# State of U.P v. Ravishankar Kurmi

- **Citation:** (2023) 10 ILRA 1258
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-05
- **Case number:** Govt. Appeal Defective No. 6 of 2023
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-ravishankar-kurmi-49322
- **Pages:** 11

## Headnote

Law-Criminal
Procedure
Code,1973-Section
378-U.P.
Gangsters
and Anti-Social Activities (Prevention) Act,
1986-Section 3-Challenge to-acquittal-In
order to prove its case, the prosecution
has examined PW-1, PW-2 and PW-3-the
learned trial court found that all the
witnesses
are
formal
witnesses-No
independent eye witness of the alleged
offence-the alleged recovery of tool have
been made from open fields which did not
inspire confidence of the trial court-the
prosecution also failed to prove the gang
chart-Hence, the learned trial court rightly
recorded the finding of acquittal of the
accused.(Para 1 to 27)

The appeal is dismissed. (E-6)

List of Cases Cited:

## Text

1258 INDIAN LAW REPORTS ALLAHABAD SERIES
the disciplinary authority in remitting the
matter to the Enquiry Officer requiring him
to submit the report afresh on certain
points, I hereby provide that before the
Enquiry Officer proceeds to record any
fresh findings upon the points that have
been referred to it by the disciplinary
authority under the order impugned, it shall
as
of
necessity
provide
reasonable
opportunity of hearing to the petitioner and
it is thereafter only any fresh report shall be
submitted to the disciplinary authority.

12. With the aforesaid observations
and directions, this petition stands disposed
of.

----------
(2023) 10 ILRA 1258
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.10.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Govt. Appeal Defective No. 6 of 2023

State of U.P. ...Appellant
Versus
Ravishankar Kurmi ...Respondent

Counsel for the Appellant:
G.A.

Counsel for the Respondents:
 --

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section
378-U.P.
Gangsters
and Anti-Social Activities (Prevention) Act,
1986-Section 3-Challenge to-acquittal-In
order to prove its case, the prosecution
has examined PW-1, PW-2 and PW-3-the
learned trial court found that all the
witnesses
are
formal
witnesses-No
independent eye witness of the alleged
offence-the alleged recovery of tool have
been made from open fields which did not
inspire confidence of the trial court-the
prosecution also failed to prove the gang
chart-Hence, the learned trial court rightly
recorded the finding of acquittal of the
accused.(Para 1 to 27)

The appeal is dismissed. (E-6)

List of Cases Cited:

1. Ramesh & ors. Vs St. of Har. (2017) 1 SCC
529

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

3. Sadhu Saran Singh Vs St. of U.P. & ors.
(2016) 4 SCC 357
(Delivered by Hon'ble Hon'ble Shamim
Ahmed, J.)

Criminal Misc. Delay Condonation
Application No.1 of 2023:

1. This is an application under Section
5 of Limitation Act seeking condonation of
delay in preferring the instant appeal.

2. Heard Sri S.P. Tiwari, Additional
Government
Advocate-I
for
the
applicant/State and also perused the record.

3. Office report reveals that there is a
delay of fifteen days in preferring the
instant appeal.

4.

Having
heard
the
learned
Additional
Government
Advocate-I
representing the State/applicant and upon
perusal
of
averments
made
in
the
application seeking condonation of delay,
this Court is satisfied that the delay has
sufficiently been explained.

5. Accordingly, the application for
condonation of delay is allowed and the
10 All. State of U.P. Vs. Ravishankar Kurmi
1259
delay in preferring the instant appeal is
hereby condoned.

Order on Memo of Appeal:

6. Heard Sri S.P. Tiwari, Additional
Government
Advocate-I
for
the
applicant/State and also perused the record.

7. The instant appeal has been filed
against the order dated 08.06.2023 passed
by learned Special Judge (Gangster Act) /
Additional Sessions Judge, Court No.4,
Unnao in Sessions Trial No.133 of 2012,
Case Crime No.163 of 2002, under Section
3 of The U.P. Gangsters and Anti-Social
Activities (Prevention) Act, 1986, Police
Station Ajgain, District Unnao, whereby the
respondent has been acquitted of the
charges levelled against him.

