# State of U.P v. Sajid S/O Ibnehasan

- **Citation:** (2024) 12 ILRA 153
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-03
- **Case number:** Government Appeal No. 728 of 2024
- **Bench:** Rajiv Gupta, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-sajid-s-o-ibnehasan-51166
- **Pages:** 17

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section
364,
376(3),
302
&
201
-
The Protection of Children from Sexual
Offences Act,2012 - Section 5/6 Appeal
against acquittal - Case under I.P.C. and
of the - Power of appellate court -
Limited interference - Presumption of
innocence
-
"Last
seen"
theory
-
Circumstantial evidence - Acquittal not
liable to be reversed unless judgment
perverse or based on legally erroneous
reasoning
-
No
conclusive
forensic
evidence identifying skeletal remains as
that of deceased victim - Time gap
between last seen and recovery of body
held too wide - Prosecution failed to
complete the chain of circumstances - No
interference
warranted-trial
court
judgement
upheld-appeal
dismissed.
(Paras 14, 18, 24, 31 to 36)
HELD:
Broadly speaking until and unless the judgment
under challenge is perverse and there are
substantial and compelling reasons followed
miscarriage of justice to be meted by the
parties, this Court should not in routine manner
interfere with the judgment of acquittal as the
accused is possessed with double presumption
of innocence. (Para 14)

Applying the principles of law as laid down in
the above noted decisions in the facts of the
case an irresistible conclusion stands drawn that
there is a huge time gap between the alleged
accused lastly seen with the deceased victim
and the recovery of the body (skeleton) which
creates a doubt regarding involvement of the
accused Sajid in the commission of crime. (Para
31)

Now
another
crucial
question
arises
for
consideration whether the skeleton which is
being shown to have been recovered on
15.07.2018 was of the deceased victim or not.
Admittedly as per the panchnama and the post
mortem report only skeleton was found and
there was no flesh. The deceased went missing
from 22.05.2018 as per the prosecution story
and the recovery of the body of the deceased
dated 15.07.2018. The identification is St.d to
have been made by P.W. 1, Sher Ali and his wife
with the aid and assistance of clothes, slipper
and hair (ponytail). The skeleton was also sent
for DNA test, however, there is nothing on
record that there is any conclusive report that
the skeleton was of the deceased victim. (Para
31)

Interestingly, P.W. 1 and P.W. 5 Inspector Amar
Pal Singh, first Investigating Officer who claims
to have recovered the skeleton on cross
examination by the defence could not point out
the time when he along with his team had gone
from the police station and further does not
remember whether the same stands mentioned
in the GD report. One further question being
raised to him, he showed his inability to apprise
154 INDIAN LAW REPORTS ALLAHABAD SERIES
at what time the P.W. 1 and his wife were
informed for identification of the skeleton. (Para
32)

The aforesaid circumstances itself creates a
doubt upon the credibility of the prosecution
story. Nonetheless, the entire prosecution story
is based upon circumstantial evidence and it is
not a case of eye witness testimony. Thus, an
obligation stood cast upon the prosecution to
complete the chain in all respect so as to
indicate the guilt of the accused and exclude
any other theory of the crime. (Para 33)

Plainly and simply, merely on the basis of the
St.ments of two prosecution witnesses namely
P.W. 2, Muddashir and P.W. 3 Junaid the accused
Sajid cannot be said to have commissioned the
crime
particularly
when
the
overall
circumstances do not support the prosecution
case. (Para 34)

Cumulatively giving anxious consideration to
the judgment and the order passed by the
learned trial court acquitting the accused,
this Court finds that the learned trial court
has not committed any palpable illegality or
perversity as the learned trial court has
appreciated each and every aspect of the
matter from the four corners of law while
acquitting the accused. The view taken by
the trial court is a possible and plausible
view based upon not only the appreciation of
the testimony of the prosecution witnesses
and the

## Text

_Characters 0–39,810 of 57,738. This is a partial read: ask again with offset=39810 for what follows._

12 All. State of U.P. Vs. Sajid S/O Ibnehasan
153

26. The lower court record and the
statutory deposit and any other deposit
made before this court under any order in
this appeal shall be remitted to the
concerned tribunal forthwith and in any
case within a period of four weeks from
today for adjustment in the compensation
to be paid to the claimant-respondent no.1
under the impugned award.
----------
(2024) 12 ILRA 153
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.12.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Government Appeal No. 728 of 2024
With
Criminal Appeal U/S 372 CR.P.C. No. 1070 of
2022

