# State of U.P v. Anuj & Ors. Opp. Parties

- **Citation:** (2022) 8 ILRA 494
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-18
- **Case number:** Government Appeal No. 26 of 2021
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-anuj-ors-opp-parties-48911
- **Pages:** 11

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 378 & 378(3), - Indian
Penal Code,1860 - Sections 147, 148, 149,
307, 332, 353 & 504 - Government Appeal -
against order of Acquittal - a written complaint
moved by the Constable (PW-1) before the Sub
Inspector (PW-2) - registered as an FIR -
informant (PW-1) claimed - during investigation
of another case crime PW-1, PW-2 & PW-3
(police personnel) visited house of PW-5 (wife of
one of accused) where alleged incident was
happen so - court bears in mind that - it is a
well settled law that minor contradiction cannot
be a ground to discredit the testimony of the
prosecution witnesses - but, while separating
chaff from the grain, court finds that - there
were major contradictions in the testimonies of
the PWs regarding injuries sustained, time of
occurrence, presence of parents of PW-5 at
place of incident as well as occurrence of the
incident too - held - this is not a fit case
wherein this court should take a different view -
trial court cannot be said to be perverse while
passing judgment of acquittal - Leave to appeal
rejected, even though same is not a case worth
granting leave to appeal - consequently,
Government Appeal stands dismissed.(Para -26,
27, 29, 32, 36, 37, 38, 40, 42, 43)

Appeal Dismissed. (E-11)

List of Cases cited: -

## Text

494 INDIAN LAW REPORTS ALLAHABAD SERIES
(3) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2
of 1974),--

(a) ...........

(b)
no
court
shall
stay
the
proceedings under this Act on the ground
of any error, omission or irregularity in
the sanction granted by the authority,
unless it is satisfied that such error,
omission or irregularity has resulted in a
failure of justice;"

24. Insofar, interim order dated
08.06.2022 (Writ-A No. 8868 of 2022)
directing lodging of the first information
report was stayed by this Court on the
gorund of having drastic civil consequence
and the order being passed without
opportunity of hearing being given to the
petitioner. The interim order does not bind
this Court, as the same appears to have
been passed, in the given facts. It appears
that the learned counsel for the petitioner
had not brought to the notice of the
learned Single Judge of the Government
Orders, wherein, it has been categorically
provided that at the stage of fact finding
enquiry neither the
identity of
the
complainant would be disclosed to the
government servant against whom the
discreet inquiry is directed, nor, the
delinquent government servant would be
informed or given an opportunity in an
enquiry that is being conducted against
him on the allegations of the complaint.
Status of the inquiry on the complaint
received against the government servant
for corrupt practices is merely a fact
finding inquiry so as to ascertain the
veracity and prima facie truthfulness of
the allegations made in the complaint.
Therefore, submission of the learned
counsel for the petitioner that petitioner
should have been given an opportunity of
hearing is unfounded. Further, petitioner
does not dispute the fact that he was a
Junior Engineer and had undertaken the
measurement of the works which was
found by the Departmental Enquiry
Committee
of
being
substandard,
therefore, prima facie causing loss to the
State
Ex-chequer.
In
view
of
the
Government Orders referred earlier, the
authorities were justified in lodging the
F.I.R. against the delinquent government
officials for indulging in acts and omission
of corruption. An order of the authority
direction lodging of first information
report based on prima facie finding
returned by a Departmental Enquiry
cannot be said to prejudice the government
servant. The FIR merely sets in motion the
criminal process which is as per law.

25. Having regard to the facts and
circumstances, learned counsel failed to
make out a case for quashing of the
impugned F.I.R.

26. The writ petition is, accordingly,
dismissed.
----------
(2022) 8 ILRA 494
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.07.2022

BEFORE

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

Government Appeal No. 26 of 2021

State of U.P. ...Appellant
Versus
Anuj & Ors. ...Opp. Parties

Counsel for the Appellant:
A.G.A.

