# State of U.P v. Prem & Ors

- **Citation:** (2021) 9 ILRA 883
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-06
- **Case number:** U/S 378 CR. P.C. No. 1 of 2021
- **Bench:** Ramesh Sinha, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-prem-ors-47412
- **Pages:** 9

## Headnote

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 378 (3),313,164
- Indian Penal Code, 1860 - Section 363,
366, 376D - leave to appeal against order
of acquittal -The Protection of Children
from Sexual Offences Act, 2012 - Section
3/4 - ocular evidence - in an appeal
against the acquittal the Court has to
examine the evidence keeping in mind
that accused has been found not guilt by
the trial court which gives force to the
principle
that
accused
is
considered
innocent
until
proved
guilty,
beyond
reasonable doubt except where the law
provides otherwise - in case of acquittal,
there is a double presumption in favour of
the accused - it cannot be disputed that
there can be a conviction solely based on
the evidence of the prosecutrix - evidence
must be reliable and trustworthy.(Para-
22,23)

(B) Evidence Law - 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 - 25)

First Information Report registered in Crime -
disclosing therein - daughter of the informant -
aged about 15 years - disappeared while she
was sleeping with her family - after enquiring it
has been told to the informant - one resident of
same village with the help of his brothers
enticed his daughter and took her away. (Para -
4 )

HELD:-There are material contradictions and
change of the version by the prosecutrix at
every stage, made the evidence of prosecutrix
unreliable
and
untrustworthy.
In
these
884 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances the deposition / evidence of
prosecutrix does not inspire the confidence to
place implicit reliance to act on its basis to
record the conviction of the respondents. No
perversity and reasonable ground to interfere
with the acquittal recorded by the trial
court.(Para - 26,27)

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

List of Cases cited:-

## Text

9 All State of U.P. Vs. Prem & Ors.
883

10 . In view of the aforesaid, there is
an error apparent on the face of record of
the judgment dated 14.08.2003.

11. The review petition is allowed.
The judgment dated 14.08.2003 is recalled.
The second appeal is restored to its original
number for fresh decision.

12. The review applicant has also
filed some supplementary affidavits along
with applications as also application for
permission to file additional evidence,
annexing certain documents against which
the
respondent
has
raised
certain
objections.

13. As the review has been allowed,
the Court does not enter into the
controversy as to whether the application
under Order 41 Rule 27 C.P.C. is
maintainable in review application or not,
leaving it open to the applicants, if so
advised, to file appropriate application
under Order 41 Rule 27 C.P.C. or such
other provisions as may be open to them, in
the second appeal itself.

14. List this second appeal before
appropriate Bench in the next month, as the
appeal pertains to the year 1986.
----------
(2021)09ILR A883
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MANISH KUMAR, J.

U/S 378 CR. P.C. No. 1 of 2021

State of U.P. ...Applicant
Versus
Prem & Ors. ...Opposite Parties

Counsel for the Applicant:
G.A.

Counsel for the Opposite Parties:

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 378 (3),313,164
- Indian Penal Code, 1860 - Section 363,
366, 376D - leave to appeal against order
of acquittal -The Protection of Children
from Sexual Offences Act, 2012 - Section
3/4 - ocular evidence - in an appeal
against the acquittal the Court has to
examine the evidence keeping in mind
that accused has been found not guilt by
the trial court which gives force to the
principle
that
accused
is
considered
innocent
until
proved
guilty,
beyond
reasonable doubt except where the law
provides otherwise - in case of acquittal,
there is a double presumption in favour of
the accused - it cannot be disputed that
there can be a conviction solely based on
the evidence of the prosecutrix - evidence
must be reliable and trustworthy.(Para-
22,23)

(B) Evidence Law - 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 - 25)

First Information Report registered in Crime -
disclosing therein - daughter of the informant -
aged about 15 years - disappeared while she
was sleeping with her family - after enquiring it
has been told to the informant - one resident of
same village with the help of his brothers
enticed his daughter and took her away. (Para -
4 )

HELD:-There are material contradictions and
change of the version by the prosecutrix at
every stage, made the evidence of prosecutrix
unreliable
and
untrustworthy.
In
these
884 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances the deposition / evidence of
prosecutrix does not inspire the confidence to
place implicit reliance to act on its basis to
record the conviction of the respondents. No
perversity and reasonable ground to interfere
with the acquittal recorded by the trial
court.(Para - 26,27)

