# Ram Sudhar v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 771
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-04
- **Case number:** Criminal Appeal No. 3505 of 2012
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sudhar-v-state-of-u-p-ors-48941
- **Pages:** 23

## Headnote

A. Criminal Law - Appeal against acquittal
- 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)

From the meticulous analysis of the ocular
testimony as well as the documents in support
thereof, it reveals that the present case (if to
any extent) falls within the index of
circumstantial evidence. There is no direct
testimony.
Moreover,
no
recovery
whatsoever, has been made from the
accused. None the less, on one hand PW-1
being Ram Teerath has come up with the stand
that the deceased was watching movie till 3:00
in the morning, however, according to the
testimony of the brother of the deceased, the
accused were found near a canal in the canal
strip near farm of Lal Sahai Katheria, wherein
the corpus of the deceased was found. Even
the motive is also not found attributable
to the commission of crime by the
appellant, as merely because there had been
certain
heated
conversation
between
the
accused and the deceased cannot be a ground
to hold the guilty of commission of crime.
Notably, the prosecution has miserably
failed to build up the chain of evidence
and sequence so as to link the commission
of crime by the accused. More or less, the
entire chain of events do not match with
the prosecution, as even the circumstantial
evidence do not link with the commission
of offence. Less to say about last seen
theory as there is a big cloud over the fact
that the accused were with the deceased before
commission of the alleged offence. (Para 30)

This Court has given anxious consideration to
the pleadings so set forth in the appeal as well
as the documents available on record, and after
772 INDIAN LAW REPORTS ALLAHABAD SERIES
marshaling the factual and legal aspect, the
Court finds its inability to subscribe to the
prosecution case as for the purposes of
discarding the view taken by the learned Trial
Court. The prosecution case, if taken into face
value does not cumulatively complete the chain
of linking the accused to have committed the
crime, as neither any motive is attributed nor
there is any ingredient of eye witness testimony,
nor the theory of last 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 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 31, 32)

Criminal appeal dismissed. (E-4)

Precedent followed:

## Text

_Characters 0–39,921 of 75,876. This is a partial read: ask again with offset=39921 for what follows._

8 All. Ram Sudhar Vs. State of U.P. & Ors.
771
25.5.2013 passed by Additional Sessions
Judge, Court No. 6, Budaun, in S.T. No. 5
of 2011, State vs. Pappu and another, under
Section 376(2)(g), 342, 323, 506 IPC, P.S.
Jarifnagar, District - Budaun, is quashed
and set aside.

42. The accused-appellants- Pappu
and Vijaypal, who are in jail if they are not
wanted in any other criminal case be set
free forthwith.
----------
(2022) 8 ILRA 771
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. 3505 of 2012
(U/S 372 Cr.P. C.)

Ram Sudhar ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri C.J. Yadav. Sri Shailendra Kumar
Tripathi

Counsel for the Opposite Parties:
Govt. Advocate

A. Criminal Law - Appeal against acquittal
- 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)

From the meticulous analysis of the ocular
testimony as well as the documents in support
thereof, it reveals that the present case (if to
any extent) falls within the index of
circumstantial evidence. There is no direct
testimony.
Moreover,
no
recovery
whatsoever, has been made from the
accused. None the less, on one hand PW-1
being Ram Teerath has come up with the stand
that the deceased was watching movie till 3:00
in the morning, however, according to the
testimony of the brother of the deceased, the
accused were found near a canal in the canal
strip near farm of Lal Sahai Katheria, wherein
the corpus of the deceased was found. Even
the motive is also not found attributable
to the commission of crime by the
appellant, as merely because there had been
certain
heated
conversation
between
the
accused and the deceased cannot be a ground
to hold the guilty of commission of crime.
Notably, the prosecution has miserably
failed to build up the chain of evidence
and sequence so as to link the commission
of crime by the accused. More or less, the
entire chain of events do not match with
the prosecution, as even the circumstantial
evidence do not link with the commission
of offence. Less to say about last seen
theory as there is a big cloud over the fact
that the accused were with the deceased before
commission of the alleged offence. (Para 30)

This Court has given anxious consideration to
the pleadings so set forth in the appeal as well
as the documents available on record, and after
772 INDIAN LAW REPORTS ALLAHABAD SERIES
marshaling the factual and legal aspect, the
Court finds its inability to subscribe to the
prosecution case as for the purposes of
discarding the view taken by the learned Trial
Court. The prosecution case, if taken into face
value does not cumulatively complete the chain
of linking the accused to have committed the
crime, as neither any motive is attributed nor
there is any ingredient of eye witness testimony,
nor the theory of last 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 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 31, 32)

Criminal appeal dismissed. (E-4)

Precedent followed:

1. Tota Singh & anr. Vs St. of Pun., (1987) 2 SCC
529 (Para 10)

2. Ramesh Babulal Doshi Vs St. of Guj., (1996) 9
SCC 225 (Para 11)

3. State of Rajasthan 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)

Present appeal assails judgment and order
dated 09.02.2011, passed by Special
Judge (D.A.A.)/Additional Session Judge,
District Kannauj.

