# State of U.P v. Subedar & Ors

- **Citation:** (2021) 11 ILRA 1278
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-27
- **Case number:** Government Appeal No. 3804 of 2001
- **Bench:** Dr. Kaushal Jayendra Thaker, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-subedar-ors-46542
- **Pages:** 8

## Headnote

Criminal Procedure Code, 1973 - Section 378
- Appeal against acquittal - Powers of
appellate Court - 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 - in
acquittal appeals, 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. (12, 17)

F.I.R u/s 364 I.P.C. - trial-court acquitted the
accused-respondents - main accused who is alleged
to have committed the rape, passed away - no
injury on prosecutrix private parts - St.ment given
by prosecutrix under Section 164 Cr.P.C. was also
full of flaws - Contradictions in the St.ment of the
prosecutrix are such that it has led to infirmity -
admitted position of fact that the prosecutrix had
old enmity therefore, the accused were roped in
the aforesaid crime - independent witness opined
against the St.ment of the prosecutrix - High Court
concurred with the learned Sessions Judge (Para
22, 23, 25)

Dismissed. (E-5)

List of Cases cited:

## Text

1278 INDIAN LAW REPORTS ALLAHABAD SERIES

23. In the case in hand, the prosecutrix was
above 18 years and the court-marriage of the
prosecutrix was performed with the consent of
the prosecutrix, therefore, it cannot be said that
the accused committed rape upon the prosecutrix
without her consent. The prosecutrix has
nowhere stated that the accused committed rape
upon her prior to the court-marriage. Hence, the
remaining other ingredients of rape are also not
attracted in the present case. PW3, namely, the
prosecutrix has admitted in her deposition that
her court-marriage was performed at Delhi and
she lived with accused Avaneesh at Delhi for
eight months as husband and wife and she used
to put Sindoor at Delhi during that period.
Dr.Sunita Sharma (PW6), who has medically
examined the prosecutrix, did not find any injury
on the person of the prosecutrix at the time of
medical examination. Hence, the charge of rape
is also not proved in the facts and circumstances
of the present case.

24. Learned trial-court rightly appreciated
the evidence on record. The evidence produced
by prosecution does not inspire confidence at all
as already held by learned trial Judge.

25. In view of above, we are of the
considered opinion that no two views are
possible and we cannot take different view from
that taken by the learned trial-court. We also do
not find any infirmity in the impugned judgment
and order, therefore, we have no other option,
but to concur with the findings recorded by the
learned trial Judge.

26. The appeal sans merit and is
dismissed, accordingly.

27. The record and proceedings be sent
back to the court-below.
----------
(2021)12ILR A1278
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.11.2021
BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE VIKAS BUDHWAR, J.

Government Appeal No. 3804 of 2001

State of U.P. ...Appellant
Versus
Subedar & Ors. ...Respondents

Counsel for the Appellant:
Sri R.P. Dubey,A.G.A.

Counsel for the Respondents:
Sri Punit Kumar Gupta

Criminal Procedure Code, 1973 - Section 378
- Appeal against acquittal - Powers of
appellate Court - 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 - in
acquittal appeals, 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. (12, 17)

F.I.R u/s 364 I.P.C. - trial-court acquitted the
accused-respondents - main accused who is alleged
to have committed the rape, passed away - no
injury on prosecutrix private parts - St.ment given
by prosecutrix under Section 164 Cr.P.C. was also
full of flaws - Contradictions in the St.ment of the
prosecutrix are such that it has led to infirmity -
admitted position of fact that the prosecutrix had
old enmity therefore, the accused were roped in
the aforesaid crime - independent witness opined
against the St.ment of the prosecutrix - High Court
concurred with the learned Sessions Judge (Para
22, 23, 25)

Dismissed. (E-5)

List of Cases cited:

1. M.S. Narayana Menon @ Mani Vs St. of Kerala &
anr., (2006) 6 S.C.C. 39
11 All. State of U.P. Vs. Subedar & Ors.
1279
2. Chandrappa Vs St. of Karnataka, reported in (2007)
4 S.C.C. 415

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

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

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

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

7. Mookkiah & anr. Vs St. Representatives by the
Inspector of Police, Tamil Nadu AIR 2013 SC 321

8. St. of Karnataka Vs Hemareddy, AIR 1981, SC 1417

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

10. St. of Punjab 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
161

(Delivered by Hon'ble Hon'bleVikas Budhwar, J.)

