# State of U.P v. Vijay Kumar & Anr

- **Citation:** (2021) 8 ILRA 583
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-27
- **Case number:** Application U/S 378 Cr.P.C. No. 32 of 2021
- **Bench:** Devendra Kumar Upadhyaya, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-vijay-kumar-anr-47277
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973- Section 378(3) - Appeal
against Acquittal- Having considered the
matter in its entirety and in view of the
law laid down by the Hon'ble Supreme
Court in Krishnegowda's case (supra) and
Ramesh's case (supra), we find that the
learned trial court's findings regarding
acquittal
of
accused-Vijay
Kumar,
opposite party No.1 herein is based on
proper
appreciation
and
analysis
of
evidence available on record which does
not
in
any
manner
appear
to
be
improbable or perverse.

It is settled law that an order of acquittal further
reinforces the presumption of innocence in
favour of the accused, therefore the findings of
the trial court can only be interfered by the High
Court where there are strong and compelling
reasons and the judgement of the trial court is
perverse and erroneous. ( Para 22)

Criminal Appeal rejected. (E-2)

Judgements/ Case law relied upon:-

## Text

8 All. State of U.P. Vs. Vijay Kumar & Anr.
583
----------
(2021)08ILR A583
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.07.2021

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Application U/S 378 Cr.P.C. No. 32 of 2021

State of U.P. ...Applicant
Versus
Vijay Kumar & Anr. ...Opposite Parties

Counsel for the Applicant:
G.A.
Counsel for the Opposite Parties:

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 378(3) - Appeal
against Acquittal- Having considered the
matter in its entirety and in view of the
law laid down by the Hon'ble Supreme
Court in Krishnegowda's case (supra) and
Ramesh's case (supra), we find that the
learned trial court's findings regarding
acquittal
of
accused-Vijay
Kumar,
opposite party No.1 herein is based on
proper
appreciation
and
analysis
of
evidence available on record which does
not
in
any
manner
appear
to
be
improbable or perverse.

It is settled law that an order of acquittal further
reinforces the presumption of innocence in
favour of the accused, therefore the findings of
the trial court can only be interfered by the High
Court where there are strong and compelling
reasons and the judgement of the trial court is
perverse and erroneous. ( Para 22)

Criminal Appeal rejected. (E-2)

Judgements/ Case law relied upon:-

1. Krishnegowda & ors. Vs St. of Kar. by
Arkalgud Police, (2017) 13 SCC 98
2. Ramesh & ors. Vs St. of Har., (2017) 1 SCC
529

(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. We have heard learned Additional
Government Advocate for the State and gone
through the record available before us.

2. By means of the present application
under Section 378(3) of the Cr.P.C., the State
has sought leave to appeal to assail the
judgment and order dated 23.12.2020 passed
by the learned Additional District & Sessions
Judge/Special Judge POCSO Act, District
Ambedkarnagar, whereby the learned trial
court has acquitted the accused-Vijay Kumar,
who is opposite party No.1 in the instant case,
for the offence under Sections 363, 366,
376(1), 354 of the I.P.C and Sections 3A/4 of
the Protection of Children from Sexual
Offences Act, 2012.

3. The case of the prosecution as
unfolded during trial is that the first
informant-Vinod Kumar Sharma lodged the
written report, Ex. Ka-1, at Police Station
Ibrahimpur, District Ambedkarnagar on
19.11.2013
stating
therein
that
his
niece/victim is aged about 15 years. She is a
student of class-10th. On 17.11.2013 at about
11.00 AM, she was abducted by Mangal,
Vijay, Ram Sewak, Suraj and Vivek, who are
residents of his colony, while the victim was
going to attend her tuition. Thereafter, she
could not be traced till evening, therefore, by
submitting the written report, Ex. Ka-1, the
first informant-Vinod Kumar Sharma prayed
for taking appropriate action against the
guilty persons.

4. On the basis of written report, Ex.
Ka-1, lodged by the first informant-Vinod
Kumar Sharma an F.I.R., Ex. Ka-11, was
584 INDIAN LAW REPORTS ALLAHABAD SERIES
lodged on 19.11.2013 at 10:30 AM at
Police
Station
Imbrahimpur,
District
Ambedkarnagar, under Sections 363, 366
of the I.P.C. against the accused , namely,
Mangal, Vijay, Ram Sewak, Suraj and
Vivek.

5.

