# State of U.P v. Nizamuddin

- **Citation:** (2022) 8 ILRA 561
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-28
- **Case number:** Government Appeal No. 448 of 2022
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-nizamuddin-48916
- **Pages:** 12

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections - 378 & 378(3) - Indian
Penal Code, 1860 - Sections 304 & 506: -
Government Appeal - against order of Acquittal
- offence of culpable homicide - FIR - informant
(PW-1) claimed that his son was died due to
ante-mortem several injuries caused during
administered beating by the accused - court -
finds that entire prosecution case proceeds on
weak premises - informant was not the
eyewitness, the actual eye-witnesses were PW-2
& PW-3 but said fact was not mentioned in the
FIR - there is no any justification is given by the
prosecution as to why delay of two days was
caused in lodging the FIR and further what was
doing by PW-1 in order to search whereabouts
of his son as he claimed that his son was
returned home after two days from the date of
incident - further, injuries on the body of
deceased was neither shown in the Post-mortem
report nor in the Panchayatnama - as well as
the date & cause of death was also not matched
with the allegation so claimed - held that - it is
the duty of the prosecution to prove that in all
probabilities, the accused has committed the
crime, but none of the factors so engineered by
them marks or points out that the accused has
committed crime - since, appellant fails to point
out any perversity or illegality in the impugned
acquittal order - thus, leave to appeal rejected,
even though same is not a case worth granting
leave to appeal - consequently Government
Appeal stands dismissed.(Para -22, 25, 27, 29,
31)

Appeal Dismissed. (E-11)

List of Cases cited: -

Guru Dutt Pathak Vs St. of U.P. (2021 (6) SCC
116),

## Text

_Characters 0–39,864 of 41,799. This is a partial read: ask again with offset=39864 for what follows._

8 All. State of U.P. Vs. Nizamuddin
561
application for granting leave to appeal is
rejected.

40. Since the application for granting
leave to appeal has not been granted, the
appeal also stands dismissed.
----------
(2022) 8 ILRA 561
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2022

BEFORE

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

Government Appeal No. 448 of 2022

State of U.P. ...Appellant
Versus
Nizamuddin ...Respondent

Counsel for the Appellant:
G.A.

Counsel for the Respondent:
..

Criminal Law - Criminal Procedure Code,
1973 - Sections - 378 & 378(3) - Indian
Penal Code, 1860 - Sections 304 & 506: -
Government Appeal - against order of Acquittal
- offence of culpable homicide - FIR - informant
(PW-1) claimed that his son was died due to
ante-mortem several injuries caused during
administered beating by the accused - court -
finds that entire prosecution case proceeds on
weak premises - informant was not the
eyewitness, the actual eye-witnesses were PW-2
& PW-3 but said fact was not mentioned in the
FIR - there is no any justification is given by the
prosecution as to why delay of two days was
caused in lodging the FIR and further what was
doing by PW-1 in order to search whereabouts
of his son as he claimed that his son was
returned home after two days from the date of
incident - further, injuries on the body of
deceased was neither shown in the Post-mortem
report nor in the Panchayatnama - as well as
the date & cause of death was also not matched
with the allegation so claimed - held that - it is
the duty of the prosecution to prove that in all
probabilities, the accused has committed the
crime, but none of the factors so engineered by
them marks or points out that the accused has
committed crime - since, appellant fails to point
out any perversity or illegality in the impugned
acquittal order - thus, leave to appeal rejected,
even though same is not a case worth granting
leave to appeal - consequently Government
Appeal stands dismissed.(Para -22, 25, 27, 29,
31)

Appeal Dismissed. (E-11)

List of Cases cited: -

Guru Dutt Pathak Vs St. of U.P. (2021 (6) SCC
116),

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

1. State of U.P. being aggrieved and
dissatisfied against the judgment and order
of the acquittal dated 23.11.2018 passed by
Addl. Sessions Judge/ Special Judge (P.C.
Act), Special Court No.1, Meerut in
Sessions Trial No. 1181 of 2013 (State Vs.
Nizamuddin), in Case Crime No. 233 of
2013, under Sections 304, 506 IPC, P.S.
Kharkhauda, District Meerut, acquitting the
accused respondents herein.

