# State of U.P v. Pushpa &Anr. Opp. Parties

- **Citation:** (2019) 1 ILRA 1334
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-26
- **Case number:** U/S 378 Cr.P.C. No. 105 of 2019
- **Bench:** Ved Prakash Vaish, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-pushpa-anr-opp-parties-44408
- **Pages:** 14

## Headnote

Appeal under Section 378 (3) Cr.P.C. the
Court should keep in mind remains no
more 'res integra'. The powers of the
appellate court in an appeal against
acquittal are no less than in an appeal
against conviction.

B. The general principles are appellate
court is having full power to reconsider
the evidence upon which the order/
judgment of acquittal has been based
and the accused cannot claim each and
every
doubt
to
get
the
benefit.
1 All. State of U.P Vs. Pushpa & Anr.
1335
The evidence and material available on
record and have found that the judgment is
cryptic may not be a ground for interfering
with the order of the acquittal, unless the
view taken by the Trial Judge is not a
possible view.(Para 42)

Grant of leave to appeal rejected.

Chronological list of Cases Cited: -

1.Ajmer Singh v. State of Punjab, 1953 SCR

## Text

_Characters 0–39,635 of 45,476. This is a partial read: ask again with offset=39635 for what follows._

1334 INDIAN LAW REPORTS ALLAHABAD SERIES
which event, the conditions laid down under
Order 6 Rule 17 CPC have to be fulfilled. A
counter claim, in exceptional circumstances,
could be filed under Order 8 Rule 9 CPC but
that has to be with the leave of the court. While
granting such leave, the court will also have
regard to the conditions stipulated under Order
6 Rule 17 CPC as a Counter claim, as noted
above, should normally be part of written
statement. In case of legal representative of
deceased defendant, the further rider under
Order 22 Rule 4 (2) CPC is that he can only
take defence appropriate to his character as
legal representative of the deceased party. He
cannot set up a different case or take plea which
is inconsistent with the one raised by the
original defendant, much less any right to file
counter claim with his written statement.

8. The view taken by the trial court
that because the petitioners were not party
to the suit earlier and therefore, after their
substitution, they got opportunity to file
counter claim for the first time with their
additional written statement and therefore,
it has to be permitted, is based on
complete misunderstanding of the scheme
of the Code of Civil Procedure. The
revisional court has rightly remitted the
matter back to the trial court to consider
whether there exists any justifiable
ground on record to warrant accepting
counter claim at such a delayed stage. The
trial court would also be required to
ascertain whether the counter claim is in
respect of cause of action accruing before
the original defendant had delivered his
defence. It shall also have to consider as
to whether permitting the petitioners to
raise counter claim in the instant suit
would embarrass the trial thereof at this
stage or if it should exercise its power
under Order 8 Rule 6-C so as to direct the
petitioners to raise their claim by way of a
separate suit.

9. This Court finds no illegality in the
impugned order. Moreover, it is only a
remand order whereunder the trial court will
now decide the application afresh having
regard to the observations made by the
revisional court.

10. No ground is made out to
interfere with the impugned order in
exercise of supervisory power under
Article 227 of the Constitution.

11. The petition is accordingly
dismissed.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.08.2019

BEFORE
THE HON'BLE VED PRAKASH VAISH, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

U/S 378 Cr.P.C. No. 105 of 2019

State of U.P. ...Applicant
Versus
Pushpa &Anr. ...Opp. Parties

Counsel for the Applicant:
Govt. Advocate

Counsel for the Opp. Parties:
-----

A. The parameters for Grant Leave to
Appeal under Section 378 (3) Cr.P.C. the
Court should keep in mind remains no
more 'res integra'. The powers of the
appellate court in an appeal against
acquittal are no less than in an appeal
against conviction.

B. The general principles are appellate
court is having full power to reconsider
the evidence upon which the order/
judgment of acquittal has been based
and the accused cannot claim each and
every
doubt
to
get
the
benefit.
1 All. State of U.P Vs. Pushpa & Anr.
1335
The evidence and material available on
record and have found that the judgment is
cryptic may not be a ground for interfering
with the order of the acquittal, unless the
view taken by the Trial Judge is not a
possible view.(Para 42)

Grant of leave to appeal rejected.

Chronological list of Cases Cited: -

1.Ajmer Singh v. State of Punjab, 1953 SCR
418.

