# State of U.P v. Har Dayal Singh & Ors

- **Citation:** (2023) 8 ILRA 833
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-07
- **Case number:** Government Appeal No. 1873 of 1984
- **Bench:** Surya Prakash Kesarwani, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-har-dayal-singh-ors-50606
- **Pages:** 9

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 378 - Appeal
against acquittal - Principles reiterated -
Trial Court's judgment of acquittal not
found
perverse
-
Medical
evidence
inconsistent with prosecution story -
Injuries on deceased and eyewitnesses
unexplained - Doubt regarding presence
of PW - 1 and PW - 2 at the spot - Minor
contradictions not sufficient to overturn
acquittal
-
High
Court
declined
to
interfere.

Held: Where two views are reasonably possible
on the basis of the evidence on record, the one
favouring the accused should be upheld in
appeal against acquittal. In the present case,
prosecution failed to convincingly establish
presence of eyewitnesses, motive, or credible
explanation for injuries. Trial Court's findings
not perverse or irrational. Hence, interference
unwarranted.

Appeal Dismissed.

Case Law Discussed:
834 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

8 All. State of U.P. Vs. Har Dayal Singh & Ors.
833
find that not many phone calls exceeded a
minute's time and, therefore, it appears that
there were phone calls only to say 'hello'
and 'Good Morning'. It cannot, therefore,
be concluded that these phone calls were
made to make complaints to the parents or
to the brother with regard to cruelty. If such
complaints were made, they would take
much more time than the phone calls
details show.

24. Further we find that there was no
instigation to the deceased to the extent that
she could end her life. The hyoid bone was
intact and, therefore, the only conclusion
was that it was a suicide. If the hyoid bone
is
broken
then,
under
the
medical
jurisprudence, normally it would mean that
the death was caused due to strangulation.
The Doctor has also concluded that the
death occurred because of hanging which
had resulted in asphyxia.

25. Upon considering all the aspects,
we are of the view that the appellant Lalit
Kumar Poswal in Criminal Appeal No.1823
of 2022 was not guilty of the charges which
were framed against him. He, therefore, is
being acquitted.

26. Under such circumstances, the
judgment and order dated 5.3.2022 passed
by the Additional Sessions Judge/FTC-1,
Gautam Buddha Nagar, so far as it convicts
the appellant Lalit Kumar Poswal, is
quashed and is set-aside. The appellant be
released forthwith if he is not required in
any other criminal case.

27. Since we had allowed the
Criminal Appeal No.1823 of 2022, for all
the reasons stated above, Criminal Appeal
U/S 372 Cr.P.C. No.672 of 2022 and
Government Appeal No.356 of 2022 stand
dismissed.
----------
(2023) 8 ILRA 833
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.08.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE MS. NAND PRABHA
SHUKLA, J.

Government Appeal No. 1873 of 1984

State of U.P. ...Appellant
Versus
Har Dayal Singh & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Sri P.N. Mishra, Sri Suresh Dhar Dwivedi, Sri
Vidya Kant Tripathi

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 378 - Appeal
against acquittal - Principles reiterated -
Trial Court's judgment of acquittal not
found
perverse
-
Medical
evidence
inconsistent with prosecution story -
Injuries on deceased and eyewitnesses
unexplained - Doubt regarding presence
of PW - 1 and PW - 2 at the spot - Minor
contradictions not sufficient to overturn
acquittal
-
High
Court
declined
to
interfere.

Held: Where two views are reasonably possible
on the basis of the evidence on record, the one
favouring the accused should be upheld in
appeal against acquittal. In the present case,
prosecution failed to convincingly establish
presence of eyewitnesses, motive, or credible
explanation for injuries. Trial Court's findings
not perverse or irrational. Hence, interference
unwarranted.

Appeal Dismissed.

Case Law Discussed:
834 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Ravi Sharma Vs State, (2022) 8 SCC 536;

2. Kuldeep Singh Vs Commr. of Police, (1999) 2
SCC 10;

3. Vijay Mohan Singh Vs St. of Karn., (2019) 5
SCC 436;

4. Chandrappa Vs St. of Karn., (2007) 4 SCC
415;

5. Dhanapal Vs State, (2009) 10 SCC 401;

6. N. Vijayan Kumar Vs St. of T.N., (2021) 3
SCC 687;

7. Hakeem Khan Vs St. of M.P., (2017) 5 SCC
719;

8. St. of Karn. Vs K. Gopalkrishna, (2005) 9 SCC
291.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri K.P. Pathak, learned
A.G.A. for the appellants and sri Suresh
Dhar Dwivedi Vidya Kant, learned counsel
for the accused-opposite parties.