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

List of Cases cited:-

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

2.
Woolmington
Vs

Director
of
Public
Prosecutions, [1935] AC 462 (HL)

3. Chandrappa Vs St. of Karn. (2007) 4 SCC
415, p. 42,

4. St. of A.P. Vs M. Madhusudhan Rao, (2008)
15 SCC 582, p. 20-21 and

5. Raveen Kumar Vs St. of H.P. 2020 SCC
Online SC 869, 11.)

6. Chaman Lal Vs The St. of H.P. , 2020 SCC
online SC 988

7. Batcu Venkateshwarlu &ors. Vs Public
Prosecutor High Court of Andhra Pradesh ,
(2008) 16 SCC 256

8. Criminal Appeal No.264 of 2020, arising out
of SLP (Criminal) No.3780/2018; Santosh Prasad
@ Santosh Kumar Vs The St. of Bihar

9. Rajoo & ors. Vs St. of M.P., (2008) 15 SCC
133

10. Rai Sandeep @ Deepu Vs St. (NCT of
Delhi), (2012) 8 SCC 21

(Delivered by Hon'ble Manish Kumar, J.)

1. This Criminal Appeal has been
filed by the appellant-State of Uttar
Pradesh against the judgment and order
dated 22.09.2020 passed by Additional
Sessions Judge (POCSO Act and Created
for adjudication of Rape Cases), Court
No.14, Hardoi in Sessions Trial No.451 of
2016, Crime No.592 of 2016, registered
under Section 363, 366, 376D I.P.C. and
Section 3/4 of The Protection of Children
from Sexual Offences Act, 2012 ( in shourt
POCSO Act), in Police Station - Kotwali
Sahar, District - Hardoi, whereby the Court
acquitted the accused- respondents Prem,
Rameshwar, Ramteerth and Parmeshwar.

2. In compliance of this Court's order
dated 08.01.2021, the notices have been
issued and as per office report dated
27.08.2021,
notices
have
been
served
personally upon Respondent Nos. 1. Prem, 2.
Rameshwar and 4. Parmeshwar, whereas
served upon Respondent No.3 Ramteerth
through heir.

3. Heard Smt. Smriti Sahai, learned
A.G.A. for the State -appellant and perused
the impugned judgement and order passed by
the trial court and the lower court record.

4. The brief facts necessary for disposal
of this appeal as culled out from the case of
prosecution are :-

i.
On
26.10.2016
a
First
Information Report ( in short F.I.R) was
registered in Crime No.592 of 2016 under
Section 363 and 366 I.P.C. disclosing therein,
that daughter of the informant aged about 15
years had disappeared while she was sleeping
with her family and after enquiring it has
been told to the informant that one Prem,
resident of same village with the help of his
brothers
Rameshwar,
Ramteerth
and
Parmeshwar enticed his daughter and took
her away.

ii.
After
investigation
the
chargesheet was filed under Section 363,
9 All State of U.P. Vs. Prem & Ors.
885
366, 376D I.P.C. and Section 3/4 POCSO
Act, in the Court against the accused
persons. The concerned Magistrate after
taking cognizance committed the case to
the Sessions Court for trial.

iii. The trial court framed charges
against the accused Prem, Rameshwar,
Ramteerth and Parmeshwar under Section
363, 366, 376D I.P.C. and Section 3/4
POCSO Act. The accused persons denied
the charges and claimed to be tried.

iv. The prosecution in order to
prove its case examined P.W.1 Gopal
(informant), PW.2 the Prosecutrix (X), PW.
3 Dr. Smita Singh, PW.4 Dr. Indu Singh,
Radiologist, PW.5 S.I. Javed Akhtar, PW.6
Lady Constable Harjit Kaur and PW.7 S.I.
Rajkishor Kanaujiya.

