# Shyam Sunder Sharma / v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 329
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-08
- **Case number:** Criminal Appeal U/S 372 No. 220 of 2021
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-sunder-sharma-v-state-of-u-p-ors-48765
- **Pages:** 21

## Headnote

Law
-
Code
of
Criminal
Procedure1973 - Section 372 - Appeal
against acquittal- enormous delay in lodging
of the FIR without explanation - nature of
injuries do not support the case of the
prosecution that after three hits by a fourwheeler upon a two-wheeler such type of
injuries could have been sustained -no
medical
examination-
material
contradictions
in
testimony
of
the
prosecution witnesses.

Appeal dismissed. (E-9)

List of Cases cited:

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

## Text

_Characters 0–39,983 of 72,120. This is a partial read: ask again with offset=39983 for what follows._

8 All. Shyam Sunder Sharma Vs. State of U.P. & Ors.
329
enhancement of sentence. While it is open
for the State Government to prefer appeal
for inadequate sentence under Section 377,
Cr.P.C. but similarly no appeal can be
maintained by victim under Section 372,
Cr.P.C. on the ground of inadequate
sentence. It is fairly well settled that the
remedy of appeal is creature of the Statute.
Unless same is provided either under Code
of Criminal Procedure or by any other law
for the time being in force no appeal,
seeking enhancement of sentence at the
instance of the victim, is maintainable.
Further we are of the view that the High
Court while referring to the judgment of
this Court in the case of National
Commission for Women v. State of Delhi &
Anr. (2010) 12 SCC 599 has rightly relied
on the same and dismissed the appeal, as
not maintainable."

6. The appeal stands dismissed as not
maintainable in the light of the judgment of
Hon'ble Apex Court in the case of
Parvinder Kansal Vs. The State of NCT
of Delhi and Anr. reported in 2020 (113)
ACC 676.

7. Since this appeal itself is not
maintainable therefore there is no question
of consideration on delay condonation
application,
accordingly,
the
delay
condonation application stands rejected. At
present, there is no requirement to file
leave to appeal.

8. The connected criminal appeal are
of the year 2013, accordingly, office is
directed to list the connected criminal
appeals in the next cause list before
appropriate bench.
----------
(2022) 8 ILRA 329
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2022
BEFORE

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

Criminal Appeal U/S 372 No. 220 of 2021

Shyam Sunder Sharma
 ...Appellant/Complainant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Shyam Surat Shukla, Sri Shailendra
Kumar Ojha

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure1973 - Section 372 - Appeal
against acquittal- enormous delay in lodging
of the FIR without explanation - nature of
injuries do not support the case of the
prosecution that after three hits by a fourwheeler upon a two-wheeler such type of
injuries could have been sustained -no
medical
examination-
material
contradictions
in
testimony
of
the
prosecution witnesses.

Appeal dismissed. (E-9)

List of Cases cited:

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

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

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

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

5.Chandrappa & ors. Vs St. of Kar., (2007) 4
S.C.C. 415

6.Ghurey Lal Vs St. of U.P., (2008) 10 SCC
450
330 INDIAN LAW REPORTS ALLAHABAD SERIES
7.Siddharth Vashishtha @ Manu Sharma Vs St.
(NCT of Delhi), reported in (2010) 6 SCC 1

8.Babu Vs St. of Ker., (2010) 9 SCC 189

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

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

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

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

13. Jayaswamy Vs St. of Kar., (2018) 7 SCC
219,

14. Ramanand Yadav Vs Prabhu Nath Jha &
ors., (2003) 12 SCC 606,

15. Jafarudheen & ors. Vs St. of Ker., JT
2022(4) SC 445

16. Mohan @Srinivas @Seena @Tailor Seena Vs
St. of Kar., [2021 SCC OnLine SC 1233]

17. Kuldeep Singh Vs Commr. of Police, (1999)
2 SCC 10 : 1999 SCC (L&S) 429

18.Atley Vs St. of U.P., AIR 1955 SC 807 : 1955
Cri LJ 1653

19. Apren Joseph @ Current Kunjukunju & ors.
Vs The St. of Ker, (1973) 3 SCC 114

20. P. Rajagopal & ors. Vs St. of T.N. (2019) 5
SCC 403.

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

1. This is an appeal u/s 372 of the
Cr.P.C.
1973
instituted
by
the
appellant/complainant against the judgment
and order dated 10.08.2021 passed by
learned Session Judge, Mathura in Sessions
Trial No. 264 of 2019 (State Vs. Udaichand
Sharma @ Uddi and one other) u/s 307/34,
325/34, 427, 504 IPC, P.S. Chhata, District
Mathura acquitting the accused/opposite
party nos. 2 and 3.