2. Briefly stated, facts of the present
case are that a First Information Report
being Case Crime No.14/1983 dated
11.02.1983 under Section 302/324 I.P.C.,
P.S. S.M. North, Sub-District Puwaya,
District Sahajahanpur, was lodged by the
informant eyewitness PW-1 Avtar Singh,
who is the son of the deceased Kundan
Singh. As per FIR version, there arose a
dispute of return of buffaloes purchased by
the deceased from the accused Hardayal
Singh and simple scuffle took place about
three or four months before the date of
incident, i.e. 11.02.1983. This resulted in
enmity. When the deceased Kundan Singh
along with the informant were cutting
barseem in their agricultural field, the
accused Hardayal Singh came at the place
with sooja and started abusing and
thereafter called his brothers - the accused
Tirlok Singh, Balvinder Singh and also his
relative Bhura. Tirlok Singh and Balwinder
Singh were having swords and Bhura was
having "Kanta". They all started beating
the deceased Kundan Singh and when the
informant's uncle, Dileep Singh and his son
Sardar and the informant's mother ran to
protect the deceased, the accused Hardayal
assaulted on the chest of the deceased,
Tirlok and Balwinder assaulted with
swords and Kanta and also assaulted on
Dileep Singh, Sardar Singh and informant's
mother and caused injuries to them and
thereafter fled away. The time of incident
was said to be 01:00 P.M. and FIR was
registered at 09.15 P.M. Delay in lodging
first information report was explained by
the informant in the FIR itself. The I.O.
proceeded on spot and took samples of
blood lying on the earth and on leaves of
wheat Exhibit (Ka-13 and Ka-14) and
white pagri with blood stains (Ka-15). The
injuries of the informant Avtar Singh was
examined by the medical officer on
11.02.1983 before lodging of the FIR
which were found to be simple caused by
some sharp edged object. The injuries of
Sardar Singh was examined by the medical
officer on 11.02.1983, but the prosecution
has not examined him during trial. The
injuries of Dileep Singh was examined on
11.02.1983 by medical officer and he was
examined by prosecution as PW-2. The
mother of the informant, namely Surinder
Kaur, also got herself medically examined
on 14.02.1983 at 01:45 P.M. and her injury
No.2 was found to be simple caused by a
sharp edged object and injury No.1 and 3
were found caused by hard or blunt object.
All the injuries were found to be simple.
Autopsy of the deceased's body was done
and the following ante-mortem injuries
were found:-
8 All. State of U.P. Vs. Har Dayal Singh & Ors.
835

"(1) Penetrating wound with clean
margins-2.5 c.m. x 1 c.m. x chest cavity
deep at right anterior chest wall 6 c.m.
from anterior at 3 o'clock in relation to
right nipple, direction backwards.

(2) Incised wound 8 c.m. x 2 c.m. x
bone back left hand transversely placed
coming upto web between thumb and index
finger, cutting 3rd, 4th and 5th metacarpal
bones.

(3) Lacerated wound 2 c.m. x 1 c.m. x
muscle left side scalp 8 c.m. above left ear.

(4) Contusion 2 c.m. x 2 c.m. upper
part pinna left ear.

(5) Two incised wounds on one line,
two c.m. apart, each 2 c.m. x 0.2 c.m. x
skin, back right wrist.

(6) Abrasion 2.5 c.m. Long x .6 c.m.,
top let shoulder."

3. The doctor conducting the autopsy
found 500 m.l. blood in the chest cavity,
right lung had collapsed, heart was empty,
in the stomach there were three ounces of
semi-digested food, in large intestine faecal
matter was present, in small intestine,
digested food was present. The medical
officer opined that cause of death of the
deceased is due to shock and haemorrhage
caused by ante-mortem injuries. The postmortem report was filed as Exhibit K-19.

