# State of U.P v. Mankeshwar

- **Citation:** (2021) 11 ILRA 1264
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-03
- **Case number:** Government Appeal No. 413 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-mankeshwar-46536
- **Pages:** 8

## Headnote

Criminal Procedure Code, 1973 - Section 378 -
Appeal against acquittal - Powers of appellate
Court - while exercising appellate powers, even
if
two
reasonable
views/conclusions
are
possible on the basis of the evidence on record,
the appellate Court should not disturb the
finding of acquittal recorded by the trial Court -
in acquittal appeals, the appellate Court is not
required to rewrite the judgment or to give
fresh reasoning, when the reasons assigned by
the Court below are found to be just and
proper. (9, 14)

Accused charged for commission of offences under
Sections 363, 366, 376 of Indian Penal Code, 1860 &
also under Section 3/4 of Protection of Children from
Sexual Offences Act, 2012 - Special Judge (POSCO
Act) acquitted the accused - incident occurred on
11.11.2019 and the F.I.R. was lodged on 25.12.2019
- there is no explanation for delay of one and half
month in lodging the F.I.R. - Evidence of the
prosecutrix in favour of the accused-respondent - She
called the accused to her home and at 10.00 p.m.
they went away - They got themselves married in the
temple - both stayed in Mumbai and only after the
complaint was lodged and F.I.R. was noted,
prosecutrix came back - She conceived - She was
taken to Mahila Police Station - Her medical test was
performed - mother of the prosecutrix mentioned the
age of the prosecutrix to be 20 years - Even in her
statement under Section 164 Cr.P.C., the prosecutrix
has mentioned that her age is 20 Years - All these
facts go to show that she was not a minor - there was
no forcible sex as per Section 375 of IPC - father of
the prosecutrix only with a view to pressurize the
accused and his family members lodged the F.I.R. -
prosecturix has not supported the prosecution version
- judgment of acquittal passed by the Trial Court
confirmed. (Para 21)
11 All. State of U.P. & Mankeshwar
1265
Dismissed. (E-5)

List of Cases cited:

## Text

1264 INDIAN LAW REPORTS ALLAHABAD SERIES
as to who was entitled to the custody of currency
notes. After ascertaining the person entitled to
the custody of currency notes he should have
passed order for custody of currency notes in
view of the provisions under Section 457 of the
Code. The learned Magistrate rejected the
application only on the ground that the currency
notes were case property which were required to
be produced during the trial but the custody of
currency notes could not have been denied to the
petitioner by the learned Magistrate, rather the
property should have been disposed of by him in
accordance with the provision under Section 457
of the Code . Thus the impugned order is bad in
the eyes of law and is liable to be set aside and
the matter deserves to be remanded back to the
learned Magistrate for his fresh decision in the
matter in accordance with the provisions of
Section 457 of the Code.

12. The impugned order dated 03.03.2021
passed by the learned Court of Judicial
Magistrate, Court No.11, Deoria, passed in
Misc. No. 58/21 State vs. Krishna Kumar and
others AND the order dated 13-08-2021 passed
by the learned Sessions Judge, Deoria in
Criminal Revision No. 45/2021 C.N.R. No.-
UPDEO1001041 2021 Ram Ashish Yadav vs.
State of U.P. are hereby quashed and the matter
is remitted back to the learned Magistrate with a
direction to him to dispose of the application
moved by the complainant-petitioner afresh
keeping in view of the Provisions of 457 of the
Code within a period of three months from the
date of production of certified/ computerized
copy of this order before him.
----------
(2021)12ILR A1264
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 2211.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Government Appeal No. 413 of 2021

State of U.P. ...Appellant
Versus
Mankeshwar ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:

Criminal Procedure Code, 1973 - Section 378 -
Appeal against acquittal - Powers of appellate
Court - while exercising appellate powers, even
if
two
reasonable
views/conclusions
are
possible on the basis of the evidence on record,
the appellate Court should not disturb the
finding of acquittal recorded by the trial Court -
in acquittal appeals, the appellate Court is not
required to rewrite the judgment or to give
fresh reasoning, when the reasons assigned by
the Court below are found to be just and
proper. (9, 14)

