# State of U.P v. Kuldeep & Anr

- **Citation:** (2022) 8 ILRA 542
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-06
- **Case number:** Government Appeal No. 312 of 2022
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-kuldeep-anr-48915
- **Pages:** 20

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 164, 313, 378 &
378(3), - Indian Penal Code, 1860 -
Sections 34 & 364 - Government Appeal -
against order of Acquittal - Complaint case - FIR
8 All. State of U.P. Vs. Kuldeep & Anr.
543
- offence of abduction - allegation that accused
whom are in two numbers approached to the
victim's father for taking services of his son
aged about 15 years as helper in Tempo Carrier
- trial court acquitted all the accused - Appeal -
meticulous analyses of the ocular testimony as
well as documents available on record -
admittedly, in testimony of PW's - reveals that it
is not a case of abduction but victim was let
with accused with fee will - Appellants fails to
point out any perversity or illegality in impugned
acquittal order - they proceeds on weak
evidence which also not make a complete chain
to commission of office - held - leave to appeal
rejected even though same is not a case worth
granting leave to appeal - Since, application for
granting leave to appeal rejected - the Appeal
stands dismissed.(Para -33, 34, 37, 38, 39)

Appeal Dismissed. (E-11)

List of Cited cases: -

## Text

_Characters 0–39,935 of 69,692. This is a partial read: ask again with offset=39935 for what follows._

542 INDIAN LAW REPORTS ALLAHABAD SERIES
to link the accused while commissioning
the said crime is nowhere connected. Even
otherwise, sofar as P.W-11, Veer Pal Singh
is concerned, he had stated that the accused
Rajendra has made an extra judicial
confession
before
him
that
he
has
committed the crime but there happens to
be no relationship between them so as to
occasion the accused Rajendra to disclose
and give details regarding commission of
crime.

40. Apart from the same, no recovery
whatsoever was made from the accused.
The entire prosecution case, which starts
from putting the proceeding under motion
while lodging first information report or
complaint does not contain any of the
allegations referable to the commission of
the crime by the accused. However,
improvements have been sought to be made
that too after lodging of first information
report during the course of the investigation
by adding certain things, which ought to
have been the basis for lodging of the
proceedings at the stage of first information
report or complaints.

41. This Court after meticulously
analysing the case in hand from the four
corners of law while applying them to the
facts of the case is not able to subscribe to
the argument so sought to be raked up by
learned A.G.A. as this Court finds that the
trial court has not committed any perversity
in acquitting the accused.

42. Moreover, this Court finds that the
chain
to
link
the
accused
while
commissioning the crime itself is missing
and the evidence so sought to be pressed
into service, which includes testimony of
the prosecution witness itself is weak. This
Court further finds inability to take a
different view from the view so taken by
learned trial court as obviously while
deciding the present case, which originates
in a shape of an appeal from the order of
acquittal cannot be stretched too far so as to
even take a view once the view taken by
the
learned
trial
court
is
plausible.
Nonetheless,
presumption
of
double
innocence is already available with the
accused and in view of law laid down by
Hon'ble Apex Court as referred to above
this Court is not in a position to interfere
with

43. We, therefore, find that it is not a
case worth granting leave to appeal. The
application for granting leave to appeal is
rejected.

44. Since the the application for
granting leave to appeal has not been
granted, the appeal also stands dismissed.
----------
(2022) 8 ILRA 542
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.07.2022

BEFORE

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

Government Appeal No. 312 of 2022

State of U.P. ...Appellant
Versus
Kuldeep & Anr. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
..

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 164, 313, 378 &
378(3), - Indian Penal Code, 1860 -
Sections 34 & 364 - Government Appeal -
against order of Acquittal - Complaint case - FIR
8 All. State of U.P. Vs. Kuldeep & Anr.
543
- offence of abduction - allegation that accused
whom are in two numbers approached to the
victim's father for taking services of his son
aged about 15 years as helper in Tempo Carrier
- trial court acquitted all the accused - Appeal -
meticulous analyses of the ocular testimony as
well as documents available on record -
admittedly, in testimony of PW's - reveals that it
is not a case of abduction but victim was let
with accused with fee will - Appellants fails to
point out any perversity or illegality in impugned
acquittal order - they proceeds on weak
evidence which also not make a complete chain
to commission of office - held - leave to appeal
rejected even though same is not a case worth
granting leave to appeal - Since, application for
granting leave to appeal rejected - the Appeal
stands dismissed.(Para -33, 34, 37, 38, 39)

