# State of U.P v. Israr & Ors

- **Citation:** (2022) 10 ILRA 1190
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-05
- **Case number:** Government Appeal No. 334 of 2022
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-israr-ors-47687
- **Pages:** 24

## Headnote

A. Criminal Law - Acquittal - Indian Penal
Code, 1860 - Section 364 - Code of
Criminal Procedure, 1973 - Section 378 -
Delay in lodging the FIR - Scope of
Interference - The Hon'ble Apex Court in the
line of the decisions right from the very
inception has been consistently mandating that
in the proceedings challenging the judgment of
acquittal, appellate courts should be slow in
interfering as double presumption of innocence
is tagged with the accused and until and unless
the order so passed by the trial Court is
perverse or straight away points towards a
wrong
direction
emanating
complete
miscarriage of justice and further misreading of
the evidence and there are substantive and
compelling grounds for setting aside the
judgment of acquittal. The Courts should,
normally and in routine manner, not interfere
particularly when the view taken by the learned
trial Court is plausible and possible view.
Needless to point out, even in the appellate
courts should be slow in interfering where
another view is possible. (Para 8)

B. It is well settled that delay in giving the
FIR by itself cannot be a ground to doubt
the prosecution case. Unless there are
indications of fabrication, the Court cannot
reject the prosecution version as given in the
10 All. State of U.P. Vs. Israr & Ors.
1191
FIR and later substantiated by the evidence
merely on the ground of delay. These are all
matters of appreciation and much depends on
the facts and circumstances of each case. (Para
28)

Keeping aside the aspect of the delay and its
impact on the prosecution case, an additional
aspect is to be noticed that barring the St.ment
of PW-9 Asma, all the prosecution witnesses
have turned hostile and denuded themselves
from supporting the prosecution case. (Para 31)

C. Evidence Act: Section 65-B(4) - A
certificate u/s 65-B(4) is necessary as in
absence of the same, the call details
cannot be said to be proved. The entire
prosecution theory hinges upon phone call so
sought to be made from the mobile phone of
Israr to the deceased. Though at the time of
submission of the charge sheet, reference has
been made to the call details being CDR,
however, the same was not proved before the
learned Trial Court as neither any evidence was
led, nor the same was made part and parcel of
the same. (Para 43)

D. Motive - The motive which is being sought
to be assigned for commission of alleged crime
is relatable to the love marriage so sought to be
solemnized as well as election rivalry also could
not be proved by the prosecution as the past for
commission of crime. (Para 46)

E. Last seen theory - In absence of any
other links in the chain of circumstantial
evidence, the accused cannot be convicted
solely on the basis of "Last seen together",
even if version of the prosecution witness
in this regard is believed. (Para 56)

In the present case, the story of last seen also
gets demolished, as PW-2 Mohd. Naeem, PW-3
Rajab Ali and PW-4 Om Pal Singh have come up
with the stand that though they claimed to be
prosecution witnesses, but they have not seen
the deceased with the accused. (Para 56)

F. No doubt, suspicion, however, grave it
may be, but it does not chair the seat of
proof, as an accused is presumed to be
innocent unless proved guilty beyond
reasonable doubt. (Para 57)
In a nutshell, the Court finds that the
prosecution case proceeds upon weak evidences
and the complete chain so as to indicate the
accused to have committed the crime while
completing the chain pointedly marking the case
to have committed crime is also missing. (Para
60)

Appeal dismissed. (E-4)

Precedent followed:

## Text

_Characters 0–39,912 of 80,323. This is a partial read: ask again with offset=39912 for what follows._

1190 INDIAN LAW REPORTS ALLAHABAD SERIES
maternal uncle and aunt whenever the
parents visit India and during her school
vacations, atleast once or twice in a year
depending upon her visit to India.

39. The respondents namely the
maternal uncle and aunt of the child may
also go to Saudi Arabia, the place of
residence of the child to meet her and
spend time with her.

40. We hope and trust that with the
passage of time when the emotions
between the parties (sister and brother) are
settled down, they both can contribute
towards the upbringing of the child so that
she may grow into a confident, self reliant
human being. We can only advise the
litigating respondents who are closely
related to the child to contribute in the
upbringing of the child not financially but
emotionally and morally so that she may
grow up without any negative effect on her
life because of the current dispute between
the parties.

41. With the above observations and
directions, the judgement and order dated
30.05.2022 passed by the Additional
Principal Judge, Family Court, Court No.3,
Aligarh hereby set aside. The First Appeal
No.510 of 2022 is hereby allowed. The
First Appeal No.485 of 2022 is disposed of
in view of the above observations and
directions.

42. The compliance report shall be
submitted by the Principal Judge, Family
Court within a period of two months from
today and shall be placed on the record by
the office.