v. As a documentary evidence,
the prosecution has proved copy of F.I.R.
Ext. Ka -1, statement of prosecutrix
recorded under Section 164 Cr.P.C. Ext.
Ka-2, Medical Examination Report of the
prosecutrix
Ext.
Ka-3,
Supplementary
Medical
Examination
Report
of
the
prosecutrix Ext. Ka-4, X-ray report Ext.
Ka-5, Site Plan Ext. Ka-6, Chargesheet Ext.
Ka-7 , Chick F.I.R. Ext. Ka-8, Mukadama
Kaymi/ General Diary Ext. Ka-9, Student
Admission Register Ext. Ka-10, Fard
Baramadgi
Ext.
Ka-11,
and
Fard
Supurdginama Ext. Ka 12.

vi. Thereafter the statements of
the accused persons were recorded under
Section 313 of Code of Criminal Procedure
(in short Cr.P.C.), wherein, they denied the
commission of crime and stated that the
case has been registered falsely.

5. The trial court after hearing the
arguments of both the parties and analyzing
the evidence came to the conclusion that
the F.I.R. has been lodged with the delay of
four days without assigning any reason
particularly, when the informant on the
very next day of the incident came to know
that his daughter was enticed and taken
away by Prem and his two brothers.
Neither in the F.I.R. nor in the statements /
depositions,
examination-in-chief
and
cross-examination the informant had never
disclosed that from whom he got the
information that the accused persons
enticed his daughter and took her away.

6. It is further observed by the trial
court that there are contradictions in the
statement of the prosecutrix recorded under
Section 164 Cr.P.C. and the deposition
during examination-in-chief and crossexamination and at every stage the version
has been changed. In her statement
recorded under Section 164 Cr.P.C., the
prosecutrix has stated that in the night of
21-22.10.2016 at about 12-01 AM Prem,
Rameshwar and Ramteerth enticed her on
the pretext of taking her for a ride and
gagged her by using clothes and all these
three persons took her on a motorcycle and
Permeshwar joined them later on.

7. It is also observed by the trial court
that it is highly improbable that four
persons would go on one motorcycle.

8. The trial court has further observed
that
in
her
cross-examination,
the
prosecutrix has stated that four accused
persons came to her house and gagged her
and took her away and after coming out
from the village, Parmeshwar also met
them on his motorcycle.

9. The trial court further observed that
as per version by the prosecutrix that she
was sleeping with her mother, brother and
886 INDIAN LAW REPORTS ALLAHABAD SERIES
sister and in her cross-examination at Page
No.7, she has admitted that her father was
sleeping in the courtyard, so it is naturally
not possible to gag her and take her away
while she was sleeping in between her
mother, brother and sister. In her crossexamination at Page No.7, the prosecutrix
has stated that Prem had called her then she
came out and while she was going to wake
up her father, Prem gagged her, so she
introduced a new story. It is also not
believable when she was sleeping with her
other family members, instead of waking
up her mother, brother and sister, she tried
to woke up her father, who was sleeping in
the courtyard.

10. The trial court further observed
that in her cross-examination at Page No.5,
the prosecutrix has stated that she went to
the terrace through stairs, but the same has
not been shown in the site plan i.e. Ext. Ka6.

11. The trial court has also observed
that there is a delay in lodging of the F.I.R.
for the reason as per the prosecution case
the prosecutrix was recovered after lodging
of the F.I.R., whereas as per defence, the
F.I.R. was lodged after the recovery of the
prosecutrix and in support thereof it has
been argued that no time has been
mentioned in the recovery memo of "X" i.e.
Ext. Ka-11 except the time has been
mentioned
of
handing
over
of
the
prosecutrix to the police constable i.e. at
4.00 PM and that too by putting an arrow.

12. The trial court has further
observed
that
the
informant
in
her
application has written that one month ago
Vimlesh Pradhan had threatened him as his
father was contesting the election against
him, that is why, due to election of
Pradhan, Vimlesh enticed his daughter
through
Prem,
whereas
as
per
the
prosecution story, the prosecutrix was
brought to the police station by Vimlesh
and called the informant to reach the police
station but at no point of time Vimlesh
Pradhan was examined by the prosecution.
How it could be believed that the person
who is keeping enmity with the informant
could come alongwith the prosecutrix i.e.
daughter of the informant to the police
station and intimate the informant and
roped his friend Prem, who is accused in
the present case specially when the case of
the informant is that on the directions of the
Vimlesh Pradhan, Prem had took his
daughter.

