# Lakhan @ Babblu v. State of U.P

- **Citation:** (2022) 8 ILRA 854
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-04
- **Case number:** Criminal Appeal No. 5765 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakhan-babblu-v-state-of-u-p-48949
- **Pages:** 14

## Headnote

Criminal Law- Code of Criminal Procedure,
1973 - Section 378 (1) - 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-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-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-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.

Settled law that the presumption of innocence
of the accused further stands fortified by his
acquittal and the appellate court should not
disturb the finding of acquittal only because two
views are possible unless the judgement of
acquittal by the trial court is wholly perverse.

Indian Penal Code, 1860- Sections 302 &
304 (Part- I)- Evidence on record goes to
show that it is the case of prosecution in
First Information Report that accusedLakhan @ Babblu made a single fire only,
that too by putting barrel of the weapon
on the left arm of the deceased. Ante
mortem injuries in post-mortem report go
to show that bullet made entry wound on
the left arm of the deceased and made
exit wound also and then it entered the
chest of the deceased. No second fire was
made, hence, it appears that appellantLakhan @ Babblu had no intention to
commit the murder of deceased but he
intentionally caused such bodily injury as
was likely to cause death-It appears that
the death caused by the accused was not
intended but he intentionally caused such
bodily injury, which was likely to cause
death, therefore, the instant case false
under the Exceptions 4 to Section 300
IPC-Appellant-Lakhan @ Babblu is held
guilty for commission of the offence under
Section 304 (Part-I) IPC instead of
offence under Section 302 IPC.

As the present case is one of single shot, aimed at
the left arm but piercing the chest of the
deceased, hence it is apparent that the accused
had no intention of committing the murder of the
deceased but he committed such bodily injury
intentionally that was likely to cause death, hence
the present case will fall within the purview of
Section 304 (Part-I) IPC, instead of Section 302
IPC. ( Para 23, 28, 32, 38, 39, 40, 41)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case Law relied upon:-

## Text

_Characters 0–39,747 of 45,099. This is a partial read: ask again with offset=39747 for what follows._

854 INDIAN LAW REPORTS ALLAHABAD SERIES

In his statement recorded under
Section 313 Cr.P.C. he has not given any
reply to certain questions and further states
of his being guilty and then in addition
states of the court taking a lenient view in
the sentence as he is in jail since long time.
Law as it stands undisputed is that the
statement under Section 313 Cr.P.C. is not
evidence. It is not a substantive peace of
evidence. It can be used for appreciating
evidence led by the prosecution to accept or
reject it. However, it cannot be said to be a
substitute for the prosecution evidence. It is
only the version or stand of the accused by
way of explanation to a question put by the
prosecution
regarding
incriminating
material appearing against him which are
brought to his notice and he is given a
chance to reply them. The statement is not
made on oath. Yet it can be taken into
consideration at the trial against an accused
for arriving at his guilty or otherwise but
the prosecution has to at the very first
instance prove its case beyond reasonable
doubts against him and then his explanation
or
answer
to
such
incriminating
circumstance should be looked into. It
cannot be said that mere stating of being
guilty in the statement under Section 313
Cr.P.C. will end the issue and would lead
the route only to the guilt of the accused
without prosecution establishing its case
beyond reasonable doubt against him
through cogent, reliable and admissible
evidence.

17. In the present case, there is no
other witness examined by the prosecution.
Although, the quality of evidence is needed
in a case and not the quantity. In the
present case, only one witness was
examined who was a member of the said
police team. He has deposed for each and
everything of the case. The corroboration
of the use of the weapon is not present. The
weapon was not sent for expert analysis.
The case is a no injury case. It cannot be
said that merely by pleading guilty in the
statement under Section 313 Cr.P.C. the
accused can be pinned down and a
conviction can be recorded against him.

18. Looking to the facts and
circumstances of the case and in view of
the above discussion as done, the accusedappellant deserves to be extended the
benefit of doubt and as such the present
appeal is allowed. The appellant is
acquitted of the charges levelled against
him. The appellant if is in jail, shall be
released forthwith.

