# Mahendra Kumar v. State of U.P. Opp. Party

- **Citation:** (2022) 10 ILRA 918
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-30
- **Case number:** Criminal Appeal No. 6058 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-kumar-v-state-of-u-p-opp-party-47884
- **Pages:** 12

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 498 A- Section 304B- Dowry
Prohibition
Act-
Section
4-
Indian
Evidence Act, 1872- Section 3- So far
Section 498A IPC is concerned, the
accused was sentenced to two years
rigorous imprisonment and fine of Rs.
5,000/-, under Section 304B IPC, he was
sentenced
to
ten
years
rigorous
imprisonment and under Section 4 of D.P.
Act, he was sentenced to one year
imprisonment and fine of Rs. 1,000/- All
these sentences were to run concurrently.
Accused is under trial convict having
incarceration
of
5
years
and
more,
therefore, it can be safely said that he has
undergone the punishment under section
498A IPC read with section 4 of the Dowry
Prohibition Act- Evidence of P.W. 1 and
P.W. 2 corroborates each other- It cannot
be said that the evidence of the witnesses
should not believed because they are
family members of the deceased. There is
no need for any independent witness to be
examined. There is no delay in lodging the
FIR- The death in fact was in an unnatural
condition- Sentence of 10 years is reduced
to 7 years fine and default sentence
maintained.

Where the testimony of the prosecution
witnesses corroborates each other and appears
to be truthful then there is no need for
examination of any independent witnesses,
however as the accused has already served out
the sentence u/s 498A and u/s 4 of the D.P Act
and half of the sentence awarded u/s 304B of
the IPC, hence sentence reduced to 7 years.
(Para 11, 16, 19)

Criminal Appeal partly allowed. (E-3)

Case Law/Judgements relied upon:-

Trimukh Maruti Kirken Vs St. of Mah. 2006 (3)
1426 SC

Code of Criminal Procedure, 1973-
Section 378- Appeal against acquittal-
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 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.

The appellate court should not disturb the
finding of acquittal recorded by the trial
court as the presumption of innocence in
favour of the accused stands fortified by his
acquittal and the appellate court can also
not
substitute
its
findings
unless
the
judgement of the trial court is wholly
perverse or illegal. (Para 10,15,19)

Criminal Appeal rejected. (E-3)

Case Law/Judgements relied upon:-

## Text

918 INDIAN LAW REPORTS ALLAHABAD SERIES
is the direct and immediate cause of the
discovery.

31. The testimony of P.W.-3 having
been found to be unreliable, doubtful and
fails to inspire confidence of the Court, in
the circumstances the prosecution case
stands
demolished.
The
independent
witnesses P.W.-1 and P.W.-2 claiming to
have witnessed the incident have turned
hostile. They decline their presence on the
spot. Ram Avtar, before whose shop the
incident is alleged to have occurred was not
examined.
Chabinath,
scribe
of
the
complaint, visited P.W.-3 at the hospital and
was informed of the incident by P.W.-3 was
not examined by the prosecution to support
the version of P.W.-3 that the injured was in
a state of consciousness and was in a
position to speak. The police personnel that
carried the injured and admitted him to the
hospital was not examined. It is not the
case of the prosecution that initially FIR
was lodged under Section 307 IPC. The
medical officer/staff of the hospital was not
examined, nor, their statement taken of the
I.O.

32. Having regard to the postmortem
report and the testimony of the doctor P.W.-
5 it appears in all probability the injured
was not in a position to speak. The FSL
report was not produced by the I.O. In this
backdrop, the trial court committed gross
error in resting the conviction on the
disclosure statement of the accused, that
they committed the crime with the
recovered weapon which is not admissible
in evidence. The recovery of the alleged
assault weapon has not been connected
with the commission of the crime by the
prosecution.

33. Having regard to the facts and
circumstances of the case we are unable to
persuade ourselves to uphold the impugned
judgment and order of conviction and
sentence, therefore, appeal is liable to be
allowed and the impugned judgment and
order of conviction and sentence is liable to
be set aside.

34.

The
criminal
appeal
is,
accordingly,
allowed.
The
impugned
judgment and order of conviction and
sentence is set aside. The appellants are
directed to be released forthwith, if not
required in any other offence.