13. The trial court has further
observed that on the very same day the
medical
examination
of
the
'X'
(prosecutrix) was conducted, in which
neither any internal nor any external injury
was found and no sperm has been found in
the vaginal smear and pregnancy test
reported was negative. The hymen was old
torn and healed.

14. PW.3 Dr. Smita Singh -Medical
Officer in her deposition has stated that no
sign of rape has been found. The hymen
was old torn and healed. The hymen healed
within 15 days. She has specifically opined
that she has not found any violence marks
on the body of the prosecutrix. She has also
categorically stated that there is no physical
or pathological evidence of rape. It is true
that thereafter she has stated that possibility
of rape cannot be ruled out.

15. Learned A.G.A. assailed the
judgement of the trial court and submitted
that :

i. The judgement of the trial court
is against the evidence produced by the
9 All State of U.P. Vs. Prem & Ors.
887
prosecution, all the accused persons are
guilty beyond any reasonable doubt and the
offence is proved.

ii. The prosecutrix was forcibly
took by gagging by all the four accused
persons to an unknown place and outraged
her modesty for four days.

iii. The trial court has taken into
consideration that the minor contradictions
in the statements / depositions of the
prosecutrix, which have been at different
stages, which is not proper.

iv. For an offence of rape, motive
is not necessary. The trial court has
acquitted the accused persons on the basis
of surmises and conjecture.

16. After hearing the learned A.G.A.
and as per the settled law that in an appeal
against the acquittal the Court has to
examine the evidence keeping in mind that
accused has been found not guilt by the
trial court which gives force to the principle
that accused is considered innocent until
proved guilty, beyond reasonable doubt
except where the law provides otherwise.

17. Hon'ble Apex Court in the case of
Achhar Singh Vs. State of Homachal
Pradesh reported in 2021 SCC Online
HP 870 in this regard has laid down as
under:

"13. It is fundamental in criminal
jurisprudence that every person is presumed
to be innocent until proven guilty, for
criminal accusations can be hurled at anyone
without him being a criminal. The suspect is
therefore considered to be innocent in the
interregnum
between
accusation
and
judgment. History reveals that the burden on
the accuser to prove the guilt of the Accused
has its roots in ancient times. The Babylonian
Code of Hammurabi (1792-1750 B.C.), one
of the oldest written codes of law put the
burden of proof on the accuser. Roman Law
coined the principle of actori incumbit (onus)
probatio (the burden of proof weighs on the
Plaintiff) i.e., presumed innocence of the
Accused. In Woolmington v. Director of
Public Prosecutions [1935] AC 462 (HL),
the House of Lords held that the duty of the
prosecution to prove the prisoner's guilt was
the "golden thread" throughout the web of
English Criminal Law. Today, Article 11 of
the Universal Declaration of Human Rights,
Article 14 of the International Covenant on
Civil and Political Rights and Article 6 of the
European Convention on Human Rights all
mandate presumption of innocence of the
Accused.

14. A characteristic feature of
Common Law Criminal Jurisprudence in
India is also that an Accused must be
presumed to be innocent till the contrary is
proved. It is obligatory on the prosecution to
establish the guilt of the Accused save where
the presumption of innocence has been
statutorily dispensed with, for example,
Under Section 113-B of the Evidence Act,
1872. Regardless thereto, the 'Right of
Silence' guaranteed Under Article 20(3) of
the Constitution is one of the facets of
presumed innocence. The constitutional
mandate read with the scheme of the Code of
Criminal Procedure, 1973 amplifies that the
presumption of innocence, until the Accused
is proved to be guilty, is an integral part of
the Indian criminal justice system. This
presumption of innocence is doubled when a
competent Court analyses the material
evidence, examines witnesses and acquits the
Accused. Keeping this cardinal principle of
invaluable rights in mind, the appellate
Courts have evolved a self-restraint policy
whereunder, when two reasonable and
888 INDIAN LAW REPORTS ALLAHABAD SERIES
possible views arise, the one favourable to
the Accused is adopted while respecting the
trial Court's proximity to the witnesses and
direct interaction with evidence. In such
cases, interference is not thrusted unless
perversity is detected in the decision-making
process.