8. The prosecution case, in short
conspectus, is that the first informant i.e.
Station House Officer Ravindra Nath Singh
had lodged the First Information Report
No.163 of 2002, under Section 3(ii) of The
U.P. Gangsters and Anti-Social Activities
(Prevention) Act, 1986 at Police Station
Sohramau, District Unnao against the
accused Ravishanker Kurmi, Deepu Gupta,
Saleem, Nanhke @ Kaliya, Munna Shah,
Shivmangal and Pappu @ Raju with the
allegation that on 31.05.2002 at about
00:15 hours while the first informant
alongwith
S.I.
Chandrabhan
Singh,
Constable
Virendra
Kumar
Dwivedi,
Constable
Suresh
Chandra,
Constable
Radhey Shyam and Constable Ramakant
Mishra were searching the accused of another
case i.e. Case Crime No.144 of 2002, under
Sections 307, 323, 504, 427 I.P.C., they saw
that the accused persons were cutting the
electricity wires with intention to steal it.
When the police surrounded them, the
accused tried to fled away. Two accused
succeeded in escaping while one was caught
by the police. On being asked his name, he
told Deepu Gupta. On being searched, a
wooden danda and an iron axe was recovered
from the possession of Deepu Gupta. The
police also inquired him about co-accused.
The accused Deepu Gupta informed the
names of the accused.

9. On the basis of aforesaid incident,
first information report as Case Crime
No.163 of 2002, under Section 3(ii) of The
U.P. Gangsters and Anti-Social Activities
(Prevention) Act, 1986, Police Station Ajgain,
District Unnao was lodged.

10. The Investigating Officer recorded
the statements of witnesses under Section 161
Cr.P.C. He also visited the place of
occurrence and prepared site plan. Upon
conclusion of investigation, he submitted
charge sheet against the accused/respondent
under Section 3(ii) of The U.P. Gangsters and
Anti-Social Activities (Prevention) Act, 1986.
A gang chart was also prepared wherein the
respondent was mentioned as gang leader.

11. In order to prove its case, the
prosecution
has
examined
Constable
Harishchandra as P.W.-1, S.O. Ravindra
Singh as P.W.-2 and Investigating Officer
Parsuram Tripathi, C.O. as P.W.-3.

12. The accused respondent was
charged under Section 3 of The U.P.
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986, who denied the
charges and claimed to be tried.

13. No evidence in defence was
adduced by the respondent.

14.

After
the
conclusion
of
prosecution
evidence,
statement
of
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
accused-respondent was recorded under
Section 313 Cr.P.C., wherein he had stated
the prosecution story to be false and
concocted and also stated himself to be
innocent, who has been falsely implicated
in this case.

15. The learned trial court vide
impugned judgment and order dated
08.06.2023 has acquitted the respondent of
all the charges.

16. Aggrieved by the aforesaid
impugned judgment and order whereby the
respondent was acquitted, the State has
filed this appeal.

17. It is submitted by learned
Additional Government Advocate-I that
respondent
was
named
in
the
first
information report. Specific role of cutting,
stealing and illegally selling the electricity
wires has been assigned to the respondent.
During investigation, sufficient evidences
against the respondent was collected. The
prosecution
witnesses,
through
their
testimonies, have proved the prosecution
case. Therefore, the finding of acquittal
recorded by the learned trial court is against
the weight of evidence and the same is
liable to be set aside and the appeal
deserves to be allowed.

18. Having heard learned Additional
Government Advocate-I for the State and
upon perusal of records, this Court has
been able to notice that the prosecution
adduced three witnesses i.e. Constable
Harishchandra as P.W.-1, S.O. Ravindra
Singh as P.W.-2 and Investigating Officer
Parsuram Tripathi, C.O. as P.W.-3. The
learned trial court has found that all the
witnesses are formal witnesses. There is no
independent eye witness of the alleged
offence. It also appears that alleged
recovery of tool have been made from open
fields which did not inspire confidence of
learned trial court to believe the fact of
recovery to be true. It also appears that no
public at large is affected by the accused
person even there is no terror of the
accused on the general public. The
prosecution also failed to prove the gang
chart.

19. Therefore, in view of the
aforesaid, the learned trial court appears to
have rightly recorded the finding of
acquittal of the respondent which is based
on proper appreciation and analysis of
evidence available on record.

