# State of U.P v. Anil Kumar Jaiswal

- **Citation:** (2021) 11 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-23
- **Case number:** Government Appeal No. 198 of 2020
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-anil-kumar-jaiswal-46470
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal Procedure,
1973-Section 378(3) - Indian Penal Code,
1860-Sections 376, 504, 506-challenge toacquittal-delay
in
FIR-testimony
of
prosecutrix cannot be believed as the door
was open and her children were there,
accused was there for 20 to 25 minutes, but
she
could
not
shouted-as
per
medical
evidence there was no internal injuries and
the spermatozoa which belong to the accused
was not present in the vaginal swab-Learned
session
judge
rightly
adjudged
the
matter.(Para 1 to 22)
B. There is no embargo on the appellate court
reviewing the evidence upon which an order of
acquittal is based. Generally, the order of
acquittal shall not be interfered with because
the presumption of innocence of the accused is
further strengthened by acquittal. if two views
are possible, one pointing to the guilt of
accused and the other to his innocence, the
view which is favourable to the accused should
be adopted. (Para 9 to 17)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

11 All. State of U.P. Vs. Anil Kumar Jaiswal
179
by the court-below are absolutely just and proper
and while recording the said findings, no
illegality or infirmity has been committed by
court-below. We are also in complete agreement
with the reasoning and the findings arrived at by
the learned trial-court. Therefore, we hold that
the learned trial Judge has not committed any
error, which requires interference by this Court
under Section 378 (3) of the Criminal Procedure
Code.

20. The appeal is dismissed, accordingly.
----------
(2021)11ILR A179
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.10.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Government Appeal No. 198 of 2020

State of U.P. ...Appellant
Versus
Anil Kumar Jaiswal ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:

A. Criminal Law - Code of Criminal Procedure,
1973-Section 378(3) - Indian Penal Code,
1860-Sections 376, 504, 506-challenge toacquittal-delay
in
FIR-testimony
of
prosecutrix cannot be believed as the door
was open and her children were there,
accused was there for 20 to 25 minutes, but
she
could
not
shouted-as
per
medical
evidence there was no internal injuries and
the spermatozoa which belong to the accused
was not present in the vaginal swab-Learned
session
judge
rightly
adjudged
the
matter.(Para 1 to 22)
B. There is no embargo on the appellate court
reviewing the evidence upon which an order of
acquittal is based. Generally, the order of
acquittal shall not be interfered with because
the presumption of innocence of the accused is
further strengthened by acquittal. if two views
are possible, one pointing to the guilt of
accused and the other to his innocence, the
view which is favourable to the accused should
be adopted. (Para 9 to 17)

The appeal is dismissed. (E-6)

List of Cases cited:

1. M. S. Narayana Menon @ Mani Vs. St. of Ker. &
anr. (2006) 6 SCC 39

2. Chandrappa Vs. St. of Kanataka (2007) 4 SSC 415

3. St. of Goa Vs. Sanjay Thakran & anr.. (2007 ) 3
SCC 75

4. St. of U.P. Vs. Ram Veer Singh & ors. (2007) AIR
SCW 5553

5. Girja Prasad (Dead) By LRs Vs. St. of M.P. (2007)
AIR SCW 5589

6. Luna Ram Vs. Bhupat Singh & ors. (2009) SCC 749

7. Mookkiah & anr. Vs. St. rep. by the inspector of
Police , Tamil Nadu,(2013) AIR SC 321

8. St. of Kan. Vs Hemareddy (1981) AIR SC 1417

9. Shivsharanappa & ors. Vs. St. of Karn. (2013) 7 JT
SC 66

10. St. of Punj. Vs. Madan Mohan Lal Verma (2013)
14 SCC 153

11. Jayaswamy Vs. St. of Karn. (2018) 7 SCC 219

12. Shailendra Rajdev Pasvan Vs. St. of Guj. (2020)
14 SC 750

13. Samsul Haque Vs. St. of Assam (2019) 18 SCC 16

14. Ravindra Mahto Vs. St. of Jharkhand (2006) 54
ACC 543 SC

15. Ravi Kumar Vs. St. of Punj. (2005) 02 ACJ 505
180 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Ajai Tyagi, J.)

