# State of U.P v. Jitendra Kumar Yadav

- **Citation:** (2019) 2 ILRA 1287
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-01
- **Case number:** Criminal Appeal (u/s 378(4) of Cr.P.C.) No. 168 of 2019
- **Bench:** Devendra Kumar Upadhyaya, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-jitendra-kumar-yadav-44584
- **Pages:** 10

## Headnote

A. Indian Penal Code, 1860 - Sections
363,366,376 & Code of Criminal Procedure
- Section 378(3) -Application to grant
leave to appeal - rejection - even if another
view is possible, in absence of any
compelling and substantial reason, the
appellate court dealing with appeal against
acquittal would not interfere with the
acquittal unless the approach of the court
below is found to be manifestly vitiated
while it makes consideration of evidence.
 (Para 10,11,12,16,17,23,34 & 36)

Criminal Appeal dismissed (E-6)

Precedent followed: -

## Text

2 All. State of U.P. Vs Jitendra Kumar Yadav
1287
Usha Rani AIR 1984 SC 956 while
considering the provisions of Section
81(3) and 86 of the Act opined that filing
of the incorrect copies of the election
petition and providing an incorrect copy
upon the respondents amounts to noncompliance of Section 81(3) which entails
dismissal of the election petition.

59. A learned Single Judge of the
Allahabad High Court in Shitla Prasad
Sonkar Vs. Arun Kumar Nehru and
others AIR 1987 Alld. 51 following the
above decision of the Supreme Court held
ommision of certain paragraphs in the copy
of the election petition supplied to the
respondents is fatal and the election petition
is liable to be dismissed in view of Section
83(3) and 86(1) of the Act as such a defect
cannot be permitted to be rectified.

60. In view of the aforesaid facts and
circumstances as well as legal position
narrated, since the provisions of Section 86 of
the Act are mandatory and must be complied
with in letter and spirit, the election petition is
liable to be dismissed for non-compliance of
Section 81(3) of the Act.

61. Accordingly, election petition is
dismissed under Section 86 of the Act
with cost of Rs.25,000/- to be deposited
with the registry of the Court.
----------

(2019)10ILR A 1287

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.10.2019

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.
Criminal Appeal (u/s 378(4) of Cr.P.C.) No.
168 of 2019

State of U.P. ...Applicant
Versus
Jitendra Kumar Yadav ...Opposite Party

Counsel for the Applicant:
Government Advocate

Counsel for the Opposite Party:
------

A. Indian Penal Code, 1860 - Sections
363,366,376 & Code of Criminal Procedure
- Section 378(3) -Application to grant
leave to appeal - rejection - even if another
view is possible, in absence of any
compelling and substantial reason, the
appellate court dealing with appeal against
acquittal would not interfere with the
acquittal unless the approach of the court
below is found to be manifestly vitiated
while it makes consideration of evidence.
 (Para 10,11,12,16,17,23,34 & 36)

Criminal Appeal dismissed (E-6)

Precedent followed: -

1. St. of Raj. Vs Shera Ram alias Vishnu Dutta
(2012) 1 SCC 602

2. Shyam Babu Vs St. of U.P. (2012) 8 SCC 651

3. Ram Lakhan Sheo Charan & ors. Vs St. of
U.P. 1991 Cri.L.J. 2790

4. Phool Chand and etc. Vs St. of U.P. 2004
Cri.L.J. 1904

5. Ram Kishan Singh Vs Harmit Kaur & ors.
(1972) 3 SCC 280

6. Utpal Das & anr. Vs St. of W.B. (2010) 6 SCC 493

7. Rajendra Singh & ors. Vs St. of Bihar (2000) 4 SCC 298

8. Vishnu @ Undrya Vs St. of Mah. (2006) 1 SCC 283
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J. & Hon'ble Mohd. Faiz
Alam Khan, J.)

1. This application by the State of
U.P. under Section 378 (3) of the Code of
Criminal Procedure has been filed with
the prayer to grant leave to appeal against
the judgment and order dated 18.07.2019
rendered by the learned Additional
Sessions Judge, FTC-Ist, in Sessions Trial
No. 4/2007 which arose out of Case
Crime No. 32/2006, under Sections 363,
366, 376 I.P.C., Police Station Ahirauli,
District Ambedkar Nagar, whereby the
respondent-accused-Jitendra
Kumar
Yadav has been acquitted of the charges
under Sections 363, 366, 376 of the I.P.C.