20. The Hon'ble Supreme Court in
Ramesh And Others vs. State of Haryana
reported in (2017) 1 SCC 529 in
paragraphs 24 and 26 has held as under:-

"24. We have duly appreciated the
submissions advanced by the counsel for
the parties on both sides. No doubt, the
High Court was dealing with the appeal
against the judgment of the trial court
which had acquitted the appellants herein.
The scope of interference in an appeal
against acquittal is undoubtedly narrower
than
the
scope
of
appeal
against
conviction. Section 378 of the Code of
Criminal Procedure, 1973 confers upon the
State a right to prefer an appeal to the
High Court against the order of acquittal.
At the same time, sub-section (3) thereof
mandates that such an appeal is not to be
entertained except with the leave of the
High Court. Thus, before an appeal is
entertained on merits, leave of the High
Court is to be obtained which means that
normally judgment of acquittal of the trial
court is attached a definite value which is
not to be ignored by the High Court. In
other words, presumption of innocence in
10 All. State of U.P. Vs. Ravishankar Kurmi
1261
favour of an accused gets further fortified
or reinforced by an order of acquittal. At
the same time, while exercising its
appellate power, the High Court is
empowered to reappreciate, review and
reconsider
the
evidence
before
it.
However, this exercise is to be undertaken
in order to come to an independent
conclusion
and
unless
there
are
substantial and compelling reasons or
very strong reasons to differ from the
findings of acquittal recorded by the trial
court, the High Court, as an appellate
court in an appeal against the acquittal, is
not supposed to substitute its findings in
case the findings recorded by the trial
court are equally plausible.

26. This legal position is reiterated in
Govindaraju v. State [Govindaraju v. State,
(2012) 4 SCC 722 : (2012) 2 SCC (Cri)
533] and the following passage therefrom
needs to be extracted: (SCC p. 732, paras
12-13)

"12. The legislature in its wisdom,
unlike an appeal by an accused in the case
of conviction, introduced the concept of
leave to appeal in terms of Section 378
CrPC. This is an indication that appeal
from acquittal is placed on a somewhat
different footing than a normal appeal. But
once leave is granted, then there is hardly
any difference between a normal appeal
and an appeal against acquittal. The
concept of leave to appeal under Section
378 CrPC has been introduced as an
additional stage between the order of
acquittal and consideration of the judgment
by the appellate court on merits as in the
case of a regular appeal. Sub-section (3) of
Section 378 clearly provides that no appeal
to the High Court under sub-section (1) or
(2) shall be entertained except with the
leave of the High Court. This legislative
intent of attaching a definite value to the
judgment of acquittal cannot be ignored by
the courts.
13. Under the scheme of CrPC, acquittal
confers rights on an accused that of a free
citizen. A benefit that has accrued to an
accused by the judgment of acquittal can be
taken away and he can be convicted on
appeal, only when the judgment of the trial
court is perverse on facts or law. Upon
examination of the evidence before it, the
appellate court should be fully convinced
that the findings returned by the trial court
are really erroneous and contrary to the
settled principles of criminal law.""

(Emphasis supplied)

21. Likewise in a recent judgment the
Hon'ble Supreme Court in Guru Dutt
Pathak Vs. State of U.P. reported in
(2021) 6 SCC 116 in paragraphs 15, 16 and
17 has held as under:-

"15. In Babu v. State of Kerala [Babu
v. State of Kerala, (2010) 9 SCC 189 :
(2010) 3 SCC (Cri) 1179] , this Court has
reiterated the principles to be followed in
an appeal against acquittal under Section
378 CrPC. In paras 12 to 19, it is observed
and held as under : (SCC pp. 196-199)

"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
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
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. [Balak Ram v. State of U.P.,
(1975) 3 SCC 219 : 1974 SCC (Cri) 837] ,
Shambhoo Missir v. State of Bihar
[Shambhoo Missir v. State of Bihar, (1990)
4 SCC 17 : 1990 SCC (Cri) 518] ,
Shailendra
Pratap
v.
State
of
U.P.
[Shailendra Pratap v. State of U.P., (2003)
1 SCC 761 : 2003 SCC (Cri) 432] ,
Narendra Singh v. State of M.P. [Narendra
Singh v. State of M.P., (2004) 10 SCC 699 :
2004 SCC (Cri) 1893] , Budh Singh v. State
of U.P. [Budh Singh v. State of U.P., (2006)
9 SCC 731 : (2006) 3 SCC (Cri) 377] ,
State of U.P. v. Ram Veer Singh [State of
U.P. v. Ram Veer Singh, (2007) 13 SCC 102
: (2009) 2 SCC (Cri) 363] , S. Rama
Krishna v. S. Rami Reddy [S. Rama
Krishna v. S. Rami Reddy, (2008) 5 SCC
535 : (2008) 2 SCC (Cri) 645] , Arulveluv.
State [Arulvelu v. State, (2009) 10 SCC 206
: (2010) 1 SCC (Cri) 288] , Perla
Somasekhara Reddy v. State of A.P. [Perla
Somasekhara Reddy v. State of A.P., (2009)
16 SCC 98 : (2010) 2 SCC (Cri) 176] and
Ram Singh v. State of H.P. [Ram Singh v.
State of H.P., (2010) 2 SCC 445 : (2010) 1
SCC (Cri) 1496] )"

