# State of U.P v. Pushpendra alias Gabbar

- **Citation:** (2025) 4 ILRA 984
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-23
- **Case number:** Government Appeal No. 43 of 2025
- **Bench:** Saumitra Dayal Singh, Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-pushpendra-alias-gabbar-53280
- **Pages:** 37

## Headnote

Mukesh Kumar Pandey

A. Criminal Appeal against acquittal - When
interference may be offered by the High
Court in appeal against acquittal - High
Court must be satisfied that the finding
recorded by the learned trial court suffers
from the vice of perversity. Once that
satisfaction is reached, the High Court must
further reappraise the evidence through a
prism that
may
allow
for a singular
conclusion of guilt to arise upon such
reappraisal of evidence. It must also be
strong enough to be described as nearly
absolute, as may not only discard the
presumption of innocence that the accused
enjoys at the beginning of the trial but also
dispel the confirmation of such innocence
offered by the order of acquittal. Such
conclusion must be free from any benefit of
doubt that may arise to the accused on the
strength of evidence led at the trial. Where
a finding of fact may be recorded either
dehors the evidence or contrary to the
evidence, or where conclusions may have
been drawn contrary to the law, that
finding and/or conclusion may be described
as perverse. (Para 38, 39, 40)

B.
Evidence
Act,1872
-
Minor
inconsistencies - It is not the law that
prosecution witness must maintain their
consistent stand by way of an empirical
truth, to establish the credibility of the
prosecution witnesses or version. The settled
principle in that regard is that evidence must
carry a ring of truth. Minor inconsistencies are
4 All. State of U.P. Vs. Pushpendra alias Gabbar
985
not to be looked/amplified by the Courts but to
be reconciled with the entire weight of
evidence.(Para 45)

C. Code of Criminal Procedure , 1973 - Section
161 - Defence stance that 'X' and the accused
had quarreled as was claimed to have been
stated by 'X' during her statement recorded
under Section 161 Cr.P.C., was never proven.
Discrepancy, if at all was never confronted to 'X'
during her cross-examination. Once the defence
failed to confront 'X' with her alleged previous
statement recorded under Section 161 Cr.P.C., it
never became open to the learned trial court to
either rely on that statement or to disbelieve or
discredit the prosecution evidence. The right of
the defence or the right of the parties to
confront a witness with their previous statement
is a right that vests with the parties. No
confrontation was ever offered to 'X' with any
previous statement. At the stage of hearing, it
was neither open to the parties nor to the
learned trial Court to look into the statement
recorded
under
Section
161
Cr.P.C.,
to
disbelieve the proven facts or to observe that
there pre-existed a quarrel between the parties.
Findings recorded by the learned trial Court are
perverse, to that extent. (Para 46, 60)
D. Evidence Act - Defence stance that 'X' and
the accused had quarreled - Merely because
there may have existed a dispute between the
parties, it may not be a stand alone reason to
discredit the prosecution story, that was
otherwise duly proven. The nature of quarrel
w

## Text

_Characters 0–39,871 of 127,403. This is a partial read: ask again with offset=39871 for what follows._

984 INDIAN LAW REPORTS ALLAHABAD SERIES
found to be legally sustainable in the eyes
of law.

45. Accordingly, the case is remitted
to the learned Tribunal to consider the
award of compensation in accordance with
law. As the claim application is of the year
2009 and a substantial period has already
lapsed, as such, the learned Tribunal is
directed
to
decide
the
said
claim
application
pertaining
to
award
of
compensation in accordance with law and
the relevant rules within a period of six
months from the date a certified copy of
this order is brought on record of the
learned Tribunal.

46. With the observations as made
above, the appeal i.e. FAFO No.670 of
2011 stands disposed of.

47. Also, considering the long
pendency of the claim application before
the learned Trial and thereafter before this
Court and considering the order of this
Court dated 05.07.2011 whereby half of the
amount, as awarded before the learned
Tribunal, was directed to be deposited
before
the
learned
Tribunal,
the
claimants are permitted to withdraw the
amount which was deposited before the
learned Tribunal in accordance with law
and the relevant rules which would be
subject to the order(s) being passed by
the learned Tribunal in pursuance to the
directions made above.

48. The records be returned back
as per procedure.
----------
(2025) 4 ILRA 984
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.04.2025

BEFORE
THE HON'BLE SAUMITRA DAYAL SINGH,
J.
THE HON'BLE SANDEEP JAIN, J.