Appeal Dismissed. (E-11)

List of Cited cases: -

1. Tota Singh & anr. Vs St. of Pun. (1987) 2 SCC
529,

2. Ramesh Babulal Doshi Vs St. of Guj. (1996) 9
SCC 225,

3. Rajasthan Vs St. of Guj. (2003) 8 SCC 1870,

4. St. of Goa Vs Sanjay Thakran, (2007) 3 SCC
755,

5. Chandrappa & ors. Vs St. of Karn. (2007) 4
SCC 415,

6. Ghurey Lal Vs St. of UP (2008) 10 SCC 450,

7. Siddharth Vashishta @ Manu Sharma Vs St.
(NCT of Delhi) (2010) 6 SCC 1,

8. Babu Vs St. of Kerala (2010) 9 SCC 189,

9. Ganpat Vs St. of Har. (2010) 12 SCC 59,

10. Sunil Kumar Sambhudayal Gupta (Dr.) & ors.
Vs St. of Maharashtra (2010) 13 SCC 657,

11. St. of UP Vs Naresh (2011) 4 SCC 324,

12. M.P. Vs Ramesh (2011) 4 SCC 786,

13. Jayaswamy Vs St. of Karn. 2018) 7 SCC 219,

14. Jafarudheen & ors. Vs St. of Kerala (JT 2022
(4) SC 445,

15. Government Appeal No. 3804/2001 (St. of
UP Vs Subedar & ors.)

16. Virendra Singh Vs St. of UP & ors. (2022 (3)
ADJ 354,

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

1. This is an appeal under Section
378(3) Cr.P.C., 1973 (hereinafter referred
as ''Cr.P.C., 1973') at the behest of State of
U.P. instituted against the judgment and
order of acquittal dated 19.2.2022 passed
by Additional District and Sessions Judge,
Hapur in Sessions Trial No. 56 of 2008
(State of U.P. vs. Kuldeep and another)
arising out of Case Crime No. 01 of 2007,
under Section 364 and 34 IPC, Police
Station Hapur Dehat, District Hapur.

2. The factual matrix of the case as worded
in the appeal are that the proceedings
purported to be under Section 156(3)
Cr.P.C. was instituted before the learned
Magistrate, which transformed into lodging
of first information report as Case Crime
No. 01 of 2007, under Section 364 IPC,
Police Station Hapur Dehat, District Hapur
with an allegation that the informant, who
happens to be the father of the victim,
Indrajeet Singh, aged about 15 years was
called upon and taken away by the accused
herein, who are two in number being
Kuldeep s/o Mahendra and Mahendra s/o
Phool Singh and one Saurabh, who
happened to be the resident of Mohalla
Bheem Nagar under Police Station Hapur
Dehat, District Hapur. On 2.4.2007 while
offering an employment as a Cleaner of a
Tempo Carrier while providing him food
and lodging and an amount of Rs. 3,000/-
544 INDIAN LAW REPORTS ALLAHABAD SERIES
per month the informant on the assurance
and with confidence that life, liberty and
security of the victim, Indrajeet Singh,
would be safeguarded by the accused
herein allowed the accused to take away his
son. As per the version contained in the
first information report in question the son
of the informant even after lapse of one
month did not come back to his house and
thereafter not only queries regarding the
whereabouts of the victim was made at the
instance of the prosecution but also
constant search was made. Even infact as
the per the first information report search of
the victim was made from 3.5.2007 till
10.5.2007, however, the accused herein on
one pretext or the other avoided presence of
the victim. On the other hand, the accused
herein apprised the parents of the victim
that the victim was living with one Kuldeep
and assured that when Kuldeep will come
back with informant's son, then he would
bring the victim to his parent's place. In the
first information report it was also alleged
that in a well planned design his son has
been abducted. Pursuant to the lodging of
the first information report and registration
of Case Crime No. 01 of 2007 in the
concerned police station, Investigating
Officer
was
nominated
to
conduct
investigation and thereafter site plan was
also prepared and the statements of the
witnesses were also recorded.

