# State of U.P v. Dhan Seth & Anr. Opp. Parties

- **Citation:** (2022) 8 ILRA 504
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-16
- **Case number:** Government Appeal No. 259 of 2021
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-dhan-seth-anr-opp-parties-48912
- **Pages:** 14

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 154, 156-(3),
313, 378 & 378(3), - Indian Penal Code,
1860 - Sections 201, 304-(B) & 498-(A),
- Dowry Prohibition Act,1961 - Section -
3/4 - Indian Evidence Act, 1872 -
Section - 113-B: - Government Appeal -
against order of Acquittal - complaint case -
FIR - offence of dowry death - demand of
additional dowry - PW-1 claimed that accused
husband & mother-in-law were strangulated
his daughter - power of appellate court - can
only be exercised when there is gross
misappreciation of the evidence coupled with
erroneous
interpretation
and
palpable
illegality by trial court.(Para 16)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections - 154, 156-(3),
313, 378 & 378(3), - Indian Penal Code,
1860 - Sections 201, 304-(B) & 498-(A),
- Dowry Prohibition Act, 1961 - Section -
3/4 - Indian Evidence Act, 1872 -
Section - 113-B - Government Appeal -
against order of Acquittal - complaint case -
FIR - offence of dowry death - demand of
additional dowry - PW-1 claimed that accused
husband & mother-in-law were strangulated
his daughter - - court finds that -
prosecution
theory
proceeds
on
week
premises as there were major contradiction in
the St.ments of PW-1 & PW-2, occasioned
with delay in lodging the FIR which sans
explanation, absence of post-mortem report &
facts regarding last rites as done itself by
prosecution but blamed to be disposing of
dead body put upon accused person and also
there is no any independent eyewitness was
produced - held - this is not a fit case
wherein this court should take a different
view - judgment of acquittal by trial court
does suffer from any illegality or perversity -
Leave
to
appeal
rejected
-
resultantly,
Government Appeal stands dismissed. (Para -
33, 34, 35, 36, 37, 39)

Appeal Dismissed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,743 of 48,366. This is a partial read: ask again with offset=39743 for what follows._

504 INDIAN LAW REPORTS ALLAHABAD SERIES

44. The records be sent back to the
court-below.
----------
(2022) 8 ILRA 504
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.07.2022

BEFORE

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

Government Appeal No. 259 of 2021

State of U.P. ...Appellant
Versus
Dhan Seth & Anr. ...Opp. Parties

Counsel for the Appellant:
G.A.

Counsel for the Opp. Parties:

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 154, 156-(3),
313, 378 & 378(3), - Indian Penal Code,
1860 - Sections 201, 304-(B) & 498-(A),
- Dowry Prohibition Act,1961 - Section -
3/4 - Indian Evidence Act, 1872 -
Section - 113-B: - Government Appeal -
against order of Acquittal - complaint case -
FIR - offence of dowry death - demand of
additional dowry - PW-1 claimed that accused
husband & mother-in-law were strangulated
his daughter - power of appellate court - can
only be exercised when there is gross
misappreciation of the evidence coupled with
erroneous
interpretation
and
palpable
illegality by trial court.(Para 16)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections - 154, 156-(3),
313, 378 & 378(3), - Indian Penal Code,
1860 - Sections 201, 304-(B) & 498-(A),
- Dowry Prohibition Act, 1961 - Section -
3/4 - Indian Evidence Act, 1872 -
Section - 113-B - Government Appeal -
against order of Acquittal - complaint case -
FIR - offence of dowry death - demand of
additional dowry - PW-1 claimed that accused
husband & mother-in-law were strangulated
his daughter - - court finds that -
prosecution
theory
proceeds
on
week
premises as there were major contradiction in
the St.ments of PW-1 & PW-2, occasioned
with delay in lodging the FIR which sans
explanation, absence of post-mortem report &
facts regarding last rites as done itself by
prosecution but blamed to be disposing of
dead body put upon accused person and also
there is no any independent eyewitness was
produced - held - this is not a fit case
wherein this court should take a different
view - judgment of acquittal by trial court
does suffer from any illegality or perversity -
Leave
to
appeal
rejected
-
resultantly,
Government Appeal stands dismissed. (Para -
33, 34, 35, 36, 37, 39)

Appeal Dismissed. (E-11)

