# State of U.P v. Harish Chandra & Ors

- **Citation:** (2015) 2 ILRA 910
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-06
- **Case number:** Government Appeal No. 666 of 1987
- **Bench:** Vipin Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-harish-chandra-ors-43237
- **Pages:** 6

## Headnote

Act-no
illegality
or
perversity shown-nor can be disputed
the
view
taken
by
Trail
Court-no
reasonable prudence of man can form
such opinion-after laps of 25 years-can
not be interfered-Appeal dismissed.
Held: Para-16
It is an established position of law that if
the court below has taken a view which
is a possible view in a reasonable
manner, then the same shall not be
interfered with and that too in view of
the fact that more than 25 years have
already elapsed.
Case Law discussed:
Criminal Appeal No. 791 of 2011; Criminal
Appeal No.512 of 2014; Criminal Appeal No.
1508 of 2005.

## Text

910
 INDIAN LAW REPORTS ALLAHABAD SERIES
according to the final order of Deputy
Director
of
Consolidation
and
final
consolidation records In case the map is not
according to the final order, then it could be
corrected, either under Section 42-A read with
Section 52(2) and Rule 109-A of U.P.
Consolidation of Holdings Act, or under
Section 28 of the Act. The mistake cannot be
permitted to continue in the revenue record. "
19. Both these judgments in the
given facts and circumstances of this case
do not help the petitioner as they are not
applicable.
20. In view of above, it is, therefore,
held that the application under Section 42-A
of the Act for correction of final
consolidation map will not lie before the
Consolidation Courts after the close of
consolidation operation in the unit after
issuance of notification under Section 52 (1)
of
the
Act
except
in
exceptional
circumstances as observed in the case of
Ghamari
Vs.
Deputy
Director
of
Consolidation, Ballia and others; [2003 (94)
RD 90]. Such application will lie only
before the authority under the U.P. Land
Revenue Act under Section 28.
21.
As such, I am of the considered
view
that
in
the
given
facts
and
circumstances, as mentioned above, the
application preferred by the petitioner under
Section 42-A of the Act after issuance of
notification under Section 52 of the Act was
not maintainable. The view taken by the
respondent no. 1, Deputy Director of
Consolidation while deciding the reference
is just and proper. The petitioner has a
remedy of getting the correction made in the
map by moving application under Section
28 U.P. Land Revenue Act before the
concerning Collector.
22. The writ petition being devoid of
merit is dismissed.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.07.2015
BEFORE
THE HON'BLE VIPIN SINHA, J.
Government Appeal No. 666 of 1987
State of U.P.
...Appellant
Versus
Harish Chandra & Ors.
...Respondents
Counsel for the Appellant:
A.G.A.
Counsel for the Respondents:
Sri Vijendra Singh, Sri Virendra Singh
Govt. Appeal-against acquittal-offence
u/s
3/7
E.C.
Act-no
illegality
or
perversity shown-nor can be disputed
the
view
taken
by
Trail
Court-no
reasonable prudence of man can form
such opinion-after laps of 25 years-can
not be interfered-Appeal dismissed.
Held: Para-16
It is an established position of law that if
the court below has taken a view which
is a possible view in a reasonable
manner, then the same shall not be
interfered with and that too in view of
the fact that more than 25 years have
already elapsed.
Case Law discussed:
Criminal Appeal No. 791 of 2011; Criminal
Appeal No.512 of 2014; Criminal Appeal No.
1508 of 2005.
(Delivered by Hon'ble Vipin Sinha, J.)
1.
Heard
learned
Additional
Government Advocate, learned counsel
for the respondents and perused the
record.
2 All]
 State of U.P. Vs. Harish Chandra & Ors.
911
2. With the consent of learned
counsel for the parties, the present
government appeal is being heard finally.
3.
The present government appeal
arises out of the judgment and order dated
13.11.1986 passed by Special Judge (EC)
Act, Badaun in criminal case no. 10 of
1984
whereby
respondents,
namely,
Harish Chandra, Kailash Chandra and
Ram Pal Singh have been acquitted for
the offence under Section 3/7 of E.C. Act.
4. A perusal of the record shows that
the court below has recorded categorical
findings to the following effect that:-
"witnesses are not consistent regarding the
paper which was obtained from the accused
Kailash Chandra whether it was scribed over
the spot or it was blank sheet of paper.
Witnesses are also not consistent with their
previous statements and their statements are
self contradictory and self defeating."