3. To bring home the charges the
prosecution produced following witnesses,
namely:-

1.
Sohanwati
P.W.-1
2.
Narendra
P.W.-2
3.
Indrajeet
P.W.-3
4.
Con.
Kunwar
Bhan Singh
P.W.-4
5.
S.I. Tilak Chand P.W.-5

4. Consequent to the investigation so
conducted by the Investigating Officer
charge-sheet was submitted under Section
364 IPC read with Section 34 IPC, the case
was committed to sessions, the charges
were read over to the accused herein. The
accused herein denied the charges and
claimed to be tried.

5. In the proceeding under Section
313 Cr.P.C. the accused pleaded innocence
and rather non-guilty and also came up
with the stand that they are innocent and
they have been falsely implicated in the
said case.

6. Thereafter, the trial commenced
and accordingly by virtue of the order dated
19.2.2022 the court of Additional District
and Sessions Judge, Hapur in Session Trial
No. 56 of 2008 acquitted the accused under
Section 364 and 34 IPC.

7. Challenging the acquittal order now
State of U.P. is before this Court assailing
the order dated 19.2.2022 passed by
Additional District and Sessions Judge,
Hapur in Sessions Trial No. 56 of 2008
(State of U.P. vs. Kuldeep and another)
arsing out of Case Crime No. 01 of 2007,
under Section 364 and 34 IPC, Police
Station Hapur Dehat, District Hapur.

8. We have heard Sri Ratan Singh,
learned A.G.A., who appears for the State
of U.P.

9. Before we embark on testimony
and the judgment of the Court below, the
contours
for
interfering
in
Criminal
Appeals where accused has been held to be
non guilty would be required to be
discussed.
8 All. State of U.P. Vs. Kuldeep & Anr.
545

10. The principles, which would
govern and regulate the hearing of an
appeal by this Court against an order of
acquittal, passed by the trial Court, have
been very succinctly explained by the Apex
Court in catena of decisions. In the case of
Tota Singh and another vs. State of
Punjab, reported in (1987) 2 SCC 529, the
Hon'ble Apex Court in paragraph-6 has
observed as under: -

"6. The High Court has not found in
its judgment that the reasons given by the
learned Sessions Judge for discarding the
testimony of PW 2 and PW 6 were either
unreasonable or perverse. What the High
Court has done is to make an independent
reappraisal of the evidence on its own and
to set aside the acquittal merely on the
ground
that
as
a
result
of
such
reappreciation, the High Court was inclined
to reach a conclusion different from the one
recorded by the learned Sessions Judge.
This Court has repeatedly pointed out that
the mere fact that the appellate court is
inclined on a reappreciation of the evidence
to reach a conclusion which is at variance
with the one recorded in the order of
acquittal passed by the court below will not
constitute a valid and sufficient ground for
setting aside the acquittal. The jurisdiction
of the appellate court in dealing with an
appeal against an order of acquittal is
circumscribed by the limitation that no
interference is to be made with the order of
acquittal unless the approach made by the
lower court to the consideration of the
evidence in the case is vitiated by some
manifest
illegality
or
the
conclusion
recorded by the court below is such which
could not have been possibly arrived at by
any court acting reasonably and judiciously
and is, therefore, liable to be characterised
as perverse. Where two views are possible
on an appraisal of the evidence adduced in
the case and the court below has taken a
view which is a plausible one, the appellate
court cannot legally interfere with an order
of acquittal even if it is of the opinion that
the view taken by the court below on its
consideration of the evidence is erroneous."