Counsel for the Opp. Parties:
Sri Birendra Singh Khokher, Sri Vijay Kumar
8 All. State of U.P. Vs. Anuj & Ors.
495
Criminal Law - Criminal Procedure Code,
1973 - Sections 378 & 378(3), - Indian
Penal Code,1860 - Sections 147, 148, 149,
307, 332, 353 & 504 - Government Appeal -
against order of Acquittal - a written complaint
moved by the Constable (PW-1) before the Sub
Inspector (PW-2) - registered as an FIR -
informant (PW-1) claimed - during investigation
of another case crime PW-1, PW-2 & PW-3
(police personnel) visited house of PW-5 (wife of
one of accused) where alleged incident was
happen so - court bears in mind that - it is a
well settled law that minor contradiction cannot
be a ground to discredit the testimony of the
prosecution witnesses - but, while separating
chaff from the grain, court finds that - there
were major contradictions in the testimonies of
the PWs regarding injuries sustained, time of
occurrence, presence of parents of PW-5 at
place of incident as well as occurrence of the
incident too - held - this is not a fit case
wherein this court should take a different view -
trial court cannot be said to be perverse while
passing judgment of acquittal - Leave to appeal
rejected, even though same is not a case worth
granting leave to appeal - consequently,
Government Appeal stands dismissed.(Para -26,
27, 29, 32, 36, 37, 38, 40, 42, 43)

Appeal Dismissed. (E-11)

List of Cases cited: -

1. Tota Singh & anr. Vs St. of Pun. (1987) 2 SCC 529,

2. Ramesh Babulal Doshi Vs St. of Guj. (1996) 9
SCC 225,

3. Rajasthan Vs St. of Guj. (2003) 8 SCC 1870,

4. St. of Goa Vs Sanjay Thakran, (2007) 3 SCC
755,

5. Chandrappa & ors. Vs St. of Karn. (2007) 4
SCC 415,

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

7. Siddharth Vashishta @ Manu Sharma Vs St.
(NCT of Delhi) ( 2010) 6 SCC 1,

8. Babu Vs St. of Kerala (2010) 9 SCC 189,

9. Ganpat Vs St. of Har. ( 2010) 12 SCC 59,

10. Sunil Kumar Sambhudayal Gupta (Dr.) & ors.
Vs St. of Mah. (2010) 13 SCC 657,

11. St. of U.P. Vs Naresh (2011) 4 SCC 324,

12. St. of M.P. Vs Ramesh (2011) 4 SCC 786,

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

14. Narayan Chetanram Chaudhary & anr. Vs St.
of Mah. (2008 (8) SCC 457),

15. Shyamal Ghose Vs St. of W.B.l (2012 (7)
SCC 646),

16. Kuriya & anr. Vs St. of Raj. (2012 (10) SCC
433),

17. Rohtash Kumar Vs St. of Har. (2013 (14)
SCC 434).

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Heard Sri Ratan Singh, learned
A.G.A. and Sri Vijay Kumar, learned
counsel appearing on behalf of the accusedrespondents.

2. In view of the unfortunate incident
of fire that which had taken place in the
office of Advocate General and an
administrative order so passed by Hon'ble
The Chief Justice, learned counsel for the
accused-respondents Sri Vijay Kumar has
supplied a copy of the records of the
present appeal to learned A.G.A. and has
received the paper book in the Court and
both the side agreed to argue the matter on
merits, therefore, we proceed to hear the
matter.

3. State of U.P. has approached this
Court while instituting appeal under
Section 378 of the Criminal Procedure
Code (In short Cr.P.C.) assailing the
496 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment and dated 12.10.2020 passed by
Additional Sessions Judge, Fast Track
Court No.2, Baghpat in Sessions Trial
No.161 of 2018 (State Vs. Anuj & 2 others)
in Case Crime No.850 of 2017, under
Sections 147, 148, 149, 307, 504, 332, 353
IPC,
P.S.
Badaut,
District
Baghpat
acquitting the accused respondents.

4. While unfolding the prosecution
case, it emerges that a written complaint
was lodged before the Sub-Inspector
Munesh
Pal
Pawar
(PW2)
which
transformed
into
lodging
of
a
first
information report on 22.8.2017 in Case
Crime No 849 of 2017, under Sections 323,
504, 506, 354A, 307, 34 IPC with the
allegation that in order to investigate the
said case PW2 being Munesh Pal Pawar
proceeded from the Police Station and
reached the Chowki at industrial area and
thereafter while accompanying Constable
912 Omvir (PW1) and H.G. 276 Satyapal
(PW5) went to the place of occurrence
whereat they had to investigate the
allegation which emanated from the FIR
dated 22.8.2017, being Case Crime No.849
of 2017, under Sections 323, 504, 506,
354A, 307, 34 IPC.

5. As per prosecution when the
aforesaid three persons reached the place of
occurrence then the informant in the Case
Crime No.849 of 2017 along with her
parents were seen to have been subjected to
hurling of abuses by certain persons
uttering that the informant of the Case
Crime
No.849
of
2017
may
make
complaints before any authority but nobody
can do anything adverse against unknown
persons.

