confidence, as according to the
medical
report
external
and
internal
examination of the victim does not prove that
any rape was committed on her. She was
admittedly found minor aged about 12 years
and was not having monthly cycle and her
physique was not developed and there was no
injury either external or internal on private
parts and even the hymen was not torn and
the finger test (as permissible at that time)
also did not prove that rape has been
committed or not. It was found that the
allegation is that she was taken away by wife
of the accused Mukesh on 20.6.2012,
however, first information report was lodged
after unexplained long delay of four days on
24.6.2012. It was also found that in her
statement the victim herself had not
supported the prosecution version and had
submitted that she was being strangulated by
accused Mukesh, therefore, she had levelled
the allegation of rape against him. It was
further found that she had admitted that she
gave the statement as told by her mother. It
was also found that there was a land dispute
between the informant Anand Pal Singh and
the accused Mukesh and they were not on
even
talking
terms.
Under
such
circumstances, it was found that the
prosecution has failed to prove its case and
judgement of acquittal was passed.

7. We have perused the record with the
help of learned AGA.

8. In the memo of appeal, grounds to
challenge the impugned judgement are that a
too narrow and technical interpretation of the
evidence has been taken and the same suffers
from non-application of mind.

9. Before proceeding further, it would
be appropriate to take note of law on the
appeal against acquittal.

10. 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"

11. 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
714 INDIAN LAW REPORTS ALLAHABAD SERIES
re-appreciate the evidence, including in an
appeal against acquittal and arrive at a
different firm finding of fact."

12. 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. S. Rami Reddy (D) by his
LRs. & Ors. AIR 2008 SC 2066; Arulvelu
& Anr. Vs. State (2009) 10 SCC 206; Perla
Somasekhara Reddy & Ors. v. State of A.P.
(2009) 16 SCC 98; and Ram Singh alias
Chhaju v. State of Himachal Pradesh
(2010) 2 SCC 445).

13. In Sheo Swarup and Ors.
King Emperor AIR 1934 PC 227, the Privy
Council observed as under:

"...the High Court should and will
always
give
proper
weight
and
consideration to such matters as (1) the
views of the trial Judge as to the credibility
of the witnesses, (2) the presumption of
innocence in favour of the accused, a
presumption certainly not weakened by the
fact that he has been acquitted at his trial,
(3) the right of the accused to the benefit of
any doubt, and (4) the slowness of an
appellate court in disturbing a finding of
fact arrived at by a Judge who had the
advantage of seeing the witnesses...."

14. The aforesaid principle of law
has consistently been followed by this
Court. (See: Tulsiram Kanu v. The State
AIR 1954 SC 1; Balbir Singh v. State of
8 All. Anang Pal Singh Vs. State of U.P. & Ors.
715
Punjab AIR 1957 SC 216; M.G. Agarwal v.
State of Maharashtra AIR 1963 SC 200;
Khedu Mohton & Ors. v. State of Bihar AIR
1970 SC 66; Sambasivan and Ors. State of
Kerala (1998) 5 SCC 412; Bhagwan Singh
and Ors. v. State of M.P. (2002) 4 SCC 85;
and State of Goa v. Sanjay Thakran and
Anr. (2007) 3 SCC 755).

15. In Chandrappa and Ors. v.
State of Karnataka (2007) 4 SCC 415, this
Court reiterated the legal position as
under:

"(1) An appellate court has full
power
to
review,
re-appreciate
and
reconsider the evidence upon which the
order of acquittal is founded.

(2)
The
Code
of
Criminal
Procedure,
1973
puts
no
limitation,
restriction or condition on exercise of such
power and an appellate court on the
evidence before it may reach its own
conclusion, both on questions of fact and of
law.

(3) Various expressions, such as,
"substantial and compelling reasons",
"good and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere
with acquittal than to curtail the power of
the court to review the evidence and to
come to its own conclusion.

(4) An appellate court, however,
must bear in mind that in case of acquittal,
there is double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is 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."

16. In Ghurey Lal v. State of
Uttar Pradesh (2008) 10 SCC 450, this
Court re-iterated the said view, observing
that the appellate court in dealing with the
cases in which the trial courts have
acquitted the accused, should bear in mind
that the trial court's acquittal bolsters the
presumption that he is innocent. The
appellate court must give due weight and
consideration to the decision of the trial
court as the trial court had the distinct
advantage of watching the demeanour of
the witnesses, and was in a better position
to evaluate the credibility of the witnesses.

