# Dinesh v. State of U.P. & Anr

- **Citation:** (2022) 12 ILRA 997
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-08
- **Case number:** Criminal Appeal No. 1376 of 2022
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-v-state-of-u-p-anr-48085
- **Pages:** 7

## Headnote

Criminal Law- Code of Criminal Procedure,
1973-
Section
372-Appeal
against
acquittal - 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- The appellate Court is
998 INDIAN LAW REPORTS ALLAHABAD SERIES
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- 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.

The judgement of acquittal should not be
disturbed by the appellate court merely because
two views are possible and moreover the
presumption of innocence stands reinforced by
the order of acquittal hence interference is
required only where the judgement of the trial
court is wholly perverse and illegal.

Criminal Appeal dismissed as withdrawn.
(E-3) (Para 8, 13,17)

Case Law/ Judgements relied upon:-

## Text

12 All. Dinesh Vs. State of U.P. & Anr.
997
undoubtedly be upon the prosecution. In
view of Section 106 Indian Evidence Act,
there will be a corresponding burden on the
inmates of the house to give cogent
explanation as to how the crime was
committed. The inmates of the house
cannot get away by simply keeping quite
and offering no explanation on the
supposed premise that the burden to
establish its case lies entirely upon the
prosecution and there is no duty challenge
on the accused to offer. Then the initial
burden of proving that, as on the date of the
alleged incident, the accused was present in
the house of lastly seen with the deceased
or that he was lastly in the company of the
deceased at the time of the incident would
be primarily upon the prosecution but in
our case, prosecution has failed to prove
the factum of last seen and as held above
prosecution could not also prove the fact
that after the deceased went missing, the
appellants were in their house because it is
proved on record that the house of
appellants was vacant. Otherwise it was not
possible for informant and other villagers
to dig out the courtyard of the appellants
and it is also not prosecution case that
appellants were present in their house.

30. In view of aforesaid discussion,
we are of the considered view that in this
case there is no applicability of Section 106
Indian Evidence Act and the chain of
circumstances is not so complete as to
indicate that offence was committed by the
appellants only and none else. Chain of
circumstances is broken on several stages
with regard to motive, factum of last seen
and recovery of alleged weapons.

31. Hence, learned trial Judge has
committed
error
in
convicting
and
sentencing the appellants for the offences
u/s 302, 201, 120B IPC. Hence, we upturn
the impugned judgement and appeal is
liable to be allowed.

32. Appeal is allowed accordingly.

33. Conviction and sentence of appellants
Jagdish, Prem Chandra and Desh Rani is set
aside and they are acquitted of all the charges
framed against them. Jagdish is in jail. He be set
free forthwith if not wanted in any other case.
Appellants- Prem Chandra and Desh Rani are on
bail. Their personal bonds are cancelled and
sureties are discharged.

33. Record and proceedings be sent
back to the court below.
----------
(2022) 12 ILRA 997
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2022

BEFORE

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

Criminal Appeal No. 1376 of 2022

Dinesh ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Awadh Narain Rai

Counsel for the Respondents:
G.A.

Criminal Law- Code of Criminal Procedure,
1973-
Section
372-Appeal
against
acquittal - 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- The appellate Court is
998 INDIAN LAW REPORTS ALLAHABAD SERIES
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- 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.

The judgement of acquittal should not be
disturbed by the appellate court merely because
two views are possible and moreover the
presumption of innocence stands reinforced by
the order of acquittal hence interference is
required only where the judgement of the trial
court is wholly perverse and illegal.