6. According to the prosecution, the
informant being PW2 along with the above
noted two police personnel tried to
convince them not to indulge in such type
of activities but as per the prosecution case
the above mentioned unknown persons
indulged into hurling of abuses and
administered beating (Marpeet) and further
tried to grab the licence pistol so possessed
by the informant PW2 and with the help of
one Boby son of Vijay Pal resident of Awas
Vikas Badaut, Police Station Badaut, Mohit
son of Suresh, Prakash and Jasvir son of
Vishahambhar Sharma after great efforts
could catch hold of one of the unknown
persons and at the relevant point of time the
said unknown person made firing upon the
informant, however the informant could
save himself from them.

7. Consequent to catching hold of
unknown persons one was indentified as
Annu son of Ravindra Singh accused
respondent no.1 and it is further stated that
from his possession a country-made pistol
315 bore containing one cartridge which
was struck therein and was further smelling
and from the right pocket of the shorts a
live cartridge 315 bore was recovered.
Second person so caught hold was Aunj son
of Ravindra, however no recovery was
made from him and so far as the third
person is concerned he identified himself to
be Krishnavir son of Begraj, resident of
Pushar, P.S. Doghat district Baghpat and
from his possession nothing was recovered.
It has further been stated that one H.G.149
Ramesh Chandra the driver Sant Kumar
H.G. 289 and Pravindra were also present
who witness the said incident.

8. Accordingly, a first information
report being Case Crime No.0850 of 2017
was
registered
before
Police
Station
Badaut, district Baghpat on 22.8.2017
showing the commission of the incident at
14.15 hours against the three named
accused who are respondents herein and
8 All. State of U.P. Vs. Anuj & Ors.
497
two unknown persons under Sections under
Sections 147, 148, 149, 307, 332, 353, 504
IPC.

9. After lodging of FIR in question
before the above noted police station PW7
being S.I. Satyavir Singh Bhati was
nominated as I.O.

10. In order to bring home the charges
the
prosecution
produced
following
witnesses namely PW1 Constable Omvir
Singh, PW2 S.I. Munesh Pal Singh Pawar
(Informant), PW3 Payal @ Meenakshi,
PW4 Smt. Santosh, PW5 Head Constable
276 Satya Pal Singh, PW6 Mukesh Kumar
and PW7 retired S.I. Satyavir Bhati. .

11.

The
prosecution
produced
following documents to prove the charges
namely (a) Chik FIR (b) H.G. Satyapal
medical report site plan (c) charge sheet (d)
Medical Report of constable Omvir Singh
(e) Medical Report of S.I. Mukesh Pal
Singh (f) G.D.

12. The case was committed to
Sessions. Charges were read over the
accused herein. Accused claimed innocence
and not guilty and claimed to be tried.

13. Since the present appeal is under
Section 378 of the Cr.P.C. instituted by the
State against the judgment of acquittal
passed in favour of the accused, thus, this
Court has to bear in mind the crucial fact
that double presumption of innocence is
available with the accused. To put it
otherwise,
the
courts
of
law
while
exercising appellate jurisdiction are not
supposed to interfere with the judgment of
acquittal unless the same is perverse or
miscarriage of justice is being meted to
other party that too while keeping in mind
the fact that there should compel and
substantive reasons for interfering as
couched in series of decisions namely Tota
Singh and another vs. State of Punjab,
(1987) 2 SCC 529, Ramesh Babulal Doshi
vs. State of Gujarat, (1996) 9 SCC 225,
State of Rajesthan vs. State of Gujarat,
(2003) 8 SCC 180, State of Goa vs. Sanjay
Thakran, (2007) 3 SCC 755, Chandrappa
and others vs. State of Karnataka, (2007)
4 S.C.C. 415, Ghurey Lal vs. State of U.P.,
(2008) 10 SCC 450, Siddharth Vashishtha
Alias Manu Sharma vs. State (NCT of
Delhi), (2010) 6 SCC 1, Babu vs. State of
Kerala, (2010) 9 SCC 189, Ganpat vs.
State of Haryana, (2010) 12 SCC 59, Sunil
Kumar Sambhudayal Gupta (Dr.) and
others vs. State of Maharashtra, (2010) 13
SCC 657, State of U.P. vs. Naresh, (2011)
4 SCC 324, State of M.P. vs. Ramesh,
(2011) 4 SCC 786, and Jayaswamy vs.
State of Karnataka, (2018) 7 SCC 219.