Accused charged for commission of offences under
Sections 363, 366, 376 of Indian Penal Code, 1860 &
also under Section 3/4 of Protection of Children from
Sexual Offences Act, 2012 - Special Judge (POSCO
Act) acquitted the accused - incident occurred on
11.11.2019 and the F.I.R. was lodged on 25.12.2019
- there is no explanation for delay of one and half
month in lodging the F.I.R. - Evidence of the
prosecutrix in favour of the accused-respondent - She
called the accused to her home and at 10.00 p.m.
they went away - They got themselves married in the
temple - both stayed in Mumbai and only after the
complaint was lodged and F.I.R. was noted,
prosecutrix came back - She conceived - She was
taken to Mahila Police Station - Her medical test was
performed - mother of the prosecutrix mentioned the
age of the prosecutrix to be 20 years - Even in her
statement under Section 164 Cr.P.C., the prosecutrix
has mentioned that her age is 20 Years - All these
facts go to show that she was not a minor - there was
no forcible sex as per Section 375 of IPC - father of
the prosecutrix only with a view to pressurize the
accused and his family members lodged the F.I.R. -
prosecturix has not supported the prosecution version
- judgment of acquittal passed by the Trial Court
confirmed. (Para 21)
11 All. State of U.P. & Mankeshwar
1265
Dismissed. (E-5)

List of Cases cited:

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

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

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

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

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

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

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

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

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

10. St.of Pun.Vs Madan Mohan Lal Verma, (2013) 14
SCC 153

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

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

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

14. Guru Dutt Pathak Vs St. of U.P., LAWS (SC) 2021
(5) 5

15. St. of Pun. Vs Gurmeet Singh & ors., AIR 1996 SC 1393

16. Sahnawaj Vs St. of U.P., 2011 (1) J.I.C. 02 Ald.

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

1. Heard learned A.G.A. for the State and
perused the judgment and order impugned.

2. The State has felt aggrieved as accusedrespondent, Mankeshwar son of Ram Murat
alias Bawali who was charged for commission
of offences under Sections 363, 366, 376 of
Indian Penal Code, 1860 (in brevity 'IPC') and
also under Section 3/4 of Protection of Children
from Sexual Offences Act, 2012 (in brevity
'POSCO Act') in Sessions Trial No.91 of 2020
has been acquitted by the Special Judge
(POSCO Act), Azamgarh vide order dated
5.8.2021.

3. The prosecution story as it unfurls
from the record is that prosecutrix, the
daughter of the complainant, when she was
studying in class 11, the accused enticed her
away. The incident occurred on 11.11.2019
when the prosecutrix/victim had gone to
school. The accused even threatened them
with dire consequences, but unperturbed by
the dire consequence, the complainant lodged
First Information Report on 25.12.2019 for
commission of the aforesaid offences. The
accused, having been committed to the Court
of Sessions, denied the prosecution allegation
and claimed to be tried. In order to prove its
case, the prosecution examined prosecutrix
(P.W.1), Brijbhan, complaiant, (P.W.2), Shiv
Prashad Mishra (P.W.3), Chandra Shekhar
Yadav (P.W.4), Radhika Yadav (P.W.5), Dr.
Roshan Ara (P.W.6) and Dr. Dharmendra
Kumar Singh (P.W.7). The prosecution also
filed documentary evidence so as to bring
home the charges levelled against the accusedrespondent.

4. Learned A.G.A. has taken us through the
record and has submitted that the version of
defence has been given more importance rather
than sifting the evidence on record. The acquittal
has resulted into perversity of the judgment and
even on the contours for hearing the appeal
against the acquittal, this is a clear case where
the accused should be punished as done in the
decision of the Apex Court in Guru Dutt
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
Pathak Vs. State of Uttar Pradesh, LAWS
(SC) 2021 (5) 5.

5. It is further submitted by learned A.G.A.
that the version of the medical evidence has
been given less importance to come to the
conclusion that the prosecutrix was not a minor.
It is further submitted that the learned Trial
Judge has given undue importance to the fact
that there was delay in filing of the F.I.R. though
the delay has been properly explained. The
incident occurred on 11.11.2019 and the F.I.R.
was lodged on 25.12.2019. On this basis, it is
submitted that the judgment of acquittal be
reversed and the accused be convicted.

6. Before we embark on testimony and the
judgment of the Court below, the contours for
interfering in criminal appeals where accused
has been held to be not guilty would require to
be discussed.

7. 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."

8.

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
11 All. State of U.P. & Mankeshwar
1267
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."

9. 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.

10. In the case titled "STATE OF GOA
Vs. SANJAY THAKRAN & ANR.", reported
in (2007) 3 S.C.C. 75, the Apex Court has
reiterated the powers of the High Court in
appeals against acquital. In para 16 of the said
decision, the Court has observed as under:

"16. From the aforesaid decisions, it is
apparent that while exercising the powers in
appeal against the order of acquittal the Court
of appeal would not ordinarily interfere with the
order of acquittal unless the approach of the
lower Court is vitiated by some manifest
illegality and the conclusion arrived at would
not be arrived at by any reasonable person and,
therefore, the decision is to be characterized as
perverse. Merely because two views are
possible, the Court of appeal would not take the
view which would upset the judgment delivered
by the Court below. However, the appellate
Court has a power to review the evidence if it is
of the view that the conclusion arrived at by the
Court below is perverse and the Court has
committed a manifest error of law and ignored
the material evidence on record. A duty is cast
upon the appellate Court, in such circumstances,
to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on
record to find out whether any of the accused is
connected with the commission of the crime he is
charged with."