5.
The court below has further
recorded a finding that "the witnesses are
not consistent regarding the mode of
lodging of the report. Those persons who
could obtain signatures of one of the
accused over blank sheet of paper and
manufacture a writing thereon evidencing
that accused have pleaded to forgive him
for his misconduct could not be trusted
regarding other aspect of the case."
6. The court below has further
recorded a finding that "the FIR is not
authenticated."
7. The court below after perusing of
the evidence on record has concluded that
"it is admitted case that all the three
accused were licence holders. It was for
the prosecution to prove that oil was sold
in black market and for that accurate
measurement was necessary but when
witnesses themselves do not understand
the mode of measurement and could not
speak with certainty it would too much to
trust their bare statement that shortage
without requiring them to lay foundation
to furnish date and possible result and
mode of the measurement."
8. Thus on account of the aforesaid
facts and circumstances of the case, the
court below while acquitting the accusedrespondents have concluded that "thus
from this discussion I hold that the
prosecuition miserably failed to prove the
charge under section 3/7 of E.C. Act. All
the three accused deserve to be acquitted."
9.
Aggrieved against the acquittal of
the
accused-respondents,
the
present
government appeal has been filed by learned
A.G.A. and he has vehemently pressed the
appeal on the ground that the judgment and
order dated 13.11.1986 passed by Special
Judge (EC) Act, Badaun is perversed and is
against the weight of evidence on record and
thus liable to be set aside and because minor
contradictions in the statement of the
prosecution witnesses in a trial which took
place after a long lapse of time was natural.
10. Learned A.G.A. has not been
able to point out any illegality and
perversity with the findings as recorded
by the court below and thus it cannot be
said that the view taken by Trial Court is
a perverse view. Learned A.G.A. has also
failed to point out as to which of the
findings is contrary to the evidence on
record or is perversed.
11. However, the judgment of the
trial court is duly substantiated by the
evidence on record.
912
 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Regard may also be had to the
consistent legal position with regard to the
scope and interference by the High Court
in the judgement and order of acquittal.
The Apex Court in the case of Murlidhar
@ Gidda & Anr. Vs. State of Karnataka
decided on 09.04.2014 in Criminal
Appeal No. 791 of 2011 has observed as
under:
"The Supreme Court started by citing
Lord Russell in Sheo Swarup highlighted
the approach of the High Court as an
appellate court hearing the appeal
against
acquittal.
Lord
Russell
said,....."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." The
opinion of the Lord Russell has been
followed over the years.
11. As early as in 1952, this Court in
Surajpal Singh[2] while dealing with the
powers of the High Court in an appeal
against acquittal under Section 417 of the
Criminal
Procedure
Code
observed,
"..........the High Court has full power to
review the evidence upon which the order
of acquittal was founded, but it is equally
well settled that the presumption of
innocence of the accused is further
reinforced by his acquittal by the trial
court, and the findings of the trial court
which had the advantage of seeing the
witnesses and hearing their evidence can
be reversed only for very substantial and
compelling reasons."
12. The approach of the appellate
court in the appeal against acquittal has
been dealt with by this Court in Tulsiram
Kanu[3],
Madan
Mohan
Singh[4],
Atley[5] , Aher Raja Khima[6], Balbir
Singh[7],
M.G.
Agarwal[8],
Noor
Khan[9], Khedu Mohton[10], Shivaji
Sahabrao Bobade[11], Lekha Yadav[12],
Khem Karan[13], Bishan Singh[14],
Umedbhai
Jadavbhai[15],
K.
Gopal
Reddy[16],
Tota
Singh[17],
Ram
Kumar[18],
Madan
Lal[19],
Sambasivan[20], Bhagwan Singh[21],
Harijana Thirupala[22], C. Antony[23],
K.
Gopalakrishna[24],
Sanjay
Thakran[25] and Chandrappa[26]. It is
not necessary to deal with these cases
individually. Suffice it to say that this
Court has consistently held that in dealing
with
appeals
against acquittal,
the
appellate court must bear in mind the
following: (i) There is presumption of
innocence in favour of an accused person
and such presumption is strengthened by
the order of acquittal passed in his favour
by the trial court, (ii) The accused person
is entitled to the benefit of reasonable
doubt when it deals with the merit of the
appeal against acquittal, (iii) Though, the
power
of
the
appellate
court
in
considering the appeals against acquittal
are as extensive as its powers in appeals
against convictions but the appellate
court is generally loath in disturbing the
finding of fact recorded by the trial court.
