# State of U.P v. Bachchan Khan

- **Citation:** (2022) 7 ILRA 873
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-07
- **Case number:** Government Appeal No. 379 of 2019
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-bachchan-khan-48862
- **Pages:** 22

## Headnote

Sri Ashok Kumar Singh Bais, Sri Anil Kumar,
Sri
Ashok
Kumar
Singh
Bais,
Sri
Mashaluddin Shah

Medical negligence - Deceased was father of
the informant-payment for medication was
made and two injections were administered to
the deceased and he succumbed to itnegligence alleged-accused alleged to be quack
and
unqualified
doctor-chain
of
evidence
adduced by the prosecution is very weak-no
874 INDIAN LAW REPORTS ALLAHABAD SERIES
explanation for not lodging the FIR on the day
of incidence-Police Station was 50 steps from
the dispensary-there is a double presumption in
favor of accused-no sufficient ground to reverse
trial court judgment.

Appeal dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,823 of 74,641. This is a partial read: ask again with offset=39823 for what follows._

7 All. State of U.P. Vs. Bachchan Khan
873
in Sansar Chand v. State of Rajasthan
(2010) 10 SCC 604 held that:

"29. There is no absolute rule
that an extra-judicial confession can never
be the basis of a conviction, although
ordinarily an extra-judicial confession
should be corroborated by some other
material. [Vide Thimma and Thimaa Raju
v. State of Mysore (1970) 2 SCC 105, Mulk
Raj v. State of U.P. AIR 1959 SC 902,
Sivakumar v. State of Inspector of Police
(2006) 1 SCC 714 (SCC paras 40 and 41 :
AIR paras 41 and 42), Shiva Karam
Pavaswami Tewari v. State of Maharashtra
(2009) 11 SCC 262 and Mohd. Azad alias
Shamin v. State of W.B. (2008) 15 SCC
449]"."

32. Net analysis of the facts of the case
while applying the ratio so culled out by the
Hon'ble Apex Court as referred to herein
above shows that inescapable conclusion
stands drawn that the prosecution has
miserably failed to link the accused with the
commission of crime on the count of delay in
lodging of the FIR, absence of motive, weak
extra-judicial confession, as well as nonlinking of the circumstances so as to even put
the case under parameters of circumstantial
evidence.

33. This Court further finds that the
view taken by the learned Trial Court is a
possible view and there is no justification in
adopting any other view. The considerations,
which weighed the learned Trial Court while
acquitting the accused itself are based on the
ocular testimony and the evidence so adduced
in support thereof and in absence of any
perversity was committed by the learned Trial
Court, this Court finds its inability to hold the
judgment as perverse.

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

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

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

37. Records of the present case be
sent back to the concerned court below.
----------
(2022)07ILR A873
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2022

BEFORE

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

Government Appeal No. 379 of 2019

State of U.P. ...Appellant
Versus
Bachchan Khan ...Respondent

Counsel for the Appellant:
G.A.

Counsel for the Respondent:
Sri Ashok Kumar Singh Bais, Sri Anil Kumar,
Sri
Ashok
Kumar
Singh
Bais,
Sri
Mashaluddin Shah

Medical negligence - Deceased was father of
the informant-payment for medication was
made and two injections were administered to
the deceased and he succumbed to itnegligence alleged-accused alleged to be quack
and
unqualified
doctor-chain
of
evidence
adduced by the prosecution is very weak-no
874 INDIAN LAW REPORTS ALLAHABAD SERIES
explanation for not lodging the FIR on the day
of incidence-Police Station was 50 steps from
the dispensary-there is a double presumption in
favor of accused-no sufficient ground to reverse
trial court judgment.

Appeal dismissed. (E-9)

List of Cases cited:

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

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

3. St. of Rajesthan Vs St. of Guj., reported in
(2003) 8 SCC 180

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

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

6. Ghurey Lal Vs St. of U.P., reported in (2008)
10 SCC 45

7. Siddharth Vashishtha Alias Manu Sharma Vs
St. (NCT of Delhi), reported in (2010) 6 SCC 1

8. Babu Vs St. of Kerala, reported in (2010) 9
SCC 189

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

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

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

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

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

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

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

16. Tara Singh & ors. Vs St. of Pun. 1991 Supp
(1) SCC 536

17. P. Rajagopal & ors. Vs St. of T.N. (2019) 5
SCC 403
(Delivered by Hon'ble Vikas Budhwar, J.)

1. This appeal under Section 378(3)
of Criminal Procedure Code, 1973 (in short
'Cr.P.C.'), has been instituted at the behest
of State of U.P. against the judgment and
order
dated
20.2.2019,
passed
by
Additional District & Session Judge, Fast
Track Court No. 1, Kasganj, in S.T. No.
310 of 2013 (State of U.P. Vs. Bachchan
Khan), under Section 304 I.P.C. arising out
of Case Crime No. 107 of 2013, Police
Station.
Amanpur,
District
Kasganj,
acquitting the accused respondent.