13. In Sheo Swarup v. King Emperor
[Sheo Swarup v. King Emperor, 1934 SCC
OnLine PC 42 : (1933-34) 61 IA 398 : AIR
1934 PC 227 (2)] , the Privy Council
observed as under : (SCC Online PC : 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 [Tulsiram
Kanu v. State, 1951 SCC 92 : AIR 1954 SC
1] , Balbir Singh v. State of Punjab [Balbir
Singh v. State of Punjab, AIR 1957 SC 216
: 1957 Cri LJ 481] , M.G. Agarwal v. State
of Maharashtra [M.G. Agarwal v. State of
Maharashtra, AIR 1963 SC 200 : (1963) 1
Cri LJ 235] , Khedu Mohton v. State of
Bihar [Khedu Mohton v. State of Bihar,
(1970) 2 SCC 450 : 1970 SCC (Cri) 479] ,
Sambasivan v. State of Kerala [Sambasivan
v. State of Kerala, (1998) 5 SCC 412 : 1998
SCC (Cri) 1320] , Bhagwan Singh v. State
of M.P. [Bhagwan Singh v. State of M.P.,
(2002) 4 SCC 85 : 2002 SCC (Cri) 736]
and State of Goa v. Sanjay Thakran [State
of Goa v. Sanjay Thakran, (2007) 3 SCC
755 : (2007) 2 SCC (Cri) 162] .)
15. In Chandrappa v. State of Karnataka
[Chandrappa v. State of Karnataka, (2007)
4 SCC 415 : (2007) 2 SCC (Cri) 325] , 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
appellate court on the evidence before it
may reach its own conclusion, both on
questions of fact and of law.
10 All. State of U.P. Vs. Ravishankar Kurmi
1263

(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.'

(Emphasis supplied)

16. In Ghurey Lal v. State of U.P.
[Ghurey Lal v. State of U.P., (2008) 10 SCC
450 : (2009) 1 SCC (Cri) 60] , 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 [State of
Rajasthan v. Naresh, (2009) 9 SCC 368 :
(2009) 3 SCC (Cri) 1069] , 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 [State of
U.P. v. Banne, (2009) 4 SCC 271 : (2009) 2
SCC (Cri) 260] , 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)

'(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 erroneous 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 [Dhanapal
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
v. State, (2009) 10 SCC 401 : (2010) 1 SCC
(Cri) 336] .

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."

(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 para 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] , SCC p. 199)

"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. [Rajinder Kumar Kindra v.
Delhi Admn., (1984) 4 SCC 635 : 1985
SCC (L&S) 131] , Excise & Taxation
Officer-cum-Assessing Authority v. Gopi
Nath & Sons [Excise & Taxation Officercum-Assessing Authority v. Gopi Nath &
Sons, 1992 Supp (2) SCC 312] , Triveni
Rubber & Plastics v. CCE [Triveni Rubber
& Plastics v. CCE, 1994 Supp (3) SCC
665] , Gaya Din v. Hanuman Prasad [Gaya
Din v. Hanuman Prasad, (2001) 1 SCC
501] , Arulvelu v. State [Arulvelu v. State,
(2009) 10 SCC 206 : (2010) 1 SCC (Cri)
288] and Gamini Bala Koteswara Rao v.
State of A.P. [Gamini Bala Koteswara Rao
v. State of A.P., (2009) 10 SCC 636 : (2010)
1 SCC (Cri) 372] )"

