# State of U.P v. Ganga Vishun & Ors

- **Citation:** (2022) 10 ILRA 1150
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-22
- **Case number:** Government Appeal No. 2574 of 1985
- **Bench:** Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-ganga-vishun-ors-47677
- **Pages:** 6

## Headnote

A. Criminal Law - Challenge to acquittal
- It is settled legal position that injuries
on the injured person is a guarantee of
his being present on the place of
occurrence but is not guarantee of their
truthfulness
-
In
the
facts
and
circumstances of the case, it is not safe to
convict the accused person on the basis of
evidence produced by the prosecution. The
prosecution has utterly failed to prove its case
beyond all reasonable doubts and, therefore,
has acquitted all the accused-persons. (Para
18, 19)
B. Scope of interference - It has been held
by the Apex Court that if two views of the
evidence are reasonably possible, one
supporting
the
acquittal
and
other
indicating conviction, the High Court
should not, in such a situation, reverse the
order of acquittal recorded by the Trial
Court. (Para 20, 21)

Appeal dismissed. (E-4)

Precedent followed:

## Text

1150 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents under Section 302/34 and 201
I.P.C. is upheld.

49. Hence, in view of the matter & on
the contours of the judgment of the Apex
Court, we concur with the learned trial
Judge. The appeal sans merits and is
dismissed. The record and proceedings be
sent back to the Court below. The bail and
bail bonds are cancelled.

50. We are thankful to learned A.G.A.
and the learned counsel for the respondents
for ably assisting the Court.
----------
(2022) 10 ILRA 1150
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.09.2022

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Government Appeal No. 2574 of 1985

State of U.P. ...Appellant
Versus
Ganga Vishun & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Sri Pavan Kumar Kushwaha

A. Criminal Law - Challenge to acquittal
- It is settled legal position that injuries
on the injured person is a guarantee of
his being present on the place of
occurrence but is not guarantee of their
truthfulness
-
In
the
facts
and
circumstances of the case, it is not safe to
convict the accused person on the basis of
evidence produced by the prosecution. The
prosecution has utterly failed to prove its case
beyond all reasonable doubts and, therefore,
has acquitted all the accused-persons. (Para
18, 19)
B. Scope of interference - It has been held
by the Apex Court that if two views of the
evidence are reasonably possible, one
supporting
the
acquittal
and
other
indicating conviction, the High Court
should not, in such a situation, reverse the
order of acquittal recorded by the Trial
Court. (Para 20, 21)

Appeal dismissed. (E-4)

Precedent followed:

1. St. of Karn. Vs Gopalkrishna, (2005) 9 SCC
291 (Para 20)

2. Dilawar Singh Vs St. of Har., (2015) 1 SCC
737 (Para 21)

Present
Government
Appeal
assails
judgment and order dated 07.06.1985,
passed by Upper Munsif Magistrate VII,
District Bareilly, U/S 323/324/34 IPC.

(Delivered by Hon'ble Gajendra Kumar, J.)

1. The State of U.P. has preferred this
appeal under Section 378 Cr.P.C. assailing
the correctness of the judgment and order
dated 07.06.1985 passed by the learned
Civil Judge, Sr. Division-VIIth, DistrictBareilly in Criminal Case No.193 of 1985
(State Vs. Ganga Vishun and others)
whereby, the learned court below has
acquitted all the four accused-persons
(respondents) of the charges under Sections
323/324/34 of Indian Penal Code.

2. The Appeal against respondent
no.1 (Ganga Vishun) and respondent no.2
(Nathoo Lal) stands abated as they reported
to have died, which is evident from the
death certificate, filed by opposite party
no.3, a copy of the same has been annexed
as Annexure-SA-1 to the supplementary
affidavit. Appeal against respondent no.3
(Hori Lal) has already been abated by a coordinate Bench of this Court vide order
10 All. State of U.P. Vs. Ganga Vishun & Ors.
1151
dated 01.02.2016, therefore, the same will
proceed against respondent no.4-Siya Ram
only.