43. No order as to cost.
----------
(2022) 10 ILRA 1190
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2022

BEFORE

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

Government Appeal No. 334 of 2022

State of U.P. ...Appellant
Versus
Israr & Ors. ...Respondents

Counsel for the Appellant:
A.G.A., Sri Shiv Kumar Pal

Counsel for the Respondents:

A. Criminal Law - Acquittal - Indian Penal
Code, 1860 - Section 364 - Code of
Criminal Procedure, 1973 - Section 378 -
Delay in lodging the FIR - Scope of
Interference - The Hon'ble Apex Court in the
line of the decisions right from the very
inception has been consistently mandating that
in the proceedings challenging the judgment of
acquittal, appellate courts should be slow in
interfering as double presumption of innocence
is tagged with the accused and until and unless
the order so passed by the trial Court is
perverse or straight away points towards a
wrong
direction
emanating
complete
miscarriage of justice and further misreading of
the evidence and there are substantive and
compelling grounds for setting aside the
judgment of acquittal. The Courts should,
normally and in routine manner, not interfere
particularly when the view taken by the learned
trial Court is plausible and possible view.
Needless to point out, even in the appellate
courts should be slow in interfering where
another view is possible. (Para 8)

B. It is well settled that delay in giving the
FIR by itself cannot be a ground to doubt
the prosecution case. Unless there are
indications of fabrication, the Court cannot
reject the prosecution version as given in the
10 All. State of U.P. Vs. Israr & Ors.
1191
FIR and later substantiated by the evidence
merely on the ground of delay. These are all
matters of appreciation and much depends on
the facts and circumstances of each case. (Para
28)

Keeping aside the aspect of the delay and its
impact on the prosecution case, an additional
aspect is to be noticed that barring the St.ment
of PW-9 Asma, all the prosecution witnesses
have turned hostile and denuded themselves
from supporting the prosecution case. (Para 31)

C. Evidence Act: Section 65-B(4) - A
certificate u/s 65-B(4) is necessary as in
absence of the same, the call details
cannot be said to be proved. The entire
prosecution theory hinges upon phone call so
sought to be made from the mobile phone of
Israr to the deceased. Though at the time of
submission of the charge sheet, reference has
been made to the call details being CDR,
however, the same was not proved before the
learned Trial Court as neither any evidence was
led, nor the same was made part and parcel of
the same. (Para 43)

D. Motive - The motive which is being sought
to be assigned for commission of alleged crime
is relatable to the love marriage so sought to be
solemnized as well as election rivalry also could
not be proved by the prosecution as the past for
commission of crime. (Para 46)

E. Last seen theory - In absence of any
other links in the chain of circumstantial
evidence, the accused cannot be convicted
solely on the basis of "Last seen together",
even if version of the prosecution witness
in this regard is believed. (Para 56)

In the present case, the story of last seen also
gets demolished, as PW-2 Mohd. Naeem, PW-3
Rajab Ali and PW-4 Om Pal Singh have come up
with the stand that though they claimed to be
prosecution witnesses, but they have not seen
the deceased with the accused. (Para 56)

F. No doubt, suspicion, however, grave it
may be, but it does not chair the seat of
proof, as an accused is presumed to be
innocent unless proved guilty beyond
reasonable doubt. (Para 57)
In a nutshell, the Court finds that the
prosecution case proceeds upon weak evidences
and the complete chain so as to indicate the
accused to have committed the crime while
completing the chain pointedly marking the case
to have committed crime is also missing. (Para
60)

Appeal dismissed. (E-4)

Precedent followed:

1. Jafarudheen & ors. Vs St. of Kerala, 2022
LiveLaw (SC) 403 (Para 9)

2. Apren Joseph @ Current Kunjukunju & ors.
Vs The St. of Kerala, (1973) 3 SCC 114 (Para
27)

3. Tara Singh & ors. Vs St. of Pun., 1991 Supp
(1) SCC 536 (Para 28)

4. P. Rajagopal & ors. Vs St. of T. N., (2019) 5
CC 403 (Para 29)

5. Dilawar Singh Vs St. of Delhi, (2007) 12 SCC
641 (Para 30)

6.
Arjun
Panditrao
Khotkar
Vs
Kailash
Kushanrao Gorantyal & ors., (2020) 7 SCC 1
(Para 44)

7. Ravindra Singh @ Kaku Vs St. of Pun.,
Criminal Appeal No. 1307 of 2019, decided on
04.05.2022 (Para 45)

8. Sharad Birdhichand Sarda Vs St. of Mah.,
(1984) 4 SCC 116 (Para 53)

9. Bodhraj Vs St. of J.&K., (2002) 8 SCC 45
(Para 54)

10. The St. of Odisha Vs Banabihari Mohapatra
& anr., Special Leave Petition (Crl) No. 1156 of
2021, decided on 12.02.2021 (Para 55)

11. Chandra Pal Vs St. of Chhattisgarh, Criminal
Appeal No. 378 of 2015, decided on 27.05.2022
(Para 56)

12. Nathiya Vs St. represented by Inspector of
Police, Bagayam Police Station Vellore, (2016)
10 SCC 298 (Para 58)
1192 INDIAN LAW REPORTS ALLAHABAD SERIES
Present appeal assails judgment and order
dated 25.02.2022, passed by Additional
District and Sessions Judge Sessions
Judge/Fast Track Court, Amroha.