2. The factual matrix of the case is
concerned as worded in the present appeal
purported to be u/s 372 Cr.P.C. are that the
appellant/complainant being Shyam Sundar
Sharma S/o Sri Bhoop Singh R/o Village
Bathain Kala, P.S. Kosikala, District
Mathura had submitted that a typed
complaint
on
23.08.2018
with
the
allegation
that
on
13.08.2018
the
appellant/complainant
along
with
his
brother Mukesh R/o Bathain Kala, Chatta,
Mathura and Ram Gopal Tomar S/o Prem
Singh R/o Laxmi Nagar, Krishna Nagar,
Mathura had gone to the Registry Office,
Chatta. It has been further alleged that the
appellant/complainant had also gone to
Police Station Chatta before Station House
Officer in connection with his case.
According to the appellant/complainant his
brother Mukesh and Ram Gopal did not
accompanied him as they were in the
District Court. In the complaint it has
further alleged that after meeting the
Station House Officer at about 6 in the
evening he while riding his motorcycle
bearing
registration
no.
HR30N0336
proceeded for his house situate at Bathain
Kala and on Gauhari crossing he saw a car
chasing
him bearing
registration
no.
HR50F5244
in
which
the
accused
respondent
no.
2
Udai
Chand
S/o
Chimman, Peetam S/o Nita @ Nitti
opposite party no. 3 Giriraj S/o Nitti and
Ravi S/o Giriraj were sitting and the said
vehicle was driven by Ravi S/o Giriraj. As
per the written complaint with the view to
dispose of the appellant/complainant the
subject vehicle hit the two wheeler of the
appellant/complainant form the back on
account whereof the appellant/complaint
fell down on the surface of the road and
thereafter again the vehicle which had
proceeded from the place where the
appellant/complainant fell down it was
again taken back and put upon the
8 All. Shyam Sunder Sharma Vs. State of U.P. & Ors.
331
appellant/complainant in order to trample
him. It is further alleged that accused
uttered that earlier complainant got himself
saved from gun shot firing which was
resorted earlier and he still alive so in the
aforesaid factual backdrop according to the
appellant/complainant for the third time the
vehicle was put to motion so as to trample
the appellant/complainant. In the FIR it was
further alleged that by that time brother of
the appellant/complainant being Mukesh
and one Ram Gopal came on the site in
question and they witnessing the said
incident proceeded to catch the accused but
they fled away from there. In the FIR it was
further alleged that the brother of the
appellant/complainant being Mukesh and
Ram
Gopal
took
away
to
appellant/complainant to B.P.L. Nursing
home, Kosi Kala wherein treatment at first
instance was done by the Doctor therein,
however looking into the severe injuries so
sustained by the appellant/complainant, he
was referred to Survodaya Hospital situate
at Sector-8 Faridabad, Haryana. As per the
FIR, the injuries so sustained by the
appellant/complainant was to the effect that
the bones of the shoulders got fractured and
three ribs of left side also got fractured and
injuries were sustained on head, hand and
legs. Record reveals that the incident
occurred on 13.08.2018 around 06:00 p.m.
whereas the FIR was lodged on 23.08.2018
purported to be u/s 325, 307, 504, 429 IPC,
Investigating Officer was nominated and he
conducted the investigation.

3. In order to bring home the charges
the following prosecution witness were
produced namely:-

1.
Mukesh Sharma
P.W.-1
2.
Shyam Sundar Sharma
P.W.-2
3.
Dr. Raj Mishra
P.W.-3
4.
Dr. Mukesh Garg
P.W.-4
5.
Constable 405 Jitendra
Singh
P.W.-5
6.
S.I. Rajveer Singh
P.W.-6
7.
Inspector
Ramesh
Chandra Sharma
P.W.-7

4. The prosecution produced the
following exhibits in support of their case
namely:-

1.
Written Complaint
Ex. A-1
2.
Medical Report
Ex. A-2
3.
Discharge Certificate
Ex. A-3
4.
X-ray Report
Ex. A-4
5.
C.T. Scan
Ex. A-5
6.
C.T. Scan Head Plan
Ex. A-6
7.
X-ray
of
Clavicle
Spine
Ex. A-7
8.
X-ray of Left Elbow
Ex.-A-8
9.
X-ray Chest
Ex. A-9
10. C.T. Scan Test
Ex. A-10
11. X-ray L.S. Spine
Ex. A-11
12. F.I.R.
Ex. A-12
13. G.D.
Ex. A-13
14. Site Plan
Ex. A-14
15. Charge Sheet
Ex. A-15

