# Kaju Singh v. State o U.P. & Anr

- **Citation:** (2022) 8 ILRA 793
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-04
- **Case number:** Criminal Appeal No. 3507 of 2012
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaju-singh-v-state-o-u-p-anr-48942
- **Pages:** 25

## Headnote

A. Criminal Law - Appeal against acquittal
- Arms Act: Section 302, 201 IPC r/w
S.425 - Jurisdiction - 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.
(Para 10 to 25)

While sitting in judgment over an acquittal the
appellate 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
appellate court answers the above question in
the negative the order of acquittal is not to be
disturbed. Conversely, if the appellate 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. (Para 10 to 25)

In the present case in hand, the entire
prosecution story, is erected on the premise that
the father of the appellant-informant went
missing from 23.11.2007 at 2:00 P.M., while
according to the prosecution he had gone to cut
the grass for cattle feed and he did not return
back. However it is one Sri Mani Singh, who
happens to be PW-2, who witnessed that the
accused was with the deceased and according
to his statement, the accused sat in the tractor
on the next date, and proceeded from the
village on 24.11.2007 at 7:00 in the morning
and thereafter he was not seen. It is also not in
dispute that the FIR has been lodged on
794 INDIAN LAW REPORTS ALLAHABAD SERIES
27.11.2007 and nobody had seen the accused
committing the crime as the present case does
not fall within the parameters as envisaged
under
eye-witness
count.
Rather
to
the
contrary, the case (if it is) would come under
the parameters of circumstantial evidence. PW-1
was not an eyewitness, however the only
witness who had seen the accused with the
deceased on 27.11.2007 at 5:00 P.M., was PW2 Mani Singh. Records further reveal that as per
the statement of PW-1, the deceased were
three brothers, elder one being Indrabhan
Singh, then Chunni Singh and the deceased.
The deceased happens to be the son of Balram
Singh as well as the accused is the son of
Indrabhan
Singh.
Meaning
thereby,
the
informant and the accused belong to the same
family. According to the statements of the
prosecution witness, there was a dispute w.r.t.
some landed property, which was the basis for
commission of the crime by the accused. (Para
27)

So far as the issue with relation to the parameters

## Text

_Characters 0–39,733 of 83,305. This is a partial read: ask again with offset=39733 for what follows._

8 All. Kaju Singh Vs. State of U.P. & Anr.
793
seen stands attracted. Even otherwise,
there is no recovery so made from the
accused. This Court further finds that the
prosecution case proceeds on weak
evidence and and in any view of the
matter, this is not a case wherein the
appellant/ complainant can insist the
Court to take a different view from the
view taken by the Trial Court while
acquitting the accused, while reversing
the judgment in question.

32. Hence, in any view of the matter
applying the principles of law so culled out
by the Hon'ble Apex Court in the facts of
the present case, we have no option but to
concur with the view taken by the learned
Sessions Judge.

33. We find that it is not a case worth
granting leave to appeal. The application
for granting leave to appeal is rejected.

34. Since the application for granting
leave to appeal has not been granted,
consequently, present criminal appeal also
stands dismissed.

35. Records of the present case be
sent back to the court concerned.
----------
(2022) 8 ILRA 793
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 3507 of 2012
(U/S 372 Cr.P. C.)

Kaju Singh ...Appellant
Versus
State o U.P. & Anr. ...Opposite Parties
Counsel for the Appellant:
Sri C.S. Sharma, Sri G.S. Sharma

Counsel for the Opposite Parties:
Govt. Advocate, Sri V.B. Rao

A. Criminal Law - Appeal against acquittal
- Arms Act: Section 302, 201 IPC r/w
S.425 - Jurisdiction - 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.
(Para 10 to 25)

While sitting in judgment over an acquittal the
appellate 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
appellate court answers the above question in
the negative the order of acquittal is not to be
disturbed. Conversely, if the appellate 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. (Para 10 to 25)