15. It is thus a well crystallized
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
Code of Criminal Procedure 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
acquittal1. This Court has held in a catena of
decisions (including Chandrappa v. State of
Karnataka (2007) 4 SCC 415, p. 42, State of
Andhra Pradesh v. M. Madhusudhan Rao
(2008) 15 SCC 582, p. 20-21 and Raveen
Kumar v. State of Himachal Pradesh, 2020
SCC Online SC 869, 11.) that the Code of
Criminal Procedure 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."

18. In Chaman Lal Vs. The State of
Himachal Pradesh reported in 2020 SCC
online SC 988, the Hon'ble Apex Court in
this regard has expressed the similar views.

19. Now in the present case having
examined
the
rationale
behind
the
conclusion arrived at by the trial court
while acquitting the accused persons after
analyzing the judgement and evidence
available on record, it appears that the
contentions of the learned A.G.A. have no
force for the reason that the F.I.R. has been
lodged with the delay of four days without
explaining the reason for the same,
particularly when the informant on the very
next day in the morning came to know
about the persons behind the offence
alleged in the F.I.R. Neither in the F.I.R.
nor in the statement, the informant had ever
taken the name of a person from whom he
came to know that her daughter was taken
away by the present accused persons.

20. There are contradictions in the
statements / deposition of the prosecutrix
recorded under Section 164 Cr.P.C., in her
examination-in-chief
and
her
crossexaminations, at all the stages she came
with a different story. At one place, she has
stated that she was kidnapped by three
accused persons namely, Prem, Ramteerth
and Rameshwar, but at other place she
came with a story that Prem called her
while she was sleeping. At one place she
has stated that Rameshwar took her at his
motorcycle to an unknown place and at
other place she has come with a case that
Prem, Rameshwar and Ramteerth took her
on their motorcycle and Parmeshwar joined
them later on, but how it can be possible
that four persons had gone on one
motorcycle. At one place, she has come
with a case that all had come to her house
and gagged her and took her from terrace
and when reached outside the village, there
Parmeshwar came with a motorcycle. It is
also unbelievable that she was sleeping
alongwith her mother, brother and sister but
instead of waking them, she tried to wake
up her father who was sleeping in the
courtyard when Prem had called her. At
one place, she has stated that Prem had
9 All State of U.P. Vs. Prem & Ors.
889
asked her let us go for a ride to his Jijaji's
place. At one place, she has stated that she
reached terrace by using staircase of her
house, whereas no stairs were shown in site
plan prepared by the Investigating Officer
Ext. Ka-6.

21. From the medical examination
report of the prosecutrix and the statement
of the PW.3 Dr. Smita Singh, the offence of
outraging the modesty of the prosecutrix
has not been found, as the medical
examination
of
the
prosecutrix
was
conducted on the very same day of her
recovery and as per her statement she was
raped by four persons from last four days,
then somthing should have come in the
medical examination report, but nothing in
the medical examination report, so the
ocular evidence of the prosecutrix does not
corroborate with the medical evidence.

22. The Hon'ble Apex Court in the
case of Batcu Venkateshwarlu and others
Vs. Public Prosecutor High Court of
Andhra Pradesh reported in (2008) 16
SCC 256 has held as under: -

"12. It cannot, however, be
forgotten that in case of acquittal, there is a
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 should be
presumed to be innocent unless he is
proved to be uilty by a competent court of
law. Secondly, the accused having secured
an acquittal, the presumption of his
innocence is certainly not weakened but
reinforced, reaffirmed and strengthened by
the trial court."

23. The Hon'ble Supreme Court in its
judgement dated 14.02.2020 passed in
Criminal Appeal No.264 of 2020, arising
out of SLP (Criminal) No.3780/2018;
Santosh Prasad @ Santosh Kumar vs. The
State of Bihar, has held that it cannot be
disputed that there can be a conviction
solely based on the evidence of the
prosecutrix. However, the evidence must be
reliable and trustworthy.

24. The Hon'ble Supreme Court in the
case of Rajoo and others vs. State of
Madhya Pradesh (2008) 15 SCC 133 has
held as under:

" 11. It cannot be lost sight of that
rape causes the greatest distress and
humiliation to the victim but at the same
time a false allegation of rape can cause
equal distress, humiliation and damage to
the accused as well. The accused must also
be protected against the possibility of false
implication, particularly where a large
number of accused are involved. It must,
further, be borne in mind that the broad
principle is that an injured witness was
present at the time when the incident
happened and that ordinarily such a
witness would not tell a lie as to the actual
assailants,but there is no presumption or
any basis for assuming that the statement of
such a witness is always correct or without
any embellishment or exaggeration.