2. In brief, the facts of the case are
that the informant-Ram Tej Verma lodged
an
First
Information
Report
on
01.05.2006 at Police Station Ahirauli,
District
Ambedkar
Nagar
with
the
assertion that his daughter (hereinafter
referred to as the ''victim') was student of
Class-11 in Jhinka Devi Balika Inter
College, Fattepur, Belabagh, who at 06.30
a.m. on 21.04.2006 had gone to attend her
school, however, she had not come back
and accordingly the informant made all
endeavours to trace her and further that
his daughter had been enticed away by the
accused-Jitendra Kumar Yadav son of
Tribhuwan Yadav who is resident of his
village. In the F.I.R., it was also stated
that that Raja Ram Verma and Brij Lal
Verma and others had seen the victim
being taken away by the accused.

3. On the basis of said F.I.R., Case
Crime No. 32 of 2006, under Sections
363, 366, 376, I.P.C., at Police Station
Ahirauli, District Ambedkar Nagar was
registered and after investigation a charge
sheet was submitted against the accusedJitendra Kumar Yadav, under Sections
363, 366, 376, I.P.C. The Chief Judicial
Magistrate,
Ambedkar
Nagar
took
cognizance and summoned the accused.
On appearance of the accused, the case
was committed to the sessions court.
Charges against the accused were framed
under Sections 363, 366, 376, I.P.C. who
pleaded not guilty to the charges and
claimed trial. Accordingly, the trial
commenced.

4. The prosecution in order to bring
home the charges against the accused
examined seven prosecution witnesses,
namely, the informant-Ram Tej Verma
(P.W.1), the victim (P.W.2), Brij Lal
Verma (P.W.3), Raja Ram (P.W.4),
Ramesh Chandra, Investigating Officer
(P.W.5), Rama Devi Verma, Principal of
the School (P.W.6) and Dinesh Kumar
Bhaskar,
Chief
Pharmacist,
District
Women Hospital, Ayodhya (P.W.7). The
prosecution
also
placed
certain
documentary
evidences
including
statement of the victim recorded before
the Magistrate under Section 164, Cr.P.C.
and her medical report.

5. After closure of the evidence of
the prosecution, the statement of the
accused was recorded under Section 313,
Cr.P.C. who denied the allegations and
stated that he had falsely been implicated.
However, no evidence by the defence was
led.

6. Learned trial court considered the
evidence available on record and finding
material contradiction in the statement of
the victim recorded before the court and
the one recorded by her before the
Magistrate under Section 164, Cr.P.C. and
also finding various discrepancies in the
2 All. State of U.P. Vs Jitendra Kumar Yadav
1289
statement of the other witnesses has given
a finding that the prosecution has not been
able to prove the charges against the
accused beyond reasonable doubt and
accordingly, acquitted the accused of the
charges for which the accused was tried
giving him benefit of doubt.

7. Seeking leave to appeal in this
case, learned Additional Government
Advocate has argued that the prosecutrix
herself in her deposition before the court
has completely supported the case of the
prosecution, however, learned trial court
by not finding her evidence credible has
committed manifest error and thus, it is a
case where leave to appeal should be
granted.

8. It has further been argued by the
learned counsel appearing for the State
that reliance placed by the learned trial
court on the statement of the prosecutrix
under Section 164, Cr.P.C. in preference
to her deposition made before the court is
an approach adopted by the learned trial
court which cannot be approved of.

9. We have considered the arguments
made by learned Additional Government
Advocate appearing for the State.

10. As observed above by Hon'ble
Supreme Court in the case of State of
Rajasthan Vs. Shera Ram alias Vishnu
Dutta, reported in (2012) 1 Supreme
Court Cases 602, though there is no
substantial difference between an appeal
against conviction and an appeal against
acquittal, however, what is to be borne in
mind while dealing with an appeal against
acquittal is that the presumption of
innocence in favour of the accused has
been fortified by his acquittal and if the
view adopted by the lower court is a
reasonable
one
and
the
conclusion
reached by it is based on the material on
record, the acquittal may not be interfered
with. The Hon'ble Supreme Court goes on
to further observe in the case of Shera
Ram (supra) that though there is no
absolute restriction to re-look the entire
evidence on which the order of acquittal
is based, however, it is only if the
appellate court finds that the lower court's
decision is based on an erroneous view
and is against the settled principles of law
that the order of acquittal should be set
aside. Paragraphs 10 and 11 of the
judgment in the case of Shera Ram
(supra) are relevant which are extracted
herein below :