34. The appellants on being released
the mandate of Section 437-A Cr.P.C. to be
complied.

35. Let the lower court record be sent
back to court below along with a copy of
this judgment, for ascertaining necessary
compliance.

36. It is provided that fees assessed at
Rs. 20,000/- shall be released in favour of
Amicus Curiae.
----------
(2022) 10 ILRA 918
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 6058 of 2018
with Criminal Misc. Appl. (Leave to Appeal)(D)
No. 108 of 2018

Mahendra Kumar ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Raj Karan Patel, Sri Ram Milan Mishra
10 All. Mahendra Kumar Vs. State of U.P.
919
Counsel for the Respondents:
G.A., Sri Vikas Tripathi

Criminal Law- Indian Penal Code, 1860-
Section 498 A- Section 304B- Dowry
Prohibition
Act-
Section
4-
Indian
Evidence Act, 1872- Section 3- So far
Section 498A IPC is concerned, the
accused was sentenced to two years
rigorous imprisonment and fine of Rs.
5,000/-, under Section 304B IPC, he was
sentenced
to
ten
years
rigorous
imprisonment and under Section 4 of D.P.
Act, he was sentenced to one year
imprisonment and fine of Rs. 1,000/- All
these sentences were to run concurrently.
Accused is under trial convict having
incarceration
of
5
years
and
more,
therefore, it can be safely said that he has
undergone the punishment under section
498A IPC read with section 4 of the Dowry
Prohibition Act- Evidence of P.W. 1 and
P.W. 2 corroborates each other- It cannot
be said that the evidence of the witnesses
should not believed because they are
family members of the deceased. There is
no need for any independent witness to be
examined. There is no delay in lodging the
FIR- The death in fact was in an unnatural
condition- Sentence of 10 years is reduced
to 7 years fine and default sentence
maintained.

Where the testimony of the prosecution
witnesses corroborates each other and appears
to be truthful then there is no need for
examination of any independent witnesses,
however as the accused has already served out
the sentence u/s 498A and u/s 4 of the D.P Act
and half of the sentence awarded u/s 304B of
the IPC, hence sentence reduced to 7 years.
(Para 11, 16, 19)

Criminal Appeal partly allowed. (E-3)

Case Law/Judgements relied upon:-

Trimukh Maruti Kirken Vs St. of Mah. 2006 (3)
1426 SC

Code of Criminal Procedure, 1973-
Section 378- Appeal against acquittal-
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 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.

The appellate court should not disturb the
finding of acquittal recorded by the trial
court as the presumption of innocence in
favour of the accused stands fortified by his
acquittal and the appellate court can also
not
substitute
its
findings
unless
the
judgement of the trial court is wholly
perverse or illegal. (Para 10,15,19)

Criminal Appeal rejected. (E-3)

Case Law/Judgements relied upon:-

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

2. Chandrappa Vs St. of Kar., (2007) 4 SCC 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
AIR SCW 5553

5. Girja Prasad (dead) by l.r.s Vs St. of M.P,
2007 AIR SCW 5589

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

7. Mookkiah & anr. Vs St. rep. by the Insptr. of
Police, T.N, AIR 2013 SC 321
920 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Nalin
Kumar Srivastava, J.)

1. Heard Sri Ram Milan Mishra,
learned counsel for the appellant, Sri Vikas
Goswami, learned AGA for the State and
Sri Vikas Tripathi, learned counsel for
respondent informant and perused the
record. There is a connected defective
criminal appeal which is of the year 2018,
preferred by the original informant. This
appeal is also heard along with the present
appeal.

3. Appeal No. 6058 of 2018 has been
preferred by the appellant Mahendra
Kumar against the judgment and order
dated 25.09.2018 passed by Additional
Session Judge/FTC (Crime against Women)
Jaunpur, in S.T. No. 306 OF 2015, arising
out of Case Crime No. 262 of 2015, under
Sections 498A, 304B IPC and 3⁄4 D.P. Act
(State vs. Mahendra Kumar and another),
P.S. Sujanganj, District Jaunpur, whereby
the appellant is convicted and sentenced for
the commission of offence under Section
498A IPC, for 2 years R.I. and fine of Rs.
5,000/- and in default of payment of fine
for two months additional imprisonment to
the
accussed
appellant
and
further
sentincing under Section 304B IPC for 10
years R.I., under section 4 D.P. Act for one
year imprisonment and fine of Rs. 1,000/-
and in default of payment of fine one
month additional imprisonment and all the
sentences shall run concurrently. .