11. Further, in the case of Ramesh
Babulal Doshi vs. State of Gujarat,
reported in (1996) 9 SCC 225, in paragraph
7, the Hon'ble Apex Court observed as
under:

"7. Before proceeding further it will be
pertinent to mention that the entire
approach of the High Court in dealing with
the appeal was patently wrong for it did not
at all address itself to the question as to
whether the reasons which weighed with
the trial court for recording the order of
acquittal were proper or not. Instead thereof
the High Court made an independent
reappraisal of the entire evidence to arrive
at the above-quoted conclusions. This
Court has repeatedly laid down that the
mere fact that a 'view other than the one
taken by the trial court can be legitimately
arrived at by the appellate court on
reappraisal
of
the
evidence
cannot
constitute a valid and sufficient ground to
interfere with an order of acquittal unless it
comes to the conclusion that the entire
approach of the trial court in dealing with
the evidence was patently illegal or the
conclusions arrived at by it were wholly
untenable. While sitting in judgment over
an acquittal the appellate court is first
required to seek an answer to the question
whether the findings of the trial court are
palpably wrong, manifestly erroneous or
demonstrably
unsustainable.
If
the
appellate court answers the above question
in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate
court holds, for reasons to be recorded, that
546 INDIAN LAW REPORTS ALLAHABAD SERIES
the order of acquittal cannot at all be
sustained in view of any of the above
infirmities it can then and then only
reappraise the evidence to arrive at its own
conclusions. In keeping with the above
principles we have therefore to first
ascertain whether the findings of the trial
court are sustainable or not."

12. In the case of State of Rajasthan
vs. State of Gujarat, reported in (2003) 8
SCC 180, in paragraph 7, the Hon'ble Apex
Court observed as under:

"7. 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
in a case where the accused has been
acquitted, for the purpose of ascertaining as
to whether any of the accused committed
any offence or not. (See Bhagwan Singh v.
State of M.P.1) The principle to be followed
by the appellate court considering the
appeal against the judgment of acquittal is
to interfere only when there are compelling
and substantial reasons for doing so. If the
impugned
judgment
is
clearly
unreasonable, it is a compelling reason for
interference.
These
aspects
were
highlighted by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra2,
Ramesh Babulal Doshi v. State of Gujarat3
and Jaswant Singh v. State of Haryana."

13. In the case of State of Goa vs.
Sanjay Thakran, reported in (2007) 3
SCC 755, in paragraph 15, the Hon'ble
Apex Court observed as under:

"15. Further, this Court has observed
in Ramesh Babulal Doshi v. State of
Gujarat: (SCC p. 229, para 7)

"7.... This Court has repeatedly laid
down that the mere fact that a view other
than the one taken by the trial court can be
legitimately arrived at by the appellate
court on reappraisal of the evidence cannot
constitute a valid and sufficient ground to
interfere with an order of acquittal unless it
comes to the conclusion that the entire
approach of the trial court in dealing with
the evidence was patently illegal or the
conclusions arrived at by it were wholly
untenable. While sitting in judgment over
an acquittal the appellate court is first
required to seek an answer to the question
whether the findings of the trial court are
palpably wrong, manifestly erroneous or
demonstrably
unsustainable.
If
the
appellate court answers the above question
in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate
court holds, for reasons to be recorded, that
the order of acquittal cannot at all be
sustained in view of any of the above
infirmities it can then - and then only -
reappraise the evidence to arrive at its own
conclusions." and in State of Rajasthan v.
Raja Ram8: (SCC pp. 186-87, para 7) -

"7. There is no embargo on the
appellate court reviewing the evidence
8 All. State of U.P. Vs. Kuldeep & Anr.
547
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
in a case where the accused has been
acquitted, for the purpose of ascertaining as
to whether any of the accused committed
any offence or not. (See Bhagwan Singh v.
State of M.P.) The principle to be followed
by the appellate court considering the
appeal against the judgment of acquittal is
to interfere only when there are compelling
and substantial reasons for doing so. If the
impugned
judgment
is
clearly
unreasonable, it is a compelling reason for
interference.
These
aspects
were
highlighted by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra
10, Ramesh Babulal Doshi v. State of
Gujarat and Jaswant Singh v. State of
Haryana11"."

14.