List of Cases cited: -

1. Rajesh Prasad Vs St. of Bihar & anr. reported
in 2022 (3) SCC 471,

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

3. Tara Singh & ors. Vs St. of Punj. 1991 Supp
(1) SCC 536

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

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

1. The present appeal at the behest
of the State of U.P. emanates from the
proceeding
in
Sessions
Trial
No.
445/2016 (Registration No. 473 of 2016)
wherein the court of Additional Sessions
Judge, (Fast Track Court) No. 2, Rampur
by
virtue
of
the
judgment
dated
28.01.2021 has acquitted the accusedrespondent nos. 1 and 2 in Case Crime
No. 108C/2016 u/s 498A, 304B, 201 IPC
and Section 3⁄4 of the D.P. Act, P.S.
Patwai, District Rampur.
8 All. State of U.P. Vs. Dhan Seth & Anr.
505

2. The present appeal was presented
before this Court on 09.08.2021wherein the
Stamp Reporter had reported delay of 81
day. On 07.08.2021 the Stamp Reporter had
tendered its report which reads as under:-

"Although the instant Criminal Appeal
is beyond time by 81 days till today. It
should be considered with in time in light of
the
Hon'ble
Supreme
Court
order
Application 665/2021 in SMW (C) 3/2020"

3. On 25.08.2021 this Court passed the
following order:-

"This appeal is reported to be filed
beyond limitation by 81 days. It has been
filed along with a delay condonation
application.

Issue notice to the accused respondents
on delay condonation application returnable
at an early date.

Accused respondents shall file counter
affidavit
to
the
delay
condonation
application within three weeks. Appellant
shall have a week thereafter to file rejoinder
affidavit."

4. List/ put up in the additional cause
list before the appropriate bench on
29.11.2021.

5. A recall application no. 1 of 2021
was preferred by the State-appellant for
recalling of the order dated 25.08.2021 in
the factual back drop that consequent to the
passing of the order by the Hon'ble Apex
Court in Misc. Application No. 665/2021 in
SMW (C) No. 3/21 in the case of "In Re
Cognizance For Extension of Limitation Vs.
XXXX on 27.04.2021 wherein the delay
which had occurred during the pandemic
relating to Covid-19 was condoned and the
limitation which fell due during the
intervening period was extended.

6. Accordingly, in view of the office
report dated 07.08.2021 the present appeal
was treated to be within limitation and thus
regular number was allotted. In view of the
said background now there is no occasion
for this Court to proceed with the recall
application so preferred by the Stateappellant. Thus, the recall application No. 1
of 2021 has rendered infructuous.

7. Though, in this appeal the Stateappellant has arrayed two accused being
respondent nos. 1 and 2 however, this Court
finds that there is an office report dated
15.07.2022 accompanied with the letter
dated
23.12.2021
of
Chief
Judicial
Magistrate, Rampur address to the Section
Officer (Criminal Appeal Section bearing
No. 1188/2021) certifying the fact that so
far as the accused-respondent no. 2 Naubat
Ram S/o Mewa Ram is concerned, he
expired on 10.05.2021. A copy of the death
certificate issued by Registrar (Birth And
Death) Gram Panchayat, Mandaiyan Kali is
also on record showing the fact that the
respondent no. 2 Naubat Ram S/o Mewa
Ram has expired on 10.05.2021.

