# State of U.P v. Kashmir Singh & Anr

- **Citation:** (2021) 11 ILRA 661
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-27
- **Case number:** Government Appeal No. 1544 of 2006
- **Bench:** Dr. Kaushal Jayendra Thaker, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-kashmir-singh-anr-46612
- **Pages:** 7

## Headnote

A.
Practice
&
Procedure
-
Scope
of
Appellate Court - 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 when it is just and proper.
(Para 10)
Appeal Rejected. (E-10)

List of Cases cited:

## Text

11 All. State of U.P. Vs. Kashmir Singh & Anr.
661
examination in entirety. Her testimony does not
inspire even a bit of confidence.

24. Nanak Chand (PW2) is father of the
prosecutrix and Smt.Shakuntala (PW3) is
mother of the prosecutrix. Testimony of these
two witnesses is based on hearsay. They have
deposed before the trial-court on the basis of
information they gathered from others.

25. It is also very pertinent to mention that
when the prosecutrix was taken to hospital for
medical examination, she refused her internal
medical examination. This fact also goes against
the prosecution and shatters the prosecution
case. In toto, it has come on record that the
prosecutrix wanted to marry Dharmendra while
her father wanted his elder widowed daughterArchana to marry with Dharmendra and due to
this reason only, this false complaint was lodged
against the accused-respondents. Learned trialcourt rightly appreciated the evidence on record.
The evidence produced by prosecution does not
inspire confidence at all as held by learned trial
Judge.

26. 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.

27. The appeal lacks merit and is
dismissed, accordingly.

28. The record and proceedings be sent
back to the court-below.
----------
(2021)12ILR A661
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. 1544 of 2006

State of U.P. ...Appellant
Versus
Kashmir Singh & Anr. ...Respondents

Counsel for the Appellant:
G.A.

Counsel for the Respondents:

A.
Practice
&
Procedure
-
Scope
of
Appellate Court - 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 when it is just and proper.
(Para 10)
Appeal Rejected. (E-10)

List of Cases cited:

1. Guru Dutt Pathak Vs St. of U.P. Laws (SC) 2021 55

2. The St. of Guj. Vs B.L Dave (2021) 2 SCC 735

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

4. Chandrappa Vs St. of Karn. (2007) 4 S.C.C. 415

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

6. St. of U.P. Vs Ram Veer Singh & ors. 2007 A.I.R.
S.C.W. 5553

7. Girja Prasad (Dead) by L.R.s Vs St. of M.P. 2007
A.I.R. S.C.W. 5589

8. Luna Ram Vs Bhupat Singh & ors. (2009) SCC 749
662 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Mookkiah & Anr. Vs St. Representatives by the
Inspector of Police, Tamil Nadu AIR 2013 SC 321

10. St. of Karnataka Vs Hemareddy AIR 1981 SC 1417

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

12. St. of Punjab Vs Madan Mohan Lal Verma (2013)
14 SCC 153

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

14. Shaildenfra Rajdev Pasvan Vs St. of Gujarat
(2020) 14 SC 750

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

(Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J.
&
Hon'ble Vikas Budhwar, J.)

1. Heard learned Government Pleader for
the appellant.

2. This appeal under Section 378(3) of
CrPC challenges the acquittal of the accused,
who was charged with commission of offence
under Sections 363 and 366 of the Indian
Penal Code (IPC).

3. The prosecution was moved into motion
by a written report dated 18.6.1996 at P.S.
Dannahar, District Mainpuri and it was alleged
that the sister of the complainant, who was 14
years of age, when they went to ease in the field,
accused Kashmir Singh, Pappu and Girish
Chandra enticed away the prosecutrix, namely,
the sister of the complainant. The complainant's
mother started searching the prosecutrix, but the
prosecutrix end the accused absconded and the
complainant did not lodge the complaint because
of the fear of being defamed. It was then
disclosed that the accused had kidnapped the
minor and therefore, the case being Crime no.
117 of 1996 under Sections 363, 366 of the
Indian Penal Code (IPC) was lodged. The police
investigated
the
matter
and
the
victim/
prosecutrix was recovered on 27.9.1996 from a
village known as Bhanupura. She got her
statement recorded under Section 164 of
Criminal Procedure Code before the Magistrate.
On investigation being over, charge sheet was
laid
before
the
Magisterial
Court.
The
Magistrate being satisfied that the case was
triable by the Court of Sessions, as Section 376
IPC was subsequently added from the medical
test of the prosecutrix, charge sheet was
submitted. As the case being triable by the Court
of Sessions, the accused were summoned and
they denied the charges. On denying the charges,
they were set up for trial.