1. Heard learned A.G.A. for the State and
perused the record.

2. This appeal under Section 378 (3) of
Code of Criminal Procedure, 1973 (hereinafter
referred to as 'Cr.P.C.'), at the behest of the
State, has been preferred against the judgment
and order dated 29.02.2020 passed by learned
Additional Sessions Judge/F.T.C., Varanasi
acquitting accused-respondent who have been
tried for commission of offence under Sections
376, 504 & 506 of Indian Penal Code, 1860
(hereinafter referred to as 'IPC').

3. Brief facts as culled out from the record
are that on 6.2.2014 the prosecutrix was alone at
her home and at about 9.00 p.m., when the
children were sleeping, the accused who was
known to the family entered the house, closed
the door from inside and had sexual intercourse
with the prosecutrix against her will. The
prosecutrix
tried to
lodge
complaint
on
10.2.2021 but the police did not record the same
and, therefore, on 10.2.2021 she moved
concerned Magisterial Court who directed
investigation under Section 156 (3) of Cr.P.C.
The First Information Report was lodged as 114
of 2014 on 21.3.2014.

4. The accused was nabbed and on
8.7.2015, the case was committed to the Court
of Sessions. The prosecution examined about
five witnesses. P.W.1 was the prosecutrix,
P.W.2 was Ram Lal, Sub Inspector, P.W.3
was Ramesh Yadav, P.W.4 was Mohd.
Alamgir & P.W.5 was Dr. Sakshi Gupta who
medically examined the prosecutrix. The
prosecution relied on eight documents which
are sought to be proved by the oral testimony
of the witnesses. After the prosecution
evidence was completed, the accused was put
to question under Section 313 of Cr.P.C. and
accept stating that he was falsely implicated
and no such incident had occurred, the
accused did not lead any evidence nor he
examined any witness.

5. The learned Sessions Judge raised two
points of determination namely; (a) whether
the First Information Report was belated & (b)
whether the victim was forced to enter into
sexual intercourse against her will and wish.

6. Before we embark on testimony and
the judgment of the Court below, the contours
for interfering in Criminal Appeals where
accused has been held to be non guilty would
require to be discussed.

7. The principles which would govern
and regulate the hearing of an appeal by this
Court, against an order of acquittal passed by
the trial Court, have been very succinctly
explained by the Apex Court in catena of
decisions. In the case of "M.S. NARAYANA
MENON
@
MANI
VS.
STATE
OF
KERALA & ANR", (2006) 6 S.C.C. 39, the
Apex Court has narrated the powers of the
High Court in appeal against the order of
acquittal. In para 54 of the decision, the Apex
Court has observed as under:

"54. In any event the High Court
entertained an appeal treating to be an appeal
against acquittal, it was in fact exercising the
revisional jurisdiction. Even while exercising
an appellate power against a judgment of
acquittal, the High Court should have borne in
mind the well settled principles of law that
where two view are possible, the appellate
Court should not interfere with the finding of
acquittal recorded by the Court below."

8.

Further,
in
the
case
of
"CHANDRAPPA
Vs.
STATE
OF
KARNATAKA", reported in (2007) 4 S.C.C.
415, the Apex Court laid down the following
principles;
11 All. State of U.P. Vs. Anil Kumar Jaiswal
181

"42. From the above decisions, in our
considered
view,
the
following
general
principles regarding powers of the appellate
Court while dealing with an appeal against an
order of acquittal emerge:

[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
curtain extensive powers of an appellate Court
in
an
appeal
against
acquittal.
Such
phraseologies are more in the nature of
"flourishes of language" to emphasis 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."

9. Thus, it is a settled principle that while
exercising appellate powers, even if two
reasonable views/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.

10. Even in the case of "STATE OF GOA
Vs. SANJAY THAKRAN & ANR.", reported
in (2007) 3 S.C.C. 75, the Apex Court has
reiterated the powers of the High Court in such
cases. In para 16 of the said decision, the Court
has observed as under:

"16. From the aforesaid decisions, it is
apparent that while exercising the powers in
appeal against the order of acquittal the Court
of appeal would not ordinarily interfere with the
order of acquittal unless the approach of the
lower Court is vitiated by some manifest
illegality and the conclusion arrived at would
not be arrived at by any reasonable person and,
therefore, the decision is to be characterized as
perverse. Merely because two views are
possible, the Court of appeal would not take the
view which would upset the judgment delivered
by the Court below. However, the appellate
Court has a power to review the evidence if it is
of the view that the conclusion arrived at by the
Court below is perverse and the Court has
committed a manifest error of law and ignored
the material evidence on record. A duty is cast
upon the appellate Court, in such circumstances,
to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on
record to find out whether any of the accused is
connected with the commission of the crime he is
charged with."