Further
in
the
case
of
Chandrappa and others vs. State of
Karnataka, reported in (2007) 4 S.C.C.
415, the Apex Court has observed as under:

"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, re-appreciate 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
curtain extensive powers of an appellate
Court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasis 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.
548 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In the case of Ghurey Lal vs.
State of U.P., reported in (2008) 10 SCC
450, in paragraph 43 and 75, the Hon'ble
Apex Court observed as under:

"43. The earliest case that dealt with
the controversy in issue was Sheo Swarup
v. King Emperor. In this case, the ambit and
scope of the powers of the appellate court
in dealing with an appeal against acquittal
has been aptly a elucidated by the Privy
Council. Lord Russell writing the judgment
has observed as under (at AIR p. 230): (IA
p. 404)

"... 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 b 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 law succinctly crystallised in this
case has been consistently followed by this
Court. On proper analysis of the ratio and
findings of this case, it is revealed that the
findings of the trial court are based on the
fundamental principles of the criminal
jurisprudence. Presumption of innocence in
favour
of
the
accused
further
gets
reinforced and strengthened by the acquittal
of the trial court. The appellate court
undoubtedly
has
wide
powers
of
reappreciating and re-evaluating the entire
evidence but it would be justified in
interfering with the judgment of acquittal
only when the judgment of the d trial court
is palpably wrong, totally ill-founded or
wholly misconceived, based on erroneous
analysis of evidence and non-existent
material, demonstrably unsustainable or
perverse.

...

75. On careful analysis of the entire
evidence on record, we are of the view that
the reasons given by the High Court for
reversing the judgment of acquittal is
unsustainable and contrary to settled
principles of law. The trial court has the
advantage of watching the demeanour of
the witnesses who have given evidence,
therefore, the appellate court should be
slow to interfere with the decisions of the
trial court. An acquittal by the trial court
should not be interfered with unless it is
totally perverse or wholly unsustainable."

16. In the case of Siddharth
Vashishtha Alias Manu Sharma vs. State
(NCT of Delhi), reported in (2010) 6 SCC
1, in paragraph 303(1), the Hon'ble Apex
Court observed as under:

"303. Summary of our conclusions: .

(1) The appellate court has all the
necessary
powers
to
re-evaluate
the
evidence let in before the trial court as well
as the conclusions reached. It has a duty to
specify the compelling and substantial
reasons in case it reverses the order of
acquittal passed by the trial court. In the
case on hand, the High Court by adhering
to all the ingredients and by giving b
cogent and adequate reasons reversed the
order of acquittal. ..."

17. In the case of Babu vs. State of
Kerala, reported in (2010) 9 SCC 189, in
paragraph 12 and 19, the Hon'ble Apex
Court observed as under:

"12. This Court time and again has
laid down the guidelines for the High Court
to interfere with the judgment and order of
acquittal passed by the trial court. The
8 All. State of U.P. Vs. Kuldeep & Anr.
549
appellate court should not ordinarily set
aside a judgment of acquittal in a case
where two views are possible, though the
view of the appellate court may be the
more probable one. While dealing with a
judgment of acquittal, the appellate court
has to consider the entire evidence on
record, so as to arrive at a finding as to
whether the views of the trial court were
perverse or otherwise unsustainable. The
appellate court is entitled to consider
whether in arriving at a finding of fact, the
trial court had failed to take into
consideration admissible evidence and/or
had taken into consideration the evidence
brought on record contrary to law.
Similarly, wrong placing of burden of proof
may also be a subject-matter of scrutiny by
the appellate court. (Vide Balak Ram v.
State of U.P.1, Shambhoo Missir v. State of
Bihar2, Shailendra Pratap v. State of U.P.3,
Narendra Singh v. State of M.P.4, Budh
Singh v. State of U.P.5, State of U.P. v. Ram
Veer Singh6, S. Rama Krishna v. S. Rami
Reddy7,
Arulvelu
v.
State8,
Perla
Somasekhara Reddy v. State of A.P.9 and
Ram Singh v. State of H.P.10).

...

19. Thus, the law on the issue can be
summarised to the effect that in exceptional
cases
where
there
are
compelling
circumstances, and the judgment under
appeal is found to be perverse, the appellate
court can interfere with the order of
acquittal. The appellate court should bear in
mind the presumption of innocence of the
accused and further that the trial court's
acquittal bolsters the presumption of his
innocence. Interference in a routine manner
where the other view is possible should be
avoided, unless there are good reasons for
interference."