14. Bearing in mind the proposition of
law so mandated by the Hon'ble Apex
Court now the facts of the present case are
to be analysed in order to determine as to
whether the judgment of acquittal so passed
in favour of the accused herein seeks
interference or not.

15. Taking the clue from the
testimony
of
prosecution
witness
it
transpires that one constable 912 Omvir
Singh appeared as PW1 and according to
him he was posted as constable in the
subject police station on 22.8.2017. He has
further stated that S.I. Munesh Pal Singh
PW2 came to the Industrial Chowki,
whereat he was posted along with H.G.
Satyapal Singh PW5 and all three of them
proceeded to Kasba Awas Vikas Badaut
from where a written complaint was also
lodged and a first information report was
registered by the informant therein Smt.
Payal and when they reached the house of
498 INDIAN LAW REPORTS ALLAHABAD SERIES
the informant Smt. Payal then they
witnessed that some unknown persons were
hurling abuses upon Smt. Payal and her
parents. All of them witnessing the said
utterance tried to pacify them and at that
relevant point of time the unknown persons
created obstacles and hindrances in the
duty so assigned and attached to them and
hurled abuses and indulged in beating and
tried to snatch the licenced weapon which
they were possessing. In the said incident
PW1 Omvir Singh, PW2 SI Munesh Pal
Singh Pawar and PW5 Head Constable
Satypal Singh also claim to sustain injuries
and with the aid of the persons, who was
standing being Boby son of Vijai Pal,
Mohit son of Surya Prakash and Jasvir son
of Vishambhar they could catch hold of the
accused respondent no.1 Anoop son of
Ravindra and from his possession countrymade pistol 315 bore as well as a cartridge
struck in the pistol and a live cartridge was
found.

16. According to PW1 the said
incident was witnessed by Ramesh Chandra
(Driver), Sant Kumar (Home-Guard) and
Pravendra. It was also stated that the two
other persons, who were caught hold of
were the accused opposite party no.2 Anuj
son of Ravindra and accused opposite party
no.3 Krishnavir son of Begraj, however no
recovery was made from them.

17. S.I. Munesh Pal Singh Pawar, the
first informant appeared as PW2, he in his
examination-in-chief had narrated the fact
that he along with the aforesaid two
persons being PW1 and PW5 had gone to
Payal's house wherein he also witnessed
that some unknown persons were fighting
Smt. Payal and are parents and when he
tried to pacify then abuses were hurled and
beating was administered, weapon which
PW2 was sought to be snatched and with
the aid of the commuters therein they could
save themselves and even in fact firing was
also resorted to with country-made pistol
and they arrested the accused at 2.15 hours
and in the possession of accused Anuj, a
country-made pistol and cartridges were
found. However, so far as rest accused are
concerned, no recovery whatsoever was
made from them and constable Omvir PW1
and PW5 H.G. Satyapal sustained injuries.

18. PW3 Smt. Payal @ Meenakshi
appeared in witness box and according to
her statement she was in a house on
22.8.2017. At that point of time her
husband Annu was with him and they were
certain altercation between her and the
husband Annu. Police also came there, she
had not called the police and there was no
Marpeet
or
beating
administered
in
between the police officials and her
husband and no firing whatsoever was
resorted to by her husband Annu and there
was no recovery of any country-made
pistol from him.

19. PW4 Smt, Santosh Kumar also
appeared in the witness box according to
her statement on 22.8.2017, she was not in
the house, she had gone to her neighbours
place, there was no beating or untoward
incident which occurred.

20. PW5 H.G. 276 Satyapal appeared,
he deposed that when he was in industrial
Chowki on 22.8.2017 then constable Omvir
Singh and SI Munesh Pal came and they
proceeded to Payal's house when they tried
to pacify the unknown persons, who are
stated to be fighting with Smt. Payal @
Meenakshi and their parents then beating
was administered and Annu accused herein
made gun shot fire, however they could
save themselves and they arrested the
accused at 2.15 hours.
8 All. State of U.P. Vs. Anuj & Ors.
499

21. PW6 Mukesh Kumar has also
appeared
as
a
prosecution
witness.
According to him his daughter Payal got
married with Annu son of Ravindra and on
22.8.2017 her daughter had come to his
place and his son-in-law Annu had come to
her away of his house. However, certain
altercations took place between Payal @
Meenakshi and Annu and at that point of
time police came. According to him, there
was no Marpeet or hurling of abuses and no
act was committed by the accused herein to
create obstacle in the duties of the police
officials and Krishnavir was not present.

