# State of U.P v. Rajendra & Ors

- **Citation:** (2022) 8 ILRA 517
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-06
- **Case number:** Government Appeal No. 294 of 2022
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-rajendra-ors-48913
- **Pages:** 26

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 313 & 378(3) -
Indian Penal Code,1860 - Sections 201 &
302: - Government Appeal - against order of
Acquittal - offence of Murder - missing report -
FIR against unknown - missing element of
motive - no nay eye witness - no any recital of
enmity - no recovery - chain to link the accused
while commissioning the crime is itself missing -
Names of accused persons were come up
through an extra judicial confession alleged to
be made before PW-11 - it is Court held that -
an Extra Judicial Confession is a weak evidence
and same cannot be the sole ground to hold
conviction until unless circumstantial evidence &
other materials do indicate and mark that
offence has been committed Trial court has not
committed any perversity in acquitting the
accused - Court further finds that inability to
take a different view from the view so taken by
the learned Trial court in a shape of an appeal
from the order of acquittal cannot be stretched
too far in view of law laid down by the Hon'ble
Apex Court thus, leave to appeal rejected even
though same is not a case worth granting leave
to appeal - Since, application for granting leave
518 INDIAN LAW REPORTS ALLAHABAD SERIES
to appeal is rejected - the Appeal stands
dismissed. (Para - 34, 39, 40, 41, 42, 43)

Appeal Dismissed. (E-11)

List of Cases cited: -

## Text

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8 All. State of U.P. Vs. Rajendra & Ors.
517
fractions and she was creating all sorts of
dramas in that regard.

36. After marshalling the entire fact
on record inclusive of ocular testimony of
the witnesses as well as the documents and
evidences so adduced thereon, this Court
finds that the prosecution theory proceeds
on weak premises. There are major
contradictions in the statements of P.W.1
and P.W. 2 occasioned with delay in
lodging of the FIR which sans explanation,
absence of postmortem report and the fact
that the last rites of the deceased was done
by the prosecution itself though blame has
been sought to be put upon the prosecution
for disposing of the dead body in flames
and throwing the same in the river Ganga,
coupled with the fact that no independent
witness has stepped into the witness box to
support the case of the prosecution.

37.

After
bestowing
anxious
consideration, this Court finds that the
judgment of acquittal passed by the learned
trial court does not suffer from any
illegality or perversity as the learned trial
court has meticulously analysed the case
from all corners of law while appreciating
the ocular testimony and evidences so
adduced by the prosecution. Notably, there
does
not
exist
any
compelling
or
substantive ground to interfere with the
judgment of acquittal while substituting it
by conviction. The view so taken by the
learned trial court is possible view and need
not to interfere.

38. Resultantly, no ground is made as
to accord leave to appeal and accordingly,
the same is rejected.

39. As the leave to file the present
appeal stands rejected thus, the present
appeal so instituted at the behest of the
State-appellant u/s 378 (3) of the Cr.P.C.
stands dismissed.
----------
(2022) 8 ILRA 517
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.07.2022

BEFORE

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

Government Appeal No. 294 of 2022

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

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

Counsel for the Respondents:

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 313 & 378(3) -
Indian Penal Code,1860 - Sections 201 &
302: - Government Appeal - against order of
Acquittal - offence of Murder - missing report -
FIR against unknown - missing element of
motive - no nay eye witness - no any recital of
enmity - no recovery - chain to link the accused
while commissioning the crime is itself missing -
Names of accused persons were come up
through an extra judicial confession alleged to
be made before PW-11 - it is Court held that -
an Extra Judicial Confession is a weak evidence
and same cannot be the sole ground to hold
conviction until unless circumstantial evidence &
other materials do indicate and mark that
offence has been committed Trial court has not
committed any perversity in acquitting the
accused - Court further finds that inability to
take a different view from the view so taken by
the learned Trial court in a shape of an appeal
from the order of acquittal cannot be stretched
too far in view of law laid down by the Hon'ble
Apex Court thus, leave to appeal rejected even
though same is not a case worth granting leave
to appeal - Since, application for granting leave
518 INDIAN LAW REPORTS ALLAHABAD SERIES
to appeal is rejected - the Appeal stands
dismissed. (Para - 34, 39, 40, 41, 42, 43)

Appeal Dismissed. (E-11)

