# Ashok Kumar Pandey / v. State of U.P. & Ors. 1038 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2019) 2 ILRA 1037
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-12
- **Case number:** Criminal Appeal (Against Acquittal) (u/s 378(4) of Cr.P.C.) No. 116 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-pandey-v-state-of-u-p-ors-1038-indian-law-reports-allahabad-series-44549
- **Pages:** 4

## Headnote

A. Indian Penal Code, 1860 - Sections147,
148, 323/149, 325/149, 504, 506(2), 307,
452 -Application-grant of leave to file
Criminal Appeal-rejection- In cross-case,
there occurred conviction against which
Criminal Appeal, has been instituted and is
pending- Therein, Ashok Kumar Pandey
side
was
held
aggressor,
who
had
committed above offences and Shitla
Prasad Pandey side was held to be victim
of that aggression -There is no perversity
or illegality in passing of the present
impugned judgment of acquittal-Moreso,
the conduct of Ashok Kumar Pandey
regarding having an X-ray and plaster,
without there being any fracture over his
person, reveals the way in which this case
was concocted. (Para 4, 6 & 7)

Criminal Appeal Rejected (E-6)

## Text

2 All. Ashok Kumar Pandey Vs State of U.P. & Ors.
1037
him to succession of property is definitely not a
dispute arising out of a matrimonial relationship.

11. The Supreme in Samar Kumar
Roy vs. Jharna Bera, (2017) 9 SCC 591,
considered the issue as to whether declaration
sought by plaintiff that defendant is not his
legally wedded wife and that she has no right
to his property could be given by civil court or
the suit has to be instituted before the Family
Court, in view of the Sections 7 and 8 of the
Act. After considering the reports of Law
Commission, scheme of the Act, and Section
34 of the Specific Relief Act, the Supreme
Court held that:-

"16. On a reading of the aforesaid
propositions, it is clear that the examination of
the remedies provided and the scheme of the
Hindu Marriage Act and of the Special
Marriage Act show that the statute creates
special rights or liabilities and provides for
determination of rights relating to marriage.
The Acts do not lay down that all questions
relating to the said rights and liabilities shall be
determined only by the Tribunals which are
constituted under the said Act. Section 8(a) of
the Family Courts Act excludes the Civil
Court's jurisdiction in respect of a suit or
proceeding which is between the parties and
filed under the Hindu Marriage Act or Special
Marriage Act, where the suit is to annul or
dissolve a marriage, or is for restitution of
conjugal rights or judicial separation. It does
not purport to bar the jurisdiction of the Civil
Court if a suit is filed under Section 34 of the
Specific Relief Act for a declaration as to the
legal character of an alleged marriage. Also as
was pointed out, an exclusion of the jurisdiction
of the civil courts is not readily inferred. Given
the line of judgments referred to by the High
Courts, and given the fact that a suit for
declaration as to legal character which
includes the matrimonial status of parties to a
marriage when it comes to a marriage which
allegedly has never taken place either de jure
or de facto, it is clear that the civil court's
jurisdiction to determine the aforesaid legal
character is not barred either expressly or
impliedly by any law."

12. Applying the principles laid
down by the Supreme Court and having
regard to the scheme of the Act, the
irresistible conclusion is that the view
taken by the Appellate Court is not
sustainable in law.

13. The issue as to whether defendant
No.3 is son of Bhairam or Vishwanath would
not fall within the realm of the jurisdiction of
Family Courts, which are courts of limited
jurisdiction. The relief sought would fall under
the ambit of Section 34 of the Specific Relief
Act, well within the domain of ordinary civil
courts. The impugned judgment passed by the
appellate court is accordingly set aside. The
matter is remitted to the appellate court for
deciding the appeal afresh based on its merits in
light of the observations made above.

14. As a result, the petition succeeds
in part. No order as to costs
----------

(2019)10ILR A 1037

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal (Against Acquittal) (u/s 378(4)
of Cr.P.C.) No. 116 of 2019

Ashok Kumar Pandey
 ...Appellant/Complainant
Versus
State of U.P. & Ors. ...Opposite Parties
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Viresh Misra, Sri Amit Misra, Sri
Sandeep Kumar Dubey

Counsel for the Opposite Party:
G.A.