State of U.P. ...Appellant
Versus
Sajid S/O Ibnehasan ...Respondent

Counsel for the Appellant:
Shiv Kumar Pal

Counsel for the Respondent:
Subhash

Criminal Law - Indian Penal Code,1860 -
Section
364,
376(3),
302
&
201
-
The Protection of Children from Sexual
Offences Act,2012 - Section 5/6 Appeal
against acquittal - Case under I.P.C. and
of the - Power of appellate court -
Limited interference - Presumption of
innocence
-
"Last
seen"
theory
-
Circumstantial evidence - Acquittal not
liable to be reversed unless judgment
perverse or based on legally erroneous
reasoning
-
No
conclusive
forensic
evidence identifying skeletal remains as
that of deceased victim - Time gap
between last seen and recovery of body
held too wide - Prosecution failed to
complete the chain of circumstances - No
interference
warranted-trial
court
judgement
upheld-appeal
dismissed.
(Paras 14, 18, 24, 31 to 36)
HELD:
Broadly speaking until and unless the judgment
under challenge is perverse and there are
substantial and compelling reasons followed
miscarriage of justice to be meted by the
parties, this Court should not in routine manner
interfere with the judgment of acquittal as the
accused is possessed with double presumption
of innocence. (Para 14)

Applying the principles of law as laid down in
the above noted decisions in the facts of the
case an irresistible conclusion stands drawn that
there is a huge time gap between the alleged
accused lastly seen with the deceased victim
and the recovery of the body (skeleton) which
creates a doubt regarding involvement of the
accused Sajid in the commission of crime. (Para
31)

Now
another
crucial
question
arises
for
consideration whether the skeleton which is
being shown to have been recovered on
15.07.2018 was of the deceased victim or not.
Admittedly as per the panchnama and the post
mortem report only skeleton was found and
there was no flesh. The deceased went missing
from 22.05.2018 as per the prosecution story
and the recovery of the body of the deceased
dated 15.07.2018. The identification is St.d to
have been made by P.W. 1, Sher Ali and his wife
with the aid and assistance of clothes, slipper
and hair (ponytail). The skeleton was also sent
for DNA test, however, there is nothing on
record that there is any conclusive report that
the skeleton was of the deceased victim. (Para
31)

Interestingly, P.W. 1 and P.W. 5 Inspector Amar
Pal Singh, first Investigating Officer who claims
to have recovered the skeleton on cross
examination by the defence could not point out
the time when he along with his team had gone
from the police station and further does not
remember whether the same stands mentioned
in the GD report. One further question being
raised to him, he showed his inability to apprise
154 INDIAN LAW REPORTS ALLAHABAD SERIES
at what time the P.W. 1 and his wife were
informed for identification of the skeleton. (Para
32)

The aforesaid circumstances itself creates a
doubt upon the credibility of the prosecution
story. Nonetheless, the entire prosecution story
is based upon circumstantial evidence and it is
not a case of eye witness testimony. Thus, an
obligation stood cast upon the prosecution to
complete the chain in all respect so as to
indicate the guilt of the accused and exclude
any other theory of the crime. (Para 33)

Plainly and simply, merely on the basis of the
St.ments of two prosecution witnesses namely
P.W. 2, Muddashir and P.W. 3 Junaid the accused
Sajid cannot be said to have commissioned the
crime
particularly
when
the
overall
circumstances do not support the prosecution
case. (Para 34)

Cumulatively giving anxious consideration to
the judgment and the order passed by the
learned trial court acquitting the accused,
this Court finds that the learned trial court
has not committed any palpable illegality or
perversity as the learned trial court has
appreciated each and every aspect of the
matter from the four corners of law while
acquitting the accused. The view taken by
the trial court is a possible and plausible
view based upon not only the appreciation of
the testimony of the prosecution witnesses
and the documents so adduced therein but
also upon the cardinal principles of law
which govern the subject in question. (Para
35)

Thus, this Court has no option but to concur
that the judgment and order of the trial court
whereby the accused herein has been acquitted.
(Para 36)

Appeal dismissed. (E-14)

List of Cases cited:

1. Rajesh Prasad Vs St. of Bihar (2022) 3 SCC
(471)

2. Babu Sahebagouda Rudragoudar & ors. Vs St.
of Karn. 2024 (8) SCC 129
3. Dharm Dev Yadav Vs St. of U.P. 2014 (5) SCC
(509)

4. Dhan Raj @ Dhand Vs St. of Har. (2014) 6
SCC 745

5. Ashok Vs St. of Har. (2015) 4 SCC 393

6. Chandrapal Vs St. of Chhattisgarh AIR 2022
S.C. 2542

7. Jabir & ors. Vs St. of Uttarakhand AIR 2023
Supreme Court SC 488

8. Dinesh Kumar Vs St. of Har. AIR 2023
Supreme Court 2795

9. R. Sreenivasa Vs St. of Karn.AIR 2023 SC
4301

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

1.
Impugned
in
the
present
proceedings by way of Government Appeal
No. 728 of 2024 at the instance of State of
U.P. and Appeal under Section 372 of the
Cr.P.C. No. 1070 of 2022 preferred by Sher
Ali (informant) is the judgment and order
dated 26.03.2022 passed by Additional
Sessions Judge, Court No. 3, Ghaziabad in
Session Trials No. 234 of 2018 (State of
Uttar Pradesh Vs. Sajid) arising out of Case
Crime No. 196 of 2018 under Section 364,
376(3), 302, 201 I.P.C. and Section 5/6 of
the POCSO Act, P.S. Bhojpur, District
Ghaziabad
acquitting
the
accused
respondents.