(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 Ram Sudhar son of Chhote
Lal against the judgment and order dated
9.2.2011,
passed
by
Special
Judge
(D.A.A.)/Additional Session Judge, Court
No. 2, District Kannauj, passed In S.T. No.
186 of 2006 (State Vs. Rajesh @ Tillu),
under section 302/34, 201 I.P.C. arising out
of case Crime No. 169 of 2006, Police
Station. Tirwa, District Kannauj, whereby
learned trial court has acquitted the
accused, who are respondents-opposite
parties no. 2 and 3.

2. This appeal was initially presented
before the Registry of this Court on
24.5.2011 with the delay of 38 days and on
26.5.2011,
in
Criminal
Misc.
Delay
Condonation Application No.161441 of
2011, notices were issued. Thereafter, on
24.8.2012, learned counsel for the appellant
8 All. Ram Sudhar Vs. State of U.P. & Ors.
773
was not present, however, after hearing the
learned A.G.A, the Delay Condonation
Application was allowed and it was
directed that a regular number be allotted to
this appeal. The order dated 24.8.2012 is
being reproduced hereinunder: -

"24.8.2012

Counsel for the appellant is not
present.

Heard learned AGA.

The office report shows that
notices have been served upon the accused
respondents, but no-one appears on their
behalf. This application has been filed
with a prayer that the delay in filing the
appeal may be condoned.

This appeal has been filed beyond
the period of limitation by 39 days.

The grounds taken for condoning
the delay had not been controverted by the
accused respondents, 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."

"Counsel for the appellant is not
present.

Heard learned AGA.

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

List
for
admission
on
19.10.2012."

3. Yet on 19.10.2012, 27.11.2012,
29.1.2013,
15.11.2017,
24.11.2017,
10.8.2017 and lastly on 9.5.2022, the
following orders were passed:-

"19.10.2012

Sri C.J. Yadav, counsel for the
appellant, has sent his illness slip.

In the present case, lower court
record has been summoned on 24.8.2012.
There is no endorsement with regard to its
receiving.

List on 27.11.2012."

"27.11.2012

Learned counsel for the appellant
is not present. The order sheet shows that
the lower court record has not been
received.

List on 29.01.2013."

"29.1.2013

Counsel for the appellant is not
present.

Heard learned AGA for the State
of U.P.

From the perusal of record, it
appears that in the present case the lower
court record has been summoned vide
order dated 24.08.2012, but the same has
not been received.

The office is directed to send a
reminder to District & Sessions Judge,
Kannauj for sending the lower court record
774 INDIAN LAW REPORTS ALLAHABAD SERIES
within a month. In case, the lower court
record is not received by this Court on or
before 6th March, 2013, In-charge of the
Record Room of Sessions Court, Kannauj
shall appear in person to explain as to why
the lower court record has not been sent
and the action may not be taken for noncompliance of the orders, passed by this
Court.

List on 6th March, 2013.

Let a copy of this order be
communicated to District & Sessions
Judge, Kannauj forthwith for compliance."

"15.11.2017

The present appeal has been
taken up in the revised call. No-one has
appeared on behalf of the appellant to
address the Court. Learned AGA is present.
Lower Court record has already been
received. The present appeal pertains to the
year 2012 against the order of acquittal
dated 9.2.2011. It cannot be kept pending
sine die on the dint of mere condoning the
delay in filing the appeal. Mere filing of the
appeal by the appellant will not accrue any
right in his favour.

Let this appeal be listed in the
next cause list peremptorily."

"24.11.2017

Sri C. J. Yadav, learned counsel
for the appellant has again sent illness slip
despite
the
case
has
been
listed
peremptorily. On last occasion also the
learned counsel has sent illness slip and it
was clearly mentioned that the appeal
cannot be kept pending for indefinite
period. The learned counsel for the
appellant has only sent illness slips
successively on each and every date, there
is no other option but to issue notice to
Ram Sudhar to engage another counsel.

Office is directed to issue notice
to Ram Sudhar son of Chhotey Lal, R/o.
village Napura, police station Tirwa,
district
Kannauj
to
engage
another
counsel.