List of Cases cited: -

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

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

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

4. St. of Goa Vs Sanjay Thakran, (2007) 3 SCC
755,
5. Chandrappa & ors. Vs St. of Karn. (2007) 4
SCC 415,

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

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

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

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

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

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

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

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

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

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

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

17. Mohd. Azad @ Samin Vs St. of W. B., 2008
(15) SCC 449.

18. Sansar Chand Vs St. of Raj., 2010 (10) SCC
604,
19. Sahadevan & anr. Vs St. of T. N. 2012 (6)
SCC 403,

20. Ram Lal Vs St. of H. P., 2019 (17) SCC 411.

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

1. This is an appeal under Section
378(3) Cr.P.C., 1973 (hereinafter referred
as Cr.P.C., 1973) at the behest of State of
U.P. instituted against the judgment and
order of acquittal dated 9.2.2022 passed by
Additional District and Sessions Judge,
Court No. 3, Aligarh in Sessions Trial No.
943 of 2010 (State of U.P. vs. Rajendra and
others) arising out of Case Crime No. 32 of
2009, under Section 302 and 201 IPC,
Police Station Lodha, District Aligarh.

2. The factual matrix of the case as
worded in the present appeal are that one
Munna Lal s/o Munshi Lal resident of village
Kadauli, Police Station Lodha, District
Aligarh is a watchman of village Kadauli.
According to the prosecution case the
resident villagers had gone in the north side
of the pitch road towards the land of the Land
Management Committee for showering water
whereat babool trees were planted and in the
bushes so enclosing the babool tree they saw
a dead body of unknown woman. On being
apprised of the said event Munna Lal s/o
Munshi Lal proceeded to the site of
occurrence whereat he witnessed that an
unknown woman was lying over there and a
piece of cloth was tied on the neck in a form
of a ring, which according to him was for
strangulating her and there was a piece of
cloth so scattered on the body, which was in
burnt condition so as to consign her in
flames. According to the prosecution he
approached the concerned police station on
16.2.2009 for lodging of first information
report. Record further reveals that that one Sri
Dev Dutt Sharma s/o Net Ram Sharma
resident of Sarsaul Masjid lane, Police
8 All. State of U.P. Vs. Rajendra & Ors.
519
Station Banna Devi, District Aligarh had
approached the police station Lodha before
the Station House Officer in District Aligarh
with a statement that he had come to know
while reading in a newspaper that a woman
corpus was found. According to Dev Dutt
Sharma s/o Net Ram Sharma he had gone to
the mortuary, wherein he identified the lady
as her mother-in-law and accordingly his wife
being the daughter of the deceased being
Smt. Tarawati on 16.2.2009 reported the
matter before the Senior Superintendent of
Police, Aligarh. As per the record the first
information report was lodged against
unknown persons, however, during course of
the investigation the accused, who are four in
number, were shown to have commissioned
the crime and accordingly charge-sheet was
submitted in Case Crime No. 32 of 2009
purported to be under Section 302 and 201
IPC.

3. In order to bring home the charges
as many as following ten prosecution
witnesses were examined:-

1.
Munna Lal
P.W.-1
2.
Rajendra
P.W.-2
3.
Anoop Kumar
P.W.-3
4.
Dev Dutt Sharma P.W.-4
5.
Vishnu
P.W.-5
6.
S.I. Raj Kumar
Singh
P.W.-6
7.
I.O. Ins. Jagpal
Singh
P.W.-7
8.
Dr.
Suresh
Chandra Goel
P.W.-8
9.
S.I.
Hariom
Sharma
P.W.-9
10. Ins. Madan Pal
Singh
P.W.-10
11. Veer Pal Singh
P.W.-11

4.
 The
following
documentary
evidence were exhibited to bring home
charges:-

1.
Written Complaint
Ex. A-1
2.
Supurdginama
Ex. A-2
3.
Complaint of Dev Dutt
Sharma
Ex. A-3
4.
First Information Report
Ex. A-4
5.
Copy of the report
Ex. A-5
6.
Site Plan
Ex. A-6
7.
Postmortem report
Ex. A-7
8.
Panchayatnama
of
the
deceased
Ex. A-8
9.
Letter no. 33 of Cons.
Ex. A-9
10. Letter no. 13
Ex. A-10
11. Letter of the Incharge
Officer,
Photography
Field Unit, Aligarh
Ex. A-11
12. Letter of the Incharge
Officer,
Finger
Print
Bureau, Aligarh
Ex. A-12
13. Letter of the Reserve
Inspector
Ex. A-13
14. Letter of C.M.O.
Ex. A-14
15. Letter
of
Incharge
Postmortem Incharge
Ex. A-15
16. Photo
Ex. A-16
17. Letter
of
Postmortem
duty mortuary
Ex. A-17
18. Charge-sheet
Ex. A-18

