# Smt. Dimpal v. State of U.P. & Ors - **Citation:** (2020) 10 ILRA 1 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-08-24 - **Case number:** Criminal Appeal Defective U/S 372 Cr.P.C. No. 70 of 2020 - **Bench:** Arvind Kumar Mishra-I - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-dimpal-v-state-of-u-p-ors-45123 - **Pages:** 3 ## Headnote Criminal Law - Criminal Procedure Code (2 of 1974) - Section 372 - Appeal against acquittal - There may be various alternatives to the situation in consideration but it is to be seen whether the alternative adhered to by the trial judge is supported by material on record - in case it is found to be supported on record - then the same is to be sustained - Merely, because another hypothesis was possible for recording finding of conviction is not a ground for reversing an order of acquittal - Advantage, in situation of two equally available alternatives, goes to the accused - finding which favours the accused is to be adopted & given preference (Para 17) Dismissed (E-5) ## Text 10 All. Smt. Dimpal Vs. State of U.P. & Ors. 1 (2020)10ILR A1 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 24.08.2020 BEFORE THE HON'BLE ARVIND KUMAR MISHRA-I, J. Criminal Appeal Defective U/S 372 Cr.P.C. No. 70 of 2020 Smt. Dimpal ...Appellant Versus State of U.P. & Ors. ...Opposite Parties Counsel for the Appellant: Sri Atul Kumar Counsel for the Opposite Party: A.G.A. Criminal Law - Criminal Procedure Code (2 of 1974) - Section 372 - Appeal against acquittal - There may be various alternatives to the situation in consideration but it is to be seen whether the alternative adhered to by the trial judge is supported by material on record - in case it is found to be supported on record - then the same is to be sustained - Merely, because another hypothesis was possible for recording finding of conviction is not a ground for reversing an order of acquittal - Advantage, in situation of two equally available alternatives, goes to the accused - finding which favours the accused is to be adopted & given preference (Para 17) Dismissed (E-5) (Delivered by Hon'ble Arvind Kumar Mishra-I, J.) 1. Heard Sri Atul Kumar, learned counsel for the appellant-informant, learned A.G.A. for the State and perused the material brought on record. 2. Grounds and reasons assigned for condoning the delay are satisfactory. 3. Delay is condoned. 4. Office is directed to allot regular number to this appeal. 5. Accordingly, delay condonation application is allowed. 6. By way of instant Criminal Appeal, leave to appeal has been sought by the appellant-informant against the judgment and order of acquittal dated 02.03.2020 passed by A.D.J./Special Court (POCSO Act), Saharanpur, in Sessions Trial No. 62 of 2015 (State of U.P. vs. Arjun and others), under Sections - 354A, 354D, 323, 504, 506 I.P.C. & 7/8 POCSO Act, Police Station ? Gagalheri, District - Saharanpur, whereby the accused-respondents Arjun, Rohit and Sumit have been acquitted of the charges under Sections - 354A, 354D, 323, 504, 506 I.P.C. & 7/8 POCSO Act by the aforesaid order. 7. The claim of the appellant is based primarily on two counts, first, that the finding of acquittal is conjectural and presumptive. Secondly, that the same is not based on material on record. Trivial contradictions have been relied upon for recording finding of acquittal. Substantial piece of evidence, as emanating from the testimony of the victim, has been brushed aside arbitrarily and has not been acted upon by the trial court. The established fact of the age of the victim was also erroneously disbelieved by the trial court. As per the date of birth appearing in the school certificate, the victim was minor, aged about 15 years, however the trial court erred while it misread and presumed the age of the victim to be above 18 years. The 2 INDIAN LAW REPORTS ALLAHABAD SERIES wholesome view of the factual aspect and the testimonial merit of this case vis a vis the prevailing circumstances are fair enough to record conviction of the accusedrespondent nos.2, 3 and 4. The judgment of acquittal is most casual and perfunctory. The finding of conviction on the face is arbitrary and not sustainable in the eye of law more particularly in view of the material produced by the prosecution. 8. Also heard the learned A.G.A. 9. I have considered the entirety of the arguments as well as perused the certified copy of the judgment brought before this Court, available from Page No.18 up to Page No. 34 of this file. As per the judgment, it appears that the victim, a student of Class - XI was studying in Siya Ram Inter College, Gagalheri, District- Saharanpur within Police Station - Gagalheri and she was returning back to her home after attending her tuition around 3:00 p.m., when an accident was caused with motorcycle by the accusedrespondent nos. 2, 3 and 4 at place Pashu Paith by dashing it with the victim, near paddy field, due to which the victim fell down on the ground. The accused in the meanwhile came from behind and began to harass her by touching her limbs. Apart from that, they also tried to drag her towards