Government Appeal No. 43 of 2025

State of U.P. ...Appellant
Versus
Pushpendra alias Gabbar ..Respondent

Counsel for the Appellant:
Ashutosh Kumar Sand

Counsel for the Respondent:
Mukesh Kumar Pandey

A. Criminal Appeal against acquittal - When
interference may be offered by the High
Court in appeal against acquittal - High
Court must be satisfied that the finding
recorded by the learned trial court suffers
from the vice of perversity. Once that
satisfaction is reached, the High Court must
further reappraise the evidence through a
prism that
may
allow
for a singular
conclusion of guilt to arise upon such
reappraisal of evidence. It must also be
strong enough to be described as nearly
absolute, as may not only discard the
presumption of innocence that the accused
enjoys at the beginning of the trial but also
dispel the confirmation of such innocence
offered by the order of acquittal. Such
conclusion must be free from any benefit of
doubt that may arise to the accused on the
strength of evidence led at the trial. Where
a finding of fact may be recorded either
dehors the evidence or contrary to the
evidence, or where conclusions may have
been drawn contrary to the law, that
finding and/or conclusion may be described
as perverse. (Para 38, 39, 40)

B.
Evidence
Act,1872
-
Minor
inconsistencies - It is not the law that
prosecution witness must maintain their
consistent stand by way of an empirical
truth, to establish the credibility of the
prosecution witnesses or version. The settled
principle in that regard is that evidence must
carry a ring of truth. Minor inconsistencies are
4 All. State of U.P. Vs. Pushpendra alias Gabbar
985
not to be looked/amplified by the Courts but to
be reconciled with the entire weight of
evidence.(Para 45)

C. Code of Criminal Procedure , 1973 - Section
161 - Defence stance that 'X' and the accused
had quarreled as was claimed to have been
stated by 'X' during her statement recorded
under Section 161 Cr.P.C., was never proven.
Discrepancy, if at all was never confronted to 'X'
during her cross-examination. Once the defence
failed to confront 'X' with her alleged previous
statement recorded under Section 161 Cr.P.C., it
never became open to the learned trial court to
either rely on that statement or to disbelieve or
discredit the prosecution evidence. The right of
the defence or the right of the parties to
confront a witness with their previous statement
is a right that vests with the parties. No
confrontation was ever offered to 'X' with any
previous statement. At the stage of hearing, it
was neither open to the parties nor to the
learned trial Court to look into the statement
recorded
under
Section
161
Cr.P.C.,
to
disbelieve the proven facts or to observe that
there pre-existed a quarrel between the parties.
Findings recorded by the learned trial Court are
perverse, to that extent. (Para 46, 60)
D. Evidence Act - Defence stance that 'X' and
the accused had quarreled - Merely because
there may have existed a dispute between the
parties, it may not be a stand alone reason to
discredit the prosecution story, that was
otherwise duly proven. The nature of quarrel
was neither specified nor it was shown to be
such as may have, prompted 'X' and her family
members to therefore rush to make a false
accusation against the appellant. Neither the
nature of the quarrel nor its date and time were
proven. The F.I.R. against the accused is of a
heinous offence of rape. Evidence exists both on
the strength of ocular evidence offered by 'X' as
also
other
material,
in
support
of
the
prosecution story (Para 61)
E. Rape - Delay in lodging F.I.R. - Some
reasonable time may always be consumed by
the
parties
visited
with
such
traumatic
occurrences, to rationalize their situation and to
chalk out their future course of action. It takes
conviction, courage, efforts and sometimes even
reference, to lodge an F.I.R. Court may
therefore allow for a margin to exist to the
informant side and it may not hold it
accountable for every hour or day. There is no
inordinate delay in lodging the F.I.R., it was not
for the learned trial Court to throw out the
ocular evidence. (Para 68)

F. Rape - Absence of internal injuries or serious
external injuries - there is no rule or law
available that such injuries must be proved to
establish the occurrence of rape. Once it was by
the prosecution on the strength of ocular
evidence
of
the
victim
that
she
was
overpowered or subjugated to the point that her
resistance stood broken down or negated, the
proof of occurrence through injury would be a
medieval construct, but not modern reality. In
the first place, the threat practiced by the
accused (on the strength of firearm) to cause
fatal injury, was proven. Second, it was also
proven that 'X' alongwith her fiance were filmed
in nude, by the accused. On both counts,
sufficient evidence was led by the prosecution
that the resistance that may have otherwise
been offered, stood neutralized by the accused
before committing the above rape. Further,
evidence was led by the prosecution to establish
that the resistance had been neutralized by
establishing that 'R' the younger brother of 'X'
aged about 12 years was assaulted and forced
out of the 'apartment' before 'X' was filmed
nude and thereafter, her fiance, 'S' was forced
out of the 'apartment' under the threat of a gun,
before rape was committed on 'X'. Once the
victim, who is 18 years of age, had been thus
subjugated
and
overpowered
mentally,
psychologically and physically, to accept the
submission that she must be shown to have
suffered internal and external injuries, would be
ridiculous (Para 62)

