Dismissed

State of U.P. v. Dinesh Kumar

Allahabad HC9 Dec 2021GOVA/1001433/2003

Case brief

AI extract

What is this about?

This order condones a 176-day delay in filing an appeal under Section 5 of the Limitation Act. On merits, the High Court dismissed the state's appeal against the trial court's acquittal, holding that prosecution evidence was insufficient and the trial court's findings were not erroneous or perverse.

What did the court decide?

Leave to appeal refused; appeal dismissed at the threshold stage.

State of U.P. Vs Dinesh Kumar — Criminal Trial and Appeal | Allahabad HC (2021)

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Chief Justice’s Court Daily Cause List Serial No. 34

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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(Lucknow)

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***** U/s 378 Cr.P.C. No. 1433 of 2003** State of U.P. ...Applicant Through: Ms. Smiti Sahay, Additional Government Advocate vs. Dinesh Kumar ...Opposite party

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CORAM: HON’BLE RAJESH BINDAL, CHIEF JUSTICE HON’BLE NARENDRA KUMAR JOHARI, JUDGE

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ORDER

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HON’BLE NARENDRA KUMAR JOHARI, J. Crl. Misc. Delay Condonation Application No. 5037 of 2003

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The present appeal has been filed with an application under Section 5 of Limitation Act for condoning the delay of 176 days. The application is supported with an affidavit.

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Heard.

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For the reasons stated in the affidavit filed in support of the application for condonation of delay, the delay of 176 days in filing the appeal is condoned. The application is allowed.

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On Main Application

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Challenge in the present acquittal appeal is to the judgment and order dated 11.9.2002 passed by Additional Sessions Judge-I, Raebareli in Sessions Trial No. 272 of 1996 (State Vs. Dinesh Kumar) arising out of Case Crime No. 56 of 1994 under Sections 363, 366, 376

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2 U/s 378 Cr.P.C. No. 1433 of 2003

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IPC, P.S. Sareni, District Raebareli by which the learned trial court has acquitted accused Dinesh Kumar from all the charges against which present application for leave to appeal has been filed by the State Government.

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The factual matrix of the case is that the informant Ram Dhani Yadav lodged FIR under Case Crime No. 56 of 1994 under Sections 363, 366, 376 IPC in police station concerned with contention that on 16.3.1994 at about 9:00 P.M. accused Dinesh Kumar Pasi kidnapped his daughter Km. Krishnawati, who was aged about 15 years. The witnesses Ramai Yadav and Gobardhan Yadav had seen the victim going with accused Dinesh Kumar Pasi on the alleged date of occurrence.

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The investigation of the case was entrusted to one S.I. Bal Muni Ram. During investigation, he recorded statements of witnesses and arrested accused Dinesh Kumar Pasi with prosecutrix Kumari Krishnawati. The prosecutrix was sent for medico legal examination. The investigating officer visited the spot and after completion of investigation submitted the charge sheet against accused Dinesh Kumar under Sections 363, 366 and 376 IPC. The charges were framed against accused by the Court of Sessions under Sections 363, 366 and 376 IPC, who denied the charges, pleaded not guilty and claimed trial.

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On behalf of prosecution, Goberdhan Das, Ramai, Ram Dhani, Smt. Krishnawati, Dr. Abha Ashutosh, SI Bhagwan Bux Bhadoria and SI Bal Muni Ram deposed as witnesses PW-1 to PW-7.

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Learned trial court after hearing arguments of learned counsel for the parties and considering the evidence available on record concluded that prosecution had failed to prove the guilt of accused beyond reasonable doubt, therefore, the trial court acquitted the accused Dinesh Kumar Pasi from all the charges against which present appeal has been filed with application U/s 378(3) Cr.P.C. by the State Government.

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U/s 378 Cr.P.C. No. 1433 of 2003

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Heard learned counsel for the State on application for leave under section 378 (3) of Cr.P.C. and perused the record.