3. The prosecution story in brief is
that, on the basis of written report dated
25.04.1981 (Ex.Ka-1), a chick FIR was
registered at 22:10 p.m. against the
respondents
under
Sections
324/323//504/506 IPC (Ex.Ka-6). In the
said report, it is alleged by the informantRoshal Lal s/o Jhunnu Lal (P.W.-1) that on
the fateful day of 25.04.1981 at about 06:00
p.m., accused-persons were winnowing the
wheat in the field of the informant, and
when informant-Roshan Lal (P.W.-1) along
with his brother Ram Kumar (P.W.-2)
objected to do the same to the respondents,
they denied and said in a very rudely
manner that they will take it from this field
itself,
and
after
a
few
minutes,
informant/complainant saw that accusedpersons, namely, Ganga Vishu, Nathoo Lal
and Siya Ram armed with ''Ganta' and Hori
Lal armed with ''lathi-danda' committed
maar-peet with the informant and his
brother, as a result, they received serious
injuries.

4. While framing charge, the trial
judge framed charges against the accusedpersons under Sections 323/324/34 IPC.

5. So as to hold accused persons
guilty, prosecution has examined as many
as four witnesses. Statements of accused
persons were recorded under Section 313
Cr.P.C., in which they pleaded their
innocence and false implication.

6. By the impugned judgment, the
trial judge has acquitted the respondents of
all the charges. Hence, the present appeal
by the State, assailing the acquittal of the
accused-persons.

7. Learned AGA for the Stateappellant submits that the trial judge has
erred in law in acquitting all the accusedpersons (respondents). He submits that
once, the informants (injured) have made
allegations against the respondents, the
court was obliged to convict the accused.

8. On the other hand, Sri Pavan
Kumar Kushwaha, learned counsel for the
surviving respondent no.4, submits that he
was never involved in committing the
aforesaid offence and false allegation has
been levelled against him. As such, there is
no illegality or perversity in the order,
passed by the learned court below, hence
no interference is called for by this Court.

9. I have heard learned AGA for the
State-appellant,
Sri
Pavan
Kumar
Kushwaha, learned counsel appearing for
the surviving accused-respondent no.4 and
perused the material available on record.

10. As per the statement of Roshan
Lal (P.W.-1), who has specifically stated in
his
written
report
dated
25.04..1981
(Ex.Ka-1) that Hori Lal was armed with
lathi-danda and other accused-persons
were armed with Ganta, but in his crossexamination, Roshan Lal (P.W.-1) has
stated that Hori Lal was armed with Ganta
and other accused-persons were armed with
lathi-danda and committed maar-peet with
the informants-injured, which creates doubt
in the prosecution story.

11. Ram Kumar (P.W.-2), in his
examination-in-chief, has also supported
the prosecution story and as per his
statement, the accused-persons committed
maar-peet with the informants-injured till
five minutes, if his statement is accepted to
some extent, then informants-injured are
sure to get serious injuries, but as per
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
medical report, all the injuries are simple in
nature, which also creates doubts in the
story of the prosecution.

12. Narayan Lal (P.W.3), in his
statement, has stated that Tractor and
Thressor were standing on the ''Med'(मेड़),
at that point of time, and because of the
wind, straw (Bhusa) was going in the field
of the informants-injured so it could not be
said that the motive of the accused-persons
were bad, because the direction of the wind
could not be reversed as it moved
according to the natural order.

13. In his statement, Jev Lal Gangwar
(P.W.-4) has stated that, on the written
report (Tahrir) (Ex.Ka-1), given by the
informant-Roshan Lal, (P.W.-1), thumb
impression taken by the ink-pad, which
also creates doubt in the story of the
prosecution version as there is no evidence
available on record so as to prove that at
that point of time ink-pad was present
there.