2. Sanwat Singh and others v. State of
Rajasthan, AIR 1961 SC 715.

3. Sheo Swarup and others vs. The King
Emperor AIR 1934 PC 227 (2).

4. Sadhu Saran Singh Vs. State of Uttar
Pradesh and Others reported in 2016 Crlj
1908.

5. State of Maharashtra vs. Sujay Mangesh
Poyarekar MANU/SC/8073/2008.

6. Hanumant v. State of Madhya Pradesh
MANU/SC/0037/1952.

7. Sharad Birdhichand Sarda Vs. State of
Maharashtra, AIR, 1984 SC 1622.

8.
Jaharlal
Das
v.
State
of
Orissa,
MANU/SC/0586/1991 : (1991) 3 SCC 27.

9.
Varkey
Joseph
v.
State
of
Kerala,
MANU/SC/0295/1993.

10. Arjun Marik and Ors. v. State of Bihar
MANU/SC/1037/1994 : 1994 Supp (2) SCC
372.

11. State of Goa v. Sanjay Thakran and Anr.
MANU/SC/7187/2007 : (2007) 3 SCC 755.

12. Bodhraj alias Bodha and Ors. v. State of
Jammu and Kashmir MANU/SC/0723/2002.

13.
Jaswant
Gir
v.
State
of
Punjab
MANU/SC/2585/2005.
14. Mohibur Rahman and Anr. v. State of
Assam MANU/SC/0690/2002. (E-2)
(Delivered by Hon'ble Justice Mohd. Faiz
Alam Khan, J.)

1. Heard Shri Prabhat Adhaulia,
learned A.G.A. for the State and perused
the record.

2. By means of instant application,
the State has requested to grant leave to
appeal under Section 378 (3) Cr.P.C.
against impugned judgment and order
dated 24.12.2018 passed by Additional
District & Sessions Judge, Court No.2
Ambedkar
Nagar
in
S.C./S.T.
No.
38/2013 "State Vs. Smt. Pushpa and
Salim" arising out of Case Crime No.
50/2013, under Sections 304 I.P.C. &
Section 3(2)(V) of S.C./S.T. Act, Police
Station Sammanpur, District Ambedkar
Nagar,
whereby
the
accused
persons/respondents were acquitted from
the charges under Section 304 I.P.C. &
Section 3(2)(V) of S.C./S.T. Act.

3. The prosecution story as unfolds
from the record of the Subordinate Court
is that, on 21.05.2013 at 7:30 in the
morning, a written report was submitted
to the S.H.O., P.S. Sammanpur, District
Ambedkar Nagar by one Matru son of
Chotai alleging therein that, his younger
brother Rambali was living separately in
his house with his wife Smt. Pushpa
(Accused) and Daughter Km. Pooja. He
was habitual of drinking liquor. On
20.05.2013,
one
Ramkrishna
of
Bahorikpur, P.S. Bheeti, Ambedkar Nagar
and other persons came to her house with
regard to perform the ''Lagan Ceremony'
of her daughter namely Km. Pooja. Her
husband Rambali, after drinking liquor
with accused Salim came to his house at
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
about 7:00 pm in heavily drunken state and
again went back for drinking liquor, after
snatching some money from his wife Smt.
Pushpa. When he walked out of his house
Smt. Pushpa chased her with a rope in her
hand. She returned at about 8:00 pm in the
night and informed that she did not find him
and he, as usual, will return on his own. The
Ceremony of ''Lagan' ended at about 10:00
pm. in the night and there after Smt. Pushpa
went with Ramkrishna, in search of her
husband and found him in the field of one
''Firtu' and silently brought her husband to
home. Today i.e. on 21.05.2013, he
(informant) on hearing her cries, went to the
house of Pushpa, and found the dead body of
Rambali, which was lying on a cot. He also
noticed a black mark on the neck of
deceased. It is further alleged that wife of
deceased Rambali (Pushpa) is a character
less and quarrelsome lady and is also having
an extra-marital affair with co-accused
Salim. He is having every reason to believe
that due to her affair with co-accused Salim,
she while fighting with the deceased in the
field of '' Firtu', strangulated Rambali by the
rope she was carrying and concealed his
death in the night.

4. On the basis of above mentioned
written report, an FIR as Case Crime No.
50/2013 was registered under Section 304
I.P.C. at Police Station Sammanpur,
District Ambedkar Nagar against both the
accused persons and after investigation,
charge-sheet was also submitted against
both of them, under Section 304 I.P.C. &
Section 3(2)(V) of Scheduled Caste
Scheduled
Tribe
(
Prevention
of
Atrocities) Act herein after called as
S.C./S.T. Act.