It is further observed, after following
the decision of this Court in Kuldeep Singh
v. Commr. of Police [Kuldeep Singh v.
Commr. of Police, (1999) 2 SCC 10 : 1999
SCC (L&S) 429] , 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
Vijay Mohan Singh v. State of Karnataka
[Vijay Mohan Singh v. State of Karnataka,
(2019) 5 SCC 436 : (2019) 2 SCC (Cri)
586] , this Court again had an occasion to
consider the scope of Section 378 CrPC
and the interference by the High Court in
an appeal against acquittal. This Court
considered a catena of decisions of this
Court right from 1952 onwards. In para
31, it is observed and held as under :
(Vijay Mohan Singh case [Vijay Mohan
Singh v. State of Karnataka, (2019) 5 SCC
436 : (2019) 2 SCC (Cri) 586] , SCC pp.
447-49)

"31. An identical question came to be
considered before this Court in Umedbhai
Jadavbhai [Umedbhai Jadavbhai v. State of
Gujarat, (1978) 1 SCC 228 : 1978 SCC
(Cri) 108] . In the case before this Court,
the High Court interfered with the order of
acquittal passed by the learned trial court
on reappreciation of the entire evidence on
record. However, the High Court, while
10 All. State of U.P. Vs. Ravishankar Kurmi
1265
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
[Sambasivan v. State of Kerala, (1998) 5
SCC 412 : 1998 SCC (Cri) 1320] , the
High Court reversed the order of acquittal
passed by the learned trial court and held
the accused guilty on reappreciation 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 [Ramesh Babulal
Doshi v. State of Gujarat, (1996) 9 SCC
225 : 1996 SCC (Cri) 972] 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 wellconsidered 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
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
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
[K.
Ramakrishnan
Unnithan v. State of Kerala, (1999) 3 SCC
309 : 1999 SCC (Cri) 410] , 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
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. [Atley v.
State of U.P., AIR 1955 SC 807 : 1955 Cri
LJ 1653] , 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 has 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 [Surajpal Singh v. State,
1951 SCC 1207] ; Wilayat Khan v. State of
U.P. [Wilayat Khan v. State of U.P., 1951
SCC 898] ) 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
10 All. State of U.P. Vs. Ravishankar Kurmi
1267
evidence
and
coming
to
its
own
conclusions.'

31.4. In K. Gopal Reddy v. State of
A.P. [K. Gopal Reddy v. State of A.P.,
(1979) 1 SCC 355 : 1979 SCC (Cri) 305] ,
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)

22. Further, this Court observed that
an appeal against acquittal stands on a
different footing from the appeal against
conviction. Hon'ble the Apex Court in a
very recent judgment in the case of Sadhu
Saran Singh Vs. State of Uttar Pradesh
and Others reported in (2016) 4 SCC 357
has considered this difference and has
observed in paragraph nos.20 and 21 as
under:

"20. 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 raise 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:

"7. 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
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."

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

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

24. A criminal trial proceeds with the
presumption of innocence of the accused
persons. With the acquittal of the accused
persons this presumption of innocence
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
stands fortified. So very strong and cogent
reasons must exist in interfering the
judgment of acquittal.

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

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

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

28. No order as to costs.

29. Copy of this judgment be sent to
the court below for its compliance.
----------
(2023) 10 ILRA 1268
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.08.2023

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Writ-A No. 10907 of 2023

Pankaj Kumar Priyam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Maurya

Counsel for the Respondents:
C.S.C.

Examination-Applied for teacher in Sanskrit
vidyalay-submitted his document before the
institution
so
specified
therein
-thereafter
triggered an Email to the District Inspector of
Schools before the last date-application through
registered post reached the destination on
24.06.2023-last
date
was
23.06.2023Candidature
of
the
petitioner
was
not
considered-post office acts as an agent of the
respondent-but the respondents cannot be
bound by any delay on the receipt of the
application-first requirement itself stood noncomplied -email of hard copy as the second step
is dependent upon the first step.

W.P. dismissed. (E-9)

Cases cited:

1. Rajendra Patel Vs St. of U.P., 2016 (1)
UPLBEC 331

2. Neena Chaturvedi Vs U.P. Public Service
Commission (2010) 4 UPLBEC 2876

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

1. Heard Sri Sanjay Maurya, learned
counsel for the writ petitioner as well as Sri
Shailendra
Singh,
learned
Standing
Counsel who appears for respondents No. 1
and 2.