During
the
course
of
investigation, the Investigating Officer
inspected the place of occurrence and
prepared the site plans Ex. Ka-5 and Ex.
Ka-8 respectively. He also collected
underwear, salvaar, transfer certificate
and identity card of the victim and
prepared recovery memos thereof as Ex.
Ka-9,
Ex.
Ka-6
and
Ex.
Ka-7
respectively. The victim was medically
examined on 26.11.2013 by Dr. Manisha
Yadav, PW-4 at Primary Heath Centre,
Tanda, District Ambedkarnagar. Details
of medical examination are as follows:-

(A) External Examination:-

(i) The victim was fully normal.

(ii) Height - 145 Cm.

(iii) Weight - 37 Kg.

(iv) No mark of injury on
external parts of body of the victim was
found.

(B) Internal Examination:-

(i) Breasts were developed.

(ii) Hymen was torn with old
healed margin.

6. According to X-ray report, Ex.
Ka-15, prepared by Dr. P.N. Yadav, PW6, the wrist joint, knee joint and iliac
crest were found to be not fused.

7. On the completion of investigation,
the
Investigating
Officer
submitted
chargesheet, Ex. Ka-10, dated 29.01.2014
against accused, namely, Mangal, Vijay
Kumar, Ram Sewak, Suraj Gupta, Vivek
and Aamir Khan. However, it appears that
the case against accused, namely, Mangal,
Suraj, Vivek and Aamir Khan was
separated during the trial on account of the
fact that they were juvenile.

8. After taking cognizance of the case,
charges under Sections 354A, 363, 366,
376(1) of the I.P.C. and Section 4 of the
Protection
of
Children
from
Sexual
Offences Act, 2012 were framed against
accused, namely, Vijay Kumar and Ram
Sewak to which the accused pleaded not
guilty and claimed trial.

9. The case against accused-Ram
Sewak was abated during the trial due to
his death vide order dated 11.11.2020
passed by learned trial court.

10. In order to bring home guilt of
accused beyond reasonable doubt, the
prosecution has examined as many as six
prosecution
witnesses.
Vinod
Kumar
Sharma, PW-1 is the first informant, victim
is the PW-2, Pankaj Sharma, PW-3 is an
eye witness of the occurrence, Dr. Manisha
Yadav, PW-4 is the Medical Officer who
had
medically
examined
the
victim,
Inspector
R.P.
Singh,
PW-5
is
the
Investigating Officer whereas Dr. P.N.
Yadav, PW-6 is the radiologist who had
conducted X-ray of right elbow, right knee
and iliac crest of the victim.

11. After the closure of prosecution
evidence, statements of accused were
recorded under Section 313 of the Cr.P.C.
They denied the charges levelled against
them and stated that they have falsely been
8 All. State of U.P. Vs. Vijay Kumar & Anr.
585
implicated in the case. They also stated that
the prosecution witnesses are deposing
falsely against them.

12. The learned trial court after
hearing learned counsel for the parties and
after
scrutinizing
and
assessing
the
evidence available on record, has recorded
the finding of acquittal as stated earlier.
Hence this application for leave to appeal
by the State.

13. Learned A.G.A. has vehemently
argued that keeping in view the nature of
offence, delay of about two days in lodging
the first information report cannot be
termed to be inordinate and unexplained
delay in lodging the F.I.R. because
sufficient explanation has also been offered
by
the
first
informant-Vinod
Kumar
Sharma, PW-1 for the delay caused in
lodging the first information report.

14. In addition to the aforesaid
submissions, he has also submitted that the
findings of acquittal of accused-Vijay
Kumar, opposite party No.1 herein, are
against the weight of evidence and perverse
because the prosecution has been fully
successful in proving its case against
opposite party No.1-Vijay Kumar beyond
reasonable doubt on the basis of evidence
available on record.

15. The learned trial court while
acquitting the accused-Vijay Kumar has
held that the victim is aged about 16 years.
Learned trial court has held that the first
information report has been lodged after
consultation and after a delay of about two
days which has not been explained by the
prosecution. However, learned trial court
has also recorded the findings to the effect
that the first informant Vinod Kumar
Sharma, PW-1 and Pankaj Sharma, PW-3
though projected to be eye witnesses of the
incident, have not actually seen the
incident. The victim herself has not
attributed any role to the accused-Vijay
Kumar, opposite party No.1 in the incident
of her abduction, outraging her modesty or
for the offence of committing rape on her,
therefore, due to aforesaid reasons, the
learned trial court has recorded findings of
acquittal of accused-Vijay Kumar, opposite
party No.1 herein.