2. The factual matrix of the case as
worded in the present appeal purported to
be under Section 378(3) of the Cr.P.C. are
that on 27.2.2013 an FIR was lodged by the
informant/complainant being Brij Kishore
son of Attar Singh resident Makthara,
Police Station. Amanpur, District Kasganj
with
an
allegation
that
the
complainant/informant
along
with
his
mother Smt. Kamlesh wife of Atar Singh as
well as Chandrabhan son of Kali Charan
are the resident of Police Station Sidpura,
District Kasganj and on unfateful day i.e.
26.2.2013 at 4 p.m. the deceased being Atar
Singh son of Deshraj witnessed stomach
ache.

3. Resultantly the informant along
with his mother being Smt. Kamlesh and
Chandrabhan son of Kali Charan proceeded
for getting the deceased treated and
approached the accused Dr. Bachchan
7 All. State of U.P. Vs. Bachchan Khan
875
Khan son of Achchan Khan resident of
Rajeev Nagar Amanpur, District Kasganj
and got themselves physically present in
the dispensary/shop of the accused at
5.p.m. on 26.2.2013.

4. It has been further alleged in the
first information report that the accused
demanded an amount of Rs.5,000/- for
providing medication and treatment which
was accordingly offered to the accused and
thereafter
the
accused
pierced
two
injections. It has further been alleged in the
first
information
report
that
after
administrating two injections Atar Singh
son of Deshraj succumbed.

5. As per the prosecution case, the
accused
thereafter
pushed
the
informant/complainant his mother and
Chandrabhan out of the dispensary and
along with the dead-body of the deceased,
they proceeded to their village. Allegation
has also been levelled that due to the
negligence of the accused coupled with the
fact that the accused was a quack and
unqualified doctor the deceased died.

6. Consequently, the first information
report was lodged as discussed above on
27.2.2013
before
the
Police
Station,
Amanpur, District Kasganj being Case
Crime No.107 of 2013, under Section 302
IPC. Investigation was thereafter conducted
and the criminal case was transformed into
Section 304 IPC, resultantly charge sheet
was also submitted under Section 304 IPC
on 18.7.2013. The case was committed
before sessions, the charges were read over
to him, the accused pleaded innocent not
guilty and claimed to be tried.

7. In order to bring home the charges,
the prosecution produced the following
witnesses, namely:
1.
Brij Kishore
PW1
2.
Smt. Kamlesh
PW2
3.
Chandrabhan
PW3
4.
Satyadev Singh
PW4
5.
S.I. Rajkumar Singh
PW5
6.
Om Prakash Singh
PW6
7.
Khem Karan
PW7
8.
Dr. Pradeep Kumar
PW8
9.
Ratibhan Singh
PW9
10.
Ratibhan Singh
PW10

8. We have heard Ms. Nand Prabha
Shukla, learned A.G.A. for the Stateappellant and Sri Anil Kumar, learned
counsel for the sole respondent.

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

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

"7. Before proceeding further it
will be pertinent to mention that the entire
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
7 All. State of U.P. Vs. Bachchan Khan
877
interfered with because the presumption of
innocence
of
the
accused
is
further
strengthened by acquittal. The golden thread
which runs through the web of administration
of justice in criminal cases is that if two views
are possible on the evidence adduced in the
case, one pointing to the guilt of the accused
and the other to his innocence, the view
which is favourable to the accused should be
adopted. The paramount consideration of the
court is to ensure that miscarriage of justice
is prevented. A miscarriage of justice which
may arise from acquittal of the guilty is no
less than from the conviction of an innocent.
In a case where admissible evidence is
ignored, a duty is cast upon the appellate
court to reappreciate the evidence in a case
where the accused has been acquitted, for the
purpose of ascertaining as to whether any of
the accused committed any offence or not.
(See Bhagwan Singh v. State of M.P.1) The
principle to be followed by the appellate
court considering the appeal against the
judgment of acquittal is to interfere only
when there are compelling and substantial
reasons for doing so. If the impugned
judgment is clearly unreasonable, it is a
compelling reason for interference. These
aspects were highlighted by this Court in
Shivaji Sahabrao Bobade v. State of
Maharashtra2, Ramesh Babulal Doshi v.
State of Gujarat3 and Jaswant Singh v. State
of Haryana."