2. The present appeal centers around
the prosecution case that the first
informant Mohd. Shahib, resident of P.S.
Kharkhauda, District Meerut had lodged
a written complaint on 9.6.2013 at 1:30 in
the noon, which transformed into a first
information report with an allegation that
his son Salman was called upon by one
Nizamuddin (accused herein) son of
Azimulla on 6.6.2013 at 9:00 in the
morning on the pretext that the son of the
first informant had directed Tabassum the
daughter of the accused herein to press
and
massage
his
head
and
being
aggrieved against the said act of the son
562 INDIAN LAW REPORTS ALLAHABAD SERIES
of the first informant, the accused herein
along with his son Gulla attacked and
pounced upon the son of the informant
with kicks, fists and wooden stick, and
the said fact was also witnessed by
Shahid son of Abdul Hakeem and Saleem
son of Sabir and other villagers, who
were the neighbours and with their
attempts,
the
matter
was
pacified,
however the accused herein ran away and
threatened that they will fire upon them.
Faced with these circumstances, the son
of the first informant being Salman ran
away from the house and he returned on
8.3.2013 at 6:00 in the evening while
complaining
that
there
was
severe
stomach ache and as his situation was
becoming bad to worst, he was taken to
one
Dr. Ashok
Garg,
Shastrinagar,
Meerut, where he was detected to be
suffering from severe problem and his
condition was stated to be critical and
thereafter he was taken to Sahara
Hospital, Garh Road, Meerut, where he
succumbed.

3. On the basis of written complaint
so sought to be lodged, a first information
report purported to be under Sections
304, 506 IPC against the accused and his
son Gulla was lodged. Investigating
Officer was nominated to conduct the
investigation, who prepared site-plan,
recorded the statement of witnesses, sent
the body for post-mortem and thereafter
submitted the charge sheet under Sections
304 & 506 IPC.

4. The case was committed to
Sessions, charges were read over to the
accused herein and the accused pleaded
not guilty and claimed to be tried. The
learned Trial Court by virtue of the
judgment and order under challenge has
acquitted the accused herein.

5. Challenging the judgment and
order of acquittal, now the State is before
this Court in the proceeding emanating
under Section 378(3) CrPC.

6. The prosecution in order to support
the version has produced the witnesses
namely; PW-1 Shahib, PW-2 Shahid, PW-3
Saleem, PW-4 Dr. Yashveer Singh, PW-5
Dr. Ashok Garg, PW-6 Dinesh Kumar, S.I,
PW-7 Neeraj Singh, Inspector and PW-8
HCP 194 Rajendra Singh.

7. We have heard Ms. Nand Prabha
Shukla, learned A.G.A. for the State on the
question of admission.

8. Before diving into the controversy
in question, this Court is to remember that
the present proceedings are at the behest of
the State of U.P. under Section 378(3) of
CrPC against the judgment and order of
acquittal so passed in favour of the accused
herein. To put it otherwise, this Court has to
keep in mind the limitations, which are
existing in exercise of the jurisdiction in the
matter of the appeals against acquittal. The
Courts of Law have been consistently
mandating that invocation of jurisdiction
while interfering against the judgment and
order of acquittal should not be resorted to
in routine manner, as they are to be taken as
a devise to prevent miscarriage of justice
that too in those situations when there are
compelling and substantive circumstances
occasioning the same. Perversity, palpable
illegality and judgment being illegal and
proceeding towards wrong direction are the
grounds amongst others, which occasions
this Court while exercising appellate
jurisdiction in the matter of interference.

9. Recently, the Hon'ble Supreme
Court in the case of Guru Dutt Pathak vs.
State of U.P. reported in (2021) 6 SCC 116,
8 All. State of U.P. Vs. Nizamuddin
563
in paragraphs 14, 15, 16, 17, 18, 19, 20 and
21, has clearly observed as under:-

"14. We are conscious of the fact that
this is a case of reversal of acquittal by the
High Court. Therefore, the first and
foremost thing which is required to be
considered is, whether in the facts and
circumstances of the case, the High Court
is justified in interfering with the order of
acquittal passed by the learned trial Court?
15. In Babu v. State of Kerala (2010) 9
SCC 189, this Court has reiterated the
principles to be followed in an appeal
against acquittal under Section 378 Cr.P.C.
In paragraphs 12 to 19, it is observed and
held 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
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 (1975) 3 SCC 219, Shambhoo
Missir v. State of Bihar (1990) 4 SCC 17,
Shailendra Pratap v. State of U.P (2003) 1
SCC 761, Narendra Singh v. State of M.P
(2004) 10 SCC 699, Budh Singh v. State of
U.P (2006) 9 SCC 731, State of U.P. v. Ram
Veer Singh (2007) 13 SCC 102, S. Rama
Krishna v. S. Rami Reddy (2008) 5 SCC
535, Arulvelu v. State (2009) 10 SCC 206,
Perla Somasekhara Reddy v. State of A.P
(2009) 16 SCC 98 and Ram Singh v. State
of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor
AIR 1934 PC 227, the Privy Council
observed as under: (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 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."

