# State of U.P v. Sachin

- **Citation:** (2021) 11 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-23
- **Case number:** Government Appeal No. 149 of 2020
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-sachin-46467
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal Procedure,
1973-Section 378(3) & Indian Penal Code,
1860-Sections 376, 452-challenge to-acquittalstatement of prosecutrix is self contradictoryPW4 doctor found no injury on the private part
of the prosecutrix-as per pathological report,
no spermatozoa was found-hair and piece of
nail
of
prosecutrix
was
sent
for
DNA
examination, but no such DNA-test-report was
produced-accused was handicapped by one leg,
while prosecution version states that on
making hue and cry by prosecutrix, accused
fled away by jumping the wall of her housefindings recorded by court below is absolutely
just
and
proper-no
illegality
has
been
committed by court-below.(Para 1 to 20)

B. It is a settled legal position that in acquittal
appeal, 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 14)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

174 INDIAN LAW REPORTS ALLAHABAD SERIES

"Certainly, it is a primary principle
that the accused must be and not merely may be
guilty before a court can convict and the mental
distance between ''may be' and ''must be' is long
and divides vague conjectures from sure
conclusions."

(2) the facts so established should be
consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty,

(3) the circumstances should be of a
conclusive nature and tendency,

(4) they should exclude every possible
hypothesis except the one to be proved, and

(5) there must be a chain of evidence
so complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that in
all human probability the act must have been
done by the accused."

13.

Considering
the
inconsistency,
improvement, contradiction and also the fact that
essential ingredients to constitute the offence
charged against the accused is not found to be
proved beyond reasonable doubt, we are of the
view that the view taken by the trial court is a
possible view.

14. In view thereof, application (Leave to
Appeal) is rejected. Consequently, government
appeal is also dismissed.
----------
(2021)11ILR A174
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.10.2021

BEFORE

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

Government Appeal No. 149 of 2020
State of U.P. ...Appellant
Versus
Sachin ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:

A. Criminal Law - Code of Criminal Procedure,
1973-Section 378(3) & Indian Penal Code,
1860-Sections 376, 452-challenge to-acquittalstatement of prosecutrix is self contradictoryPW4 doctor found no injury on the private part
of the prosecutrix-as per pathological report,
no spermatozoa was found-hair and piece of
nail
of
prosecutrix
was
sent
for
DNA
examination, but no such DNA-test-report was
produced-accused was handicapped by one leg,
while prosecution version states that on
making hue and cry by prosecutrix, accused
fled away by jumping the wall of her housefindings recorded by court below is absolutely
just
and
proper-no
illegality
has
been
committed by court-below.(Para 1 to 20)

B. It is a settled legal position that in acquittal
appeal, 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 14)

The appeal is dismissed. (E-6)

List of Cases cited:

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

2. Chandrappa Vs. St. of Kan. (2007) 4 SCC 415

3. St. of Goa Vs. Sanjay Thakran & anr. (2007 ) 3 SCC
75

4. St. of U.P. Vs. Ram Veer Singh & ors. (2007) AIR
SCW 5553

5. Girja Prasad (Dead) By LRs Vs St. of MP (2007) AIR
SCW 5589
11 All. State of U.P. Vs. Sachin
175
6. Luna Ram Vs. Bhupat Singh & ors.(2009) SCC 749

7. Mookkiah & anr. Vs. St. rep. by the Inspector of
Police, T.N. (2013) AIR SC 321

8. St. of Karnataka Vs. Hemareddy (1981) AIR SC
1417

9. The St. of Guj. Vs B.L. Dave (2021) 2 SCC 735
10. Umedbhai Jadavbhai Vs. St. of Guj.(1978) 1 SCC
228

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal under Section 378 (3) Cr.P.C.
has been preferred by the State against the
judgment and order of acquittal dated 18.2.2020,
passed by learned Additional Sessions Judge/Fast
Track Court-II, Gautambudh Nagar, in S.T. No.69
of 2016 arising out of Case Crime No.199 of 2015
under Sections 452, 376 IPC, Police StationJarcha, District-Gautambudh Nagar, whereby the
respondent-original accused has been acquitted of
all the charges levelled against him.

