# Shiv Mohan Shilpkar v. State of U.P. & Anr

- **Citation:** (2024) 8 ILRA 69
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-08
- **Case number:** Criminal Appeal U/S 372 CR.P.C. No. 1251 of 2022
- **Bench:** Ashwani Kumar Mishra, Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-mohan-shilpkar-v-state-of-u-p-anr-52429
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 164 & 372 - Indian Penal
Code,1860 - Sections 376 & 511 -
Protection
of
Children
From
Sexual
Offence Act, 2012- Sections 3 & 4: -
Appeals - against acquittal - offence of attempt
to Rape - victim aged about 6 years - FIR -
charge-sheet - trial court finds that - victim was
examined medically but no external or internal
injuries were found - no spermatozoa is seen in
vaginal slides - hymen is also intact - in her
St.ment
made
before
court
victim
said
whatsoever which was told to her by her father
-court finds that - major contradictions in the
version of the victim viz-a-viz her father as well
as material improvements in her version from
what was St.d earlier u/s 164 Cr.P.C. also remain
unexplained - and neither any triable issue is
raised before us in these appeals nor any
perversity is shown, which may persuade this
court to interfere in these appeals - court in
agreement with the view of trial court that the
prosecution has failed to established its case
beyond reasonable doubt - held, view taken by
the court below is clearly a permissible view and
just because a different view could be taken
would ordinarily not be a ground for this court
to interfere with the order of acquittal - hence,
there is no occasion for this court to interfere
70 INDIAN LAW REPORTS ALLAHABAD SERIES
with the judgment of acquittal passed by the
court below - consequently, appeal lacks merits
and appeals are dismissed. (Para - 15, 19, 20,
21, 22)

Appeals are dismissed. (E-11)

List of Cases cited:

Viram @ Virma Vs The St. of M.P. (2022 vol. 1
SCC 341),

## Text

8 All. Shiv Mohan Shilpkar Vs. State of U.P. & Anr.
69
किया जाता है एिं दाण्डिक िाद सं० 01 सन
2018
में
विशेष
न्यायाधीश
(एस०सी०/एस०टी० ऐक्ट) मेरठ दिारा पाररत
ननर्गय दद० 20-11-2020, ण्जसके दिारा
अपीलार्थी/अभभयुक्त अंककत पूननया को धारा
302 भा०दं०वि० के अपराध में आजीिन
कारािास एिं रू0 25,000/- अर्थगदडि से तर्था
अर्थगदडि अदा न करने पर 3 माह के अनतररक्त
कारािास के दडि से दण्डित ककया र्या है.
धारा 376/511 ना०दं०वि० के अपराध में 7 िषग
के कारािास एिं रू0 10,000/- अर्थगदडि से एिं
अर्थगदडि अदा न करने पर 3 माह के अनतररक्त
कारािास के दडि से दण्डित ककया र्या है तर्था
धारा 458 भा०दं०वि० के अपराध में 7 िषग का
कारािास एिं रू० 10,000/- अर्थगदडि से एिं
अर्थगदडि अदा न करने पर 3 माह के अनतररक्त
कारािास के दडि से दण्डित ककया र्या है. को
अपास्त ककया जाता है।

22- तद्‌नुसार संबंचधत न्यायालय को
ननदेभशत
ककया
जाता
है
कक
अपीलार्थी/अभभयुक्त
अंककत
पूननया
को
कारार्ार से ननयमानुसार मुक्त कर ददया जाय।

23- कायागलय को ननदेश ददया जाता है कक
वििारर् न्यायालय का अभभलेख िापस भेज
ददया जाय तर्था इस आदेश की एक प्रनतभलवप
संबंचधत अिर न्यायालय को अनुपालन हेतु
तुरंत भेजना सुननण्कित ककया जाय।
----------
(2024) 8 ILRA 69
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal U/S 372 CR.P.C. No. 1251 of
2022
With
Government Appeal Defective No. 60 of 2022

Shiv Mohan Shilpkar ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Daya Shankar