14. The aforesaid principle of law has
consistently been followed by this Court.
(See Tulsiram Kanu v. State AIR 1954 SC 1,
Balbir Singh v. State of Punjab AIR 1957
SC 216, M.G. Agarwal v. State of
Maharashtra AIR 1963 SC 200, Khedu
Mohton v. State of Bihar (1970) 2 SCC 450,
Sambasivan v. State of Kerala (1998) 5
SCC 412, Bhagwan Singh v. State of
M.P(2002) 4 SCC 85 and State of Goa v.
Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of
Karnataka (2007) 4 SCC 415, this Court
reiterated the legal position as under: (SCC
p. 432, para 42)

"(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
564 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

16. In Ghurey Lal v. State of U.P
(2008) 10 SCC 450, this Court reiterated
the said view, observing that the appellate
court in dealing with the cases in which the
trial courts have acquitted the accused,
should bear in mind that the trial court's
acquittal bolsters the presumption that he is
innocent. The appellate court must give due
weight and consideration to the decision of
the trial court as the trial court had the
distinct
advantage
of
watching
the
demeanour of the witnesses, and was in a
better position to evaluate the credibility of
the witnesses.

17. In State of Rajasthan v. Naresh
(2009) 9 SCC 368, the Court again
examined the earlier judgments of this
Court and laid down that: (SCC p. 374,
para 20) "20. ... an order of acquittal
should not be lightly interfered with even if
the court believes that there is some
evidence pointing out the finger towards
the accused."

18. In State of U.P. v. Banne (2009) 4
SCC
271,
this
Court
gave
certain
illustrative circumstances in which the
Court would be justified in interfering with
a judgment of acquittal by the High Court.
The circumstances include: (SCC p. 286,
para 28)

"28. ... (i) The High Court's decision is
based on totally erroneous view of law by
ignoring the settled legal position;

(ii) The High Court's conclusions are
contrary to evidence and documents on
record;

(iii) The entire approach of the High
Court in dealing with the evidence was
patently
illegal
leading
to
grave
miscarriage of justice;

(iv) The High Court's judgment is
manifestly unjust and unreasonable based
on erroneo
us law and facts on the record of the case;

(v) This Court must always give
proper weight and consideration to the
findings of the High Court;

(vi) This Court would be extremely
reluctant in interfering with a case when
both the Sessions Court and the High Court
have recorded an order of acquittal."

A similar view has been reiterated by
this Court in Dhanapal v. State (2009) 10
SCC 401.

19. Thus, the law on the issue can be
summarised to the effect that in exceptional
8 All. State of U.P. Vs. Nizamuddin
565
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."
(emphasis
supplied)

16. When the findings of fact recorded
by a court can be held to be perverse has
been
dealt
with
and
considered
in
paragraph 20 of the aforesaid decision,
which reads as under:

"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 (1984) 4 SCC 635, Excise
and
Taxation
Officer-cum-Assessing
Authority v. Gopi Nath & Sons 1992 Supp
(2) SCC 312, Triveni Rubber & Plastics v.
CCE 1994 Supp. (3) SCC 665, Gaya Din v.
Hanuman Prasad (2001) 1 SCC 501,
Aruvelu v. State (2009) 10 SCC 206 and
Gamini Bala Koteswara Rao v. State of A.P
(2009) 10 SCC 636)." (emphasis supplied)

It is further observed, after following
the decision of this Court in the case of
Kuldeep Singh v. Commissioner of Police
(1999) 2 SCC 10, 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.

17. In the decision of this Court in the
case of Vijay Mohan Singh v. State of
Karnataka (2019) 5 SCC 436, this Court
again had an occasion to consider the
scope of Section 378 Cr.P.C. and the
interference by the High Court in an appeal
against acquittal. This Court considered
catena of decisions of this Court right from
1952 onwards. In paragraph 31, it is
observed and held as under:

"31. An identical question came to be
considered before this Court in Umedbhai
Jadavbhai (1978) 1 SCC 228. In the case
before this Court, the High Court interfered
with the order of acquittal passed by the
learned trial court on re-appreciation 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: (SCC p. 233)

"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."

