# State of U.P v. Chhote Verma & Anr

- **Citation:** (2021) 9 ILRA 898
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-24
- **Case number:** U/S 378 CR. P.C. No. 44 of 2021
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-chhote-verma-anr-47414
- **Pages:** 6

## Headnote

(A) Criminal Law - leave to appeal
against order of acquittal - The Code of
criminal
procedure,
1973
-
Section
378(3),313,164 - Indian Penal Code,
1860 - Section 376-D - the Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - Section 14-A ,
Section 3(2)(V) - to hold an accused
guilty for commission of an offence of
rape,
the
solitary
evidence
of
prosecutrix is sufficient provided the
same inspires confidence and appears to
be absolutely trustworthy, unblemished
and should be of sterling quality -
sterling witness - What would be more
relevant - consistency of the statement
right from the starting point till the end,
namely, at the time when the witness
makes
the
initial
statement
and
ultimately before the Court - Should be
natural and consistent with the case of
the prosecution qua the accuse .(Para -
7)

(B) Criminal Law - if two views are
possible, the High Court ought not to
interfere with the trial Court's judgment
- No bar on the High Court's power to reappreciate evidence in an appeal against
acquittal - Cr.P.C does not differentiate
in the power, scope, jurisdiction or
limitation
between
appeals
against
judgments of conviction or acquittal -
appellate Court is free to consider on
both fact and law, despite the selfrestraint that has been ingrained into
practice while dealing with orders of
acquittal
where
there
is
a
double
presumption
of
innocence
of
the
accused.(Para - 15)

F.I.R. lodged by victim/complainant (married
lady ,belongs to the scheduled caste) against
the accused-respondents - gone to ease herself
in the field of sugarcane - accused persons
ambushing in the field of sugarcane - caught
her and gagged her mouth - committed rape on
her one by one - victim did not return home -
husband reached at the spot - accused persons
ran away from the spot - victim narrated the
entire incident to her husband - Trial Court did
not find the statement of the victim of the
standard to place reliance for convicting the
accused respondents - Hence appeal.(Para - 3)

HELD:-No factual or legal error in the
appreciation of evidence by the trial Court while
acquitting the accused-respondents because
there are material contradictions in the evidence
of the victim. Medical evidence does not support
the prosecution version. Statement of the victim
is not of 'sterling' quality. No corroboratory
evidence on record. Even P.W. 2, the husband
of
the
victim,
has
given
contradictory
statements. view taken by the trial Court is a
possible view. Trial Court has given valid,
convincing
and
satisfactory
reasons
while
passing the order of acquittal for not relying on
the evidence of victim. No ground to disturb the
acquittal recorded by the trial Court.(Para -16 )

Application for leave to appeal U/S 378(3)
Cr.P.C. rejected. (E-7)

List of Cases cited:-

## Text

898 INDIAN LAW REPORTS ALLAHABAD SERIES
crime. In order to convict an accused
person, it is necessary that prosecution has
to prove the guilt of the accused beyond
reasonable doubt.

21. In this regard, the Hon'ble Apex
Court in the case of Achhar Singh Vs.
State of Himachal Pradesh reported in
(2021) 5 SCC 543, has laid down as under (
para 16) :-

"16. 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 acquittal.
This Court has held in a catena of
decisions (including Chandrappa v. State
of Karnataka, State of Andhra Pradesh v.
M. Madhusudhan Rao, And Raveen
Kumar v. State of Himachal Pradesh) 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".

22. In the light of the above
discussions and the law laid down by
Hon'ble Apex Court referred above, we do
not find any factual or legal error in the
appreciation of evidences by the trial court
for the reasons that there is no direct
evidence of the offence and the chain of
circumstantial evidence is not complete.
The motive of the crime has not been
established. There is nothing on record to
connect the accused persons with crime.
The mobile numbers from which call was
given and on which call was received have
not been disclosed. The weapon of offence
i.e. axe allegedly recovered at the pointing
out of accused persons has not been
produced and proved in court. Furthermore,
no injury of 'axe' was found on cadaver.
Moreover, the view taken by the court
below is a possible view. The court below
has
given
cogent,
convincing
and
satisfactory reasons while passing the order
of acquittal.