17. In State of Rajasthan v.
Naresh @ Ram Naresh (2009) 9 SCC 368,
the Court again examined the earlier
judgments of this Court and laid down that
an "order of acquittal should not be lightly
interfered with even if the court believes
that there is some evidence pointing out the
finger towards the accused."

18. In State of Uttar Pradesh v.
Banne alias Baijnath & Ors. (2009) 4 SCC
271, this Court gave certain illustrative
circumstances in which the Court would be
justified in interfering with a judgment of
716 INDIAN LAW REPORTS ALLAHABAD SERIES
acquittal
by
the
High
Court.
The
circumstances includes:

i) The High Court's decision is
based on totally erroneous view of law by
ignoring the settled legal position;

ii) The High Court's conclusions
are contrary to evidence and documents on
record;

iii) The entire approach of the
High Court in dealing with the evidence
was patently illegal leading to grave
miscarriage of justice;

iv) The High Court's judgment is
manifestly unjust and unreasonable based
on erroneous law and facts on the record of
the case;

v) This Court must always give
proper weight and consideration to the
findings of the High Court;

vi) This Court would be extremely
reluctant in interfering with a case when
both the Sessions Court and the High Court
have recorded an order of acquittal.

A
similar
view
has
been
reiterated by this Court in Dhanapal v.
State by Public Prosecutor, Madras (2009)
10 SCC 401.

19. Thus, the law on the issue can
be summarised to the effect that in
exceptional
cases
where
there
are
compelling
circumstances,
and
the
judgment under appeal is found to be
perverse, the appellate court can interfere
with the order of acquittal. The appellate
court should bear in mind the presumption
of innocence of the accused and further
that the trial Court's acquittal bolsters the
presumption of his innocence. Interference
in a routine manner where the other view is
possible should be avoided, unless there
are good reasons for interference."

11. Hon'ble Apex Court in the
case of Ramesh Babulal Doshi vs. State of
Gujarat (1996) 9 SCC 225 : 1996 SCC
(Cri) 972 has observed that while deciding
appeal against acquittal, the High Court
has to first record its conclusion on the
question whether the approach of the trial
court dealing with the evidence was
patently illegal or conclusion arrived by it
is wholly untenable which alone will justify
interference in an order of acquittal.

12. The aforesaid judgments were
taken note of with approval by Supreme
Court in the case of Anwar Ali and another
vs. State of Himachal Pradesh (2020) 10
SCC 166, Nagabhushan vs. State of
Karnataka (2021) 5 SCC 222, and Babu
(supra) in Achhar Singh vs. State of
Himachal Pradesh (2021) 5 SCC 543."

13. Similar view has been reiterated
by Hon'ble Apex Court in Rajesh Prasad
vs. State of Bihar and another, (2022) 3
SCC 471.

14. On perusal of record, we find that
the victim herself has not supported the
prosecution version and has stated that she
was taken to the police station on the same
day and was also examined in the hospital
on the same day. She further admitted that
the land dispute is going on between her
father and the accused Mukesh and they
were not in talking terms and did not visit
each other whereas prosecution version is
that the wife of accused Mukesh had taken
the victim to her residence, which is not at
all convincing. Moreover, in the first
information report the time when she was
8 All. Anang Pal Singh Vs. State of U.P. & Ors.
717
taken away by her has not been mentioned,
however, in the statement recorded under
Section 161 Cr.P.C. the informant Anand
Pal Singh had stated that the victim was
taken by Seema, wife of the accused
Mukesh at 4:00 o'clock, however, whether
it is AM or PM has not been mentioned. On
the other hand, in the cross-examination the
victim had stated that she came back to her
house from the house of accused Mukeh at
about 7-8 AM and thereafter during day
time she was taken to the police station by
her
parents
and was
got
medically
examined. It is not at all indisputable as to
why so early in the morning at 4:00 o'clock
even before day broke, how wife of
accused had taken the victim to her
residence and why and how the informant
and mother of the victim had permitted the
same, that too, when they were not on even
talking terms. In her cross-examination, she
had stated that she was wearing underwear
and frock at the time of incident and she
was wearing the same clothes when she
was taken to the police station as well as to
the hospital, however, the informant stated
that she was wearing Salwar Suit on which
he had seen blood but such clothes were
not produced or recovered. The victim had
further stated that her mother had told the
meaning of rape and whatever she had
sated her mother, had told her to state. In
other words, whatever statement was made
by her before the Court below was tutored
by her mother. PW-5 Bitto Devi (wife of
the informant) in her statement had stated
that after return for 2-3 days the victim
never disclosed about the commission of
offence of rape on her. Formal witness PW6 Sub-Inspector Rajendra Singh had stated
that the informant told him that the clothes
worn by the victim at the time of alleged
rape had been washed as his daughter never
disclosed about the commission of rape on
her. He further stated that although he had
asked for recording of statement of the
victim under Section 164 Cr.P.C., however,
the family members of the victim had
refused to get the same done.

