Allahabad High Court
State Of U.P. vs Deepak And 3 Othrs. on 2 July, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:102377-DB Reserved on 28.5.2025 Delivered on 02.7.2025 In Chamber Case :- GOVERNMENT APPEAL No. - 470 of 2024 Appellant :- State of U.P. Respondent :- Deepak And 3 Othrs. Counsel for Appellant :- Akhilesh Singh Counsel for Respondent :- Mohit Singh Hon'ble Siddharth,J.
Hon’ble Ram Manohar Narayan Mishra,J.
1. Heard Sri G.N. Kanaujia, learned A.G.A.-Ist for State-appellant; Sri Mohit Singh, counsel for the respondent nos. 1 to 4 and perused the material on record.
2. The above noted government appeal has been preferred by the State-appellant praying for setting aside the judgement and order of acquittal dated 18.2.2015 passed by Sessions Judge/Fast Track Court, District Kasganj, in Sessions Trial No.11 of 2010 (State Vs. Deepak and others) arising out of Case Crime No.560 of 2009, under Sections 452, 376, 504, 506 IPC, Police Station Sidpura, District Kasganj, whereby trial court has acquitted the accused, Deepak, Jawant Singh, Vikram Singh and Bramhaswarup.
3. The prosecution case is that on 27.09.2009 the informant was sleeping on the terrace of her house along with her mother-in-law and children. At 11.00 P.M., when she heard the knocking on the door, she came down and opened the door. Before she could ask anything, the respondents barged into her house. Respondent, Deepak, caught hold of her and after abusing her stated that he will leave her only after outraging her modesty. Respondent, Vikram Singh, caught hold of her hands and respondents, Jaswant and Brahm Swarup, who were having country made pistols in their hands, threatened her of life in case she raises alarm. Respondent, Deepak, committed offence of rape against her while other respondents climbed the wall behind her house and ran away. When she raised alarm, Mahipal, Jasbir and many other persons came. On being informed about the incident they ran after the respondent but in vain.
4. After investigation of the case and submission of charge sheet under sections 452, 376, 504, 506 of I.P.C. against all the accused in two sets Sessions Trial No 11/2010 and Sessions Trial No.140/2010 were registered.
5. The accused-respondents denied the charges framed under the aforesaid sections and sought trial.
6. To prove the prosecution case, the prosecution produced P.W.-1, Mahipal Singh (witness named in the F.I.R.); P.W.-2, Kunwarpal Singh; P.W.-3, Sumanlata (prosecutrix), P.W.-4, Jasbir; P.W.-5, Talevar Singh; P.W.-6, Anita; P.W.-7, Ramdas, P.W.-8, Surendrapal Singh,
6. Thereafter, statements of respondents were recorded under Section 313 Cr.P.C. No defence evidence was produced before the trial court.
7. The learned counsel for the appellant has made the following submissions:
i). P.W.-1, Mahipal Singh, and P.W.-2, Kunwarpal Singh, were examined by trial court and they were declared hostile. The P.W.-1 and P.W.-2 saw the incident but due to collusion with the accused persons, they did not supported the prosecution case. They had not support the prosecution story, but the offence is related to section 376 I.P.C. and the victim duly proved the case beyond reasonable doubt.
ii).. P.W.3,, Smt.Sumanlata, who is victim of the case, stated that the accused persons entered in the house of the victim at about 11:00 p.m. and accused, Deepak, committed offence of rape against the victim. She further stated that when her husband came to the house, then she lodged the FIR against the accused persons. She further stated that during incident, her bangles were broken and clothes were torn. The broken bangles caused injuries on her hand and the marks of the nail of the accused, Deepak, were also present on her chest and mouth. Other accused had also participated in the incident. From the statement of the P.W.3, who is victim of the case, it clear that she duly proved her case beyond reasonable doubt. The statement of victim is sufficient for proving the case but trail court has not considered the statement of the victim and wrongly acquitted the accused persons.