5. The Trial Court framed charges
against Smt. Pushpa under Section 304
I.P.C. while Charges under Section 304
I.P.C. and under Section 3(2)(V) of
S.C./S.T.
Act
were
framed
against
accused appellant Salim. The respondents,
however denied the charges and claimed
trial.

6. The postmortem on the body of the
deceased
Rambali
was
performed
on
21.05.2013 at 3:30 pm. and two parallel
Ligature mark surrounding the neck of the
deceased were found. Apart from the ligature
mark, multiple abrasions on an around left
arm and just above the back of right thumb
and on the toe of right foot were also found
along with the fracture of hyoid bone. The
trachea, lungs and both the kidneys were also
found congested. The probable time of the
death of the deceased was determined as one
day. The cause of death was ascertained as
shock due to antemortem strangulation.

7. The prosecution in support of its case
produced following documentary evidence
before the Trial Court :-

1. Exhibit Ka-1, Original application of
FIR

2. Exhibit ka-3, Inquest Report

3. Exhibit ka-4, charge-sheet

4. Exhibit Ka-5, Chick FIR

5. Exhibit ka-6, Copy of G.D. FIR

6. Exhibit ka-7, charge-sheet

7. Exhibit ka-7, Postmortem report

8 Exhibit ka-8 Site Plan

9. Exhibit ka-9, Fard

10. Exhibit ka-10, Exhibit ka-11, Exhibit
ka-12, Sample of seal of dead body ,Challan
and sample of the Seal respectively.

11. Exhibit ka-13, Exhibit ka-14, Exhibit
ka-15 are letter of R.I.-, letter of C.M.O and
letter of P.S. Sammanpur to the C.M.O,
respectively .

8.

Apart
form
the
above
documentary evidence, the prosecution
1 All. State of U.P Vs. Pushpa & Anr.
1337
also testified following witnesses to bring
home the charges against the accused
persons.

P.W.-1/Santram
@
Matru
(Informant)

P.W.-2/Ramkrishna (witness)

P.W.-3/Shyam Lal (witness/brother
of deceased)

P.W.-4/ Ram Ashrey (witness)

P.W.-5/Chandrabhan Yadav (S.H.O.)

P.W.-6/Constable Hariprakash Singh
(Scribe of FIR and G.D.)

P.W.-7/C.O. Ashok Kumar Singh
(Investigating Officer)

P.W.-8/Dr. Vijay Bahadur Gautam
(Doctor, who conducted the postmortem).

P.W.-9/Firtu Ram (HCP)

9. After completion of the evidence
of the prosecution, the statement of
accused was recorded under Section 313
of the Cr.P.C., wherein both the accused
persons have denied of committing the
offence and stated that as the daughter of
the deceased was going to be married,
therefore, deceased sold his land to his
elder brother but consideration was not
paid by his elder brother to him and due
to the fact that the remaining money is not
paid to the deceased, they have killed
deceased. It is further stated that they
have been falsely implicated and the
murder of the deceased was actually
committed by the elder brother of the
deceased namely Shyamlal.

10. The trial Court after taking into
consideration, the oral and documentary
evidence, by passing a cryptic judgment
consisting of only 08 pages, acquitted
accused persons of the charges framed
against them on the ground that the
prosecution has failed to prove its case
beyond reasonable doubt . Aggrieved by
the judgment and order of the trial Court,
the
instant
appeal
along
with
an
application to grant leave has been
preferred by the State.

11. Learned A.G.A. while pressing
the application for grant of leave to file
appeal has submitted that, the Court
below has committed material illegality in
appreciating the evidence available on
record. The trial Court has passed a
cryptic judgment without discussing in
detail, the evidence available on record
and has not considered the evidence of the
prosecution in right perspective.

12. It is further submitted that the
Court below has failed to take into
account the fact that the accused persons
were having a strong motive to eliminate
the deceased Rambali and in the facts and
circumstances
of
the
case,
in
all
probability it was proved on record that
the crime has been committed by the
accused persons.

13. It is further submitted that, it was
established on record that, accused
persons were having very good relations
and also that on the fateful night, Pushpa
followed the deceased with a rope in her
hand and on the next day deceased was
found dead with a ligature mark around
his neck. The Doctor Vijay Bahadur
Gautam, who has been testified as P.W.-8,
has certified that the death of the deceased
has
occurred
due
to
ante-mortem
strangulation.

