# State of U.P v. Mohd. Ibrahim @ Munna & Ors

- **Citation:** (2023) 10 ILRA 758
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-06
- **Case number:** J. Govt. Appeal No. 416 of 2023
- **Bench:** Surya Prakash Kesarwani, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-mohd-ibrahim-munna-ors-49525
- **Pages:** 9

## Headnote

Law-Criminal
Procedure
Code,1973-Section 378(3) - Indian Penal
Code,1860-Sections 120B/302, 328/149,
302/149
&
201/149-challenge
toacquittal-there
was
dispute
regarding
share
of
property
between
the
first
informant and the deceased's brother-first
informant and his brother wanted to grab the
ancestral property of the deceased -it is a case
based on circumstantial evidence-no eye
witness account of the incident-Though,
according to FIR, the main motive behind the
incident was that the deceased's wife had
illicit relation with the accused respondents,
but no concrete or independent witness have
been produced to prove the fact-There are
material contradictions and inconsistencies in
the statements of PW-1 and PW-2 regarding
the dead body which was thrown in the wellThus, the chain of events connecting the
circumstances is not complete to prove the
prosecution case beyond the reasonable
doubt.(Para 1 to 20)

The appeal is dismissed. (E-6)

List of Cases Cited:

## Text

758 INDIAN LAW REPORTS ALLAHABAD SERIES
when the approach of the trial in acquitting
an accused is found to be clearly erroneous
in its consideration of evidence on record
and in deducing conclusions therefrom that
the appellate court can interfere with the
order of acquittal."

21. The Court, in several cases, has
taken the consistent view that the appellate
court, while dealing with an appeal against
acquittal, has no absolute restriction in law
to review and relook the entire evidence on
which the order of acquittal is founded. If
the appellate court, on scrutiny, finds that
the decision of the court below is based on
erroneous
views
and
against
settled
position of law, then the interference of the
appellate court with such an order is
imperative."

23. In the light of the aforesaid
guidelines, the impugned judgment has to
be considered from the point of view
whether the view taken by the court below
was a probable view based on the material
on record or it is an absolutely erroneous
judgment devoid of merits.

24. A criminal trial proceeds with the
presumption of innocence of the accused
persons. With the acquittal of the accused
persons this presumption of innocence
stands fortified. So very strong and cogent
reasons must exist in interfering the
judgment of acquittal.

25. Thus, having considered the
matter in its entirety and in view of the law
laid down by the Hon'ble Supreme Court in
Ramesh's case (supra), Guru Dutt
Pathak's case (supra) and Sadhu Saran
Singh (supra), this Court finds that the
learned trial court's findings regarding
acquittal of accused/respondent herein are
based on proper appreciation and analysis
of evidence available on record which do
not, in any manner, appear to be
improbable or perverse.

26. Keeping in view the aforesaid
weakness of the prosecution case, as noted
by the court below, I am of the view that
the view taken by the court below was a
probable and logical view, which is based
on valid reasons. The judgment of the court
below cannot be said to be illegal, illogical
and improbable and not based on material
on record or is based on erroneous views
and is against the settled position of law.
So, this Court is satisfied that there is
absolutely no hope of success in this appeal
and accordingly, no interference is called
for.

27. Accordingly, the present appeal
against acquittal is dismissed.

28. No order as to costs.

29. Copy of this judgment be sent to
the court below for its compliance.
----------
(2023) 10 ILRA 758
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.10.2023

BEFORE

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

Govt. Appeal No. 416 of 2023

State of U.P. ...Applicant
Versus
Mohd. Ibrahim @ Munna & Ors.
 ...Respondents

Counsel for the Applicant:
Sri
Ashutosh
Kumar
Sand
10 All. State of U.P. Vs. Mohd. Ibrahim @ Munna & Ors.
759
Counsel for the Respondents:
 --