8. Resultantly, the present appeal
stands abated against accused-respondent
no. 2 Naubat Ram S/o Mewa Ram.

9. Prosecution story encompasses that
one Som Pal who happens to be the father
of the deceased Pushpa Devi is said to have
solemnized
marriage
with
accusedrespondent no. 1 Dhan Seth S/o Naubat
Ram on 27.11.2015. Though various gifts
and offering were extended to accused side
but as per the allegations the accused
fractions were not happy with the gifts and
the offering as the same were not
commensurate to the expectations of the
accused fraction. Consequently, demand of
the additional amount of Rs. 2 lakhs was
506 INDIAN LAW REPORTS ALLAHABAD SERIES
sought to be made from the accused
prosecution side. Even reconciliation were
sought to be made and the matter was also
put before the concerned panchayat,
however, the same was of no avail as
administering of beating as well as
harassment was being sought to be meted
to the deceased daughter. As per the
prosecution case on 28.04.2015 at about 6
in the evening it is being stated that the
accused being Dhan Seth (husband) Naubat
Ram (father-in-law), Jaminiya (Mother-inlaw) had the common intention to dispose
of
the
deceased
daughter
and
they
strangulated her. Further allegation have
been made that the deceased daughter
Pushpa Devi was six months pregnant and
at 06:30 in the evening on 24.08.2015 the
accused who were marked in the FIR in
question, made a phone call and thereafter
apprised the informant that they had
murdered the deceased daughter. On
receiving
the
said
information,
the
informant along with his close associates
who were residing in the same village
which obviously is of the informant being
Mukhram, Harfool, Mangal Sen, Chhote
Lal proceeded to the in-laws of the
deceased and witnessed that the deceased
was lying in a cot in dead condition.
According to the informant the neighbours
and the other inhabitants who were present
over there, informed that his daughter on
the date of the death in the morning was
subjected to beating. Further allegation was
made that the deceased sustained sever
injuries. According to the informant he was
apprised that nobody should disclose the
said fact regarding the murder of the
deceased daughter to anybody otherwise
the accused will treat it as an enmity.
According to the informant he thereafter in
the next morning proceeded to police
station for tendering his complaint for
lodging of FIR however, the police so
stationed in the concerned police station
detained him till noon and thereafter, the
informant without lodging of the FIR came
back. Further it is also stated that threats
were also administered to the informant
that in case the informant does not enter
into any settlement or compromise then the
informant will be put in a very disasters
condition and thereafter, faced with the
circumstances, the informant again went to
the police station, however, in between the
accused along with accomplish who are
stated to be resourceful and powerful came
to the house and took away the dead body
of the deceased and behind his back
consigned the dead body of the deceased on
flames and threw away the ashes in river
Ganga. As per the prosecution proceedings
purported to be u/s 156 (3) Cr.P.C. was
undertaken on 27.11.2015 before the court
of C.J.M., Rampur and the FIR has been
lodged u/s 498A, 304B, 201 IPC and
section 3⁄4 Dowry Prohibition Act being
Case Crime No. 108C/2016. It has come on
record that investigation was put to motion
and consequently charge sheet was also
submitted u/s 498A, 304B, 201 IPC and
Section 3⁄4 D.P. Act. Case was also
committed before the Sessions Court and
on 22.01.2019 the learned trial court abated
the criminal proceedings against the
mother-in-law
of
the
deceased
Smt.
Jaminiya consequent to the death.

10. In order to prove the charges, the
prosecution
produces
the
following
witnesses namely, Som Pal- P.W. 1, Smt.
Bhuri Devi-P.W. 2, Dinesh Kumar- P.W. 3,
Constable Lokesh Kumar-P.W. 4.

11. Prosecution also produced the
following documents to bring home the
charges:- (i) Application u/s 156 (3) Cr.P.C.
Ex. A-1, (ii) Affidavit Ex. A-2, (iii) Site
Plan Ex. A-3, (iv) Charge Sheet Ex. A-4,
8 All. State of U.P. Vs. Dhan Seth & Anr.
507
(v) F.I.R Ex. A-5, (vi) G.D. No. 039 Ex. A6.

12. Further the prosecution also
produces
the
following
additional
documents
being
the
material
Ex.-1
Photograph and material Ex.-2 Postal
Receipt.

13. The proceedings u/s 313 of the
Cr.P.C. was also undertaken and thereafter,
charges were read over to the accused they
claimed not guilty and innocence. The
learned trial court by virtue of the order
dated 28.01.2021 passed in Session Trial
No. 445/2016 (Registration No. 473/2016)
State of U.P. Vs. Dhan Seth and another,
acquitted the accused with respect to
section 304B, 498A, 201 IPC and section
3/4 D.P. Act.

14. Challenging the order of acquittal
now the State-appellant is before this
Court.

15. Heard Sri Ratan Singh, learned
A.G.A. for the State-appellant and perused
the record.

16. Before elucidating the controversy
so sought to be raised in the present appeal
u/s 378 of the Cr.P.C., this Court is to rememorize itself the boundaries within
which the frame work of the case is to be
drawn. Meaning thereby that this Court has
to remain oblivious to the limitations so
envisaged
while
exercising
appellate
powers against the judgment of acquittal.
The appellate Court while exercising
appellate jurisdiction cannot act in a routine
or cursory manner as the jurisdiction can
only be exercised when there is gross
misappreciation of the evidence coupled
with erroneous interpretation and palpable
illegality so as to suggest that no prudent
person can comprehend the same. Even if
the view taken by the learned trial court
while acquitting the accused is found to be
a plausible and possible view then there is
no occasion for this Court while exercising
appellate
jurisdiction
to
reverse
the
judgment from acquittal to conviction
while taking another view.