22. As PW7 retired S.I. Satyavir Bhati
appeared in witness box, he is the I.O. and
according
to
him
he
conducted
investigation and submitted charge sheet.

23. Coming to the medico legal injury
report of the injured, it has come on record
that so far as SI Munesh Pal Singh, the first
informant PW2 all the injuries are simple in
nature and according to the opinion of the
doctor, the same may have been caused by
hard blunt object and friction against tough
surface.

24. So far as the injury report of
(PW1) Omvir Singh is concerned, all the
injuries were found to be simple in nature
and caused by hard blunt object. Similarly,
so far as the injury of PW5 Satyapal Singh
is concerned, the injuries were found to be
simple in nature and caused by hard and
blunt object. Thus, it become apparently
clear from perusal of the medico legal
report that the injuries are simple in nature.

25. As per the first information report
dated 22.8.2017 the time of the incident is
14.15 hours on 22.8.2017, PW1 being
constable Omvir Singh is an eye witness
and claims to be injured in the incident in
question. In his cross-examination PW1 has
deposed that the incident was at 12-1.00 in
the noon on 22.8.2017. He has further
stated in his cross-examination that when
the accused Annu fired upon him it was
2.10 hours in the noon of 22.8.2017.

26. It is quiet paradoxical and amazing that
the time of the occurrence so shown in the
first information report is 14.15 hours,
however, the incident is shown to be at 121.00 p.m. in the noon on 22.8.2017 and the
firing so resorted by the accused is shown
to be 2.10 hours. So much so far as PW2
S.I. Munesh Pal is concerned, according to
him the time of the incident is 1.30 to 2.15
in the noon and further he is not aware
about the time when the said incident
occurred. The said contradictions in the
testimony of PW1 and PW2 itself,
discredits the testimony of the above noted
two prosecution witness to point the
accused towards commission of crime.

27. It is not the case wherein PW1
and PW2 were not the eye-witness and
rather in the contrary PW1 and PW2 were
eye-witness and claiming to be the injured
and PW2 is the first informant having full
knowledge about the incident.

28. An additional fact also needs to be
considered which is with regard to the issue
that PW1 being constable Omvir Singh in
his cross-examination has deposed that all
three of them being PW1, PW2 and PW5
sustained injuries in body, shoulder and
face and they were subjected to medical
examination. However, on the contrary
PW5 being H.G.276 Satyapal Singh in his
cross-examination has come up with a
stand that he did not sustain any injuries.

29. The aforesaid contradictions are
major contradictions and the same also
500 INDIAN LAW REPORTS ALLAHABAD SERIES
shows that a case has been engineered by
the prosecution to falsely implicate the
accused herein. Notably, PW1, PW2 and
PW5 are the eye-witness of the incident
and alleged commission of crime and thus
in the wake of the medico legal report of
PW5 showing injuries sustained by PW5
and denying the same by PW5 in his crossexamination itself shows that the entire
prosecution theory is exaggerated so as to
rope in accused herein.

30. So much so PW1 constable Omvir
Singh in his cross-examination has deposed
that he is not aware as to whether at the
time of the occurrence of the said incident
whether the parents of the Smt. Payal were
there or not. However, PW2 SI Munesh Pal
Singh the first informant in his crossexamination has deposed that he along with
PW1 and PW5 had gone to the place of
occurrence where large number of people
had assembled and about 4 to 5 people
were hurling abuses upon the parents of
Payal. The said inconsistency in the
statement of PW1 and PW2 itself creates a
cloud that no such incident whatsoever
occurred as obviously PW1 and PW2 both
claimed to be eye-witness.

31. Nonetheless PW3 being Payal @
Meenakshi, PW4 Smt. Santosh and PW6
Mukesh Kumar themselves have given the
statement despite being the prosecution
witness that no such incident occurred on
22.8.2017.