5. On behalf of the defence the
following witnesses were produced:-

1. Pankaj
D.W.-1
2. Bhoora Singh
D.W.-2

6. The charges so sought to be framed
against the accused who are two in number u/s
304/34, 325/34, 427 and 504 IPC read over to
the accused. The accused denied the charges
while putting up a plea that they are innocent
and they have been falsely implicated. The
case was also committed for trial.

7. The trial culminated into passing of
the order dated 10.08.2021 passed by
332 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional Sessions Judge, Mathura in
Session Trial No. 264/2019 acquitting the
accused opposite party no. 2 in Case Crime
No. 514/2018 P.S. Chhata, Mathura u/s
307/34, 325/34, 427, 504 IPC.

8. Challenging the judgment in
question acquitting the accused who are
two
in
number
now
the
appellant/complainant is before this Court
in the proceedings purported to be u/s 372
of Cr.P.C.

9. We have heard Sri S. S. Shukla,
learned
counsel
for
the
appellant/complainant as well as Sri Ratan
Singh, learned A.G.A. appearing for the
State and perused the record.

10. 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.

11. The principles, which would
govern and regulate the hearing of an
appeal by this Court against an order of
acquittal, passed by the trial Court, have
been very succinctly explained by the Apex
Court in catena of decisions. In the case of
Tota Singh and another vs. State of
Punjab, reported in (1987) 2 SCC 529, the
Hon'ble Apex Court in paragraph-6 has
observed as under: -

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

12. 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
8 All. Shyam Sunder Sharma Vs. State of U.P. & Ors.
333
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."

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

"7. There is no embargo on the
appellate court reviewing the evidence upon
which an order of acquittal is based.
Generally, the order of acquittal shall not be
interfered with because the presumption of
innocence
of
the
accused
is
further
strengthened by acquittal. The golden thread
which runs through the web of administration
of justice in criminal cases is that if two views
are possible on the evidence adduced in the
case, one pointing to the guilt of the accused
and the other to his innocence, the view
which is favourable to the accused should be
adopted. The paramount consideration of the
court is to ensure that miscarriage of justice
is prevented. A miscarriage of justice which
may arise from acquittal of the guilty is no
less than from the conviction of an innocent.
In a case where admissible evidence is
ignored, a duty is cast upon the appellate
court to reappreciate the evidence in a case
where the accused has been acquitted, for the
purpose of ascertaining as to whether any of
the accused committed any offence or not.
(See Bhagwan Singh v. State of M.P.1) The
principle to be followed by the appellate
court considering the appeal against the
judgment of acquittal is to interfere only
when there are compelling and substantial
reasons for doing so. If the impugned
judgment is clearly unreasonable, it is a
compelling reason for interference. These
aspects were highlighted by this Court in
Shivaji Sahabrao Bobade v. State of
Maharashtra2, Ramesh Babulal Doshi v.
State of Gujarat3 and Jaswant Singh v. State
of Haryana."

14. 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
334 INDIAN LAW REPORTS ALLAHABAD SERIES
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"."

15.

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

"42. From the above decisions, in
our considered view, the following general
principles
regarding
powers
of
the
appellate Court while dealing with an
appeal against an order of acquittal
emerge:

[1] An appellate Court has full
power
to
review,
re-appreciate
and
reconsider the evidence upon which the
order of acquittal is founded.

[2]
The
Code
of
Criminal
Procedure,
1973
puts
no
limitation,
restriction or condition on exercise of such
power and an appellate Court on the
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
8 All. Shyam Sunder Sharma Vs. State of U.P. & Ors.
335
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."

16. 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."
336 INDIAN LAW REPORTS ALLAHABAD SERIES

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

"303.
Summary
of
our
conclusions:

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

18. 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."

19. 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,
8 All. Shyam Sunder Sharma Vs. State of U.P. & Ors.
337
against an order of acquittal: (i) There is
no limitation on the part of the appellate
court to review the evidence upon which
the order of acquittal is founded and to
come to its own conclusion.