G. Indian Penal Code, Sections 376, 452 and
506 - Rape - Victim had offered a singular
version of the occurrence. Narration of the
occurrence has remained consistent from the
stage of the F.I.R. being lodged, the statement
being recorded by the police under Section 161
Cr.P.C. and statement being recorded under
Section 164 Cr.P.C. by the learned Magistrate
and also at the trial. At the trial, the victim 'X'
was subjected to extensive cross-examination
on many dates. She maintained her stand. Trial
Court reached an unsustainable conclusion that
the occurrence had not been caused-by
referring to the delay, the absence of internal
986 INDIAN LAW REPORTS ALLAHABAD SERIES
and external injuries and bad relations between
the parties. Deposition of 'X' was sufficient to
offer conviction since her deposition stands on
the higher footing as of an injured witness.
Court found it to be a fit case to offer
interference
with
the
order
of
acquittal.
Accordingly, the government appeal allowed.
The judgment and order acquitting the accused
of the charge under Sections 452, 376, 506 set
aside. Accused guilty of offence under Sections
376, 452 and 506 I.P.C. (Para 69)

Allowed. (E-5)

(Delivered by Hon'ble Saumitra Dayal
Singh, J.)

1. Heard Shri V.P. Srivastava, learned
Senior Advocate assisted by Shri Mukesh
Kumar Pandey, learned counsel for the
respondent and Shri L.D. Rajbhar, learned
A.G.A. for the appellant.

2. The present government appeal
arises from the order of acquittal dated
08.12.2023 passed by Shri Atik Uddin,
learned Additional District and Sessions
Judge/F.T.C., Auraiya, in S.T. No. 75 of
2017 (State of U.P. v. Pushpendra @
Gabbar), arising out of Case Crime No. 694
of 2016, under Sections 452, 506 and 376
IPC, Police Station Auraiya, District
Auraiya.

3. By that order, the learned trial court
has acquitted the accused of the offence
alleged under Sections 452, 506 and 376
IPC, Police Station Auraiya, District
Auraiya.

4. The above Sessions Trial emerged
on the F.I.R. lodged in above noted Case
Crime number. It was lodged on the
strength of the Written Report dated
14.09.2016 submitted by 'S' (P.W.-2 at the
trial). He is the brother of the victim 'X'
(P.W.-1 at the trial). In that Written Report,
it was narrated, 'X' aged about 18 years
suffered rape by the present accused on
11.09.2016, at around 01:30 p.m. at the
residence of the informant side at Awas
Vikas
Colony,
Auraiya
(hereinafter
described as the 'apartment'). In that, it was
disclosed, prior to the occurrence the
accused used to make obscene utterances at
'X'. On the day and time of occurrence, he
forcibly entered the 'apartment' and forced
her to first undress by threatening her with
a country made firearm. Upon 'X' calling
for
help,
her
younger
brother,
'R'
intervened. He was pushed out by the
accused. Then, rape was committed on 'X'.
The Written Report is Ex. Ka-2 at the trial.
On that Written Report submitted by P.W.-
2, F.I.R. was registered on the same day. It
is Ex. Ka-8 at the trial. On such F.I.R.
lodged, statement of P.W.-2 was recorded
on 16.09.2016. Therein, he disclosed that
the accused used to live at Awas Vikas
Colony, Kanpur Road, Auraiya. The
accused was his neighbor. The 'X' had been
engaged to one 'S'. On the date of
occurrence, she along with 'S' and her
brother 'R' were present in the 'apartment'.
At that time, the accused along with 3-4
accomplices forced their entry into the
'apartment' threatening her and her fiance,
'S' with a country made firearm. He forced
them to undress and filmed a video of the
two, in that nude state. Thereafter, 'S' was
made to wear his clothes and leave the
'apartment'.
Thereafter,
the
accused
committed rape on 'X'. She lost her
consciousness. When she regained her
consciousness, she found herself lying at
Nainpura in Jalaun. She managed to get
back home. There, she narrated the story to
her mother. At last, she stated that there
pre-existed some quarrel with the accused.
That statement is Ex. Ka-9 at the trial. On
15.09.2016, a medico legal examination of
'X' was conducted by Dr. Seema Gupta
4 All. State of U.P. Vs. Pushpendra alias Gabbar
987
(P.W.-3 at the trial). It is Ex. Ka-3 at the
trial. On the same date/15.09.2016, medical
examination report was prepared, upon due
examination of the accused, by Dr. Seema
Gupta. In that, following injuries were
noted:

"(i)
Brown
colour
abrasion
present both side of neck. 3 cm x 1.5 cm
right side. 8 cm below right ear.

(ii) 3 cm x 2.5 cm left side of neck
7.5 cm below (illegible) left ear.

(iii) 6 cm x 3.5 cm Brown's color
abrasion present at right buttock 9 cm
away from middle."

5. Further, the following observation
was made by the doctor upon medical
examination of the 'X' :

"Sign
of
struggle
present,
injuries seen over neck and buttock.
(illegible) video graphy present. PSA not
confirmed. Pathological and DNA report
is awaited.