15. Relevant extract of Medical
Examination Report (Exhibit Ka-8) of the
victim conducted by Dr. Anjali Singh on
25.6.2012 at 9:35 am at District Hospital,
Pilibhit is mentioned below:

"External
Examination:-
No
marks of injury present on any part of body.
Ht= 134 cm, Wt= 25 kg, Teeth= 14/14.
Breast are not fully developed (are small in
size), Axillary and pubic hairs absent.
Menasure has not yet started.

Internal Examination:- No marks
of injury present on the private parts. Hymen
intact. Vagina does not admits even the little
finger. No conjestion, no edema, no
tenderness. No BPV at the time of
examination. Two vaginal smear prepared,
sealed and send to the pathologist of Distt
Hospital Pilibhit for examination of dead and
alive spermatozoa."

16. PW-7 Dr. Anjali Singh, Medical
Officer, Zila Mahila Chikitshalya had
supported the medical report and in her crossexamination she clearly stated that there was
no injury whatsoever on the body of the
victim and on the internal examination also
she did not find any swelling, pain and redish
or injury and her hymen was intact and even
the little finger was not entering into. She had
also certified that the victim was aged about
12 years. The Pathologist Report dated
25.3.2012 is also to the effect that no living or
dead spermatozoa were found in the test slide
of the victim.

17. In this background, we find that
admittedly there was a delayed FIR (four
718 INDIAN LAW REPORTS ALLAHABAD SERIES
days) and no convincing explanation was
given for the same and and correct picture
about information of commission of rape
on the victim given to the parents has also
not come forward as the mother in her
statement stated that the victim had
informed about commission of rape after 23 days whereas as per victim she was taken
to the police station and hospital on the
same day (i.e. 20.6.2012) for medical
examination whereas admittedly the first
information report was lodged after four
days and this delay has not been explained
properly so as to generate confidence
regarding cause of delay in lodging the
FIR. From the evidence available on
record, it is clear that the victim was minor
and in case had there being any rape
committed on her she must have suffered
some kind of injury on her body
particularly oh her private parts whereas
there was no such injury, which was
categorically proved by the doctor who has
conducted
the
medical
examination,
coupled with the fact that there is evidence
of enmity between the parties due to the
land dispute (situated in front of the home
of the information). In such view of the
matter, we find that a correct view has been
taken by the court below, which does not
require any interference by this Court by
taking a different view.

18. Accordingly, present criminal
appeal stands dismissed at the admission
stage itself.

Re: Criminal Misc. Application
(Leave to Appeal)

1. As already held by this Court
in number of cases that leave application
filed under Section 378(3) Cr.P.C. is not
required in the appeal filed by the victim
under Section 372 Cr.P.C. like the present
appeal. A reference may be made to the
order dated 4.8.2021 passed in Criminal
Appeal U/S 372 Cr.P.C. No. 123 of 2021
(Rita Devi vs. State of U.P. and another).
As such, the application for leave to appeal
stands rejected as not maintainable and / or
not required.

2. Since the office has already
allotted regular number, there is no need to
allot fresh regular number.
----------
(2022) 8 ILRA 718
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.08.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No.1597 of 2022

Alam @ Mohammad Alam ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
Sri Amarjeet Singh Rakhra

Counsel for the Opposite Parties:
Sri Umesh Channdra Verma, A.G.A.

Criminal
Law-
National
Investigation
Agency Act, 2008- Section 21- Bail - No
incriminating article has been found and
no such material could be detected from
the mobile phone of the appellant as to
show his association with the terrorist or
terrorist activities- The grave offence
under Section 124-A of I.P.C. is there in
chargesheet but the Hon'ble Supreme
Court has put the effect of Section 124-A
I.P.C.
in
abeyance
in
the
case
of
S.G.Vombatkere Vs Union of India, Writ
Petition (C) No.682/2021. The only
evidence against the appellant which has
been shown at this stage i.e. after filing of