# State of U.P v. Rajesh Bind

- **Citation:** (2021) 11 ILRA 281
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-25
- **Case number:** Government Appeal No. 7 of 2020
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-rajesh-bind-46504
- **Pages:** 7

## Headnote

position of law in acquittal appeals that 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. (Para 15)

Appeal Rejected. (E-10)

List of Cases cited:

## Text

11 All. State of U.P. Vs. Rajesh Bind
281
contemplated under the Code of Criminal
Procedure, 1973, however, the same is always
subject to the valid grounds and reasons
necessitating for allowing the same.

30. The application so preferred by the
revisionist also does not give any specific details as
to what are the questions which are to be raised in
the cross-examination of PW-1 as only bald and
vague assertion has been made that certain
questions relating to the occurrence of the incident
were left to be asked. In the absence of any
pleadings set-forth by the revisionist before the
court below seeking re-examination / recall of the
witness as well as canvasing of any argument to
show that the order under challenge is illegal,
perverse and palpably unjust, this Court cannot
interfere.

31. Accordingly, this Court is of the firm
opinion that the order passed by the court below
does not suffer from any manifest illegality in
exercise of revisional jurisdiction. This court
cannot also substitute its own view, once another
view is possible, that too when there is nothing on
record to show that the view taken by the court
below suffers from manifest error or is palpably
illegal.

32. Resultantly, the present revision is
wholly misconceived and is liable to be dismissed.

33. Accordingly, the revision is dismissed.

34. Cost made easy.
----------
(2021)12ILR A281
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.10.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.
Government Appeal No. 7 of 2020

State of U.P. ...Appellant
Versus
Rajesh Bind ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:

A. Practice & Procedure - It is a settled
position of law in acquittal appeals that 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. (Para 15)

Appeal Rejected. (E-10)

List of Cases cited:

1. Rai Sandeep @ Deeput Vs. St. of NCT Delhi Crl.
Appeal No. 2486 of 2009

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

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

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

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

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

7. Mookkiah & nr. Vs. St., Rep. 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.a JT 2013
(7) SC 66

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

11. Shailendra Rajdev Pasvan Vs. St. of Gujarat
(2020) 14 SC 750
282 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Samsul Haque Vs. St. of Assam (2019) 18 SCC
161

13. Mahadeo S/o Kerka Maske Vs. St. of Mah. & Anr.
(2013) 14 SCC 637
(Delivered by Hon'ble Dr. Kaushal Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. Heard learned AGA for the State and
perused the record.

2. This appeal, at the behest of the State,
has been preferred against the judgment and
order
dated
13.09.2019,
passed
by
the
Additional Sessions Judge/ F.T.C., Jaunpur,
acquitting accused-respondent, who has been
tried for commission of offence under Sections
363, 368, 376 and 120-B I.P.C.

3. The brief facts of the case of the
prosecution, as set out before the trial Court, are
that a complaint being Police Case No.352 of
2011 for commission of offence under Sections
363, 368, 376 and 120-B I.P.C. was sent for
investigation under Section 156 (3) Cr.P.C.,
wherein allegations were that the prosecutrix
was married in June 2011 in Jaunpur, she was
aged about 16 years and when she had gone to
the school, the accused along with his friends
took her in the Bolero Caar and when the girl
did not come back to her home, father of the
prosecutrix after searched out her daughter in all
places, he complaint the report at the police
station and conveyed that she had gone with
Rajesh Bindu. On the basis of F.I.R. dated
2.11.2011,
the
prosecutrix
recorded
the
statement under Section 161 and then coming to
the conclusion that prima facie offences under
Sections 363, 368 were made out. Later on, the
charge sheet was submitted by the Magistrate
under Sections 363, 368, 376 and 120-B of the
I.P.C. The police did not carried out any
investigation and, therefore, complaint to the
court was made, which culminated into fresh
investigation and the police submitted the
charge-sheet.

4. Learned Magistrate committed the case
to the court of session as it was a sessions trial.
The learned Sessions Judge summoned the
accused and questioned him. The accused
pleaded not guilty and wanted to be tried. The
Sessions Judge framed the charges of the
accused as the accused pleaded not guilty and
wanted to be tried. The State examined several
witnesses and also produced documents. The
genesis of the complaint also shows that all of
them did unnatural act with her. The medical
evidence showed that no rape was committed on
her. This was what the doctor opined as there
was no male sperm found.