14. It is further submitted that, the
Court below has not considered the
circumstances
available,
against
the
accused persons, on record and from the
circumstances and evidence available on
record, the only hypothesis coming out of
the record is that the crime in any case has
1338 INDIAN LAW REPORTS ALLAHABAD SERIES
been committed by the accused persons
and, therefore, the Court below has
committed material illegality in acquitting
them.

15. It is overwhelmingly submitted
that the State be granted leave to file the
appeal and to challenge the order of the
Court below.

16. We have heard learned A.G.A.
and have perused the material on record
as well as the Judgment of the trial Court.

17. This case is based on
circumstantial evidence, as there is no
witness who claimed to have seen the
commission of the offence. The FIR of
the incident is admittedly lodged by one
Matru who is the brother of the deceased
, wherein it is alleged that, on 20.05.2013
a ''Lagan Ceremony' was scheduled
pertaining to the marriage of the
daughter of deceased namely Km. Pooja.
It is also alleged therein that the
deceased was a habitual alcoholic, and
on the day of ''Lagan' also, he was
drinking liquor with co-accused Salim at
Kurki Bazar and came to his house at
about 7:00 pm in drunken state and after
forcefully taking some money from his
wife Pushpa (accused), again went back
for the purpose of drinking more liquor.
He was followed by his wife Smt.
Pushpa with a rope in her hand and at
about 8:00 pm, Smt. Pushpa returned and
informed that she had not found the
deceased and he will come on his own.
However, she in the night at about 10:00
pm. searched the deceased along with
Ramkrishna, who was at her house in
connection with the ''Lagan Ceremony' .
They found the deceased Rambali
towards south of the village in the field
of one ''Firtu'. They brought him back to
her house and on 21.05.2013, when
informant reached at the house of the
deceased, he found him dead, lying on a
cot with a black sign on his neck. He
apprehended that deceased might have
been killed by his wife, who in the heat
of passion might have strangulated him,
in the field of Firtu, with the rope, she
was carrying.

18. Informant, Santram @ Matru,
who has been testified as P.W.-1 in his
examination in chief has not supported the
story of the prosecution. He has stated in
his statement that, the deceased was a
habitual drunker and he did not see
deceased on the fateful day taking liquor
with co-accused Salim. He denied to have
seen the deceased in a drunken state,
however, admitted that the deceased used
to come home after drinking liquor on
regular basis. He further denied to have
seen the accused Smt. Pushpa chasing the
deceased with a rope in her hand and goes
on to say that on fateful day, he even did
not met Smt. Pushpa. However, he
acknowledged to have lodged the First
Information Report. This witness was
declared hostile and was cross-examined
by the prosecution, wherein he denied to
have given the statement under Section
161 of the Cr.P.C. to the Investigating
Officer.

19. P.W.-2/Ramkrishna was at the
house of the deceased in connection with
the 'Lagan Ceremony' of his (deceased)
daughter namely Km. Pooja, who was
married with his sister's son. He stated
that when he reached the house of
deceased, he was not at home. Deceased
was a habitual alcoholic. It is admitted by
him that, there were occasional fights in
between the deceased and his wife. He
after taking his dinner, went to sleep at
about 10:00 pm. and till that time Rambali
1 All. State of U.P Vs. Pushpa & Anr.
1339
did not return to his home. However, he
along with other village persons, found
him dead in the morning. He categorically
denied to have gone along with Pushpa to
search Rambali in the night. This witness
was
also
declared
hostile
by
the
prosecution and was cross-examined,
wherein he denied to have given the
statement under Section 161 of the
Cr.P.C.

20. P.W.-4 Ram Asrey has stated
that on the fateful day, the deceased was
sent by his wife to fetch two bottles of
liquor. However, he did not return back
and in the morning, when he went to the
house of the deceased, he found Pushpa
crying. She informed him that Rambali
has not spoken a word whole night. He
noticed that Rambali was dead and there
was black mark on his neck. He also
acknowledged himself to be a witness of
inquest report. In cross-examination, this
witness admitted that 10 days before his
death, Rambali sold his land to Shyamlal
and a portion of the consideration was
also not paid by Shyamlal to the deceased.

21. P.W.-5, 6 and 7 are formal
witnesses, who proved various stages of
investigation. However, P.W.-8/Doctor
Vijay Bahadur Gautam has proved the
postmortem report, which has been
elaborately described herein before.