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 378(3) - Indian Penal
Code,1860-Sections 120B/302, 328/149,
302/149
&
201/149-challenge
toacquittal-there
was
dispute
regarding
share
of
property
between
the
first
informant and the deceased's brother-first
informant and his brother wanted to grab the
ancestral property of the deceased -it is a case
based on circumstantial evidence-no eye
witness account of the incident-Though,
according to FIR, the main motive behind the
incident was that the deceased's wife had
illicit relation with the accused respondents,
but no concrete or independent witness have
been produced to prove the fact-There are
material contradictions and inconsistencies in
the statements of PW-1 and PW-2 regarding
the dead body which was thrown in the wellThus, the chain of events connecting the
circumstances is not complete to prove the
prosecution case beyond the reasonable
doubt.(Para 1 to 20)

The appeal is dismissed. (E-6)

List of Cases Cited:

1. H.D. Sundara & ors. Vs St. of Karn. (2023) SCC
OnLine SC 1219

2. Banna Reddy & ors. Vs St. of Karn. & ors. (2018)
5 SCC 790.

3. St. of Har. Vs Ram Pal & ors. (2005) 3 SCC 347
Para 9

4. St. of U.P. Vs Anil Kumar @ Badka & ors. (2018) 9
SCC 492

5. St. of Mah. Vs Sujay Mangesh Poyarekar (2008) 9
SCC 475

(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. The present Government Appeal has
been filed under section 378(3) Cr.P.C. by the
learned Additional Government Advocate for
the State-appellant along with an application
seeking leave to appeal challenging the
Judgment and Order dated 30.05.2023 passed
by learned Additional Sessions Judge/Fast
Track Court No.1 (Crime Against Women),
Fatehpur in Sessions Trial No. 132/2014, (State
vs. Mohd. Ibrahim @ Munna and six others),
arising out of Case Crime No. 594 of 2013 at
P.S. Kotwali, District Fatehpur by means of
which all the accused respondents have been
acquitted for the offence under Sections
120B/302, 328/149, 302/149, 201/149 IPC.

2. Learned State Counsel while pressing
the application seeking leave to appeal
contended that learned Trial Court has not
appreciated the prosecution evidence in its
correct perspective. It has been submitted
that the findings of acquittal recorded by
learned Trial Judge is against the evidence
on record. He next submitted that the
learned Trial Court has committed a
manifest error of law and has ignored the
material evidence on record by the
prosecution by holding that the prosecution
had failed to prove the charges against the
accused respondents beyond the reasonable
doubt.

3. We have heard the learned
Additional Government Advocate for the
Appellant-State and also perused the
findings recorded by the Trial Court.

4. The brief facts are that on
09.12.2013, Shafiq, brother of the deceased
gave a written Tehrir stating therein that
they were five brothers. Brother Jamil used
to live in a rented house at Hamlet of Asti
Gardiyan at P.S. Kotwali, District Fatehpur
alongwith his wife Smt. Rizwana. For the
past 5 to 6 years, Jamil was working at
Saudi Arabia. His wife, a lady of easy
virtues, developed illicit relation with
760 INDIAN LAW REPORTS ALLAHABAD SERIES
Mohd. Ibrahim @ Munna, Sayeed and a
local Doctor at Hamlet of Asti Gardiyan.
Due to this reason, the couple had
estranged relationship. On 05.12.2013,
Jamil went missing from his home. On
06.12.2013, a missing report was lodged by
him at P.S. Kotwali. During search, he
came to know that on 5.12.2013, his
brother
was
administered
intoxicating
substance and was killed and his dead body
was thrown in a well, which was seen by an
unknown person, on whose pointing the
dead body was found floating in the well.
His brother had been killed by Smt.
Rizwana in connivance with others. On the
basis of this Tehrir an FIR was registered
being Case Crime No. Nil/2013. After the
inquest proceedings, the dead body was
sent for autopsy. As the deceased belonged
to P.S. Kotwali, therefore, the investigation
was transferred on 09.12.2013 at 23:00
hours to P.S. Kotwali, as Case Crime No.
594 of 2013 under Sections 302/34, 328
and 201 IPC against Mohd. Ibrahim @
Munna, Sayeed, Smt. Rizwana, Shanawaz,
unnamed Doctor and an unknown person.