32. The Hon'ble Apex Court has in
umpty number of decisions laid down the
proposition of law that minor contradiction
cannot be a ground to discredit the
testimony of the prosecution witness.
However, Court has to adopt a pragmatic
approach while considering the over all
circumstances while separating chaff from
the grain. Solely because there are minor
contradictions and improvements cannot be
only basis to demolish the prosecution
version.
In
the
case
of
Narayan
Chetanram Chaudhary and another Vs.
State of Maharashtra (2000) 8 Supreme
Court Cases 457 para 42 the Hon'ble Apex
Court observed as under:-

42. Only such omissions which amount
to contradiction in material particulars can
be used to discredit the testimony of the
witness. The omission in the police
statement by itself would not necessarily
render
the
c
testimony
of
witness
unreliable. When the version given by the
witness in the court is different in material
particulars from that disclosed in his
earlier
statements,
the
case
of
the
prosecution becomes doubtful and not
otherwise. Minor contradictions are bound
to appear in the statements of truthful
witnesses as memory sometimes plays false
and the sense of observation differ from
person to person. The omissions in the
earlier statement if found d to be of trivial
details, as in the present case, the same
would not cause any dent in the testimony
of PW 2. Even if there is contradiction of
statement of a witness on any material
point, that is no ground to reject the whole
of the testimony of such witness. In this
regard this Court in State of H.P. v. Lekh
Raj23 (in which one of us was a party),
dealing with discrepancies, contradictions
and omissions held: (SCC pp. 258-59,
paras 7-8)

"Discrepancy has to be distinguished
from contradiction. Whereas contradiction
in the statement of the witness is fatal for
the case, minor discrepancy or variance in
evidence will not make the prosecution's
case doubtful. The normal course of the
human conduct would be that while
narrating a particular incident there may
8 All. State of U.P. Vs. Anuj & Ors.
501
occur
minor
discrepancies,
such
discrepancies in law may render credential
to the depositions. Parrot-like statements
are disfavoured by the courts. In order to
ascertain as to whether the discrepancy
pointed out was minor or not or the same
amounted to contradiction, regard is
required to be had to the circumstances of
the case by keeping in view the social
status of the witnesses and environment in
which such witness was making the
statement. This Court in Ousu Varghese v.
State of Kerala24 held that minor variations
in the accounts of the witnesses are often
the hallmark of the truth of their testimony.
In Jagdish v. State of M.P. this Court held
that
when
the
discrepancies
were
comparatively of a minor character and did
not go to the root of the prosecution story,
they need not be given undue importance.
Mere congruity or consistency is not the
sole test of truth in the depositions. This
Court again in State of Rajasthan v.
Kalki26 held that in the depositions of
witnesses
there
are
always
normal
discrepancies, however, honest and truthful
they may be. Such discrepancies are due to
normal errors of observation, normal
errors of memory due to lapse of time, due
to mental disposition such as shock and
horror at the time of occurrence, and the
like. Material discrepancies are those
which are not normal, and not expected of
a normal person.

Referring to and relying upon the
earlier judgments of this Court in b State of
U.P. v. M.K. Anthony27, Tahsildar Singh v.
State of U.P.28, Appabhai v. State of
Gujarat29 and Rammi v. State of M.P.30
this court in a recent case Leela Ram v.
State of Haryana31 held:

'There
are
bound
to
be
some
discrepancies between the narrations of
different witnesses when they speak on
details, and unless the contradictions are of
a material dimension, the same C should
not be used to jettison the evidence in its
entirety. Incidentally, corroboration of
evidence with mathematical niceties cannot
be expected in criminal cases. Minor
embellishment, there may be, but variations
by reason therefor should not render the
evidence of eyewitnesses unbelievable.
Trivial
discrepancies
ought
not
to
obliterate
an
otherwise
acceptable
evidence...

The court shall have to bear in mind
that different witnesses react differently
under different situations: whereas some
become speechless, some start wailing
while some others run away from the scene
and yet there are some who may come
forward with courage, conviction and belief
that the wrong should be remedied. As a
matter of fact it depends upon individuals
and individuals. There cannot be any set
pattern or uniform rule of human reaction
and to discard a piece of evidence on the
ground of his reaction not falling within a
set pattern is unproductive and a pedantic
exercise.'

33. In the case of Shyamal Ghosh
Vs. State of West Bengal (2012) 7
Supreme Court Cases 646 para 46 & 47
the Hon'ble Apex Court observed as under:-