In the present case in hand, the entire
prosecution story, is erected on the premise that
the father of the appellant-informant went
missing from 23.11.2007 at 2:00 P.M., while
according to the prosecution he had gone to cut
the grass for cattle feed and he did not return
back. However it is one Sri Mani Singh, who
happens to be PW-2, who witnessed that the
accused was with the deceased and according
to his statement, the accused sat in the tractor
on the next date, and proceeded from the
village on 24.11.2007 at 7:00 in the morning
and thereafter he was not seen. It is also not in
dispute that the FIR has been lodged on
794 INDIAN LAW REPORTS ALLAHABAD SERIES
27.11.2007 and nobody had seen the accused
committing the crime as the present case does
not fall within the parameters as envisaged
under
eye-witness
count.
Rather
to
the
contrary, the case (if it is) would come under
the parameters of circumstantial evidence. PW-1
was not an eyewitness, however the only
witness who had seen the accused with the
deceased on 27.11.2007 at 5:00 P.M., was PW2 Mani Singh. Records further reveal that as per
the statement of PW-1, the deceased were
three brothers, elder one being Indrabhan
Singh, then Chunni Singh and the deceased.
The deceased happens to be the son of Balram
Singh as well as the accused is the son of
Indrabhan
Singh.
Meaning
thereby,
the
informant and the accused belong to the same
family. According to the statements of the
prosecution witness, there was a dispute w.r.t.
some landed property, which was the basis for
commission of the crime by the accused. (Para
27)

So far as the issue with relation to the parameters regarding delay in lodging of FIR is
concerned, admittedly, the deceased went
missing on 23.11.2007 and the FIR has been
lodged on 27.11.2007, after four days. The
court below has analyzed each and every aspect
of the matter while recording a categorical
finding that there has been no explanation
regarding delay in lodging of the FIR. It is not
disputed that the informant was in his house
and rather in the village on 23.11.2007 when
the deceased went missing. However, no
explanation whatsoever, either plausible or
justifiable has been given regarding delay in
lodging of the FIR. It is further improbable and
unconceivable that, once one of the slippers of
the deceased was recovered and the deceased
was not traceable on 23/24.11.2007, then in
normal situation, an FIR ought to have been
lodged, as no aggrieved party, whose near
relative is missing would not approach the police
station while putting search of the missing
person in motion. The learned trial court has
rightly disbelieved the prosecution case on the
additional count of delay in the lodging of the
FIR. (Para 28)

B. Delay in lodging the FIR and its impact
upon the prosecution theory - It is well
settled that the delay in giving the FIR by
itself cannot be a ground to doubt the
prosecution
case.
Knowing
the
Indian
conditions as they are we cannot expect these
villagers
to
rush
to
the
police
station
immediately after the occurrence. Human nature
as it is, the kith and kin who have witnessed the
occurrence
cannot
be
expected
to
act
mechanically with all the promptitude in giving
the report to the police. At times being griefstricken because of the calamity it may not
immediately occur to them that they should give
a report. After all it is but natural in these
circumstances for them to take some time to go
to the police station for giving the report. (Para
30)

Unless there are indications of fabrication,
the court cannot reject the prosecution
version as given in the FIR and later
substantiated by the evidence merely on
the ground of delay. These are all matters
for appreciation and much depends on the
facts and circumstances of each case.
(Para 29 to 31)

In the present case, by all eventualities (Para 33
to 35), this Court finds that there has been no
plausible explanation offered by the prosecution
as to why there has been delay in lodging the
FIR, coupled with the fact that neither any
motive is attributed or proved, nor there is
eyewitness testimony, nor the chain of events
link the basic index of circumstantial evidence
and less to say the last seen theory also does
not attract, coupled with defective investigation
and further delay in lodging the FIR (Para 32,
34, 35)

This Court further finds that the prosecution
case proceeds on weak evidence and in any
view of the matter, this is not a case wherein
the appellant/complainant can insist the Court
to take a different view from the view taken by
the Trial Court while acquitting the accused,
while reversing the judgment in question. (Para
36)

Criminal appeal dismissed. (E-4)

Precedent followed:

1. Tota Singh & anr. Vs St. of Punj., (1987) 2
SCC 529 (Para 10)
8 All. Kaju Singh Vs. State of U.P. & Anr.
795
2. Ramesh Babulal Doshi Vs St. of Guj., (1996) 9
SCC 225 (Para 11)

3. St. of Raj. Vs St. of Guj., (2003) 8 SCC 180
(Para 12)

4. St. of Goa Vs Sanjay Thakran, (2007) 3 SCC
755 (Para 13)

5. Chandrappa & ors. Vs St. of Karn., (2007) 4
SCC 415 (Para 14)

6. Ghurey Lal Vs St. of U.P., (2008) 10 SCC 450
(Para 15)

7. Siddharth Vashishtha @ Manu Sharma Vs
State (NCT of Delhi), (2010) 6 SCC 1 (Para
16)

8. Babu Vs St. of Kerala, (2010) 9 SCC 189 (Para
17)

9. Ganpat Vs St. of Har., (2010) 12 SCC 59 (Para
18)

10. Sunil Kumar Sambhudayal Gupta (Dr.) & ors.
Vs St. of Mah., (2010) 13 SCC 657 (Para 19)

11. St. of U.P. Vs Naresh, (2011) 4 SCC 324
(Para 20)

12. St. of M.P. Vs Ramesh, (2011) 4 SCC 786
(Para 21)

13. Jayaswamy Vs St. of Karn., (2018) 7 SCC
219 (Para 22)

14. Jafarudheen & ors. Vs St. of Kerala, JT 2022
(4) SC 445 (Para 23)

15. St. of U.P. Vs Subedar & ors., Government
Appeal No. 3804 of 2010 (Para 24)

16. Virendra Singh Vs St. of U.P. & ors., 2022 (3)
ADJ 354 (Para 25)

17. Apren Joseph Alias Current Kunjukunju &
ors. Vs The St.of Kerala, (1973) 3 SCC 114 (Para
29)

18. Tara Singh & ors. Vs St. of Pun., 1991 Supp
(1) SCC 536 (Para 30)

19. P. Rajagopal & ors. Vs St. of T.N., (2019) 5
SCC 403 (Para 31)

Present appeal assails judgment and order
dated 15.07.2011, passed by Additional
Sessions Judge, District Banda.

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

1. This appeal under Section 372 of
Criminal Procedure Code, 1973 (in short
'Cr.P.C.'), has been instituted by the
informant being Kaju Singh son of Balram
Singh against the judgment and order dated
15.7.2011 passed by Addl. Sessions Judge,
Court No. 5, District Banda, passed in S.T.
No. 70 of 2008, under Sections 302, 201
IPC arising out of Case Crime No. 281 of
2007, and S.T. No. 71 of 2008, under
Section 25/4 Arms Act (State Vs. Munna
Singh alias Karan) arising out of Case
Crime No. 15 of 2008, Police Station.
Bisanda, District Banda, whereby learned
trial court has acquitted the accused, who is
respondent-opposite party no. 2.

2. This appeal was presented before
this Court accompanied with a delay
condonation application on 26.9.2011, and
on 23.8.2012, this Court proceeded to pass
the following order: -

"23.8.2012

Heard learned counsel for the
appellant, learned AGA and Sri V.B. Rao,
counsel appearing on behalf of the accused
respondent.

This application has been filed
with a prayer to condone the delay in filing
the appeal.

The grounds taken for condoning the
delay had not been controverted by the
796 INDIAN LAW REPORTS ALLAHABAD SERIES
accused respondent because no counter
affidavit has been filed.

This appeal has been filed beyond
the period of limitation by 9 days.

Sufficient cause has been shown
to condone the delay in filing the appeal.
Therefore, the delay in filing the appeal is
hereby condoned. The appeal shall be
deemed to be filed within the period of
limitation.

Office is directed to allot regular
number to this appeal.

Accordingly, this application is
allowed."

"Heard learned counsel for the
appellant, learned AGA and Sri V.B. Rao,
counsel appearing on behalf of the accused
respondent.