4. The brief facts as revealed from the
record and proceedings are that the incident
occurred on 16th May, 2015 namely within
one year of the marriage, as the marriage
took
place
on
08.06.2014
between
appellant
Mahendra
Kumar
and
the
deceased. The father of the deceaed lodged
the FIR alleging therein that his daughter
was being harassed for not bringing proper
dowry. It was alleged that her in-laws
demanded a sum of Rs. 1,00,000/- (Rs. One
lakh) and a gold chain. Immediately before
the death for harassing her she has also
been physically tortured. After having
knowledge of this atrocity of the in-laws,
the complainant along with his family
members went to house of the in-laws of
his daughter and showed their inability to
pay a sum of Rs. 1,00,000/- and a gold
chain, but they were threatened with dire
consequences. On 16.05.2015 in the night,
the accused persons/in-laws of his daughter
along with her husband committed murder
of the deceased and hanged her. The
informant or his family members were not
communicated about anything regarding
the death of the deceased. The informant
got the information about the incident from
village people. The first information report
was lodged by the complainant / father of
the
deceased
on
27.05.2015.
The
investigation
was
conducted
by
investigating officer and after recording
statement of the witnesses under section
161 Cr.P.C. and preparing the punchanama,
and after the post mortem of the deceased,
conducted by Dr. Ashutosh Pandey who
opined that the cause of death was
Asphyxia as a result of ante-mortem
hanging,
the
Investigating
Officer
submitted the charge sheet against the
accused Mahendra Kumar and Champa
Devi.

5. The learned magistrate before
whom charge sheet was laid, as the
offences were triable by court of sessions,
committed the case to the court of
sessions, The Additional Sessions Judge
framed the charges on 04.07.2016 and
accused persons denied the charges and
claimed to be tried.
10 All. Mahendra Kumar Vs. State of U.P.
921

6.

The
prosecution
examined
following witnesses:-

1.
Ram Awadh Patel
P.W.1
2.
Ramdeen Patel
P.W.2
3.
Dr. Ashutosh Pandey
P.W. 3
4.
Arvind Kumar Mishra
P.W. 4
5.
Deep Narayan Singh
P.W. 5
6.
Surya Nath Singh
P.W. 6

7. Apart from aforesaid witnesses
prosecution
submitted
following
documentary
evidence
which
were
exhibited as they were proved by leading
oral evidence:-

1.
Tehrir
Ex. Ka. 1
2.
Panchayatnama
Ex. Ka. 2
3.
Postmortem Report Ex. Ka. 3
4.
Photonas
Ex. Ka. 4
5.
Police papers
Ex. Ka. 5
6.
Namunamohar
Ex Ka. 6
7.
Letter to Pratisar
Nirikshak
Ex. Ka 7
8.
Letter CMO
Ex, Ka 8
9.
Nakshanajari
Ex. Ka 9
10.
Charge-sheet
Ex. Ka 10
11.
FIR
Ex. Ka 11
12.
Carbon
copy
of
GD
Ex. Ka 12

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

9. The accused Mahendra Kumar has
been convicted by the trial court whereas
acquittal order for accused Champa Devi
has been passed.

10. The learned court below returned
the
finding
of
guilt
and
sentenced
Mahendra Kumar to undergo rigorous
imprisonment for 10 years of commission
of offence under Section 304 (B) and 498A
IPC and Section 4 of Dowry Prohibition
Act.

11. So far Section 498A IPC is
concerned, the accused was sentenced to
two years rigorous imprisonment and
fine of Rs. 5,000/-, under Section 304B
IPC, he was sentenced to ten years
rigorous
imprisonment
and
under
Section 4 of D.P. Act, he was sentenced
to one year imprisonment and fine of Rs.
1,000/-. All these sentences were to run
concurrently. Accused is under trial
convict having incarceration of 5 years
and more, therefore, it can be safely said
that he has undergone the punishment
under section 498A IPC read with
section 4 of the Dowry Prohibition Act.
The matter is now being argued for
acquital/ sentencing under Section 304B
IPC, learned counsel Sri Mishra has
taken us through the oral testimony of
all
the
witnesses
who
have
been
examined by the prosecution.