2. The brief facts of the prosecution case are
that a first information report was lodged at Police
Station-Jarcha by Sube Singh, husband of the
prosecutrix, stating that on 14.8.2015, he had gone
to school where he was teacher. At about 11:30
am, his neighbor Sachin (accused/respondent)
entered his house where his wife was alone. On the
pointing out of knife, Sachin threatened his wife
and by molesting, tried to rape her and on making
hue and cry by his wife, Sachin fled away by
giving life threat to her.

3. A case crime bearing No.199 of 2015 was
registered at the police station under Sections 452,
376 IPC against accused Sachin. Investigating
Officer recorded statement of prosecutrix and other
witnesses under Section 161 Cr.P.C. and prepared
site-plan. The statement of prosecutrix was also
recorded under Section 164 Cr.P.C. before
competent Magistrate and she was also medically
examined. On completion of investigation, the
Investigating Officer submitted charge-sheet under
Sections 452, 376 IPC.

4. The case was triable exclusively by the
court of sessions, therefore, it was committed to
the court of sessions for trial. The trial-court
framed charges against the accused under Sections
452, 376 IPC. The accused pleaded not guilty and
claimed to be tried. After recording the evidence,
the court-below acquitted the respondent of all the
charges vide impugned judgment and order dated
18.2.2020. Hence, this appeal.

5. Heard Ms.Alpana Singh, learned AGA
appearing on behalf of State of UP and perused
the record.

6. Learned AGA submitted that the trialcourt has committed grave error while acquitting
the
respondent/accused
since
there
was
sufficient evidence on record to connect the
accused with the crime; learned trial-court has
failed to appreciate the evidence in right
perspective. She has also submitted that
evidence on record is enough to lead the
conviction of the respondent because the
prosecutrix has supported the prosecution
version in her statement under Section 161
Cr.P.C. as well as under Section 164 Cr.P.C. and
even she has supported the prosecution case
before learned trial-court, but the trial-court
failed to give correct appreciation of evidence
and wrongly acquitted the accused-respondent.

7. At the outset, it is required to be noted
that the principles, which would govern and
regulate the hearing of appeal by this Court,
against an order of acquittal passed by the trialcourt, have been very succinctly explained by
the Apex Court in a catena of decisions. In the
case of M.S.Narayana Menon @ Mani vs. State
of Kerala & Another, [(2006) 6 SCC 39], the
Apex Court has narrated the powers of High
Court in appeal against the order of acquittal. In
176 INDIAN LAW REPORTS ALLAHABAD SERIES
paragraph-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
views are possible, the appellate court should
not interfere with the finding of acquittal
recorded by the court-below."

8. Further, in the case of Chandrappa vs.
State of Kanataka [(2007) 4 SCC 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 and 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",
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 curt to interfere with
acquittal than to curtain 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."

9. Thus, it is a settled principle that while
exercising appellate power, even 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. Even in the case of State of Goa vs.
Sanjay Thakran & Anr. [(2007) 3 SCC 75], the
Apex Court has reiterated the powers of the
High Court in such cases. In paragraph-16 of the
said decision, the Court has observed as under:

"16. From the aforesaid decisions, it is
apparent that while exercising the powers in
appeal against the order of acquittal the Court
of appeal would not ordinarily interfere with the
order of acquittal unless the approach of the
lower court is vitiated by some manifest
illegality and the conclusion arrived at would
not be arrived at by any reasonable person and,
therefore, the decision is to be characterized as
perverse. Merely because two views are
possible, the court of appeal would not take the
view which would upset the judgment delivered
by the court-below. However, the appellate
court has a power to review the evidence it fit 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 case
11 All. State of U.P. Vs. Sachin
177
upon the appellate court, in such circumstances,
to reappreciate the evidence to arrive to a just
decision on the basis of material placed on
record to find out whether any of the accused is
connected with the commission of the crime he is
charged with."