18. In the case of Ganpat vs. State of
Haryana, reported in (2010) 12 SCC 59, in
paragraph 14 and 15, the Hon'ble Apex
Court observed as under:

"14. The only point for consideration
in these appeals is whether there is any
ground for interference against the order of
acquittal by the High Court. This Court has
repeatedly laid down that the first appellate
court and the High Court while dealing
with an appeal is entitled and obliged as
well to scan through and if need be
reappreciate the entire evidence and arrive
at a conclusion one way or the other.

15. The following principles have to
be kept in mind by the appellate court
while dealing with appeals, particularly,
against an order of acquittal: (i) There is no
limitation on the part of the appellate court
to review the evidence upon which the
order of acquittal is founded and to come to
its own conclusion.

(ii) The appellate court can also
review the trial court's conclusion with
respect to both facts and law.

(iii) While dealing with the appeal
preferred by the State, it is the duty of the
appellate court to marshal the entire
evidence on record and by giving cogent
and adequate reasons may set aside the
judgment of acquittal.

(iv) An order of acquittal is to be
interfered with only when there are
"compelling and substantial reasons" for
doing
so.
If
the
order
is
"clearly
unreasonable", it is a compelling reason for
interference.

(v) When the trial court has ignored
the evidence or misread the material
evidence
or
has
ignored
material
documents like dying declaration/report of
ballistic experts, etc. the appellate court is
competent to reverse the decision of the
trial court depending on the materials
placed. (Vide Madan Lal v. State of J&K1,
Ghurey Lal v. State of U.P.2, Chandra
550 INDIAN LAW REPORTS ALLAHABAD SERIES
Mohan Tiwari v. State of M.P.3 and
Jaswant Singh v. State of Haryana4.)"

19. In the case of Sunil Kumar
Sambhudayal Gupta (Dr.) and others vs.
State of Maharashtra, reported in (2010)
13 SCC 657, in paragraph 38, 39 and 40,
the Hon'ble Apex Court observed as under:

"38. It is a well-established principle
of law, consistently reiterated and followed
by this Court that while dealing with a
judgment of acquittal, an appellate court
must consider the entire evidence on
record, so as to arrive at a finding as to
whether the views of the trial court were
perverse or otherwise unsustainable. Even
though the appellate court is entitled to
consider, whether in arriving at a finding of
fact, the trial court had placed the burden of
proof incorrectly or failed to take into
consideration any admissible evidence
and/or
had
taken
into
consideration
evidence brought on record contrary to law;
the appellate court should not ordinarily set
aside a judgment of acquittal in a case
where two views are possible, though the
view of the appellate court may be the
more probable one. The trial court which
has the benefit of watching the demeanour
of the witnesses is the best judge of the
credibility of the witnesses.

39. Every accused is presumed to be
innocent unless his guilt is proved. The
presumption of innocence is a human right.
Subject to the statutory exceptions, the said
principle forms the basis of criminal
jurisprudence in India. The nature of the
offence, its seriousness and gravity has to
be taken into consideration. The appellate
court should bear in mind the presumption
of innocence of the accused, and further,
that the trial court's acquittal bolsters the
presumption of his innocence. Interference
with the decision of the trial court in a
casual or cavalier manner where the other
view is possible should be avoided, unless
there
are
good
reasons
for
such
interference.

40. In exceptional cases where there
are compelling circumstances, and the
judgment under appeal is found to be
perverse, the appellate court can interfere
with the order of acquittal. 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 material or by
taking
into
consideration
irrelevant/inadmissible material. A 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. (See
Balak Ram v. State of U.P.9, Shailendra
Pratap v. State of U.P.10, Budh Singh v.
State of U.P.11, S. Rama Krishna v. S.
Rami Reddy12, Arulvelu v. State 13, Ram
Singh v. State of H.P.14 and Babu v. State
of Kerala15.)"

20. In the case of State of U.P. vs.
Naresh, reported in (2011) 4 SCC 324, in
paragraph 33 and 34, the Hon'ble Apex
Court observed as under:

"33. We are fully aware of the fact that
we are entertaining the appeal against the
order of acquittal. Thus, the Court has to
scrutinise the facts of the case cautiously
and knowing the parameters fixed by this
Court in this regard.