12. As against this, Sri Goswami has
submitted that it is a homicidal death and
the learned Trial Judge has rightly come to
the conclusion from the evidence on record
that it was a homicidal death. It is further
submitted that death occurred in the
matrimonial home of the deceased.
922 INDIAN LAW REPORTS ALLAHABAD SERIES

14.

Learned
counsel
for
the
respondent State has heavily relied on the
judgment of Apex Court in the case of
Trimukh Maruti Kirken vs.State of
Maharastra 2006 (3) 1426 SC:-

"If an offence takes place inside the
privacy
of
a
house
and
in
such
circumstances where the assailants have all
the opportunity to plan and commit the
offence at the time and in circumstances of
their choice, it will be extremely difficult
for the prosecution to lead evidence to
establish the guilt of the accused if the
strict principle of circumstantial evidence,
as noticed above, is insisted upon by the
Courts. A Judge does not preside over a
criminal trial merely to see that no innocent
man is punished. A Judge also presides to
see that a guilty man does not escape.
Hon'ble Supreme Court further observed
that Where an offence like murder is
committed in secrecy inside a house, the
initial burden to establish the case would
undoubtedly be upon the prosecution, but
the nature and amount of evidence to be led
by it to establish the charge cannot be of
the same degree as is required in other
cases of circumstantial evidence. The
burden would be of a comparatively lighter
character. In view of Section 106 of the
Evidence Act there will be a corresponding
burden on the inmates of the house to give
a cogent explanation as to how the crime
was committed. The inmates of the house
cannot get away by simply keeping quiet
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 at all on
an accused to offer any explanation."

15.

While
going
through
the
testimony of the witnesses namely Ram
Awadh Patel and Ram Deen Patel, the fact
which comes before the Court is that the
deceased was married to Mahendra on
8.6.2014. P.W.1 and P.W. 2 in their
Examination-in-Chief
categorically
mentioned that the deceased was being
beaten and the applicant was always
demanding that the amount should be given
by way of additional dowry, namely, Rs.
one lakh and a gold chain. The informant
had requested the accused and his mother
and all relatives that he was not capable to
fulfill
their
demand.
Further,
no
information regarding the death of the
deceased was given to informant. The
informant
P.W.
1
has
also
clearly
mentioned that he came to know about the
death of the deceased only when the people
in the village started talking about her
death. PW-2 has also deposed the similar
facts and also stated that Mahendra, who
was serving in Bombay had left for
Bombay where he was serving. This
witness does not know whether Mahendra
was at his place (namely home) when the
incident occurred or not. It was further
submitted that at the third time when the
deceased went to the matrimonial home the
demand of dowry was also made.

16. While going through the judgment
of the trial court which has convicted the
accused, a finding of fact is recorded that
evidence of P.W. 1 and P.W. 2 corroborates
each other. After second time deceased
came to her parental home and during third
time when she visited her parental home,
she complained about demand of dowry.
The witnesses and her father went to her inlaws home and requested that he has no
capacity to pay the said amount. Despite
that, demand continued. The learned court
below had also relied on the judgment
which has been referred above namely
Trimukh Maruti Kirken (supra) and,
therefore, also it cannot be said that the
10 All. Mahendra Kumar Vs. State of U.P.
923
evidence of the witnesses should not
believed because they are family members
of the deceased. There is no need for any
independent witness to be examined. There
is no delay in lodging the FIR and in view
of the judgment relied upon in the case of
Trimukh Maruti Kirken (supra), the
finding of learned trial judge cannot be
found fault with. The death in fact was in
an
unnatural
condition.
However,
considering the facts that the appellant has
also raised certain facts which required
consideration namely he was serving in
Bombay, that Mahendra Kumar and others
were demanding Rs. 1,00,000/- and gold
chain and they physically harassed the
deceased but these facts did not find
corroboration from the FIR. Be that as it
may be, the death has occurred in the house
of the accused. The Medical evidence
which has been produced is as under:-

Skin under line ligature mark is
ecchymosed and on cut section skin and
musclesure
are
ecchymosed
petechial
hemorrhage are present on the face upper
chest left hands, venus congestion on
upperchest and hands,mouth. Partially
opened and drivling of saliva present from
right side of mouth finger nails are pale.