11. Similar principle has been laid down
by the Apex Court in the cases of State of Uttar
Pradesh vs. Ram Veer Singh & others, [2007
AIR SCW 5553] and in Girja Prasad (Dead) by
LRs vs. State of MP [2007 AIR SCW 5589].
Thus, the powers, which this Court may exercise
against an order of acquittal are well settled.

12. In the case of Luna Ram vs. Bhupat
Singh and others [(2009) SCC 749], the Apex
Court in paragraphs-10 & 11 has held as under :

"10. The High Court has noted that the
prosecution version was not clearly believable.
Some of the so called eye-witnesses stated that
the deceased died because his ankle was twisted
by an accused. Others said that he was
strangulated. It was the case of the prosecution
that the injured witnesses were thrown out of the
bus. The doctor who conducted the postmortem
and examined the witnesses had categorically
stated that it was not possible that somebody
would throw a person out of the bus when it was
in running condition.

11. Considering the parameters of
appeal against the judgment of acquittal, we are
not inclined to interfere in this appeal. The view
of the High Court cannot be termed to be
perverse and is a possible view on the evidence."

13. Even in a recent decision of the Apex
Court in the case of Mookkiah and Anr. vs.
State, represented by the Inspector of Police,
Tamil Nadu [AIR 2013 SC 321], the Apex
Court in paragraph-4 has held as under :

"4. It is not in dispute that the trialcourt, 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 re-appreciate the entire evidence, though
while choosing to interfere only the court should
find an absolute assurance of the guilt on the
basis of the evidence on record and not merely
because the High Court could take one more
possible or a different view only. Except the
above, where the matter of the extent and depth
of consideration of the appeal is concerned, no
distinction or differences in approach are
envisaged in dealing with an appeal as such
merely because one was against conviction or
the other against an acquittal [Vide State of
Rajasthan vs. Sohan Lal and others (2004) 5
SCC 573]."

14. It is also a settled legal position that in
acquittal appeal, 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.
Such principle is laid down by the Apex Court in
the case of State of Kanataka vs. Hemareddy
[AIR 1981 SC 1417], wherein it is held as under
:

"... This Court has observed in Girija
Nandini Devi vs. Bigendra Nandini Choudhary
[(1967) 1 SCR 93 : AIR 1967 SC 1124] that it is
178 INDIAN LAW REPORTS ALLAHABAD SERIES
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 trialcourt expression of general agreement with the
reasons given by the court the decision of which
is under appeal, will ordinarily suffice."

15. Thus, in case, the appellate court
agrees with the reasons and the opinion given by
the lower court, then the discussion of evidence
is not necessary.

16. We have gone through the judgment
and order passed by learned trial-court as well as
perused the evidence on record and considered
the submissions made by learned AGA. In this
case, first information report is written and
lodged by Sube Singh, husband of the
prosecutrix, in which it is said that the accused,
on the date of occurrence, entered the house of
prosecutrix and threatened her on the point of
knife. It is further submitted that the accused
molested the complainant's wife and tried to
commit rape with her. First information report
was lodged under Sections 452 and 376/511 IPC
because as per the prosecution case, accused
only tried to commit rape, but later on, the
prosecutrix stated in her statements that accused
succeeded in committing rape. In the light of
circumstances above, the report of medical
examination
becomes
more
relevant
and
important. Medical examination of prosecutrix
was conducted by medical officer. This report
does not support the version of prosecutrix.
Dr.Anshu Gupta, the doctor, who conducted the
medical examination, is examined as PW4. She
has stated in her oral testimony that at the time
of medical examination of the prosecutrix, she
did not find any mark of injury on the privateparts of the prosecutrix. Her hymen was old
torn. It is also stated in her evidence that vaginal
smear was collected for the examination of
spermatozoa, but as per the pathological report,
no spermatozoa was found. As per statement of
the doctor (PW4), hair and piece of nail of
prosecutrix was sent for DNA examination, but
no such DNA test-report is produced by
prosecution on record. Learned AGA also
admitted the fact that DNA test-report was not
filed. It is admitted case that prosecutrix was
married-lady of 30 years at the time of said
occurrence and having two children. It is also
admitted case that the accused was handicapped
by one leg because prosecution story is that on
making hue and cry by prosecutrix, accused fled
away by jumping the wall of her house. Learned
trial-court very elaborately considered and
appreciated the evidence on record.