11. Similar principle has been laid down
by the Apex Court in cases titled "STATE OF
UTTAR PRADESH VS. RAM VEER SINGH
& ORS.", 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.

12. In the case of "LUNA RAM VS.
BHUPAT SINGH AND ORS.", 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."

13. In a recent decision of the Apex Court
in the case titled "MOOKKIAH AND ANR.
VS. STATE, REP. BY THE INSPECTOR OF
POLICE, TAMIL NADU", reported in AIR
2013 SC 321, the Apex Court in para 4 has held
as under:
1268 INDIAN LAW REPORTS ALLAHABAD SERIES

"4. It is not in dispute that the trial
Court, on appreciation of oral and documentary
evidence led in by the prosecution and defence,
acquitted the accused in respect of the charges
leveled against them. On appeal by the State, the
High Court, by impugned order, reversed the said
decision and convicted the accused under Section
302 read with Section 34 of IPC and awarded RI
for life. Since counsel for the 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]"

14. 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."

15.

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."

16. 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
11 All. State of U.P. & Mankeshwar
1269
explanation offered by the accused, if any, only
on
the
touchstone
of
preponderance
of
probability and not on the touchstone of proof
beyond all reasonable doubt. However, before
the accused is called upon to explain how the
amount in question was found in his possession,
the foundational facts must be established by the
prosecution. The complainant is an interested
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."

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."

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
1270 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Provisions of sections 363, 366 & 376
read as follows :

"363. Punishment for kidnapping.--
Whoever kidnaps any person from 1[India] or
from lawful guardianship, shall be punished
with imprisonment of either description for a
term which may extend to seven years, and shall
also be liable to fine.

366.
Kidnapping,
abducting
or
inducing woman to compel her marriage, etc.--
Whoever kidnaps or abducts any woman with
intent that she may be compelled, or knowing it
to be likely that she will be compelled, to marry
any person against her will, or in order that she
may be forced or seduced to illicit intercourse,
or knowing it to be likely that she will be forced
or seduced to illicit intercourse, shall be
punished
with
imprisonment
of
either
description for a term which may extend to ten
years, and shall also be liable to fine; 1[and
whoever, by means of criminal intimidation as
defined in this Code or of abuse of authority or
any other method of compulsion, induces any
woman to go from any place with intent that she
may be, or knowing that it is likely that she will
be, forced or seduced to illicit intercourse with
another
person
shall
be
punishable
as
aforesaid].

[375. Rape.--A man is said to commit
"rape" who, except in the case hereinafter
excepted, has sexual intercourse with a woman
under circumstances falling under any of the six
following descriptions:--

(First) -- Against her will.

(Secondly) --Without her consent.

(Thirdly) -- With her consent, when
her consent has been obtained by putting her or
any person in whom she is interested in fear of
death or of hurt.

(Fourthly) --With her consent, when
the man knows that he is not her husband, and
that her consent is given because she believes
that he is another man to whom she is or
believes herself to be lawfully married.

(Fifthly) -- With her consent, when, at
the time of giving such consent, by reason of
unsoundness of mind or intoxication or the
administration by him personally or through
another of any stupefying or unwholesome
substance, she is unable to understand the
nature and consequences of that to which she
gives consent.

(Sixthly) --
With
or
without
her
consent, when she is under sixteen years of age.
Explanation.--Penetration
is
sufficient
to
constitute the sexual intercourse necessary to
the offence of rape.

(Exception) --Sexual intercourse by a
man with his own wife, the wife not being under
fifteen years of age, is not rape.] STATE
AMENDMENT

(Manipur) --(a) in clause sixthly, for
the
word
"sixteen"
substitute
the
word
"fourteen"; and

(b) in the Exception, for the word
"fifteen" substitute the word "thirteen". [Vide
Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950) (made
earlier than Act 43 of 1983)].

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

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

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

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

23. In view of the above, judgment of
acquittal passed by the Trial Court is hereby
confirmed and the instant appeal on behalf of the
State is dismissed with no order as to costs.
Record and proceedings be sent back to to Court
below forthwith. Bail and bail bonds are
cancelled.
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(2021)12ILR A1271
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.11.2021

BEFORE

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

Government Appeal No. 4035 of 2012

State of U.P. ...Appellant
Versus
Avaneesh Kumar Lodhi & Ors ...Respondent