Counsel for the Respondents:
G.A., Sri Jyoti Bushan

Criminal Law - Criminal Procedure Code,
1973 - Sections 164 & 372 - Indian Penal
Code,1860 - Sections 376 & 511 -
Protection
of
Children
From
Sexual
Offence Act, 2012- Sections 3 & 4: -
Appeals - against acquittal - offence of attempt
to Rape - victim aged about 6 years - FIR -
charge-sheet - trial court finds that - victim was
examined medically but no external or internal
injuries were found - no spermatozoa is seen in
vaginal slides - hymen is also intact - in her
St.ment
made
before
court
victim
said
whatsoever which was told to her by her father
-court finds that - major contradictions in the
version of the victim viz-a-viz her father as well
as material improvements in her version from
what was St.d earlier u/s 164 Cr.P.C. also remain
unexplained - and neither any triable issue is
raised before us in these appeals nor any
perversity is shown, which may persuade this
court to interfere in these appeals - court in
agreement with the view of trial court that the
prosecution has failed to established its case
beyond reasonable doubt - held, view taken by
the court below is clearly a permissible view and
just because a different view could be taken
would ordinarily not be a ground for this court
to interfere with the order of acquittal - hence,
there is no occasion for this court to interfere
70 INDIAN LAW REPORTS ALLAHABAD SERIES
with the judgment of acquittal passed by the
court below - consequently, appeal lacks merits
and appeals are dismissed. (Para - 15, 19, 20,
21, 22)

Appeals are dismissed. (E-11)

List of Cases cited:

Viram @ Virma Vs The St. of M.P. (2022 vol. 1
SCC 341),

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Dr. Gautam Chowdhary, J.)

1. Heard Sri Daya Shankar, learned
counsel for the appellant-informant, Sri
Jyoti Bhushan, learned counsel for the
accused appellant and learned AGA for the
State.

2. Delay in filing the government
appeal is explained to the satisfaction of the
Court. Delay is, accordingly, condoned.
Application for condonation of delay stands
allowed.

3. These appeals are by the informant
as well as the State challenging the
judgment of acquittal dated 26.5.2022,
passed by the court below in Special
Sessions Trial No.23 of 2014 (State Vs.
Praveen Kumar Yadav), arising out of Case
Crime No.07 of 2014, under Sections 376,
511 IPC and Section 3/4 POCSO Act,
Police
Station
Jahanaganj,
District
Azamgarh.

4. The informant in the present case
has made a written report stating that he is
a resident of Village Sukhpur Police
Station Jiyanpur, District Azamgarh. He
had returned on 20.1.2014 from his in-laws
place at Jahanaganj in the evening. At
about
9.00
PM
when
the
victim
(informant's daughter) aged six years had
gone to offer tea to the driver, the driver
attempted rape on her. The daughter
informed this fact to her mother. With these
allegations the FIR came to be registered as
Case Crime No.07 of 2014 under Section
376, 511 IPC. The statement of the victim
was recorded on 31.1.2014 in which she
has claimed that her father asked her to
give tea to the driver. When the victim
offered tea the accused asked her to kiss
her and when she refused the accused
started beating her. On her screaming
victim's father came and rescued her. The
victim has been medically examined in
which no external or internal injuries have
been found on the victim. It has also come
in
the
pathological
report
that
no
spermatozoa is seen in the vaginal slides.
The hymen of the victim was also found
intact. The age of the victim has been found
to be seven years. It is thereafter that the
charge-sheet was submitted in the matter
and ultimately trial commenced when the
accused denied the charges framed against
him by the Court.

5. The informant has appeared as PW1 and has supported the prosecution case.
He has alleged that the accused was his
driver for the last about one year. He has
denied the suggestion that there was a
dispute between him and the driver on
account of non-payment of his salary. He
has admitted that knowledge of this
incident was received by him from is wife.

6. The victim has been produced as
PW-2. She has although alleged that after
she refused to accept the request of the
accused to kiss her the accused gagged her
mouth and thereafter started 'intercourse'.
The victim moreover stated that she does
not
understand
meaning
of
word
8 All. Shiv Mohan Shilpkar Vs. State of U.P. & Anr.
71
'intercourse'. She further stated that she
said before the Court what was told to her
by her father.

