# State v. Khajan 1032 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 5 ILRA 1031
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-24
- **Case number:** Government Appeal No. 1202 of 1984
- **Bench:** Rajiv Gupta, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-v-khajan-1032-indian-law-reports-allahabad-series-51936
- **Pages:** 10

## Headnote

Criminal Law-Indian Penal Code-1860Sections 148, 149, 307 & 323- Government
Appeal against the judgment by which the
accused-respondent has been acquitted by the
trial court- Injuries are simple in nature and even
as per the doctor opinion, the injuries may be
manipulated, manufactured or self inflicted- A
very little blood oozed out from the wound
caused by alleged firearm injury , which neither
fell on his clothes nor any blood was found on the
cot nor any pellet or wad was recovered at the
place of incident which creates serious dent in the
prosecution story and makes it unreliable -Unless
the finding of acquittal is found to be perverse or
impossible, interference with the same would not
be warranted-First informant and the accusedrespondents were on highly inimical terms.

Appeal dismissed. (E-15)

List of Cases cited:

## Text

5 All. State Vs. Khajan
1031
had also requested the parties to explore the
possibility of them living together, but
nothing materialized. This Court had also
made an effort by asking the parties to come
with some mutual settlement, but in vain,
meaning thereby that every single effort of
the Court and the mediators, towards the
compromise or settlement has led to a blind
alley.

(30) The husband and wife, who
are before us, have been living separately
since the last more than a decade. There
are bitter allegations of cruelty from both
the sides and multiple litigations have
taken place between the two in the last
more than a decade. This embittered
relationship between the appellant and
respondent which has not witnessed any
moment of peace for the last more than a
decade or more is a martial relationship
only on paper. The fact is that this
relationship has broke down irretrievably
long back.

(31)

In
the
facts
and
circumstances of this case also, it is not a
fit case for grant of alternative relief of
judicial separation under Section 13A of
the Act, 1955.

(32)

Although
there
are
allegations
and
counter
allegations
between the parties about their financial
status,
however,
we
find
that
the
respondent did not seek permanent
alimony under Section 25 of the Act, 1955
presumably because she was seeking
restitution
of
conjugal
relationship,
though she could have done so as an
alternative relief in the suit for divorce but
we find that before us also there is no such
pleading by parties nor any prayer made
nor any evidence on record, therefore, we
leave it open to the respondent to initiate
separate proceedings in this regard as per
law.

(33) Based on the discussions
made hereinabove, without interfering
with the findings of the Family Court with
regard to issue nos. 1 and 2, its findings
and conclusions with regard to relief no. 3
in Regular Suit No. 886 of 2012 filed
under Section 13 of the Act, 1955 are set
aside. Consequently, the judgment and
decree
dated
15.02.2021
dismissing
Regular Suit No. 886 of 2023 for divorce
is also set-aside, Regular Suit No. 886 of
2012 is decreed. The marriage between the
appellant and respondent is dissolved.
Liberty is granted to the respondent to
initiate
separate
proceedings
under
Section 25 of the Act, 1955 as per law.

(34) The judgment and decree
15.02.2021 allowing the Regular Suit No. 29
of 2013 is set-aside. Regular Suit No. 29 of
2013 filed under Section 9 of the Hindu
Marriage Act, 1955 is dismissed.

(35) Both the appeals are allowed in
the aforesaid terms.

(36) Parties to bear their own costs.
----------
(2024) 5 ILRA 1031
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Government Appeal No. 1202 of 1984

State ...Appellant
Versus
Khajan ...Respondent
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:
Sa Shah, Raghvendra Kumar Mishra

Criminal Law-Indian Penal Code-1860Sections 148, 149, 307 & 323- Government
Appeal against the judgment by which the
accused-respondent has been acquitted by the
trial court- Injuries are simple in nature and even
as per the doctor opinion, the injuries may be
manipulated, manufactured or self inflicted- A
very little blood oozed out from the wound
caused by alleged firearm injury , which neither
fell on his clothes nor any blood was found on the
cot nor any pellet or wad was recovered at the
place of incident which creates serious dent in the
prosecution story and makes it unreliable -Unless
the finding of acquittal is found to be perverse or
impossible, interference with the same would not
be warranted-First informant and the accusedrespondents were on highly inimical terms.

Appeal dismissed. (E-15)

List of Cases cited:

1. Sadhu Saran Singh Vs St. of U.P. (2016) 4
SCC 397

2. Harljan Bhala Teja Vs St. of Guj. (2016) 12
SCC 665

3. Rajesh Prasad Vs St. of Bihar & anr.

(Delivered by Hon'ble Rajiv Gupta, J.)

1. Heard Sri Jitendra Kumar
Jaiswal, learned AGA for the State,
Raghvendra Kumar Mishra, learned counsel
for the accused-respondent and perused the
record.

2. The present Government Appeal
has been filed against the judgment and
order dated 19.1.1984 passed by 7th Addl.
Sessions Judge, Aligarh in S.T. No. 246 of
1983 (State Vs. Khajan and others), P.S.
Harduaganj, District- Aligarh, by which the
accused-respondent has been acquitted for
the offence under Section 307 read with
Section 149 IPC and Section 323 read with
Section 149 IPC as well as under Section
148 IPC.