31.1. In Sambasivan v. State of Kerala
(1998) 5 SCC 412, the High Court reversed
the order of acquittal passed by the learned
566 INDIAN LAW REPORTS ALLAHABAD SERIES
trial court and held the accused guilty on
re-appreciation 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: (SCC p. 416)

"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 Ramesh Babulal
Doshi v. State of Gujarat (1996) 9 SCC 225
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 well-considered judgment duly
meeting all the contentions raised before it.
But then will this non-compliance 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 v.
State of Kerala (1999) 3 SCC 309, 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
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
8 All. State of U.P. Vs. Nizamuddin
567
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 v. State of U.P. AIR 1955
SC 807, in para 5, this Court observed and
held as under: (AIR pp. 809-10)

"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 AIR 1952 SC 52; Wilayat Khan v. State
of U.P 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 v. State of A.P.
(1979) 1 SCC 355, 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 in the interest of
justice, lest the administration of justice be
brought to ridicule." (emphasis supplied)

18. In the case of Umedbhai Jadavbhai
(supra), in paragraph 10, it is observed and
held as under:

"10. Once the appeal was rightly
entertained against the order of acquittal, the
High Court was entitled to re-appreciate the
entire evidence independently and come to its
own conclusion. Ordinarily, the High Court
would give due importance to the opinion of
the Sessions Judge if the same were arrived
at after proper appreciation of the evidence.
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."

19. In the case of Atley v. State of
Uttar Pradesh AIR 1955 SC 807, this Court
has 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
568 INDIAN LAW REPORTS ALLAHABAD SERIES
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,
Criminal P. C. 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. The State 1952 CriLJ331; Wilayat
Khan v. State of Uttar Pradesh, 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."

20. In K.Gopal Reddy v. State of
Andhra Pradesh (1979) 1 SCC 355, 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 in the interest of justice, lest the
administration of justice be brought to
ridicule.

21. Applying the law laid down by this
Court in the aforesaid decisions to the facts
of the case on hand, it is to be considered
whether in the facts and circumstances of
the case, the High Court is justified in
interfering with the order of acquittal
passed by the learned trial Court?"

10. To begin with, the ocular
testimony is to be first analyzed.

11. As PW-1, the first informant
appeared in the witness box. According to
him, Salman son of complainant was
administered beating on 6.6.2013 at 9:00 in
the morning by the accused and his son
Gulla in connection with the fact that he
committed an act, which according to the
accused was not descent. The beating was
administered with kicks, fists and wooden
rod, according to the first informant, the
said incident was witnessed not by him, but
by Shahid son of Abdul Hakeem and
Saleem son of Sabir and others and due to
their intervention his son could be saved
from further onslaught. According to PW-1,
his son straightway ran away from the
place of occurrence and returned on
8.6.2013 at 6:00 p.m, in the night and he
complained stomach ache and thus he was
taken to the hospital of Dr. Ashok Garg and
8 All. State of U.P. Vs. Nizamuddin
569
from there to Sahara Hospital, Garh Road,
where, he succumbed.

12. One Shahid son of Abdul Hakeem
appeared as PW-2 and he claims himself to
be the witness of the said incident, as at
9:00 O'clock in the morning, he was selling
certain items in the wooden cart and at that
point of time, he saw accused and his son
beating Salman and according to him, at
that point of time, Saleem son of Sabir,
Raja and Bunti was present.

13. So far as PW-3 is concerned,
Saleem got himself examined. He also
narrated the fact that at 9:00 O'clock in the
morning, he was also selling certain items
in the wooden cart and he saw the accused
hurling abuses upon the son of the
complainant and the accused along with his
son administered beating, pursuant whereto
Salman fell down on the surface and the
by-standards also came there.

14. As PW-4, Dr. Yashveer Singh got
himself examined, who claims himself to
be at relevant point of time posted in P.L.
Sharma
District
Hospital,
Meerut.
According to him, the root cause of the
death of Salman, which surfaced during
post mortem was shock and hemorrhage,
which in fact were ante-mortem injuries
and the possibility was also there that he
was beaten by wooden sticks, kicks and
fists. He has further deposed that the post
mortem was done on 9.6.2013, but the
death occurred one day ago.

15. PW-5, Dr. Ashok Garg also got
examined. He claims himself to be a doctor
stationed at Garg Nursing Home, where
Salman son of complainant was got
admitted on 8.6.2013 at 5:00 in the evening
having high fever and breathlessness.
According to him, he was sent for thorough
check up and thereafter, referred to Sahara
Hospital, Garh Road.