11. Similar principle has been laid down
by the Apex Court in cases of "STATE OF
UTTAR PRADESH VS. RAM VEER SINGH
& ORS.", 2007 A.I.R. S.C.W. 5553 and in
"GIRJA PRASAD (DEAD) BY L.R.s VS.
STATE OF MP", 2007 A.I.R. S.C.W. 5589.
182 INDIAN LAW REPORTS ALLAHABAD SERIES
Thus, the powers, which this Court may exercise
against an order of acquittal, are well settled.

12. In the case of "LUNA RAM VS.
BHUPAT SINGH AND ORS.", reported in
(2009) SCC 749, the Apex Court in para 10 and
11 has held as under:

"10. The High Court has noted that the
prosecution version was not clearly believable.
Some of the so called eye witnesses stated that
the deceased died because his ankle was twisted
by an accused. Others said that he was
strangulated. It was the case of the prosecution
that the injured witnesses were thrown out of the
bus. The doctor who conducted the postmortem
and examined the witnesses had categorically
stated that it was not possible that somebody
would throw a person out of the bus when it was
in running condition.

11. Considering the parameters of
appeal against the judgment of acquittal, we are
not inclined to interfere in this appeal. The view
of the High Court cannot be termed to be
perverse and is a possible view on the evidence."

13. Even in a recent decision of the Apex
Court in the case of "MOOKKIAH AND
ANR.
VS.
STATE,
REP.
BY
THE
INSPECTOR
OF
POLICE,
TAMIL
NADU", reported in AIR 2013 SC 321, the
Apex Court in para 4 has held as under:

"4. It is not in dispute that the trial
Court,
on
appreciation
of
oral
and
documentary
evidence
led
in
by
the
prosecution
and
defence,
acquitted
the
accused in respect of the charges leveled
against them. On appeal by the State, the High
Court, by impugned order, reversed the said
decision and convicted the accused under
Section 302 read with Section 34 of IPC and
awarded RI for life. Since counsel for the
appellants very much emphasized that the
High Court has exceeded its jurisdiction in
upsetting
the
order
of
acquittal
into
conviction, let us analyze the scope and power
of the High Court in an appeal filed against
the order of acquittal. This Court in a series of
decisions has repeatedly laid down that as the
first appellate court the High Court, even
while
dealing
with
an
appeal
against
acquittal, was also entitled, and obliged as
well, to scan through and if need be
reappreciate the entire evidence, though while
hoosing to interfere only the court should find
an absolute assurance of the guilt on the basis
of the evidence on record and not merely
because the High Court could take one more
possible or a different view only. Except the
above, where the matter of the extent and
depth of consideration of the appeal is
concerned, no distinctions or differences in
approach are envisaged in dealing with an
appeal as such merely because one was
against conviction or the other against an
acquittal. [Vide State of Rajasthan vs. Sohan
Lal and Others, (2004) 5 SCC 573]"

14. It is also a settled legal position that in
acquittal appeals, the appellate Court is not required
to rewrite the judgment or to give fresh reasonings,
when the reasons assigned by the Court below are
found to be just and proper. Such principle is laid
down by the Apex Court in the case of "STATE
OF KARNATAKA VS. HEMAREDDY", AIR
1981, SC 1417, wherein it is held as under:

"...This Court has observed in Girija
Nandini Devi V. Bigendra Nandini Choudhary
(1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not
the duty of the Appellate Court on the evidence to
repeat the narration of the evidence or to reiterate
the reasons given by the trial Court expression of
general agreement with the reasons given by the
Court the decision of which is under appeal, will
ordinarily suffice."

15. In a recent decision, the Hon'ble Apex
Court in "SHIVASHARANAPPA & ORS. VS.
11 All. State of U.P. Vs. Anil Kumar Jaiswal
183
STATE OF KARNATAKA", JT 2013 (7) SC
66 has held as under:

"That appellate Court is empowered to
reappreciate the entire evidence, though, certain
other principles are also to be adhered to and it
has to be kept in mind that acquittal results into
double presumption of innocence."