A. Indian Penal Code, 1860 - Sections147,
148, 323/149, 325/149, 504, 506(2), 307,
452 -Application-grant of leave to file
Criminal Appeal-rejection- In cross-case,
there occurred conviction against which
Criminal Appeal, has been instituted and is
pending- Therein, Ashok Kumar Pandey
side
was
held
aggressor,
who
had
committed above offences and Shitla
Prasad Pandey side was held to be victim
of that aggression -There is no perversity
or illegality in passing of the present
impugned judgment of acquittal-Moreso,
the conduct of Ashok Kumar Pandey
regarding having an X-ray and plaster,
without there being any fracture over his
person, reveals the way in which this case
was concocted. (Para 4, 6 & 7)

Criminal Appeal Rejected (E-6)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

Order on Application to Grant
Leave for Filing Criminal Appeal

1. This Criminal Appeal, under
Section 378 (4) of Criminal Procedure
Code , read with Section 372 of Cr.P.C.,
alongwith Application to Grant Leave for
Filing appeal, has been filed by Ashok
Kumar Pandey against State of U.P. and
six others, challenging the judgment of
acquittal, passed by the Additional
Sessions judge, Court No.14, Varanasi, in
Sessions Trial No. 363 of 2017, Ashok
Kumar Pandey vs. Shitla Prasad Pandey
and 5 others, under Section 147, 148,
323/149, 325/149, 504, and 506(2) of
Indian Penal Code (in short IPC), Police
Station-Rohaniya, District Varanasi.

2. Learned counsel for the applicant
argued that the trial court passed the
impugned judgment of acquittal, on the
basis of incorrect appreciation of facts and
evidence placed on record. Testimony of
informant PW-1 was fully intact and
supported with medical evidence in which
medico legal report as well as X-ray
report was in full tune with injury of
fracture over phalanges, reported, proved
by the medical evidence, which stood
corroborated by two independent witness,
who have proved case of prosecution, but
trial court passed judgment of conviction
in cross case in which present applicant
side has been convicted; against which
Criminal Appeal, being Criminal Appeal
No.4930 of 2019, Ashok Kumar Pandey
vs. State of U.P., has been admitted and
record of the case has been summoned,
vide order, dated 30.07.2019, wherein
judgment of conviction, in Sessions Trial
No. 392 of 2003, for offence, punishable,
under Sections 307 and 452 of IPC, Case
Crime No. 224 of 2002, of Police Station
Rohaniya, District Varanasi, has been
passed. Hence, leave to file this Criminal
Appeal be granted and this Criminal
Appeal be also connected with above
Criminal Appeal for its disposal.

3. From very perusal of the
impugned judgment and contentions made
in this Application as well as affidavit,
filed in support of the Application, it is
apparent that the pendency of the cross
case for occurrence of same date, time
and place, in between the same parties,
was undisputed fact and both of the
Sessions Trial were held as cross cases in
which one case ended in conviction
wherein present applicant and others were
2 All. Ashok Kumar Pandey Vs State of U.P. & Ors.
1039
held aggressor and convicted against
which Criminal Appeal was admitted and
is pending. In this case, judgment of
acquittal is there.

4.

Occurrence,
injuries
of
complainant side, cause of those injuries,
were given by accused persons in their
statement recorded, under Section 313 of
Cr.P.C. and it was the same contention,
which was a case of prosecution in crosscase. Meaning thereby, injury over the
person of Ashok Kumar Pandey was not
disputed, but it was said to be caused by
exercise of right of private defence by
accused persons, when this assault was
made by Ashok Kumar Pandey and his
family members, at the time of dispute,
which occurred, while depositing sand
over the pathway, which was protested by
Shitla Prasad Pandey and his family
members, but was resisted by Ashok
Kumar Pandey and his family members,
which resulted in this occurrence, in
which a fire arm shot, with intention to
kill, was extended, and a case crime
number, for offence of attempt to culpable
homicide,
amounting
to
murder,
punishable under Section 307, coupled
with Section 452 of IPC was got
registered against Ashok Kumar Pandey
and his family members. Those case
crime numbers were investigated, which
resulted in submission of chargesheet,
over which cognizance was taken and
cross-cases were held in trial.

5. In cross-case, there occurred
conviction
against
which
Criminal
Appeal, as above, has been instituted and
is pending. Therein, Ashok Kumar
Pandey side was held aggressor, who had
committed above offences and Shitla
Prasad Pandey side was held to be victim
of that aggression.