6. The said report is also Exhibited
at the trial. She was also subjected to
other examination such as Ultrasound, Xray etc. However, findings on those tests
remained inconclusive. A serological
report was also prepared. It did not
suggest the presence of spermatozoa-dead
or alive. However, it may noted here
itself,
that
sample
was
drawn
on
15.09.2016 i.e. more than 3 days after the
occurrence.

7. Thereafter, on 24.09.2016, the
statement of the victim was recorded
under Section 164 Cr.P.C. In that, she
reiterated her earlier statement except that
she did not make any disclosure of any preexisting quarrel with the accused. Also, she
added, when she regained consciousness at
Nainpura, Sunil and Chhotu, both brothers
of the accused were present at that place.
That statement is Ex. Ka-1 at the trial.

8. Upon the case being committed for
trial by the Court of Sessions, following
charges were framed :

"1- यह नक नदनांक 11.09.2016 को समय
करीब 1.30 बजे व स्थान ब्लाक xxxxxxऔरैया में अनभयुक्त
द्वारा वादी xxxxxx के घर में घुसकर गृह-अनतचार नकया। इस
प्रकार आपने ऐसा कायट नकया जो भारतीय दण्ड संनहता की धारा
452 के अधीन दण्डनीय अपराध है और इस न्यायालय के प्रसंज्ञान
में है।

2- यह नक नदनांक 11.09.2016 को समय
करीब 1.30 बजे व स्थान xxxxxxऔरैया में अनभयुक्त द्वारा वादी
xxxxxxके घर में घुसकर वादी xxxxxxकी बनहन को कमरे में ले
जाकर उसे तमंचा नदखाकर उसके कपडे उतार उसके साथ जबरन
बलात्कार नकया । इस प्रकार आपने ऐसा कायट नकया जो भारतीय
दण्ड संनहता की धारा 376 के अधीन दण्डनीय अपराध है और इस
न्यायालय के प्रसंज्ञान में है।

3- यह नक उपरोक्त नतनथ समय व स्थान पर
अनभयुक्त द्वारा वादी की xxxxxx की बनहन को जान से मारने की
धमकी नदया। इस प्रकार आपने ऐसा कायट नकया जो भारतीय दण्ड
संनहता की धारा 506 के अधीन दण्डनीय अपराध है और इस
न्यायालय के प्रसंज्ञान में है।"

9. At the trial, besides the above
documentary
evidence
and
other
documents,
the
prosecution
led
oral
evidence. In that, first, the victim 'X' was
examined
as
P.W.-1.
During
her
examination-in-chief, she proved, she was a
student of Intermediate and resident of
village Badua. The occurrence took place
on 11.9.2016, at about 01:30 p.m. when she
was present at the 'apartment' along with
her younger brother 'R' and her fiance 'S'.
At that time, the accused forcibly entered
that 'apartment' and pushed out her minor
brother. He then commanded 'X' and 'S' to
undress. He threatened to kill them if they
did not obey his command. He filmed them
988 INDIAN LAW REPORTS ALLAHABAD SERIES
and made a video. Thereafter, he asked 'S'
wear his clothes and forced him to leave.
While 'X' was getting dressed, the accused
forced himself on her and thus committed
rape. She could not let out any cry for help
as the accused covered her mouth with his
hand. Upon such occurrence, she was
disoriented. The accused further threatened
to kill her if she dared to tell her family or
police about the occurrence. Having caused
such occurrence, the accused then forced
'X' to accompany him on a motorcycle to
be dropped to her village. Initially, 'X' did
not cooperate. On that, the accused
threatened to push her from the third floor
of that building. She complied and thus
accompanied the accused on a motorcycle
with another person riding pillion on the
same motor-cycle, seated behind her. She
was thus left at Nainapurva village under a
'Peepal' tree. She lost her consciousness.
When she gained her consciousness, she
found a crowd had gathered, including
Amit Pal and Sunil brothers of the present
accused. From there, she travelled to her
home at Badua village with the help of a
passerby who gave her lift.

10. Upon reaching home, she found,
neither her mother nor her father were
present. From a mobile phone of a stranger,
she talked to her elder brother 'S-1' (P.W.-2)
and informed him about the entire
occurrence. During her cross-examination,
'X' admitted, she knew the accused from
before. He used to live two houses away.
She specifically stated that her family and
family of the present accused were not on
terms. Neither they had any animosity nor
they were on talking terms. She denied
suggestion of having attended the marriage
of the sister of the present accused or of the
accused having offered any help in any
treatment that may have been given to her,
earlier. As to her fiance 'S', she disclosed he
was a Medical Representative. Though
earlier engaged to him, upon the occurrence
being caused, her marriage was called off.
On
being
further
questioned,
she
specifically
stated,
she
had
earlier
complained to her family about vulgar
utterances/vulgar songs of the appellant,
directed at her. On such occurrence, her
family members had met the family
members of the accused who had assured
that they would offer appropriate reprimand
to
the
accused.
On
being
further
questioned, she specified, her parents had
complained to the uncle and 'Amma' of the
accused. During her cross-examination, she
was shown her photographs (produced by
the defence). She denied the knowledge of
the same.