17. The oral testimony of P.W.3 Dr.
Ashutosh Pandey, who had performed the
post mortem of the dead body, it is clear
that deceased died from asphyxia due to
ante mortem injuries.

18. In the result, this appeal is partly
allowed
fine
and
default
sentence
maintained.

19. Sentence of 10 years is reduced to
7
years
fine
and
default
sentence
maintained.

20. This court is thankful to both the
counsels for assisting this Court.

Order Date :- 30.8.2022

Judgment in Crl. Misc. Application
Defecetive U/S 372 Cr.P.C. (Leave to
Appeal ) No. 108 of 2018, Ram Awadh
Patel vs. State of U.P. and another.

1. Heard Sri Vikas Tripathi, learned
counsel for the appellant, Sri Vikas
Goswami, learned AGA for the State and
Sri Vikas Tripathi, learned counsel for
respondent informant and perused the
record. There is a connected defective
criminal appeal which is of the year 2018,
preferred by the original informant.

2. This appeal is also heard along with
the present appeal.

3. This appeal has been preferred by
the appellant Ram Awadh patel against the
judgment and order dated 25.09.2018
passed by Additional Session Judge/FTC
(Crime against Women) Jaunpur, in S.T.
No. 306 OF 2015, arising out of Case
Crime No. 262 of 2015, under Sections
498A, 304B IPC and 3⁄4 D.P. Act (State vs.
Mahendra
Kumar
and
another),
P.S.
Sujanganj, District Jaunpur, whereby the
appellant is convicted and sentenced for the
commission of offence under Section 498A
IPC, for 2 years R.I. and fine of Rs. 5,000/-
and in default of payment of fine for two
months additional imprisonment to the
accussed appellant and further sentencing
under Section 304B IPC for 10 years R.I.,
under section 4 D.P. Act for one year
imprisonment and fine of Rs. 1,000/- and in
default of payment of fine one month
additional
imprisonment
and
all
the
sentences shall run concurrently. .
924 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The brief facts as revealed from the
record of proceedings are that the incident
occurred on 16th May, 2015 within one
year of the marriage, as the marriage took
place on 08.06.2014 between appellant
Mahendra Kumar and the deceased. The
father of the deceaed lodged the FIR
alleging therein that his daughter was being
harassed for not bringing proper dowry. It
was alleged that her in-laws demanded a
sum of Rs. 1,00,000/- (Rs. One lakh) and a
gold chain. Immediately before the death
for harassing her she has also been
physically
tortured.
After
having
knowledge of this atrocity of the in-laws,
the complainant along with his family
members went to house of the in-laws of
his daughter and showed their inability to
pay a sum of Rs. 1,00,000/- and a gold
chain, but they were threatened with dire
consequences. On 16.05.2015 in the night,
the accused persons/in-laws of his daughter
along with her husband committed murder
of the deceased and hanged her. The
informant or his family members were not
communicated about anything regarding
the death of the deceased. The informant
got the information about the incident from
village people. The first information report
was lodged by the complainant / father of
the
deceased
on
27.05.2015.
The
investigation
was
conducted
by
investigating officer and after recording
statement of the witnesses under section
161 Cr.P.C. and preparing the punchanama,
the post mortem of the deceased was
conducted by Dr. Ashutosh Pandey who
opined that the cause of death was
Asphyxia as a result of ante-mortem
hanging.
The
Investigating
Officer
submitted the charge sheet against the
accused Mahendra Kumar and Champa
Devi.

5. The appellant Ram Awadh patel has
challenged the judgment of acquittal. The
case is that the deceased was married with
son of respondent no. 2 Smt. Champa Devi.
General allegation against family members
have been levelled.

6. Nothing is brought on record to
show that the judgment of learned court
below has wrongly acquitted the accused.

7. Before we embark on testimony
and appreciate the reasonings in the
judgment of the Court below, the contours
for interfering in Criminal Appeals where
accused have been held to be not guilty
would require to be discussed.