23. 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 and
the appeal is also dismissed.
----------

(2021)09ILR A898
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.08.2021

BEFORE

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

U/S 378 CR. P.C. No. 44 of 2021

State of U.P. ...Appellant
Versus
Chhote Verma & Anr. ...Respondents

Victim ...Complainant

Counsel for the Appellant:
Ms. Nand Prabha Shukla, Additional Government
Advocate

Counsel for the Opposite Parties:
9 All State of U.P. Vs. Chhote Verma & Anr.
899
(A) Criminal Law - leave to appeal
against order of acquittal - The Code of
criminal
procedure,
1973
-
Section
378(3),313,164 - Indian Penal Code,
1860 - Section 376-D - the Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - Section 14-A ,
Section 3(2)(V) - to hold an accused
guilty for commission of an offence of
rape,
the
solitary
evidence
of
prosecutrix is sufficient provided the
same inspires confidence and appears to
be absolutely trustworthy, unblemished
and should be of sterling quality -
sterling witness - What would be more
relevant - consistency of the statement
right from the starting point till the end,
namely, at the time when the witness
makes
the
initial
statement
and
ultimately before the Court - Should be
natural and consistent with the case of
the prosecution qua the accuse .(Para -
7)

(B) Criminal Law - if two views are
possible, the High Court ought not to
interfere with the trial Court's judgment
- No bar on the High Court's power to reappreciate evidence in an appeal against
acquittal - Cr.P.C does not differentiate
in the power, scope, jurisdiction or
limitation
between
appeals
against
judgments of conviction or acquittal -
appellate Court is free to consider on
both fact and law, despite the selfrestraint that has been ingrained into
practice while dealing with orders of
acquittal
where
there
is
a
double
presumption
of
innocence
of
the
accused.(Para - 15)

F.I.R. lodged by victim/complainant (married
lady ,belongs to the scheduled caste) against
the accused-respondents - gone to ease herself
in the field of sugarcane - accused persons
ambushing in the field of sugarcane - caught
her and gagged her mouth - committed rape on
her one by one - victim did not return home -
husband reached at the spot - accused persons
ran away from the spot - victim narrated the
entire incident to her husband - Trial Court did
not find the statement of the victim of the
standard to place reliance for convicting the
accused respondents - Hence appeal.(Para - 3)

HELD:-No factual or legal error in the
appreciation of evidence by the trial Court while
acquitting the accused-respondents because
there are material contradictions in the evidence
of the victim. Medical evidence does not support
the prosecution version. Statement of the victim
is not of 'sterling' quality. No corroboratory
evidence on record. Even P.W. 2, the husband
of
the
victim,
has
given
contradictory
statements. view taken by the trial Court is a
possible view. Trial Court has given valid,
convincing
and
satisfactory
reasons
while
passing the order of acquittal for not relying on
the evidence of victim. No ground to disturb the
acquittal recorded by the trial Court.(Para -16 )

Application for leave to appeal U/S 378(3)
Cr.P.C. rejected. (E-7)

List of Cases cited:-

1. Krishna Kumar Malik Vs St. of Har., (2011) 7
SCC 130

2. Rai Sandeep @ Deepu Vs St. (NCT of Delhi),
(2012) 8 Supreme Court Cases 21

3. Santosh Prasad @ Santosh Kumar Vs St. of
Bihar, (2020) 3 Supreme Court Cases 443

4. Achhar Singh Vs St. of H.P. , 2021 SCC Online
HP 870

(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.") read with Section 14-A of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (in
short "SC/ST Act") has been filed by the
State-appellant against the judgment and
order passed by Additional Sessions
Judge/Special
Judge,
SC/ST
Act,
Lakhimpur Kheri in Special Sessions Trial
No. 106 of 2017, Crime No. 264 of 2017,
900 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 376-D of The Indian Penal
Code, 1860 (in short "IPC") and Section
3(2)(V) SC/ST Act, Police Station Fardhan,
District Lakhimpur Kheri, whereby the
accused-respondents have been acquitted.

2. Heard Ms. Nand Prabha 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
lodged
by
the
victim/complainant against the accusedrespondents on 13.09.2017 stating that on
09.09.2017 at about 7.00 PM, while she
had gone to ease herself in the field of
sugarcane near her village, the accused
persons
namely
Chhote
Verma
and
Hemnath, who were ambushing in the field
of sugarcane, caught her and gagged her
mouth and committed rape on her one by
one. When the victim did not return home,
her husband reached at the spot, then
accused
persons
Chhote
Verma
and
Hemnath
ran
away
from
the
spot.
Thereafter, the victim narrated the entire
incident to her husband.

