# State of U.P v. Sri Sunil & Ors

- **Citation:** (2022) 3 ILRA 435
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-07
- **Case number:** Government Appeal Defective No. 1 of 2020
- **Bench:** Vivek Kumar Birla, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-sri-sunil-ors-48202
- **Pages:** 4

## Headnote

evidence as only a skeleton was found and it
was not known whether it was a male or female
and even D.N.A. was not conducted. Therefore,
rejected the application as well as the appeal.
(Para 12)
Appeal Rejected. (E-10)

List of Cases cited:

## Text

3 All. State of U.P. Vs. Sri Sunil & Ors.
435

(4)
There
is
no
material
contradiction between the eye-witness
accounts of PW-3 and PW-4 that support
each other;

(5)
There
is
no
material
discrepancy between the ocular testimony
and the medico-legal evidence;

(6) The slight difference between
the ocular version of one witness and the
medico-legal report is not so material, as to
place the prosecution under a shadow of
reasonable
doubt;
wholesomely
the
evidence of PW-3 and PW-4, the two eyewitnesses, is free from blemish and
dependable;

(7) The mere failure of the
prosecution in producing reports from the
Forensic Science Laboratory relating to the
weapon of offence and the blood-stained
earth and clothes would not derogate from
the veracity of the prosecution, established
by a dependable eye-witness account.

88. The facts found established,
including the presence of witnesses, their
broad and robust support to the basic fabric
of the prosecution case about the date, time
and place of occurrence, the genesis of the
dispute and the identity of the assailants,
including the specific role played by the
two, that is to say, the two appellants, the
absence of a plausible motive for the two
eye-witnesses to falsely implicate the
appellants, who are relatives of the
appellants as well as the deceased and very
natural witnesses, in our opinion, establish
the prosecution case beyond reasonable
doubt. We think that the prosecution have
proved it.

89. In the result, these appeals fail and
are dismissed. Appellant, Akhilesh, who is
on bail, shall surrender to his bail bonds to
serve out the sentence awarded to him. The
other appellant, Pradeep is in jail. Let a
copy of this order be communicated to him
through the Superintendent of the Jail,
where he is serving.

90. Let a copy of this order be
certified to the Trial Court and the lower
court records sent down at once.
----------
(2022)03ILR A435
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.03.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Government Appeal Defective No. 1 of 2020

State of U.P. ...Appellant
Versus
Sri Sunil & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:

A. Practice & Procedure - The Court
observed that the delay has been caused in
filing the appeal which is apparently caused due
to red tapism in the office of the District
Magistrate and instant case is a case of no
evidence as only a skeleton was found and it
was not known whether it was a male or female
and even D.N.A. was not conducted. Therefore,
rejected the application as well as the appeal.
(Para 12)
Appeal Rejected. (E-10)

List of Cases cited:

1. Basawaraj Vs Land Acquisition Officer (2013)
14 SCC 81
436 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Postmaster General Vs Living Media India Ltd.
(2012) 3 SCC 563

3. State of M.P. Vs Chaitram Maywade (2020) 10
SCC 654

4. State of U.P. Vs Chief Controlling Revenue
Authorities at Allahabad & anr. 2021 (8) ADJ 486
(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Subhash Vidyarthi, J.)

1. Heard learned A.G.A. on the delay
condonation application.

2. The limitation for filing the appeal
was up to 25-04-2018 and on 08-01-2020
the Stamp Reporter has reported a delay of
623 days with one defect. The defect was
removed and appeal was presented on 0901-2020. Therefore, there was delay of
623+1 = 624 days in presenting the appeal.

3. By drawing attention to the
contents of the affidavit filed in suport of
this application it is submitted by learned
A.G.A. that the delay is purely procedural
in nature and is liable to be condoned.

4. In the affidavit filed in support of
the application for condonation of delay it
has been stated that an application for
obtaining a certified copy of the judgment
dated 25-11-2017 was filed on 18-12-2017
and a certified copy of the judgment was
received on 16-02-2018. Thereafter, on 1203-2018 a proposal was sent by the District
Government
Counsel
to
the
District
Magistrate for filing the Government
Appeal against the impugned judgment and
after considering the material available
before the District Magistrate, he sent the
proposal for filing the Government Appeal
on
17-03-2018.
On
16-12-2018,
the
Government passed the G.O. for filing the
appeal. It is further stated in the affidavit
that since the limitation for filing of the
appeal had also expired, a communication
was sent to the District Magistrate on 0301-2019 and reminders were sent on 21-062019 and 22.10.2019 for sending an officer
not below the rank of a Gazetted Officer, so
that an affidavit in support of the delay
condonation application may be prepared
and filed along with the appeal without any
further delay and thereafter vide letter
dated 18.11.2019 the District Magistrate
has deputed an officer to contact the office
of the Government Advocate for filing of
the affidavit along with application for
condonation of delay.

5. Before proceeding further it would
be appropritae to take note of the law laid
down by the Supreme Court on this aspect.

6. In Basawaraj v. Land Acquisition
Officer, (2013) 14 SCC 81, the Hon'ble
Supreme
Court
summerised
the
law
regarding condonation of delay in the
following words: -

"15. The law on the issue can be
summarised to the effect that where a case
has been presented in the court beyond
limitation, the applicant has to explain the
court as to what was the "sufficient cause"
which means an adequate and enough
reason which prevented him to approach
the court within limitation. In case a party
is found to be negligent, or for want of
bona fide on his part in the facts and
circumstances of the case, or found to have
not acted diligently or remained inactive,
there cannot be a justified ground to
condone the delay."