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

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

"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
878 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence is ignored, a duty is cast upon the
appellate
court
to
reappreciate
the
evidence in a case where the accused has
been
acquitted,
for
the
purpose
of
ascertaining as to whether any of the
accused committed any offence or not. (See
Bhagwan Singh v. State of M.P.) The
principle to be followed by the appellate
court considering the appeal against the
judgment of acquittal is to interfere only
when there are compelling and substantial
reasons for doing so. If the impugned
judgment is clearly unreasonable, it is a
compelling reason for interference. These
aspects were highlighted by this Court in
Shivaji Sahabrao Bobade v. State of
Maharashtra 10, Ramesh Babulal Doshi v.
State of Gujarat and Jaswant Singh v. State
of Haryana11"."

14.

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

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

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

[2]
The
Code
of
Criminal
Procedure,
1973
puts
no
limitation,
restriction or condition on exercise of such
power and an appellate Court on the
evidence before it may reach its own
conclusion, both on questions of fact and of
law.

[3] Various expressions, such
as,"substantial and compelling reasons",
"good and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtain extensive powers of an appellate
Court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasis the
reluctance of an appellate Court to
interfere with acquittal than to curtail the
power of the Court to review the evidence
and to come to its own conclusion.

[4] An appellate Court, however,
must bear in mind that in case of acquittal
there is double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person shall be
presumed to be innocent unless he is
proved guilty by a competent Court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence
is further reinforced, reaffirmed and
strengthened by the trial Court.

[5] If two reasonable conclusions
are possible on the basis of the evidence on
record, the appellate Court should not
disturb the finding of acquittal recorded by
the trial Court.

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

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

"... the High Court should and
will always give proper weight and
7 All. State of U.P. Vs. Bachchan Khan
879
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:

(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.
880 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(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
7 All. State of U.P. Vs. Bachchan Khan
881
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
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
882 INDIAN LAW REPORTS ALLAHABAD SERIES
must be outweighed evidence or to suffer
from the vice of guilt is proved. such
finding if outrageously defies logic as
irrationality. [Vide Babu v. State of Keralall
and Sunil Kumar Sambhudayal Gupta
(Dr.)8.]"

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

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

22. The Apex Court recently in
Jayaswamy vs. State of Karnataka,
(2018) 7 SCC 219, has laid down the
principles for laying down the powers of
appellate court in re-appreciating the
evidence in a case where the State has
preferred an appeal against acquittal,
which read as follows:

"13. It is by now well settled
that the Appellate Court hearing the
appeal filed against the judgment and
order of acquittal will not overrule or
otherwise
disturb
the
Trial
Court's
acquittal if the Appellate Court does not
find substantial and compelling reasons
for doing so. 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
7 All. State of U.P. Vs. Bachchan Khan
883
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."

23. 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
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
884 INDIAN LAW REPORTS ALLAHABAD SERIES
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 be
perverse if it is "against the weight of
evidence", or if the finding so outrageously
defies logic as to suffer from the vice of
irrationality.

(Vide Rajinder Kumar Kindra v.
Delhi Admn. [Rajinder Kumar Kindra v.
Delhi Admn., (1984) 4 SCC 635 : 1985
SCC (L&S) 131], Excise & Taxation
Officer-cum-Assessing Authority v. Gopi
Nath & Sons [Excise & Taxation Officercum-Assessing Authority v. Gopi Nath &
Sons, 1992 Supp (2) SCC 312], Triveni
Rubber & Plastics v. CCE [Triveni Rubber
& Plastics v. CCE, 1994 Supp (3) SCC
665], Gaya Din v. Hanuman Prasad [Gaya
Din v. Hanuman Prasad, (2001) 1 SCC
501], Aruvelu [Arulvelu v. State, (2009) 10
SCC 206 : (2010) 1 SCC (Cri) 288] and
Gamini Bala Koteswara Rao v. State of A.P.
[Gamini Bala Koteswara Rao v. State of
A.P., (2009) 10 SCC 636 : (2010) 1 SCC
(Cri) 372] )"

It is further observed, after
following the decision of this Court in
Kuldeep Singh v. Commr. of Police
[Kuldeep Singh v. Commr. of Police,
(1999) 2 SCC 10 : 1999 SCC (L&S) 429],
that if a decision is arrived at on the basis
of no evidence or thoroughly unreliable
evidence and no reasonable person would
act upon it, the order would be perverse.
But if there is some evidence on record
which is acceptable and which could be
relied upon, the conclusions would not be
treated as perverse and the findings would
not be interfered with.

14.3.