iii). P.W.4, Jasveer, who is neighbour of the victim, has stated that when he heard the noise, he reached the scene of incident and saw the above four named accused persons. When he attempted to catch them they ran away. He further stated that the clothes (petticoat and blouse) of the victim were torn and the victim was saying that accused, Deepak, has committed rape against her and Jaswant and Brahmswaroop were armed with country made pistols. From the statement of the P.W.-4, it is clear that the accused, Deepak, had committed the offence of rape against the victim,. but trial court has not considered the statement of the P.W.4.
iv). P.W.5, Talewar Singh, has stated that at the time of incident, he was going to his field and on hearing the noise he went on the spot and saw that above named accused person were running away and he also tried to catch them. He further stated that when he reached the house of the victim, then he saw that her clothes (petticoat and blouse) were torn and the marks of the injuries were also present on the chest and neck of the victim.
v). The P.W.6, Dr. Anita, has stated that hymen of victim was old torn and no opinion can be given regarding commission of offence of rape.
vi). The P.W.-8, Surendrapal Singh, who was investigating officer in this case, has stated that he had conducted the investigation and filed the charge sheet against the accused persons and he recorded the statements of the victim and other witnesses under section 161 Cr.P.C. Therefore he proved the prosecution case but the trial court had not considered the statement of the P.W.-8 and acquitted the accused which is wrong.
vii). From the perusal of the statement of the P.W.-3, P.W.-4 and P.W. -5, who were also eye witness of the case, it is clear that the rape was committed by the accused, Deepak, against the victim and other accused persons, namely, Jaswant Singh, Vikram and Brahmswaroop had also participated in the alleged crime. All the above witnesses had proved the case beyond reasonable doubt but the trial court has not considered the statements of the P.W.-3, P.W.-4 and P.W.-5 and acquitted the accused persons.
viii). The learned counsel for the state appellant has finally submitted that the trial court has committed patent legal error in acquitting the respondents of the charges. The findings of the trial court are not based on the evidence on record and are perverse and deserve to be set aside.
8. The learned counsel for the respondents has vehemently opposed the submissions made by the learned counsel for the appellant. He has supported the findings recorded by the trial court in favour of the respondents and submitted that there is no perversity in the findings recorded by the trial court and have not been demonstrated by the learned counsel for the appellant. The appeal has no merit and deserves to be dismissed.
9. The appellate Court is usually reluctant to interfere with a judgment acquitting an accused on the principle that the presumption of innocence in favour of the accused is reinforced by such a judgment. The above principle has been consistently followed by the Constitutional Court while deciding appeals against acquittal by way of Article 136 of the Constitution or appeals filed under Section 378 and 386 (a) Cr.P.C. in State of M.P. Vs. Sharad Goswami,(2021) 17 SCC 783; State of Rajasthan Vs. Shera Ram, (2012) 1 SCC 602, Shivaji Sahabrao Bobade Vs. State of Maharastra, (1973) 2 SCC 793.
10. The Supreme Court in the case of Ramesh Babulal Doshi Vs. State of Gujarat, (1996) 9 SCC 225 has observed that the High Court must examine the reasons given by the trial Court for recording their acquittal before disturbing the same by re-appraising the evidence recorded by the trial court. For clarity, para 7 is extracted herein below:
“Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then – and then only – reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not.”
11. The Supreme Court in the case of Sadhu Saran Singh Vs. State of U.P., (2016) 4 SCC 357 has observed that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity.
12. The Supreme Court in the case Basheera Begam Vs. Mohd. Ibrahim, (2020) 11 SCC 174 has held that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If, upon analysis of evidence, two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and other of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the court might reverse an order of acquittal if the court finds that no person properly instructed in law could have, upon analysis of the evidence on record, found the accused to be “not guilty”. When circumstantial evidence points to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime.
13. The Supreme Court in the case of Kali Ram Vs. State of H.P., (1973) 2 SCC 808 has observed as under:
“25. Another golden thread which runs through the web of the 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 other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought is to established by circumstantial evidence.”
14. The Supreme Court again examined in State of Odisha v. Banabihari Mohapatra & Ors, (2021) 15 SCC 268 the effect of the probability of two views in cases of appeal against acquittal and held 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.