14. Injury reports of accused persons
namely, Roshal Lal and Ram Kumar reads
as follows:-

Roshan Lal

1. Incise wound 8 c.m. x 3 c.m. x
muscle deep in the middle of the wrist of
the right hand.

2. Incise wound 8 c.m. x 1 c.m. x
muscle on the elbow

Impression:- All the injuries are
simple in nature and caused by sharp
weapon.

Ram Kumar

1. Incise wound 2 c.m. x 0.3 c.m.
x muscle deep behind the right elbow..

2. Abrasion contusion 7 c.m. x 2
c.m. below the left elbow.

Impression:- All the injuries are
simple in nature and injury no.1 caused by
sharp weapon.

15. Learned counsel for the Stateappellant submits that as per injury reports,
injured persons have received injuries by
sharp weapon and this fact has also not
been taken into consideration by the court
below. Injuries on the persons of the
injured/eye-witness guaranteed that story
narrated by the witnesses is true and there
is no material on record which can falsify
the evidence.

16. On the other hand, learned
counsel for the respondent submits that as
per injury reports, injured persons have
received injuries by sharp weapon which
also creates doubt in the story of the
prosecution as the aforesaid injuries are
simple in nature and not on vital parts of
the body. He further submits that from
perusal of the injury reports, it is apparent
that injury reports have not been proved by
the doctor and their genuineness has been
admitted and formal proof has been
dispensed with by the accused persons
which means that they have been admitted
by the accused persons as they are, but so
far as their contents are concerned they are
required to be proved by the prosecution
but the same has not been done by the
prosecution.

17. From perusal of the record, it is
evident that there is no denial of the fact
that the defence admitted the genuineness
of injury reports and formal proof thereof
was dispensed with so the genuineness and
10 All. State of U.P. Vs. Ganga Vishun & Ors.
1153
authenticity of the documents i.e. injury
reports stand proved and shall be read as
valid evidence under Section 294 Cr.P.C. It
is
settled
preposition
of
law
that
genuineness of any documents filed by the
parties if not disputed by the opposite
party. It can be read as a substantial
evidence.

18.
In
the
above
facts
and
circumstances of the case, the manner and
mode in which the injuries were received
by the injured persons has to be proved by
the prosecution which has not been
properly
proved.
In
the
facts
and
circumstances of this case, it can also not
be improbablized that the injured persons
received injury on their hands with gusts of
wind while removing the winnowing
machine. It is settled legal position that
injuries on the injured person is a guarantee
of his being present on the place of
occurrence but is not guarantee of their
truthfullness. In view of the above and in
the facts and circumstances of the case, it is
not safe to convict the accused person on
the basis of evidence produced by the
prosecution.

19. Considering all the aspects of the
case, the trial court came to the conclusion
that the prosecution has utterly failed to
prove its case beyond all reasonable doubts
and, therefore, has acquitted all the
accused-persons. The view taken by the
trial court is one of the possible view.

20. While considering the scope of
interference in an appeal or revision
against acquittal, it has been held by the
Apex Court that if two views of the
evidence are reasonably possible, one
supporting
the
acquittal
and
other
indicating conviction, the High Court
should not, in such a situation, reverse the
order of acquittal recorded by the trial
court. In the case of State of Karnataka
Vs. Gopalkrishna as reported in (2005) 9
SCC 291, the Hon'ble Apex Court, while
dealing with an appeal against acquittal,
observed as under:-

"In such an appeal the Appellate
Court does not lightly disturb the findings
of fact recorded by the Court below. If on
the basis of the same evidence, two views
are reasonably possible, and the view
favouring the accused is accepted by the
Court
below,
that
is
sufficient
for
upholding the order of acquittal. However,
if the Appellate Court comes to the
conclusion that the findings of the Court
below
are
wholly
unreasonable
or
perverse and not based on the evidence on
record, or suffers from serious illegality
including ignorance or misreading of
evidence on record, the Appellate Court
will be justified in setting aside such an
order of acquittal."