5. After investigation, charge sheet
was submitted against Mohd. Ibrahim @
Munna, Mohd Sayeed, Smt. Rizwana,
Shanawaz, Dr. Arif, Naushad and Phool
Chandra Soni, under Sections 302/34, 328,
120B and 201 IPC before the concerned
Court. The charges were framed under
Sections 120-B/302, 328/149, 302/149,
201/149 IPC. The accused denied the
charges and claimed tried.

6. In order to prove its case,
prosecution examined ten witnesses in all
and the exhibits.

7. From perusal of the record, we
find that P.W. 1 Shafiq, the first
informant/brother of the deceased, in his
examination-in-chief, had supported the
prosecution version and had proved the
written Tehrir and the Panchayatnama as
a Panch witness. P.W. 2 Mohd. Ismile,
elder brother of the deceased/the witness
of last seen, deposed that while he was on
way with his brother-in-law, at New
Tehsil crossing, he saw Jamil (deceased)
on a motor-cycle which was driven by
Munna. Smt. Rizwana too was sitting. On
another
motor-cycle
Shanawaz
and
Sayeed were sitting and were going
towards Asti. When he stopped them then
they told that they were going in an
invitation at Sayeed's house. Later he
came to know that the dead body of his
younger brother Jamil was lying in a
well. P.W. 3 Inspector Gurmukh Singh,
the second Investigating Officer had
proved the chargesheet against accused
persons.
P.W.
4
Dr.
Alok
Verma
conducted the autopsy on the body of the
deceased (Jamil) on 10.12.2013 at 11:30
am. During post mortem, following
injuries were found on the body of the
deceased Jamil :

"1. A cut wound on the right side of
the jaw, which was below the jaw from
the chin towards the right ear, whose size
was 8 cm x 1.5 cm. The wound was deep
till the wound and edges of the wound
were sharp.

2. A cut wound on the left side of the
neck which extended from half of the jaw
to below the left ear, whose size was 4 cm
x 0.1 cm.

3. Cut wound on the upper part of
the head from front to back whose size
was 6 cm x 0.5 cm, deep up to the bone
and edges were sharp.

4. Cut on the right side on the left
side of the back on the head, horizontally
placed, size 05 cm x 0.5 cm. It was deep till
the bone, the edges were sharp.
10 All. State of U.P. Vs. Mohd. Ibrahim @ Munna & Ors.
761

5. Cut wound on the right side behind
the head, placed horizontally, size 13 cm x
0.5 cm, deep wound up to the bone with
sharp edges

6. Incised wound on the right hand
dorsal aspect transversally placed size 5
cm x 01 cm, deep to the wound injuries, the
edges were sharp."

8. According to the doctor, the
deceased died about 4-5 days before the
post mortem. The cause of death was due to
anti mortem injuries as a result of shock
and
excessive
haemorrhage.
P.W.
5
Constable Moharir Rameshwar Prasad
proved the G.D. Entry No. 28 dated
08.12.2013 at 12:30 pm regarding the
missing report given by Smt. Rizwana,
wife of the deceased at P.S. Kotwali. P.W. 6
Constable
Mohrarir
Subhash
Chandra
deposed that he was posted on 09.12.2013
at P.S. Kotwali and received the Chik FIR
No. Nil of 2013 lodged at P.S. Kotwali on
09.12.2013, on the basis of which, Case
Crime No. 594 of 2013 was registered vide
G.D. No. 58 dated 09.12.2013 at 23:00
hours. P.W. 7 Inspector Rajiv Dwivedi of
P.S. Kotwali, the first Investigating Officer
had proved all the police papers. P.W. 8
Head Constable Moharir Laxmi Kant
Yadav arrested accused Ibrahim @ Munna
and
had
proved
the
extra
judicial
confession of Ibrahim, on whose pointing,
the Gandasa was recovered from a tube
well Kothari. P.W. 9 S.I. Surendra Kumar
Shukla deposed that he alongwith other
police officers took out the soaked dead
body of Jamil from the well with the help
of the villagers. The inquest report was
prepared and dead body was sent for post
mortem examination. P.W. 10 S.I. Suresh
Saroj, in his examination-in-chief, deposed
that on 09.12.2013 he was posted at P.S.
Hathgaon and proved the hand written
Tehrir given by the first informant on the
basis of which an FIR bearing Case Crime
No. Nil/2013, under Sections 34/302,
201/328 IPC was registered at P.S.
Hathgaon which was entered as G.D. No.
20 dated 09.12.2013 at 9:30 am.