4. The prosecution examined the
informant Avtar Singh as PW-1, (eyewitness), Dileep Singh as PW-2 (eyewitness), Dr. Habib Ahmed as PW-3, who
examined injuries of injured, Ram Swarup
Verma SHO as PW-4, Man Singh -
constable as PW-5, who carried the body
for post-mortem, Dr. Satyapal as PW-6,
who conducted autopsy. Sri Vishnu Dutt
Agnihotri was examined as CW-1. From
defence side, statement under Section 313
Cr.P.C. of
accused
Hardayal, Tirlok,
Balvinder and Palvindar Singh @ Bhura
Singh were recorded. One Mahendra Singh
was examined as DW-1 and Ram Pal,
Junior Clerk, was examined as DW-2.
Considering the evidences, learned Session
Judge, Sahajahpur, passed the impugned
judgment and order dated 31.03.1984 in
Session Trial No. 351 of 1983 (State Vs.
Hardayal and three others) under Section
302/307 I.P.C., P.S. S.M. North and
acquitted all the accused, namely Hardayal
Singh,
Tirlok,
Balvinder
Singh
and
Palvindar Singh @ Bhura Singh from the
charges under Section 302/34 IPC and
under Section 307 I.P.C. Aggrieved with
this judgment and order, the present
government appeal has been filed by the
State.

5. Sri K.P. Pathak, Learned AGA,
submits that the Learned Trial Court has
arbitrarily and illegally acquitted the
accused persons on account of minor
contradiction in the FIR, inquest report,
evidences
of
prosecution
witnesses,
whereas the prosecution has proved beyond
reasonable doubt the motive, place of
occurrence, common intention and object,
injuries received by the deceased and
injured witnesses. Thus, the prosecution
case is consistent and minor contradictions
cannot be said to be fatal for the
prosecution.

6. Learned counsel for the accused
persons - respondents submits that the
injuries do not corroborate with the injury
report and evidences. Prosecution has
completely failed to prove motive. PW-1
and PW-2 are interested witnesses and their
presence has been found to be completely
doubtful. Reference in this regard may be
had to paragraphs 30, 31, 32, 34, and 38 of
the impugned judgment. It is settled law
that appeal against acquittal can be
interfered by the High Court only if the
836 INDIAN LAW REPORTS ALLAHABAD SERIES
findings of the Trial Court are so perverse
that no prudent person would believe on it.
He further submits that sooja is a sharp
edged pointed thing, not similar to
Barchha. Neither any recovery of sooja was
made, nor in the FIR, or in the statement
under Section 161, informant witnesses
have stated, at any stage, that the alleged
sooja
was
double-edged.
He
further
submits that it is only for the first time that
PW-1 has made all these allegations in his
evidence recorded before the court. He
further submits that the alleged injured
witnesses, after due consultation, lodged
the FIR so as to falsely implicate the
accused opposite parties, i.e. three real
brothers and one relative. He further
submits that the prosecution has completely
failed to establish the guilt of the accused
persons beyond reasonable doubt. He
further
submits
that
the
scope
of
interference in appeal by the High Court is
limited, and in the event, if two views are
possible on a given set of evidences, the
view taken by the trial court to acquit the
accused has to be followed. He further
submits that the findings recorded by the
learned Trial Court are not perverse, rather
the same are based on proper consideration
of relevant evidences on record.

7. We have carefully considered the
submissions of the learned counsels for the
Parties and perused the record of the
appeal.

8. We find that the learned Session
Judge has acquitted the accused persons on
the grounds that the three injuries of the
deceased could not be explained by the
prosecution, the medical evidence and the
evidences of the prosecution witnesses are
not
corroborative,
there
is
major
contradiction between the medical report
and
the
evidences
of
the
alleged
eyewitnesses, the PW-3 who examined the
injured has opined that injuries are simple
and may be a fabricated one. PW-3 doctor
who examined the injuries of the injured is
a partisan witness. The PW-1 and PW-2 are
interested witnesses. The presence of PW-1
and PW-2 at the place of occurrence is
doubtful and the conduct of the PW-3 is
also doubtful. The injuries of the deceased
could not be proved by the prosecution.
The prosecution completely failed to prove
that the injuries of the deceased were
caused by sooja. The injuries which caused
death of the deceased Kundan Singh, as
found by the medical officer, have already
been extracted above. There was one
penetrated wound 2.5 cm x 1 cm, three
incised wounds, one lacerated wound, one
contusion and one abrasion. Undisputedly,
sooja is made of a bar either round or
square with pointed point over its one end.