5. The record further reveals that the
medical report suggested that the deceased
had sustained burn injuries on face, head,
520 INDIAN LAW REPORTS ALLAHABAD SERIES
neck and upper portion of both the hands
and redning was present but bulla (fafola)
was not present. As per the internal
examination of the deceased it was reported
that the ribs, which was on the right hand
of the chest was fractured and redness was
found in the breathing pipe as well as in
both the lungs. According to medical report
the cause of death was strangulation and
the duration of the death was 2-4 days prior
to the postmortem, which was conducted
on 17.2.2009. As per the prosecution
version there was no eye witness to the
crime. Consequent to the submission of the
charge-sheet the charges were read over to
the accused, who pleaded innocence and
claimed to be tried. Defence was taken by
the accused, who are four in number, that
they have been unnecessary implicated in
the said case.

6. We have heard Sri Ratan Singh,
learned A.G.A. for the State and perused
the record.

7. Before we embark on testimony
and the judgment of the Court below, the
contours
for
interfering
in
Criminal
Appeals where accused has been held to be
non guilty would be required to be
discussed.

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

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

9. Further, in the case of Ramesh
Babulal Doshi vs. State of Gujarat,
reported in (1996) 9 SCC 225, in paragraph
8 All. State of U.P. Vs. Rajendra & Ors.
521
7, the Hon'ble Apex Court observed as
under:

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

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

"7. There is no embargo on the
appellate court reviewing the evidence
upon which an order of acquittal is based.
Generally, the order of acquittal shall not be
interfered with because the presumption of
innocence of the accused is further
strengthened by acquittal. The golden
thread which runs through the web of
administration of justice in criminal cases
is that if two views are possible on the
evidence adduced in the case, one pointing
to the guilt of the accused and the other to
his innocence, the view which is favourable
to the accused should be adopted. The
paramount consideration of the court is to
ensure that miscarriage of justice is
prevented. A miscarriage of justice which
may arise from acquittal of the guilty is no
less than from the conviction of an
innocent. In a case where admissible
evidence is ignored, a duty is cast upon the
appellate court to reappreciate the evidence
in a case where the accused has been
acquitted, for the purpose of ascertaining as
to whether any of the accused committed
any offence or not. (See Bhagwan Singh v.
State of M.P.1) The principle to be followed
by the appellate court considering the
appeal against the judgment of acquittal is
to interfere only when there are compelling
and substantial reasons for doing so. If the
impugned
judgment
is
clearly
unreasonable, it is a compelling reason for
interference.
These
aspects
were
highlighted by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra2,
Ramesh Babulal Doshi v. State of Gujarat3
and Jaswant Singh v. State of Haryana."
522 INDIAN LAW REPORTS ALLAHABAD SERIES

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

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

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

"7. There is no embargo on the appellate
court reviewing the evidence upon which an
order of acquittal is based. Generally, the
order of acquittal shall not be interfered with
because the presumption of innocence of the
accused is further strengthened by acquittal.
The golden thread which runs through the
web of administration of justice in criminal
cases is that if two views are possible on the
evidence adduced in the case, one pointing to
the guilt of the accused and the other to his
innocence, the view which is favourable to
the accused should be adopted. The
paramount consideration of the court is to
ensure
that
miscarriage
of
justice
is
prevented. A miscarriage of justice which
may arise from acquittal of the guilty is no
less than from the conviction of an innocent.
In a case where admissible evidence is
ignored, a duty is cast upon the appellate
court to reappreciate the evidence in a case
where the accused has been acquitted, for the
purpose of ascertaining as to whether any of
the accused committed any offence or not.
(See Bhagwan Singh v. State of M.P.) The
principle to be followed by the appellate
court considering the appeal against the
judgment of acquittal is to interfere only
when there are compelling and substantial
reasons for doing so. If the impugned
judgment is clearly unreasonable, it is a
compelling reason for interference. These
aspects were highlighted by this Court in
Shivaji Sahabrao Bobade v. State of
Maharashtra 10, Ramesh Babulal Doshi v.
State of Gujarat and Jaswant Singh v. State of
Haryana11"."

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

"42. From the above decisions, in our
considered view, the following general
principles regarding powers of the appellate
Court while dealing with an appeal against an
order of acquittal emerge:

[1] An appellate Court has full power to
review, re-appreciate and reconsider the
evidence upon which the order of acquittal is
founded.