22. P.W.-9/Firtu Ram (HCP) has
proved recovery memo of rope from the
house of appellant Pushpa as Ex. ka-9 as
well as Ex. Ka-8 to ka-15.

23. P.W.-3 Shyam Lal is brother of
the deceased to whom, P.W.-4/Ram
Ashrey referred to have purchased the
land of the (Rambali) deceased about 10
days before the incident. He has stated
that, on the fateful night, accused Pushpa
came to his home and requested to
provide her some ''Chilly and Ghee' as the
throat of deceased was chocking and and
in the morning he was informed that
Rambali has died. He stated to have
noticed some injury marks on the neck of
deceased. He also testified that, coaccused Salim use to visit Pushpa and was
having very close relations with her. He
admitted to have purchased some land
from the deceased but maintained that he
had paid the whole consideration. In
cross-examination, this witness testified
that, apart from seeing the dead body, he
do not know anything else.

24. The question as to how the
application for grant of leave to appeal
made under Section 378(3) of the Code
should be decided by the High Court and
what are the parameters which this Court
should keep in mind remains no more
'res integra '. This Issue was examined by
the Hon'ble the Apex Court in the case of
Ajmer Singh v. State of Punjab, 1953
SCR 418 wherein the accused was
acquitted by the trial Court but was
convicted by the High Court in an appeal
against acquittal filed by the State. The
aggrieved accused approached Apex
Court. It was contended by him that there
were 'no compelling reasons' for setting
aside the order of acquittal and due and
proper weight had not been given by the
High Court to the opinion of the trial
Court as regards the credibility of
witnesses seen and examined by him. It
was also contended that the High Court
committed an error of law and the
Hon'ble Supreme Court found substance
in the argument that when a strong
'prima facie' case is made out against an
accused person it is his duty to explain
the circumstances appearing in evidence
1340 INDIAN LAW REPORTS ALLAHABAD SERIES
against him and he cannot take shelter
behind the presumption of innocence and
cannot state that the law entitles him to
keep his lips sealed. It was further held
that in an appeal, the High Court had full
power to review the evidence upon
which the order of acquittal was founded
...

25. Upholding the contention, it has also
been held in para 6 as under ;

"We think this criticism is well-founded.
After an order of acquittal has been made, the
presumption
of
innocence
is
further
reinforced by that order, and that being so,
the trial court's decision can be reversed not
on the ground that the accused had failed to
explain the circumstances appearing against
him but only for very substantial and
compelling reasons."

26. In the case of Sanwat Singh and
others v. State of Rajasthan, AIR 1961 SC
715 after placing the reliance on the judgment
given by Privy Council in Sheo Swarup and
others vs. The King Emperor AIR 1934 PC
227 (2) and many other authroities Hon'ble
the Apex Court on the point in issue held as
under :-

" Para 16- The foregoing discussion
yields the following results :

(1) an appellate court has full power
to review the evidence upon which the
order of acquittal is founded; (2) the
principles laid down in Sheo Swarup's
case afford a correct guide for the
appellate court's approach to a case in
disposing of such an appeal; and (3) the
different
phraseology
used
in
the
judgments of this Court, such as, (i)
"substantial and compelling reasons", (ii)
"good and sufficiently cogent reasons",
and (iii) "strong reasons" are not
intended to curtail the undoubted power
of an appellate court in an appeal against
acquittal to review the entire evidence
and to come to its own conclusion; but in
doing so it should not only consider every
matter on record having a bearing on the
questions of fact and the reasons given by
the court below in support of its order of
acquittal in its arriving at a conclusion on
those facts, but should also express those
reasons in its judgment, which lead it to
hold that the acquittal was not justified".

27. Hon'ble the Apex Court in the
case of Sadhu Saran Singh Vs. State of
Uttar Pradesh and Others reported in
2016 Crlj 1908 has considered this
difference and has observed as under:

"18 Generally, an appeal against
acquittal has always been altogether on a
different pedestal from that of an appeal
against conviction. In an appeal against
acquittal where the presumption of
innocence in favour of the accused is
reinforced, the appellate court would
interfere with the order of acquittal only
when there is perversity of fact and law.
However, we believe that the paramount
consideration of the Court is to do
substantial justice and avoid miscarriage
of justice which can arise by acquitting
the accused who is guilty of an offence. A
miscarriage of justice that may occur by
the acquittal of the guilty is no less than
from the conviction of an innocent. This
Court,while enunciating the principles
with regard to the scope of powers of the
appellate court in an appeal against
acquittal, in Sambasiva V. State of Kerala
1998 SCC (Cri) 1320 has held:

"The principles with regard to the
scope of the powers of the appellate court
in an appeal against acquittal, are well
settled. The powers of the appellate court
in an appeal against acquittal are no less
than in an appeal against conviction. But
1 All. State of U.P Vs. Pushpa & Anr.
1341
where on the basis of evidence on record
two views are reasonably possible the
appellate court cannot substitute its view
in the place of that of the trial court. It is
only 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."