17. Nevertheless in the Case of
Rajesh Prasad Vs. State of Bihar And
Another reported in 2022 (3) SCC 471 the
Hon'ble
Apex
Court
in
following
paragraphs have observed as under:-

"21. Before proceeding further, it
would be useful to review the approach to
be adopted while deciding an appeal
against acquittal by the trial court as well
as by the High Court. Section 378 of the
Cr.P.C deals with appeals in case of
acquittal. In one of the earliest cases on the
powers of the High Court in dealing with
an appeal against an order of acquittal the
Judicial Committee of the Privy Council in
Sheo Swarup vs. R. Emperor, AIR 1934 PC
227(2) considered the provisions relating to
the power of an appellate court in dealing
with an appeal against an order of
acquittal and observed as under:

"16. It cannot, however, be forgotten
that in case of acquittal, there is a 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 should be presumed to be
innocent unless he is proved to be guilty by
a competent court of law. Secondly, the
accused having secured an acquittal, the
presumption of his innocence is certainly
not weakened but reinforced, reaffirmed
and strengthened by the trial court.

But in exercising the power conferred
by the Code and before reaching its
508 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusions upon fact, 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 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. To state this, however, is only to
say that the High Court in its conduct of the
appeal should and will act in accordance
with rules and principles well known and
recognised in the administration of justice."

It was stated that the appellate court
has full powers to review and to reverse the
acquittal.

22. In Atley vs. State of U.P., AIR
1955 SC 807, the approach of the
appellate court while considering a
judgment of acquittal was discussed and
it was observed that unless the appellate
court comes to the conclusion that the
judgment of the acquittal was perverse, it
could not set aside the same. To a similar
effect are the following observations of
this Court speaking through Subba Rao
J., (as His Lordship then was) in Sanwat
Singh vs. State of Rajasthan, AIR 1961
SC 715:

"9. The foregoing discussion yields
the following results: (1) an appellate
court has full power to review the
evidence upon which the order of
acquittal is founded; (2) the principles
laid down in Sheo Swarup case afford a
correct guide for the appellate court's
approach to a case disposing of such an
appeal; and (3) the different phraseology
used in the judgments of this Court, such
as,
(i)
''substantial and
compelling
reasons', (ii) ''good and sufficiently
cogent reasons', and (iii) ''strong reasons'
are not intended to curtail the undoubted
power of an appellate court in an appeal
against acquittal to review the entire
evidence and to come to its own
conclusion; but in doing so it should not
only consider every matter on record
having a bearing on the questions of fact
and the reasons given by the court below
in support of its order of acquittal in its
arriving at a conclusion on those facts,
but should also express those reasons in
its judgment, which lead it to hold that
the acquittal was not justified."

The
need
for
the
aforesaid
observations
arose
on
account
of
observations of the majority in Aher Raja
Khimavs. State of Saurashtra, AIR 1956
SC 217 which stated that for the High
Court to take a different view on the
evidence "there must also be substantial
and compelling reasons for holding that
the trial court was wrong."

23. M.G. Agarwal vs. State of
Maharashtra, AIR 1963 SC 200 is the
judgment of the Constitution Bench of this
Court, speaking through Gajendragadkar,
J. (as His Lordship then was). This Court
observed that the approach of the High
Court (appellate court) in dealing with an
appeal against acquittal ought to be
cautious because the presumption of
innocence in favour of the accused "is not
certainly weakened by the fact that he has
been acquitted at his trial."

24. In Shivaji Sahabrao Bobade vs.
State of Maharashtra, (1973) 2 SCC 793,
Krishna Iyer, J., observed as follows:

"In
short,
our
jurisprudential
enthusiasm for presumed innocence must
be moderated by the pragmatic need to
make criminal justice potent and realistic.
A balance has to be struck between chasing
chance possibilities as good enough to set
8 All. State of U.P. Vs. Dhan Seth & Anr.
509
the delinquent free and chopping the logic
of preponderant probability to punish
marginal innocents."

25. This Court in Ramesh Babulal
Doshi vs. State of Gujarat, (1996) 9 SCC
225, spoke about the approach of the
appellate court while considering an
appeal against an order acquitting the
accused and stated as follows:

"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 thenand then only
reappraise the evidence to arrive at its own
conclusions."