5. After recording the evidence of the
witnesses and perusing the material on record,
the trial Court passed the impugned order.
Hence, the present appeal.

6. Learned AGA for the appellant-State,
vehemently submitted that the trial Court
committed a grave error in passing the impugned
judgment and order, inasmuch as it failed to
appreciate the material on record in its proper
perspective. It is submitted that taking into
consideration the oral evidence of the witnesses
examined by the prosecution as well as the
documentary evidences produced by it, the trial
Court ought to have held the accused guilty of
the charges leveled against them. It is, therefore,
prayed that the appeal be allowed.

7. On the basis of the aforesaid evidence,
we are unable to accept the submission of
counsel for the State. This is a case where we
need to call the accused to this Court and retry
him and then decide the matter. At the first
blush, when the judgment in the case of Rai
Sandeep @ Deeput vs. State of NCT Delhi,
decided on 7.8.2012 in Crl. Appeal No.2486 of
2009 goes to show that the judgment of the
11 All. State of U.P. Vs. Rajesh Bind
283
court-below is not perverse. We are unable to
persuade ourselves to allow the appeal.

8. The principles which would govern and
regulate the hearing of an appeal by this Court,
against an order of acquittal passed by the trial
Court, have been very succinctly explained by
the Apex Court in catena of decisions. In the
case of "M.S. NARAYANA MENON @
MANI VS. STATE OF KERALA & 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."

9.

Further,
in
the
case
of
"CHANDRAPPA
Vs.
STATE
OF
KARNATAKA", reported in (2007) 4 S.C.C.
415, the Apex Court laid down the following
principles;

"42. From the above decisions, in our
considered
view,
the
following
general
principles regarding powers of the appellate
Court while dealing with an appeal against an
order of acquittal emerge:

[1] An appellate Court has full power
to review, re-appreciate and reconsider the
evidence upon which the order of acquittal is
founded.

[2] The Code of Criminal Procedure,
1973 puts no limitation, restriction or condition
on exercise of such power and an appellate
Court on the evidence before it may reach its
own conclusion, both on questions of fact and of
law.

[3]
Various
expressions,
such
as,"substantial and compelling reasons", "good
and
sufficient
grounds",
"very
strong
circumstances",
"distorted
conclusions",
"glaring mistakes", etc. are not intended to
curtain extensive powers of an appellate Court
in
an
appeal
against
acquittal.
Such
phraseologies are more in the nature of
"flourishes of language" to emphasis the
reluctance of an appellate Court to interfere
with acquittal than to curtail the power of the
Court to review the evidence and to come to its
own conclusion.

[4] An appellate Court, however, must
bear in mind that in case of acquittal there is
double presumption in favour of the accused.
Firstly, the presumption of innocence is
available to him under the fundamental
principle of criminal jurisprudence that every
person shall be presumed to be innocent unless
he is proved guilty by a competent Court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened
by the trial Court.

[5] If two reasonable conclusions are
possible on the basis of the evidence on record,
the appellate Court should not disturb the
finding of acquittal recorded by the trial Court."

10. Thus, it is a settled principle that while
exercising appellate powers, even if two
reasonable views/conclusions are possible on the
basis of the evidence on record, the appellate
Court should not disturb the finding of acquittal
recorded by the trial Court.

11. Even in the case of "STATE OF GOA
Vs. SANJAY THAKRAN & ANR.", reported
in (2007) 3 S.C.C. 75, the Apex Court has
reiterated the powers of the High Court in such
cases. In para 16 of the said decision, the Court
has observed as under:
284 INDIAN LAW REPORTS ALLAHABAD SERIES

"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."

12. Similar principle has been laid down
by the Apex Court in cases of "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.

13. 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."

14. Even in a recent decision of the Apex
Court in the case of "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:

"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
11 All. State of U.P. Vs. Rajesh Bind
285
of consideration of the appeal is concerned, no
distinctions or differences in approach are
envisaged in dealing with an appeal as such
merely because one was against conviction or
the other against an acquittal. [Vide State of
Rajasthan vs. Sohan Lal and Others, (2004) 5
SCC 573]"

15. It is also a settled legal position that in
acquittal appeals, the appellate Court is not
required to rewrite the judgment or to give fresh
reasonings, when the reasons assigned by the
Court below are found to be just and proper.
Such principle is laid down by the Apex Court in
the case of "STATE OF KARNATAKA VS.
HEMAREDDY", AIR 1981, SC 1417, wherein
it is held as under:

"...This Court has observed in Girija
Nandini Devi V. Bigendra Nandini Choudhary
(1967) 1 SCR 93:(AIR 1967 SC 1124) that it is
not the duty of the Appellate Court on the
evidence to repeat the narration of the evidence
or to reiterate the reasons given by the trial
Court expression of general agreement with the
reasons given by the Court the decision of which
is under appeal, will ordinarily suffice."