Learned counsel for the appellant
prays for and is granted three weeks' time
to file an application for granting leave to
appeal.

Summon the lower court record
within a period of six weeks from today.

List on 18.10.2012 for admission.
"

3.

Thereafter
on
30.10.2012,
10.12.2012, 16.1.2013, 25.8.2021, and
lastly on 9.5.2022, the following orders
were passed:-

"30.10.2012

Learned counsel for the appellant
is not present.

In this case lower court record
has been summoned on 23.8.2012 but the
same has not been received.

List on 10.12.2012."

"10.12.2012

The learned counsel for the
appellant is not present. In this case lower
court record has been summoned, the same
has not been received.

The office is directed to send
reminder to the District Judge, Banda for
sending the lower court reocrd within a
month.

List on 16.1.2013."

"16.1.2013

Heard learned counsel for the
appellant, learned A.G.A. for the State of
U.P. and Sri V.B. Rao appearing on behalf
of the accused respondents.

In this case lower court has not
been received whereas the reminder has
been sent to learned Sessions Judge, Banda
on 10.12.2012.

List on 25.2.2013."

"25.8.2021

Put up on 15.9.2021 in the
additional cause list before the appropriate
Bench."

"9.5.2022

Matter is taken up.
8 All. Kaju Singh Vs. State of U.P. & Anr.
797

None appeared on behalf of the
appellant.

Learned A.G.A. on behalf of the
State is present.

Today accused respondent is also
not represented by any counsel nor he
appeared in person before the Court.

Appeal is yet to be admitted.

In the circumstances, list this
matter in the week commencing 4th July,
2022 for hearing on admission.

If on the next date fixed none will
appear on behalf of the appellant Court
will
proceed
to
decide
the
matter
appointing Amicus Curiae/with the help of
the learned A.G.A."

4. Orders so passed from time to time
in the present appeal show that the counsel
for the appellant is avoiding to participate
in the proceedings in order to facilitate in
the disposal of the matter and thus, this
Court was constrained to pass an order
dated
9.5.2022
while
directing
and
observing that in case on the next date so
fixed, none appears on behalf of the
appellant before this Court, the Court will
have no option but to appoint Amicus
Curiae / to decide the matter with the help
of learned A.G.A.

5. Till the dictation of the order,
nobody appears for the appellant and thus
this Court is proceeding to decide the
matter with the assistance of the learned
A.G.A.

6. The factual matrix as worded in
the present appeal are that the appellant/
informant happens to be the son of the
deceased being Man Singh who was at
relevant point of time when the unlucky
event occurred was working in an
establishment in Delhi. As per the
prosecution
version,
Balram
Singh
(deceased) on 23.11.2007 at 2:00 P.M,
had gone to the disputed agricultural field
in order to harvest grass & plants being
cattle feed. However, he did not return
back and after constant search and
enquiry, when Maini son of Rajju Yadav
had apprised the informant on 23.11.2007
at 5:00 P.M. that he had seen the deceased
with accused. As per the prosecution
story, one slipper of the deceased was
found in the field and the accused at 7:00
in the morning was going in a tractor (no.
UP90A9351) which was owned by one
Ganga Singh son of Chhikaudi towards
Atarra, and the accused after the said day,
did not return to the village. Records
further reveal that on 27.11.2007, the
matter was reported to the concerned
Police Station regarding the missing of
the deceased. It has been further alleged
that on 9.12.2007, the informant received
a phone call that the corpus of the
deceased was found in a gadara naala of
the
said
village.
Consequently,
the
inquest report was also prepared and the
body was put up for post mortem on
10.12.2007. It was further alleged that on
the pointing out of the accused, spade as
well clothes which included the Kurta an
inner wear were found which were blood
stained.
Consequently,
investigating
Officer was nominated, who conducted
the investigation, pursuant whereto a
charge sheet was submitted purported to
be under Section 302, 201 IPC read with
Section 4/25 of the Arms Act. The
charges were read over to the accused.
The accused denied the charges and
claimed to be tried. Thereafter the case
was committed to the Sessions.
798 INDIAN LAW REPORTS ALLAHABAD SERIES