19. This 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."

28. In State of Maharashtra vs.
Sujay
Mangesh
Poyarekar
MANU/SC/8073/2008 Hon'ble Supreme
Court held as under:-

"21. 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 sub-section (3) of
Section 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) of Section 378 of the Code.

22. 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 facie case has been made
out or arguable points have been raised
and not whether the order of acquittal
would or would not be set aside.

23. 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.

24. We may hasten to clarify that we
may not be understood to have laid down
an inviolable rule that no leave should be
refused by the appellate Court against an
order of acquittal recorded by the trial
Court. We only state that in such cases,
the appellate Court must consider the
relevant material, sworn testimonies of
prosecution witnesses and record reasons
why leave sought by the State should not
be granted and the order of acquittal
recorded by the trial Court should not be
disturbed. Where there is application of
mind by the appellate Court and reasons
(may be in brief) in support of such view
are recorded, the order of the Court may
not be said to be illegal or objectionable.
At the same time, however, if arguable
points have been raised, if the material on
record discloses deeper scrutiny and
reappreciation, review or reconsideration
1342 INDIAN LAW REPORTS ALLAHABAD SERIES
of evidence, the appellate Court must
grant leave as sought and decide the
appeal on merits. In the case on hand, the
High Court, with respect, did neither. In
the opinion of the High Court, the case
did not require grant of leave. But it also
failed to record reasons for refusal of
such leave."

29. From the above decisions some
general principles which may emerged
out are that the appellate court is having
full power to review or re-appreciate or
reconsider the evidence upon which the
order/ judgment of acquittal has been
based
and
there
is
no
limitation,
restriction in exercise of such power by
the appellate court and the appellate court
may reach at it is own conclusion on the
same set of evidence, both on question of
facts as well as on law. However, it is to
be kept in mind that in case of acquittal,
the presumption of innocence which was
initially with the accused persons has
been fortified, reaffirmed, strengthened
and also the golden principle which runs
through
the
Web
of
criminal
jurisprudence is that if two reasonable and
logical conclusions can be derived on the
basis of evidence on record the appellate
court should not normally disturb the
finding
of
the
trial
court.
But
simultaneously it is also to be kept in
mind that the benefit of only a reasonable
doubt can be given to accused persons in
a criminal trial. The accused persons
cannot claim the benefit of each and every
doubt. To get the benefit of a doubt the
same
has
to
pass
the
test
of
reasonableness and a reasonable doubt is
a doubt which emerges out of the
evidence itself.

30. The law with regard to
appreciation of circumstantial evidence
has been clearly enunciated in the case of
Hanumant v. State of Madhya Pradesh
MANU/SC/0037/1952 : wherein Hon'ble
Supreme Court held as follows:

"10/12 ...It is well to remember that
in cases where the evidence is of a
circumstantial nature, the circumstances
from which the conclusion of guilt is to be
drawn should in the first instance be fully
established,
and
all
the
facts
so
established should be consistent only with
the hypothesis of the guilt of the Accused.
Again, the circumstances should be of a
conclusive nature and tendency and they
should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not
to leave any reasonable ground for a
conclusion consistent with the innocence
of the Accused and it must be such as to
show that within all human probability the
act must have been done by the Accused"

Hon'ble Apex Court in the case
Sharad Birdhichand Sarda Vs. State of
Maharashtra, AIR, 1984 SC 1622 laid
down that the following conditions must
be fulfilled before a case against an
accused based on circumstantial evidence
can be said to be fully established;

"1. the circumstances from which the
conclusion of the guilt is to be drawn
should
be
fully
established.
The
circumstances concerned 'must or should'
and not 'may be' established.

2. the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is
guilty;

3. the circumstances should be of a
conclusive nature and tendency;
1 All. State of U.P Vs. Pushpa & Anr.
1343

4. they should exclude every possible
hypothesis except the one to be proved,
and

5.there must be a chain of evidence
so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done
by the accused."