19. Office is directed to transmit the
lower court records along with the copy of
this judgment to the trial court forthwith for
its compliance and necessary action.

20. Sri Satya Prakash Rathor, learned
Amicus Curiae who was appointed Amicus
Curiae vide order dated 04.08.2022 passed
by this Court assisted the Court in deciding
the appeal.

21. Office is directed to pay a sum of
Rs. 8,000/- for assistance of the Court to
learned Amicus Curiae within two months
from today.
----------
(2022) 8 ILRA 854
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2022

BEFORE

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

Criminal Appeal No. 5765 of 2011
WITH
Government Appeal No. 6752 of 2011
8 All. Lakhan @ Babblu Vs. State of U.P.
855
Lakhan @ Babblu ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Vivek Kumar Singh, Sri Ajay Kumar
Singh, Sri Atul Tej Kalshrestha, Ms.
Neeharika Singh, Sri Vinay Singh Khokher,
Sri Vivek Dhaka

Counsel for the Opposite Party:
Govt. Advocate, Sri Niraj Tripathi, Sri Raj
Kumar Dhama, Sri Rai Sahab Yadav

Criminal Law- Code of Criminal Procedure,
1973 - Section 378 (1) - 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-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-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-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.

Settled law that the presumption of innocence
of the accused further stands fortified by his
acquittal and the appellate court should not
disturb the finding of acquittal only because two
views are possible unless the judgement of
acquittal by the trial court is wholly perverse.

Indian Penal Code, 1860- Sections 302 &
304 (Part- I)- Evidence on record goes to
show that it is the case of prosecution in
First Information Report that accusedLakhan @ Babblu made a single fire only,
that too by putting barrel of the weapon
on the left arm of the deceased. Ante
mortem injuries in post-mortem report go
to show that bullet made entry wound on
the left arm of the deceased and made
exit wound also and then it entered the
chest of the deceased. No second fire was
made, hence, it appears that appellantLakhan @ Babblu had no intention to
commit the murder of deceased but he
intentionally caused such bodily injury as
was likely to cause death-It appears that
the death caused by the accused was not
intended but he intentionally caused such
bodily injury, which was likely to cause
death, therefore, the instant case false
under the Exceptions 4 to Section 300
IPC-Appellant-Lakhan @ Babblu is held
guilty for commission of the offence under
Section 304 (Part-I) IPC instead of
offence under Section 302 IPC.

As the present case is one of single shot, aimed at
the left arm but piercing the chest of the
deceased, hence it is apparent that the accused
had no intention of committing the murder of the
deceased but he committed such bodily injury
intentionally that was likely to cause death, hence
the present case will fall within the purview of
Section 304 (Part-I) IPC, instead of Section 302
IPC. ( Para 23, 28, 32, 38, 39, 40, 41)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case Law 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 M.P.,
2007 A.I.R. S.C.W. 5589
856 INDIAN LAW REPORTS ALLAHABAD SERIES
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

13. Samsul Haque Vs St. of Assam, (2019) 18
SCC 161

14. Ram Swaroop & ors. Vs St. of Raj, 2004 (0)
Supreme (SC) 314

15. Tukaram & ors. Vs St. of Maha., (2011) 4
SCC 250

16. B.N. Kavatakar & anr. Vs St. of Kar., 1994
SUPP (1) SCC 304

17. Rajendra @ Rajappa & ors. Vs St. of Kar,
(2021) 6 SCC 178 (cited)

18. Phool Singh & anr. Vs St. of U.P., 2022 (0)
Supreme (All) 377 (cited)

19. Gulab Vs St. of U.P., 2021(12) ADJ 271
(SC)(cited)
(Delivered by Hon'ble Ajai Tyagi, J. )

1. The first appeal (Criminal Appeal
No. 5765 of 2011) has been preferred by
the appellant-Lakhan @ Babblu against the
judgment and order dated 19.08.2011,
passed by learned Additional Sessions
Judge (Special), Baghpat in Session Trail
No. 306 of 2009 (State of UP vs. Lakhan @
Babblu and Others), arising out of Case
Crime No.192 of 2009, under Section 302
Indian Penal Code (IPC), Police Station-
Khekhara, District Baghpat whereby the
appellant is convicted and sentenced for the
offence under Section 302 IPC for life
imprisonment with a fine of Rs.10,000/-
and in default of payment of fine, further
imprisonment for two months.