7. Again, in Postmaster General v.
Living Media India Ltd., (2012) 3 SCC
563, the Hon'ble Supreme Court held that: -
3 All. State of U.P. Vs. Sri Sunil & Ors.
437

"29. In our view, it is the right
time to inform all the government bodies,
their agencies and instrumentalities that
unless they have reasonable and acceptable
explanation for the delay and there was
bona fide effort, there is no need to accept
the usual explanation that the file was kept
pending for several months/years due to
considerable degree of procedural red tape
in
the
process.
The
government
departments are under a special obligation
to ensure that they perform their duties
with
diligence
and
commitment.
Condonation of delay is an exception and
should not be used as an anticipated benefit
for the government departments. The law
shelters everyone under the same light and
should not be swirled for the benefit of a
few."

8 . Same view was reiterated by
Hon'ble Supreme Court in recent case of
State of M.P. Vs. Chaitram Maywade
(2020) 10 SCC 654 while condoning delay
of 588 days and the Delay Condonation
Application was rejected. In para 4 and 5 it
was observed as under:-

"4. We have also epxressed our
concern that these kinds of the cases are
only "certificate cases"
to obtain a
certificate of dismissal from the Supreme
Court to put a quietus to the issue. The
object is to save the skin of officers who
may be in default. We have also recorded
that irony of the situation where no action
is taken against the officers who sit on
these files and do nothing.

5. Looking to the period of delay
and the casual manner in which the
application has been worded, the wastage
of judicial time involved, we impose costs
on the petitioner State of Rs.35,000/- to be
deposited
with
the
Mediation
and
Conciliation
Project
Committee.
The
amount be deposited within four weeks.
The amount be recovered from the
officer(s) responsible for the delay in filing
and sitting on the files and certificate of
recovery of the said amount be also filed in
this court within the said period of time.
We have put to Deputy Advocate General
to caution that for any successive matters of
this kind the costs will keep going on."

9. In State of U.P. Vs. Chief
Controlling
Revenue
Authorities
at
Allahabad and another 2021(8) ADJ 486,
one of us has considered the entire law
where plea of proecdural delay has been
taken to condone the laches/delay.

10. In the light of the aforesaid law
we proceed to consider this application.

11. We find that admittedly the
certified copy was received on 16-02-2018
and it took about two years to process and
ultimately the appeal was filed on 08-012020. There is absolutely no explanation
for the period between 03-01-2019, on
which date a communication was sent to
the District Magistrate to appoint an
Officer for preparing the affidavit in
support of the application for condonation
of delay and 18-11-2019, the date on which
the District Magistrate deputed an Officer
for the said purpose. The delay has
apparently been caused due to red tapism in
the office of the District Magistrate and
keeping in view the law declared by the
Supreme Court in the above noted cases, it
cannot be accepted as a sufficient cause for
the delay.

12. In view of the fact that
proseuction was lodged under Sections
498-A, 304-B, 201 I.P.C. and 3/4 of
Dowry Prohibition Act, we thought it
438 INDIAN LAW REPORTS ALLAHABAD SERIES
proper to have a glance over the impugned
judgment as allegations, if proved, would
be considered to be against society. In
cross it was admitted by PW-1 and 2 that
death had taken place after seven years of
marriage. It is a case where only a
skelteon was found and it was not known
whether it was of a male or of a female
and even D.N.A. was not conducted to
ascertain whether it was of the deceased
Kaushlaya. It is virutally a case of no
evidence.

13. Keeping in view the aforesaid
facts and the legal position, we do not find
any good ground to condone such huge
delay.
In
these
circumstances,
the
application for condonation of delay in
filing the appeal is liable to be rejected.

14
.
The
delay
condonation
application is accordingly rejected.

Order on Application Seeking Leave
to File Appeal

Since
the
application
seeking
condonation of delay to file leave to
appeal
is dismissed,
the
application
seeking leave to file appeal is accordingly
rejected.

Order on the Appeal
Since the application seeking leave to file
an appeal is rejected, the appeal also
stands dismissed.
----------
(2022)03ILR A438
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.02.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Government Appeal No. 1 of 2021

State of U.P. ...Appellant
Versus
Shivchand Yadav & Anr. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:

A. Criminal Law - The prosecution has failed
to prove the guilt of the accused person by
leading sufficient evidence to form a chain to
complete that there is no escape from the
conclusion that within all human probability the
crime was committed by the accused person.
(para 24)
Appeal Rejected. (E-10)

List of Cases cited:

1. Babu Vs St.of Kerala (2010) 9 SCC 189

2. Surrendra Kumar Vs St.of Punj. (1999) SCC
(Crl.) 33

3. Sampath kumar Vs. Inspector of Police
(2012) 4 SCC 124

4. Anwar Ali Vs St. of H.P. (2020) 10 SCC 166
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Ms. Nand Prabha Shukla,
learned AGA for the appellant on the
application under Section 378(3) Cr.P.C.
seeking leave to file appeal against the
judgment and order dated 02.09.2020
passed by the learned Sessions Judge,
Bhadohi at Gyanpur in Session Trial No.
120 of 2014 (State vs. Shivchand Yadav
and another) and Session Trial No.121 of
2014 (State vs. Shivchand Yadav).

2. Facts of the case, briefly stated, are
that on 03.05.2014 a first information