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

1. This is an appeal under Section
378(3) of Code of Criminal Procedure
(hereinafter referred to as ''CrPC') filed
against the judgment and order dated
25.2.2022 passed by Additional District &
Sessions Judge/ Fast Track Court No.2,
Jyotiba Phule Nagar (Amroha) in Session
Trial/1700263/2014, State Vs. Israr and
others arising out of Case Crime No. 278 of
2012, under Section 364 IPC, P.S. Amroha
City, District Amroha, whereby accusedrespondents have acquitted.

2. Briefly stated facts shorn off
unnecessary details that the complainant
Musharraf son of Ashraf, resident of village
Nanak Nagli, P.S. Kaanth, Moradabad had
submitted a written report on 31.8.2012 to
S.P. Amroha with an allegation that he is
the resident of village Nanak Nagli, P.S.
Kaanth, Moradabad and his son Nusrat
aged about 27 years is living for the past 9
years in Amroha in locality Qureshi in the
house of one Shoeb as a tenant and his son
had married twice as the name of the first
wife is Asma and the second wife is
Nazmeen. Nusrat being his son about 11
years ago had married Nazmeen daughter
of Afsar Khan being in love with her and in
the said connection, family members of
Nazmeen were furiated and they bore
enmity with his son. About 8 months ago
the complainant son Nusrat was abducted
and the accused being Kalam son of
Qayyum resident of Sultanpur, Sujauddin,
Akram, Rustam sons of Afsar Khan,
Alauddin
son
of
Akhtar
Khan
and
Mushahid son of Sher Khan resident of
village
Nanak
Nagli,
P.S.
Kaanth,
Moradabad
were
instrumental
in
committing said offence and his son was
recovered by the joint operation of police
of Hasanpur and Gajraula.

3. As per the prosecution theory, on
29.8.2012 at 3:00 in the noon, the son of
the
complainant
being
Nusrat
was
accompanied with his both the wives and
his children was present in the locality
Qureshi, then the accused Israr made a call
in the mobile phone of his son. The mobile
number
of
Nusrat
is
stated
to
be
9917816875
and
9927874914.
After
receiving the said call which is stated to be
made by Israr resident of village Kaserua,
the complainant's son apprised his wives
that he has been called by Israr resident of
village Kaserua. It is further alleged that
despite the fact that the complainant's son
had proceeded on receiving the call of
accused Israr, but when he did not return,
then calls were made, however, it was
noticed that both the mobile numbers were
switched off and even after repeated search,
his whereabouts were not traced and thus
suspicion occurred that on account of love
marriage so solemnized between his son
and Nazmeen, the same became the ground
of commission of the offence. Further
allegation
has
been
made
that
the
complainant proceeded to the Police
Station Amroha City, however, no action,
whatsoever has been taken and thus he has
submitted the written report that FIR be
lodged.

4. Consequent to the submission of
written report on 31.8.2012 at 19:15 hours,
FIR was lodged in the concerned police
station against the accused Kalam, Israr,
Sujauddin, Akram, Rustam, Alauddin and
Mushahid under Section 364 IPC. One
Pramod Kumar Sharma was nominated as
the
Investigating
Officer
along
with
10 All. State of U.P. Vs. Israr & Ors.
1193
Inspector K.P. Singh. It has also come on
record
that
the
Investigating
Officer
proceeded to conduct investigation while
preparing the site-plan and when the dead
body of the deceased was shown to be
found near river Ganga, then inquest report
was also prepared. Statements under
Section 161 CrPC was also undertaken and
charge sheet was submitted by the
Investigating Officer against the accused
Israr.
Nanhe,
Gayasuddin,
Mushahid,
Akram and Kalam under Section 364 IPC.
It has further come on record that during
investigation, Gayasuddin @ Pappu had
died. The case was committed to the
Sessions, charges were read over to the
accused Israr, Nanhey, Mushahid, Akram
and Kalam on 10.11.2016. The accused
pleaded innocence and claimed to be tried.
However, subsequently, accused Kalam
died and thus now criminal proceeding was
sought to be initiated against the accused,
who are four in number.