16. In a recent decision, the Hon'ble Apex
Court in "SHIVASHARANAPPA & 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."

17. Further, in the case of "STATE OF
PUNJAB
VS.
MADAN
MOHAN
LAL
VERMA", (2013) 14 SCC 153, the Apex Court
has held as under:

"The law on the issue is well settled
that demand of illegal gratification is sine qua
non for constituting an offence under the 1988
Act. Mere recovery of tainted money is not
sufficient
to
convict
the
accused
when
substantive evidence in the case is not reliable,
unless there is evidence to prove payment of
bribe or to show that the money was taken
voluntarily as a bribe. Mere receipt of the
amount by the accused is not sufficient to fasten
guilt, in the absence of any evidence with regard
to demand and acceptance of the amount as
illegal gratification. Hence, the burden rests on
the
accused
to
displace
the
statutory
presumption raised under Section 20 of the 1988
Act, by bringing on record evidence, either
direct or circumstantial, to establish with
reasonable probability, that the money was
accepted by him, other than as a motive or
reward as referred to in Section 7 of the 1988
Act. While invoking the provisions of Section 20
of the Act, the court is required to consider the
explanation offered by the accused, if any, only
on
the
touchstone
of
preponderance
of
probability and not on the touchstone of proof
beyond all reasonable doubt. However, before
the accused is called upon to explain how the
amount in question was found in his possession,
the foundational facts must be established by the
prosecution. The complainant is an interested
and partisan witness concerned with the success
of the trap and his evidence must be tested in the
same way as that of any other interested witness.
In a proper case, the court may look for
independent corroboration before convincing
the accused person."

18.

The
Apex
Court
recently
in
Jayaswamy vs. State of Karnataka, (2018) 7
SCC 219, has laid down the principles for laying
down the powers of appellate court in reappreciating the evidence in a case where the
State has preferred an appeal against acquittal,
which read as follows:
286 INDIAN LAW REPORTS ALLAHABAD SERIES

"10.It is by now well settled that the
Appellate Court hearing the appeal filed against
the judgment and order of acquittal will not
overrule or otherwise disturb the Trial Court's
acquittal if the Appellate Court does not find
substantial and compelling reasons for doing so.
If the Trial Court's conclusion with regard to the
facts is palpably wrong; if the Trial Court's
decision was based on erroneous view of law; if
the Trial Court's judgment is likely to result in
grave miscarriage of justice; if the entire
approach of the Trial Court in dealing with the
evidence was patently illegal; if the Trial Court
judgment
was
manifestly
unjust
and
unreasonable; and if the Trial Court has
ignored the evidence or misread the material
evidence or has ignored material documents like
dying declaration/report of the ballistic expert
etc. the same may be construed as substantial
and compelling reasons and the first appellate
court may interfere in the order of acquittl.
However, if the view taken by the Trial Court
while acquitting the accused is one of the
possible
views
under
the
facts
and
circumstances of the case, the Appellate Court
generally will not interfere with the order of
acquittal particularly in the absence of the
aforementioned factors.

.........................It is relevant to note
the observations of this Court in the case of
Ramanand Yadav vs. Prabhu Nath Jha & Ors.,
(2003) 12 SCC 606, which reads thus:

"21.There is no embargo on the
appellate court reviewing the evidence upon
which an order of acquittal is based. Generally,
the order of acquittal shall not be interfered with
because the presumption of innocence of the
accused is further strengthened by acquittal. The
golden thread which runs through the web of
administration of justice in criminal cases is that
if two views are possible on the evidence
adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the
view which is favourable to the accused should
be adopted. The paramount consideration of the
court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than
from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is
cast upon the appellate court to re-appreciate
the evidence in a case where the accused has
been acquitted, for the purpose of ascertaining
as to whether any of the accused committed any
offence or not."