15. The Supreme Court in Sujit Biswas v. State of Assam, (2013) 12 SCC 406 has reiterated the position that suspicion, however strong, cannot replace proof. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt.
12. In the background of the law discussed herein above, we have examine the trial court’s findings and evidence adduced during the trial by the witnesses to test the legality and validity of the impugned order.
16. Learned counsel for the appellant could not point out any perversity in the findings recorded by the trial court. The trial court’s judgement is a well merited one, this Court need not re-appreciate the evidence.
17. After hearing the rival submissions and going to the material on record we find :-
(i) There are criminal cases pending between the parties. The sister-in-law (devrani) of P.W.-3, prosecutrix had lodged F.I.R. under section 498-A against P.W.-3, prosecutrix, her brother-in-law (devar), mother-in-law and husband of P.W.-3. Respondents, Brahmswaroop, Jasvant and Vikram are brothers of her sister-in-law (devrani). The motive of false implication of the aforesaid respondents was the litigation noted above between the parties.
(ii). There is no explanation why the children and mother-in-law of P.W.-3, the prosecutrix, were not produced in evidence, since as per the prosecution case all of them were sleeping together when the respondents knocked the door of the house of P.W.-3 and at 11.00 P.M. in the night she opened the door which made the respondents enter her house and commit the alleged offence against her.
(iii). The medical report of the victim does not supports the prosecution case at all. P.W.-6, Dr. Anita, conducted external as well as internal examination of P.W.-3. She admitted that in the mazroobi chitthi of P.W.-3, there was no mention of commission of offence of rape against P.W.-3.
(iv). In the medico-legal examination report of the victim, no mark of injury was found on any part of her body, including her private parts. In the supplementary medical report the victim was found to be aged about 18 years and in her vaginal smear no spermatozoa was found. The victim in her statement under section 161 of Cr.P.C. admitted that respondent, Deepak,, Brahmswaroop and Jasvant are brothers of her sister-in-law, while the respondent, Vikram Singh, is related to her as brother-in-law( Behnoi). She did not stated anything in her statement under Section 161 of Cr.P.C. about suffering any injury on any part of her body. Only in her statement recorded before the Court, she alleged that her bangles had broken and blood was coming out from both her wrists. She further alleged that her clothes were torn by accused-respondents and signs of injuries by nails were found on her chest, mouth, forehead and cheeks. Signs of tooth bites were also found on her cheeks and neck. Doctor did not mentioned these injuries in her report but these injures were shown to the doctor by her. No incriminating spots were found on her clothes.
v). There was no allegation in the F.I.R. regarding putting her hatched roof on fire. She concealed the factum of pendency of criminal case lodged against her and other family members by her sister-in-law (devrani). She denied having any knowledge whether the respondent, Deepak, has lodged case under Section 307 of I.P.C. against her husband.
vi). In his statement under section 313 Cr.P.C. respondents, Deepak, clearly stated that this case has been registered against him only to create pressure upon him regarding the case of his sister lodged under Section 498-A/302 of I.P.C. Similar statements were given by other co-accused in their statements recorded under Section 313 Cr.P.C.
vii). In the totality of the facts and circumstances of this case the defence of the respondent of counter blast implication by P.W.-3 seems probable.
viii). The other prosecution witnesses are not the eye witness of the incident and have given statements before the Court on the basis of information received from P.W.-3.
ix). The trial court has recorded the finding that during the trial, P.W.-3, gave an affidavit denying the entire incident and refused to recognize the respondents.
x). The learned counsel for the appellant has submitted that statement of victim was sufficient to convict the respondents but we find that the statement of the victim does not inspires confidence of this court. Her statement recorded before the trial court is also not corroborated from any medical document or statement of any reliable eye witness.
18. The above noted government appeal is dismissed.
19. Let the record of the trial court be returned and this judgement to be notified to the trial court, within two week.
Order Date :- 02.7.2025
Ruchi Agrahari
.
(Ram Manohar Narayan Mishra,J.) (Siddharth, J.)