11. Thereafter, on 31.01.2018, she
was further examined. On that date she
further disclosed that she got married on
18.6.2016 to one 'S-2'. She denied all
suggestions thrown to her of knowledge
about prior events in the life of the present
accused. Thus, she denied any acquaintance
with the accused. At that stage, she further
stated, at the time of the occurrence, four
persons
had
entered
her
'apartment'
(including the present accused). They had
beaten 'R' and thus forced him out of the
'apartment'. She again reiterated that the
accused held a country made pistol on her
temple, at the time of the occurrence being
caused. She further explained the external
injuries suffered by him. She denied the
suggestion
that
she
had
formed
a
consensual relationship with the accused.

12. Next, 'S-1', the elder brother of
'X' was examined as P.W.-2. During his
examination-in-chief, he proved, earlier the
accused had made vulgar utterances at 'X'-
described as singing of vulgar songs,
directed at 'X'. Then, he proved the F.I.R.
4 All. State of U.P. Vs. Pushpendra alias Gabbar
989
narration. At the same time, it is an
admitted case of the prosecution that he is
not an eye-witness. He proved the version
as narrated to him by 'X'. During his crossexamination, he admitted that he is an
illiterate person and that he had not seen
the occurrence. He had got the Written
Report typed as was submitted to the
police. As to the age of his younger brother
'R' at the time of occurrence, he proved the
same to be about 10-11 years. On being
questioned he explained, he learnt of the
occurrence
at
about
1.30
p.m.
on
11.09.2016 through a telephonic call made
by 'R'. At that time his father was not home.
He neither disclosed the occurrence to his
mother nor he visited the house of the
accused at that time though it was near to
his place. At the same time, he first
disclosed the occurrence to his uncle 'L'
(not examined at the trial) at about 2.00
p.m. On that, six people travelled on
motorcycles to the 'apartment'. They
reached before sundown. At that time, 'X'
was not found there, though the 'apartment'
was lying open. They travelled on three
different motorcycles in three different
directions in search of 'X'. They could not
locate 'X'. After returning to the 'apartment',
he received a phone call from another
person described as 'C.P.' from Jalaun
crossing. Then, 'X' was found at Nainapur
village under a 'Peepal' tree, about 200
meters, from the nearest habitation. After
again returning to the 'apartment', he found
'X' and 'R' had reached back. By that time,
the sun had also set.

13. At that time, he called one Dr.
Som Singh (not examined at the trial) to
examine 'X'. For reason of trauma suffered,
'X' was unable to speak. She narrated the
entire occurrence to P.W.-1, the next
morning. On the third day, he lodged the
F.I.R. and the police investigation started.
He disclosed that his next younger brother
got the Written Report typed. He also
reiterated that the marriage between 'X' and
'S' could not be solemnized. Later, 'X'
married with 'S-2' (not examined at the
trial).

14. Thereafter, Dr. Seema Gupta was
examined as P.W.-3. She proved the
injuries noted by her in the medical
examination of 'X'. She also proved that at
the time of her medical examination, 'X'
had complained of pain in her private parts.
It may be noted, no internal injury had been
noted. As to external injuries, she proved
three injuries described (by the doctor), to
be signs of possible struggle. She explained
that such injuries may have been suffered
by 'X' while offering resistance to rape.
However, she clarified that all injuries were
simple in nature and there were no internal
injuries. Hymen was old torn and healed
with no fresh injuries noted. As to absence
of DNA sample, she admitted that DNA
report would have been relevant but that it
was not received by her. During her cross
examination, she was again questioned as
to the possibility of external injuries
suffered by 'X' in resisting rape. She
admitted the possibility of such occurrence.

15. Thereafter, the Investigating
Officer Ratan Singh was examined as P.W.-
4. He proved the investigation. Lady
constable Mohita Verma was examined as
P.W.-5. She proved the registration of the
case and the GD entries etc.

16. 'R', youngest brother was
examined as P.W.-6. He narrated that the
accused alongwith 3-4 other persons had
forced their entry into the 'apartment' where
he alongwith 'X' and 'S' were present,
before the occurrence. He also narrated that
the accused had asked 'X' and 'S' to
990 INDIAN LAW REPORTS ALLAHABAD SERIES
undress. On that, 'R' claimed to have
questioned the accused. The accused and
others responded and beat him. He was
forced out of the 'apartment'. On being thus
forced out, he left for his home. In the
evening, 'X' disclosed, after 'R' left, the
accused filmed 'X' and 'S' without clothes
and thereafter 'S' was forced out of the
'apartment' and 'X' raped by the accused.
He identified the accused as one of the
persons who had forced his entry into the
'apartment', armed with a country made
firearm.
During
his
extensive
cross
examination, he stood by his original stand
and no discrepancy was offered by him.