7. PW-3 and PW-4 are formal police
witnesses and not much turn on their
testimony.

8. PW-5 is Dr. Madhu Yadav, who
had examined the victim. She has proved
the medical report in which no spermatozoa
was found on the vaginal smear of the
victim and victim's hymen was found fully
intact. The doctor has opined that there was
no signs of rape on the victim. No external
or internal injuries are found on the victim.

9. The material produced in evidence,
by the prosecution, were confronted to the
accused, who stated that he has been falsely
implicated.

10. Trial court on the basis of
aforesaid evidence has come to the
conclusion that the prosecution has failed
to prove its case beyond reasonable doubt.

11. Challenging the judgement of
acquittal, learned counsel for the informant
as well as learned AGA submits that as the
victim
is
aged
six
years
some
inconsistencies in her version ought to be
ignored. It is also argued that minor
contradictions in the testimony of witnesses
are liable to be ignored, particulary when
victim is a six year old girl. Learned
counsel for the informant further argues
that the judgment of acquittal, in such
circumstances, ought not to be sustained.

12. Learned counsel appearing for the
accused appellant, however, submits that
the
evidence
has
been
appropriately
evaluated by the Court of Sessions and it
has rightly come to the conclusion that
prosecution has failed to establish its case
beyond reasonable doubt. He further argues
that just because the victim is a minor it
would not mean that accused has to be
convicted even if there is no convincing
evidence to implicate him.

13. We have heard learned counsel
for the parties and have perused the
materials on record including the trial court
record and the judgment of acquittal.

14. Facts relating to the present case
has already been noticed above and need
not be repeated.

15. First and foremost it is to be
noticed that the victim in her statement
under Section 164 Cr.P.C. has stated that
she had gone to deliver tea to the accused
on the instructions of her father. It is also
the version of the victim that the accused
asked her to kiss her and when she refused
the accused started assaulting him. The
victim has also stated that when she
screamed her father came and rescued. This
part of the testimony of the victim nowhere
alleges that any attempt was made to rape
her. Moreover we have examined the
testimony of the victim and do not find it
convincing and reliable as it is the admitted
case of the prosecution that the father of the
victim was not present when the incident
occurred. Once that be so, it is difficult to
conceive as to how the father could have
come to the victim's rescue on hearing her
scream. The father in his statement has
categorically admitted that he was not even
present and it was only when he received
information from his wife that he arrived at
the place of occurrence. The other
contradictions which have been noticed by
the Court of Sessions for acquitting the
accused is the fact that there is a material
improvement in the version of the victim at
72 INDIAN LAW REPORTS ALLAHABAD SERIES
the stage of trial viz-a-viz her previous
statement under Section 164 Cr.P.C. In the
statement of the victim made before the
Court the victim alleges that she was raped,
while
in
her
statement
before
the
Magistrate no such claim was made. The
victim has though alleged that accused
committed intercourse with her but has
admitted that she does not know what is
meant by intercourse. The victim has also
categorically stated that her statement is
based on the instructions of her father. The
version of the victim regarding committing
of rape upon her is thus a clear
improvement from what was stated by her
in her statement under Section 164 Cr.P.C.
The medical evidence otherwise shows no
external or internal injuries on the victim
and the hymen of the victim was found
intact.

16. In the facts of the case, we are of
the opinion that the specific case of the
eye-witnesses is completely belied by the
medical evidence on record. In our opinion,
the material contradiction in the medical
evidence viz-a-viz the eye-witness account
clearly creates a doubt on the prosecution
case.

17. Hon'ble Supreme Court has dealt
with a similar issue in Viram @ Virma Vs.
The State of Madhya Pradesh, reported in
(2022) 1 SCC 341, wherein in Para 13, the
Court has observed as under:-

"13. The oral evidence discloses
that there was an indiscriminate attack by
the accused on the deceased and the other
injured eye-witnesses. As found by the
Courts below, there is a contradiction
between the oral testimony of the witnesses
and the medical evidence. In Amar Singh v.
State of Punjab (supra), this Court
examined
the
point
relating
to
inconsistencies between the oral evidence
and the medical opinion. The medical
report submitted therein established that
there were only contusions, abrasions and
fractures, but there was no incised wound
on the left knee of the deceased as alleged
by a witness. Therefore, the evidence of the
witness was found to be totally inconsistent
with the medical evidence and that would
be sufficient to discredit the entire
prosecution case."