5. Learned trial court by virtue of
judgment and order under challenge has
acquitted the accused.

6. Challenging the same, now the
State is before this Court.

7. In order bring home the charges,
the prosecution has examined the following
witnesses:

PW-1. Musharraf,

PW-2. Mohd. Naeem

PW-3. Rajab Ali

PW-4. Ompal Singh

PW-5. Nazmeen

PW-6. S.I. Retired Pramod Kumar
Sharma

PW-7. HC152 Vikas Sharma,

PW-8. Retd. Inspector K.P. Singh
Bhati

PW-9. Asma

8. This Court is oblivious of the fact
that present proceedings is emanating from
the judgement and order of acquittal. To
put it otherwise, the present appeal has
been filed by the first informant whereby
he seeks judicial intervention for reversing
the judgement of acquittal into conviction.
The Hon'ble Apex Court in the line of the
decisions right from the very inception has
been consistently mandating that in the
proceedings challenging the judgement of
acquittal, appellate courts should be slow in
interfering as double presumption of
innocence is tagged with the accused and
until and unless the order so passed by the
trial court is perverse or straight away
points towards a wrong direction emanating
complete miscarriage of justice and further
misreading of the evidence and there are
substantive and compelling grounds for
setting aside the judgement of acquittal.
The courts should, normally and in routine
manner, not interfere particularly when the
view taken by the learned trial Court is
plausible and possible view. Needless to
point out, even the appellate Courts should
be slow in interfering where another view
is possible.

9. The Hon'ble Apex Court in the case
of Jafarudheen and others vs. State of
Kerala, 2022 LiveLaw (SC) 403, has
observed as under:-

"25. While dealing with an
appeal against acquittal by invoking
Section 378 of the Cr.PC, the Appellate
Court has to consider whether the Trial
Court's view can be termed as a possible
one, particularly when evidence on record
has been analyzed. The reason is that an
order of acquittal adds up to the
presumption of innocence in favour of the
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
accused. Thus, the Appellate Court has to
be relatively slow in reversing the order of
the
Trial
Court
rendering
acquittal.
Therefore, the presumption in favour of the
accused does not get weakened but only
strengthened. Such a double presumption
that enures in favour of the accused has to
be disturbed only by thorough scrutiny on
the accepted legal parameters. Precedents:
Mohan @Srinivas @Seena @Tailor Seena
v. State of Karnataka, [2021 SCC OnLine
SC 1233] as hereunder: -

"20. Section 378 CrPC enables
the State to prefer an appeal against an
order of acquittal. Section 384 CrPC
speaks of the powers that can be exercised
by the Appellate Court. When the trial
court renders its decision by acquitting the
accused, presumption of innocence gathers
strength before the Appellate Court. As a
consequence, the onus on the prosecution
becomes more burdensome as there is a
double
presumption
of
innocence.
Certainly, the Court of first instance has
its own advantages in delivering its
verdict, which is to see the witnesses in
person while they depose. The Appellate
Court is expected to involve itself in a
deeper, studied scrutiny of not only the
evidence before it, but is duty bound to
satisfy itself whether the decision of the
trial court is both possible and plausible
view. When two views are possible, the
one taken by the trial court in a case of
acquittal is to be followed on the
touchstone of liberty along with the
advantage of having seen the witnesses.
Article 21 of the Constitution of India
also aids the accused after acquittal in a
certain way, though not absolute. Suffice
it is to state that the Appellate Court
shall remind itself of the role required to
play, while dealing with a case of an
acquittal.

21. Every case has its own
journey towards the truth and it is the
Court's role undertake. Truth has to be
found on the basis of evidence available
before it. There is no room for subjectivity
nor the nature of offence affects its
performance. We have a hierarchy of
courts in dealing with cases. An Appellate
Court shall not expect the trial court to act
in a particular way depending upon the
sensitivity of the case. Rather it should be
appreciated if a trial court decides a case
on its own merit despite its sensitivity.

22. At times, courts do have their
constraints. We find, different decisions
being made by different courts, namely,
trial court on the one hand and the
Appellate Courts on the other. If such
decisions are made due to institutional
constraints, they do not augur well. The
district judiciary is expected to be the
foundational court, and therefore, should
have the freedom of mind to decide a case
on its own merit or else it might become a
stereotyped one rendering conviction on a
moral
platform.
Indictment
and
condemnation over a decision rendered, on
considering all the materials placed before
it, should be avoided. The Appellate Court
is expected to maintain a degree of caution
before making any remark.