Facts

2. The prosecution story in brief is that
on 25.05.2018, Sher Ali (P.W. 1), lodged a
first information report in the Police Station
Bhojpur, District Ghaziabad alleging that
his daughter (victim) aged about 12 years
had gone out of the house at about 7:00
P.M. on 22.05.2018 whereafter she went
missing. Despite constant efforts her
12 All. State of U.P. Vs. Sajid S/O Ibnehasan
155
whereabouts were not known, constraining
Sher Ali (P.W. 1) to lodge first information
report being Case Crime No. 196 of 2018
under Section 363 I.P.C. Post lodging of
the first information report, Amar Pal
Singh, Sub Inspector was appointed as the
Investigating Officer on 25.05.2018. The
statement of Sher Ali (P.W. 1) was taken
on 06.07.2018 and he deposed that the
whereabouts
of
the
victim
remained
untraced since 22.05.2018 and P.W. 2
Muddashir, P.W. 3 Junaid along with
Yunus and Rashid had seen the victim
along with accused Sajid. Thereafter, on
09.07.2018 after disclosure of the said fact,
the police officials raided the house of the
accused Sajid. On 15.07.2018 on the basis
of tip of an informer the accused Sajid was
arrested and taken into police custody and
after interrogation a confessional statement
was made by accused Sajid that he had
abducted the victim on 22.05.2018 at about
7-7:30 in the evening and since the victim
who was a minor girl was demanding 5/10
rupees from the accused Sajid so the
accused Sajid assured her to tender 5/10
rupees demanded by the victim and
thereafter took her near the drain and
proceeded to abduct her and outraged her
modesty and after strangulating, she was
done to death. On the basis of the
confessional statement and on the pointing
out of the accused Sajid, the police
proceeded towards the place of incident
while walking on the chak road and after
proceeding ahead 8-10 steps, the skeleton
(skull and bones) of the deceased was
found along with the clothes, slippers,
ponytail (hair) which was scattered therein.
It is also alleged that inquest was prepared
at the site and the body was sealed and
thereafter in order to ascertain as to
whether the skeleton was of the deceased
victim or not, the residue of the dead body
was sent to Forensic Laboratory. It is
further claimed that for the sake of
accuracy DNA test was also performed.
Since Amar Pal Singh Sub Inspector (P.W.
5), the first Investigating Officer stood
transferred, thus, in his place the second
Investigating
Officer
(P.W.
6)
Sub
Inspector
Surendra
Pal
Singh
was
appointed
to undertake
the
task
of
investigation,
thereafter
P.W.
7
Sub
Inspector Gynandra Bodh was appointed as
Investigating Officer. The Investigating
Officer conducted the investigation and
submitted the charge sheet in Case Crime
No. 196 of 2018 against the accused Sajid
accused-respondent under Section 364,
376, 302, 201 I.P.C. read with Section 5/6
of the POCSO Act. The case was
committed to the Court of Sessions.

3. During the trial, the prosecution
examined as many as 8 witnesses namely
Sher Ali, informant (P.W. 1), P.W. 2,
Muddashir and P.W. 3, Junaid (witness of
facts). P.W. 4, Dr. Vikrant who conducted the
post mortem, P.W. 5, Sub Inspector Amar Pal
Singh, first Investigating Officer, P.W. 6, Sub
Inspector
Surendra
Pal
Singh,
second
Investigating Officer, P.W. 7, Gynandra
Bodh, third Investigating Officer who
submitted the charge sheet and P.W. 8 who
proved the chik F.I.R. After prosecution
evidence was closed the Trial Court recorded
the statement of the accused Sajid under
Section 313 of the Cr.P.C. The accused Sajid
denied the allegations levelled against him
and stated that he has been falsely implicated
in the criminal case. The Trial Court found
the accused Sajid innocent and acquitted him
from the charges under Section 364, 376(3),
302 201 I.P.C. read with Section 5/6 of the
POCSO Act.