34. Every accused is presumed to be
innocent unless his The presumption of
innocence is a human right subject to the
statutory exceptions. The said principle
forms the basis of criminal jurisprudence in
India. The law in this regard is well settled
that while dealing with a judgment of
acquittal, an appellate court must consider
the entire evidence on record so as to arrive
8 All. State of U.P. Vs. Kuldeep & Anr.
551
at a finding as to whether the views of the
trial court were perverse or otherwise
unsustainable. An appellate court must also
consider whether the court below has
placed the burden of proof incorrectly or
failed to take into consideration any
admissible evidence or had taken into
consideration evidence brought on record
contrary to law? In exceptional cases,
whether
there
are
compelling
circumstances and the judgment in appeal
is found to be perverse, the appellate court
can interfere with the order of acquittal. So,
in order to warrant interference by the
appellate court, a finding of fact recorded
by the court below must be outweighed
evidence or to suffer from the vice of guilt
is proved. such finding if outrageously
defies logic as irrationality. [Vide Babu v.
State
of
Keralall
and Sunil
Kumar
Sambhudayal Gupta (Dr.)8.]"

21. In the case of State of M.P. vs.
Ramesh, reported in (2011) 4 SCC 786, in
paragraph 15, the Hon'ble Apex Court
observed as under:

"15. We are fully alive of the fact that
we are dealing with an appeal against
acquittal and in the absence of perversity in
the said judgment and order, interference
by this Court exercising its extraordinary
jurisdiction, is not warranted. It is settled
proposition of law that the appellate court
being the final court of fact is fully
competent to reappreciate, reconsider and
review the evidence and take its own
decision. Law does not prescribe any
limitation, restriction or condition on
exercise of such power and the appellate
court is free to arrive at its own conclusion
keeping in mind that acquittal provides for
presumption in favour of the accused. The
presumption of innocence is available to
the person and in criminal jurisprudence
every person is presumed to be innocent
unless he is proved guilty by the competent
court and there can be no quarrel to the said
legal proposition that if two reasonable
views are possible on the basis of the
evidence on record, the appellate court
should
not
disturb
the
findings
of
acquittal."

22. The Apex Court recently in
Jayaswamy vs. State of Karnataka,
(2018) 7 SCC 219, has laid down the
principles for laying down the powers of
appellate court in re-appreciating the
evidence in a case where the State has
preferred an appeal against acquittal, which
read as follows:

"13. It is by now well settled that the
Appellate Court hearing the appeal filed
against the judgment and order of acquittal
will not overrule or otherwise disturb the
Trial Court's acquittal if the Appellate
Court does not find substantial and
compelling reasons for doing so. If the
Trial Court's conclusion with regard to the
facts is palpably wrong; if the Trial Court's
decision was based on erroneous view of
law; if the Trial Court's judgment is likely
to result in grave miscarriage of justice; if
the entire approach of the Trial Court in
dealing with the evidence was patently
illegal; if the Trial Court judgment was
manifestly unjust and unreasonable; and if
the Trial Court has ignored the evidence or
misread the material evidence or has
ignored material documents like dying
declaration/report of the ballistic expert etc.
the same may be construed as substantial
and compelling reasons and the first
appellate court may interfere in the order of
acquittl. However, if the view taken by the
Trial Court while acquitting the accused is
one of the possible views under the facts
and
circumstances
of
the
case,
the
552 INDIAN LAW REPORTS ALLAHABAD SERIES
Appellate Court generally will not interfere
with the order of acquittal particularly in
the absence of the aforementioned factors.

14. It is relevant to note the
observations of this Court in the case of
Ramanand Yadav vs. Prabhu Nath Jha &
Ors., (2003) 12 SCC 606, which reads
thus:

"21.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 re-appreciate the
evidence in a case where the accused has
been acquitted, for the purpose of
ascertaining as to whether any of the
accused committed any offence or not."

23. The Apex Court recently in
Jafarudheen & Ors. vs. State of
Kerala, JT 2022(4) SC 445 has observed
as under:-

"DISCUSSION Scope of Appeal
filed against the Acquittal:

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 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
8 All. State of U.P. Vs. Kuldeep & Anr.
553
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 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.