23. This court, time and again
has laid down the law on the scope of
inquiry by an Appellate court while dealing
with an appeal against acquittal under
Section 378 CrPC. We do not wish to
multiply the aforesaid principle except
placing reliance on a recent decision of this
court in Anwar Ali v. State of Himanchal
Pradesh, (2020) 10 SCC 166:

14.2. When can the findings of
fact recorded by a court be held to be
10 All. State of U.P. Vs. Israr & Ors.
1195
perverse
has
been
dealt
with
and
considered in paragraph 20 of the
aforesaid decision, which reads as under :
(Babu case [Babu v. State of Kerala,
(2010) 9 SCC 189 : (2010) 3 SCC (Cri )
1179]) "20. The findings of fact recorded
by a court can be held to be perverse if the
findings have been arrived at by ignoring
or excluding relevant material or by taking
into consideration irrelevant/ inadmissible
material. The finding may also be said to
be perverse if it is "against the weight of
evidence", or if the finding so outrageously
defies logic as to suffer from the vice of
irrationality. (Vide Rajinder Kumar Kindra
v. Delhi Admn. [Rajinder Kumar Kindra v.
Delhi Admn., (1984) 4 SCC 635 : 1985
SCC ( L&S ) 131], Excise & Taxation
Officer-cum-Assessing Authority v. Gopi
Nath & Sons [Excise & Taxation Officercum- Assessing Authority v. Gopi Nath &
Sons, 1992 Supp (2) SCC 312], Triveni
Rubber & Plastics v. CCE [Triveni Rubber
& Plastics v. CCE, 1994 Supp (3) SCC
665], Gaya Din v. Hanuman Prasad [Gaya
Din v. Hanuman Prasad, (2001) 1 SCC
501], Aruvelu [Arulvelu v. State, (2009) 10
SCC 206 : (2010) 1 SCC (Cri) 288] and
Gamini Bala Koteswara Rao v. State of
A.P. [Gamini Bala Koteswara Rao v. State
of A.P., (2009) 10 SCC 636 : (2010) 1 SCC
(Cri) 372] )"

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

14.3. In the recent decision of
Vijay Mohan Singh [Vijay Mohan Singh v.
State of Karnataka, (2019) 5 SCC 436 :
(2019) 2 SCC (Cri) 586], this Court again
had an occasion to consider the scope of
Section 378 CrPC and the interference by
the High Court [State of Karnataka v. Vijay
Mohan Singh, 2013 SCC OnLine Kar
10732] in an appeal against acquittal. This
Court considered a catena of decisions of
this Court right from 1952 onwards. In
para 31, it is observed and held as under:

"
31. An identical question came to
be considered before this Court in
Umedbhai
Jadavbhai
[Umedbhai
Jadavbhai v. State of Gujarat, (1978) 1
SCC 228 : 1978 SCC (Cri) 108]. In the
case before this Court, the High Court
interfered with the order of acquittal
passed by the learned trial court on
reappreciation of the entire evidence on
record. However, the High Court, while
reversing the acquittal, did not consider the
reasons given by the learned trial court
while acquitting the accused. Confirming
the judgment of the High Court, this Court
observed and held in para 10 as under:

''10. Once the appeal was rightly
entertained against the order of acquittal,
the High Court was entitled to reappreciate
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. This rule will not be
applicable in the present case where the
Sessions Judge has made an absolutely
wrong assumption of a very material and
clinching
aspect
in
the
peculiar
circumstances of the case.'
1196 INDIAN LAW REPORTS ALLAHABAD SERIES

31.1. In Sambasivan [Sambasivan
v. State of Kerala, (1998) 5 SCC 412 : 1998
SCC (Cri) 1320], the High Court reversed
the order of acquittal passed by the learned
trial court and held the accused guilty on
reappreciation of the entire evidence on
record, however, the High Court did not
record its conclusion on the question
whether the approach of the trial court in
dealing with the evidence was patently
illegal or the conclusions arrived at by it
were wholly untenable. Confirming the
order passed by the High Court convicting
the accused on reversal of the acquittal
passed by the learned trial court, after
being satisfied that the order of acquittal
passed by the learned trial court was
perverse and suffered from infirmities, this
Court declined to interfere with the order
of conviction passed by the High Court.
While confirming the order of conviction
passed by the High Court, this Court
observed in para 8 as under:

''8.
We
have
perused
the
judgment
under
appeal
to
ascertain
whether the High Court has conformed to
the aforementioned principles. We find that
the High Court has not strictly proceeded
in the manner laid down by this Court in
Doshi case [Ramesh Babulal Doshi v. State
of Gujarat, (1996) 9 SCC 225 : 1996 SCC
(Cri) 972] viz. first recording its conclusion
on the question whether the approach of
the trial court in dealing with the evidence
was patently illegal or the conclusions
arrived at by it were wholly untenable,
which alone will justify interference in an
order of acquittal though the High Court
has rendered a wellconsidered judgment
duly meeting all the contentions raised
before it. But then will this noncompliance
per se justify setting aside the judgment
under appeal? We think, not. In our view,
in such a case, the approach of the court
which is considering the validity of the
judgment of an appellate court which has
reversed the order of acquittal passed by
the trial court, should be to satisfy itself if
the approach of the trial court in dealing
with the evidence was patently illegal or
conclusions
arrived
at
by
it
are
demonstrably unsustainable and whether
the judgment of the appellate court is free
from those infirmities; if so to hold that the
trial
court
judgment
warranted
interference. In such a case, there is
obviously no reason why the appellate
court's judgment should be disturbed. But if
on the other hand the court comes to the
conclusion that the judgment of the trial
court does not suffer from any infirmity, it
cannot but be held that the interference by
the appellate court in the order of acquittal
was not justified; then in such a case the
judgment of the appellate court has to be
set aside as of the two reasonable views,
the one in support of the acquittal alone
has to stand. Having regard to the above
discussion, we shall proceed to examine the
judgment of the trial court in this case.'

31.2.
In
K.
Ramakrishnan
Unnithan [K. Ramakrishnan Unnithan v.
State of Kerala, (1999) 3 SCC 309: 1999
SCC (Cri ) 410] , after observing that
though there is some substance in the
grievance of the learned counsel appearing
on behalf of the accused that the High
Court has not adverted to all the reasons
given by the trial Judge for according an
order of acquittal, this Court refused to set
aside the order of conviction passed by the
High Court after having found that the
approach
of
the Sessions
Judge
in
recording the order of acquittal was not
proper and the conclusion arrived at by the
learned Sessions Judge on several aspects
was unsustainable. This Court further
observed that as the Sessions Judge was
10 All. State of U.P. Vs. Israr & Ors.
1197
not
justified
in
discarding
the
relevant/material evidence while acquitting
the accused, the High Court, therefore, was
fully entitled to reappreciate the evidence
and record its own conclusion. This Court
scrutinised the evidence of the eyewitnesses
and opined that reasons adduced by the
trial court for discarding the testimony of
the eyewitnesses were not at all sound. This
Court also observed that as the evaluation
of the evidence made by the trial court was
manifestly erroneous and therefore it was
the duty of the High Court to interfere with
an order of acquittal passed by the learned
Sessions Judge.

31.3. In Atley [Atley v. State of
U.P., AIR 1955 SC 807 : 1955 Cri LJ
1653] , in para 5, this Court observed and
held as under :

''5. It has been argued by the
learned counsel for the appellant that the
judgment of the trial court being one of
acquittal, the High Court should not have
set it aside on mere appreciation of the
evidence led on behalf of the prosecution
unless it came to the conclusion that the
judgment of the trial Judge was perverse.
In our opinion, it is not correct to say that
unless the appellate court in an appeal
under Section 417 CrPC came to the
conclusion that the judgment of acquittal
under appeal was perverse it could not set
aside that order.

It has been laid down by this
Court that it is open to the High Court on
an appeal against an order of acquittal to
review the entire evidence and to come to
its own conclusion, of course, keeping in
view the well-established rule that the
presumption of innocence of the accused is
not weakened but strengthened by the
judgment of acquittal passed by the trial
court
which
had
the
advantage
of
observing the demeanour of witnesses
whose evidence have been recorded in its
presence.

It is also well settled that the
court of appeal has as wide powers of
appreciation of evidence in an appeal
against an order of acquittal as in the case
of an appeal 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. If
the appellate court reviews the evidence,
keeping those principles in mind, and
comes to a contrary conclusion, the
judgment cannot be said to have been
vitiated. (See in this connection the very
cases cited at the Bar, namely, Surajpal
Singh v. State [Surajpal Singh v. State,
1951 SCC 1207 : AIR 1952 SC 52];
Wilayat Khan v. State of U.P. [Wilayat
Khan v. State of U.P., 1951 SCC 898 : AIR
1953 SC 122])

In our opinion, there is no
substance in the contention raised on
behalf of the appellant that the High Court
was not justified in reviewing the entire
evidence
and
coming
to
its
own
conclusions.'

31.4. In K. Gopal Reddy [K.
Gopal Reddy v. State of A.P., (1979) 1 SCC
355 : 1979 SCC (Cri) 305], this Court has
observed that where the trial court allows
itself to be beset with fanciful doubts,
rejects creditworthy evidence for slender
reasons and takes a view of the evidence
which is but barely possible, it is the
obvious duty of the High Court to interfere
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
in
the
interest
of
justice,
lest
the
administration of justice be brought to
ridicule."