The object and the purpose of the
aforesaid approach is to ensure that there is
no miscarriage of justice. In another words,
there should not be an acquittal of the
guilty or a conviction of an innocent
person.

26. In Ajit Savant Majagvai vs. State
of Karnataka, (1997) 7 SCC 110, this
Court set out the following principles that
would regulate and govern the hearing of
an appeal by the High Court against an
order of acquittal passed by the Trial
Court:

"16. This Court has thus explicitly and
clearly laid down the principles which would
govern and regulate the hearing of appeal by
the High Court against an order of acquittal
passed by the trial court. These principles
have been set out in innumerable cases and
may be reiterated as under:

(1) In an appeal against an order of
acquittal, the High Court possesses all
the powers, and nothing less than the
powers it possesses while hearing an
appeal against an order of conviction.

(2) The High Court has the power to
reconsider the whole issue, reappraise
the evidence and come to its own
conclusion and findings in place of the
findings recorded by the trial court, if the
said findings are against the weight of the
evidence on record, or in other words,
perverse.

(3) Before reversing the finding of
acquittal, the High Court has to consider
each ground on which the order of
acquittal was based and to record its own
reasons for not accepting those grounds
and not subscribing to the view expressed
by the trial court that the accused is
entitled to acquittal.

(4) In reversing the finding of
acquittal, the High Court has to keep in
view the fact that the presumption of
innocence is still available in favour of
the accused and the same stands fortified
and strengthened by the order of acquittal
passed in his favour by the trial court.

(5) If the High Court, on a fresh
scrutiny and reappraisal of the evidence
and other material on record, is of the
opinion that there is another view which
can be reasonably taken, then the view
which favours the accused should be
adopted.

(6) The High Court has also to keep in
mind that the trial court had the advantage
of looking at the demeanour of witnesses
and observing their conduct in the Court
especially in the witness-box.

(7) The High Court has also to keep in
mind that even at that stage, the accused
was entitled to benefit of doubt. The doubt
should be such as a reasonable person
510 INDIAN LAW REPORTS ALLAHABAD SERIES
would
honestly
and
conscientiously
entertain as to the guilt of the accused."

27. This Court in Ramesh Babulal
Doshi vs. State of Gujarat, (1996) 9 SCC
225 observed visvis the powers of an
appellate court while dealing with a
judgment of acquittal, as under:

"7. ... 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."

28. This Court in Chandrappa & Ors.
vs. State of Karnataka, (2007) 4 SCC 415,
highlighted that there is one significant
difference in exercising power while
hearing an appeal against acquittal by the
appellate court. The appellate court would
not interfere where the judgment impugned
is based on evidence and the view taken
was reasonable and plausible. This is
because the appellate court will determine
the fact that there is presumption in favour
of the accused and the accused is entitled
to get the benefit of doubt but if it decides
to interfere it should assign reasons for
differing with the decision of acquittal.

29. After referring to a catena of
judgments, this Court culled out the
following general principles regarding the
powers of the appellate court while dealing
with an appeal against an order of
acquittal in the following words:

"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
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."
8 All. State of U.P. Vs. Dhan Seth & Anr.
511

30. In Nepal Singh vs. State of
Haryana- (2009) 12 SCC 351, this Court
reversed the judgment of the High Court
which had set aside the judgment of
acquittal pronounced by the trial court and
restored the judgment of the trial court
acquitting the accused on reappreciation of
the evidence.

31. The circumstances under which an
appeal would be entertained by this Court
from an order of acquittal passed by a High
Court may be summarized as follows:

31.1. Ordinarily, this Court is cautious
in interfering with an order of acquittal,
especially when the order of acquittal has
been confirmed upto the High Court. It is
only in rarest of rare cases, where the High
Court, on an absolutely wrong process of
reasoning and a legally erroneous and
perverse approach to the facts of the case,
ignoring some of the most vital facts, has
acquitted the accused, that the same may
be reversed by this Court, exercising
jurisdiction under Article 136 of the
Constitution. [State of U.P. v. Sahai, AIR
1981 SC 1442] Such fetters on the right to
entertain an appeal are prompted by the
reluctance to expose a person, who has
been acquitted by a competent court of a
criminal charge, to the anxiety and tension
of a further examination of the case, even
though it is held by a superior court.
[Arunachalam v. Sadhananthan, AIR 1979
(SC)
1284]
An
appeal
cannot
be
entertained against an order of acquittal
which has, after recording valid and
weighty reasons, has arrived at an
unassailable, logical conclusion which
justifies acquittal. [State of Haryana v.
Lakhbir Singh, (1990) CrLJ 2274 (SC)] B)