3. Shorn of unnecessary details, the
prosecution case as unraveled in the first
information report, which was lodged by
one Veerpal Sharma (P.W.-2) on 1.5.1982 at
3 P.M. in police station- Harduaganj,
District- Aligarh in respect of an incident
occurred on 30.4.1982 at 11 p.m. in the
night. It is alleged that on the fateful night,
the first informant alongwith his servant
Ranvir were sitting in his Khalihan and were
conversing while his son Satyadev was
sleeping beside them, when accusedrespondent
Khajan
son
of
Chhiddu,
Shamshad son of Basheer, Haneef son of
Maseet, Edal son of Manik, Ramji Lal son
of Lal Singh, Habib son of Bindu allegedly
reached there and stated to kill Veerpal,
consequent thereto Khajan fired a shot at
him, however it missed the target, on which
all others exhorted Shamshad to assault him,
consequent to which, Shamshad fired a shot
at him by a country made pistol. He in order
to rescue himself, bent down, yet he
received injuries on his head.

4. It is further stated that Ramji Lal
and Hanif armed with farsa also stood there,
Edal assaulted him by lathi whereas Hanif
assaulted him by the reverse side of the
ballam, consequent to which, he fell down
and his servant was also assaulted by them.
At the time of assault, his son was raising
alarm from a distance. He alongwith his
servant also raised alarm, consequent to
which, Khubi and Soran and several other
persons reached there, who in the moon light
and in the flash of torch, saw and identified
the assailants, however seeing the said
witnesses, the assailants ran away.
5 All. State Vs. Khajan
1033
5. It is further stated that he is
having prior enmity with Edal and the other
accused persons, who are members of his
gang, on the basis of said written report
given by Veerpal, a first information report
was registered vide Case Crime No. 77 of
1982, under Sections 147/149 and 307 IPC,
Police
Station-
Harduaganj,
District-
Aligarh. On the basis of said written report,
which has been proved and marked as Exbt.
Ka-3, the first information report was
registered, which has been proved and
marked as Exbt. Ka-6.

6. After registration of the said first
information report, the victims Ranvir and
Veepal were sent for medical examination at
Primary
Health
Centre,
Harduaganj,
Aligarh, whereas Dr. D.P. Singh has
examined their injuries and prepared the
injury report, which has been proved and
marked as Exbt. Ka-1 and Exbt. Ka-2. The
doctor has noted the following injuries :-

Injuries of Ranvir Singh
1. Abraded bruise 1 x 1/4'' X 1/2'' on
the lateral aspect of right side of abdomen
in the mid auxillary line just adjacent to the
right iliac crest at the level of umblicus. Pink
red in appearance surrounded by a diffuse
ill defined swelling.
2. Bruise 2'' X 1 ⁄ 2 '' on the left side
of back 4'' x 1 ⁄ 2'' away from mid line and
2'' x 1/4'' below the lower end of left scapula
bone. Pink red in appearance. Both the
above injuries are simple in nature caused
by same blunt object, duration 1/2 day old.
Injuries of Virpal Sharma

1. Lacerated wound 1'' X 1/8'' X
1/10'' on the scalp in the mid line,
horizontally placed. Whose base and
margins are charred and tail end towards
the right temple, surrounding hair are also
charred and burnt.
2. Abrasion 1/2'' X 1/20'' on the
fronto-lateral aspect of left shoulder joint 1
x 1/2'' below the top of shoulder.
3. Bruise 2 x 1/2'' X 1 x 1/4'' on the
front and top aspect of left shoulder joint.
Pink red in appearance.
4. Abraded Bruise 1 x 3/4'' X 1/2'' on
the postero-lateral aspect of the middle of
left forearm. Pink red in appearance.
5. Bruise 1 x 1/4'' X 1/2'' on the back
of left elbow joint. Pink red in appearance.
All the above injuries are simple in nature.
Injury No.1 appears to be caused by some
fire-arm whereas all others are caused by
some blunt object. Direction from 1/5'' left to
right. Duration 1/2 day old.

All injuries are simple in nature.
Injury No.1 appears to be caused by some
firearm whereas others are caused by blunt
object. Duration 1⁄2 day old.

7. After registration of the said first
information report, investigation of the case
was entrusted to Diwan Singh (P.W.-4) on
10.5.1982.
The
Investigating
Officer
thereafter recorded the statement of Head
Moharrir and visited the place of incident
and recorded the statement of first informant
Veerpal and on his pointing out prepared the
site-plan, which has been marked as Exbt.
Ka-4. He thereafter recorded the statement
of Satyadev and other witnesses and after
concluding the investigation, has submitted
charge-sheet against the accused persons on
8.6.1982.