4. In order to establish its case,
prosecution had produced the documentary
and oral evidence-
156 INDIAN LAW REPORTS ALLAHABAD SERIES

Documentary evidence

Inquest Report
Ka-1
Post Mortem Report
Ka-2
Site-Plan
Ka-3
Recovery Memo
Ka-4
Panchayatnama
Ka-5
Corpse-Photo
Ka-6
Corpse Challan
Ka-7
Seal Sample
Ka-8
Site-Plan
Ka-9
Final Report
Ka-10
First Information Report
Ka-11
General Diary
Ka-12

Testimony
of
the
Prosecution
Witnesses

5. P.W. 1, Sher Ali the informant has
been examined as P.W. 1, he is the father
of the deceased-victim. P.W. 1 in his
examination-in-chief has deposed that the
victim is 10 years of age and on 22.05.2018
she had proceeded from the house at about
7-8:00 in the evening and she was wearing
salwar, kurti and was in hawai slippers.
P.W.
1
further
deposed
that
since
22.05.2018 he along with the family
members were were constantly searching
the whereabouts of the deceased but she
was untraceable thereafter, on 25.05.2018
P.W. 1 through his brother Rashid who is
scribe of the first information report got the
written report submitted before the Police
Station
which
transformed
into
first
information report. P.W. 1 also gave a
statement that after a period of 8-10 days
from the date when the victim went missing
i.e. 22.05.2018, Muddashir (P.W. 2) along
with Yunus and Rashid who also belong to
the same village apprised him that they saw
the deceased victim with the accused Sajid
and they are in a position to identify him
also. He further deposed that the same was
also apprised by the natives of the village
and the same was also a matter of
discussion between the villagers. P.W. 1
also deposed that after a period about two
months, the accused Sajid was arrested and
thereafter the skeleton of the deceased
victim along with the clothes and slippers
were found. He further deposed that the
accused Sajid had made a confessional
statement that he had outraged the modesty
of the deceased victim and thereafter
murdered her and left the body. He along
with his wife, his brother Gulsher and one
Shahid Chaudhary who happens to be the
Gram Pradhan of the village identified the
skeleton to be of victim. He along with his
wife had also identified the clothes and the
slippers which belonged to his daughter
and the police thereafter, the Panchnama
was prepared in which there is a thumb
impression of not only his wife along with
him but also of the Gram Pradhan.

6. P.W. 2 Muddashir got himself
examined as P.W. 2 and he in his
examination-in-chief
deposed
that
he
knows the first informant (P.W. 1) Sher
Ali. According to him the age of the
deceased victim was about 9-10 years and
on 22.05.2018 when he was standing
outside his house then at about 7-7:30 in
the evening he saw the accused Sajid
talking with the deceased victim and he
also heard that the deceased victim was
demanding 5/10 rupees from the Sajid and
Sajid assured her that he would give 5/10
rupees to the deceased victim if she
accompanies him. The said fact has also
been disclosed to the police. The body was
found in the Jungle and the deceased is not
alive. On 24/25.05.2018, P.W. 1-Sher Ali
came to his house and he was apprised of
the said fact.

7. P.W. 3 Junaid stepped in the
witness box as P.W. 3. He in his
12 All. State of U.P. Vs. Sajid S/O Ibnehasan
157
examination-in-chief
deposed
that
he
knows Sher Ali (P.W. 1) informant and
also his daughter, deceased victim who
have been murdered. He also stated that on
22.05.2018 at about 7-7:30 in the evening
when he was returning from work to his
house and when he just approached the
shop of Buddhe @ Muzaffar, he recognized
the accused Sajid and after the said
incident, he did not see the accused Sajid.

8. P.W. 4 Dr. Vikrant had conducted
the post mortem. According to him on
16.07.2018 he was posted as Consultant in
CHC Modinagar. He conducted the post
mortem at 4:20 hour wherein the following
was found.- (a) external examination some
bones and human skeleton 1- below the
skull towards jaws 2- Scapula 3- ileum 4-
Radius, ulna 5- Tibia both sides 6- Femur
7- Few Ribs 8- Few Separated Vertebrae 9-
Humerus of both Upper limbs through
digital X ray 2- Molar teeth 2- Ribs.
According to him, the skeleton was sent for
DNA examination. Medical examination
was done with the assistance and the advice
of his associate Dr. Rakesh Kumar. He
proved the factum of post mortem.