16. One Dinesh Kumar, Sub-Inspector
examined as PW-6, who claimed himself to
be the Investigating Officer, who conducted
Panchayatnama and sent the dead body for
post mortem. He also claims to have
completed entire procedure, which is
normally being resorted to post death.

17. As PW-7, Neeraj Singh got
himself examined and he claims to be
posted as S.I. in the Police Station-
Kharkhauda. He proved the statements
which were recorded.

18. As PW-8, HCP 194 Rajendra
Singh got himself examined. He proved
himself as scriber of the FIR.

19. Undisputedly, the entire genesis,
which relates to the commission of the
offences, stems from the event, which
occurred on 6.6.2013 at 9 O'clock, wherein
deceased is stated to have been beaten by
the accused and his son and as per
prosecution case, deceased ran away and
came back to his house on 8.6.2013 at 6:00
in the evening.

20. As a matter of fact, the deceased
died on 8.6.2013 in the hospital and the
post mortem whereof was conducted on
9.6.2013, which was proved by PW-4, who
happens to be Dr. Yashveer Singh.
According to PW-4, post mortem of the
deceased was done on 9.6.2013 at 2:30 in
the noon and further as per the opinion of
the doctor, the death occurred one day ago.
Meaning thereby, the actual time of death
ought to have been at 2:30 in the noon of
8.6.2013. As per the deposition of PW-1
being Shahib and PW-2 Shahid and the
medical reports, the deceased was admitted
570 INDIAN LAW REPORTS ALLAHABAD SERIES
at 5:00 in the evening of 8.6.2013. Meaning
thereby, it becomes highly implorable that a
living person is admitted in a hospital,
though as per the post mortem report, he
ought to have been dead by that time.
However, this Court also bears in mind that
there is variation of two hours, plus or
minus.

21. We may further delve into the
issue, as it has come on record that in the
post mortem report dated 9.6.2013, several
injuries were shown to have been sustained
by the deceased. However, PW-6, being S.I.
Dinesh Kumar in his statement has proved
the panchayatnama, wherein whereat, there
was no mention of the injuries on the body
of the deceased. Apart from the same, there
is no recital about the fact that bandage was
also wrapped over the portion of the dead
body, which occasioned injury. Thus, by all
probabilities, it becomes clear that when
the body of the deceased was sealed during
panchayatnama, there were no injuries
available there at. To put it otherwise,
possibility cannot be also ruled out that the
deceased was administered beating just in
order to make out a case.

22. Another additional aspect which
needs to be noticed is the time-gap between
the death of the deceased and running away
of the deceased, particularly when as per
the prosecution case, the deceased was
inflicted injuries on 6.6.2013 at 9:00 in the
morning and thereafter the deceased came
back to his house after two days on
8.6.2013 at 6:00 o'clock complaining
stomach ache and he was also admitted in
the hospital. PW-5 Dr. Ashok Garg, who
happens to be a prosecution witness has
himself stated that the deceased when
admitted at 5:00 in the evening of 8.6.2013
was
suffering
from
high
fever,
breathlessness and body ache. Meaning
thereby first of all there was no injury
sustained by the deceased, as had the injury
been inflicted upon the deceased, the same
ought to have been disclosed in the medical
prescription/ treatment papers.

23. Moreover, it is quite paradoxical
that the injury, which is stated to be
inflicted by the accused upon the deceased
could be a factor for the death of the
deceased, particularly, when there is
nothing on record to suggest that the
deceased was having such type of injuries,
which became fatal, as according to the
opinion of the Doctor, it was only fever and
breathlessness, which cannot be one of the
factors occasioned by injuries.

24. Even otherwise, the Investigating
Officer was made available certain papers
relating to the treatment of the deceased
through
Asif.
However,
PW-6,
who
happens to be Dinesh Kumar, S.I. has
stated that these papers were sent by Dr.
Ashok Garg from his Clinic, however, Asif
has been stated to be unknown to Dr. Ashok
Garg and he was further also not produced
as witness. The said factor is also relevant,
which
can
change
the
entire
case,
particularly, when there is nothing on
record to suggest as to whether the said
medical reports are genuine and how the
same were made available to investigating
officer.