"10. There is a very thin but a
fine distinction between an appeal
against conviction on the one hand and
acquittal
on
the
other.
The
preponderance of judicial opinion of this
Court is that there is no substantial
difference between an appeal against
conviction
and
an
appeal
against
acquittal except that while dealing with
an appeal against acquittal the Court
keeps in view the position that the
presumption of innocence in favour of
the accused has been fortified by his
acquittal and if the view adopted by the
High Court is a reasonable one and the
conclusion reached by it had its grounds
well set out on the materials on record,
the acquittal may not be interfered with.
Thus, this fine distinction has to be kept
in mind by the Court while exercising its
appellate jurisdiction. The golden rule is
that the Court is obliged and it will not
abjure its duty to prevent miscarriage of
justice, where interference is imperative
and the ends of justice so require and it
is essential to appease the judicial
conscience.
1290 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Also, this Court in Abdul
Mannan case had the occasion to state
the principles which may be taken into
consideration by the appellate court
while dealing with an appeal against
acquittal. There is no absolute restriction
in law to review and re-look the entire
evidence on which the order of acquittal
is founded. If, upon scrutiny, the
appellate court finds that the lower
court's decision is based on erroneous
views and against the settled position of
law then the said order of acquittal
should be set aside".

11. Yet in another case of Shyam
Babu Vs. State of U.P., reported in
(2012) 8 Supreme Court Cases 651,
Hon'ble Supreme Court has reiterated the
principles on which the appellate court
may interfere with the order of acquittal
passed by the trial court. Hon'ble Supreme
Court has stated in the said case of
Shyam Babu (supra) that the appellate
court while entertaining the appeal against
the judgment of acquittal rendered by the
trial court is though entitled to reappreciate the evidence and come to an
independent conclusion, however, such
interference with the order of acquittal
should not be made unless the decision of
the trial court is found perverse or
unreasonable resulting in miscarriage of
justice. The said principle laid down by
Hon'ble Supreme Court can be found in
para-16 of the judgment in the case of
Shyam
Babu
(supra),
which
is
reproduced herein below:-

"16. It is true that it would not
be possible for the appellate Court to
interfere with the order of acquittal
passed by the trial Court without
rendering specific finding, namely, that
the decision of the trial Court is perverse
or unreasonable resulting in miscarriage
of justice. At the same time, it cannot be
denied that the appellate Court while
entertaining an appeal against the
judgment of acquittal by the trial Court
is entitled to re-appreciate the evidence
and come to an independent conclusion.
We are conscious of the fact that in
doing so, the appellate Court should
consider every material on record and
the reasons given by the trial Court in
support of its order of acquittal and
should interfere only on being satisfied
that the view taken by the trial Court is
perverse and unreasonable resulting in
miscarriage of justice. We also reiterate
that if two views are possible on a set of
evidence, then the appellate Court need
not substitute its own view in preference
to the view of the trial Court which has
recorded an order of acquittal".

12. Keeping in view the aforesaid
principles of law enunciated by the
Hon'ble Supreme Court regarding scope
and ambit of this Court in an appeal filed
against the judgment of acquittal, we now
proceed to examine whether the prayer
made by the State in this case for grant of
leave to appeal can be granted. Such grant
of leave will be permissible only if the
judgment of acquittal in this case is found
suffering
from
any
manifest
legal
infirmity or is found based on erroneous
appreciation of evidence.

