# State of U.P v. Asha Ram 492 INDIAN LAW REP

- **Citation:** (2022) 3 ILRA 491
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-25
- **Case number:** Government Appeal No. 1000120 of 2007
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-asha-ram-492-indian-law-rep-48207
- **Pages:** 5

## Headnote

A. Criminal Law - The Court did not find any
ground to disturb the acquittal of the accused
under Section 376/511 of the IPC recorded by
the Trial Court. (Para 15)
Appeal Rejected. (E-10)

List of Cases cited:

## Text

3 All. State of U.P. Vs. Asha Ram
491
Exhibit - A 3, has stated that the date and time
of the incident was mentioned in the inquest
report as 10:15 p.m. as per opinions of the
Panch and the time of death has been
mentioned as 10:45 p.m. This fact is
corroborated from the fact that Narendra
Mohan Hospital is situated about 20 to 25
Kms. away from the place of the incident. The
informant took his injured brother to Narendra
Mohan Hospital in a Maruti Car. During night
hours it was possible to reach Narendra
Mohan Hospital from the place of the incident
within 25-30 minutes. The time of admission
of the deceased in Narendra Mohan Hospital is
10:45 p.m., which indicates that the incident
did not occur at 08.:30 p.m., but it occurred at
around 10:00 p.m. P.W. 1 - Karan Singh also
stated that the deceased had come to his house
at about 09.45 p.m. and he stayed there for
about 15 minutes and thereafter went away.

28. Keeping in view the aforesaid facts
the learned court below recorded a finding that
the incident did not occur at 08.30 p.m. but it
occurred at about 10:00 p.m. and the time of
incident has been mentioned in the FIR at
08.30
p.m.
by
making
interpolations
subsequently on the basis of legal advice,
which obviously would have an adverse
impact on the prosecution case.

29. In Jayamma v. State of Karnataka,
(2021) 6 SCC 213, the Hon'ble Supreme Court
has been pleased to reiterated the well settled
law that the power of scrutiny exercisable by
the High Court under Section 378 CrPC
should not be routinely invoked where the
view formed by the trial court was a "possible
view". The judgment of the trial court cannot
be set aside merely because the High Court
finds its own view more probable, save where
the judgment of the trial court suffers from
perversity or the conclusions drawn by it were
impossible if there was a correct reading and
analysis of the evidence on record. To say it
differently, unless the High Court finds that
there is complete misreading of the material
evidence which has led to miscarriage of
justice, the view taken by the trial court which
can also possibly be a correct view, need not
be interfered with. This self-restraint doctrine,
of course, does not denude the High Court of
its powers to reappreciate the evidence,
including in an appeal against acquittal and
arrive at a different firm finding of fact.

30. As the testimony of the sole eye
witness P.W.2 has been proved to be false and
as the alleged motive of the offence has also
not been found sufficient to indict the accused
persons, we find that the judgment and order
passed by the learned Session Judge acquitting
the respondent-accused persons does not
suffer from any infirmity and the findings
forming basis of the aforesaid judgment are in
any case, not perverse. The grounds for
seeking leave to file appeal against the
aforesaid judgment and order are without
force.

31. The application seeking leave to file
an appeal is rejected.

32. Since the application granting for
leave to appeal is rejected, consequently the
appeal also stands dismissed.
----------
(2022)03ILR A491
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.02.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Government Appeal No. 1000120 of 2007

State of U.P. ...Appellant
Versus
Asha Ram ...Respondent
492 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Vishwas Shukla, A.G.A.

Counsel for the Respondent:

A. Criminal Law - The Court did not find any
ground to disturb the acquittal of the accused
under Section 376/511 of the IPC recorded by
the Trial Court. (Para 15)
Appeal Rejected. (E-10)

List of Cases cited:

1. Acchar Singh Vs St.of H.P. 2021 SCC Online
HP 870

2. Geeta Devi Vs St. of U.P. & ors. 2022 SCC
Online SC 57

3. Chandrappa Vs St.of Karn. (2007) 2 SCC (Cri)
162
(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This appeal along with application
under Section 378(3) of the Code of Criminal
Procedure 1973 (in short "Cr.P.C.") has been
filed by the State-appellant against the
judgment and order passed by Additional
Sessions Judge/F.T.C., Court No. 5, District
Gonda in Sessions Trial No. 80 of 2006, under
Sections 376/511 of The Indian Penal Code,
1860 (in short "IPC"), wherein the accused
respondent has been held guilty and punished
under Section 354 IPC in place of Sections
376/511 IPC.

2. Heard Sri Vishwas Shukla, learned
Additional Government Advocate appearing
on behalf of the State-appellant.

3. Shorn off unnecessary details, the
facts necessary for disposal of this appeal are:-

A First Information Report (in
short "F.I.R.") was registered in pursuance
of the order passed on the application under
Section 156(3) Cr.P.C. moved by the
complainant. It was alleged in the FIR that
daughter of the complainant Km. "X" aged
about 10 years was coming back to the
village after putting sugarcane into the field
on 21.11.2004 at about 12.30 PM during
the day. When she reached near Devi Patan
Bank, the accused respondent Asha Ram
took her away and gone into the bushes
behind the bank and made attempt to
commit rape on her. The girl/victim raised
noise then Radhey Shyam, Pappu, Rakesh
and many other people of the village
reached there, only then the victim could be
saved. The complainant was on duty for
administering Polio drops at a nearby
School. So after hearing the noise raised by
her daughter, he also reached there and
came to know about the incident. He went
to the Police Station but his FIR was not
registered. He also moved an application to
the Superintendent of Police, Gonda but no
action was taken. Thereafter he moved an
application under Section 156(3) Cr.P.C. in
the court and the Court passed the order,
only then the FIR was registered against the
accused respondent.

4. The case was investigated and
charge sheet submitted against the accusedrespondent. The Magistrate concerned after
taking cognizance of the offence committed
the case to Sessions Court for trial. The
Sessions Court framed charges against the
accused respondent. He denied the charges
and claimed to be tried. The prosecution in
order to prove charges levelled against the
accused respondent examined the victim as
P.W. 1, complainant and father of the
victim Mithai Lal as P.W. 2, brother of the
victim Rakesh as PW 3, Constable Ram
Kumar as PW 4 & Satish Kumar Misra
Sub-inspector/Investigating Officer of the
case as P.W. 5.
3 All. State of U.P. Vs. Asha Ram
493

5. Necessary documents were also
proved by the prosecution i.e. Exhibits 1 to
5. Thereafter statement of the accused
respondent was recorded under Section 313
Cr.P.C., wherein he stated that witnesses
have deposed falsely and he has been
implicated
due
to
enmity.
He
also
examined Mohd. Ishaq as D.W. 1 in
defence.

6. Learned Trial Court after hearing
the arguments of both the sides on the basis
of evidence available on record came to the
conclusion that P.W. 2 and P.W. 3 father
and brother of the victim respectively were
not eye witnesses of the crime and that only
offence under Section 354 IPC was
committed by the accused respondent. The
reasons for such conclusion have been
given by the Trial Court that there are
contradictions in the evidence of witnesses
of facts and the independent witness
mentioned in the FIR has not been
examined. Old enmity has also been
pleaded by the accused respondent. On the
basis of evidence available on record, the
Trial Court concluded that only offence
under Section 354 IPC has been committed
by the accused respondent and held guilty
and
punished
accused-respondent
accordingly.

7. Being aggrieved of this judgment,
the present appeal has been preferred by the
State.

8. Learned A.G.A. assailed the
impugned judgment submitting that learned
Trial Court discarded the evidence of the
victim, complainant as well as brother of
the victim without any proper and legal
reason. Learned Trial Court did not
appreciate the evidence in the right
perspective. Impugned judgment is based
on surmises and conjecutres. Hence the
impugned judgment and order is illegal, not
sustainable in the eyes of law and liable to
be set aside. Hence the accused respondent
should be punished under Sections 376/511
IPC.

9.

Considered
the
submissions
advanced by learned A.G.A., perused the
impugned judgment and order and the
record of the Trial Court.

10. Admittedly, the witnesses Radhey
Shyam and Pappu mentioned in the FIR has
not been examined. The witness Kanchhed
Verma, who has been mentioned in the
charge sheet was also not examined by the
prosecution. The victim has been examined
as P.W. 1, she was only 10 years old at the
time of incident and 12 years old when her
statement was recorded in the Court. She
has stated before the Court that the accused
took her away and when he opened her
underwear, she raised hue and cry, then her
father came there and the accused ran away
when her father scolded him. Upon her cry,
Kanhaiya, Tilak Ram, Radhey Shyam etc.
also came there. She has stated that in her
cross-examination that as soon as Asharam
caught her, she raised noise and before
reaching near the bush, her father came
there. She has further stated that first of all
her father reached upon her cry. This
statement of victim girl shows that the act
of the appellant Asharam travels only upto
the offence defined under Section 354 IPC.
P.W. 2-father of the victim and the
complainant of the case has stated in the
FIR that first of all Radhey Shyam, Pappu
and Rakesh and other people of the village
reached there and he also reached after
sometime
as
he
was
on
duty
for
administering Polio drops in a nearby
School. P.W. 3 - brother of the victim, who
is elder to the victim by 9 years as he
himself has told in the cross-examination,
494 INDIAN LAW REPORTS ALLAHABAD SERIES
has stated that on the date of incident, his
sister was coming back from the field and
accused took her away in the bushes behind
the bank. Upon her cry, he, Pappu and
Radhey Shyam reached there and saw the
accused running. P.W. 2-father of the
victim, has stated that his son Rakesh was
coming behind her daughter at the time of
incident. This is a major contradiction.
Perusal of the statement of P.W. 2 and 3
make it clear that they were not present at
the spot and they did not see the incident.
Independent witness has not been examined
though mentioned in the FIR. Old enmity
with the complainant has also been pleaded
by the accused respondent and there is no
independent witness to prove the factum of
attempt to rape. Hence, the learned Trial
Court has rightly convicted the accused
respondent under Section 354 IPC instead
of Section 376/511 IPC.

11. The aforesaid analysis makes it
clear that prosecution failed to prove
charges levelled under Sections 376/511
IPC against the accused respondent beyond
reasonable doubt.

12. Learned A.G.A. could not evince
that the findings given by the Court below
while acquitting the accused-respondent
were factually or legally incorrect.

13. Hon'ble Apex Court in the case of
Achhar Singh Vs. State of Himachal
Pradesh reported in 2021 SCC Online
HP 870 in this regard has laid down as
under:-

"It is thus a well crystalized
principle that if two views are possible, the
High Court ought not to interfere with the
trial Court's judgment. However, such a
precautionary
principle
cannot
be
overstretched to portray that the "contours of
appeal" against acquittal under Section 378
CrPC are limited to seeing whether or not the
trial Court's view was impossible. It is
equally well settled that there is no bar on the
High
Court's
power
to
re-appreciate
evidence in an appeal against acquittal11.
This Court has held in a catena of decisions
(including
Chandrappa
v.
State
of
Karnataka, (2007) 4 SCC 415, 42. State of
Andhra Pradesh v. M. Madhusudhan Rao,
(2008) 15 SCC 582 20-21 and Raveen
Kumar v. State of Himachal Pradesh, 2020
SCC Online SC 869, 11.) that the Cr.P.C
does not differentiate in the power, scope,
jurisdiction or limitation between appeals
against judgments of conviction or acquittal
and that the appellate Court is free to
consider on both fact and law, despite the
self-restraint that has been ingrained into
practice while dealing with orders of
acquittal
where
there
is
a
double
presumption of innocence of the accused".

14. We do not find any factual or legal
error in the appreciation of evidence by the
trial Court while acquitting the accusedrespondent under Sections 376/511 IPC and
convicting him under Section 354 IPC only.
Moreover, the view taken by the trial Court is
a possible view. Hon'ble Apex Court recently
in Geeta Devi Versus State of Uttar Pradesh
& Others, 2022 SCC Online SC 57, has
rehashed the principle of law laid down in
Chandrappa Versus State of Karnataka
(2007) 2 SCC (Cri) 162, which is as under:-

" 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."

15. The trial Court has given valid,
convincing and satisfactory reasons while
passing the order of acquittal for not
3 All. Shri Gordhan & Ors. Vs. Smt. Bohati & Ors.
495
relying on the evidence of victim. For the
aforesaid reasons, there appears no ground
to
disturb
the
acquittal
of
the
respondent/accused under Sections 376/511
of IPC recorded by the trial Court.

16. We, therefore, do not consider it
to be a fit case for grant of leave to appeal
to the appellant. The application seeking
leave to appeal is, accordingly, rejected.
The appeal is also dismissed.
----------
(2022)03ILR A495
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters Under Article 227 No. 228 of 2022
(CIVIL)

Shri Gordhan & Ors. ...Petitioners
Versus
Smt. Bohati & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashish Kumar Singh, Sri Ajay Kumar Singh

Counsel for the Respondents:
Sri Javed Husain Khan, Sri Chetan Chatterjee

A. Practice & Procedure - The Court rejected
the objection by the petitioner who are
defendants against additional written statement.
(Para 20)
Petition Rejected. (E-10)

List of Cases cited:

1. Vidyawati Vs Man Mohan & ors. 1995 SCC (5)
431 (distinguished)
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Ashish Kumar Singh,
learned counsel for the petitioners and Sri
Chetan Chatarjee, learned counsel for the
respondent nos.8 and 9 through video
conferencing.

2. This petition has been filed under
Article 227 of the Constitution of India by
the defendants against the order dated
23.04.2019 passed in Original Suit No.48
of 1992 (Zile Singh Vs. Sanmukh and
others) whereby the Court of Additional
Civil Judge-I (Senior Division), Saharanpur
has rejected the application of petitioners
(Paper No. 26Ga), praying for rejection of
written statement filed by respondent no.8
and 9 and the order dated 24.11.2021
passed by Additional District Judge, Court
No.1, Saharanpur passed in Civil Revision
No.60 of 2019 (Gordhan and others Vs.
Zile Singh) confirming the order of trial
Court dated 23.04.2019.

3. The suit has been instituted by the
respondent
nos.1
to
6
for
specific
performance of contract on the ground that
one Sanmukh had entered into a registered
agreement to sale dated 27.11.1991 with
the respondent nos. 1 to 6 in respect of
property in dispute.

4. In the Original Suit No. 48 of 1992,
Sanmukh filed written statement denying
execution of agreement to sale. The
relevant paragraph nos.23, 24, 26, 27 of
written statement are extracted herein
below:

"23- यह कणक ववाददी णकवा यह
णकहनवा गलत हहै कणक प्रकतववाददी
ननुं० 1 नने सम्पतणत्त मन्द्रजवा ववाद पत्र मद
(घ ) णकवाववाददी णकने सवाथ कवक्रय
णकरनने
णकवा
अननुबनुंि
अनुंणकन
16,0000/- रूपयने मम कणकयवा हहो यवा
इस सम्बन्ध मम प्रकतववाददी ननुं० 1 नने