16. We have carefully examined and
scrutinized the testimony of the first
informant, Vinod Kumar Sharma, PW-1,
victim, PW-2 and Pankaj Sharma, PW-3
another eye witness of the incident. The
first informant-Vinod Kumar Sharma, PW1 has testified that he saw accused, namely,
Mangal, Vijay Kumar, Ram Sewak, Suraj
Gupta and Vivek abducting her niece, the
victim and taking her away in a Xylo
motorcar on 17.11.2013. He has also stated
to have chased the accused by taking
motorcycle
from
Satendra
Verma,
however, he returned from Bashkhari after
the said Xylo motorcar disappeared. It is
significant to notice that this witness, who
is uncle of the victim, did not raise any
alarm at the time when he saw her niece
being abducted or being taken away by the
accused. He has also not informed this fact
to any other persons including Satendra
Verma from whom he took motorcycle to
chase the abductors.

17. On the issue of delay in lodging
F.I.R. in such matter, the Hon'ble Supreme
Court in Deepak vs. State of Haryana,
(2015) 4 SCC 762 in paragraph-15 has held
as under:-

"15. The courts cannot overlook
the fact that in sexual offences and, in
particular, the offence of rape and that too
586 INDIAN LAW REPORTS ALLAHABAD SERIES
on a young illiterate girl, the delay in
lodging the FIR can occur due to various
reasons. One of the reasons is the
reluctance of the prosecutrix or her family
members to go to the police station and to
make a complaint about the incident, which
concerns the reputation of the prosecutrix
and the honour of the entire family. In such
cases, after giving very cool thought and
considering all pros and cons arising out
of an unfortunate incident, a complaint of
sexual offence is generally lodged either
by the victim or by any member of her
family. Indeed, this has been the consistent
view of this Court as has been held in State
of Punjab v. Gurmit Singh [(1996) 2 SCC
384 : 1996 SCC (Cri) 316] ."

 (Emphasis supplied by us)

18. The first informant-Vinod Kumar
Sharma in his statement as PW-1 has stated
that he lodged the first information report
on 19.11.2019 after consultation with
others including father of the victim,
therefore, in view of the law laid down by
the Hon'ble Supreme Court in Deepak's
case (supra), the delay in lodging the F.I.R.
appears to have been sufficiently explained
and the same cannot be a ground to
disbelieve the prosecution case.

19. However, the conduct of the first
informant-Vinod Kumar Sharma, PW-1 in
not raising alarm, when he saw her niece
being abducted is quite unnatural. He has
categorically stated that the victim was
abducted on 17.11.2013 by accused, namely,
Mangal, Vijay Kumar, Ram Sewak, Suraj
Gupta and Vivek. Pankaj Sharma, PW-3 has
also stated to have seen the incident and he
has also named the accused-Vijay Kumar,
opposite party No.1 herein. However, in his
cross-examination, he has clearly stated that
the statement of victim to the effect that she,
for the first time, met Vijay Kumar while
going to the police station and not before, is
correct. Admittedly, Pankaj Sharma, PW-3 is
victim's cousin, who is, therefore, a related
witness. The victim, PW-2 in her statement
has not named opposite party No.1-Vijay
Kumar. Even in her statement recorded under
Section 164 Cr.P.C., she has categorically
stated that on 17.11.2013 at about 11:00 AM,
she was abducted by Vivek and Mangal only.
She has also stated that accused Ram Sewak
and opposite party No.1-Vijay Kumar did not
outrage her modesty, therefore, from the
perusal of statement of the victim, PW-2, it is
clear that on 17.11.2013, the victim was
abducted by accused Vivek and Mangal only.
The first informant-Vinod Kumar Sharma,
PW-1 and Pankaj Sharma, PW-3, on the
contrary, have stated to have seen all the
accused including opposite party No.1-Vijay
Kumar on 17.11.2013 when the victim was
abducted. This itself, casts serious doubts on
the presence of the first informant-Vinod
Kumar Sharma, PW-1 and Pankaj Sharma,
PW-3 on the spot. It, thus, leads to irresistible
conclusion that in fact the first informantVinod Kumar Sharma, PW-1 and Pankaj
Sharma, PW-3 had not seen the incident of
abduction
of
victim
on
17.11.2013.
Therefore, the testimony of first informantVinod Kumar Sharma, PW-1 and Pankaj
Sharma, PW-3, to the effect that Vijay
Kumar, opposite party No.1 herein also
participated in the commission of crime on
17.11.2013 does not appear to be truthful.