13.
 As
observed
above,
the
prosecution
has
examined
seven
prosecution witnesses. The statement of
victim (P.W.2) is relevant to be discussed
at this juncture. She before the court
deposed that on 21.04.2006 at 06.30 a.m.
she was going to attend her school,
namely, Jhinka Devi Patel Balika Inter
College, Fattepur, Belabagh, District
2 All. State of U.P. Vs Jitendra Kumar Yadav
1291
Ambedkar Nagar. She further stated that
when she reached Barwa Bazar, the
accused forcibly got her seated on his
motor-cycle and when the said attempt of
accused was opposed, he threatened her
that he will kill her if she resisted. She has
further deposed that thereafter accused
took her to Faizabad via Mahboobganj
and parked his motor-cycle in the Agency
and thereafter took her to Lucknow by
Bolero(a motorized four wheeler). She
further stated in her deposition before the
court that the accused took her to railway
station at Lucknow and thereafter he took
her to Amratsar where he kept her in a
rented room and committed rape on her
without her consent and that the accused
forcibly detained her at Amratsar for 5-6
months. In her deposition, she further
stated that when the accused came to
know that F.I.R has been lodged and
attachment
proceedings
were
also
undertaken then the accused took her to
Akbarpur at her aunt's house (Mausi).
However, accused was apprehended by
the police at Akbarpur Railway Station
whereupon both of them were taken to
Police Station where she had made her
statement before the police. In her
deposition, she further stated that she
made the statement under Section 164,
Cr.P.C. as well. However, when the
statement recorded under Section 164,
Cr.P.C. was read over to her she stated
that she had not given any such statement.
It is on record that the victim in her
statement recorded under Section 164,
Cr.P.C.
had
stated
that
she
had
relationship with the accused-Jitendra
Kumar Yadav for the last 3-4 years and
when her father settled her marriage
elsewhere then she went away with the
accused with a plan and accordingly on
21.04.2006
(the
date
of
alleged
occurrence), she went to Barwa Bazar
from her residence where the accused was
waiting for her and thereupon she with the
accused
went
to
Ayodhya
via
Mahboobganj and they got married in a
temple at Ayodhya. In the said statement,
she further deposed that after getting
married they came to Faizabad and left
the motor-cycle at the Agency for
servicing and thereafter they went to
Lucknow by Marshell (a motorized four
wheeler) and took train at Lucknow
railway station for Amratsar and on
reaching Amratsar they started living
together in a room where the accused
worked as labourer and from there both of
them left for Gurgaon where the accused
did some computer related work.

14. In the said statement, the victim
also stated that on coming to know about
attachment proceedings both of them left
for their residence and when they reached
Akbarpur,
both
of
them
were
apprehended. In her statement under
Section 164, Cr.P.C. she also stated that
the accused had not taken her away
forcibly and that she had gone with him
willingly and both of them had lived as
husband and wife and that the accused did
not commit any forcible act on her. She
also stated that she is aged about 20 years,
though her age was not recorded in the
school correctly and in school her age
recorded is less then her actual age. The
victim also stated in her deposition under
Section 164, Cr.P.C. (Exhibit Ka-2) that
she was 20 years of age and that she had
gone with the accused on her own
willingness and on 21.04.20106 she
solemnized marriage with the accused in
Ayodhya and that she wanted to live with
the accused.

15. However, when the victim was
produced before the Court as witness,
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
after 11 years from the date of occurrence,
as P.W.2, she for the first time stated that
on 21.04.2006 the accused had forcibly
got her seated on his motor-cycle and
took her to Amratsar where he kept her in
a rented room and committed rape
forcibly upon her and further that he kept
her there for 5-6 months.

16. Learned trial court in the
judgment of acquittal has thus found that
there
is
substantial
and
material
contradiction between the statement made
by the victim under Section 164, Cr.P.C.
and her statement recorded during trial
before the court. Learned trial court has
also observed that in case there is material
contradiction
between
the
statement
recorded under Section 164,Cr.P.C. and
the statement made before the court
during trial and no sufficient believable
explanation comes-forth from the victim
for such material contradiction, the
benefit should go to the accused. The
learned trial court after noticing the
statement made by the victim under
Section 164, Cr.P.C. has stated that
though in her examination-in-chief she
stated that she did not give such a
statement under Section 164, Cr.P.C.
however, in her cross-examination she
admitted that she had gone to get her
statement recorded under Section 164,
Cr.P.C. alone and that she had put her
signatures on the said statement with her
willingness. In her cross-examination the
victim further stated that the statement
recorded under Section 164, Cr.P.C. is the
same which was stated by her on the
asking of the Magistrate. She also stated
that after reading the statement recorded
under Section 164, Cr.P.C. she had put
her signatures and when the victim was
shown the statement made by her under
Section 164, Cr.P.C. she stated that it is
the same statement which she had got
recorded before the Magistrate.

17. Based on the deposition made by
the victim in her cross-examination, the
learned trial court has recorded a
categorical finding that no satisfactory
explanation could be furnished by the
victim for the material contradiction in
her statement. Learned trial court has also
recorded various other contradictions in
the statement made by the victim and has
concluded
that
she
had
made
the
statement after 11 years from the date of
occurrence which is in complete, contrast
and contradiction of the statement made
by her under Section 164, Cr.P.C.

