# State of U.P v. Balwan Singh & Ors

- **Citation:** (2024) 9 ILRA 385
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-13
- **Case number:** Government Appeal No. 443 of 2024
- **Bench:** Rajiv Gupta, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-balwan-singh-ors-52595
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 366 & 376 - Appeal against
acquittal - Code of Criminal Procedure,
1973 - Section 313 - Benefit of doubt -
Consenting party - Incident happened on
07.04.2009 - FIR was lodged after 15 days
of incident - No plausible explanation
regarding delay was found in FIR or in
evidence
of
witnesses
-
PW-1
(Informant/father of victim) was not an eye
witness and only informant in case - Main
witness, minor son of informant and brother
of victim in whose presence she was
allegedly kidnapped by accused persons,
was not examined during trial - Victim
remained in company of accused as per her
testimony for 25- 26 days, she never raised
any alarm to seek assistance of passersby
while on journey or made complaint to wife
of family members of other accused in
whose house she was allegedly confined -
Her medico legal examination report does
not corroborate allegations that she was
subjected to sexual assault, as no mark of
external or internal injury were found on her
person - She was found to be aged around
more than 18 years in her medical age
determination report - No evidence to prove
that she was below 18 years of age at time
of incident. (Para 12, 13)

Appeal dismissed. (E-13)

List of Cases cited:

## Text

9 All. State of U.P. Vs. Balwan Singh & Ors.
385
petitioner has approached this Court at a
highly belated stage after about 13 years.
The petitioner after waking up from deep
slumber, approached this Court, without
any iota of explanation for the delay as per
his choice, caprice and whim. Thus, it can
by no stretch of imagination be stated that
the petitioner has approached this Court
within a reasonable time and even though
nothing has been stated in the writ petition,
why the petitioner is coming after 13 years
of passing the impugned order dated
08.09.2011, thus this Court does not find
any justification to grant relief as sought by
the petitioner on the ground of delay and
latches.
The
petition
is
totally
misconceived and is liable to be dismissed.

19. According, dismissed.

20. No order as to cost.
----------
(2024) 9 ILRA 385
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Government Appeal No. 443 of 2024

State of U.P. ...Appellant
Versus
Balwan Singh & Ors. ...Respondents

Counsel for the Appellant:
G.A.

Counsel for the Respondents:
Subhash Chandra Tiwari

Criminal Law - Indian Penal Code, 1860 -
Sections 366 & 376 - Appeal against
acquittal - Code of Criminal Procedure,
1973 - Section 313 - Benefit of doubt -
Consenting party - Incident happened on
07.04.2009 - FIR was lodged after 15 days
of incident - No plausible explanation
regarding delay was found in FIR or in
evidence
of
witnesses
-
PW-1
(Informant/father of victim) was not an eye
witness and only informant in case - Main
witness, minor son of informant and brother
of victim in whose presence she was
allegedly kidnapped by accused persons,
was not examined during trial - Victim
remained in company of accused as per her
testimony for 25- 26 days, she never raised
any alarm to seek assistance of passersby
while on journey or made complaint to wife
of family members of other accused in
whose house she was allegedly confined -
Her medico legal examination report does
not corroborate allegations that she was
subjected to sexual assault, as no mark of
external or internal injury were found on her
person - She was found to be aged around
more than 18 years in her medical age
determination report - No evidence to prove
that she was below 18 years of age at time
of incident. (Para 12, 13)

Appeal dismissed. (E-13)

List of Cases cited:

1. Kumabuddin Vs St. of U.P. 2013 (3) JIC 61

2. M.S. Narayana Menon @ Mani Vs St. of Kerala
& anr, (2006) 6 S.C.C. 39, (Para 54)

3. Chandrappa Vs St. of Karn., reported in
(2007) 4 S.C.C. 415, (Para 42)

4. Shivasharanappa & ors. Vs St. of Karn., JT
2013 (7) SC 66

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

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

7. Samsul Haque Vs St. of Assam, (2019) 18
SCC 161

(Delivered by Hon'ble Rajiv Gupta, J.
386 INDIAN LAW REPORTS ALLAHABAD SERIES
&
Hon'ble Ram Manohar Narayan Mishra, J.)