1. This appeal under Section 378 (3) of
Criminal Procedure Code (in short 'Cr.P.C.'), at
the behest of the State, has been preferred
against the judgment and order dated 21.8.2001,
passed by learned IIIrd Additional Sessions
Judge, Banda, in Criminal Session Trial No.520
of 1995 arising out of Case Crime No.135 of
1992 under Sections 364/34, 323/34, 336/34 and
376 of Indian Penal Code (in short 'IPC'), Police
Kotwali Dehat, District-Banda, whereby the
learned
trial-court
acquitted
the
accusedrespondents.

2. The brief facts of this case are that
prosecutrix W/o Sadla Yadav R/o village
Chhehraon, under precincts of P.S. Kotwali
Dehat, district Banda was sleeping in her
house on 30.7.92 in the night. All the accused
persons came to her house at about 11 P.M.
Accused Subedar Singh jumped into the house
of prosecurtrix woke up, the accused entered
in her room in the mean time, the house was
locked from outside. The accused Subedar
Singh caught hold of prosecutrix and dragged
her in the courtyard. He was armed with gun
(country made). Prosecutrix started crying and
became much frightened. The accused asked
her to hand over the keys. She was thrown
away outside the house when she refused to
handover the key. Accused Jageshwar, Munna
and Rajju were present outside the house.
These persons tied up prosecutrix and accused
Subedar Singh also came out of the house. The
accused persons had ligated the rope around
the neck of prosecutrix and dragged her upto
the bank of river Jamuna. Thereafter accused
Subedar Singh, Munna Singh and Rajju
committed rape upon her at the bank of
Jamuna. Accused Jageshwar had assisted the
accused persons at the house of prosecutrix
but had not come to the bank of Jamuna while
the rape was committed by the aforesaid three
accused. All the accused were under the
influence of liquor and committed rape one by
one. Thereafter accused Subedar Singh hit
prosecutrix at the point of left eye with butt of
the gun. Thereafter she was stripped, by
stripping her petticoat and sari. The petticoat
was torn away and thrown. The sari was torn
into pieces and her hands and legs were tied
up with pieces of Sari and she was put in a
boat. The boat was rowed in the middle of the
river by the accused persons and the tied body
of prosecutrix was thrown into the river. She
was drowned and she started suffocating and
thereafter she succeeded in releasing her hands
and legs from the tying position and was
pushed to the bank of river by heavy flow of
water at the distance of 1 km. from the place
she was thrown. Her left eye was not working
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
due to injury. She remained sit at the bank of
river the whole night and a person came there
at about 4A.M. and made inquiry from her
when prosecutrix narrated her story, the
gentlemen provided her a lungi which she put
on her body. She was brought to Kotwali
Dehat
on
31.7.92
and
was
medically
examined. It is noteworthy that the matter of
her kidnapping was reported by the Chaukidar
of the village on 31.7.1992 at about 2.30 P.M.
on the basis of which an unnamed F.I.R. was
lodged U/s 364 I.P.C. and the police has
already came into action after the registration
of the F.I.R. prosecutrix was brought to
District Hospital, Banda where she was
medically examined.

3. On the basis of this report, Case Crime
bearing No.135 of 1992 was registered against
all the accused-respondents under Sections
under Sections 364/34, 323/34, 336/34 and 376
of Indian Penal Code (in short 'IPC'), Police
Kotwali Dehat, District-Banda,

4. Investigation started by SI-M.P. Pal,
who recorded statement of witnesses under
Section 161 Cr.P.C., visited the spot, prepared
site-plan and after completing the investigation,
submitted
charge-sheet
against
all
the
respondents. The case being exclusively triable
by court of session was committed for trial to the
court of session by competent Magistrate.

5. Accused Raju the main culprit died
during the trial. Therefore, proceedings against
him were abated. Learned trial-court framed
charges against the accused Dharmendra and
Subedar Singh, Munna Singh and Jagewshwar
Singh under Sections 364/34,323/34, 376 and
336/34 IPC. Accused denied the charges and
claimed to be tried.

6. To bring home the charges, the
prosecution
produced
following
witnesses,
namely:
1.
Prosecutrix
PW1
2.
Shiv Narain
PW2
3.
Maiyadeen
PW3
4.
Dr. P.M. Kalani PW4
5.
S.I. M.P. Pal
(IO)
PW5

7. In support of the ocular version of the
witnesses, following documents were produced
and contents were proved by leading evidence:

1.
Statement u/S
164 Cr.P.C
Ex.ka1
2.
F.I.R.
Ex.ka2
3.
Injury Report Ex.ka4
4.
Injury Report Ex.ka5
5.
Pathology
Report
Ex.ka6
6.
Site-plan
Ex.ka7
7.
Recovery
memo
Ex.ka8

8. We have heard Shri Ashwani Prakash
Tripathi, learned AGA for the State-appellant.

9. Before we embark on testimony and the
judgment of the Court below, the contours for
interfering in Criminal Appeals where accused
has been held to be non guilty would require to
be discussed.