16. Further, in the case of "STATE OF
PUNJAB
VS.
MADAN
MOHAN
LAL
VERMA", (2013) 14 SCC 153, the Apex Court
has held as under:

"The law on the issue is well settled
that demand of illegal gratification is sine qua
non for constituting an offence under the 1988
Act. Mere recovery of tainted money is not
sufficient to convict the accused
when
substantive evidence in the case is not
reliable, unless there is evidence to prove
payment of bribe or to show that the money
was taken voluntarily as a bribe. Mere receipt
of the amount by the accused is not sufficient
to fasten guilt, in the absence of any evidence
with regard to demand and acceptance of the
amount as illegal gratification. Hence, the
burden rests on the accused to displace the
statutory presumption raised under Section 20
of the 1988 Act, by bringing on record
evidence, either direct or circumstantial, to
establish with reasonable probability, that the
money was accepted by him, other than as a
motive or reward as referred to in Section 7 of
the 1988 Act. While invoking the provisions of
Section 20 of the Act, the court is required to
consider the explanation offered by the
accused, if any, only on the touchstone of
preponderance of probability and not on the
touchstone of proof beyond all reasonable
doubt. However, before the accused is called
upon to explain how the amount in question
was found in his possession, the foundational
facts must be established by the prosecution.
The complainant is an interested and partisan
witness concerned with the success of the trap
and his evidence must be tested in the same
way as that of any other interested witness. In
a proper case, the court may look for
independent corroboration before convincing
the accused person."

17. The Apex Court recently in
Jayaswamy vs. State of Karnataka, (2018) 7
SCC 219, has laid down the principles for
laying down the powers of appellate court in
re-appreciating the evidence in a case where
the State has preferred an appeal against
acquittal, which read as follows:

"10.It is by now well settled that the
Appellate Court hearing the appeal filed against
the judgment and order of acquittal will not
overrule or otherwise disturb the Trial Court's
acquittal if the Appellate Court does not find
substantial and compelling reasons for doing so.
If the Trial Court's conclusion with regard to the
facts is palpably wrong; if the Trial Court's
decision was based on erroneous view of law; if
the Trial Court's judgment is likely to result in
grave miscarriage of justice; if the entire
approach of the Trial Court in dealing with the
evidence was patently illegal; if the Trial Court
judgment
was
manifestly
unjust
and
unreasonable; and if the Trial Court has
ignored the evidence or misread the material
evidence or has ignored material documents like
dying declaration/report of the ballistic expert
etc. the same may be construed as substantial
and compelling reasons and the first appellate
court may interfere in the order of acquittl.
However, if the view taken by the Trial Court
while acquitting the accused is one of the
possible
views
under
the
facts
and
circumstances of the case, the Appellate Court
generally will not interfere with the order of
acquittal particularly in the absence of the
aforementioned factors.

.It is relevant to note the observations
of this Court in the case of Ramanand Yadav vs.
184 INDIAN LAW REPORTS ALLAHABAD SERIES
Prabhu Nath Jha & Ors., (2003) 12 SCC 606,
which reads thus:

"21.There is no embargo on the
appellate court reviewing the evidence upon
which an order of acquittal is based. Generally,
the order of acquittal shall not be interfered with
because the presumption of innocence of the
accused is further strengthened by acquittal. The
golden thread which runs through the web of
administration of justice in criminal cases is that
if two views are possible on the evidence
adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the
view which is favourable to the accused should
be adopted. The paramount consideration of the
court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than
from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is
cast upon the appellate court to re-appreciate
the evidence in a case where the accused has
been acquitted, for the purpose of ascertaining
as to whether any of the accused committed any
offence or not."

18. The Apex Court recently in Shailendra
Rajdev Pasvan v. State of Gujarat, (2020) 14
SC 750, has held that the appellate court is
reversing the trial court's order of acquittal, it
should give proper weight and consideration to
the presumption of innocence in favour of
accused, and to the principle that such a
presumption sands reinforced, reaffirmed and
strengthened by the trial court and in Samsul
Haque v. State of Assam, (2019) 18 SCC 161
held that judgment of acquittal, where two views
are possible, should not be set aside, even if
view formed by appellate court may be a more
probable one, interference with acquittal can
only be justified when it is based on a perverse
view.