16. In Sudershan Kumar v.
State of Himachal reported in (2014) 15
SCC 666 the Hon'ble Supreme Court
observed thus;-

"31.It
has
been
stated
and
restated that a cardinal principle in
criminal jurisprudence that presumption of
innocence of the accused is reinforced by
an order of the acquittal. The appellate
court, in such a case, would interfere only
for very substantial and compelling reason.
There is plethora of case laws on this
proposition and we need not burden this
judgment by referring to those decisions.
Our purpose would be served by referring
to
one
reasoned
pronouncement
entitled Dhanapal v. State which is the
judgment where most of the earlier
decisions
laying
down
the
aforesaid
1154 INDIAN LAW REPORTS ALLAHABAD SERIES
principle are referred to. In para 37,
propositions laid down in an earlier case
are taken note of as under: -

"37. In Chandrappa v. State of
Karnataka, this Court held: ( SCC p. 432
para 42), (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."

32. Thereafter, in para 39, the
Court curled out five principles and we
would like to reproduce the said para
hereunder:

"39. The following principles
emerge from the cases above:

1. The accused is presumed to be
innocent until proven guilty. The accused
possessed this presumption when he was before
the trial court. The trial court's acquittal
bolsters the presumption that he is innocent.

2. The power of reviewing evidence
is wide and the appellate court can reappreciate the entire evidence on record. It can
review the trial court's conclusion with respect
to both facts and law, but the Appellate Court
must give due weight and consideration to the
decision of the trial court.

3. The appellate court should
always keep in mind that the trial court had
the distinct advantage of watching the
demeanour of the witnesses. The trial court is
in a better position to evaluate the credibility
of the witnesses.

4. The appellate court may only
overrule or otherwise disturb the trial court's
acquittal if it has "very substantial and
compelling reasons" for doing so.

5. If two reasonable or possible
views can be reached - one that leads to
acquittal, the other to conviction - the High
Courts/appellate courts must rule in favour
of the accused."
10 All. Chabila Vs. Ramawater
1155

21. In Dilawar Singh v. State of
Haryana, (2015) 1 SCC 737, the Supreme
Court reiterated the same in paragraphs 36
and 37 as under :

"36. The court of appeal would
not ordinarily interfere with the order of
acquittal unless the approach is vitiated by
manifest illegality. In an appeal against
acquittal, this Court will not interfere with
an order of acquittal merely because on the
evaluation of the evidence, a different
plausible view may arise and views taken
by the courts below is not correct. In other
words, this Court must come to the
conclusion that the views taken by the
learned courts below, while acquitting,
cannot be the views of a reasonable person
on the material on record.

37. In Chandrappa v. State of
Karnataka, the scope of power of
appellate court dealing with an appeal
against acquittal has been considered
and this Court held as under: (SCC p.432
para 42) "42....(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."

Unless there are substantial and
compelling reasons, the order of acquittal
is not required to be reversed in appeal. It
has been so stated in State of Rajasthan v.
Shera Ram."

22. Considering the above legal
position and the factual aspects of the case,
I am of the view that the trial Judge was
justified
in
acquitting
the
accusedrespondent.

23. The Appeal is, accordingly,
dismissed.
----------
(2022) 10 ILRA 1155
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 417 of 2022

Chabila ...Appellant
Versus
Ramawater ...Respondents

Counsel for the Appellant:
Sri Mridul Kumar

Counsel for the Respondents:
Sri Jitendra Kumar Ravat

A.
Civil
Law
-
Suit
for
Specific
Performance - Code of Civil Procedure,
1908 - Order XLI Rule 11; Specific Relief
Act, 1963 - Sections 16, 18, 20, 21 &
20(2)(b) r/w Explanation II of the Act - A
plea of non-est factum is different from
fraud. In case of a plea of fraud, the case
has to be established beyond reasonable
doubt. Here, a plea of fraud was raised and an
issue about it was framed at the defendant's
instance. So far as a rustic villager is concerned,
the burden of proof, in case of either plea of
fraud or non-est factum, be reversed, but that