25. The learned Trial Court has also
analyzed the issue from another point of
angle that PW-1 Shahib is not an eyewitness to the said incident, which occurred
at 9:00 o'clock in the morning on 6.6.2013.
However, the same was witnessed by PW-2
Shahid and PW-3 Saleem. In the FIR, there
is no recital of the fact that the said
information was made available to him by
PW-2 and PW-3. None the less, it has also
8 All. State of U.P. Vs. Nizamuddin
571
come on record that, as per the statement of
PW-1 and the FIR that after 6.6.2013 at
9:00 o'clock in the morning the deceased
ran away and he returned back on 8.6.2013
at 6:00 o'clock. Meaning thereby, the
accused
might
have
obtained
the
knowledge on 8.6.2013 about the beating
so administered by his son. None the less,
the conduct of the prosecution being PW-1
is also apparent as no justification was
given by the prosecution, as to why FIR
was not lodged on 6.6.2013, 7.6.2013 and
8.6.2013. In case, it is derived that the
information was received by the first
informant on 6.6.2013, then what was the
first informant was doing in order to search
whereabouts of his son.

26. Another additional aspect of the
matter, which needs to be considered is the
fact that on 30.7.2013, a document was
submitted before the court below being
paper no. A-13, which is under the
signatures of the complainant Shahib along
with signatures of Bunti, Saleem, Raja and
witness Shahid with thumb impression,
addressed to SSP, wherein a pointed
allegation was made that on 6.6.2013 at
9:00 o'clock in the morning, the accused in
order to kill his son Salman along with
Gulla called him outside the house and
thereafter with the aid of kicks, fists and
wooden sticks administered beating on
6.6.2013 and his son died on the said date.
The said document itself also puts nail
upon the coffin as according to the
prosecution, the date of the death was
6.6.2013 at 9:00 o'clock and how can the
same be said to be 8.6.2013. Moreover, the
said document dated 30.7.2013 had been
submitted after 24 days.

27. Viewing the present case from the fourcorners of law, while applying it to the
facts, this Court finds that the entire
prosecution
case
proceeds
on
week
premises. Not only there has been delay in
lodging of the FIR, but also no explanation
worth consideration in delay in lodging of
the FIR has been shown. Even the time-gap
of the allegations regarding beating so
administered to the deceased and the actual
date of death is so long and enormous and
the same does not link the accused to have
committed crime, particularly when in the
Panchayatnama as well as in the statement
of PW-5 Dr. Ashok Garg, there is no recital
of the fact that the deceased sustained
injuries, however, he was complaining high
fever and breathlessness and body ache.
The death of the deceased so claimed by
the prosecution also does not match, as post
mortem was done at 9.6.2013 at 2:30 in the
noon and the death was stated to have been
occurred one day ago, i.e, 8.6.2013, i.e,
2:30 hours, however, at that point of time,
the deceased was already alive, as he got
admitted in the hospital at 8.6.2013 at 5:00
in the evening. Moreso, the document dated
30.7.2013 submitted by the complainant
contains the allegation that the deceased
died on 6.6.2013, thus all the factors
indicate that the accused has not committed
crime. Moreso, it is the duty of the
prosecution
to
prove
that
in
all
probabilities, the accused has committed
the crime, but none of the factors so
engineered by the prosecution marks or
points out that the accused has committed
crime.

28. As already discussed, the learned
trial court has meticulously analyzed the
entire
case
from
all
angles,
while
appreciating the evidences so adduced in
the background of the ocular testimony.

29. Hence, in any view of the matter
applying the principles of law so culled out
by the Hon'ble Apex Court in the facts of
572 INDIAN LAW REPORTS ALLAHABAD SERIES
the present case, we have no option but to
concur with the view taken by the learned
Sessions Judge.

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

31. Since the application for granting
leave to appeal has not been granted,
consequently, present government appeal
also stands dismissed at the admission
stage itself.

32. Records of the present case be
sent back to the concerned court below.
----------
(2022) 8 ILRA 572
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2010

BEFORE

THE HON'BLE RAKESH TIWARI, J.

Second Appeal No. 579 of 2010

Sukh Ram & Ors. ...Appellants
Versus
Smt. Narbada Devi & Ors. ...Respondents

Counsel for the Appellants:
Sri S.S. Shukla, Sri Dharmendra Mishra

Counsel for the Respondents:
..

(A) Civil Law- Civil Procedure Code, 1908 -
Section 100 - Order - I, Rule 8, Order
XVII-Rule 3, Order XLI - Rule 27 - Plaintiff's
Second Appeal - challenging the validity &
correctness of - Judgment & decree respectively
by court below - Locus standi - earlier property
in suit was donated to a Sadhu/Saint (i.e.