9. The injury No.1 of Kundan Singh
was caused by some weapon like spear or
'barchha' having two sharp edges and width
of more than two centimetres. The
informant has specifically mentioned the
weapon in the hands of Hardayal as sooja.
It is for the first time that the PW-1
attempted to improve the case by stating
that sooja was having two edges. Even in
his statement under Section 161 Cr.P.C., the
PW-1/ complainant Avtar Singh had not
stated that sooja used by the accused
Hardayal Singh was double edged. Thus, it
is evident that the injury No.1 found on
the body of the deceased Kundan Singh
could neither be explained nor it could
be proved that it was caused by sooja by
the accused Hardayal.

10. Over the body of the deceased
Kundan Singh, one lacerated wound 2 c.m.
x 1 c.m. x muscle deep, one contusion 2
c.m. x 2 c.m. and one abrasion 2.5 c.m. X
8 All. State of U.P. Vs. Har Dayal Singh & Ors.
837
0.6 c.m. were found. As per medical
evidence, these injuries were caused to the
deceased by some blunt object. The weapons
shown in the hands of the accused persons
are sooja, sword, and kanta. The prosecution
has not alleged use of any blunt object by the
accused persons to cause the said injury to the
deceased. No explanation could be offered by
the prosecution that by what weapon and in
what manner the aforesaid injuries were
received by the deceased. Non-explanation of
these
injuries
leads
to
two
possible
conclusions. The first is that for causing the
lacerated wound, the bar of kanta was used as
a blunt object and the contusion and abrasion
were caused by falling down. The second
conclusion may be that these injuries were
caused by some blunt object not seen by the
complainant Avtar Singh PW-1 and Dileep
Singh PW-2. From both the conclusions, one
conclusion can very well be drawn that either
PW-1 Avtar Singh and PW-2 Dileep Singh
were not present at the place of occurrence or
they concealed some material facts during
trial. Both the circumstances are fatal to the
prosecution case. The burden to explain
occurrence and the injuries, was on the
prosecution but the prosecution has failed to
discharge its burden.

11. So far as the injuries of Smt.
Surinder Kaur is concerned, as per injury
report, she suffered simple injuries of one
abrasion, one incised wound and one
contusion.
The
prosecution
had
not
examined the aforesaid Smt. Surinder Kaur
as a prosecution witness, whose husband
Kundan Singh deceased had also suffered
contusion and abrasion. The prosecution had
not examined Smt. Surinder Kaur, who
could be the best person to explain her
injuries.
No
explanation
for
nonexamination
of
Surinder
Kaur
as
a
prosecution witness has been offered by the
prosecution.

12. Medical examination of Avtar
Singh PW-1 was done before lodging of
the FIR. In the GD Report No. 24, Exhibit
Ka.7, it is not mentioned that the PW1
Avtar Singh was having some bandaged
wound in his hand. Even in his statement
under Section 161 Cr.P.C., the PW-1 Avtar
Singh had not informed that he suffered
injuries in the incident in question. Instead,
Avtar Singh had stated in his statement
under Section 161 Cr.P.C. that he escaped
injury. The PW-1 Avtar Singh for the first
time stated before the trial court that he had
suffered injuries in the incident in question,
which creates doubt upon the prosecution
case.

13. The conduct of PW-3 Dr. Habib
Ahmed is also doubtful. Perusal of the
injury reports of the PW-1 Avtar Singh,
PW-2 Dileep Singh and Sardar Singh
shows that the PW-3 examined them on
11.02.1983 between 4 P.M. to 5 P.M.
without any request made by any police
officer. For medical examination of these
persons, the PW-3 has chosen even not to
inform the police of police station Banda
about the aforesaid three injuries.

14. Thus, it is doubtful that these
three persons had suffered injuries in the
same occurrence in which the deceased
Kundan Singh was murdered. As per injury
report, Dileep Singh was brought by one
Preetam Singh, but the identity of Preetam
Singh was not disclosed before the trial
court. The PW-3 himself admitted that
injuries suffered by the aforesaid three
injured could be self-inflicted, if they had
tolerance. Thus, the medical report of the
aforesaid three injured prepared by the PW3 do not inspire confidence.