9.

The
accused
during
their
examination under Section 313 Cr.P.C.
stated
that
they
have
been
falsely
implicated. Accused Sayeed denied the
charges levelled against him and stated that
he
had
been
falsely
implicated
in
connivance with the police. Accused Mohd.
Arif also denied the charges leveled against
him, stating that he was not a doctor by
profession, but by slang the villagers called
him as doctor and was falsely implicated
due to money dispute. Accused Smt.
Rizwana (wife of the deceased) stated that
her husband Jameel went missing on
05.12.2013, for which, information was
given at P.S. Kotwali. Later, all the
proceedings were carried against her in
connivance with the police. As she
solemnized
love
marriage
with
the
deceased, his brothers and his other family
members opposed them and eliminated
them from the family. As her husband
demanded money and property from them,
due to this reason, the first informant and
Ismile managed to kidnap and killed her
husband. Accused Phool Chandra Soni
deposed that he had been falsely implicated
and had no information about the incident
and refused to be examined as defence
witness. Accused Naushad stated that he
had been falsely implicated due to political
rivalry in the village. Accused Shanawaz
deposed that he had been falsely implicated
and has not committed the murder nor
participated in the crime. He stated that he
had been falsely implicated being the
brother of Smt. Rizwana. Accused Ibrahim
deposed
that
he
had
been
falsely
implicated. The Police planted a false
762 INDIAN LAW REPORTS ALLAHABAD SERIES
recovery of Gandasa from his possession
after purchasing a Gandasa from the
market.

10. The accused in their defence
produced four defence witnesses. D.W. 1
Ram Vishal was a villager who knew the
accused and the informant and knew some
previous money dispute. D.W. 2 Suhail, son
of the deceased, deposed that his father was
killed when he was 19 years of age. His
parents solemnized love marriage. His
uncle Shafiq and Ismile opposed this
marriage due to which his parents were
ousted from the home. His father hired a
rented house at Hamlet of Asti Gardiyan
where they stayed together. His uncle
Shafiq and Ismile were not willing to give
share of property of his father. Uncle
Shafiq was step brother of his father. On
04.12.2013 at 9:00 am, when his father and
mother were at home, uncle Shafiq came to
his house and took away his father saying
that now it is enough and he would settle
the dispute and he can come along to take
his share of the property. His uncle took
away his father. On the same evening at
7:00 pm his father returned back and
informed his mother that again he had been
called for the next day for getting the share
of property. On 05.12.2013 at 6:30 pm, his
father went at Sungaon to meet his uncle
Shafiq, for the whole night his father did
not return. Next day morning at 8:00 am,
he went to search his father at this uncle's
residence then his uncle informed that his
father came and went away an hour before
and that he is not aware as to where he had
gone, he may go and fetch him. The said
witness returned back to Asti and shared it
to his mother and inquired from his
relatives and tried to fetch his father but
the whereabouts could not be traced.
Then 08.12.2013, he went to P.S. Kotwali
to lodge a missing report about his father
on the application of his mother at P.S.
Kotwali. He could not believe that his
uncle Shafiq and Ismile would do such an
act, so he did not implicate them as
accused. When he and his mother
Rizwana started suspecting his uncle
Shafiq and Ismile, then they falsely
implicated his mother. His father was
killed by his uncle Shafiq and Ismile who
had greed for the property.

11. D.W. 3 Mohd. Ahmad deposed
that he was Village Pradhan since 2009 to
2015. On 10.12.2013, he was not in his
village and had gone to his relatives.

12. D.W. 4 Lal Miya was the friend
of the Village Pradhan. On 10.12.2013,
he was not present in the village,
therefore, he stated that he is unaware
about the recovery of Gandasa. No
Gandasa
was
recovered
from
the
possession of Ibrahim.