2. The appeal (Government Appeal
No. 6752 of 2011) has been preferred by
the State of U.P. against the same judgment
and order dated 19.08.2011, passed by
learned
Additional
Sessions
Judge
(Special), Baghpat in Session Trail No. 306
of 2009 (State of UP vs. Lakhan @ Babblu
and Others), arising out of Case Crime
No.192 of 2009, Police Station- Khekhara,
District Baghpat whereby the accused
persons Jagat Singh, Ramesh and Suresh @
Lala were acquitted for the offence under
Sections 307, 504 I.P.C. and Section 7 of
Criminal Law Amendment Act and in
Session Trial No.365 of 2009 (State of U.P.
Vs. Suresh @ Lala), arising out of Case
Crime No.196 of 2009, Police Station
Khekhara, District Baghpat whereby the
accused-Suresh @ Lala was acquitted for
the offence under Section 25 of Arms Act,
1959.

3. Brief facts of the case giving rise to
this appeal are that a First Information
Report was registered at Police Station
Khekhara, District Baghpat, in which the
complainant alleged that on 14.05.2009 at
about 10:00 AM, the informant informed
that Krishna Pal, his wife Rajesh, younger
brother-Indrapal and his nephew-Praveen
were uprooting the bricks of their old
house. At that time, accused Lakhan @
Babblu, Jagat Singh, Suresh and Ramesh
came there, holding the country made pistol
in their hands and started abusing the
person who were present. Jagat Singh,
Suresh and Ramesh caught hold Rajneesh
8 All. Lakhan @ Babblu Vs. State of U.P.
857
in their arms and Lakhan @ Babblu fired at
Rajneesh from close range, rather putting
the barrel of Tamancha on his left upper
arm. Rajneesh fell on the ground and died.

4. As per the informant, they shouted
and due to that all the four accused persons
fired towards them also and they saved
their lives by hiding behind the wall. The
First Information Report was registered
immediately within 40 minutes of the
occurrence. The investigation was taken up
by the Investigating Officer, during the
course of investigation, I.O. recorded the
statement of witnesses, collected the
sample of plain and blood stained earth.
Inquest report of the deceased was
prepared. After that, post-mortem was
conducted and its report was prepared by
the doctor. Investigating Officer arrested
the accused persons. At the time of arrest, a
country made pistol of 0.315 bore was
recovered from the possession of accused
Suresh and its recovery memo was
prepared.
After
completion
of
investigation, a charge sheet was filed
against Lakhan @ Babblu, Jagat, Suresh
and Ramesh under Sections 302, 307, 504
I.P.C. another charge sheet was also
submitted against the accused-Suresh under
Section 25 of Arms Act,1959.

5. Learned Trial Judge framed the
charges against the aforesaid accused
persons under Sections 302, 307, 504 I.P.C.
and Section 7 of Criminal Law Amendment
Act, another charge was also framed under
Section 25 of Arms Act against the
accused-Suresh. Accused persons denied
the charges and claimed to be tried.

6. Prosecution examined following
witnesses:

1.
Krishna Pal
P.W.-1
2.
Praveen
P.W.-2
3.
Smt. Rajesh
P.W.-3
4.
Satya
Narayan
Dahiya
P.W.-4
5.
Dr. Ashok Kumar P.W.-5
6.
Laxi Narayan
P.W.-6
7.
Vindhyachal
Tiwari
P.W.-7
8.
Vinod
Kumar
Tyagi
P.W.-8
9.
Anil
P.W.-9
10. Khadak Singh
P.W.-10

7. Apart from aforesaid witnesses,
prosecution
submitted
following
documentary evidence, which was proved
by leading the evidence:

1.
FIR
Ex.ka-
2.
Written report
Ex.ka-
3.
Recovery memo of
arrest of accused
Ex.ka-
4.
Recovery memo of
plain earth
Ex.ka-
5.
Recovery memo of
blood stained earth
Ex.ka-
6.
Post-mortem report Ex.ka-
7.
Panchayatnama
Ex.ka-
8.
Charge sheet
Ex.ka-
9.
Order of District
Magistrate
Ex.ka-
10.
Site plan with index Ex.ka-

8. After completion of prosecution
evidence, the statement of accused persons
were recorded under Section 313 of
858 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Procedure Code,1973(Cr.P.C.), in
which they denied their involvement in the
crime and told that false evidence was led
against them. The accused persons have not
examined any witness in defence.

9. Heard Mr. Vivek Dhaka, learned
counsel for the appellant, Mr. Raj Kumar
Dhama, learned counsel for the original
complainant and Mr. N.K. Srivastava,
learned A.G.A. for the State. Perused the
record and Paperbook.

10. Learned counsel for the accusedappellant, Lakhan @ Babblu made his
submissions challenging the conviction. It
is submitted by the learned counsel and
appellant that in this case, learned Trial
Court has acquitted three accused persons
on the same set of evidence while only
Lakhan @ Babblu was convicted, which is
bad in eye of law and requires interference
by this court. It is next contended that all
the witnesses of fact are of the same family,
there was no independent public witness of
the occurrence and no undue reliance could
not be placed on the evidence of interested
witnesses. Deceased was having a long
criminal history and he was a member of a
gang, on whose arrest reward of amount of
Rs.50,000/- was declared. The deceased
was killed by someone else and on the
basis
of
previous
enmity,
accusedappellant, Lakhan @ Babblu has been
implicated falsely.

11. Learned counsel for the accusedappellant
has
further
submitted
that
occurrence of this case had taken place at
10:00 AM and First Information Report
was lodged at 10:40 AM while the distance
of police station from the place of
occurrence is about 4 kilometres. It is also
submitted that no FIR could have been
registered so promptly unless the false
implication of the named accused persons
is in the mind of informant. There are
several improvements in the evidence of
P.W.-1, P.W.-2 and P.W.-3. Place of
occurrence is also not fixed by the
prosecution because P.W.-1 and P.W.-3
have deposed that deceased fell on the spot
where he was shot while P.W.-2 says that
deceased ran from the place after sustaining
bullet injuries and fell in the ''Gher' of
Charan Singh, which is 10-15 steps away
from the place of firing.

12. It is further submitted by counsel
for appellant that plain and blood stained
earth was collected by the I.O. but it is not
mentioned in the recovery memo from
which place or where the earth was
collected. It is also submitted that acquitted
accused persons were rightly acquitted by
the learned trial court because their
presence was not proved. It is further
argued that as per the prosecution case and
testimony of so called eye witnesses, they
were also fired at them by the accused
persons but no one sustained any injury,
which goes to show that the witnesses were
not on the spot and they had not seen the
occurrence or the accused were named in
FIR due to previous enmity.

13. With regard to the medical
evidence, learned counsel for the accusedappellant
and
acquitted
accused
has
submitted that according to the version of
the F.I.R. only a single fire was shot by the
accused while ante mortem injuries in postmortem go to show that there were two
entry wounds of fire arm on the body
and one exit wound, which was not
possible by one fire. Learned counsel for
the
accused-appellant
and
acquitted
accused drew our attention to the recovery
memo and country made pistol, said to be
recovered from the possession of the
8 All. Lakhan @ Babblu Vs. State of U.P.
859
accused Suresh, who had admitted to the
I.O. that he had fired two round at deceased
while as per the First Information Report
only one gun fire was mentioned by placing
the barrel on the arm of the deceased and
post-mortem report shows that the wound
was on left hand of the deceased.

14. With regard to the acquitted
accused persons, learned counsel for the
accused-respondents has submitted that
they were rightly acquitted by the learned
trial court because their presence on the
spot was doubtful. According to the
prosecution version, the acquitted accused
had also fired at the witnesses but there is
no injury to anyone, nor any other weapon
is recovered. It is also submitted that
catching hold of the deceased by three
persons was also not possible. Gun fire
were opened by all accused on persons
present.