9. P.W. 5 Sub Inspector Amar Pal
Singh the first Investigating Officer,
deposed that he was assigned the task of
conducting investigation with respect to the
subject F.I.R. According to him post
lodging of the first information report
entire formalities were completed as
prescribed and in vogue. He prepared the
spot inspection map (Exhibit 3). He also
took the statements of the Gulsher and
Tabid which stands recited in the GD. In
his statement he further deposed that he
took the statements of the P.W. 1 Sher Aliinformant who apprised him that since
22.05.2018 the whereabouts of the victim is
unknown and according to him P.W. 1 Sher
Ali first informant apprised him that
Yunus, P.W. 2 Muddashir, Rashid and
Junaid, P.W. 3 had seen the accused Sajid
along with the deceased victim, he further
took the statements of the above noted
witnesses. On the basis of the said
statements on 09.07.2018, P.W. 5 along
with the police officials raided the house of
the
accused
Sajid.
Thereafter
on
15.07.2018 on the basis of a tip, accused
Sajid was arrested and taken in police
custody and he made a confessional
statement that on 22.05.2018 at about 77:30 in the evening when the deceased
victim was standing and demanding 5/10
rupees from him then he took her near the
drain and thereafter proceeded to outrage
her modesty and strangulated her to death.
On the said basis P.W. 1 along with the
police officials went towards the chak road
and after walking 50-60 steps and inside
the agricultural field, 8-10 steps, the
skeleton along with clothes and slippers
and ponytail (hair) was found. However,
there was no flesh available on the skeleton
presumably due to the fact that the animals
might have eaten it. P.W. 1 Sher Ali along
with his wife and the Gram Pradhan who
were present, had also identified that the
skeleton was that of the deceased victim
and thereafter Panchnama was prepared.
The post mortem was conducted, body was
sent for DNA test.

10. P.W. 6 Surendra Pal Singh ,
second Investigating Officer also got
himself examined as a prosecution witness
and according to him he was assigned the
charge on 19.07.2018.

11. P.W. 7 Gynandra Bodh, third
Investigating Officer deposed that he was
assigned
the
charge
of
Investigating
Officer, he conducted investigation and
after thorough investigation, materials were
158 INDIAN LAW REPORTS ALLAHABAD SERIES
collected regarding the involvement of the
accused Sajid and he submitted the charge
sheet.

12. P.W. 8 Head Constable Raj
Kumar is the Head Moharrir. According to
him he had recorded the contents of written
report and chik report. He is formal
witness.

Legal Position:

13. Before pondering into the niceties
of
the
judgment of
acquittal
under
challenge in the proceedings under Section
378(3) Cr.P.C. at the instance of the State,
this Court has to re-memoirse itself the fact
that the present proceedings are in a form
of
appellate
jurisdiction
occasioning
scrutiny of a judgment of acquittal wherein
there are certain limitations provided
therein which needs to be recognised
before the delving in the issue.

14. Broadly speaking until and unless
the judgment under challenge is perverse
and there are substantial and compelling
reasons followed by miscarriage of justice
to be meted by the parties, this Court
should not in routine manner interfere with
the judgment of acquittal as the accused is
possessed with double presumption of
innocence.

15. To put it otherwise as a matter of
right, this Court cannot at the instance of
the appellant, who happens to be State
exercise the jurisdiction while converting
the judgment of acquittal into conviction.

16. The aforesaid principle of law has
already been crystallized by Hon'ble Apex
Court in plethora of decisions and just for
the sake of illustration reference may be
made to the judgment of Rajesh Prasad
Vs. State of Bihar (2022) 3 SCC (471)
wherein the Hon'ble Apex Court wherein
the following was observed.-

"21. Before proceeding further, it
would be useful to review the approach to
be adopted while deciding an appeal
against acquittal by the trial court as well
as by the High Court. Section 378 CrPC
deals with appeals in case of acquittal. In
one of the earliest cases on the powers of
the High Court in dealing with an appeal
against an order of acquittal the Judicial
Committee of the Privy Council in Sheo
Swarup v. King Emperor2 considered the
provisions relating to the power of an
appellate court in dealing with an appeal
against an order of a acquittal and
observed as under: (SCC OnLine PC)

"16. It cannot, however, be
forgotten that in case of acquittal, there is a
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 should be
presumed to be innocent unless he is
proved to be guilty by a competent court of
law. Secondly, the accused having secured
an acquittal, the presumption of his
innocence is certainly not weakened but
reinforced, reaffirmed and strengthened by
the trial court.

"..... But in exercising the power
conferred by the Code and before reaching
its conclusions upon fact, 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)
12 All. State of U.P. Vs. Sajid S/O Ibnehasan
159
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. To state this, however, is only to
say that the High Court in its conduct of the
appeal should and will act in accordance
with rules and principles well known and
recognised in the administration of justice."

It was stated that the appellate
court has full powers to review and to
reverse the acquittal.