It is so because the trial court had an
advantage of seeing the demeanor of the
witnesses. If the trial court takes a
reasonable view of the facts of the case,
interference by the appellate court with
the judgment of acquittal is not justified.
Unless, the conclusions reached by the
2 All]
 State of U.P. Vs. Harish Chandra & Ors.
913
trial court are palpably wrong or based
on erroneous view of the law or if such
conclusions are allowed to stand, they are
likely to result in grave injustice, the
reluctance on the part of the appellate
court in interfering with such conclusions
is fully justified, and (iv) Merely because
the appellate court on re-appreciation
and re-evaluation of the evidence is
inclined
to
take
a
different
view,
interference
with
the
judgment
of
acquittal is not justified if the view taken
by the trial court is a possible view. The
evenly balanced views of the evidence
must not result in the interference by the
appellate court in the judgment of the
trial court.
13. Reference may also be made to
the case of Basappa Vs. State of
Karnataka decided on 27.02.2014 passed
in Criminal Appeal No. 512 of 2014,
wherein the Apex Court has observed as
under:
"8. The High Court in an appeal
under Section 378 of Cr.PC is entitled to
reappraise the evidence and conclusions
drawn by the trial court, but the same is
permissible only if the judgment of the
trial court is perverse, as held by this
Court in Gamini Bala Koteswara Rao and
Others v. State of Andhra Pradesh
through Secretary[1]. To quote: "14. We
have considered the arguments advanced
and heard the matter at great length. It is
true, as contended by Mr Rao, that
interference in an appeal against an
acquittal recorded by the trial court
should be rare and in exceptional
circumstances. It is, however, well settled
by now that it is open to the High Court to
reappraise the evidence and conclusions
drawn by the trial court but only in a case
when the judgment of the trial court is
stated
to
be
perverse.
The
word
"perverse" in terms as understood in law
has been defined to mean "against the
weight of evidence". We have to see
accordingly as to whether the judgment of
the trial court which has been found
perverse by the High Court was in fact
so." (Emphasis supplied)
9. It is also not the case of the
prosecution that the judgment of the trial
court is based on no material or that it
suffered from any legal infirmity in the
sense that there was non-consideration or
misappreciation of the evidence on
record. Only in such circumstances,
reversal of the acquittal by the High
Court would be justified. In K. Prakashan
v. P.K. Surenderan [2], it has also been
affirmed by this Court that the appellate
court should not reverse the acquittal
merely because another view is possible
on the evidence. In T. Subramanian v.
State of Tamil Nadu [3], it has further
been held by this Court that if two views
are reasonably possible on the very same
evidence, it cannot be said that the
prosecution has proved the case beyond
reasonable doubt.
10. In Bhim Singh v. State of
Haryana [4], it has been clarified that
interference by the appellate court
against an order of acquittal would be
justified only if the view taken by the trial
court is one which no reasonable person
would in the given circumstances, take.
11. In Kallu alias Masih and others
v. State of Madhya Pradesh [5], it has
been held by this Court that if the view
taken by the trial court is a plausible
view, the High Court will not be justified
in reversing it merely because a different
view is possible. To quote: "8. While
deciding an appeal against acquittal, the
power of the appellate court is no less
than the power exercised while hearing
914
 INDIAN LAW REPORTS ALLAHABAD SERIES
appeals against conviction. In both types
of appeals, the power exists to review the
entire evidence. However, one significant
difference is that an order of acquittal
will not be interfered with, by an
appellate court, where the judgment of the
trial court is based on evidence and the
view taken is reasonable and plausible. It
will not reverse the decision of the trial
court merely because a different view is
possible. The appellate court will also
bear in mind that there is a presumption
of innocence in favour of the accused and
the accused is entitled to get the benefit of
any doubt. Further, if it decides to
interfere, it should assign reasons for
differing with the decision of the trial
court." (Emphasis supplied)
12. In Ramesh Babulal Doshi v. State
of Gujarat [6], this Court has taken the
view that while considering the appeal
against 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
and if the court answers the above
question in negative, the acquittal cannot
be disturbed.
14. The exercise of power under
Section 378 of Cr.PC by the court is to
prevent failure of justice or miscarriage
of justice. There is miscarriage of justice
if an innocent person is convicted; but
there is failure of justice if the guilty is let
scot-free. As cautioned by this Court in
State of Punjab v. Karnail Singh [8]:
"6. There is no embargo on the
appellate court reviewing the evidence
upon which an order of acquittal is based.