12. Reference has been made in
Gurmit Singh's case to the amendments in
1983 to Sections 375 and 376 of the India
Penal Code making the penal provisions
relating to rape more stringent, and also to
Section 114A of the Evidence Act with
respect to a presumption to be raised with
regard to allegations of consensual sex in a
case of alleged rape. It is however
significant that Sections 113A and 113B
too were inserted in the Evidence Act by
the same amendment by which certain
890 INDIAN LAW REPORTS ALLAHABAD SERIES
presumptions in cases of abetment of
suicide and dowry death have been raised
against the accused. These two Sections,
thus, raise a clear presumption in favour of
the prosecution but no similar presumption
with respect to rape is visualized as the
presumption
under
Section
114A
is
extremely restricted in its applicability.
This clearly shows that in so far as
allegations of rape are concerned, the
evidence of a prosecutrix must be examined
as that of an injured witness whose
presence at the spot is probable but it can
never be presumed that her statement
should, without exception, be taken as the
gospel truth. Additionally her statement
can, at best, be adjudged on the principle
that ordinarily no injured witness would
tell a lie or implicate a person falsely. We
believe that it is under these principles that
this case, and others such as this one, need
to be examined."

25. In the case of Rai Sandeep @
Deepu Vs. State (NCT of Delhi) (2012) 8
SCC 21, Hon'ble Supreme Court has held
as under:

"22. 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
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."

26. Having gone through the evidence
and considered the deposition of the
prosecutrix, we find that there are material
contradictions and change of the version by
9 All State of U.P. Vs. Ashok Kumar & Anr.
891
the prosecutrix at every stage, made the
evidence of prosecutrix unreliable and
untrustworthy. In these circumstances the
deposition / evidence of prosecutrix does not
inspire the confidence to place implicit
reliance to act on its basis to record the
conviction of the respondents.

27. In the light of the above discussions
and the principles of law laid down by the
Hon'ble Apex Court cited above, there is no
perversity and reasonable ground to interfere
with the acquittal recorded by the trial court.

28. Hence the application for leave to
appeal against the acquittal moved under
Section 378(3) Cr.P.C. is rejected, therefore
no order requires to be passed on the memo
of appeal filed alongwith the application to
grant leave to file the appeal.
----------
(2021)09ILR A891
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.08.2021

BEFORE

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

U/S 378 CR. P.C. No. 22 of 2021

State of U.P. ...Appellant
Versus
Ashok Kumar & Anr. ...Respondents

Counsel for the Appellant:
Shri
Arunendra,
Additional
Government
Advocate

Counsel for the Respondents:

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 378 (3),313 -
Indian Penal Code, 1860 - Section 302
read with Section 34 I.P.C. - leave to
appeal against order of acquittal -
murder - plea of alibi - surmises and
conjectures
-
illicit
relations
-
circumstantial evidence - In a case
based on circumstantial evidence, the
court has to examine the evidence more
cautiously and more carefully - To
record a conviction on the basis of
circumstantial evidence, it is necessary
that all the links of the circumstantial
evidence should be intact - Absence of
notice in a case based on circumstantial
evidence
weakens
the
case
of
prosecution and goes in favour of the
accused .(Para - 10,15)

(B) Criminal Law - Code of Criminal
Procedure, 1973 - No bar on the High
Court's power to re-appreciate 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
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.(Para - 21)

Complainant mentioned in F.I.R. - his brother
left the house in the night - received phone
call from someone - did not come back -
used to sit on the Tea shop daily - dead body
of his brother found in morning - lying on the
roadside near the tea shop - doubt that
somebody killed his brother - kept body on
the roadside - accused not named as an
author of the crime - prosecution failed to
prove the charges against the accused
persons beyond reasonable doubts - trial
court acquitted accused persons - appellant
State preferred this appeal.(Para - 7,9)

HELD:-No 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.
Motive
of
the
crime
has
not
been
established. Nothing on record to connect
the accused persons with crime. Mobile
numbers from which call was given and on
which call was received have not been