15. Considering the fact as discussed
above, the presence of both eyewitnesses
838 INDIAN LAW REPORTS ALLAHABAD SERIES
i.e. PW1 and PW2 at the place of
occurrence appears to be doubtful. Both the
aforesaid witnesses have stated that the
deceased Kundan Singh was wearing white
pagri, whereas the investigating officer in
his inquest report found the pink pagri near
the dead body. The PW-1 complainant -
Avtar Singh also failed to disclose that who
was driving the cart carrying food from
'langar' and whether the cart was being
pulled by bullocks or buffaloes. If he was
actually present at the place of occurrence,
he could have disclosed that the cart was
pulled by bullocks or buffaloes. He has not
mentioned in the FIR that he was injured in
the occurrence in question. PW-1 Avtar
Singh has stated in his cross-examination,
that the cart was of Gurdwara, but he does
not know whether it was driven by bullocks
or buffaloes. Thus, the view taken by the
learned Trial Court doubting the presence
of PW-1 and PW-2 at the place of
occurrence is one possible view which a
man of ordinary prudence can believe on
the basis of evidences on record.

16. For all the reasons stated above, we
find that the view taken by the learned Trial
Court who disbelieved the presence of PW1 at the place of occurrence, nonexplanation of injuries of the deceased by
the prosecution, evidence of PW-3, and the
injuries of PW-1, PW-2 and Surinder Kaur,
do not inspire confidence, to hold that the
prosecution has failed to establish his case
beyond doubt, is not perverse, and the
conclusion
so
reached
is
based
on
evidences on record, which does not
require any interference.

Principles
Governing
Appeal
Against Acquittal:-

17. In the case of Ravi Sharma vs.
State, (2022) 8 SCC 536, Hon'ble Supreme
Court referred to several judgments and
held that in appeal under Section 378
Cr.P.C., the presumption of innocence
gathers strength before the Appellate Court.
Therefore, 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. This court while exercising
appellate jurisdiction can interfere with the
findings recorded by the trial court, if
findings of fact recorded by the trial court
is perverse or 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.
[(1984) 4 SCC 635], Excise & Taxation
Officer-cum-Assessing Authority v. Gopi
Nath & Sons [1992 Supp (2) SCC
312],Triveni
Rubber
&
Plastics
v.
CCE[1994 Supp (3) SCC 665], Gaya Din
v. Hanuman Prasad[(2001) 1 SCC 501],
Aruvelu v. State, [(2009) 10 SCC 206]
and Gamini Bala Koteswara Rao v. State
of A.P. [(2009) 10 SCC 636])."

18. In Kuldeep Singh v. Commr. of
Police[(1999)
2
SCC
10],
Hon'ble
8 All. State of U.P. Vs. Har Dayal Singh & Ors.
839
Supreme Court held 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.

19. In the case of Vijay Mohan
Singh v. State of Karnataka, [(2019) 5
SCC 436] (Paras-31 and 31.1 to 31.4),
Hon'ble Supreme Court considered the
scope of Section 378, Cr.P.C. and referring
to its earlier judgments in Sambasivan v.
State of Kerala, [(1998) 5 SCC 412], K.
Ramakrishnan Unnithan v. State of
Kerala, [(1999) 3 SCC 309], Atley v.
State of U.P., [AIR 1955 SC 807],
Wilayat Khan v. State of U.P. [AIR 1953
SC 122], K. Gopal Reddy v. State of A.P.,
[(1979) 1 SCC 355] and Umedbhai
Jadavbhai v. State of Gujarat, [(1978) 1
SCC 228] and held that once the appeal is
entertained against the order of acquittal,
the High Court was entitled to re-appreciate
the entire evidence independently and come
to its own conclusion. Ordinarily, the High
Court would give due importance to the
opinion of the Sessions Judge if the same
were arrived at after proper appreciation of
the evidence but this rule will not be apply
where the Sessions Judge has made an
absolutely wrong assumption of a very
material and clinching aspect in the
peculiar circumstances of the case or that
the approach of the trial court in dealing
with the evidence was patently illegal or
the conclusions arrived at by it were wholly
untenable or that the trial court has rejected
creditworthy evidence for slender reasons
and takes a view of the evidence which is
but barely possible. In such cases, it is the
obvious duty of the High Court to interfere
in the interest of justice and exercise its
wide power of court of appeal to appreciate
the evidences against the order of acquittal
in such manner as it may appreciate
evidences against an order of conviction,
subject to the riders that the presumption of
innocence with which the accused person
starts in the trial court continues even up to
the appellate stage and that the appellate
court should attach due weight to the
opinion of the trial court which recorded
the order of acquittal.