4. The case was investigated and
charge sheet submitted against the accused
persons/respondents.
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 persons. They
denied the charges and claimed to be tried.
The prosecution in order to prove charges
levelled against the accused respondents
examined the victim as P.W. 1, Sushil
Kumar (husband of the victim) as P.W. 2,
Dr. Yamini Badal as P.W. 3, Constable
Sarita as P.W. 4 and Ravindra Verma,
Investigating Officer/Circle Officer, Sadar
as P.W. 5. Necessary documents were also
proved by the prosecution i.e. Exhibits 1 to
5.

5. Learned A.G.A. assailed the
impugned judgment submitting that learned
Trial Court discarded the evidence of the
victim and her husband without any proper
and legal reason. The prosecution has
proved charges levelled against the accused
persons by the evidence of P.W. 1-victim.
The victim is a married lady and she
belongs to the scheduled caste. The trial
Court has committed a grave error in not
relying on the statement of the victim. The
medical evidence has also corroborated the
version
of
prosecution.
Hence
the
impugned judgment and order is illegal, not
sustainable in the eyes of law and liable to
be set aside.

6.

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

7. It is settled law that conviction can
be made in case of rape on the basis of sole
testimony of the victim but the testimony
should be such as to raise confidence of the
Court and the Court finds that genuine and
reliable. If the evidence of victim sufferes
from contradictions and not of high quality,
then it shall not be just and legal to convict
the accused relying upon her evidence. In
such situation, the Court should look for
corroboration. Hon'ble Apex Court in the
case of Krishna Kumar Malik Versus
State of Haryana (2011) 7 SCC page-130
has held as under:-

"No doubt, it is true that to hold
an accused guilty for commission of an
9 All State of U.P. Vs. Chhote Verma & Anr.
901
offence of rape, the solitary evidence of
prosecutrix is sufficient provided the same
inspires confidence and appears to be
absolutely trustworthy, unblemished and
should be of sterling quality."

The Hon'ble Apex Court in the
case of Rai Sandeep Alias Deepu Versus
State (NCT of Delhi) (2012) 8 Supreme
Court Cases 21 has laid down as under:-

"In our considered opinion, the
''sterling witness' should be of a very high
quality and caliber whose version should,
therefore, be unassailable. The Court
considering the version of such witness
should be in a position to accept it for its
face value without any hesitation. To test
the quality of such a witness, the status of
the witness would be immaterial and what
would be relevant is the truthfulness of the
statement made by such a witness. What
would be more relevant would be the
consistency of the statement right from the
starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the Court.
It should be natural and consistent with the
case of the prosecution qua the accused.
There should not be any prevarication in
the version of such a witness. The witness
should be in a position to withstand the
cross- examination of any length and
howsoever strenuous it may be and under
no circumstance should give room for any
doubt as to the factum of the occurrence,
the persons involved, as well as, the
sequence of it. Such a version should have
co-relation with each and everyone of other
supporting material such as the recoveries
made, the weapons used, the manner of
offence committed, the scientific evidence
and the expert opinion. The said version
should consistently match with the version
of every other witness. It can even be stated
that it should be akin to the test applied in
the case of circumstantial evidence where
there should not be any missing link in the
chain of circumstances to hold the accused
guilty of the offence alleged against him.
Only if the version of such a witness
qualifies the above test as well as all other
similar such tests to be applied, it can be
held that such a witness can be called as a
''sterling witness' whose version can be
accepted by the Court without any
corroboration and based on which the
guilty can be punished. To be more precise,
the version of the said witness on the core
spectrum of the crime should remain intact
while all other attendant materials, namely,
oral, documentary and material objects
should match the said version in material
particulars in order to enable the Court
trying the offence to rely on the core
version to sieve the other supporting
materials for holding the offender guilty of
the charge alleged."

This view has again rehashed by
the Hon'ble Apex Court in the case of
Santosh Prasad Alias Santosh Kumar
Versus State of Bihar (2020) 3 Supreme
Court Cases 443.