20. The Hon'ble Supreme Court in
Krishnegowda and others vs. State of
Karnataka by Arkalgud Police, (2017) 13
SCC 98 in paragraphs-32 and 33 has held
as under:-

"32. It is to be noted that all the
eyewitnesses
were
relatives
and
the
prosecution failed to adduce reliable
evidence of independent witnesses for the
8 All. State of U.P. Vs. Vijay Kumar & Anr.
587
incident which took place on a public road
in the broad daylight. Although there is no
absolute rule that the evidence of related
witnesses has to be corroborated by the
evidence of independent witnesses, it would
be trite in law to have independent
witnesses when the evidence of related
eyewitnesses is found to be incredible and
not trustworthy. The minor variations and
contradictions in the evidence of the
eyewitnesses will not tilt the benefit of
doubt in favour of the accused but when the
contradictions in the evidence of the
prosecution witnesses proves to be fatal to
the
prosecution
case
then
those
contradictions go to the root of the matter
and in such cases the accused gets the
benefit of doubt.

33. It is the duty of the Court to
consider the trustworthiness of evidence
on record. As said by Bentham, "witnesses
are the eyes and ears of justice". In the
facts on hand, we feel that the evidence of
these witnesses is filled with discrepancies,
contradictions and improbable versions
which
draws
us
to
the
irresistible
conclusion that the evidence of these
witnesses cannot be a basis to convict the
accused."

(Emphasis supplied by us)

21. The Hon'ble Supreme Court in
Ramesh And Others vs. State of Haryana,
(2017) 1 SCC 529 in paragraphs 24, 25 and
26 has held as under:-

"24. We have duly appreciated
the submissions advanced by the counsel
for the parties on both sides. No doubt, the
High Court was dealing with the appeal
against the judgment of the trial court
which had acquitted the appellants herein.
The scope of interference in an appeal
against acquittal is undoubtedly narrower
than
the
scope
of
appeal
against
conviction. Section 378 of the Code of
Criminal Procedure, 1973 confers upon the
State a right to prefer an appeal to the
High Court against the order of acquittal.
At the same time, sub-section (3) thereof
mandates that such an appeal is not to be
entertained except with the leave of the
High Court. Thus, before an appeal is
entertained on merits, leave of the High
Court is to be obtained which means that
normally judgment of acquittal of the trial
court is attached a definite value which is
not to be ignored by the High Court. In
other words, presumption of innocence in
favour of an accused gets further fortified
or reinforced by an order of acquittal. At
the same time, while exercising its
appellate power, the High Court is
empowered to reappreciate, review and
reconsider
the
evidence
before
it.
However, this exercise is to be undertaken
in order to come to an independent
conclusion
and
unless
there
are
substantial and compelling reasons or
very strong reasons to differ from the
findings of acquittal recorded by the trial
court, the High Court, as an appellate
court in an appeal against the acquittal, is
not supposed to substitute its findings in
case the findings recorded by the trial
court are equally plausible.

25. The scope of interference by
the appellate court in an order of acquittal
is beautifully summed up in Sanwat Singh
v. State of Rajasthan [Sanwat Singh v. State
of Rajasthan, (1961) 3 SCR 120 : AIR 1961
SC 715 : (1961) 1 Cri LJ 766] in the
following words: (AIR pp. 719-20, para 9)

"9. The foregoing discussion
yields the following results: (1) an
appellate court has full power to review the
588 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence upon which the order of acquittal
is founded; (2) the principles laid down in
Sheo Swarup case [Sheo Swarup v. King
Emperor, 1934 SCC OnLine PC 42 :
(1933-34) 61 IA 398] afford a correct
guide for the appellate court's approach to
a case in disposing of such an appeal; and
(3) the different phraseology used in the
judgments of this Court, such as, (i)
"substantial and compelling reasons", (ii)
"good and sufficiently cogent reasons", and
(iii) "strong reasons" are not intended to
curtail
the
undoubted
power
of
an
appellate court in an appeal against
acquittal to review the entire evidence and
to come to its own conclusion; but in doing
so it should not only consider every matter
on record having a bearing on the
questions of fact and the reasons given by
the court below in support of its order of
acquittal in its arriving at a conclusion on
those facts, but should also express those
reasons in its judgment, which lead it to
hold that the acquittal was not justified."