18. We have already observed that the
ocular
version
of
the
incident
is
irreconcilable with the medical evidence on
record and the inconsistency remains
unexplained by the prosecution. Once that
be so, it cannot be said that prosecution has
succeeded in proving its case beyond
reasonable
doubt.
Consequently,
the
applicant is entitled to get the benefit of
doubt.

19. The trial court having noticed the
aforesaid contradictions has found the
prosecution case not be credible or reliable
and, consequently, the accused has been
acquitted of the charges levelled against
him.

20. Though learned counsels submits
that the evidence has not been examined in
correct perspective but we fail to find any
substance in such argument. The evidence
clearly shows that neither the victim is
credible nor is reliable nor the medical
evidence on record supports her allegation.

21. The major contradictions in the
version of the victim viz-a-viz her father as
well as material improvements in her
version from what was stated earlier under
Section
164
Cr.P.C.
also
remains
unexplained.
We
are,
therefore,
in
agreement with the view taken by the Court
8 All. Babu Ram Vs. State of U.P.
73
of Sessions that the prosecution has failed
to establish its case beyond reasonable
doubt. Once that be so we find that there is
no occasion for this Court to interfere with
the judgment of acquittal passed by the
court below.

22. The view taken by the court below
is clearly a permissible view, in the facts of
the case, and just because a different view
could be taken would ordinarily not be a
ground for this Court to interfere with the
order of acquittal. In such circumstances
we find that neither any triable issue is
raised before us in these appeals nor any
perversity is shown, which may persuade
this Court to interfere in these appeals.

23. The appeals lack merits and are,
consequently, dismissed.
----------
(2024) 8 ILRA 73
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 1821 of 2018

Babu Ram ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sushil Kumar Pandey, Sri Jitendra Pal
Singh

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 313 & 437(a) -
Indian Penal Code,1860 - Sections 376,
376(2)(f) & 376(2)(n), - Protection of
Children From Sexual Offence Act, 2012-
Sections 5 & 6: - Appeal - against conviction
& sentence - FIR - allegation of sexual assault
by the accused appellant, on his own minor
daughter - investigation - victim who is aged
about 14-15 years was sexual assaulted for the
last about 13 months - chargesheet - plea
taken that, allegations are false and the
prosecution evidence is not reliable - conviction
& sentence - court finds that - (i) victim did not
specified the date, time, manner or place in her
St.ment when she was first subjected to sexual
assault and there is general allegation that for
almost 13 months she was sexually assaulted by
the accused, (ii) admittedly, victim staying with
her grandparents and accused was lived in a
different house with his wife and child and she
was also lived in nearby other relatives but none
was informed about her rape nor anyone ever
saw the incident or came to know of it, (iv)
there is no evidence of any other persons, who
may have been informed about her sexual
exploitation during the entire period of 13
months, (v) in medical evidences, no external
or internal injury, hymen of the victim was found
old torn, (vi) in the pathological report, no dead
or live spermatozoa has been found, (vii) in
such circumstances, the only testimony which
remains on record to support the prosecution
case, (viii) a distinct possibility of the victim
having framed her father to avenge the murder
of her mother by him - court inclined to hold
that the defence has succeeded in creating a
doubt on the prosecution case of rape for 13
months upon the victim - therefore, accused
appellant is entitled to benefit of doubt -
resultantly, appeal succeeds and is allowed -
conviction and sentence is set aside - direction
issued, accordingly. (Para - 40, 41, 42, 43, 45)

Appeals are allowed. (E-11)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This criminal appeal is directed
against the judgment and order dated
24.2.2018,
passed
by
the
learned
Additional Sessions Judge/Court No.1,
Pilibhit in Sessions Trial No.8 of 2015,
arising out of Case Crime No.622 of 2015,