17. Thereafter, lady constable Maya
Devi was examined as P.W.-7. She proved
the fact of 'X' being taken for medical
examination. She also proved preparation
of certain test slips etc. Thereafter, S.I.
Balraj Shahi was examined as P.W.-8. He
proved
the
fact
that
the
accused
surrendered and that his statement was
recorded during the investigation.

18. Upon conclusion of prosecution
evidence, statement of the accused was
recorded
under
Section
313
Cr.P.C..
Amongst others, specific question was put
to him with respect to three external
injuries received by 'X', by way of question
No. 4. Other than bald denial, he did not
make any other statement. As to the reason
why such accusation may have emerged
against him, he only stated, there was old
animosity between the parties and that he
was innocent. No defence evidence was
led. Thereupon, the learned trial Court has
heard the parties and made the order of
acquittal, impugned in the present appeal.

19. Learned A.G.A. would submit,
parameters for such an appeal though
limited, are well defined. To the extent the
learned trial Court has reached a conclusion
of innocence of the accused dehors the
evidence and in fact wholly conflicted to
the
consistent
evidence
led
by
the
prosecution-that the accused had caused
such occurrence, the finding recorded by
the learned trial Court, is perverse. In that,
he has heavily relied on the testimony of
the victim 'X' (P.W.-2 at the trial). Besides
the minor discrepancy i.e. whether the
accused alone or the accused alongwith 3-4
other persons had forced their entry into the
'apartment' of 'X', there is absolutely no
other discrepancy as to the occurrence
disclosed by 'X' as also 'R' who was present
just prior to the occurrence and who upon
resistance offered (by him), was beaten and
forced out of the 'apartment', at that time. In
that, both witness of fact consistently
narrated that the accused had forced his
entry into the 'apartment' by threatening the
inmates with a country made firearm. He
commanded 'X' and her fiance 'S' to
undress, under such threat and compulsion.
After filming 'X' and her fiance 'S' in that
nude state, he forced 'S' to leave the place.
After 'S' left and as 'X' was getting dressed,
the accused forced himself on her and
committed rape, despite resistance offered
by her. That narration offered by P.W.-2-the
victim, stands on the footing of evidence of
an
injured
witness.
It
remained
unimpeached, at the trial. The conclusion
drawn by the learned trial Court to the
contrary, is not based on any evidence or
material on record.

20. While such finding of fact suffers
from perversity, what makes the case fall
within the parameters of appeal against
acquittal is the remarkable feature that the
learned trial Court has not disbelieved or
discredited the evidence of the victim 'X'.
Though it has noted in detail the evidence
led at the trial, it has not offered any
4 All. State of U.P. Vs. Pushpendra alias Gabbar
991
material
consideration
to
that
vital
evidence.

21. Then, the further finding recorded
by the learned trial Court to disbelieve the
prosecution story are also described to be
perverse
and
based
on
extraneous
consideration. The fact that there was delay
of three day in lodging the F.I.R., has been
given undue weight. It is settled law that
delay in lodging the F.I.R. alone may not be
relevant to disbelieve the prosecution story
based on strong and cogent direct evidence.
While it may have remained with the
learned trial court to consider that issue if
facts had otherwise given rise to any doubt
in the prosecution story, in the proven facts
of the present case where the occurrence
was proven beyond reasonable doubt, delay
of three days in lodging the F.I.R. in the
circumstances proven on record, was
inconsequential.

22. At the relevant time, 'X' was
engaged to 'S'. She was in his company at
her 'apartment', when the accused barged
into
that
accommodation.
Forced
objectionable video to be shot of the two
and thereafter forced 'S' to leave the
premises.
The
marriage
engagement
between 'X' and 'S' broke down upon that
occurrence. It took the parties half a day to
search out 'X' and for her to reach back
home.
She
was
disoriented
by
the
occurrence. It took time for the parties to
reconcile the tragic situation in which they
had
landed.
They
responded
within
reasonable time. Therefore, the ocular
evidence as corroborated by medical
evidence may not have been thrown out on
a simple noting of three days' time taken to
lodge the F.I.R.

23. As to the medical evidence, it has
been submitted again, it is not the rule of
law that rape must be established on the
strength of medical evidence. In the first
place where credible ocular evidence of the
victim exists, no corroboration is required.
Even if some corroboration is required, in
the present facts, that was clearly shown to
exist in the shape of three external injuries
suffered
by
'X'.
Both
during
her
examination-in-chief as also during her
cross-examination, Dr. Seema Gupta (P.W.-
3) established that such injuries may be
received by the victim while resisting
commission of rape.