7. To bring home the charges, the
prosecution produced following witnesses,
namely:

1.
Seerdhwaj Singh @ Kaju
Singh
PW1
2.
Maini Singh
PW2
3.
Constable Chhedi Lal
PW3
4.
Dr. Mukesh Kumar
PW4
5.
S.I. H.D. Singh, I.O.
PW5
6.
S.I. Parashuram Singh
PW6
7.
Constable Ram Vishal Pal PW7

8 We have heard Sri Ratan Singh,
learned A.G.A. and with his assistance the
present appeal is being decided.

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
Tota Singh and another vs. State of
Punjab, reported in (1987) 2 SCC 529, the
Hon'ble Apex Court in paragraph-6 has
observed as under: -

"6. The High Court has not
found in its judgment that the reasons
given by the learned Sessions Judge for
discarding the testimony of PW 2 and PW
6 were either unreasonable or perverse.
What the High Court has done is to make
an
independent
reappraisal
of
the
evidence on its own and to set aside the
acquittal merely on the ground that as a
result of such reappreciation, the High
Court was inclined to reach a conclusion
different from the one recorded by the
learned Sessions Judge. This Court has
repeatedly pointed out that the mere fact
that the appellate court is inclined on a
reappreciation of the evidence to reach a
conclusion which is at variance with the
one recorded in the order of acquittal
passed by the court below will not
constitute a valid and sufficient ground
for setting aside the acquittal. The
jurisdiction of the appellate court in
dealing with an appeal against an order
of acquittal is circumscribed by the
limitation that no interference is to be
made with the order of acquittal unless
the approach made by the lower court to
the consideration of the evidence in the
case
is
vitiated
by
some
manifest
illegality or the conclusion recorded by
the court below is such which could not
have been possibly arrived at by any
court acting reasonably and judiciously
and
is,
therefore,
liable
to
be
characterised as perverse. Where two
views are possible on an appraisal of the
evidence adduced in the case and the
court below has taken a view which is a
plausible one, the appellate court cannot
legally
interfere
with
an
order
of
acquittal even if it is of the opinion that
the view taken by the court below on its
consideration
of
the
evidence
is
erroneous."

11. Further, in the case of Ramesh
Babulal Doshi vs. State of Gujarat, reported
in (1996) 9 SCC 225, in paragraph 7, the
Hon'ble Apex Court observed as under:

"7. Before proceeding further it
will be pertinent to mention that the entire
8 All. Kaju Singh Vs. State of U.P. & Anr.
799
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 appellate 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 appellate court answers
the above question in the negative the order
of acquittal is not to be disturbed. Conversely,
if the appellate 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."

12. In the case of State of Rajesthan
vs. State of Gujarat, reported in (2003) 8
SCC 180, in paragraph 7, the Hon'ble
Apex Court observed as under:

"7. 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
reappreciate
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. (See
Bhagwan Singh v. State of M.P.1) The
principle to be followed by the appellate
court considering the appeal against the
judgment of acquittal is to interfere only
when there are compelling and substantial
reasons for doing so. If the impugned
judgment is clearly unreasonable, it is a
compelling reason for interference. These
aspects were highlighted by this Court in
Shivaji Sahabrao Bobade v. State of
Maharashtra2, Ramesh Babulal Doshi v.
State of Gujarat3 and Jaswant Singh v.
State of Haryana."

13. In the case of State of Goa vs.
Sanjay Thakran, reported in (2007) 3 SCC
755, in paragraph 15, the Hon'ble Apex
Court observed as under:

"15. Further, this Court has
observed in Ramesh Babulal Doshi v. State
of Gujarat: (SCC p. 229, para 7)
800 INDIAN LAW REPORTS ALLAHABAD SERIES

"7.... 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
appellate 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 appellate court
answers the above question in the negative
the order of acquittal is not to be disturbed.
Conversely, if the appellate 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." and in State
of Rajasthan v. Raja Ram8: (SCC pp. 18687, para 7) -

"7. 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
reappreciate
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. (See
Bhagwan Singh v. State of M.P.) The
principle to be followed by the appellate
court considering the appeal against the
judgment of acquittal is to interfere only
when there are compelling and substantial
reasons for doing so. If the impugned
judgment is clearly unreasonable, it is a
compelling reason for interference. These
aspects were highlighted by this Court in
Shivaji Sahabrao Bobade v. State of
Maharashtra 10, Ramesh Babulal Doshi v.
State of Gujarat and Jaswant Singh v. State
of Haryana11"."