31.2. However, this Court has on
certain occasions, set aside the order of
acquittal passed by a High Court. The
circumstances under which this Court may
entertain an appeal against an order of
acquittal and pass an order of conviction,
may be summarised as follows:

31.2.1.
Where
the
approach
or
reasoning of the High Court is perverse:

a) Where incontrovertible evidence
has been rejected by the High Court based
on suspicion and surmises, which are
rather unrealistic. [State of Rajasthan v.
Sukhpal Singh, AIR 1984 SC 207] For
example, where direct, unanimous accounts
of the eyewitnesses, were discounted
without cogent reasoning; [State of UP v.
Shanker, AIR 1981 SC 879]

b) Where the intrinsic merits of the
testimony of relatives, living in the same
house as the victim, were discounted on the
ground
that
they
were
''interested'
witnesses; [State of UP v. Hakim Singh,
AIR 1980 SC 184]

c) Where testimony of witnesses had
been disbelieved by the High Court, on an
unrealistic conjecture of personal motive
on the part of witnesses to implicate the
accused, when in fact, the witnesses had no
axe to grind in the said matter. [State of
Rajasthan v. Sukhpal Singh, AIR 1984 SC
207]

d) Where dying declaration of the
deceased victim was rejected by the High
Court on an irrelevant ground that they did
not explain the injury found on one of the
persons present at the site of occurrence of
the crime. [Arunachalam v. Sadhanantham,
AIR 1979 SC 1284]

e) Where the High Court applied an
unrealistic standard of ''implicit proof'
rather
than
that
of
''proof
beyond
reasonable doubt' and therefore evaluated
the evidence in a flawed manner. [State of
UP v. Ranjha Ram, AIR 1986 SC 1959]

f) Where the High Court rejected
circumstantial evidence, based on an
exaggerated and capricious theory, which
were beyond the plea of the accused; [State
of Maharashtra v. ChampalalPunjaji Shah,
512 INDIAN LAW REPORTS ALLAHABAD SERIES
AIR 1981 SC 1675] or where acquittal rests
merely in exaggerated devotion to the rule
of benefit of doubt in favour of the accused.
[Gurbachan v. Satpal Singh, AIR 1990 SC
209].

g) Where the High Court acquitted the
accused on the ground that he had no
adequate motive to commit the offence,
although, in the said case, there was strong
direct evidence establishing the guilt of the
accused, thereby making it unnecessary on
the part of the prosecution to establish
''motive.'
[State
of
AP
v.
Bogam
Chandraiah, AIR 1986 SC 1899]

31.2.2. Where acquittal would result is
gross miscarriage of justice:

a) Where the findings of the High
Court, disconnecting the accused persons
with
the
crime,
were
based
on
a
perfunctory consideration of evidence,
[State of UP v. Pheru Singh, AIR 1989 SC
1205]
or
based
on
extenuating
circumstances which were purely based in
imagination and fantasy. [State of Uttar
Pradesh v. Pussu 1983 AIR 867 (SC)]

b) Where the accused had been
acquitted on ground of delay in conducting
trial, which delay was attributable not to
the tardiness or indifference of the
prosecuting agencies, but to the conduct of
the accused himself; or where accused had
been acquitted on ground of delay in
conducting trial relating to an offence
which is not of a trivial nature. [State of
Maharashtra v. ChampalalPunjaji Shah,
AIR 1981 SC 1675] [Source : Durga Das
Basu - "The Criminal Procedure Code,
1973" Sixth Edition Vol.II Chapter XXIX]"

18 . To begin with this Court finds
appropriate to analye the ocular testimony of
the prosecution witnesses.