1. Heard Sri Jitendra Kumar Jaiswal,
learned A.G.A. for the State/appellant and
Sri Subhash Chandra Tiwari, learned
counsel for respondent No.1 to 4. We have
perused the record and also the impugned
judgment under challenge in this appeal.

2. The trial court has acquitted the
accused-respondents
for
charge
under
Sections 366 and 376 IPC, vide judgment
and order dated 08.04.2015 passed by
learned Additional District and Session
Judge/FTC, Kanpur Dehat in S.T. No.233
of 2010 (State Vs. Balwan Singh and
others). This appeal under 378(3) of the
Criminal
Procedure
Code,
1973
(hereinafter referred to as Cr.P.C.) has been
preferred at the instance of the State as
Government Appeal against the impugned
judgment and order.

3. The brief facts of the case as
appeared from FIR and other material on
record are that the defacto complainant
Munna Lal had given a written report on
22.04.2009 at Police Station concerned, on
the basis of which Chick FIR (Ext. Ka-2)
was drawn by Head Constable Sudhakar
Singh on 22.4.2009 at 11:00 hours under
Section 363 and 366 IPC at Police Station
Rura, District Kanpur Dehat. The informant
stated in his written report that on
07.04.2009 his minor daughter whose date
of birth was 15.09.1993 had gone with her
younger brother Rohit to the market to take
medicines, at around 10:00 am accused
Balwan Singh and Akhilesh who were
coming by a tractor met them and got his
daughter and son sit on the tractor. On
some pretext they send his son Rohit to
take guthka for them on way and when he
returned back to the place where he was
dropped by accused persons, he found
neither the accused nor tractor nor his sister
(victim), thus Rohit came back to home and
narrated the incident to the informant. The
informant embarked on search of his
missing daughter, and in that sequence
Akhilesh met him in the evening on the
bank of a canal in Ballia and on making a
pointed query he told that his brother Siya
Ram and his brother-in-law (Bahnoi) who
belonged to Panki took away his daughter
from Madhauli by making her sit on a
Marshal Jeep. The informant raised an
apprehension in FIR, if his daughter be not
recovered immediately she might be killed
by the accused persons.

4. The police carried out investigation
in the case and victim was recovered on
03.05.2009
by
police.
On
secret
information on 03.05.2009 at 17:15 hours
she was recovered alongwith main accused
Balwan Singh. Both the accused and victim
were apprehended by police near staircase
of over-bridge situated towards North of
Railway Station Rura. The accused Balwan
Singh was taken into custody by police and
recovery cum arrest memo was prepared,
which is placed on record as Ext. Ka-6. The
investigating officer recorded the statement
of the victim and other witnesses prepared
site plan of place of occurrence, which is
marked as Ext. Ka-7. In medico legal
examination of victim which was carried
out by C.M.O. District Women Hospital,
Kanpur Dehat, no mark of injury was seen
on private part, hymen was torn and healed,
vagina
admitted
two
fingers
easily.
Referred to Radiologist for Xray, for
ossification test for age examination. In the
opinion of lady doctor she was found to be
used to sexual intercourse and no definite
opinion about rape could be given. In age
determination report Ext. Ka-5, her age was
found to be more than 18 years, on the
9 All. State of U.P. Vs. Balwan Singh & Ors.
387
basis of her radiological examination. The
Investigating Officer submitted chargesheet
against named accused persons Balwan
Singh, Akhilesh, Siya Ram and Vimal
Chandra
Tiwari
for
committing
and
facilitating the offence of kidnapping and
rape. The tractor in which the victim was
allegedly kidnapped was taken into custody
by police, which is marked as Ext. Ka-9.

5. Learned Additional Chief Judicial
Magistrate, Kanpur Dehat committed the
case for trial to the court of session, as
offence was triable by court of session.
Learned Additional Session Judge Court
No.3, Ramabai Nagar framed charge under
Sections 366 and 376 IPC, against
chargesheeted
accused
Balwan
Singh,
Akhilesh, Siya Ram and Vimal Chandra
Tiwari,
charges
were
read-over
and
explained to the accused persons who
denied the charge and claimed to be tried.