14.

Further
in
the
case
of
Chandrappa and others vs. State of
Karnataka, reported in (2007) 4 S.C.C.
415, the Apex Court has observed as under:

"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
8 All. Kaju Singh Vs. State of U.P. & Anr.
801
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."

15. In the case of Ghurey Lal vs.
State of U.P., reported in (2008) 10 SCC
450, in paragraph 43 and 75, the Hon'ble
Apex Court observed as under:

"43. The earliest case that dealt with
the controversy in issue was Sheo Swarup v.
King Emperor. In this case, the ambit and scope
of the powers of the appellate court in dealing
with an appeal against acquittal has been aptly
a elucidated by the Privy Council. Lord Russell
writing the judgment has observed as under (at
AIR p. 230): (IA p. 404)

"... the High Court should and will
always give proper weight and consideration to
such matters as (1) the views of the trial Judge
as to the credibility of the witnesses; (2) the
presumption of innocence in favour of the
accused, a presumption certainly not weakened
by the fact that he b has been acquitted at his
trial; (3) the right of the accused to the benefit
of any doubt; and (4) the slowness of an
appellate court in disturbing a finding of fact
arrived at by a Judge who had the advantage of
seeing the witnesses."

The law succinctly crystallised in this
case has been consistently followed by this
Court. On proper analysis of the ratio and
findings of this case, it is revealed that the
findings of the trial court are based on the
fundamental
principles
of
the
criminal
jurisprudence. Presumption of innocence in
favour of the accused further gets reinforced
and strengthened by the acquittal of the trial
court. The appellate court undoubtedly has
wide powers of reappreciating and reevaluating the entire evidence but it would be
justified in interfering with the judgment of
acquittal only when the judgment of the d trial
court is palpably wrong, totally ill-founded or
wholly misconceived, based on erroneous
analysis of evidence and non-existent material,
demonstrably unsustainable or perverse.

...

75. On careful analysis of the
entire evidence on record, we are of the
view that the reasons given by the High
Court for reversing the judgment of
802 INDIAN LAW REPORTS ALLAHABAD SERIES
acquittal is unsustainable and contrary to
settled principles of law. The trial court has
the advantage of watching the demeanour
of the witnesses who have given evidence,
therefore, the appellate court should be
slow to interfere with the decisions of the
trial court. An acquittal by the trial court
should not be interfered with unless it is
totally perverse or wholly unsustainable."

16. In the case of Siddharth
Vashishtha Alias Manu Sharma vs. State
(NCT of Delhi), reported in (2010) 6 SCC
1, in paragraph 303(1), the Hon'ble Apex
Court observed as under:

"303.
Summary
of
our
conclusions:

(1) The appellate court has all the
necessary
powers
to
re-evaluate
the
evidence let in before the trial court as well
as the conclusions reached. It has a duty to
specify the compelling and substantial
reasons in case it reverses the order of
acquittal passed by the trial court. In the
case on hand, the High Court by adhering
to all the ingredients and by giving b
cogent and adequate reasons reversed the
order of acquittal. ..."