8. The incident allegedly took place
on 09.09.2017 and the F.I.R. was lodged on
13.09.2017. P.W. 1- victim/complainant in
her statement has stated that while she had
gone to ease herself in the field of
sugarcane
of
Awadhesh
Mishra,
the
accused respondents Chhote Verma and
Hemnath Pasi, who were ambushing in the
field of Sugarcane, caught her and after
gagging her mouth, dragged in the field of
sugarcane and committed rape on her, at
the same time, her husband reached at the
spot and on seeing him the accused
respondent run away. The witness Sushil
Kumar,
the
husband
of
the
902 INDIAN LAW REPORTS ALLAHABAD SERIES
victim/complainant, has been examined as
P.W. 2. He has stated that the victim is his
wife and on the fateful day, while her wife
had gone to ease herself in the field and
when she did not come back, he tried to
search her carrying a torch and reached at
the field of sugarcane and witnessed that
the accused respondents were committing
rape on her. On flashing torch light, the
accused respondents ran away leaving her
wife.

9. Learned Trial Court did not find the
statement of the victim of the standard to
place reliance for convicting the accused
respondents. Perusal of the record shows
that there are major contradictions in the
statement of P.W. 1 (victim). In her crossexamination, the victim has stated that the
accused dragged her in "Khanti" (trench)
near the sugarcane field and committed
rape there but there is no mention of
"Khanti" (trench) in the F.I.R. or statement
of the victim recorded under Section 164
Cr.P.C. or in the site plan prepared by the
Investigating
Officer.
The
accused
respondent Chhote Verma has been named
in the F.I.R. and the victim in her
examination-in-chief has stated that he
committed rape upon her but in her crossexamination, she has stated that she did not
know how the name of Chhote Verma was
written in the FIR and further stated that it
might be possible that the name of Chhote
Verma mentioned by Kulwant Singh- exPradhan of the village. Her signature was
taken on the written report. She has also
stated that she never met Chhote Verma @
Sanjay on the way, which goes "Guthna
Bujurg" to "Khutna Khurd".

10. The medical evidence also does not
corroborate the prosecution version or the
statement of the victim. P.W. 3- Dr Yamini
Badal, who examined the victim/complainant
(P.W. 1), has stated that neither any external
nor internal injury was found on the private
parts or the person of the victim and as per
the report of Forensic Science Laboratory,
Lucknow, no spermatozoa were found in the
vaginal smear of the victim. In her crossexamination, she has further stated that at the
time of examination, no sign of rape was
found.

11. P.W. 2-Sushil Kumar (husband of
the victim), who has been produced as eyewitness of the crime, has also given
contradictory statement. In his examination in
chief, he has stated that he saw Chhote
Verma was committing rape on her wife but
in his cross-examination, he has stated that he
did not see Hemnath committing rape.

12. The accused respondents Chhote
Verma and Hemnath have stated in their
statements recorded under Section 313
Cr.P.C. that they have been falsely implicated
in the case and they further stated that they
have no concern with the alleged incident and
they are innocent.

13. The aforesaid analysis makes it
clear that prosecution failed to prove charges
levelled against the accused persons beyond
reasonable doubt.

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

15. 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
9 All Pramod Kumar & Ors. Vs. State of U.P. & Anr.
903
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".

16. We do not find any factual or
legal error in the appreciation of evidence
by the trial Court while acquitting the
accused-respondents because there are
material contradictions in the evidence of
the victim. Medical evidence does not
support the prosecution version. The
statement of the victim is not of 'sterling'
quality. There is no corroboratory evidence
on record. Even P.W. 2, the husband of the
victim, has given contradictory statements.
Moreover, the view taken by the trial Court
is a possible view. The trial Court has given
valid, convincing and satisfactory reasons
while passing the order of acquittal for not
relying on the evidence of victim. For the
aforesaid reasons, there appears no ground
to disturb the acquittal recorded by the trial
Court.

17. 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 and
the appeal is also dismissed.
----------
(2021)09ILR A903
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.08.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Applictation U/S 482 No.1863 of 2021

Pramod Kumar & Ors. ....Applicants
Versus
State of U.P. & Anr. ....Opposite Parties

Counsel for the Applicants:
Sri Onkar Singh, Sri Sachin Malik.

Counsel for the Opposite Parties:
A.G.A., Sri Dheeraj Singh (Bohra)

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 498A, 323, 504, 506, 354, 354B,
376, 511 - Dowry prohibition Act,1961
(D.P. Act) - Section 3/4 - legal position for
quashing of the proceedings at the initial
stage - test to be applied - whether
uncontroverted allegation as made prima
facie establishes the offence and the
chances of ultimate conviction is bleak
and no useful purpose is likely to be
served by allowing criminal proceedings to
be continue - quashing of the criminal
proceedings is an exception than a rule -
power of High Court should be exercised
very cautiously to do real and substantial
justice
for
which
the
court
alone
exists.(Para - 11)