13. During the course of arguments,
learned counsel for the State-appellant
submitted that from the Tehrir given by
P.W.1, the deceased went missing on
05.12.2013 which is corroborated by the
fact that as per the opinion of the doctor
P.W.4, who conducted autopsy, the
deceased died about 4-5 days before the
post-mortem with a sharp edged weapon.
The death was due to shock and excessive
haemorrhage.

14. Secondly, it has been argued that
P.W.2 Mohd. Ismile, brother of the
deceased, who is the witness of last seen,
saw the deceased on 05.12.2013 at about
5:15 pm in the company of accused
persons on a motor cycle heading towards
Asti. Thereafter the dead body of the
deceased was found in a well which also
corroborates the prosecution story.
10 All. State of U.P. Vs. Mohd. Ibrahim @ Munna & Ors.
763

15. Next, it has been submitted that
after lodging of the FIR on 12.10.2013
accused Ibrahim @ Munna was arrested
who in his extra judicial confession before
Investigating
Officer
stated
that
he
alongwith the co-accused on 05.12.2013
administered intoxicating substance to the
deceased Jamil and thereafter he was killed.
On his pointing a weapon of assault
(Gandasa) was recovered from the tube
well which also supports the prosecution
case.

16. During the course of argument,
learned State-counsel further argued that
the strong motive behind the incident is that
Deceased's wife Rizwana having illicit
relations with the co-accused, due to which,
estranged relationship developed between
husband and wife. The co-accused hatched
a conspiracy to kill Jamil and thrown the
dead body in the well to disappear the
evidence.

17. From perusal of record, we find
that it is a case based on circumstantial
evidence. There is no eye witness account
of the incident. Though, according to the
FIR, the main motive behind the incident
was that the deceased's wife Rizwana was
having illicit relation with the accused
respondents,
but
no
concrete
or
independent witness have been produced to
prove this fact.

18. As far as the last seen evidence is
concerned, P.W.2 saw the deceased on
05.12.2013 in the company of accused
respondents
but
there
are
material
contradictions in his examination-in-chief
and cross-examination. According to the
Tehrir, the deceased went missing on
05.12.2013 and a missing report was given
at P.S. Kotwali on 06.12.2013 but the
prosecution failed to produce the Tehrir
during trial. According to the Tehrir dated
09.12.2013, it was stated that a person saw
the dead body in the well but the said
person was not produced as a witness
neither the Investigating Officer collected
any evidence of the dead body being
thrown in the well. The first informant in
his Tehrir had disclosed that the deceased
went missing on 05.12.2013 but in his
cross-examination he has repeatedly stated
that the deceased went missing on
04.05.2013.
There
are
material
contradictions and inconsistencies in the
statements of P.W.1 and P.W.2 regarding
the dead body which was thrown in the
well.

19. From the submissions made by
learned counsel for the appellant and after
perusal of record, we find that there was
dispute
regarding
share
of
property
between the first informant and the
deceased's brother. The first informant and
his brother Ismile wanted to grab the
ancestral property of the deceased and,
therefore, he was killed. In order to
disappear the evidence, the dead body was
thrown in the well. This fact is supported
by the evidence adduced by D.W.2 Suhail,
the son of the deceased aged about 19 years
who is the most natural witness. The said
witness stated that he was residing with his
father alongwith his other family members.
The Investigating Officer had not collected
any such material which may prove the
illicit relation of Rizwana with the accused
respondents. Even the doctor P.W.4 in his
cross-examination
denied
the
injuries
caused by Gandasa. He deposed in his
cross-examination that the ante mortem
injuries of the deceased cannot be caused
with a weapon like Gandasa. The injuries
must have been caused with a knife or a
sharp edged weapon. There is no such
recovery of knife from any of the accused
764 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents.
Though,
blood
stained
gandasa was recovered on 10.12.2013 and
the blood stained pant of the deceased as
well as the plain earth and blood stained
earth was proved by the Investigating
Officer but the recovered articles were not
sent to Forensic Science Laboratory for
chemical examination. No details of the
mobile carried by the deceased were given
nor any call details report collected. D.W.2
Suhail, the son of the deceased was not
called to identify the dead body of the
deceased. All these factors if taken together
do not prove the case of the prosecution nor
the motive behind the incident beyond the
reasonable doubt.