17. In the case of Babu vs. State of
Kerala, reported in (2010) 9 SCC 189, in
paragraph 12 and 19, the Hon'ble Apex
Court observed as under:

"12. This Court time and again has
laid down the guidelines for the High Court
to interfere with the judgment and order of
acquittal passed by the trial court. The
appellate court should not ordinarily set
aside a judgment of acquittal in a case where
two views are possible, though the view of the
appellate court may be the more probable
one. While dealing with a judgment of
acquittal, the appellate court has to consider
the entire evidence on record, so as to arrive
at a finding as to whether the views of the
trial court were perverse or otherwise
unsustainable. The appellate court is entitled
to consider whether in arriving at a finding of
fact, the trial court had failed to take into
consideration admissible evidence and/or
had taken into consideration the evidence
brought on record contrary to law. Similarly,
wrong placing of burden of proof may also be
a subject-matter of scrutiny by the appellate
court. (Vide Balak Ram v. State of U.P.1,
Shambhoo Missir v. State of Bihar2,
Shailendra Pratap v. State of U.P.3, Narendra
Singh v. State of M.P.4, Budh Singh v. State of
U.P.5, State of U.P. v. Ram Veer Singh6, S.
Rama Krishna v. S. Rami Reddy7, Arulvelu v.
State8, Perla Somasekhara Reddy v. State of
A.P.9 and Ram Singh v. State of H.P.10).

...

19. Thus, the law on the issue can
be summarised to the effect that in
exceptional cases where there are compelling
circumstances, and the judgment under
appeal is found to be perverse, the appellate
court can interfere with the order of acquittal.
The appellate court should bear in mind the
presumption of innocence of the accused and
further that the trial court's acquittal bolsters
the
presumption
of
his
innocence.
Interference in a routine manner where the
other view is possible should be avoided,
unless
there
are
good
reasons
for
interference."

18. In the case of Ganpat vs. State of
Haryana, reported in (2010) 12 SCC 59, in
paragraph 14 and 15, the Hon'ble Apex
Court observed as under:

"14.
The
only
point
for
consideration in these appeals is whether
8 All. Kaju Singh Vs. State of U.P. & Anr.
803
there is any ground for interference against
the order of acquittal by the High Court.
This Court has repeatedly laid down that
the first appellate court and the High Court
while dealing with an appeal is entitled and
obliged as well to scan through and if need
be reappreciate the entire evidence and
arrive at a conclusion one way or the other.

15. The following principles have
to be kept in mind by the appellate court
while dealing with appeals, particularly,
against an order of acquittal: (i) There is
no limitation on the part of the appellate
court to review the evidence upon which the
order of acquittal is founded and to come to
its own conclusion.

(ii) The appellate court can also
review the trial court's conclusion with
respect to both facts and law.

(iii) While dealing with the
appeal preferred by the State, it is the duty
of the appellate court to marshal the entire
evidence on record and by giving cogent
and adequate reasons may set aside the
judgment of acquittal.

(iv) An order of acquittal is to be
interfered with only when there are
"compelling and substantial reasons" for
doing
so.
If
the
order
is
"clearly
unreasonable", it is a compelling reason for
interference.

(v) When the trial court has
ignored the evidence or misread the
material
evidence
or
has
ignored
material
documents
like
dying
declaration/report of ballistic experts,
etc. the appellate court is competent to
reverse the decision of the trial court
depending on the materials placed. (Vide
Madan Lal v. State of J&K1, Ghurey Lal
v. State of U.P.2, Chandra Mohan Tiwari
v. State of M.P.3 and Jaswant Singh v.
State of Haryana4.)"

19. In the case of Sunil Kumar
Sambhudayal Gupta (Dr.) and others vs.
State of Maharashtra, reported in (2010)
13 SCC 657, in paragraph 38, 39 and 40,
the Hon'ble Apex Court observed as
under:

"38. It is a well-established
principle of law, consistently reiterated
and followed by this Court that while
dealing with a judgment of acquittal, an
appellate court must consider the entire
evidence on record, so as to arrive at a
finding as to whether the views of the
trial court were perverse or otherwise
unsustainable. Even though the appellate
court is entitled to consider, whether in
arriving at a finding of fact, the trial
court had placed the burden of proof
incorrectly
or
failed
to
take
into
consideration any admissible evidence
and/or had taken into consideration
evidence brought on record contrary to
law; the appellate court should not
ordinarily set aside a judgment of
acquittal in a case where two views are
possible, though the view of the appellate
court may be the more probable one. The
trial court which has the benefit of
watching the demeanour of the witnesses
is the best judge of the credibility of the
witnesses.