26.
This
legal
position
is
reiterated
in
Govindaraju
v.
State
[Govindaraju v. State, (2012) 4 SCC 722 :
(2012) 2 SCC (Cri) 533] and the following
passage therefrom needs to be extracted:
(SCC p. 732, paras 12-13)

"12.
The
legislature
in
its
wisdom, unlike an appeal by an accused in
the case of conviction, introduced the
concept of leave to appeal in terms of
Section 378 CrPC. This is an indication
that appeal from acquittal is placed on a
somewhat different footing than a normal
appeal. But once leave is granted, then
there is hardly any difference between a
normal appeal and an appeal against
acquittal. The concept of leave to appeal
under Section 378 CrPC
has
been
introduced as an additional stage between
the order of acquittal and consideration of
the judgment by the appellate court on
merits as in the case of a regular appeal.
Sub-section (3) of Section 378 clearly
provides that no appeal to the High Court
under sub-section (1) or (2) shall be
entertained except with the leave of the
High Court. This legislative intent of
attaching a definite value to the judgment
of acquittal cannot be ignored by the
courts.

13. Under the scheme of CrPC,
acquittal confers rights on an accused that
of a free citizen. A benefit that has
accrued to an accused by the judgment of
acquittal can be taken away and he can be
convicted on appeal, only when the
judgment of the trial court is perverse on
facts or law. Upon examination of the
evidence before it, the appellate court
should be fully convinced that the findings
returned by the trial court are really
erroneous and contrary to the settled
principles of criminal law.""

 (Emphasis supplied by us)

22. Thus, having considered the
matter in its entirety and in view of the law
laid down by the Hon'ble Supreme Court in
Krishnegowda's
case
(supra)
and
Ramesh's case (supra), we find that the
learned trial court's findings regarding
acquittal of accused-Vijay Kumar, opposite
party No.1 herein is based on proper
appreciation and analysis of evidence
available on record which does not in any
manner appear to be improbable or
perverse.

23. On the basis of forgoing
discussion, we are of the considered view
that the application for leave to appeal
deserves to be rejected and the same is
hereby rejected.
8 All. Rishi Mohan Srivastava Vs. State of U.P. & Anr.
589

24. Since the application for leave to
appeal has been rejected, the appeal also
does not survive and the same stands
dismissed.
----------
(2021)08ILR A589
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.08.2021

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Application U/S 482/378/407 No. 516 of 2021

Rishi Mohan Srivastava ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Naved Ali, Sandeep Yadav

Counsel for the Opposite Parties:
G.A., Pawan Bhaskar

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 482 - Negotiable
Instrument
Act,
1981-Section
138quashing of criminal proceeding-cheque
bounce-petitioner issued two cheques
each
of
Rs.
one
lac
in
favour
of
complainant/opposite
party-cheque
bounced
due
to
insufficient
fundpetitioner convicted and he preferred an
appeal-appeal dismissed and the revision
too dismissed-after dismissal complainant
and petitioner entered into settlement for
compounding offence-N.I. Act primarily
compensatory not punitive and moreover
section 147 of the Act would have an
overriding effect on section 320 Cr.P.C.
irrespective of which stage the parties are
compromising with the kind leave of the
Court.(Para 1 to 31)

B. Offence made punishable u/s 138 of
N.I. Act is not only an offence qua
property but it is also of the nature of an
economic offence, though not covered in
the list of statutes enacted in reference to
section 468 Cr.P.C. thus, the parties, in
reference to offence u/s 138 N.I. Act r/w
section 147 of the Act are at liberty to
compound the matter at any stage even
after the dismissal of the application.(Para
32)

The petition is allowed. (E-5)

List of Cases cited:

1. Damodar S. Prabhu Vs Sayed Babalal (2010)
2 SCC (Cri) 1328

2. M/s Meters and Instruments Pvt Ltd & anr. Vs
Kanchan Mehta (2017) 7 Supreme 558

3. Kripal Singh Pratap Singh Ori Vs Salvinder
Kaur Hardip Singh (2004) Crl. , L.J. 3786

4. Vinay Devanna Nayak Vs Ryot Seva Sahkari
Bank Ltd. (2008) AIR SC 716

5. Tanveer Aquil Vs St. of M.P. & Anr (1999)
Supp SCC 63

6. Narinder Singh Vs St. of Punj. (2014) 6 SCC
466

7. Rajinder Prasad Vs Bashir & ors. (2001) AIR
SC 3524

8. Krishan Vs Krishnaveni (1997) 4 SCC 241

9. Municipal Corpn. Indore Vs Ratnaprabha
(1977) AIR SC 308

(Delivered by Hon'ble Chandra Dhari
Singh, J.)

 1. The instant petition under section
482 Cr. P.C. has been filed with the
prayer
to
compound
the
offence
committed by the petitioner under section
138 of the Negotiable Instrument Act,
1981 in Complaint Case No.515 of 2016
(Abhay Singh vs. Jai Construction Co.
and another) and further to quash the
sentence of one year awarded to the
petitioner.