Criminal Appeal dismissed as withdrawn.
(E-3) (Para 8, 13,17)

Case Law/ Judgements relied upon:-

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

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

3. St. of Goa Vs Sanjay Thakran & anr.,(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 MP,
2007 A.I.R. S.C.W. 5589

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

7. Mookkiah & anr. Vs St. Rep. by the Inspr. of
Police, T.N, AIR 2013 SC 321

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

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

10. St. of Punj. Vs Madan Mohan Lal Verma,
(2013) 14 SCC 153

11. Jayaswamy Vs St. of Kar., (2018) 7 SCC 219
12. Shailendra Rajdev Pasvan Vs St. of Guj.,
(2020) 14 SC 750

(Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J. & Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred by the
informant against respondent No.2 against his
acquittal in S.T. No.45 of 2015 (State Vs.
Nilendra @ Mithun) arising out of Case Crime
No.108 of 2013, under Sections 363, 366, 376
IPC and 3/4 POCSO Act, Police Station-
Dholna, District- Kasganj. The aforesaid
judgement and order was passed by trial court
on 03.09.2022, by which the respondent was
acquitted of all charges.

2. Heard Shri Awadh Narian Rai,
learned counsel for the appellant and Shri
Patanjali Mishra, learned AGA.

3. The allegations are made against
the respondent No.2 by appellant/informant
that on 02.06.2013 his daughter, aged about
15 years, was going to attend the marriage
of her friend at about 12:00 noon.
Respondent No.2 along with others enticed
away his daughter. This occurrence was
seen by the son of the informant, who was
going after them by cycle.

4. The aforesaid FIR was culminated
into charge sheet and prosecution examined
9 witnesses in its support and filed
documentary evidence also.

5. 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.

6. The principles, which would
govern and regulate the hearing of an
appeal by this Court against an order of
12 All. Dinesh Vs. State of U.P. & Anr.
999
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
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."

7. 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."

8. 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.

9. 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
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

10. 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.

11. 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."

12. 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
12 All. Dinesh Vs. State of U.P. & Anr.
1001
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]"

13. 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."

14. 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."

15. 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
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

16. 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 re-appreciating 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 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."

17. 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
12 All. Smt. Kiran & Anr. Vs. State of U.P.
1003
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.

18. The prosecutrix was examined as
PW1, who did not support the prosecution
case and deposed that she was in love with
respondent No.2. Her parents wanted her to
marry with an old man, hence, she eloped
with respondent No.2 out of her own
volition. They both performed marriage in
Ghaziabad and after that she came to the
police herself. It is also deposed by the
prosecutrix that she was never enticed by
respondent
No.2
and
rape
was
not
committed with her against her will. This
witness was declared hostile.

19. Apart from the prosecutrix, the
prosecution examined three more witnesses
of fact, namely, PW2, who is the informant,
PW3, who is brother of the prosecutrix and
PW4, who is mother of the prosecutrix. As
per prosecution story, no one is eye-witness
except PW3.

20. Prosecution examined PW5 Dr.
Sandesh
Arekh,
who
had
medically
examined the prosecutrix. He has opined
that no opinion can be given with regard to
the fact of rape. Learned trial court after
examining the evidence on record and
hearing
both
the
sides,
found
that
prosecution could not prove the case
against respondent No.2 beyond reasonable
doubt and respondent No.2 was not guilty.
Consequently he was acquitted of all the
charges levelled against him.

21. We are also of the opinion that
this appeal is nothing but an abuse of the
process of law. Hence, we permit the
learned counsel for the appellant to
withdraw this appeal.

22. Accordingly, the appeal is
dismissed as withdrawn.
----------
(2022) 12 ILRA 1003
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2022

BEFORE

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

Criminal Appeal No. 2218 of 2018

Smt. Kiran & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Abhay Raj Singh, Sri Vikas Rana, Sri Vishal
Mohan Gupta

Counsel for the Respondent:
G.A.

Criminal Law- Indian Evidence Act, 1972-
Section 154- Evidence of a hostile witness
cannot be discarded as a whole, and
relevant
part
thereof,
which
are
admissible in law, can be used by
prosecution or the defence.

Settled law that the part of the testimony of a
hostile witness which is relevant and admissible
can be used.

Indian Evidence Act, 1972 - Section 32- In
case the court comes to the conclusion
that the dying declaration is true and
reliable, has been recorded by a person at
a time when the deceased was fit
physically and mentally to make the
declaration and it has not been made
under any tutoring/duress/prompting; it
can be the sole basis for recording