24. The finding recorded by the
learned trial Court that there were preexisting bad relations between the parties is
plainly
perverse.
A
stray
sentence
appearing in the statement recorded under
Section 161 Cr.P.C. has been given undue
weight by the learned trial Court that too
wholly contrary to the scheme and manner
in which a witness may be contradicted. At
no stage of her cross-examination, P.W.-2
was ever confronted with any her previous
statement. Therefore, it never became open
to the learned trial Court to refer to those
statements in the reasoning offered by it, to
reach a conclusion that there pre-existed
bad relations between the parties. The
approach adopted by the learned trial Court
is not permissible/recognized in law.

25. In such circumstances, reliance
has been placed on a recent decision of the
Supreme
Court
in
Constable
907
Surendra Singh and another, 2025 SCC
Online SC 176.

26. On the other hand Sri V.P.
Srivastava learned Senior Counsel assisted
by Sri Mukesh Kumar Pandey learned
counsel for the accused would submit that
the learned trial Court has rightly made the
order of acquittal. On merits, it has been
992 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted, the prosecution version was not
wholly
credible
and
consistent.
The
accused had no occasion to commit such
occurrence merely because bad relations
may have emerged between the parties. He
has been falsely implicated. Reference has
been made to the fact that the prosecution
evidence is inconsistent as to the number of
accused persons/accomplices who forced
their entry into the 'apartment' of 'X'.
Though the F.I.R. narrated only the accused
and in the initial statement of 'X' also she
named only the accused, later at the trial
that story was changed to the accused along
with 3-4 other unnamed persons.

27. Second, it has been submitted,
prosecution story is not certain as to how
the first informant (P.W.-1) came to know
of the occurrence. At one place, he claimed
to have been informed by the younger
brother of victim 'X' namely 'R' (P.W.-6)
and at another he claimed to have been
informed by 'X' herself.

28. Third, it has been submitted,
initially 'X' claimed she had a quarrel with
the accused but later she claimed neutral
relations.

29. Fourth, it has been submitted,
there is absolutely no medical evidence to
establish the occurrence of rape. In the
nature of occurrence disclosed by the
prosecution, it is unlikely that the victim
would not have suffered both-external and
internal injuries. Absence of such injuries
establishes that no such occurrence took
place. In that regard, reliance has been
placed on the fact that neither any dead nor
live spermatozoa were detected in the
vaginal swab test.

30. Fifth, it has also been alleged that
it is wholly unlikely that in such an
occurrence neither 'S' nor 'R' called for help
any sooner. In fact, 'S' neither called
anybody for help nor he has been examined
at the trial. It clearly proves that the
occurrence was otherwise.

31. In such circumstances, heavy
reliance has been placed on the following
decisions to submit, no interference is
warranted in the present appeal against
acquittal :

(i) Sheo Swarup and others v.
Emperor, 1935 VOL 1 CRLJ 786.

(ii) Dhanna v. State of M.P.,
1996 VOL 10 SCC 79.

(iii) Shailendra Pratap and
another v. State of U.P., 2003 VOL 2
CRLJ 1270.

(iv) Samghaji Haniba Patil v.
State of Karnataka, 2007 VOL 1 SCC
Crl. 113.

(v)
Suryakant
Dadasahab
Bitale v. Dilip Bajranj Kale and others,
2014 VOL 5. SCC Crl. 728.

32. Having heard learned counsel for
the parties and having perused the record,
in the first place as to the principle in law at
which interference may be offered by the
High Court in appeal against acquittal,
there is no quarrel. In Sheo Swarup (supra),
in the context of similar statutory provision,
the Privy Council observed as under :

"But in exercising the power
conferred by the Code and before reaching
its conclusions upon fact, the High Court
should and will always give proper weight
and consideration to such matters as (1)
the views of the trial Judge as to the
credibility of the witnesses; (2) the
presumption of innocence in favour of the
accused, a presumption certainly not
weakened by the fact that he has been
4 All. State of U.P. Vs. Pushpendra alias Gabbar
993
acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4)
the slowness of an appellate Court in
disturbing a finding of fact arrived at by a
Judge who had the advantage of seeing the
witnesses."

33. Then, in Dhanna (supra), it was
observed as under :

"Though the Code does not make
any distinction between an appeal from
acquittal and an appeal from conviction so
far as powers of the appellate court are
concerned, certain unwritten rules of
adjudication
have
consistently
been
followed by Judges while dealing with
appeals against acquittal. No doubt, the
High Court has full power to review the
evidence and to arrive at its own
independent conclusion whether the appeal
is against conviction or acquittal. But while
dealing with an appeal against acquittal
the appellate court has to bear in mind:
first, that there is a general presumption in
favour of the ignorance of the person
accused in criminal cases that presumption
is only strengthened by the acquittal. The
second is, every accused is entitled to the
benefit of reasonable doubt regarding his
guilt and when the trial court acquitted
him. He would retain that benefit in the
appellate court also. Thus, appellate court
in appeals against acquittals has to
proceed more cautiously and only if there is
absolute assurance of the guilt of the
accused, upon the evidence on record, that
the order of acquittal is liable to the
interfered with or disturbed. (Durgacharan
Naik and ors. v. State of Orissa, AIR 1966
SC 1775, Caetand Piedade Fernandes &
Anr. v. Union Terriroty of Goa, Daman &
Diu, Panaji. Goa, AIR 1977 SC 135, Tota
Singh and Anr. v. State of Punjab, AIR 1987
SC 1083, Awadhesh and Anr. v. State of
M.P., AIR 1988 SC 1158, Ashok Kumar v.
State of Rajasthan, AIR 1990 SC 2134)."