10. 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 and another, (2006) 6 S.C.C.
39, the Apex Court has narrated the powers of
11 All. State of U.P. Vs. Subedar & Ors.
1281
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."

11. 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."

12. 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.

13. Even in the case of State of Goa vs.
Sanjay Thakran and another, 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:

"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
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

14. Similar principle has been laid down
by the Apex Court in cases of State of Uttar
Pradesh vs. Ram Veer Singh and others, 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.

15. In the case of Luna Ram vs. Bhupat
Singh and others, 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."

16. Even in a recent decision of the Apex
Court in the case of Mookkiah and another vs.
State Representatives 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
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]"
11 All. State of U.P. Vs. Subedar & Ors.
1283

17. 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."

18. In a recent decision, the Hon'ble Apex
Court in Shivasharanappa and others 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."

19. 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."

20.

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:

"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
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

21. 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.

22. On the contours of the decisions referred
herein above, the judgment of the trial court will
have to be looked into. It is an admitted position of
fact that the prosecutrix had old enmity and,
therefore, it was alleged that the accused were
roped in the aforesaid crime. The independent
witness Devraj son of Jageshwar has opined
against the statement of the prosecutrix.

23. The main accused Raju, who is alleged to
have committed the rape, has passed away. The
statement given by prosecutrix under Section 164
Cr.P.C. was also full of flaws. Contradictions in
the statement of the prosecutrix are such that it has
led to infirmity. Sattu who happened to be the
husband of the prosecutrix has been examined in
defence.

24. Findings recorded by the learned
Sessions Judge in exonerating the accused, who
had no role to play in the aforesaid crime, are
reproduced herein below in verbatim :

"The defence witness D.W.1 Sadlu who
happened to be the husband of the proscutrix
11 All. State of U.P. Vs. Anil Kumar & Anr.
1285
has been examined in defence. He has stated
that his wife prosecutrix disappeared from the
house on 30.7.92 and did not turn back and
came back the next day. When he made an
inquiry she had told that some outsiders had
dragged her but has not revealed the complicity
of the accused persons. He has further stated
that his wife is a lady of dubious character and
she had been made a tool of certain influential
persons of the village for falsely implicating the
accused persons. He has further stated that she
had illicit relations with one Mangal Singh of
Village Pathri and, therefore, she has been
acting at their behest. Though I do not find the
defence story as gospel truth but in such
confusing circumstances as unfolded against the
accused persons might have been falsely
implicated due to local rivalry.

25. It is evident from the record that there
was oral rivalry and enmity and the prosecution
story was not plausible story even as per the
medical evidence, though there were multiple
injuries found on her body, they were simple in
nature. There was no injury on her private parts
and therefore also we cannot differ with the
view taken by the learned Judge.

26. Hence, in view of the matter & on the
contours of the judgments of the Apex Court, we
have no other option but to concur with the
learned Sessions Judge.

27. The appeal lacks merit and is
dismissed, accordingly.

28. The record and proceedings be sent
back to the court-below.
----------
(2021)12ILR A1285
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.11.2021

BEFORE

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

Government Appeal No. 2599 of 1987

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

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Sri Arvind Kumar

Criminal Procedure Code, 1908 - Section 378 -
Appeal against acquittal - Powers of appellate
Court - 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 -
in acquittal appeals, 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. (11, 16)

F.I.R. under section 376 IPC against accused -
Prosecutrix was medically examined - Doctor stated
in her statement before court that at the time of
internal examination of prosecutrix, she did not find
any mark of injury on her private-parts - Hymen was
old torn and healed - there was no bleeding at all -
Vaginal-smear was taken, no spermatozoa was found
- medical evidence does not support the version of
prosecutrix at all - Held - evidence of prosecutrix
(PW1) does not inspire confidence, mainly in the light
of medical evidence - trial court rightly appreciated
the evidence on record (Para 22)

Dismissed. (E-5)

List of cases cited:

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

2. Chandrappa Vs St. of Kar., reported in (2007) 4
S.C.C. 415