46. Then, it was argued that there are
certain discrepancies and contradictions in
the statement of the prosecution witnesses
inasmuch as these witnesses have given
different timing as to when they had seen
the scuffling and strangulation of the
deceased by the accused. It is true that
there is some variation in the timing given
by PW 8, PW 17 and PW 19. Similarly,
there is some variation in the statement of
PW 7, PW 9 and PW 11. Certain variations
are also pointed out in the statements of
PW 2, PW 4 and PW 6 as to the motive of
502 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused for commission of the crime.
Undoubtedly, some minor discrepancies or
variations are traceable in the statements
of these witnesses. But what the Court has
to see is whether these variations are
material and affect the case of the
prosecution substantially. Every variation b
may not be enough to adversely affect the
case of the prosecution. a
47. The variations pointed out as regards
the time of commission of the crime are
quite possible in the facts of the present
case. Firstly, these witnesses are rickshaw
pullers or illiterate or not highly educated
persons
whose
statements
had
been
recorded by the police. Their statements in
the court were recorded after more than
two years from the date of the incident. It
will be unreasonable to attach motive to the
witnesses or term the variations of 15-20
minutes in the timing of a particular event
as a material contradiction. It probably
may not even be expected of these witnesses
to state these events with the relevant
timing with great exactitude, in view of the
attendant circumstances and the manner in
which the incident took place.

34. In the case of Kuriya and
another Vs. State of Rajasthan (2012) 10
Supreme Court Cases 433 para 30 the
Hon'ble Apex Court observed as under:-

30. This Court has repeatedly taken the
view
that
the
discrepancies
or
b
improvements which do not materially
affect the case of the prosecution and are
insignificant cannot be made the basis for
doubting the case of the prosecution. The
courts may not concentrate too much on
such discrepancies or improvements. The
purpose is to primarily and clearly sift the
chaff from the grain and find out the truth
from the testimony of the witnesses. Where
it does not affect the core of the prosecution
case, such discrepancy should not be
attached undue significance. The normal
course of human conduct would be that
while narrating a particular incident, there
may occur minor discrepancies. Such
discrepancies may even in law render
credential
to
the
depositions.
The
improvements
or
variations
must
essentially relate to the material particulars
of the prosecution case. The alleged
improvements and variations must be
shown with respect to material particulars
of the case and the occurrence. Every such
improvement, not directly related to the
occurrence, is not a ground to doubt the
testimony of a witness. The credibility of a
definite circumstance of the prosecution
case cannot be weakened with reference to
such minor or insignificant improvements.

35. In the case of Rohtash Kumar
Vs. State of Haryana (2013) 14 Supreme
Court Cases 434 para 24 the Hon'ble Apex
Court observed as under:-

24. It is a settled legal proposition that
while appreciating the evidence of a
witness, minor discrepancies on trivial
matters which do not affect the core of the
case of the prosecution, must not prompt
the court to reject the evidence in its
entirety.
Therefore,
unless
irrelevant,
details which do not in any way corrode the
credibility of a witness should be ignored.
The court has to examine whether evidence
read as a whole appears to have a ring of
truth. Once that impression is formed, it is
undoubtedly necessary for the court to
scrutinise the evidence more particularly
keeping in view the deficiencies. drawbacks
and infirmities pointed out in the evidence
as a whole and evaluate them to find out
whether it is against the general tenor of
the evidence given by the witnesses and
whether the earlier evaluation of the
8 All. State of U.P. Vs. Anuj & Ors.
503
evidence is shaken, as to render it unworthy
of belief. Thus, the court is not supposed to
give undue importance to omissions,
contradictions and discrepancies which do
not go to the heart of the matter, and shake
the basic version of the prosecution
witness. Thus, the court must read the
evidence of a witness as a whole, and
consider the case in light of the entirety of
the circumstances, ignoring the minor
discrepancies
with
respect
to
trivial
matters, which do not affect the core of the
case
of
the
prosecution.
The
said
discrepancies as mentioned above, should
not be taken into consideration, as they
cannot form grounds for rejecting the
evidence on record.

36. Marshalling the testimonies of the
prosecution witnesses and the evidences so
adduced by them makes it crystal clear that
there are material contradictions in the
testimony of the prosecution witness as
PW1, PW2 and PW5 who claimed
themselves to be the eye-witness and
injured also. However, PW5 has come up
with a stand that he did not sustain any
injuries.

37. Time of the occurrence of the
incident is concerned the same also varies
as PW1 in his cross-examination has
deposed that the time of the occurrence is
12-1.00 noon on 22.8.2017 as well as the
time of the occurrence of the incident in the
FIR is shown to be 2.15 hours. More so
PW2 in his statement has deposed that the
time of the occurrence is 1.30 to 2.15 hours
on 22.8.2017 he on being further asked has
deposed in cross-examination that he is not
aware about the time.

38. Lastly, but not the least PW1 in his
cross-examination has made a statement that
he is not aware as to whether on 22.8.2017
at the time of the alleged occurrence of the
incident whether the parents of Smt. Payal
@ Meenakshi were present or not, however
PW2 in his cross-examination had stated
that he along with PW1 and PW5 had gone
to the place of occurrence and at that point
of time about 4-5 persons were abusing the
parents of the Smt. Payal @ Meenakshi.