18. It is well settled by various
decisions of this Court as also those of
Hon'ble Supreme Court that the statement
under Section 164, Cr.P.C. cannot be used
as a substantive evidence, rather it can
only be used to contradict and corroborate
the statement of a witness given in the
court. Regard in this respect can be had to
a Division Bench Judgment of this court
in the case of Ram Lakhan Sheo
Charan and others Vs. State of U.P.,
reported in 1991 Cri.L.J. 2790, para 12
of which is quoted herein below:

"12. The trial was held when
the new Code of Criminal Procedure had
come into force. The wordings of S.164
in the new and old Code of Criminal
Procedure with little changes are the
same. As early as in Manik Gazi v.
Emperor, AIR 1942 Cal 36 : (1942) 43
Cri LJ 277 a Division Bench of the
Calcutta High Court had held that the
statements Under Section 164 of the
Code can be used only to corroborate or
contradict the statements made Under
Section 145 and 157 of the Indian
2 All. State of U.P. Vs Jitendra Kumar Yadav
1293
Evidence Act. In Brij Bhushan Singh v.
Emperor, AIR 1946 PC 38 and in
Mamand v. Emperor, AIR 1946 PC 45 :
(1946) 47 Cri LJ 344) the Privy Council
had observed that the statement Under
Section 164 of the Code cannot be used
as a substantive evidence and which can
only
be
used
to
contradict
and
corroborate the statement of a witness
given in the Court. Similar observations,
as made in the two cases below, were
made by the Privy Council, in Bhuboni
Sahu v. Kind, AIR 1949 PC 257 : (1949)
50 Cri LJ 872) and in Bhagi v. Crown,
1950 Cri LJ 1004 : (AIR (37) 1950 HP
35). It was also held by a single Bench of
the
Himachal
Pradesh
Judicial
Commissioner's court that statement
Under Section 164 of Code cannot be
used as a substantive piece of evidence.
In State v. Hotey Khan, 1960 ALJ 642 :
(1960 Cri LJ 1167). A division Bench of
this Court had also observed that
statements Under Section 164 of the
Code cannot be used as a substantive
evidence".

19. Similar view has been expressed
yet in another Division Bench judgment
in the case of Phool Chand and etc. Vs.
State of U.P., reported in 2004 Cri.L.J.
1904.

20. Hon'ble Supreme Court in the
case of Ram Kishan Singh Vs. Harmit
Kaur and another, reported in (1972) 3
Supreme Court Cases 280 has held that
a statement under Section 164 of the Code
can be used to corroborate the statement
of a witness and it can also be used to
contradict a witness.

21. In Utpal Das and another Vs.
State of West Bengal, reported in
(2010) 6 Supreme Court Cases 493, the
Hon'ble Supreme Court has again held
that the statement recorded under Section
164, Cr.P.C. can never be used as
substantive evidence of truth but it may
be
used
for
contradictions
and
corroboration of a witness. It has further
been held that the statement made under
Section 164, Cr.P.C. can be used to crossexamine the maker of it and the result
may be to show that the evidence of the
witness is false. Thus, the legal principle
in respect of the provision of Section 164,
Cr.P.C. which can be deduced is that the
said statement can be used to impeach the
credibility of the prosecution witness. The
relevant observation made by Hon'ble
Supreme Court in the case of Utpal Das
(supra) is extracted herein below:

"16. Likewise, statement recorded
under Section 164 Cr.P.C. can never be used
as substantive evidence of truth of the facts
but may be used for contradictions and
corroboration of a witness who made it. The
statement made under Section 164 Cr.P.C.
can be used to cross examine the maker of it
and the result may be to show that the
evidence of the witness is false. It can be
used to impeach the credibility of the
prosecution witness........"

22. Learned trial court has also taken
into account the medical report (Exhibit
Ka-11), according to which no external
and internal injury on the body of the
victim was found and has observed that
though for arriving at the conclusion
regarding rape, it is not necessary that the
victim should suffer any injury on her
body, however, this circumstance is to be
looked into in the context of the facts and
circumstances of a particular case.