19. We have scrutinized the evidence as
read by Sri N.K. Srivastava, learned A.G.A.
appearing for the State who has taken us
through the entire record. The whole testimony
of
the
prosecutrix
has
been
threadbare
discussed by the learned Sessions Judge. While
going through the deposition of the prosecutrix,
the settled legal position of law is that she
cannot be treated to be accomplish and her
evidence is to be seen with non microscopic
eyes.
The
learned
Sessions
Judge
has
threadbare discussed that the F.I.R. was not
only belated but it was highly belated, namely,
the incident took place on 6.2.2014 and the
F.I.R. was lodged on 21.3.2014. Even if we did
not agree with the learned Sessions Judge on
this aspect, the second aspect would be more
important for our purpose. The learned
Sessions Judge has considered the the decisions
in Ravindra Mahto Vs. State of Jharkhand,
2006 (54) ACC 543 (SC) & Ravi Kumar Vs.
State of Punjab, 2005 (02) ACJ 505.

20. Learned Sessions Judge has very
categorically come to the conclusion that there
was no rape committed by the accused. The
testimony of prosecutrix has not been believed
by the learned Sessions Judge. It can be said
that when the door was open, the accused was
there for 20-25 minutes and her children were
there, she could have started shouting. When
the accused is said to have removed his trousers
and went to bathroom that time also she could
have raised alarm but the same was not raised.

21. The medical evidence goes to show
that there was no internal injuries. The
spermatozoa which belong to the accused was
not present in the vaginal swab. Had it been a
rape, some internal injuries could have possible.

22. Hence, in view of the matter & on the
contours of the judgment of the Apex Court, we
have no other option but to concur with the
learned Sessions Judge. The appeal sans merits
and is dismissed. The record and proceedings be
sent
back
to
the
Tribunal.
11 All. Krishna Dutt Sharma Vs. State of U.P. & Ors.
185

23. We are thankful to Sri N.K. Srivastva,
learned A.G.A. for ably assisting the Court.
----------
(2021)11ILR A185
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.11.2021

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE DEVENDRA KUMAR UPADHYAYA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Misc. Single No. 4531 of 2019

Krishna Dutt Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
.......

Counsel for the Respondents:
A.G.A.

A. Civil Law - The appeal is not an inherent
right rather it is a creation of statute.
Neither the Court nor the petitioner was able to
find any provision in the policy which provides
for appeal against the order passed by District
Level Security Committee to any higher level
committee. Therefore, no direction can be issued
by this Court for decision of any such appeal.
(Para 20)

Writ Petition Disposed of. (E-10)

List of Cases cited:-

1. Zufiqar Ahmad Bhuttoo Vs St. of U.P. & ors. Writ C
No. 52652 of 2016

2. Akalu Ahir & ors. Vs Ramdeo Ram AIR 1973 SC
2145 (followed)

3. Ganga Bai Vs Vijay kumar & ors. (1974) 2 SCC 393
(followed)

4. Shyam Kishore & ors. Vs Municipal Corporation of
Delhi AIR 1992 SC 2279 (followed)
5. BGS SGS Soma JV Vs NHPC Ltd. (2020) 4 SCC 234
(followed)

6. Manish Kumar Vs U.O.I. & ors. (2021) 5 SCC 1
(followed)
(Delivered by Hon'ble Rajesh Bindal, C.J.)

01. The petitioner has filed the present writ
petition seeking the following reliefs:

"i) To issue order or direction thereby
directing the opposite parties no. 3 to 5 to
continue the police protection to the petitioner
for the security of his life and property as has
been provided earlier to the petitioner by the
Principal Secretary, Home, U.P. Government
Lucknow till the disposal of the appeal filed by
the petitioner before the opposite party no. 2;

ii) To issue order or direction thereby
directing the opposite party no. 2 to dispose of
the petitioner's appeal which is contained in
Annexure-21 to the petition."

02. When the petition was taken up for
hearing on February 15, 2019, the learned
counsel for the petitioner had referred to
judgment of this Court in Zulfiqar Ahmad
Bhuttoo Vs. State of U.P and others (Writ-C
No. 52652 of 2016) decided on 04.11.2016 in
support of his argument that his appeal filed
against order passed by the District Level
Committee to the Divisional Level Committee
be directed to be decided. The learned Single
Judge, while referring to number of judgments
of Hon'ble Supreme Court, was of the opinion
that the judgment in Zulfiqar Ahmad Bhuttoo
Vs. State of U.P and others' case (supra)
requires
re-consideration.
The
following
questions were framed:

"(i)
Whether
in
terms
of
the
Government order dated 09.05.2014, a person
aggrieved by the decision of the District Level
Committee has an efficacious and alternative
remedy to approach the Division Level