20. The chain of events connecting
the circumstances is not complete to prove
the prosecution case beyond the reasonable
doubt. The prosecution story does not
appear to be natural and reliable. The
conspiracy amongst the accused persons to
administer the intoxicating substance to the
deceased
and
thereafter
killing
and
throwing away the dead body in the well is
also not proved. Even the motive is also not
proved. There are material contradictions
and inconsistencies in the statements of the
prosecution witnesses.

21. From the post-mortem report, no
such sign of administering intoxicating
substance to the deceased was found nor
the time of death supports the prosecution
case.

22. From the aforegoing discussions,
the question that poses attention of the
Court is whether an application for Leave
to Appeal under Section 378 (3) Cr.P.C.
can be dismissed in limine or not?.

23. The provision of Section 378(3)
Cr.P.C, reads as follows:

"........(3) [No appeal to the High
Court] under sub-section (1) or sub-section
(2) shall be entertained except with the
leave of the High Court."

24. Recently, the Hon'ble Supreme
Court has highlighted certain principles
which govern the exercise of appellate
jurisdiction while deciding an appeal
against acquittal under Section 378 of the
Code of Criminal Procedure, 1973.

In H.D. Sundara and others vs. State
of Karnataka, (2023) SCC OnLine SC
1219 , it has been held that:

"(a) The acquittal of the accused
further strengthens the presumption of
innocence;

(b) The Appellate Court, while hearing
an appeal against acquittal, is entitled to
re-appreciate the oral and documentary
evidence;

(c)
The
Appellate
Court,
while
deciding an appeal against acquittal, after
re-appreciating the evidence, is required to
consider whether the view taken by the
Trial Court is a possible view which could
have been taken on the basis of the
evidence on record;

(d) If the view taken is a possible view,
the Appellate Court cannot over turn the
order of acquittal on the ground that
another view was also possible;

(e) The Appellate Court can interfere
with the order of acquittal only if it comes
to a finding that the only conclusion which
can be recorded on the basis of the
evidence on record was that the guilt of the
accused was proved beyond a reasonable
doubt and no other conclusion was
possible.

The appellate court cannot examine
the judgement of the Trial Court only to
find out whether the view taken was correct
or incorrect. After re-appreciating the oral
10 All. State of U.P. Vs. Mohd. Ibrahim @ Munna & Ors.
765
and documentary evidence, the Appellate
Court must first decide whether the Trial
Court its view was a possible view. The
Appellate Court cannot over turn acquittal
only on the ground that after reappreciating evidence, it is of the view that
the guilt of the accused was established
beyond a reasonable doubt.

Only by recording such a conclusion
an order of acquittal cannot be reversed
unless the appellate court also concludes
that it was the only possible conclusion.
Thus, the Appellate Court must see whether
the view taken by the Trial Court while
acquitting the accused can be reasonably
taken on the basis of evidence on record. If
the view taken by the Trial Court is a
possible view, the Appellate Court cannot
interfere with the order of acquittal on the
ground that another view could have been
taken."

The aforesaid view finds support in
Banna Reddy and Others vs. State of
Karnataka and Others, (2018) 5 SCC 790.

While dealing with the application for
leave to appeal under Section 378 (3) of
Cr.P.C., it has been held in State of
Haryana vs. Ram Pal and Others (2005)
3 SCC 347 para 9 :