N. Vijayakumar v. State of T.N.,
[(2021) 3 SCC 687] as hereunder: -

"20. Mainly it is contended by
Shri Nagamuthu, learned Senior Counsel
appearing for the appellant that the view
taken by the trial court is a "possible view",
having regard to the evidence on record. It
is submitted that the trial court has
recorded cogent and valid reasons in
support of its findings for acquittal. Under
Section 378 CrPC, no differentiation is
made between an appeal against acquittal
and the appeal against conviction. By
considering the long line of earlier cases
this Court in the judgment in Chandrappa
v. State of Karnataka, (2007) 4 SCC 415 :
(2007) 2 SCC ( Cri) 325 has laid down the
general principles regarding the powers of
the appellate Court while dealing with an
appeal against an order of acquittal. Para
42 of the judgment which is relevant reads
as under: (SCC p. 432)

"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."

21. Further in the judgment in
Murugesan [Murugesan v. State, (2012) 10
SCC 383: (2013) 1 SCC (Cri) 69] relied on
by the learned Senior Counsel for the
appellant, this Court has considered the
powers of the High Court in an appeal
against acquittal recorded by the trial
court.
In
the
said
judgment,
it
is
10 All. State of U.P. Vs. Israr & Ors.
1199
categorically held by this Court that only in
cases where conclusion recorded by the
trial court is not a possible view, then only
the High Court can interfere and reverse
the acquittal to that of conviction. In the
said judgment, distinction from that of
"possible view" to "erroneous view" or
"wrong view" is explained. In clear terms,
this Court has held that if the view taken by
the trial court is a "possible view", the
High Court not to reverse the acquittal to
that of the conviction.

xxx xxx xxx

23. Further, in Hakeem Khan v.
State of M.P., (2017) 5 SCC 719 : (2017) 2
SCC ( Cri) 653 this court has considered
the powers of the appellate court for
interference in cases where acquittal is
recorded by the trial court. In the said
judgment it is 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 is further held that so long as
the view of the trial court can be
reasonably formed, regardless of whether
the High Court agrees with the same or
not, verdict of the trial court cannot be
interdicted and the High Court cannot
supplant over the view of the trial court.
Para 9 of the judgment reads as under:
(SCC pp. 722-23)

"9. Having heard the learned
counsel for the parties, we are of the view
that the trial court's judgment is more than
just a possible view for arriving at the
conclusion of acquittal, and that it would
not be safe to convict seventeen persons
accused of the crime of murder i.e. under
Section 302 read with Section 149 of the
Penal Code. The most important reason of
the trial court, as has been stated above,
was that, given the time of 6.30 p.m. to 7.00
p.m. of a winter evening, it would be dark,
and, therefore, identification of seventeen
persons would be extremely difficult. This
reason, coupled with the fact that the only
independent witness turned hostile, and two
other eyewitnesses who were independent
were not examined, would certainly create
a large hole in the prosecution story. Apart
from this, the very fact that there were
injuries on three of the accused party, two
of them being deep injuries in the skull,
would lead to the conclusion that nothing
was premeditated and there was, in all
probability, a scuffle that led to injuries on
both sides. While the learned counsel for
the respondent may be right in stating that
the trial court went overboard in stating
that the complainant party was the
aggressor, but the trial court's ultimate
conclusion leading to an acquittal is
certainly a possible view on the facts of this
case. This is coupled with the fact that the
presence of the kingpin Sarpanch is itself
doubtful in view of the fact that he attended
the Court at some distance and arrived by
bus after the incident took place."

24. By applying the abovesaid
principles and the evidence on record in
the case on hand, we are of the considered
view that having regard to material
contradictions which we have already
noticed above and also as referred to in the
trial court judgment, it can be said that
acquittal is a "possible view". By applying
the ratio as laid down by this Court in the
judgments which are stated supra, even
assuming another view is possible, same is
no ground to interfere with the judgment of
acquittal and to convict the appellant for
the offence alleged. From the evidence, it is
clear that when the Inspecting Officer and
other witnesses who are examined on
behalf of the prosecution, went to the office
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
of the appellant-accused, the appellant was
not there in the office and office was open
and people were moving out and in from
the office of the appellant. It is also clear
from the evidence of PWs 3, 5 and 11 that
the currency and cellphone were taken out
from the drawer of the table by the
appellant at their instance. There is also no
reason, when the tainted notes and the
cellphone were given to the appellant at
5.45 p.m. no recordings were made and the
appellant was not tested by PW 11 till 7.00
p.m."

10. Bearing in mind the proposition of
law so culled out by Hon'ble Apex Court,
now the present case is to be addressed.

11. Heard Sri Kailash Prasad Pathak,
the learned A.G.A.

12. Learned A.G.A, has argued that
the judgment and order passed by the Trial
Court acquitting the accused is superficial
and besides being perverse inasmuch as
there was ample evidence available on
record so as to convict the accused as not
only
the
prosecution
witnesses
had
supported the prosecution theory, but there
were other factors available not only
showing motive, but clearly linking the
accused with respect to commission of
crime.