39. Event the other prosecution
witnesses being PW3 Payal @ Meenakshi,
PW4 Smt. Santosh and PW6 Mukesh
Kumar had gone recorded their deposition
while making a statement that no such
incident occurred on 22.8.2017.

40.

Having
bestowed
anxious
consideration over the judgment of acquittal
passed by the trial court, this Court finds that
the view taken by the trial court cannot be
said to be perverse. However, the same is
based upon the correct appreciation of the
testimony of the prosecution witnesses and
careful perusal of the evidences sought to be
adduced.

41. The view so taken by the trial
court is a possible, plausible view and this
is not a fit case wherein this Court should
take a different view. In absence of any
perversity so sought to be shown by the
learned AGA, this Court finds inability to
exercise its jurisdiction under Section 378
of the Cr.P.C. while revering the judgment
of
acquittal
into
the
judgment
of
conviction.

42. We find that it is not a case worth
granting leave to appeal. The application
for granting leave to appeal is rejected.

43. Since the application for granting
leave to appeal has not been granted,
consequently, present appeal also stands
dismissed.
504 INDIAN LAW REPORTS ALLAHABAD SERIES

44. The records be sent back to the
court-below.
----------
(2022) 8 ILRA 504
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.07.2022

BEFORE

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

Government Appeal No. 259 of 2021

State of U.P. ...Appellant
Versus
Dhan Seth & Anr. ...Opp. Parties

Counsel for the Appellant:
G.A.

Counsel for the Opp. Parties:

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 154, 156-(3),
313, 378 & 378(3), - Indian Penal Code,
1860 - Sections 201, 304-(B) & 498-(A),
- Dowry Prohibition Act,1961 - Section -
3/4 - Indian Evidence Act, 1872 -
Section - 113-B: - Government Appeal -
against order of Acquittal - complaint case -
FIR - offence of dowry death - demand of
additional dowry - PW-1 claimed that accused
husband & mother-in-law were strangulated
his daughter - power of appellate court - can
only be exercised when there is gross
misappreciation of the evidence coupled with
erroneous
interpretation
and
palpable
illegality by trial court.(Para 16)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections - 154, 156-(3),
313, 378 & 378(3), - Indian Penal Code,
1860 - Sections 201, 304-(B) & 498-(A),
- Dowry Prohibition Act, 1961 - Section -
3/4 - Indian Evidence Act, 1872 -
Section - 113-B - Government Appeal -
against order of Acquittal - complaint case -
FIR - offence of dowry death - demand of
additional dowry - PW-1 claimed that accused
husband & mother-in-law were strangulated
his daughter - - court finds that -
prosecution
theory
proceeds
on
week
premises as there were major contradiction in
the St.ments of PW-1 & PW-2, occasioned
with delay in lodging the FIR which sans
explanation, absence of post-mortem report &
facts regarding last rites as done itself by
prosecution but blamed to be disposing of
dead body put upon accused person and also
there is no any independent eyewitness was
produced - held - this is not a fit case
wherein this court should take a different
view - judgment of acquittal by trial court
does suffer from any illegality or perversity -
Leave
to
appeal
rejected
-
resultantly,
Government Appeal stands dismissed. (Para -
33, 34, 35, 36, 37, 39)

Appeal Dismissed. (E-11)

List of Cases cited: -

1. Rajesh Prasad Vs St. of Bihar & anr. reported
in 2022 (3) SCC 471,

2. Apren Joseph @ Current Kunjukunju & ors.
Vs The St. of Kerala, (1973) 3 SCC 114,

3. Tara Singh & ors. Vs St. of Punj. 1991 Supp
(1) SCC 536

4. P. Rajagopal & ors. Vs St. of T.N. (2019) 5
SCC 403,

(Delivered by Hon'ble Vikas Budhwar, J.)

1. The present appeal at the behest
of the State of U.P. emanates from the
proceeding
in
Sessions
Trial
No.
445/2016 (Registration No. 473 of 2016)
wherein the court of Additional Sessions
Judge, (Fast Track Court) No. 2, Rampur
by
virtue
of
the
judgment
dated
28.01.2021 has acquitted the accusedrespondent nos. 1 and 2 in Case Crime
No. 108C/2016 u/s 498A, 304B, 201 IPC
and Section 3⁄4 of the D.P. Act, P.S.
Patwai, District Rampur.