19. P.W. 1 Sri Som Pal Singh entered into the
witness box and had deposed that he had
offered various gifts at the time of marriage
of the deceased daughter which were as per
his capacity, however, the same was found to
be insufficient and additional demand of Rs.
2 lakhs was sought to be made and when the
same was not fulfilled then on 24.08.2015 the
accused disposed of her daughter while
strangulating her showing it to be a suicide
and informed about the said offence of
24.08.2015 at 06:30 in the evening. It has
been further deposed that the first informant
P.W. 1 immediately rushed to the in-laws
place along with his wife and one Sri
Harfool, Mukhram and Kafi who were his
close associates and at that point of time he
saw his daughter in a dead condition lying
over a cot and the accused had run away from
their house and were not traceable. It has
been further deposed that the natives who
were present in the site of occurrence
apprised him that in the morning itself, the
deceased was subjected to beating and they
were further threatened that they should not
disclose the said fact and rather the informant
was also threatened. Even threat was also
administered that in case, the first informant
does not enter into settlement with the
accused then the will have to face the music.
According to P.W. 1 his daughter sustained
several injuries and he on the next day in the
morning proceeded to the police station for
lodging of the FIR, however, he was detained
till the noon but no FIR was lodged and then
he came back and saw that the dead body of
his daughter was missing and it was
forcefully taken away by the accused and the
accused have consigned the dead body of the
deceased on flames and threw away the ashes
in the Ganga river. As per the P.W. 1
proceedings were undertaken u/s 156 (3)
Cr.P.C. on 27.11.2015 and the FIR has been
lodged.

20. As P.W. 2 mother of the deceased
Smt. Bhuri W/o of P.W. 1 Som Pal
8 All. State of U.P. Vs. Dhan Seth & Anr.
513
appeared to give their testimony. According
to the testimony of P.W. 2 she also deposed
that the husband of the deceased being
accused-respondent no. 1 called upon the
P.W. 1 apprising the fact that the deceased
had died and she along with her husband,
P.W.1 and Bhoopram and other family
members proceeded to the house of in-laws
of their daughter and the accused has ran
away from the place of occurrence and she
returned along with her family members on
the next day at 12 noon.

21. So far as P.W. 3 is concerned, he
happens to be the Station House Officer,
Kotwali and P.W. 4 is Constable Lokesh
Kumar who are formal witnesses.

22. Before proceeding further, this
Court has to bestow its consideration about
the fact as to whether delay in lodging of
FIR would demolish the case of the
prosecution or not and whether the
prosecution was able to prove beyond
doubt that the ingredients so contained u/s
498A, 304B IPC and 113B of the Evidence
Act stands attracted and lastly the fact as to
whether the accused are liable to be chaired
with the thrown of acquittal or put behind
the bars while being convicted.

23. So far as the issue with regard in delay
in lodging of the FIR and its effect on the
prosecution
theory
is
concerned,
a
remarkable fact need to be noticed that as
per the prosecution they received the
information regarding commission of crime
on 24.08.2015 at 06:30 in the evening
through telephonic call wherein it was
stated that stated that the crime was
committed on 24.08.2015 at 06:00 in the
evening. Notably P.W. 1 Som Pal (father of
the deceased) and P.W. 2 Smt. Bhuri
(mother of the deceased) along with
Harfool, Mukhram and kafi proceeded to
the house of in-laws of the deceased
whereat the dead body of the deceased was
found lying over a cot. Meaning thereby,
the P.W.1 and P.W. 2 had full knowledge
about the death of the daughter and further
as per prosecution, the accused herein were
not in the house but they were absconding.
As per prosecution, on the next day in the
morning P.W. 1 Som Pal proceeded to
concerned police station for lodging of FIR,
however, the same was not lodged and he
was detained till noon and when he came
back, the dead body of the deceased was
found missing. Normally, when the parents
are confronted with a situation wherein
their daughter had died and the allegation is
that she had been strangulated that too in
her in-laws place and the parents are
witnessing the dead body of the deceased
then
it
is
highly
implorable
and
inconceivable that FIR would not be lodged
promptly and a person will wait for the
next day to get the FIR lodged and in case
FIR is also not lodged then he would wait
for such a long time and undertake
proceedings u/s 156 (3) Cr.P.C. that too
after
approximately
more
than
three
months. The learned trial court has
analysed the said issue while recording
findings that though it had been pleaded
before
it
by
the
prosecution
that
applications were filed on 01.09.2015,
25.09.2015, 05.10.2015, 28.11.2015 for
lodging of the FIR before the police station
but when the same was not lodged then on
18.11.2015 a registered letter was sent to
the Superintendent of Police for lodging of
the FIR and proceedings were undertaken
on 27.11.2015 u/s 156 (3) Cr.P.C.