22. In Atley v. State of U.P.3, the
approach of the appellate court while
considering a judgment of acquittal was
discussed and it was observed that unless
the appellate court comes to the conclusion
that the judgment of the acquittal was
perverse, it could not set aside the same. To
a
similar
effect
are
the
following
observations
of
this
Court
speaking
through Subba Rao, J. (as his Lordship
then was) in Sanwat Singh v. State of
Rajasthant: (Sanwat Singh case4, AIR pp.
719-20, para 9)

"9. 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 Swarup2 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."

The need for the aforesaid
observations
arose
on
account
of
observations of the majority in Aher Raja
Khima v. State of Saurashtra5 which stated
that for the High Court to take a different
view on the evidence "there must also be
substantial and compelling reasons for
holding that the trial court was wrong".

23. M.G. Agarwal v. State of
Maharashtra is the judgment of the
Constitution Bench of this Court, speaking
through
Gajendragadkar,
J.
(as
his
Lordship then was). This Court observed
that the approach of the High Court
(appellate court) in dealing with an appeal
against acquittal ought to be cautious
because the presumption of innocence in
favour of the accused "is not certainly
weakened by the fact that he has been
acquitted at his trial".

24. In Shivaji Sahabrao Bobade
v. State of Maharashtra, Krishna Iyer, J.,
observed as follows: (SCC p. 799, para 6).

"6.
...
In
short,
our
jurisprudential enthusiasm for presumed
innocence must be moderated by the
pragmatic need to make criminal justice
potent and realistic. A balance has to be
struck between chasing chance possibilities
as good enough to set the delinquent free
and chopping the logic of preponderant
probability to punish marginal innocents."

25. This Court in Ramesh Babulal
Doshi v. State of Gujarats, spoke about the
approach of the appellate court while
considering an appeal against an order
acquitting the accused and stated as
follows: (SCC p. 229, para 7)

"7. ... While sitting in judgment
over an acquittal the appellate court is first
required to seek an answer to the question
160 INDIAN LAW REPORTS ALLAHABAD SERIES
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 and then only reappraise
the
evidence
to
arrive
at
its
own
conclusions."

The object and the purpose of the
aforesaid approach is to ensure that there
is no miscarriage of justice. In another
words, there should not be an acquittal of
the guilty or a conviction of an innocent
person.

31.1. Ordinarily, this Court is
cautious in interfering with an order of
acquittal, especially when the order of
acquittal has been confirmed up to the
High Court. It is only in rarest of rare
cases, where the High Court, on an
absolutely wrong process of reasoning and
a legally erroneous and perverse approach
to the facts of the case, ignoring some of
the most vital facts, has acquitted the
accused, that the same may be reversed by
this Court, exercising jurisdiction under
Article 136 of the Constitution. [State of
U.P. v. Sahai] d Such fetters on the right to
entertain an appeal are prompted by the
reluctance to expose a person, who has
been acquitted by a competent court of a
criminal charge, to the anxiety and tension
of a further examination of the case, even
though it is held by a superior court.
[Arunachalam v. P.S.R. Sadhanantham].
An appeal cannot be entertained against an
order of acquittal which has, after
recording valid and weighty reasons, has
arrived
at
an
unassailable,
logical
conclusion which justifies acquittal."

17. Recently, the Hon'ble Supreme
Court
in
Babu
Sahebagouda
Rudragoudar and others Vs. State of
Karnataka 2024 (8) SCC 129 the Apex
Court had flagged a note of caution in the
matters of exercise of appellate jurisdiction
when the Appellate Court is confronted
with an order of acquittal, the following
was observed:-

"38. First of all, we would like to
reiterate the principles laid down by this
Court governing the scope of interference
by the High Court in an appeal filed by the
State for challenging acquittal of the
accused recorded by the trial court.

39. This Court in Rajesh Prasad
Vs. State of Bihar encapsulated the legal
position covering the field after considering
various earlier judgments and held as
below: (SCC pp. 482-83, para 29)

"29. After referring to a catena of
judgments, this Court culled out the
following general principles regarding the
powers of the appellate court while dealing
with an appeal against an order of
acquittal
in
the
following
words:
(Chandrappa case, SCC p. 432, para 42)

'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 power to review, reappreciate and
reconsider the evidence upon which the
order of acquittal is founded.

(2)
The
Criminal
Procedure
Code, 1973 puts no limitation, restriction
or condition on exercise of such power and
an appellate court on the evidence before it
may read its own conclusion, both on
questions of fact and of law.
12 All. State of U.P. Vs. Sajid S/O Ibnehasan
161

(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."