13. In nutshell, learned A.G.A, has
argued that the judgment of acquittal has
proceeded towards wrong direction, as
learned Trial Court has misread the
evidence, which pointedly marked the
accused of commission of crime.

14. In order to delve into the issue in
question, the testimony of the prosecution
witnesses is to be at least noticed.

15. PW-1 Musharraf claims himself to
be the first informant and according to him,
he is father of the deceased being his son
lives with his both the wives and children
as the tenant in the house of Shoeb in
locality Qureshi and his son Nusrat has
apprised his wife Asma that he had
received a call and that's why he proceeded
and when he did not come back to his
house, then the calls were made on the
mobile phone of the deceased, then it was
revealed that mobile phone was switched
off. According to him, he knows the
accused, as they are his relatives and
resident of the same village and he had
promptly gone to lodge FIR, but it was not
lodged, but the same was lodged after two
days.

16. As PW-2, Mohd. Naeem appeared
in the witness box and according to him he
does not know the deceased Nusrat nor he
knows the accused and on the fateful day
on 29.8.2012, he was in his house and he
had not seen Nusrat being accompanied
with the accused.

17. PW-3, Rajab Ali also entered into
the witness box and according to him, he
knows the accused Gayasuddin @ Pappu,
Israr and Nanhey, as their agricultural farm
is
adjoining
his
agricultural
farm.
According to him, the accused are residents
of village Kaserua. He has further deposed
that on 30.8.2012, he had not seen the
accused Gayasuddin @ Pappu, Israr,
Nanhey along with any other person.

18. As PW-4 Ompal Singh appeared
as prosecution witness. He has come up
with the stand that on 30.8.2012, he had not
seen deceased with the accused Gayasuddin
@ Pappu, Nanhey, Israr, residents of
Kaserua.
10 All. State of U.P. Vs. Israr & Ors.
1201

19. One Nazmeen appeared as PW-5.
She claims to be the wife of the deceased
and marriage to him 9 years ago being the
second wife and the first wife of the
deceased was Asma and she along with her
and three children had stayed with the
deceased husband in a rented room.
According to her statement, her husband
Nusrat without informing her had gone
away. When he did not come back and she
did not receive any phone call and she had
not seen Israr and Gayasuddin @ Pappu.

20. As PW-6 S.I. Pramod Kumar
Sharma appeared in the witness box and
according to him on 2.11.2012, he was
posted as Station Incharge, Kotwali City,
Amroha and he has taken the investigation
from the stage which was left by his
predecessor Mrityunjai Singh consequent
to his transfer. He in his statement has
further deposed that Nusrat was of a
criminal character and was a historysheeter and against him, several criminal
cases were going on. He has further
deposed that he had not taken the
possession of the vehicle which was used
in the crime and he has also not sketched
the place of occurrence from the highway
while preparing the site-plan. He has
further deposed that consequent to the
investigation, so conducted by him, he did
not find the dead body of the deceased,
nor
any
incriminating
articles
were
recovered.

21. PW-7 Head Constable 152 Vikas
Sharma has deposed that on 31.8.2012, he
was posted as Head Clerk and at 9:15
hours, he had lodged FIR and thus he
sought to prove the FIR.

22. As PW-8, Retd. Inspector K.P.
Singh Bhati claims himself to be the
Investigating Officer so entrusted with the
duty, consequent to the direction issued by
I.G. Zone, Bareilly.

23. As PW-9, Asma appeared as a
prosecution witness and according to her
statement, she had been the Pradhan of
village Nanak Nagli. She further stated that
one Roshan Ara who happens to be the
wife of Sujauddin also contested the
Pradhan election and on account of the
election rivalry, the crime has been
committed. She has further deposed that
Nusrat had two wives, one being PW-9 and
when the deceased husband stayed in
Amroha, then he married Nazmeen, who
happens to be the real sister of Sujauddin
and this was the rivalry, which bore in the
mind of Sujauddin. She has further deposed
that earlier also, the deceased became
missing and he was abducted by the
accused Israr, Pappu, Sujauddin, Akram,
Alauddin and Kalam.

24. PW-9 has further deposed that on
29.8.2012 Israr had called her husband and
he had told her that he is going on the basis
of call of Israr, and thereafter, no phone
whatsoever was received and her husband
went missing.

25. Undisputedly, the incident relates
to
29.8.2012,
wherein
as
per
the
prosecution case, the deceased received a
phone call from Israr and he proceeded to
meet Israr and went missing and when
phone call was made, then the mobile was
found to be switched off. Admittedly, the
FIR has been lodged on 31.8.2012 at 19:15
hours after a period of two days.