8. 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 & ANR", (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."
10 All. Mahendra Kumar Vs. State of U.P.
925

9.

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."

10. 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.

11. In the case titled "STATE OF
GOA
Vs.
SANJAY
THAKRAN
&
ANR.", reported in (2007) 3 S.C.C. 75,
the Apex Court has reiterated the powers of
the High Court in appeals against acquittal.
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
926 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

12. Similar principle has been laid
down by the Apex Court in cases titled
"STATE OF UTTAR PRADESH VS.
RAM VEER SINGH & ORS.", 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.

13. In the case of "LUNA RAM VS.
BHUPAT SINGH AND ORS.", 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."

14. In a recent decision of the Apex
Court in the case titled "MOOKKIAH
AND ANR. VS. STATE, REP. 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]"
10 All. Mahendra Kumar Vs. State of U.P.
927

15. 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."

16.

The
Apex
Court
in
"SHIVASHARANAPPA & ORS. 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."

17. 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."

18. The Apex Court recently in
Jayaswamy vs. State of Karnataka,
(2018) 7 SCC 219, has laid 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
928 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

19. 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.

20. We have relied upon the judgment
of apex Court in the Case of Jwala Prasad
vs. State of Chhattisgarh, (2019) II SCC
702 and Mahesh Kumar vs. State of
Haryana, (2019) 8 SCC 128, in which it is
held that there is no hesitation in holding that
all the ingredients necessary to draw the
presumption of commission of the offence
under Section 304B IPC, do not exist.

21. We have perused the depositions
of prosecution witnesses, documentary
10 All. State of U.P. Vs. Laeek
929
evidence
supporting
ocular
versions,
arguments advanced by learned counsel for
the parties. We have been taken through the
record. We are unable to accept the
submissions of the State counsel for the
following reasons and the judgments of the
Apex Court which lay down the criteria for
consideration of appeals against acquittal.
The chain has been found to be incomplete.
While going through the judgment it is very
clear that the court below has given a
categorical finding that the evidence is so
scanty that the accused cannot punished or
convicted for the offences for which they
are charged. The factual scenario in the
present case will not permit us to take a
different view than that taken by the court
below. In that view of the matter we are
unable to satisfy ourselves. Thus we concur
with the findings of the court below.

22. After considering the facts and
circumstances of the present case and
appraisal of the evidence available on
record and on the contours laid down by
the judgment of the Apex Court, we have
no other option but to concur with the
reasoning of acquittal recorded by the
learned Sessions Judge for the aforesaid
reasons.

23. The Government Appeal sans
merits and is dismissed. The record and
proceedings be sent back to the Court
below.
----------

(2022) 10 ILRA 929
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.10.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. RENU AGARWAL, J.
Capital Case No. 2 of 2021
connected with Crl. Appeal No. 704 of 2021 and
Jail Appeal No. 592 of 2021

State of U.P. ...Appellant
Versus
Laeek ...Respondent

Counsel for the Appellant:
G.A.

Counsel for the Respondents:

Criminal Law- Indian Evidence Act, 1872-
Section
3-
Non-examination
of
independent witnesses-It is well known
fact that when such a heinous occurrence
takes place where two appellants caused
death of three persons at 05.00 p.m.,
people were shutting their shops and
hiding themselves behind their doors and
crowd was terrorized, then there is least
chance that the independent witness will
dare to depose about the incident in the
court. The evidence of witnesses cannot
be discarded only because they are in any
way related to the deceased if they are
reliable
and
inspire
confidence
of
truthfulness. Moreover, the witness no. 2,
is an injured witness in the case, who
tried to save her sons from assault of the
accused
and
in
turn,
she
sustained
injuries. Thus, there is no reason to
discard
the
evidence
of
prosecution
witnesses just because they are related
witnesses to the extent that they have
inspired confidence.

Where the offence has been committed in a
gruesome and heinous manner then there is no
likelihood of any independent witnesses coming
forward to depose out of fear and the testimony
of
related/
injured
witnesses
cannot
be
discarded merely because of their relation with
the deceased so long as their testimony is
truthful, credible and inspires the confidence of
the court.

Indian Evidence Act, 1872 - Section 3 - It
is clear that the Investigating Officer did
not depose in court to support prosecution