34. Next, in Shailendra Pratap
(supra), the Supreme Court observed as
under :

"Having heard learned counsel
appearing on behalf of the parties, we are
of the opinion that the trial court was quite
justified in acquitting the appellants of the
charges as the view taken by it was
reasonable one and the order of acquittal
cannot be said to be perverse. It is well
settled that appellate court would not be
justified in interfering with the order of
acquittal unless the same is found to be
perverse. In the present case, the High
Court has committed an error in interfering
with the order of acquittal of the appellants
recorded by the trial court as the same did
not suffer from the vice of perversity."

35. In Samghaji Haniba Patil
(supra), the Supreme Court observed as
under :

"Had the High Court been the
first court, probably its view could have
been upheld, but it was dealing with a
judgment of acquittal. We have taken notice
of the depositions of the main prosecution
witnesses only to show that the view of the
learned Trial Judge cannot be said to be
perverse or the same was not possible to be
taken. While dealing with a case of
acquittal, it is well known, the High Court
shall not ordinarily overturn a judgment if
two views are possible. accused had no axe
to grind. The prosecution had not proved
that he had any motive. He was only said to
be the friend of accused No.1. If the
accused had gone there with six others to
assault the deceased and his family
members, it is unlikely that accused would
994 INDIAN LAW REPORTS ALLAHABAD SERIES
take with him for the said purpose, a
hammer to an agricultural field. The
hammer
is
not
ordinarily
used
for
agricultural operations. Even if we assume
that accused No.1 had been nurturing any
grudge against the deceased, it is unlikely
that accused would be involved therein."

36. Also, in Suryakant Dadasahab
Bitale (supra), the Supreme Court further
observed as below :

"In the present case the Session
Court has not ruled out any evidence which
was
admissible.
Both
the
dying
declarations were considered in proper
prospect. The material evidence has not
been overlooked by the Sessions Court, as
apparent from the discussions made by
Sessions Judge and quoted above. In these
circumstances, the High Court was not
justified in interfering with the order of
acquittal in a revision."

37. In Constable 907 Surendra
Singh (supra), the Supreme Court again
revisited the law in point and observed as
under :

"11. Recently, in the case of Babu
Sahebagouda Rudragoudar v. State of
Karnataka, (2024) 8 SCC 149 a Bench of
this Court to which one of us was a
Member (B.R. Gavai, J.) had an occasion
to consider the legal position with regard
to the scope of interference in an appeal
against acquittal. It was observed thus:

"38. First of all, we would like
to reiterate the principles laid down by
this Court governing the scope of
interference by the High Court in an
appeal filed by the State for challenging
acquittal of the accused recorded by the
trial court.

39. This Court in Rajesh
Prasad v. State of Bihar [Rajesh Prasad
v. State of Bihar, (2022) 3 SCC 471 :
(2022) 2 SCC (Cri) 31] encapsulated the
legal position covering the field after
considering various earlier judgments
and held as below : (SCC pp. 482-83,
para 29)

"29. After referring to a catena
of judgments, this Court culled out the
following general principles regarding
the powers of the appellate court while
dealing with an appeal against an order
of acquittal in the following words :
(Chandrappa case [Chandrappa v. State
of Karnataka, (2007) 4 SCC 415 : (2007)
2 SCC (Cri) 325], SCC p. 432, para 42)

'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,
reappreciate
and
reconsider the evidence upon which the
order of acquittal is founded.

(2) The Criminal Procedure
Code, 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 curtail extensive
powers of an appellate court in an appeal
against acquittal. Such phraseologies are
more in the nature of "flourishes of
language" to emphasise the reluctance of
an appellate court to interfere with
acquittal than to curtail the power of the
4 All. State of U.P. Vs. Pushpendra alias Gabbar
995
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 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.'"

40. Further, in H.D. Sundara v.
State of Karnataka [H.D. Sundara v. State
of Karnataka, (2023) 9 SCC 581 : (2023) 3
SCC (Cri) 748] this Court summarised the
principles
governing
the
exercise
of
appellate jurisdiction while dealing with an
appeal against acquittal under Section
378CrPC as follows : (SCC p. 584,
para 8)

"8. ... 8.1. The acquittal of the
accused
further
strengthens
the
presumption of innocence;

8.2. The appellate court, while
hearing an appeal against acquittal, is
entitled to reappreciate the oral and
documentary evidence;

8.3.