24. Though it is well settled that delay
in lodging of FIR cannot be the sole ground
to demolish the prosecution case, however,
what is to be seen is the explanation so
offered by the prosecution. Even otherwise,
514 INDIAN LAW REPORTS ALLAHABAD SERIES
each and every case is to be judged
according to its own fact. Additional fact
needs to be noticed is this that according to
the prosecution case on 24.08.2015 the
P.W. 1 and P.W. 2 and others found the
dead body of the deceased in her in-laws
place. Further as per the prosecution the
body itself was consigned to flames and
ashes whereof was thrown in the Ganga
river. The reaction of a normal person
would be that a prompt FIR should be
lodged, however, barring writing of letters
there is nothing on record to give
explanation regarding delay in lodging of
FIR. More so, no independent witness has
been put up in the witness box so as to
prove the fact that the deceased died in the
accused house and the body itself was
consigned to flame and let of.

25. Hon'ble Apex Court on the question of
delay in lodging the FIR and its impact
upon the prosecution theory has observed
in the case of (1973) 3 SCC 114 Apren
Joseph Alias Current Kunjukunju and
others Vs. The State of Kerala wherein
para 11 following was mandated:

11. Now first information report is a report
relating to the commission of an offence
given to the police and recorded by it under
Section 154, Cr. P. C. As observed by the
Privy Council in K. E. v. Khwaja, the
receipt and recording of information report
by the police is not a condition precedent to
the setting in motion of a criminal
investigation. Nor does the statute provide
that such information report can only be
made by an eye witness. First information
report under Section 154 is not even
considered a substantive piece of evidence.
It can only be used to corroborate or
contradict the informant's evidence in
court. But this information when recorded
is the basis of the case set up by the
informant. It is very useful if recorded
before there is time and opportunity to
embellish or before the informant's memory
fades.
Undue
unreasonable
delay
in
lodging the F. I. R., therefore, inevitably
gives rise to suspicion which puts the court
on guard to look for the possible motive
and the explanation for the delay and
consider its effect on the trustworthiness or
otherwise of the prosecution version. In our
opinion, no duration of time in the abstract
can be fixed as reasonable for giving
information of a crime to the police, the
question of reasonable time being a matter
for determination by the court in each case.
Mere delay in lodging the first information
report with the police is, therefore, not
necessarily, as a matter of law, fatal to the
prosecution. The effect of delay in doing so
in the light of the plausibility of the
explanation forthcoming for such delay
accordingly must fall for consideration on
all the facts and circumstances of a given
case.

26. In the case of Tara Singh and
others Vs. State of Punjab 1991 Supp (1)
SCC 536, the Hon'ble Apex Court in
paragraph 4 has observed as under:-

4. It is well settled that the delay in giving
the FIR by itself cannot be a ground to
doubt the prosecution case. Knowing the
Indian conditions as they are we cannot
expect these villagers to rush to the police
station immediately after the occurrence.
Human nature as it is, the kith and kin who
have witnessed the occurrence cannot be
expected to act mechanically with all the
promptitude in giving the report to the
police.
At
times
being
grief-stricken
because of the calamity it may not
immediately occur to them that they should
give a report. After all it is but natural in
these circumstances for them to take some
8 All. State of U.P. Vs. Dhan Seth & Anr.
515
time to go to the police station for giving
the report. Of course the Supreme Court as
well as the High Courts have pointed out
that in cases arising out of acute factions
there is a tendency to implicate persons
belonging to the opposite faction falsely. In
order to avert the danger of convicting such
innocent persons the courts are cautioned
to scrutinise the evidence of such interested
witnesses with greater care and caution
and separate grain from the chaff after
subjecting the evidence to a closer scrutiny
and in doing so the contents of the FIR also
will have to be scrutinised carefully.
However, unless there are indications of
fabrication, the court cannot reject the
prosecution version as given in the FIR and
later substantiated by the evidence merely
on the ground of delay. These are all
matters for appreciation and much depends
on the facts and circumstances of each
case.

27. Yet, in the case of P. Rajagopal
and others Vs. State of Tamil Nadu
(2019) 5 SCC 403, the Hon'ble Apex Court
in paragraph 12 has held as under:-

12. Normally, the Court may reject the
case of the prosecution in case of inordinate
delay in lodging the first information report
because of the possibility of concoction of
evidence by the prosecution. However, if the
delay is satisfactorily explained, the Court will
decide the matter on merits without giving
much importance to such delay. The Court is
duty-bound
to
determine
whether
the
explanation afforded is plausible enough given
the facts and circumstances of the case. The
delay may be condoned if the complainant
appears to be reliable and without any motive
for implicating the accused falsely.

28.