" The trial Court was required to
carefully appraise the entire evidence and
then come to a conclusion. If the trial
Court was at lapse in this regard the High
Court was obliged to undertake, such an
exercise by entertaining the appeal. The
trial Court on the facts of this case did not
perform its duties, as was enjoined on it by
law. The High Court ought to have in such
circumstances
granted
leave
and
thereafter as a first court of appeal, reappreciated the entire evidence on the
record independently and returned its
findings objectively as regards guilt or
otherwise of the accused. It has failed to
do so. The questions involved were not
trivial. The question regarding application
of Section 302 and 149 IPC as raised does
not require consideration, keeping in view
the evidence adduced and conclusions of
the trial court. The High Court has not
given any reasons for refusing to grant
leave to file appeal against acquittal, and
seems to have been completely oblivious to
the fact that by such refusal, a close
scrutiny of the order of acquittal, by the
appellate forum, has been lost once and
for all. The manner in which appeal
against acquittal has been dealt with by
the High Court leaves much to be desired.
Reasons introduce clarity in an order. On
plainest consideration of justice, the High
Court ought to have set forth its reasons,
howsoever brief, in its order indicative of
an application of its mind, all the more
when its order is amenable to further
avenue of challenge. The absence of
reasons has gendered the High Court
order not sustainable. Similar view was
expressed in State of U.P. v. Battan and
Ors. (2001) 10 SCC 607. About two
decades back in State of Maharashtra v.
Vithal Rao Pritirao Chawan (1981) 4 SCC
129, the desirability of a speaking order
while dealing with an application for
grant of leave was highlighted. The
requirement of indicating reasons in such
cases has been judicially recognized as
imperative. The view was re-iterated in
Jawahar Lal Singh v. Naresh Singh and
Ors. (1987) 2 SCC.

The Hon'ble Supreme Court in State
of Uttar Pradesh vs. Anil Kumar Alias
Badka and others, (2018) 9 SCC 492 had
again discussed the said issue.

In State of Maharashtra vs. Sujay
Mangesh Poyarekar (2008) 9 SCC 475,
the Hon'ble Supreme Court has laid down
the parameters which the High Court
should keep in mind while deciding the
766 INDIAN LAW REPORTS ALLAHABAD SERIES
application for grant of leave to appeal
made under Section 378(3) of the Cr.P.C.

" 19. Now,Section 378 of the Code
provides for filing of appeal by the State in
case of acquittal. Sub-section (3) declares
that no appeal "shall be entertained except
with the leave of the High Court". It is,
therefore, necessary for the State where it is
aggrieved by an order of acquittal recorded
by a Court of Session to file an application
for leave to appeal as required by subsection (3) ofSection 378 of the Code. It is
also true that an appeal can be registered
and heard on merits by the High Court only
after the High Court grants leave by
allowing the application filed under subsection (3) ofSection 378 of the Code.

20. In our opinion, however, in
deciding the question whether requisite
leave should or should not be granted, the
High Court must apply its mind, consider
whether prima faciecase has been made out
or arguable points have been raised and
not whether the order of acquittal would or
would not be set aside.

21. It cannot be laid down as an
abstract proposition of law of universal
application that each and every petition
seeking leave to prefer an appeal against
an order of acquittal recorded by a trial
Court must be allowed by the appellate
Court and every appeal must be admitted
and decided on merits. But it also cannot
be overlooked that at that stage, the Court
would not enter into minute details of the
prosecution evidence and refuse leave
observing that the judgment of acquittal
recorded by the trial Court could not be
said to be `perverse' and, hence, no leave
should be granted."

25. The law cited above and
principles laid down by the Hon'ble
Supreme Court, while dealing with an
application for leave to appeal must apply
the mind to consider whether prima facie
case is made out or not and whether the
order of acquittal be set aside or not and
can dispose of the application in limine.
The core essence of natural justice and fair
trial must reflect which will add assurance
to the judicial process.

26. Thus, after perusal of the
impugned
judgment
and
arguments
advanced by the learned counsel for the
State, we find that the prosecution has
failed to prove the charges levelled against
the accused respondents. The findings
recorded by the learned Trial Judge in the
impugned judgment is the plausible view
and is well reasoned and supported by
cogent evidence. No interference with the
impugned judgment and order of acquittal
is warranted and the appeal is liable to be
dismissed.

27. Considering the aforesaid facts
and circumstances, the leave to appeal is
dismissed in limine. Consequently, the
appeal also stands dismissed.

28. Copy of the order be sent to the
Court concerned for consequential follow
up action.
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(2023) 10 ILRA 766
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.09.2023

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA,
J.
THE HON'BLE NARENDRA KUMAR JOHARI,
J.

Habeas Corpus Writ Petition No. 346 of 2022

Munna@ Shahanwaz ...Petitioner
Versus