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

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

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

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

20. 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
338 INDIAN LAW REPORTS ALLAHABAD SERIES
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.))"

21. 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.]"

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

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

23. 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
8 All. Shyam Sunder Sharma Vs. State of U.P. & Ors.
339
in re-appreciating the evidence in a case
where the State has preferred an appeal
against acquittal, which read as follows:

"13. It is by now well settled that
the Appellate Court hearing the appeal
filed against the judgment and order of
acquittal will not overrule or otherwise
disturb the Trial Court's acquittal if the
Appellate Court does not find substantial
and compelling reasons for doing so. 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.

14. 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."

24. The Apex Court recently in
Jafarudheen & Ors. vs. State of Kerala, JT
2022(4) SC 445 has observed as under:-

"DISCUSSION Scope of Appeal
filed against the Acquittal:

25. While dealing with an appeal
against acquittal by invoking Section 378
of the Cr.PC, the Appellate Court has to
consider whether the Trial Court's view
can be termed as a possible one,
particularly when evidence on record has
been analyzed. The reason is that an order
of acquittal adds up to the presumption of
innocence in favour of the accused. Thus,
the Appellate Court has to be relatively
slow in reversing the order of the Trial
Court rendering acquittal. Therefore, the
presumption in favour of the accused does
not get weakened but only strengthened.
Such a double presumption that enures in
favour of the accused has to be disturbed
340 INDIAN LAW REPORTS ALLAHABAD SERIES
only by thorough scrutiny on the accepted
legal parameters. Precedents:

Mohan
@Srinivas
@Seena
@Tailor Seena v. State of Karnataka,
[2021
SCC
OnLine
SC
1233]
as
hereunder: -

"20. Section 378 CrPC enables
the State to prefer an appeal against an
order of acquittal. Section 384 CrPC
speaks of the powers that can be exercised
by the Appellate Court. When the trial
court renders its decision by acquitting the
accused, presumption of innocence gathers
strength before the Appellate Court. As a
consequence, the onus on the prosecution
becomes more burdensome as there is a
double
presumption
of
innocence.
Certainly, the Court of first instance has its
own advantages in delivering its verdict,
which is to see the witnesses in person
while they depose. The Appellate Court is
expected to involve itself in a deeper,
studied scrutiny of not only the evidence
before it, but is duty bound to satisfy itself
whether the decision of the trial court is
both possible and plausible view. When two
views are possible, the one taken by the
trial court in a case of acquittal is to be
followed on the touchstone of liberty along
with the advantage of having seen the
witnesses. Article 21 of the Constitution of
India also aids the accused after acquittal
in a certain way, though not absolute.
Suffice it is to state that the Appellate Court
shall remind itself of the role required to
play, while dealing with a case of an
acquittal.

21. Every case has its own
journey towards the truth and it is the
Court's role undertake. Truth has to be
found on the basis of evidence available
before it. There is no room for subjectivity
nor the nature of offence affects its
performance. We have a hierarchy of
courts in dealing with cases. An Appellate
Court shall not expect the trial court to act
in a particular way depending upon the
sensitivity of the case. Rather it should be
appreciated if a trial court decides a case
on its own merit despite its sensitivity.

22. At times, courts do have their
constraints. We find, different decisions
being made by different courts, namely,
trial court on the one hand and the
Appellate Courts on the other. If such
decisions are made due to institutional
constraints, they do not augur well. The
district judiciary is expected to be the
foundational court, and therefore, should
have the freedom of mind to decide a case
on its own merit or else it might become a
stereotyped one rendering conviction on a
moral
platform.
Indictment
and
condemnation over a decision rendered, on
considering all the materials placed before
it, should be avoided. The Appellate Court
is expected to maintain a degree of caution
before making any remark.

23. This court, time and again
has laid down the law on the scope of
inquiry by an Appellate court while dealing
with an appeal against acquittal under
Section 378 CrPC. We do not wish to
multiply the aforesaid principle except
placing reliance on a recent decision of this
court in Anwar Ali v. State of Himanchal
Pradesh, (2020) 10 SCC 166:

14.2. When can the findings of
fact recorded by a court be held to be
perverse
has
been
dealt
with
and
considered in paragraph 20 of the
aforesaid decision, which reads as under :
(Babu case [Babu v. State of Kerala,
(2010) 9 SCC 189 : (2010) 3 SCC (Cri)
1179]) "20. 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 relevant material or by taking
into consideration irrelevant/inadmissible
material. The finding may also be said to
8 All.