the sugarcane field, whereupon alarm was raised by the victim, when Subhash, Sanjay and others rushed to the rescue of the victim on the spot. Consequently, the accusedrespondent nos. 2, 3 and 4 fled away from the scene after threatening the victim. The informant went to report the matter at the Police Station - Gagalheri, but no action taken. When the accused came to know about the aforesaid development regarding approach to the police station being made by the victim side, the accused also threatened the informant side at around 5:00 p.m., the same evening i.e. in the evening of 28.8.2014. However, matter was lodged at the police station (Gagalheri) after interference of the S.S.P., Saharanpur and a case was registered at Police Station - Gagalheri, District - Saharanpur, under Sections - 354 Ka, 354 Gha, 323, 504, 506 I.P.C. and 7/8 POCSO Act at Case Crime No.213/214. 10. The matter was investigated and a charge sheet was filed against the accusedrespondents. Charges under the aforesaid sections of I.P.C. and POCSO Act were framed read over and explained to the accused. The same were abjured by them and they claimed to be tried. 11. The prosecution in all examined P.W.-1, P.W.-2, P.W.-3 and P.W.-4. P.W.-1 being the informant, P.W.-2 being the victim, P.W.-3 is Ravi Kumar and P.W.-4 is Retd. S.I. Anand Pal Singh and Constable Rishi Pal Singh was examined as P.W.-5. 12. The defence did not lead any evidence-either oral or documentary. 13. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and the statement under Section - 313 Cr.P.C. was recorded, wherein it was claimed that on account of village partibandi, the accused respondent nos. 2 to 4 have been falsely implicated and involved in this case for no worthy reason and it was claimed that in fact, the incident was outcome of pure accident, it was not caused deliberately with a view to harass or tease the victim, a false case was lodged against them. 14. After considering the evidentiary merit of this case and the attendant facts and circumstances, the trial court recorded 10 All. Balbir & Ors. Vs. State of U.P. 3 aforesaid finding of acquittal and thereby acquitted the accused-respondents nos.2 to 4 under the aforesaid sections of I.P.C. and the POCSO Act, respectively. 15. Consequently, this appeal by the victim. 16. I have considered the line of argument set up by Sri Atul Kumar, learned counsel for the appellant-informant. Insofar as the meritorial aspect of this appeal is concerned, no doubt the victim has clarified about the incident in her examination-inchief. However, insofar as the cross examination of the victim is concerned, it is evident that the prosecution story as was set up in the first information report that the prime concern of the accused was to tease and harass the girl/victim, was not, in fact, so. However, it so happened that there was a collision between the motorcycle of the accused-respondents and the bicycle of the victim and exchange of hot words followed by some altercation took place and due to which, a false case was cooked up against the accused-respondent nos. 2, 3 and 4. 17. Now the legal import of the force of contention that the finding of acquittal is per se erroneous and perverse as staked by the appellant is concerned, the same argument does not carry substance for the reason that the finding of acquittal is well grounded on record and the outcome of acquittal cannot be termed as perverse or illegal. There may be various alternatives to the situation in consideration but it is to be seen whether the alternative adhered to by the trial judge is supported by material on record and in case it is found to be supported on record, then the same is to be sustained. Merely, because another hypothesis was possible in the same situation which might have worked for finding of conviction would not work for the reason that the finding which favours the accused is to be adopted and given preference. Advantage, in such situation of two equally available alternatives always and legally goes to the accused and this is inviolable law of criminal jurisprudence. 18. Here, in this case, the conclusion of acquittal drawn is based on the evidenciary analysis and scrutiny of the prosecution evidence and it cannot be faulted with in view of fact that on page 6 of the testimony of the victim, she herself has testified in her cross examination, categorically that some accident took place and this led to some altercation between the parties, due to which the parents of the victim lodged this report. This generates doubt about the occurrence as set up by the prosecution. Consequently, it cannot be said that there is any perversity in the judgment of acquittal as recorded by the trial court. 19. The leave to appeal is refused. 20. Consequently, this appeal sans merit and the same is dismissed. ---------- (2020)10ILR A3 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 09.07.2020 BEFORE THE HON'BLE SAURABH SHYAM SHAMSHERY, J. Criminal Appeal No. 648 of 1983 Balbir & Ors. ...Appellants(In Jail) Versus State of U.P. ...Opposite Party Counsel for the Appellants: