# State of U.P v. Avaneesh Kumar Lodhi & Ors

- **Citation:** (2021) 11 ILRA 1271
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-26
- **Case number:** Government Appeal No. 4035 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-avaneesh-kumar-lodhi-ors-46540
- **Pages:** 8

## Headnote

Criminal Procedure Code, 1973 - Section 378 -
Appeal against acquittal - Powers of appellate
Court - 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 -
in acquittal appeals, the appellate Court is not
required to rewrite the judgment or to give
fresh reasoning, when the reasons assigned by
the Court below are found to be just and proper.
(12, 17)

Accused-Avaneesh Kumar was charged under Sections
363, 366 & 376 IPC whereas Smt. Girja Devi, Viresh
Kumar, Arvind Kumar and Rajveer under Sections 363
& 366 IPC - trial-court acquitted the accusedrespondents - prosecutrix was above 18 years -
prosecutrix admitted in her deposition that her courtmarriage was performed at Delhi and she lived with
accused Avaneesh at Delhi for eight months as
husband and wife and she used to put Sindoor at Delhi
during that period - prosecutrix nowhere St.d that the
accused committed rape upon her prior to the courtmarriage - doctor who medically examined the
prosecutrix, did not find any injury on the person of the
prosecutrix at the time of medical examination - it
cannot be said that the accused committed rape upon
the prosecutrix without her consent - ingredients of
rape are not attracted- High Court concurred with the
learned trial judge (Para 22, 23, 25)

Dismissed. (E-5)

List of Cases cited:

## Text

11 All. State of U.P. Vs. Avaneesh Kumar Lodhi & Ors.
1271
hymen and bleeding vagina depicts same, minor
contradictions in her statements they are not of
much value, also absence of any injury on male
organ of accused is no valid ground for
innocence of accused, conviction under section
375
I.P.C.
proper;
Mohd.
Zuber
Noor
Mohammed Changwadia v. State of Gujarat,
1999 Cr LJ 3419 (Guj). Penetration Mere
absence of spermatozoa cannot cast a doubt on
the correctness of the prosecution case; Prithi
Chand v. State of Himachal Pradesh, (1989) Cr
LJ 841: AIR 1989 SC 702."

20. The learned Trial Judge has heavily
relied on the decisions on which we also place
reliance and come to the conclusion that there is
no explanation for delay of one and half month
in lodging the F.I.R. It is no doubt true that the
decision of 1996 in the case of State of Punjab
Vs. Gurmeet Singh and others, AIR 1996 SC
1393 has been also looked into by the learned
Special Judge. Learned Special Judge while
recording its finding as to the offence under
POSCO Act has given cogent reasons and has
relied on the oral testimony of Dr. Dharmendra
Kumar Singh, Principal, Patel Inter College, and
has come to the conclusion that the prosecutrix
was major and has relied on the judgment of this
Court in Sahnawaj Vs. State of U.P., 2011 (1)
J.I.C. 02 Ald. The mother of the prosecutrix has
also mentioned the age of the prosecutrix to be
20 years. Even in her statement under Section
164 Cr.P.C., the prosecutrix has mentioned that
her age is 20 years. Thus, it can be said that
offences under Section 363 & 366 are not made
out.

21. We now turn to offence alleged to have
committed under Section 376 of IPC. The
evidence of the prosecutrix namely P.W.1 is also
in favour of the accused-respondent. She had
called the accused to her home and at 10.00 p.m.
they went away. They got themselves married in
the temple on 20.11.2019. They both stayed in
Mumbai and only after the complaint was
lodged and F.I.R. was noted, the prosecutrix
came back. She had conceived and on
23.5.2020, she gave her statement that the police
official read over what she had mentioned. She
was taken to Mahila Police Station. Her medical
test was performed. All these facts go to show
that she was not a minor, there was no forcible
sex as per Section 375 of IPC. We are convinced
that the father of the prosecutrix only with a
view to pressurize the accused and his family
members has lodged the F.I.R.. The prosecturix
has not supported the prosecution version.

22. After considering the facts and
circumstances
of
the
present
case
and
appreciation of the evidence available on record,
we are satisfied that it is not a case where the
appeal can be allowed and the acquittal can be
converted into conviction of the accused.
Judgment in Guru Dutt Pathak (Supra) would
not apply to the facts of this case.

23. In view of the above, judgment of
acquittal passed by the Trial Court is hereby
confirmed and the instant appeal on behalf of the
State is dismissed with no order as to costs.
Record and proceedings be sent back to to Court
below forthwith. Bail and bail bonds are
cancelled.
----------

(2021)12ILR A1271
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.11.2021

BEFORE

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

Government Appeal No. 4035 of 2012

State of U.P. ...Appellant
Versus
Avaneesh Kumar Lodhi & Ors ...Respondent
1272 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:

Criminal Procedure Code, 1973 - Section 378 -
Appeal against acquittal - Powers of appellate
Court - 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 -
in acquittal appeals, the appellate Court is not
required to rewrite the judgment or to give
fresh reasoning, when the reasons assigned by
the Court below are found to be just and proper.
(12, 17)

Accused-Avaneesh Kumar was charged under Sections
363, 366 & 376 IPC whereas Smt. Girja Devi, Viresh
Kumar, Arvind Kumar and Rajveer under Sections 363
& 366 IPC - trial-court acquitted the accusedrespondents - prosecutrix was above 18 years -
prosecutrix admitted in her deposition that her courtmarriage was performed at Delhi and she lived with
accused Avaneesh at Delhi for eight months as
husband and wife and she used to put Sindoor at Delhi
during that period - prosecutrix nowhere St.d that the
accused committed rape upon her prior to the courtmarriage - doctor who medically examined the
prosecutrix, did not find any injury on the person of the
prosecutrix at the time of medical examination - it
cannot be said that the accused committed rape upon
the prosecutrix without her consent - ingredients of
rape are not attracted- High Court concurred with the
learned trial judge (Para 22, 23, 25)

Dismissed. (E-5)

List of Cases cited:

1. M.S. Narayana Menon @ Mani Vs St. of Kerala &
anr., (2006) 6 S.C.C. 39

2. Chandrappa Vs St. of Karn., reported in (2007) 4
S.C.C. 415

3. St. of Goa Vs Sanjay Thakran & anr., reported in
(2007) 3 S.C.C. 75

4. St.of U.P. Vs Ram Veer Singh & ors., 2007 A.I.R.
S.C.W. 5553
5. Girja Prasad (Dead) by L.R.s Vs St. of M.P., 2007
A.I.R. S.C.W. 5589

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

7. Mookkiah & anr. Vs St. Representatives by the
Inspector of Police, Tamil Nadu AIR 2013 SC 321

8. St. of Karn. Vs Hemareddy, AIR 1981, SC 1417

9. Shivasharanappa & ors. Vs St. of Karn. JT 2013 (7)
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
161

(Delivered by Hon'ble Dr. Kaushal Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

(Oral Judgment by Hon'ble Ajai Tyagi, J.)

1. This appeal under Section 378 (3) of
Criminal Procedure Code (in short 'Cr.P.C.'), at
the behest of the State, has been preferred
against
the
judgment
and
order
dated
6.7.2012.2017, passed by learned Additional
Sessions Judge, Court No.4, Mainpuri, in
Session Trial No.299 of 2003 (State of Uttar
Pradesh vs. Avaneesh Kumar) arising out of
Case Crime No.67 of 2001 under Sections 363,
366 & 376 IPC and in Session Trial No.204 of
2004 (State of UP vs. Smt.Girja Devi, Viresh
Kumar, Arvind Kumar and Rajveer) under
Sections 363 & 366, Police Station-Bhongaon,
District-Mainpuri, whereby the learned trialcourt acquitted the accused-respondents.

2. The brief facts of this case are that on
24.2.2001, written report has been lodged by the
11 All. State of U.P. Vs. Avaneesh Kumar Lodhi & Ors.
1273
complainant-Surendra Kumar alleging therein
that at about 12:00 (afternoon) on 20.2.2001,
when he and Rajesh (brother) were taking lunch
at his house, the wife of the owner of his house
along with her brother Avaneesh and Viresh
Kumar reached there and told the complainat
that some relatives had arrived at their house,
therefore, she is taking his daughter, prosecutrix
to help her in cooking the food. Since, those
persons
had
terms
to
visit
his
house
occasionally, therefore, he did not object to it,
and, as such, those persons took his daughter
with them. When the prosecutrix did not come
back even in the evening, he reached at the
house of Jang Bahadur in Village-Milika, but no
one met him there. Thereafter, the complainant
made efforts to trace out his daughter with above
noted persons. During the course of search,
Pradeep Kumar and Shanker Lal r/o VillageAlipur Khera, told him that they have seen the
prosecutrix in the company of above persons at
the Bhongaon road crossing at about 4:00 pm.
The complainant made his best efforts to trace
out his daughter, but in vain.

3. On the basis of this written report, a case
was registered against the wife of Jang Bahadur,
Viresh Kumar and Avaneesh. After registration
of the case, the investigation followed. The
Investigating Officer recorded the statements of
the complainant and other witnesses, visited the
site and prepared the site-plan. The prosecutrix
was recovered on 8.11.2001 from the custody of
accused Avaneesh Kumar during the course of
investigation.
After
investigation,
the
Investigating Officer of the case submitted
charge-sheet against the accused, namely,
Arvind Kumar, Rajveer, Smt.Girja Devi and
Viresh Kumar.

4. Accused-Avaneesh Kumar was charged
under Sections 363, 366 & 376 IPC whereas
Smt.Girja Devi, Viresh Kumar, Arvind Kumar
and Rajveer under Sections 363 & 366 IPC. The
case being exclusively triable by court of session
was committed for trial to the court of session by
competent Magistrate. Accused persons denied
charges and claimed to be tried.

6. To bring home the charges, the
prosecution
produced
following
witnesses,
namely:

1.
Surendra
Singh
(Complainant)
PW1
2.
Rajesh Kumar
PW2
3.
Prosecutrix
PW3
4.
Dr.R.D. Yadav
PW4
5.
Constable Chandan Singh
PW5
6.
Dr.Smt.Sunita Sharma
PW6
7.
SI-D.C.Yadav
PW7
8.
Brijesh Bhadauria
PW8
9.
Retd.SI Ved Prakash
PW9

7. In support of the ocular version of the
witnesses, following documents were produced
and contents were proved by leading evidence:

1.
Written Report
Ex.ka1
2.
Pathological
Report
Ex.ka2
3.
Chik Report
Ex.ka3
4.
Copy
of
GD
Entry
Ex.ka4
5.
Medical
Examination
Report
Ex.ka5
6.
Supplementary
Medical Report
Ex.ka6

8. After prosecution evidence, the accused
persons were examined under Section 313
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C. in which they told that false evidence
has been led against them. They did not examine
any witness in defence.

9. We have heard Shri Janardan Prakash,
learned AGA for the State-appellant and perused
the record. None appears for the acquitted
accused-respondents.

10. 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.

11. 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 and another, (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."

12. 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;

"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,
11 All. State of U.P. Vs. Avaneesh Kumar Lodhi & Ors.
1275
the appellate Court should not disturb the
finding of acquittal recorded by the trial Court."

13. 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.

14. Even in the case of State of Goa vs.
Sanjay Thakran and another, 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."

15. Similar principle has been laid down
by the Apex Court in cases of State of Uttar
Pradesh vs. Ram Veer Singh and others, 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. Thus, the powers, which this Court may
exercise against an order of acquittal, are well
settled.

16. In the case of Luna Ram vs. Bhupat
Singh and others, 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."

17. Even in a recent decision of the Apex
Court in the case of Mookkiah and another vs.
State Representatives 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
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
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]"

18. 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."

19. In a recent decision, the Hon'ble Apex
Court in Shivasharanappa and others vs. 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."

20. 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
11 All. State of U.P. Vs. Avaneesh Kumar Lodhi & Ors.
1277
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."

21.

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 reappreciating 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. 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 reappreciate 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."

22. 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.
1278 INDIAN LAW REPORTS ALLAHABAD SERIES

23. In the case in hand, the prosecutrix was
above 18 years and the court-marriage of the
prosecutrix was performed with the consent of
the prosecutrix, therefore, it cannot be said that
the accused committed rape upon the prosecutrix
without her consent. The prosecutrix has
nowhere stated that the accused committed rape
upon her prior to the court-marriage. Hence, the
remaining other ingredients of rape are also not
attracted in the present case. PW3, namely, the
prosecutrix has admitted in her deposition that
her court-marriage was performed at Delhi and
she lived with accused Avaneesh at Delhi for
eight months as husband and wife and she used
to put Sindoor at Delhi during that period.
Dr.Sunita Sharma (PW6), who has medically
examined the prosecutrix, did not find any injury
on the person of the prosecutrix at the time of
medical examination. Hence, the charge of rape
is also not proved in the facts and circumstances
of the present case.

24. Learned trial-court rightly appreciated
the evidence on record. The evidence produced
by prosecution does not inspire confidence at all
as already held by learned trial Judge.

25. In view of above, we are of the
considered opinion that no two views are
possible and we cannot take different view from
that taken by the learned trial-court. We also do
not find any infirmity in the impugned judgment
and order, therefore, we have no other option,
but to concur with the findings recorded by the
learned trial Judge.

26. The appeal sans merit and is
dismissed, accordingly.

27. The record and proceedings be sent
back to the court-below.
----------
(2021)12ILR A1278
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.11.2021
BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE VIKAS BUDHWAR, J.

Government Appeal No. 3804 of 2001

State of U.P. ...Appellant
Versus
Subedar & Ors. ...Respondents

Counsel for the Appellant:
Sri R.P. Dubey,A.G.A.

Counsel for the Respondents:
Sri Punit Kumar Gupta

Criminal Procedure Code, 1973 - Section 378
- Appeal against acquittal - Powers of
appellate Court - 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 - in
acquittal appeals, the appellate Court is not
required to rewrite the judgment or to give
fresh reasoning, when the reasons assigned
by the Court below are found to be just and
proper. (12, 17)

F.I.R u/s 364 I.P.C. - trial-court acquitted the
accused-respondents - main accused who is alleged
to have committed the rape, passed away - no
injury on prosecutrix private parts - St.ment given
by prosecutrix under Section 164 Cr.P.C. was also
full of flaws - Contradictions in the St.ment of the
prosecutrix are such that it has led to infirmity -
admitted position of fact that the prosecutrix had
old enmity therefore, the accused were roped in
the aforesaid crime - independent witness opined
against the St.ment of the prosecutrix - High Court
concurred with the learned Sessions Judge (Para
22, 23, 25)

Dismissed. (E-5)

List of Cases cited:

1. M.S. Narayana Menon @ Mani Vs St. of Kerala &
anr., (2006) 6 S.C.C. 39