19. The Apex Court recently in Shailendra
Rajdev Pasvan v. State of Gujarat, (2020) 14
SC 750, has held that the appellate court is
reversing the trial court's order of acquittal, it
should give proper weight and consideration to
the presumption of innocence in favour of
accused, and to the principle that such a
presumption sands reinforced, reaffirmed and
strengthened by the trial court and in Samsul
Haque v. State of Assam, (2019) 18 SCC 161
held that judgment of acquittal, where two views
are possible, should not be set aside, even if
view formed by appellate court may be a more
probable one, interference with acquittal can
only be justified when it is based on a perverse
view.

20. The learned Judge while considering
the factual data has considered that the medical
evidence of the prosecutrix need not prove that
she was subjected to recent sexual intercourse,
the
vaginal
smear
did
not
show
any
spermatozoa. Dr. Ravindra Kumar Gupta has
categorically mentioned that it cannot be opined
that there was sexual intercourse with the
prosecutrix and that there was raped committed.
The FIR was belated and there was internal
injury on the part of the prosecutrix, there were
contradictions which were not minor in the
evidence of all the witnesses. The learned judge
has given judgment which cannot be said to be
in any way perverse. The learned Judge while
deciding the matter has relied on the decision of
the Apex Court in the case of Mahadeo S/o
11 All. Amit Gupta Vs. Gulab Chandra Kanodia
287
Kerka Maske v. State of Maharashtra and
another, (2013) 14 SCC 637. She had moved
from one place to another with the accused at
least 17 days but she has not raised any alarm
during that period. With all these observations, it
cannot be said that the findings of facts are
perverse.

21. In view of the above judgments and
facts as discussed above, it would not permit us
to take a different view that taken by the learned
Judge who has acquitted the accused, the
parameters are considered by us. The evidence
on record also will not permit us to take a
different view. Thus, the above-mentioned
decisions will not permit this Court to take a
different view. In this case it is not proved
beyond
doubt
that
the
original
accused
Respondents, herein, indulged into adulteration.
Hence, the present appeal deserves to be
dismissed.

22. While going through the record and the
impugned judgment, the principle enunciated by
the Apex Court for entertaining appeal against
the acquittal, which are reproduced herein
above, will not permit this Court to grant leave
to appeal.

23. Leave Refused.

24. In the result, this appeal fails and is
DISMISSED. The judgment and order of the
trial
Court,
Dated
:
13.09.2019,
stands
CONFIRMED. Bail bonds of the accused, if
any, on bail, stands discharged. Lower Court
Record be sent back to the concerned trial Court,
forthwith.
----------
(2021)12ILR A287
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.11.2021

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

S.C.C. Revision No. 115 of 2021

Amit Gupta ...Revisionist
Versus
Gulab Chandra Kanodia ...Respondent

Counsel for the Revisionist:
Sri Rohan Gupta

Counsel for the Respondent:
Sri Saurabh Srivastava

(A) Civil Law - Provincial Small Cause Courts
Act, 1887 - Section 25 - Revision of decrees
and orders of courts of small causes , Code of
Civil Procedure ,1908 - Order VI, Rule 17 -
Amendment of pleadings , Proviso to Order VI,
Rule 17 - no application for amendment shall
be allowed after the trial has commenced,
unless the court comes to conclusion that
inspite of due diligence, the parties could not
have raised the matter before commencement
of trial , Order VII, Rule 11 -Rejection of plaint
, Order VIII, Rule 5 - Specific denial - once the
trial has commenced the proviso to Order VI,
Rule 17 would be applicable. (Para - 15)

Plaintiff-respondent filed a suit for arrears of rent and
ejectment - default committed by defendant in
payment of rent - Defendant-revisionist contested suit
by filing written statement - in para 3 of written
statement averment made in para 2 of plaint was not
denied - stated that it was upon plaintiff to prove the
execution of the agreement - application under Order
VII, Rule 11 C.P.C. filed by defendant-revisionist -
rejected - objection filed by plaintiff-respondent -
specifically stating that after affirming of issues oral
testimony of PW-1 was recorded and was crossexamined by defendant-revisionist - application filed
under Order VI, Rule 17 after 11 years - to delay the
matter - barred by proviso to Order VI, Rule 17 as the
trial had already commenced - court below rejected
the amendment application - Hence, the present
revision.(Para - 3,4)

HELD:- If the rent was not admitted to defendant
and by mistake in the pleading it was not denied, he
had the opportunity to cross-examine the plaintiff
witnesses in regard to quantum of rent and
maintenance charges, which he failed to do so. No