15. After some length of arguments,
learned counsel for the convicted accusedappellant has submitted that if prosecution
case is believed then also it is version of
F.I.R. that accused-Lakhan @ Babblu fired
at the deceased by putting the barrel of
Tamancha on his body, which was left
hand, as is evident from ante mortem
injuries. Accidently the bullet pierced into
the heart of the deceased by making exit
wound after entering the hand. It shows
that accused Lakhan @ Babblu had no
intention to commit the murder of the
deceased because if it had been the
intention then he could have fired on chest
directly. Hence, this case cannot go beyond
the scope of Section 304 of I.P.C.

16. Mr. Raj Kumar Dhama, learned
counsel for the informant and learned
A.G.A. for the State has vehemently
objected the submissions of learned counsel
for the accused-appellant and submitted
that fire-arm was recovered from the
possession of accused Lakhan @ Babblu.
The Investigating Officer, P.W.-7 has
deposed that S.I. Laxmi Narayan copied the
recovery memo of weapon, recovered from
the possession of accused-Lakhan @
Babblu in C.D. It is further submitted that
weapon was also recovered from the
possession of acquitted -accused, Suresh
and role of firing is assigned to all the
accused persons. Hence, two gun shots
cannot be ruled out. It is further submitted
that acquitted accused persons also fired
towards the family members of the
deceased, which is the version of F.I.R. and
all the witnesses of fact have deposed so in
their testimony.

17. Learned counsel for the informant
has also submitted that specific role of
catching hold was assigned to acquitted
accused persons and there was exhortation
on their part also. Learned trial court did
not consider the evidence in its right
perspective and wrongly acquitted the
accused
persons.
In
support
of
his
arguments,
learned
counsel
for
the
complainant has placed reliance on the
judgments of Apex Court in Rajendra
Alias Rajappa and Others Vs. State of
Karnataka, (2021) 6 Supreme Court Cases
178, (2) Phool Singh and Another Vs.
State of U.P., 2022 (0) Supreme (All) 377
and (3) Gulab Vs. State of U.P., 2021(12)
ADJ 271 (SC). It is contended that the
acquittal is bad and is based on perverse
finding.

18. As far as the acquittal of accused
persons Jagat Singh, Suresh and Ramesh
are concerned, learned trial court has held
that P.W.-1, Krishna Pal, P.W.-3 Smt.
Rajesh are parents of the deceased and
P.W.-2 Praveen is cousin brother of the
860 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased and they are interested witnesses
and
hence
then
evidence
must
be
scrutinised with care. Learned trial court
has
scrutinised
their
testimony
meticulously
and
cautiously.
Their
testimony was not found,wholly reliable.
There are many contradictions in their
evidence which go to the root of the case.

19. We have also found various
improvements
in
the
testimony
of
prosecution evidence before the trial court.
It is also very hard to believe that despite
there being firing by accused persons on
willingness but no one has sustained any
injury and on analysing the evidence from
the angle that three acquitted accused
persons caught hold of the deceased
simultaneously then also there was every
possibility of sustaining injury by them
also, which has not come in ocular version
of prosecution.

20. 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.

21. 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
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."

22.

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
8 All. Lakhan @ Babblu Vs. State of U.P.
861
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."

23. 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.

24. 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
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 reappreciate 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."

25. 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.

26. 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
862 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

27. 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
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]"

28. 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."

29. 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
8 All. Lakhan @ Babblu Vs. State of U.P.
863
kept in mind that acquittal results into
double presumption of innocence."

30. 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 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."

31. 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
864 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

32. 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 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.