20. In the case of Chandrappa v.
State of Karnataka, [(2007) 4 SCC 415
(para-42)],
Hon'ble
Supreme
Court
considered large number of its earlier
judgments and Section 378 Cr.P.C. and
summarised the principles regarding
powers of the appellate court while
dealing with the appeal against an order
of acquittal, as under:

"42. From the above decisions, in our
considered view, the following general
principles regarding powers of 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 Codeof 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
840 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

21. In the case of Dhanapal and
others vs. State, [(2009) 10 SCC 401
(para-39)], Hon'ble Supreme Court has
culled out five principles, as under:

"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."

22. In a recent judgment in N.
Vijayan Kumar vs. State of Tamilnadu,
[(2021) 3 SCC 687], Hon'ble Supreme
Court held that underSection 378,Cr.PC, no
differentiation should be made between an
appeal against acquittal and the appeal
against conviction.

23. In the case of Hakeem Khan &
Ors. v. State of Madhya Pradesh(2017) 5
SCC 719, Hon'ble Supreme Court held that
if the "possible view" of the trial court is
not agreeable for the High Court, even then
such "possible view" recorded by the trial
court cannot be interdicted. It has been
further held that so long as the view of trial
court can be reasonably formed, regardless
of whether the High Court agrees with the
same or not, verdict of trial court cannot be
interdicted and the High court cannot
supplant over the view of the trial court.

24. In Government Appeal No.506
of 2019 (State of U.P. vs. Salim and 4
others, decided on 28.01.2020 (Para-11),
a coordinate bench of this Court held, as
under:
8 All. Anjali Vs. State of U.P. & Ors.
841

"11. While considering the scope of
interference in an appeal or revision against
acquittal, it has been held by the Supreme
Court that if two views of the evidence are
reasonable 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 matter ofState of
Karnataka vs. K. Gopalkrishna reported in
(2005) 9 SCC 291, the Hon'ble Supreme
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 evnidence 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."

25.

Applying
the
principles
summarized by Hon. Supreme Court in the
case
of
Chandrappa
(supra)
and
Dhanapal (supra) on the facts of the
present case, we find that the learned trial
court has taken a reasonable view which
leads to acquittal. The view taken is not
perverse. Therefore, we do not find any
good reason to set aside or disturb the order
of the acquittal passed by the session court.

26. For all the reasons aforestated, we
do not find any merit in this government
appeal, which is pending in this court from
last about 40 years.

27. The appeal lacks merit and is,
therefore, dismissed. Records be send back
forthwith.
----------
(2023) 8 ILRA 841
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.08.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Habeas Corpus Writ Petition No. 167 of 2023

Anjali ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Pradeep Kumar Tripathi

Counsel for the Respondents:
G.A., Vikas Sharma

HABEAS CORPUS - Minority of detenue -
Determination of age - Conflicting entries
in Aadhar Card, High School Marksheet
and other certificates - Detenue denying
DOB in school certificate - No birth
certificate issued by municipal authority -
Court directing ossification test - Detenue
found major - Married by choice - Not
willing to go with natural guardian
(father) - Held: Where age determination
by documents under Section 94(2)(i) & (ii)
of the Juvenile Justice Act is unreliable,
ossification test under clause (iii) becomes
the only valid basis - Personal liberty of
detenue under Article 21 must be upheld -
Detenue found not to be in illegal custody.

Held:
Where the age of the detenue is disputed and
documents like school certificates and Aadhar
card bear conflicting dates of birth, and where
the detenue herself disputes the school -
recorded DOB, the ossification test becomes the
only reliable method as per Section 94(2)(iii) of
the Juvenile Justice (Care and Protection of
Children) Act, 2015. In the present case, the
ossification test established that the detenue is