Generally, the order of acquittal shall not
be
interfered
with
because
the
presumption of innocence of the accused
is further strengthened by acquittal. The
golden thread which runs through the web
of administration of justice in criminal
cases is that if two views are possible on
the evidence adduced in the case, one
pointing to the guilt of the accused and
the other to his innocence, the view which
is favourable to the accused should be
adopted. The paramount consideration of
the court is to ensure that miscarriage of
justice is prevented. A miscarriage of
justice which may arise from acquittal of
the guilty is no less than from the
conviction of an innocent. In a case where
admissible evidence is ignored, a duty is
cast
upon
the
appellate
court
to
reappreciate the evidence even where the
accused has been acquitted, for the
purpose of ascertaining as to whether any
of the accused committed any offence or
not. ..."
14. Last but not the least, reference
may also be made to the recent judgement
of Supreme Court in the case of Ashok
Rai Vs. State of U.P. & Ors. Decided on
15.04.2014 in Criminal Appeal No. 1508
of 2005.
" 8. Several Judgments of this court
have been cited on the principles which
should guide the court while dealing with
an appeal against order of acquittal. The
law is so well settled that it is not necessary
to refer to those judgments. Suffice it to say
that the appellate court has to be very
cautious while reversing an order of
acquittal
because
order
of
acquittal
strengthens the presumption of innocence of
the accused. If the view taken by the trial
court is a reasonably possible view it should
not be disturbed, because the appellate
court feels that some other view is also
possible. A perverse order of acquittal
replete with gross errors of facts and law
will have to be set aside to prevent
miscarriage of justice, because just as the
2 All] Shyam Singh & Ors. Vs. Sarvadeo Singh & Ors.
915
court has to give due weight to the
presumption of innocence and see that
innocent person is not sentenced, it is
equally the duty of the court to see that the
guilty do not escape punishment. Unless the
appellate court finds the order of acquittal
to be clearly unreasonable and is convinced
that there are substantial and compelling
reasons to interfere with it, it should not
interfere with it."
15. Thus in view of aforesaid
consistent legal position as elaborated
above and also in view of the fact that
learned A.G.A. has failed to point out any
illegality or perversity with the findings
so recorded in the impugned order, no
case for interference has been made out.
16. It is an established position of
law that if the court below has taken a
view which is a possible view in a
reasonable manner, then the same shall
not be interfered with and that too in view
of the fact that more than 25 years have
already elapsed.
17.
Thus, on a bare perusal of the
judgement and order dated 13.11.1986, it
cannot be said that the view taken by the trial
court is not a possible view or a feasible view
that could be taken by a reasonable person.
Moreover as no illegality or perversity has
been pointed out, this Court refuses to grant
any indulgence whatsoever to the appellantState.
18. Another aspect which has to be
appreciated is that a period of almost 25
years have already elapsed and the
incident is allegedly of the year 1983.
19. In view of the aforesaid facts
and circumstance of the case, the appeal is
dismissed.
20. Consequences to follow.
21. Let a copy of this order be
certified to the court concerned.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2015
BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Second Appeal No. 700 of 2007
Shyam Singh & Ors.
 ...Appellants
Versus
Sarvadeo Singh & Ors.
...Respondents
Counsel for the Appellants:
Sri Hemant Kumar
Counsel for the Respondents:
Sri Raj Kumar Pandey, Sri P.K. Singh
C.P.C. Section-100-Second Appeal-substantial
question of law-question of applicability of
Section 49 of C.H. Act-Courts below recorded
findings regarding-non applicability-can not
be disturbed in Second Appeal-no substantial
question of law involved-appeal dismissed.
Held: Para-12
In view of the aforesaid discussions and
findings that there was no adjudication
of
the
defendant-appellant
by
the
consolidation court in respect of the land
in
dispute,
substantial
question
formulated and noticed above would
have no applicability in the facts of the
present case and the suit filed by the
plaintiff-respondent would not be barred
under
Section
49
of
the
U.P.
Consolidation of Holdings Act. This Court
in exercise of jurisdiction under section
100 of the Civil Procedure Code is not
required to re-appraise the evidence,
which has come on record and has
already been noticed above. The finding
that defendant was not recorded over 16
decimal of land in question and that
plaintiff was recorded in the basic year