[2] The Code of Criminal Procedure,
1973 puts no limitation, restriction or
condition on exercise of such power and an
8 All. State of U.P. Vs. Rajendra & Ors.
523
appellate Court on the evidence before it
may reach its own conclusion, both on
questions of fact and of law.

[3]
Various
expressions,
such
as,"substantial and compelling reasons",
"good and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtain extensive powers of an appellate
Court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasis the
reluctance of an appellate Court to interfere
with acquittal than to curtail the power of
the Court to review the evidence and to
come to its own conclusion.

[4] An appellate Court, however, must
bear in mind that in case of acquittal there
is double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person shall be
presumed to be innocent unless he is
proved guilty by a competent Court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence
is
further
reinforced,
reaffirmed
and
strengthened by the trial Court.

[5] If two reasonable conclusions are
possible on the basis of the evidence on
record, the appellate Court should not
disturb the finding of acquittal recorded by
the trial Court.

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

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

"... the High Court should and will
always
give
proper
weight
and
consideration to such matters as (1) the
views of the trial Judge as to the credibility
of the witnesses; (2) the presumption of
innocence in favour of the accused, a
presumption certainly not weakened by the
fact that he b has been acquitted at his trial;
(3) the right of the accused to the benefit of
any doubt; and (4) the slowness of an
appellate court in disturbing a finding of
fact arrived at by a Judge who had the
advantage of seeing the witnesses."

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

...

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

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

"303. Summary of our conclusions:

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

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

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

...

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

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

"14. The only point for consideration
in these appeals is whether there is any
ground for interference against the order of
acquittal by the High Court. This Court has
repeatedly laid down that the first appellate
court and the High Court while dealing
with an appeal is entitled and obliged as
8 All. State of U.P. Vs. Rajendra & Ors.
525
well to scan through and if need be
reappreciate the entire evidence and arrive
at a conclusion one way or the other.

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

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

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

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

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

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

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

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

40. In exceptional cases where there
are compelling circumstances, and the
judgment under appeal is found to be
perverse, the appellate court can interfere
with the order of acquittal. The findings of
fact recorded by a court can be held to be
perverse if the findings have been arrived at
by ignoring or excluding material or by
526 INDIAN LAW REPORTS ALLAHABAD SERIES
taking
into
consideration
irrelevant/
inadmissible material. A finding may also
be said to be perverse if it is "against the
weight of evidence", or if the finding so
outrageously defies logic as to suffer from
the vice of irrationality. (See Balak Ram v.
State of U.P.9, Shailendra Pratap v. State of
U.P.10, Budh Singh v. State of U.P.11, S.
Rama Krishna v. S. Rami Reddy12,
Arulvelu v. State 13, Ram Singh v. State of
H.P.14 and Babu v. State of Kerala15.)"

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

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

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

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

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

20. The Apex Court recently in
Jayaswamy vs. State of Karnataka,
(2018) 7 SCC 219, has laid down the
principles for laying down the powers of
8 All. State of U.P. Vs. Rajendra & Ors.
527
appellate court in re-appreciating the
evidence in a case where the State has
preferred an appeal against acquittal, which
read as follows:

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

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

"21.There is no embargo on the
appellate court reviewing the evidence
upon which an order of acquittal is based.
Generally, the order of acquittal shall not be
interfered with because the presumption of
innocence of the accused is further
strengthened by acquittal. The golden
thread which runs through the web of
administration of justice in criminal cases
is that if two views are possible on the
evidence adduced in the case, one pointing
to the guilt of the accused and the other to
his innocence, the view which is favourable
to the accused should be adopted. The
paramount consideration of the court is to
ensure that miscarriage of justice is
prevented. A miscarriage of justice which
may arise from acquittal of the guilty is no
less than from the conviction of an
innocent. In a case where admissible
evidence is ignored, a duty is cast upon the
appellate
court
to
re-appreciate
the
evidence in a case where the accused has
been
acquitted,
for
the
purpose
of
ascertaining as to whether any of the
accused committed any offence or not."

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

"DISCUSSION Scope of Appeal filed
against the Acquittal:

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

Mohan @Srinivas @Seena @Tailor
Seena v. State of Karnataka, [2021 SCC
OnLine SC 1233] as hereunder: -

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

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

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

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

14.2. When can the findings of fact
recorded by a court be held to be perverse
has been dealt with and considered in
paragraph 20 of the aforesaid decision,
which reads as under : (Babu case [Babu v.
State of Kerala, (2010) 9 SCC 189 : (2010)
3 SCC (Cri) 1179])

"20.