31. In Jaharlal Das v. State of
Orissa, MANU/SC/0586/1991 : (1991) 3
SCC 27, it was held that even if the
offence is a shocking one, the gravity of
offence cannot by itself overweigh as far
as legal proof is concerned. In cases
depending highly upon the circumstantial
evidence, there is always a danger that the
conjecture or suspicion may take the place
of legal proof. The court has to be
watchful and ensure that the conjecture
and suspicion do not take the place of
legal proof. The court must satisfy itself
that various circumstances in the chain of
evidence should be established clearly
and that the completed chain must be such
as to Rule out a reasonable likelihood of
the innocence of the Accused. It is further
held that in Para 8, in order to sustain the
conviction on the basis of circumstantial
evidence, the following three conditions
must be satisfied:

i.) the circumstances from which an
inference of guilt is sought to be drawn,
must be cogently and firmly established;

ii.) those circumstances should be of
a definite tendency unerringly pointing
towards the guilt of the accused; and

iii.)
the
circumstances,
taken
cumulatively, should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by
the accused and none else, and it should
also be incapable of explanation on any
other hypothesis than that of the guilt of
the accused.

32. In Varkey Joseph v. State of
Kerala, MANU/SC/0295/1993, it was
held that suspicion is not the substitute for
proof. There is a long distance between
'may be true' and 'must be true' and the
prosecution has to travel all the way to
prove its case beyond reasonable doubt.

33. Therefore, keeping in view the
above settled legal position the law
pertaining
to
cases
based
on
circumstantial
evidence
can
be
summarized in following terms:

1. The circumstances relied upon by
the prosecution which lead to an inference
to the guilt of the accused must be proved
beyond doubt;

2.
The
circumstances
should
unerringly point towards the guilt of the
accused;

3. The circumstances should be
linked together in such a manner that the
cumulative effect of the chain formed by
joining the links is so complete that it
leads to only one conclusion i.e. the guilt
of the accused;

4.
That
there
should
be
no
probability of the crime having been
committed by a person other than the
Accused.

34. It is in the light of the aforesaid
law that we have to consider the evidence
and the circumstances relied upon by the
prosecution before the court below. In a
case based on circumstantial evidence it is
always better for the courts to deal with
each circumstance separately and then
link the circumstances which have been
1344 INDIAN LAW REPORTS ALLAHABAD SERIES
proved
to
arrive
at
a
conclusion.
Unfortunately, in this case no such
attempt has been made by the trial Court
and in absence of such effort by the Court
below, it is incumbent on this Court to
appreciate the evidence for the limited
purpose to see whether the Court Below
has committed any error in coming to the
conclusion that the prosecution has failed
to prove its case beyond reasonable doubt
or whether the view of the Court below is
a probable view.

35. At this juncture it is in the
interest of things to have a look about the
legal position pertaining to law related to
''last seen together'. In Arjun Marik and
Ors.
v.
State
of
Bihar
MANU/SC/1037/1994 : 1994 Supp (2)
SCC 372, this Court reiterated that the
solitary circumstance of the accused and
victim being last seen will not complete
the chain of circumstances for the Court
to record a finding that it is consistent
only with the hypothesis of the guilt of the
accused. No conviction on that basis
alone can, therefore, be founded.

36. We may also refer to State of
Goa v. Sanjay Thakran and Anr.
MANU/SC/7187/2007 : (2007) 3 SCC
755 wherein the Ho'nble Supreme Court
held that in the absence of any other
corroborative
piece
of
evidence
to
complete the chain of circumstances it is
not possible to fasten the guilt on the
accused on the solitary circumstance of
the two being seen together. Reference
may also be made to Bodhraj alias Bodha
and Ors. v. State of Jammu and Kashmir
MANU/SC/0723/2002,
wherein
the
Ho'nble Supreme Court held:

"The last-seen theory comes into
play where the time-gap between the
point of time when the accused and the
deceased were last seen alive and when
the deceased is found dead is so small that
possibility of any person other than the
accused being the author of the crime
becomes impossible. It would be difficult
in some cases to positively establish that
the deceased was last seen with the
accused when there is a long gap and
possibility of other persons coming in
between exists. In the absence of any
other positive evidence to conclude that
the accused and the deceased were last
seen together, it would be hazardous to
come to a conclusion of guilt in those
cases..."