4. The prosecution examined about 5
witnesses of fact and the prosecutrix herself,
which are follows:-

1.
Dhani Ram
P.W.-1
2.
Smt. Baikunthi Devi P.W.-2
3.
Dr. Sunita Bahodha
P.W.-3
4.
Keshav Dev
P.W.-4
5.
Shiv Autar Pandey
P.W.-5
6.
victim Km. Urmila
P.W.-6

5. Document was filed, which was sought
to be proved by leading evidence.

6. The learned counsel for the State has
relied on the judgment of Guru Dutt Pathak vs.
State of Uttar Pradesh, Laws (SC) 2021 55 and
the case of The State of Gujarat vs. B.L. Dave
[(2021) 2 SCC 735] and has contended that this
is a clear case, where despite the contour of
acquittal, it is very clear that the prosecutrix,
who was admittedly minor in age, her consent
even if cannot be considered as consent and a
heinous crime against the society has been
committed by the accused. The child was
11 All. State of U.P. Vs. Kashmir Singh & Anr.
663
recovered after three months and she had a
featus of 5/ 8 months old, which shows the
heinousness committed by the respondents and
the case is similar to that of case of Guru Dutt
Pathak (supra). It is further submitted that
acquittal is perverse. The victim namely the
prosecutrix was offered made to undergo the
agony. It is proved beyond reasonable doubt
from the evidence recorded that the accused
were the persons, who had enticed the girl,
namely the prosecutrix from the custody of the
parents. The evidence is not properly weighed
by the learned Judge, while acquitting the
accused.

7. Despite summons being served, none
has appeared for the accused, hence we have
heard this appeal and perused the record.

8. 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."

9. 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
664 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

10. 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.

11. 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 reappreciate 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."

12. 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.

13. 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."

14. 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,
11 All. State of U.P. Vs. Kashmir Singh & Anr.
665
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
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]"

15. 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."

16. 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."

17. 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
666 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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."

18.

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 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."

19. 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
11 All. State of U.P. Vs. Khushi Ram & Anr.
667
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.

20. In the case in hand, evidence was
recorded after six years of the incident. The
accused before us were alleged to have
accompanied Pappu, the main accused, who had
unfortunately passed away during the trial. The
allegations against the present accused are that
they had positively made the prosecutrix sit on
the motorcycle and taken her to the village. She
stayed with Pappu for about five months. There
is no role of the present accused for enticing
away to the prosecutrix or took her on the
motorcycle forcibly.

21. Unfortunately, the medical evidence
does not categorically show the age of the
prosecutrix. As far as the medical evidence of
Dr. Sunita is concerned, she has examined her,
but she has mentioned that she could not make
out what was the age of the prosecutrix.

22. Learned trial Judge has rightly
appreciated the evidence on record. We are
convinced that learned court-below has given
cogent reason in the judgment impugned and we
have no reason to differ with the view taken by
the learned trial Judge. All these facts are
sufficient for us to concur with the learned trialcourt.

23. The appeal sans merits and is
dismissed. The record of proceedings be sent
back to the court below.

24. We are thankful to Sri Goswami,
learned A.G.A. for ably assisting the Court for
the State.
----------
(2021)12ILR A667
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.11.2021
BEFORE

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

Government Appeal No. 1576 of 1986

State of U.P. ...Appellant
Versus
Khushi Ram & Anr. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Sri R.K.S. Chaudhary, Sri R.K.S. Chauahan, Sri Suresh
Dhar Dwivedi

A. Practice & Procedure - Scope of Appellate
Court - 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 when it
is just and proper. (Para 10)
Appeal Rejected. (E-10)

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.(2007) 4 S.C.C. 415

3. St. of Goa Vs Sanjay Thakran & anr. (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.Rs. 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. of Representatives by the
Inspector of Police, Tamil Nadu AIR 2013 SC 321

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