39. Every accused is presumed to
be innocent unless his guilt is proved. The
presumption of innocence is a human right.
Subject to the statutory exceptions, the said
principle forms the basis of criminal
jurisprudence in India. The nature of the
offence, its seriousness and gravity has to
be taken into consideration. The appellate
court should bear in mind the presumption
804 INDIAN LAW REPORTS ALLAHABAD SERIES
of innocence of the accused, and further,
that the trial court's acquittal bolsters the
presumption of his innocence. Interference
with the decision of the trial court in a
casual or cavalier manner where the other
view is possible should be avoided, unless
there
are
good
reasons
for
such
interference.

40. In exceptional cases where
there are compelling circumstances, and
the judgment under appeal is found to be
perverse, the appellate court can interfere
with the order of acquittal. The findings of
fact recorded by a court can be held to be
perverse if the findings have been arrived
at by ignoring or excluding material or by
taking
into
consideration
irrelevant/inadmissible material. A finding
may also be said to be perverse if it is
"against the weight of evidence", or if the
finding so outrageously defies logic as to
suffer from the vice of irrationality. (See
Balak Ram v. State of U.P.9, Shailendra
Pratap v. State of U.P.10, Budh Singh v.
State of U.P.11, S. Rama Krishna v. S. Rami
Reddy12, Arulvelu v. State 13, Ram Singh v.
State of H.P.14 and Babu v. State of
Kerala15.))"

20. In the case of State of U.P. vs.
Naresh, reported in (2011) 4 SCC 324, in
paragraph 33 and 34, the Hon'ble Apex
Court observed as under:

"33. We are fully aware of the fact
that we are entertaining the appeal against
the order of acquittal. Thus, the Court has
to scrutinise the facts of the case cautiously
and knowing the parameters fixed by this
Court in this regard.

34. Every accused is presumed to
be innocent unless his The presumption of
innocence is a human right subject to the
statutory exceptions. The said principle
forms the basis of criminal jurisprudence in
India. The law in this regard is well settled
that while dealing with a judgment of
acquittal, an appellate court must consider
the entire evidence on record so as to
arrive at a finding as to whether the views
of the trial court were perverse or
otherwise unsustainable. An appellate
court must also consider whether the court
below has placed the burden of proof
incorrectly
or
failed
to
take
into
consideration any admissible evidence or
had taken into consideration evidence
brought on record contrary to law? In
exceptional cases, whether there are
compelling circumstances and the judgment
in appeal is found to be perverse, the
appellate court can interfere with the order
of acquittal. So, in order to warrant
interference by the appellate court, a
finding of fact recorded by the court below
must be outweighed evidence or to suffer
from the vice of guilt is proved. such
finding if outrageously defies logic as
irrationality. [Vide Babu v. State of Keralall
and Sunil Kumar Sambhudayal Gupta
(Dr.)8.]"

21. In the case of State of M.P. vs.
Ramesh, reported in (2011) 4 SCC 786, in
paragraph 15, the Hon'ble Apex Court
observed as under:

"15. We are fully alive of the fact
that we are dealing with an appeal against
acquittal and in the absence of perversity in
the said judgment and order, interference
by this Court exercising its extraordinary
jurisdiction, is not warranted. It is settled
proposition of law that the appellate court
being the final court of fact is fully
competent to reappreciate, reconsider and
review the evidence and take its own
decision. Law does not prescribe any
8 All. Kaju Singh Vs. State of U.P. & Anr.
805
limitation, restriction or condition on
exercise of such power and the appellate
court is free to arrive at its own conclusion
keeping in mind that acquittal provides for
presumption in favour of the accused. The
presumption of innocence is available to
the person and in criminal jurisprudence
every person is presumed to be innocent
unless he is proved guilty by the competent
court and there can be no quarrel to the
said
legal
proposition
that
if
two
reasonable views are possible on the basis
of the evidence on record, the appellate
court should not disturb the findings of
acquittal."

22. 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:

"13. 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.