40. Further, in H.D. Sundara Vs.
State of Karnataka this Court summarised
the principles governing the exercise of
appellate jurisdiction while dealing with an
appeal against acquittal under Section 378
Cr.P.C. as follows: (SCC p. 584, para 8)

"8. ... 8.1. The acquittal of the
accused further strengthen the presumption
of innocence;

8.2. The appellate court, while
hearing an appeal against acquittal, is
entitled to reappreciate the oral and
documentary evidence;

8.3. The appellate court, while
deciding an appeal against acquittal, after
reappreciating the evidence, is required to
consider whether the view taken by the trial
court is a possible view which could have
been taken on the basis of the evidence on
record;

8.4. If the view taken is a possible
view, the appellate court cannot overturn
the order of acquittal on the ground that
another view was also possible; and

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

18.
Broadly
speaking
the
same
principles also stands applied to the appeals
under Section 372 of the Cr.P.C. by the
informant/complainant.

19. Bearing in mind the principles of
law so laid down by the Hon'ble Apex
Court as referred to above the present case
is to be proceeded with while giving it a
logical end.

Submissions advanced on behalf of
the State appellants and counsel for the
informant

20. Sri Jay Prakash Tripathi, learned
AGA along with Sri Anand Ji Mishra who
appear for the informant have made the
manifold submissions namely:

(a)
the
accused
herein
has
committed offence which stood proved
beyond doubt as the chain and sequence of
162 INDIAN LAW REPORTS ALLAHABAD SERIES
the events consistently points out towards
commission of offences beyond reasonable
doubt;

(b) the accused were seen with
the
deceased
lastly
wherefrom
she
disappeared, thus, the last seen theory
comes into play;

(c)
once
the
prosecution
witnesses had proved beyond shadow of
doubts that the accused was lastly seen with
the deceased victim then the onus stood
shifted to the accused and in absence of
proving otherwise, by no stretch of
imagination, it can be said that the accused
were innocent;

(d) it was only on the pointing out
of the accused, the skeleton of the deceased
victim stood recovered and once on the
basis of the clothes and the slippers and the
piece of hair (ponytail) which stood
identified by the first informant and his
wife to be of their own daughter (deceased
victim), there is no element of doubt that
the accused had not committed the offence;

(e) once P.W. 2 Muddashir and
P.W. 3 Junaid happen to be a noninterested witness who had lastly seen the
deceased victim with the accused Sajid
then their deposition ought to have been
given much weightage particularly when
the defence has not discharged its burden of
proving that the accused was not lastly seen
with the deceased victim.

Analysis

21.
We
have
given
thoughtful
consideration to the arguments advanced by
the learned AGA and the counsel for the
informant and perused the record carefully
including the trial court records.

22. The first information report was
lodged on 25.05.2018 at 12:35 hours alleging
that the P.W. 1 Sher Ali's minor daughter
(deceased victim) had gone out from his
house at 7:00 in the evening wherefrom her
whereabouts became untraceable. It is also
alleged by the P.W. 1 Sher Ali that for 3/4
days there was rigorous search but in failing
to know the whereabouts of the deceased
victim, F.I.R. came to be lodged on
25.05.2018. According to the prosecution,
P.W. 1 Sher Ali deposed that after a period of
8-10 days from the date of incident i.e.
22.05.2018 Yunus, Rashid and Muddashir,
P.W. 2 apprised P.W. 1 that they had seen
accused Sajid along with the deceased victim
and the said fact was also apprised by the
villagers and it was the matter of discussion
between them. In a nutshell the prosecution
story is that the deceased victim was lastly
seen with the accused Sajid. Notably, as per
the prosecution case in particular P.W. 5, Sub
Inspector
Amar
Pal
Singh,
the
first
Investigating Officer on 06.07.2018 had
approached the P.W. 1 Sher Ali for recording
of the statement under Section 161 Cr.P.C.
and he was apprised by the P.W. 1 Sher Ali
that P.W. 2 Muddashir, P.W. 3 Junaid, Yunus
and Rashid had apprised him about the fact
that the deceased victim was lastly seen with
the accused Sajid. Apparently, P.W. 2
Muddashir, in his cross examination by the
defence stated that he saw the accused Sajid
with the deceased victim on 22.05.2018 and
on the same day he had apprised the said fact
to his brother Rustom. He further deposed
that his brother Rustom also apprised the said
fact to the parents and family members of the
deceased victim. He stated that the father of
the deceased victim P.W. 1 Sher Ali had
come to their house on 24/25.05.2018 at
about 8:00 A.M. the said fact was also
informed to him.