37. In Jaswant Gir v. State of
Punjab MANU/SC/2585/2005, Hon'ble
Supreme Court held that it is not possible
to convict appellant solely on basis of 'last
seen' evidence in the absence of any other
links in the chain of circumstantial
evidence, the Court extended benefit of
doubt to accused persons.

38. In Mohibur Rahman and Anr. v.
State of Assam MANU/SC/0690/2002,
Hon'ble Supreme Court held that the
circumstance of last seen together does not by
itself necessarily lead to the inference that it
was the accused who committed the crime. It
depends upon the facts of each case. There
may however be cases where, on account of
close proximity of place and time between the
event of the accused having been last seen
with the deceased and the factum of death, a
rational mind may be persuaded to reach an
irresistible conclusion that either the accused
should
explain
how
and
in
what
circumstances the victim suffered the death or
should own the liability for the homicide.

39. Keeping in view the aforesaid
legal position with regard to the disposal
1 All. State of U.P Vs. Pushpa & Anr.
1345
of application to grant leave to file appeal
against acquittal as also pertaining to the
appreciation of evidence with regard to
the
cases
based
on
circumstantial
evidence particularly on last seen together
theory, perusal of the evidence available
on record, would reveal that the P.W.-
1/Santram @ Matru, who had lodged the
First
Information
Report
has
not
supported the version of the prosecution
as stated in the FIR and he has been
declared hostile by the public prosecutor
and was cross-examined. However, he
admitted that on 21.05.2013, he had
seen the dead body of his brother
Rambali lying on a cot and there was a
ligature mark around his neck. P.W.-
2/Ramkrishna is the person, who was in
the house of the deceased at that night
in
connection
with
the
''Lagan
Ceremony' of his sister's son Anil with
the daughter of the deceased namely
Pooja and he in his evidence has stated
that, when he reached the house of
Pushpa, he found her at home and her
husband Rambali was not there. He after
taking dinner remained in the house of
Pushpa and next day he come back to
his house. He also did not narrate any
fact, which may reflect that the crime
might have been committed by the
respondents No. 1 and 2. This witness
has also been declared hostile and the
prosecution is not able to get any benefit
from his evidence. P.W.-3/Shyam Lal is
a witness against whom an allegation
has been levelled by the appellant
Pushpa in her statement recorded under
Section 313 of the Cr.P.C. that, he
procured a sale deed from the deceased
Rambali barely 8 to 10 days before the
incident and a major portion of the
consideration had not been paid by him
to deceased Rambali . However, he has
only stated that in the night appellant
Pushpa came to him and asked some
''Ghee and Chilly' on the pretext that
throat of her husband is chocking and in
the morning, he found his brother
Rambali dead and there was a ligature
mark around his neck. However, he
stated that from 06 months before the
incident, accused Salim was visiting the
house of Pushpa and they were having
very close relations, but apart from this,
he did not state anything, which may
reflect that the crime might have been
committed by the respondents. P.W.-
4/Ram Ashrey has also not narrated any
incident or circumstance, which may
reflect any culpability on respondents. He
only stated that the deceased Rambali was
sent to the market by appellant Pushpa to
fetch ''Bheli' and thereafter 02 bottles of
liquor and he did not return back in the
night and when he visited the house of the
deceased in the morning, he found that
Pushpa was weeping and he also found a
ligature mark around the neck of the
deceased. Recovery of a house hold rope
from Pushpa is also alleged which is
stated to have been given by her daughter
Pooja.
Other
witnesses
are
formal
witnesses and, therefore, they were not in
a position to narrate any circumstance or
fact, which may fasten any criminal
liability
on
the
appellants.
If
we
appreciate the evidence of the above
witnesses, we found that the evidence of
all above mentioned witnesses is to the
tune that Rambali was not at his house on
the fateful day, when the ''Lagan
Ceremony' of her daughter Pooja was
going on, he was sent by respondent
Pushpa to fetch ''Bheli' and 02 bottles of
liquor, but he did not return back and in
the night, Pushpa asked P.W.-3/Shyamlal
to give her some ''Chilly' and ''Ghee' as
the throat of her husband (Deceased
Rambali) is choking and in the morning,
1346 INDIAN LAW REPORTS ALLAHABAD SERIES
he was found dead. The cumulative effect
of the evidence given by all these factual
witnesses before the trial Court would
certainly not attract the satisfaction, which
may
be
termed
as
proof
beyond
reasonable doubt.