23. Having examined the judgment
passed by the trial court what we find is
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
that learned trial court has considered the
evidence on record thoroughly and has
rightly given a finding that the victim in
this case had attempted to make deliberate
improvement on the material point. She
has also not been able to give any
explanation which can be said to be
satisfactory on any count about material
contradiction
between
her
statement
recorded during trial and the one made by
her under Section 164, Cr.P.C. As a
matter of fact, though in her examinationin-chief the victim has denied making the
statement as recorded under Section 164,
Cr.P.C.,
however,
in
her
crossexamination she has admitted to have
made the statement that she at the time of
occurrence was 20 years of age and that
she had gone with the accused on her own
volition and further that on 21.04.20106
itself she got married with accused at
Ayodhya and that she wanted to live with
the accused. In view of the said admission
of the victim in cross-examination in
respect of her such statement made under
Section 164, Cr.P.C. in our considered
opinion, the learned trial court has rightly
held that the evidence of the victim
cannot be held to be reliable.

24. As per section 145 of the Evidence
Act, a witness can be cross-examined as to the
previous statements made by him in writing or
reduced into writing and is relevant to the
matter in question, without such writing being
shown to him, or being proved. However, if a
witness is to be contradicted by the writing,
his attention must be drawn to those parts of
the statement reduced in writing which are to
be used for the purpose of contradicting him.
Section 145 of the Evidence Act is reproduced
herein under :

"145.Cross-examinationas to
previous statements in writing: A
witness may be cross-examined as to
previous statements made by him in writing
or reduced into writing, and relevant to
matters in question, without such writing
being shown to him, or being proved; but, if
it is intended to contradict him by the
writing, his attention must, before the writing
can be proved, be called to those parts of it
which are to be used for the purpose of
contradicting him".

25. Object of section 145 of the
Evidence Act is to give the witness a chance
of explaining discrepancy or inconsistency.
This provision will have application in a
situation where the witness disowns having
made any statement previously which is
inconsistent with his present testimony in
court. However, the statement would not be
vitiated until while such witness is crossexamined, the procedure prescribed in
Section 145 of the Evidence Act is
followed, that is to say if the maker of the
statement is sought to be contradicted, his
attention should be drawn to his previous
statement.

26. Hon'ble Supreme Court in the
case of Rajendra Singh and others Vs.
State of Bihar, reported in (2000) 4
Supreme
Court
Cases
298
has
categorically held that if a witness during
trial is intended to be contradicted by his
previous
statement
made
then
his
attention has to be drawn to those parts of
the statement which are required to be
used for the purpose of contradicting him,
however, the provision contained in the
second limb of Section 145 needs to be
complied with, that is to say, the witness
has to be confronted with his earlier
statement made or reduced in writing.

27. In the instant case, the
contradiction in the statement made by the
2 All. State of U.P. Vs Jitendra Kumar Yadav
1295
victim before the court during trial vis-avis her statement made under Section 164,
Cr.P.C.
is
visible.
During
crossexamination, she was confronted with the
statement made by her under Section 164,
Cr.P.C. as in fact her attention was drawn
to the said statement which is clear from
the following extract of the judgment
rendered by the learned trial court :

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A c;ku ij mlus gLrk{kj i<+dj viuh ethZ ls
cuk;k Fkk A eftLVasV lkgc us tks iw¡Nk Fkk] mlus
crk;k Fkk] ogh fy[kk x;k Fkk i<+dj mlus c;ku
164 na0iz0la0 ij gLrk{kj cuk;k Fkk A xokg us 164
na0iz0la0 ds c;ku dks i<+dj dgk fd ;gh c;ku
mlus eftLVsaV dks fn;k Fkk A vr% ihfM+rk }kjk
viuh eq[; ijh{kk esa ;g dgk x;k gSa fd tSlk
c;ku 164 na0iz0la0 dk i+=koyh ij ekStwn gSa] oSlk
c;ku mlus ugh fn;k vkSj ;g Hkh dgk gSa fd
mldk c;ku tcjnLrh iqfyl okyksa o ftrsUnz ds
?kjokyksa us fnyk;k Fkk ijUrq ftjg esa ;g dgk gSa
fd eftLVsaV us mlls tks Hkh iw¡Nk Fkk] mlus crk;k
Fkk] ogha fy[kk x;k Fkk vkSj mlus i<+dj viuh
ethZ ls gLrk{kj fd;k Fkk A ;g Hkh dgk gSa fd
mlus tks cksyk Fkk] ogh fy[kk x;k Fkk A ,slh
fLFkfr esa ihfM+rk }kjk lk{; esa ijLij fojks/kkHkk+"kh
dFku fd;s tk jgsa gSa vkSj ihfM+rk }kjk vius /kkjk
164 na0iz0la0 ds c;ku o U;k;ky; ds le{k fn;s
x;s c;ku esa vk;s ijLij fojks/kkHkk+"kh dFkuks ds laca/k
esa dksbZ Hkh larks"ktud dkj.k ugh fn;k tk ldk gSa
A"