23. The aforesaid deposition of P.W. 1
Sher Ali, P.W. 3 Junaid itself shows that
there are major contradictions which
demolishes the prosecution theory. On one
12 All. State of U.P. Vs. Sajid S/O Ibnehasan
163
hand, according to the deposition of the
P.W. 1 he was informed after a period of
8/10 days of the incident which occurred on
22.05.2018 regarding the fact that the
deceased victim was lastly seen with the
accused Sajid by Yunus, Rashid and
Muddashir, P.W. 2, however, P.W. 2
Muddashir himself deposed that P.W. 1 had
come to his house on 24/25.05.2018 at 8:00
A.M. whereupon the said fact was apprised.
Further what is more interesting is that the
first information report was lodged against
un-named accused on 25.05.2018, thus, the
possibility cannot be ruled out that the
present case is of false implication.
Nonetheless P.W. 3-Junaid further deposed
that he had not seen the deceased with the
accused Sajid and he did not apprise the
said fact to the friends or any body.

24. Pertinently, as per the prosecution
case the deceased victim went missing
from 22.05.2018 and the
skeleton was recovered on 15.07.2018. The
deceased victim was lastly seen with the
accused on 22.05.2018, thus, what is
relevant is the time gap when the deceasedvictim was last seen with the accused and
the time of the commission of the
offence/the date when the skeleton was
discovered. Admittedly, the time gap in the
present case is over and above one and a
half month.

25. The impact and the effect of time
gap in the cases of circumstantial evidence
has been explained in Dharm Dev Yadav
Vs. State of U.P. 2014 (5) SCC (509)
where it was observed as under:-

"19. It is trite law that a
conviction cannot be recorded against the
accused merely on the ground that the
accused was last seen with the deceased. In
other words, a conviction cannot be based
on the only circumstance of last seen
together. The conduct of the accused and
the fact of last seen together plus other
circumstances have to be looked into.
Normally, last seen theory comes into play
when the time gap, between the point of
time when the accused and the deceased
were seen last alive and when the deceased
is found dead, is so small that the
possibility of any person other than the
accused being the perpetrator of the crime
becomes impossible. It will 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.
However, if the prosecution, on the basis of
reliable evidence, establishes that the
missing person was seen in the company of
the accused and was never seen thereafter,
it is obligatory on the part of the accused to
explain the circumstances in which the
missing person and the accused parted
company. In such a situation, the proximity
of time between the event of last seen
together and the recovery of the dead body
or the skeleton, as the case may be, may not
be of much consequence. PWs 1, 2, 3, 5, 9
and 10 have all deposed that the accused
was last seen with Diana. But, as already
indicated, to record a conviction, that itself
would not be sufficient and the prosecution
has to complete the chain of circumstances
to bring home the guilt of the accused."

26. In Dhan Raj @ Dhand Vs. State
of Haryana (2014) 6 SCC 745, the
Hon'ble Apex Court observed as under:-

"15.
The
above
mentioned
circumstantial evidence was supported with
the statement of Raj Singh (PW 15), that
when he was visiting his brother the
deceased on 24-1-1997 after the deceased
had left, the three accused came to the
164 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased's house and enquired about him
after
disclosing
their
names.
Before
discussing the admissibility of the said
statement, we would refer to the landmark
decision
of
this
Court
in
Sharad
Birdhichand Sarda v. State of Maharashtra
regarding circumstantial evidence, where
this Court held regarding the question of
the accused last seen with the deceased,
that where it is natural for the deceased to
be with the accused at the material time,
other possibilities must be excluded before
an adverse inference can be drawn. It is
evident from the above that this Court
refrains from drawing adverse inferences
in a factual matrix which points towards
the guilt of the accused. Thus, we will
consider the statement of Raj Singh also in
the same light.

16. As per the statement of Raj
Singh, the three accused had come asking
for the deceased but in the absence of other
corroborating evidence and independent
evidence, it is not established that the
appellant-accused had abetted the coaccused Sanjay in the commission of the
crime. Also it can be the defence case that
the said statement has been added as an
afterthought to strengthen the case of the
prosecution. We have found no material on
record which corroborated the statement of
Raj Singh who is an interested witness.
Furthermore, there is no other evidence
which indicates or establishes the presence
of the appellant-accused near the place of
commission of crime. Also, as noted by the
trial court in the trial of Badal, no
footprints were found in the surrounding
kutcha area where the body of the deceased
was found.

17. We have noticed in Madhu v.
State of Kerala, facts of which were
discussed earlier, that this Court in spite of
the factum that the accused were sighted
close to the place of occurrence at around
the time of occurrence reversed the
conviction as guilt was not established. In
the present factual matrix, it is only an
interested witness stating that the accused
had come asking for the deceased. This
factum alone does not establish guilt as no
other evidence is found that they were near
the Bizdipur area where the crime was
committed or had visited the house of the
deceased."

27. In the case of Ashok Vs. State of
Haryana (2015) 4 SCC 393, Hon'ble
Apex Court had discussed the theory of last
seen together while holding as under:-

"8. The "last seen together"
theory has been elucidated by this Court in
9 Trimukh Maroti Kirkan v. State of
Maharashtra, in the following words:

"22.