17. Recently, the Apex Court in The State
of Gujarat vs. B.L. Dave [(2021) 2 SCC 735]
has held that High Court, being first appellate
court, is required to re-appreciate entire evidence
on record and reasonings given by the trial court
have also required to be looked into. The
decision of Umedbhai Jadavbhai vs. State of
Gujarat [(1978) 1 SCC 228] is also considered
by us. In this case, the trial court has acquitted
the accused and on perusal of impugned
judgment and order of acquittal, passed by the
learned trial judge, we find that the decision is
based on totality of the facts and circumstances.
There is no ignoring of settled legal position by
the learned trial judge. The approach of the trial
court in dealing with the evidence was
absolutely legal and cannot be said to have led to
miscarriage of justice. We are of the opinion that
the order passed by learned trial court does not
require any interference.

18. More so, learned AGA was not in a
position to show any evidence to take a contrary
view in the matter that the accused had
committed offence as alleged against him. The
ingredients of said offence were also held not to
be proved on the touchstone of the judgments on
which the learned Judge placed reliance.

19. In such view of the matter, we are of
the considered view that the findings recorded
11 All. State of U.P. Vs. Anil Kumar Jaiswal
179
by the court-below are absolutely just and proper
and while recording the said findings, no
illegality or infirmity has been committed by
court-below. We are also in complete agreement
with the reasoning and the findings arrived at by
the learned trial-court. Therefore, we hold that
the learned trial Judge has not committed any
error, which requires interference by this Court
under Section 378 (3) of the Criminal Procedure
Code.

20. The appeal is dismissed, accordingly.
----------
(2021)11ILR A179
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.10.2021

BEFORE

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

Government Appeal No. 198 of 2020

State of U.P. ...Appellant
Versus
Anil Kumar Jaiswal ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:

A. Criminal Law - Code of Criminal Procedure,
1973-Section 378(3) - Indian Penal Code,
1860-Sections 376, 504, 506-challenge toacquittal-delay
in
FIR-testimony
of
prosecutrix cannot be believed as the door
was open and her children were there,
accused was there for 20 to 25 minutes, but
she
could
not
shouted-as
per
medical
evidence there was no internal injuries and
the spermatozoa which belong to the accused
was not present in the vaginal swab-Learned
session
judge
rightly
adjudged
the
matter.(Para 1 to 22)
B. 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. if two views
are possible, one pointing to the guilt of
accused and the other to his innocence, the
view which is favourable to the accused should
be adopted. (Para 9 to 17)

The appeal is dismissed. (E-6)

List of Cases cited:

1. M. S. Narayana Menon @ Mani Vs. St. of Ker. &
anr. (2006) 6 SCC 39

2. Chandrappa Vs. St. of Kanataka (2007) 4 SSC 415

3. St. of Goa Vs. Sanjay Thakran & anr.. (2007 ) 3
SCC 75

4. St. of U.P. Vs. Ram Veer Singh & ors. (2007) AIR
SCW 5553

5. Girja Prasad (Dead) By LRs Vs. St. of M.P. (2007)
AIR SCW 5589

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

7. Mookkiah & anr. Vs. St. rep. by the inspector of
Police , Tamil Nadu,(2013) AIR SC 321

8. St. of Kan. Vs Hemareddy (1981) AIR SC 1417

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

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

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

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

13. Samsul Haque Vs. St. of Assam (2019) 18 SCC 16

14. Ravindra Mahto Vs. St. of Jharkhand (2006) 54
ACC 543 SC

15. Ravi Kumar Vs. St. of Punj. (2005) 02 ACJ 505