6. One very important fact, which
needs to be mentioned, is the testimony of
Medical Officer of Jail where Ashok Kumar
Pandey was admitted. Wherein this has
specifically been mentioned that there was
no fracture over the body part, which was put
under plaster by the Medical officer of
Government Hospital at Varanasi. This was
suspected by the Medical officer and,
ultimately, he made a report and got the same
examined by a team of specialist and it was
found that it was a false injury, i.e., Ashok
Kumar Pandey, who got this criminal case
initiated, by way of an application moved,
under Section 156 (3) of Cr.P.C., which,
subsequently, stood converted to be a
complaint case, was with no injury of
fracture over his person at the place, which
was put under plaster and it was found by the
team of Specialists that there was no such
injury and it was proved on record. This was
a fact of present case and under all above
perspective of law and fact as well as
evidences, proved before trial court, this
judgment of acquittal was passed. There was
a judgment of conviction against Ashok
Kumar Pandey and his allies.

7. There is no perversity or illegality
in passing of the present impugned
judgment. Moreso, this conduct of Ashok
Kumar Pandey regarding having an X-ray
and plaster, without there being any
fracture over his person, reveals the way
in which this case was concocted. Hence,
there remains no ground for grant of leave
to file proposed Criminal Appeal against
the judgment impugned.

8. In view of what has been
discussed above, Application for Grant of
Leave to File Criminal Appeal lacks merit
and,
therefore,
stands
rejected
accordingly.
----------
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)10ILR A 1040

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2019

BEFORE

THE HON'BLE MOHD. NAHEED ARA
MOONIS, J.
THE HON'BLE ANIL KUMAR-IX, J.

Crl. Misc. Application (Leave To Appeal)
(Defective) No. 58 of 2018

Salil Kumar Verma
 ...First Informant/Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Jai Nath Patel

Counsel for the Opposite Parties:
G.A., Sri Apul Misra, Sri Nrapendra Kumar
Chaturvedi, Sri Upendra Kumar Pandey

A. Code of Criminal Procedure, 1973:-
Section 372 - Appeal against acquittal -
complainant has preferred the instant
appeal after lapse of more than 14 years -
When the judgment of acquittal was
pronounced, the proviso of Section 372
Cr.P.C. was not in existence. It was
incorporated by the legislature only on
31.12.2009 giving right to victim to prefer
an appeal against the acquittal of the
accused or conviction for a lesser offence or
imposing inadequate punishment - Since
the amendment has come into force on
31.12.2009,
it
cannot
have
any
retrospective effect to allow the victim to
prefer the appeal against acquittal which
was passed by learned trial court against
the accused respondents by order dated
21.10.2004. (Para 6, 9, 11, 12 & 13)

Crl. Misc. Application (Leave to Appeal)
dismissed (E-6)

Precedent followed: -
1. Mallikarjun Kodagali (Dead) through L.R. Vs
St. of Kar. & ors. (2018) 2 S.C.Cr.R. 1310.

(Delivered by Hon'ble Naheed Ara
Moonis, J. & Hon'ble Anil Kumar-IX, J.)

1. No one is present on behalf of
appellant to address the Court, however,
Shri Nripendra Kumar Chaturvedi and
Shri Apul Misra learned counsel for
complainant are present on behalf of the
opposite parties.

2. On the last occasion this Court
has passed the following order which is
being reproduced hereunder:-

"No one is present on behalf of
the appellant, even case is called out in
the revised list.

Sri
Nrapendra
Kumar
Chaturvedi as well as Sri Apul Misra are
present on behalf of the opposite parties.

Pursuant to the order dated
31.05.2018 the notice was issued to the
opposite party to file objection to the
delay condonation application.

Learned counsel appearing for
the accused/respondents submits that he has
prepared the counter affidavit to the delay
condonation application filed on behalf of
the appellant in respect of inordinate delay
of about 14 years in filing the appeal. The
appellant's counsel is seeking adjournment
on one pretext or the other as such he has
not been able to contact him to serve the
copy of the objection.

Considering
the
submission
advanced by learned counsel for the opposite
party and perused the order sheet, it transpires
that learned counsel for the appellant is
seeking adjournment on one round or the other
as such we are taking on record the counter
affidavit filed by learned counsel appearing on
behalf
of
opposite
party.