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Learned counsel for the State has submitted that the trial court could not assess the evidence of prosecution properly and acquitted the accused wrongly. The application for leave deserves to be allowed and impugned judgment be set aside after hearing the appeal on merit.

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A perusal of the record indicates that witnesses Gobardhan Das and Ramai had seen that prosecutrix was going with accused Dinesh Kumar Pasi on the alleged date of occurrence and the witnesses informed the father of prosecutrix about that but in their deposition as PW-1 and PW-2 they have not supported the prosecution version and were declared hostile.

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The witness PW-3 Ram Dhani, who is informant of the case, had stated in his evidence that he was not present at his house when the prosecutrix eloped with accused. Although he had narrated the occurrence as mentioned in FIR but he is not the eye witness of occurrence. The witness PW-4 Kumari Krishnawati stated in her evidence that on the date of occurrence, she came out from her house and met accused Dinesh Kumar Pasi, who asked her to accompany with him to Bombay and she went with him first to Beni Madhavganj where in a village accused carried her into a grove and lay her down on open land and committed sexual intercourse, without her consent. Prosecutrix has also stated that the land upon which she was laid, was uneven and she resisted accused Dinesh Kumar Pasi during committal of offence but the accused forcefully fulfilled his lust. In medico legal examination, no injury of any mark of scratches or abrasion were found on the body of prosecutrix to establish occurrence of forceful sexual intercourse. No injury has been found even on the private parts of the prosecutrix. In pathological report, no spermatozoa was found in examination of vaginal smear. In ossification test the prosecuterix was found to be 16-17 years old with scope of variation of two years on either side. Learned trial court has held that only evidence of two eye witnesses PW-3 the

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4 U/s 378 Cr.P.C. No. 1433 of 2003

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informant Ram Dhani and PW-4 prosecutrix were produced by the prosecution. PW-3 is not the eye witness of any occurrence. As far as PW-4 is concerned, she had herself stated that she had accompanied accused for going to Bombay. She had not mentioned that accused had given her any inducement or allurment. She went to Beni Madhavganj with accused by public conveyance and travelled public places but she never raised hue and cry for help. She also stated that accused had committed sexual intercourse so many time but no injury on the body of the prosecutrix including private parts was found. Learned trial court on the basis of above circumstances as well as law laid down by this court in the case of Rustam and others Vs. State of U.P. [2001(2) A. Cr. R 1282] and law laid down by Hon’ble Apex Court in the case of Dilip and others Vs. State of M.P . [AIR 2001 SC 3049] acquitted the accused Dinesh Kumar Pasi. The view taken by trial court is possible and no perversity is found in the findings recorded.

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With regard to the scope of the powers of the appellate court in an appeal against acquittal it is well settled that powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal. Accused is having presumption of innocence which has been affirmed by the judgment of trial court, so it cannot be interfered by appellate court without any cogent reason/evidence.

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After proper scrutiny, it can be said that the judgment of lower court is well discussed and founded on evidence available on record. No illegality or irregularity is found in the impugned judgment. 12. Keeping in view the failure of the prosecution to prove the case against accused beyond shadow of doubt, the acquittal of accused,

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5 U/s 378 Cr.P.C. No. 1433 of 2003

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as noted by the trial court, cannot be interfered with. The view taken by the trial court is probable and logical. The judgment of the trial court cannot be said to be illegal, illogical and improbable. In our considered view, there is absolutely no hope of success in this appeal and accordingly, no interference is called for.

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Considering the facts and circumstances of the case, leave to appeal as prayed by State is refused, consequently the appeal is dismissed at this stage itself.

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(Narendra Kumar Johari, J.) (Rajesh Bindal, C.J.)

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Lucknow December 9, 2021 Amit/Manish

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Whether the order is speaking:Yes/No Whether the order is reportable:- Yes/No

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Digitally signed by AMIT KUMAR Date: 2022.02.25 13:32:03 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. v. Dinesh Kumar

Case brief

What is this about?

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State of U.P. v. Dinesh Kumar

Case brief

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