6.

The
prosecution
examined
witnesses PW-1 Munna Lal the informant,
PW-2 victim, PW-3 SI Sudhakar Singh
(then Head Constable) placed before, the
author of FIR and GD Entries of
registration of this case. PW-4 Pushpa
Gurnani who conducted medico legal
examination of the victim, PW-5 SID Data
Ram
the
investigating
officer.
After
conclusion of prosecution evidence, the
accused were examined under Section 313
Cr.P.C. with a view to seek their
explanation
regarding
evidence
and
circumstances
appearing
against
them
during trial. The accused persons stated in
their statement under Section 313 Cr.P.C.
that they were falsely implicated in the
case, they have committed no offence, the
witnesses had deposed against them falsely.

7. Learned trial judge after hearing
the submissions of both the sides and
appreciating their evidence on record
observed that on the basis of evidence on
record it is proved that the victim had left
her home alongwith accused on her own
volition and will. She had attained age of
majority as per medical age determination
report. She never tried to seek help of any
person enroute to her journey. The tractor
passed through Madhauli village at 10:00
am, but she had not ask for help from any
person as admitted by her. Thereafter she
was taken by Marshal Jeep, even then she
did not make any effort to seek help. She
resided at the residence of Vimal Tiwari
(accused) in Panki, but even there she did
made any complaint to wife of Vimal
Tiwari or person in vicinity she even did
not tried to raise alarm by shouting. All
these facts and circumstances which proved
that she went alongwith the accused on her
own volition.

8. Learned trial judge placed reliance
on a judgment of this Court reported as
Kumabuddin Vs. State of U.P. 2013 (3)
JIC 61. Learned trial court gave a finding
that victim was more than 18 years on the
date of incident and she left her home on
her own volition. Therefore, it is discerned
that she was neither taken by the accused
against her will, nor was subjected to
sexual
intercourse
against
her
will.
Therefore charge under Section 366 and
376 IPC has not been proved beyond
reasonable doubt. Consequently accused
persons are acquitted of charges under
Sections 363 and 366 IPC.

9. Learned A.G.A. for the Stateappellant submitted that the order of
acquittal recorded by learned trial court is
not justified in the eyes of law, as
prosecution established the case against the
accused persons. He further submitted that
learned
additional
session
judge
has
388 INDIAN LAW REPORTS ALLAHABAD SERIES
misread the evidence adduced during trial.
Both the witnesses of facts PW1 informant
the father of the victim and PW2 victim
have fully proved the guilt of the accused
respondents, but the learned trial court has
taken
erroneous
approach
while
disbelieving the sworn testimony of the
complainant as well as victim before the
court. The victim has categorically stated in
her evidence that the applicant had
committed bad work, which implies that
she was subjected to rape by her. She has
even explained the said bad work in her
testimony, but learned trial court has
misappreciated the evidence and passed
impugned judgment of acquittal, which is
liable to be set-aside.

10. Per-contra, learned counsel for the
respondent No.2 to 4 submitted that there
are number of discrepancies in prosecution
evidence. The FIR is highly belated which
finds no explanation. The victim and the
accused were caught together by police
near over-bridge situated in the vicinity of
railway station. She never raised alarm to
seek assistance of passersby while she was
allegedly taken by the accused. She never
made complaint to wife or family members
of co-accused Vimal Tiwari in whose
house she was allegedly confined by main
accused Balwan during the period of her
kidnapping. She was found major in
medico legal examination and her date of
birth recorded in school record was not
proved by prosecution. Therefore, no
reliance can be placed on date of birth
relied by prosecution on the basis of her
academic records.The star witnesses of the
case Rohit who happened to be minor
brother of the victim and son of the
informant in whose presence she was
allegedly kidnapped by accused Balwan
and Akhilesh was not produced in any
evidence, whose testimony would have
thrown some light on actual sequence of
events. There is clear contradiction in stand
of the informant and victim on one hand
and that of investigating officer on the
other hand with regard to place of arrest
and recovery of the accused and victim.