28. The statement of the victim thus
is not worth being given any credence.

29. Regarding age of the victim, the
prosecution has relied upon a photocopy
of the certificate depicting her age to be
25.07.1990 issued by the Education
Board. To prove the said document
Principal of the School, Ms. Rama Devi
Verma (P.W.6) has been examined who in
her cross-examination has stated that at
the time of enrollment of the victim in the
School, no certificate of date of birth was
produced and that whatever date of birth
of the student is revealed by their parents
at the time of enrollment that is recorded.
In this regard statement of father of the
victim (P.W.1) may also be looked into
who in his deposition before the trial
court has stated that he cannot tell the date
of birth of his children and that he had not
gone with his daughter to School at the
time of her enrollment. He has further
stated that he cannot tell as to how his
daughter was got enrolled in the School.

30. Based on the said statement of
P.W.1, learned trial court has given a
finding that this witness (P.W.1) does not
know that exact date of birth of the
victim. Learned trial court has also relied
upon the statement of the Principal of the
School who in her deposition before the
trial court has stated that no certificate
regarding date of birth of the victim is
available in the School.

31. In view of these evidences,
learned trial court has doubted the date of
birth recorded in her certificate issued by
the education board. Learned trial court
has also referred to the medical report
based on medication examination of the
victim which has been issued by the Chief
Medical Officer, according to which, the
age of the victim was opined to be 19
years. Learned trial court has also referred
to the statement of the victim recorded
under Section 164, Cr.P.C. where she had
stated that her age was 20 years. Thus, the
case of the prosecution that the victim at
the time of occurrence was not major, has
been rejected by the learned trial court.

32. Reference at this juncture may
be had to a judgment of Hon'ble Supreme
Court rendered in the case of Vishnu @
Undrya Vs. State of Maharashtra,
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
reported in (2006) 1 SCC 283. This case
also related to the trial under Section
376/366 I.P.C. In the said case, according
to the prosecution the prosecutrix was
below 16 years of age at the time of
commission of offence on the basis of
certain documents, however, some doubt
arose in respect of date of birth of the
prosecutrix which according to one
document was 29.11.1964 and according
to other it was 29.06.1963. Thus, two
documents contradicting each other in
respect of date of birth of the prosecutrix
in the said case created a doubt and
circumstances of the said case became
capable of two opinions, one in favour of
accused and the other in favour of the
prosecution.

33. In the said case of Vishnu
(supra), the Hon'ble Supreme Court went
on to observe that it is a common
knowledge that very often parents furnish
incorrect date of birth to the School
authorities to make up the age in order to
secure admission of their children and
accordingly Hon'ble Supreme Court did
not find any infirmity in the statement of
the witness in the said case who stated
that prosecutrix was born on 29.11.1964.

34. In any case, even if another view
is possible, in absence of any compelling
and substantial reason, the appellate court
dealing with appeal against acquittal
would not interfere with the acquittal
unless the approach of the court below is
found to be manifestly vitiated while it
makes consideration of evidences.

35. In the light of the discussion
made above, what we find is that in the
instant case the view taken by the learned
trial court for acquitting the accused was a
possible and plausible view on the basis
of analysis of evidence available on
record and further, we do not find any
perversity in the finding recorded by the
learned trial court.

36. Accordingly, the application
seeking leave to appeal in this case is
hereby rejected.

37. The appeal is also, thus,
dismissed.
----------

(2019)10ILR A 1296

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALAHABAD 06.08.2019

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Rent Control No. 12289 of 2019

Pradeep Kumar @ Pradeep & Anr.
 ...Petitioners
Versus
Smt. Meena Devi Sahu & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri Vijayendra Pratap Singh

Counsel for the Respondents:
Sri Pankaj Saksena

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 -
Section 21(1) A- Interpretation of word
"entertained"- the waiver of period of six
months'
notice
and
comparative
hardship - concurrent findings of fact -
No
perversity-no
interference
under
Article 226 of the Constitution of India

Held:-
The
word
"entertained"
would
necessarily mean entertain the grounds for