33. The Apex Court has held in Ram
Swaroop
and
Others
Vs.
State
of
Rajasthan, 2004 (0) Supreme (SC) 314,
that if the view taken by the trial court
while acquitting the accused was a
possible, reasonable view of on basis of
sifting the evidence, the High Court ought
not to interfere with such acquittal merely
because it was possible to take contrary
view. Paragraph of the said judgment is
relevant, which is quoted here:-

"Having regard to the findings
recorded by the trial court and having gone
through the evidence on record, we are of
the view that this was not a case in which
the High Court ought to have interfered
with the order of acquittal passed by the
trial court. It is well settled that if two
views are reasonably possible on the basis
of the evidence on record, the view which
favours the accused must be preferred.
Similarly it is well settled that if the view
taken by the trial court while acquitting the
accused is a possible, reasonable view of
the evidence on record, the High Court
ought not to interfere with such an order of
acquittal merely because it is possible to
take the contrary view. It is not as if the
power of the High Court in any way is
curtailed in appreciating the evidence on
record in an appeal against acquittal, but
having done so, the High Court ought not
to interfere with an order of acquittal if the
view taken by the trial court is also a
reasonable view of the evidence on record
and the findings recorded by the trial court
are not manifestly erroneous, contrary to
the evidence on record or perverse."

34. Considering the evidence of the
witnesses and also considering the medical
8 All. Lakhan @ Babblu Vs. State of U.P.
865
evidence including post mortem report,
there is no doubt left in our mind about the
guilt of the present appellant.

35. However, the question which falls
for our consideration is whether, on
reappraisal of the peculiar facts and
circumstances of the case, the conviction of
the appellant under Section 302 of I.P.C. of
the Indian Penal Code should be upheld or
the conviction deserves to be converted
under Section 304 Part-I or Part-II of the
Indian Penal Code. It would be relevant to
refer Section 299 of the Indian Penal Code,
which read as under:

"299.
Culpable
homicide:
Whoever causes death by doing an act with
the intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide."

36. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.C. The following comparative table will
be helpful in appreciating the points of
distinction between the two offences.

Section 299
Section 300
A
person
commits
culpable homicide if
the act by which the
Subject to certain
exceptions
culpable homicide
death is caused is
done-
is murder if the act
by which the death
is caused is done.

INTENTION

(a) with the intention
of causing death; or
(1)
with
the
intention
of
causing death; or
(b) with the intention
of causing such bodily
injury as is likely to
cause death; or

(2)
with
the
intention
of
causing
such
bodily injury as the
offender knows to
be likely tocause
the death of the
person to whom
the harm is caused;
KNOWLEDGE
KNOWLEDGE
(c)
with
the
knowledge that the act
is
likely
to
cause
death.
(4)
with
the
knowledge that the
act
is
so
immediately
dangerous

that it must in
all
probability
cause death or such
bodily injury as is
likely
to
cause
death, and without
any
excuse
for
incurring the risk
of causing death or
such injury as is
mentioned above.

37 . Dr. Ashok Kumar, P.W.-5, had
conducted the post-mortem of the body of
the deceased. In post-mortem report, the
following ante mortem injuries were
found:-
866 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) A gun shot wound of entry
size 1.5 X 1.5 cm, present on posterior
lateral aspect of left arm, 16.0 cm below
top of shoulder, blackening present in area
of 2.0 cm X 2.0 cm around wound and
tattooing present in area 28.0 cm X 14.0 cm
around.

(ii) A exit wound size 2.25 cm X
1.0 cm inner side of left arm and 4.0 cm
below the axilla and correspond to injury
no.i.

(iii) A gun shot wound of entry
size 2.75 cm X 1.5 cm present on lateral
aspect of left chest and 12.0 cm away from
left nipple at 3.0 O' Clock position. This
injury correspond to injury no.ii in
continuation.

38. Evidence on record goes to show
that it is the case of prosecution in First
Information Report that accused-Lakhan @
Babblu made a single fire only, that too by
putting barrel of the weapon on the left arm
of the deceased. Ante mortem injuries in
post-mortem report go to show that bullet
made entry wound on the left arm of the
deceased and made exit wound also and
then it entered the chest of the deceased.
No second fire was made, hence, it appears
that appellant-Lakhan @ Babblu had no
intention to commit the murder of deceased
but he intentionally caused such bodily
injury as was likely to cause death.

39.