11. PW-1 and PW-2 have stated in
their statement that victim was recovered
by police from the house of accused Vimal
Tiwari at Panki, whereas the investigating
officer has stated that she was recovered on
03.05.1999 near Rura Railway Station.
Therefore one thing is certain that either the
victim or the investigating officer had taken
false stand before the court with regard to
recovery of the victim and arrest of the
accused Balwan. The learned trial court has
rightly extended benefit of doubt in favour
of the accused persons and recorded verdict
of acquittal, as evidence adduced by
prosecution does not inspire confidence.

12. In the present case, if we briefly
examine the facts of the case and evidence
adduced during trial we find that incident
occurred on 07.04.2009. Whereas FIR was
lodged after 15 days of the incident, this
inordinate delay does not find any plausible
explanation either in FIR or in evidence of
the witnesses. PW-1 Munna Lal is not an
eye witness and only the informant in the
case is the father of the victim. The main
witness Rohit who is minor son of the
informant and brother of the victim was not
examined during trial for reasons best
known to prosecution. The victim remained
in the company of accused Balwan as per
her testimony for 25-26 days, but she never
raised any alarm to seek assistance of
passersby while on journey or made
complaint to the wife of family members of
accused Vimal Tiwari in whose house she
was allegedly confined. Her medico legal
examination report does not corroborate the
9 All. State of U.P. Vs. Balwan Singh & Ors.
389
allegations that she was subjected to sexual
assault, as no mark of external or internal
injury were found on her person. She was
found to be aged around more than 18
years in her medical age determination
report. No evidence was led to prove the
prosecution version that she was below 18
years of age at the time of incident.

13. Learned trial court has rightly
observed that she appears to be a
consenting party. 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."

14.

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
curtail extensive powers of an appellate
Court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise 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."
390 INDIAN LAW REPORTS ALLAHABAD SERIES

15. 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.

16.

The
Apex
Court
in
"SHIVASHARANAPPA & ORS. 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."

17. The Apex Court recently in
Jayaswamy vs. State of Karnataka,
(2018) 7 SCC 219, has laid 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. 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."
9 All. Rakesh Vs. The Permanent Lok Adalat, Lko. & Anr.
391

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 stands 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 perused the deposition of
prosecution witnesses, documents proved
during
trial,
arguments
advanced
by
learned counsel for the parties and
meticulously examined the judgment under
appeal. The reasoning given by learned
Additional Session Judge is logical and
legal as well. The finding of learned trial
court need not be disturbed in present
appeal for reasons stated in foregoing
discussion.

20. The factual scenario in the present
case does not permit us to take a different
view than that of taken by learned trial
court. We find no reason to disagree with
the reasoning and finding of learned trial
court, thus we concur findings of the court
below.

21. Consequently keeping in view the
facts and circumstances of the case,
evidence adduced during trial and reasons
given by learned trial court and binding
precedent of Apex Court as cited above, we
are of the considered view that there is no
good ground to grant leave to appeal in the
instant case, which accordingly is refused,
consequently the government appeal also
stands dismissed, at the stage of admission
itself.

22. Let lower court record be send
back immediately for necessary action
alongwith certified copy of this judgment.
----------
(2024) 9 ILRA 391
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matters Under Article 227 No. 4392 of 2024

Rakesh ...Petitioner
Versus
The Permanent Lok Adalat, Lko. & Anr.
 ...Respondents

Counsel for the Petitioner:
Ajeet Kumar, Anjali Verma, Arvind Kumar,
Devendra Kumar Verma, Rinku Verma,
Sarvesh Kumar

Counsel for the Respondents:

Civil Law-The Constitution of India, 1950Article 227 - The Code of Civil Procedure,
1908-Section 22 - The Legal Services
Authority Act, 1987- Section 22-Territorial
jurisdiction of Lok Adalat- There is no
provision contained in the Legal Services
Authorities
Act
governing
the
territorial
jurisdiction of Permanent Lok Adalat and in
these circumstances, the general principles
regarding territorial jurisdiction contained in the
Civil Procedure Code shall apply to proceeding
before Permanent Lok Adalat also. Section 20 of
the Civil Procedure Code provides that 'a suit
may be instituted within the court, within the
local limits of whose jurisdiction and defendants
reside or carry on business or personally works
for gain. When the defendant in the claim-