Let the matter be listed after one
month.

"10.8.2018

Passed over on the illness slip of
learned counsel for the appellant.

"9.5.2022

Matter is taken up.

None appeared on behalf of the
appellant.

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

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 even on
24.11.2017, notices were also issued to the
8 All. Ram Sudhar Vs. State of U.P. & Ors.
775
complainant/appellant to engage another
counsel, however, nobody appeared on
behalf of the appellant 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 father 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. According to the
version, so contained in the FIR, the
appellant / informant received a phone call
from his maternal nephew Ram Pal son of
Mewa Ram on 9.5.2006 at 9:00 P.M.
apprising the appellant that his son was
murdered in the intervening night of
7/8.5.2006 and his corpus was found near a
canal towards the strip, which was adjacent
to Lal Sahai Katheria farm behind the
bushes. It has further come on record that
on 8.5.2006, the corpus of the deceased
was taken in possession by the Police
authorities and sent to Fatehgarh for
postmortem. It has been further alleged that
the appellant after taking the leave came to
his house on 10.5.2006 at 08:00 hours,
whereat from the information so gathered
by the appellant, it was revealed to him that
on 7.5.2006, the deceased had gone to
participate in the marriage function of the
daughter of one Ram Chandra Pal, who is
also resident of the same village and
thereafter at 10:00 P.M. one Sri Akhilesh
son of Het Ram and Ramanand and others
saw the deceased with the accused, who are
two in number being Rajesh @ Tillu and
Ram Milan. It has further come on record
that on 7.5.2006 at about 11:00 P.M, one
Ram Kishor who happens to be the real
brother of the deceased and the son of the
complainant, when he was returning from
the marriage to his residence then he found
some commotion near the canal and when
he switched on the torch and pointed it
towards canal strip, then he found in the
place of the occurrence, the accused, who
are two in number, but he could not gauge
the fact that his deceased brother was
present there with the said two accused had
disposed the deceased. According to the
version of the prosecution when the
deceased did not come back to his house,
then constant search was made with respect
to the whereabouts of the deceased,
however, on 8.5.2006 at about 10 O'clock
in the morning, one Seetu Yadav son of
Balak Ram Yadav informed the family
members of the deceased that the corpus of
the deceased was found beside the canal
strip near Lal Sahai Katheria's farm near
the bushes along with the slippers of the
deceased. It has further come on record that
the appellant's nephew reported the same to
the concerned police station on 08.05.2006.
The appellant after returning from his work
place at Delhi, lodged the FIR before the
police station Tirwa, District Kannauj
under Section 302/34/201 IPC being Case
Crime no. 169 of 2006. Statements under
Section 161 CrPC were recorded, and the
corpus was sent for post mortem. The
matter was committed to Sessions Court for
trial, charges were framed purported to be
under Section 302/34/201 IPC and they
were read over to the accused, who are two
in number. Proceedings purported to be
776 INDIAN LAW REPORTS ALLAHABAD SERIES
under
Section
313
CrPC
was
also
undertaken. The accused, who are two in
number denied the charges and claimed to
be tried. A plea was taken that they had
been falsely implicated and roped in the
criminal proceedings so lodged against him
by the prosecution on account of the fact
that the accused, who are two in number,
had witnessed the illicit
relationship
between wife of Ram Kishor and Bhajan
Lal and the same became the very basis to
falsely implicate the accused, who are two
in number.

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

1
Ram Teerath
PW1
2
Ram Sudhar
PW2
3
Akhilesh
PW3
4
Ram Kishore
PW4
5
Anil Kumar
PW5
6
Dr. Brijesh Singh PW6
7
S.I.
L.R.
Diwakar, I.O
PW7

8. We have heard Sri Ratan Singh,
learned A.G.A. for the State and with his
assistance 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 be required 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
8 All. Ram Sudhar Vs. State of U.P. & Ors.
777
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
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
778 INDIAN LAW REPORTS ALLAHABAD SERIES
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)

"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"."
8 All. Ram Sudhar Vs. State of U.P. & Ors.
779

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-

[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.

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, reappreciate 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
curtail extensive powers of an appellate court
in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise 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
780 INDIAN LAW REPORTS ALLAHABAD SERIES
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 re-evaluating 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
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:
8 All. Ram Sudhar Vs. State of U.P. & Ors.
781

(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
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.
782 INDIAN LAW REPORTS ALLAHABAD SERIES
(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
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
8 All. Ram Sudhar Vs. State of U.P. & Ors.
783
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.