8. On the basis of said charge sheet,
learned Magistrate has taken cognizance and
since the case was exclusively triable by the
court of Sessions, made over the case to the
court of Sessions for trial, where it was
registered as Session Trial No. 246 of 1983
(State vs. Khajan and others). The trial court
on 27.8.1983 framed the charges against the
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
accused persons under Section 307 read
with Section 34 IPC. The charges were read
out and explained to the accused who did not
plead guilty and claimed to be tried. Further
vide order dated 4.10.1983 charges under
Sections 307/149, 323/149, 147, 148 were
also framed, which was read out to the
accused respondents, who abjured the
charges, pleaded not guilty and claimed to
be tried.

9. During the course of trial, the
prosecution in order to prove the guilt
against the accused respondents have
produced as many as two witnesses of fact
and and two formal witnesses. Their
testimony
in
brief
is
enumerated
hereunder :-

10. Dr. D.P. Singh (P.W.-1) is the
medical
officer,
who
had
medically
examined two injured witnesses, namely
Veerpal Singh and Ranvir Singh on 1.5.1982
at Primary Health Centre, Harduaganj, who
are said to have been brought by constable
Amar Singh, Police Station- Harduaganj.
The injuries on the person of victims have
already been mentioned above.

11. During cross examination, he
stated that the duration of said injuries could
vary 6 hours on either side. He further stated
that the injuries found on the person of
Ranvir could be manufactured. The injury
No.
1
of
Veerpal
can
also
be
manufactured/manipulated by touch of
some heated iron object, however, injury
nos. 2, 3, 4 and 5 can very well be
manufactured.

12. Veerpal Sharma (P.W.-2) is the
first informant of the case and injured
witness. He, in his testimony has stated that
the incident had taken place about one and
half year back at about 11:30 p.m. in the
khalian where Ranvir and Satyadev were
also present. It was a moon lit night, when
Khajan, Shamshad, Hanif, Ramji Lal, Edal
and Habib reached khalian. Khajan and
Shamshad were having country made pistol,
Hanif and Ramji Lal were having farsa, Edal
was having ballam and Habib was having a
lathi. On their reaching, Khajan stated to kill
him by opening fire and with an intention to
assault, opened fire, however it missed the
target then Habib armed with lathi and Edal
armed with ballam started assaulting him
from the reverse side of the ballam. Hanif
and Ramji Lal asked Shamshad to assault
him, on which Shamshad opened fire by a
country made pistol, consequent to which,
he received injuries on his head. Hanif and
Habib armed with lathi also caused injuries
to him and Ranvir also received injuries,
who was hit by Habib with lathi. On raising
alarm, number of witnesses reached there,
however the assailants escaped.

13. It is further stated that father of
appellant Edal had instituted a case under
Section 307 IPC against him, in which,
about one month and ten days back he was
acquitted of the said offence, consequent to
which, Edal was having enmity with him
and on account of which he was assaulted by
the
accused
persons.
During
cross
examination, he stated that a case under
Section 307 IPC was instituted against him,
in which, he alongwith Amar Singh and
Mohan were accused, in which, he has been
acquitted, Habib was a witness in the said
case. On the day of incident, he was present
in the khalihan from the very morning
alongwith Ranvir. His son reached the
khalian at 7 a.m. bringing his food and did
not return back home. The day of incident
was a moon lit night, however, after one and
a half hours of the incident it became dark.
He had disclosed to the Investigating Officer
that at the time when assailants reached
5 All. State Vs. Khajan
1035
there, he was sitting on the cot and Khajan
opened fire upon him. After the said fire,
two assailants started assaulting him with
lathi by giving four blows each, however he
did not fell on the cot and stood up. When
Hanif exhorted Shamshad to open fire, he
fired a shot, however, he did not fell down
but bent down. Fire shot by Khajan did not
hit him. It is true that Khajan first fired upon
him but it did not hit him then two other
assailants hit him by a lathi and ballam and
then Shamshad fired upon him. He did not
state to the Investigating Officer that after
Shamshad opened fire then he was assaulted
by lathi and ballam. The said incident
continued for about 5-6 minutes, however
no blood fell on the cot or on the wearing
apparels and only a very little blood oozed
out from his head injury.

14. He did not find any pellets at the
place of incident nor any blood and further
denied the suggestion that he was not fired
upon by a country made pistol and the
injuries were manufactured. Injuries of
Ranvir also did not bleed. It is wrong to state
that he has lodged the report in collusion
with the police. The injuries were examined
at 9 a.m.

15. Ranvir Singh (P.W.-3) is the
other eye witness and he stated that on the
fateful night at about 11 p.m., he alongwith
Veerpal and Satyadev were present at the
khalian when Khajan, Shamshad, Hanif,
Habib, Ramji Lal and Edal reached there,
Veerpal questioned as to who it was, then
Khajan stated to kill him and fired a shot,
however, the shot did not hit Veerpal.
Thereafter Habib and Edal started assaulting
Veerpal by lathi and reverse side of the
ballam. Then Hanif exhorted Shamshad to
open fire, who shot a fire, which grazed
through the head of Veerpal. He along with
Veerpal received injuries. The witnesses
were identified in moon light, who ran away
towards the river. Khajan and Shamshad
were having country made pistol, Hanif and
Ramji Lal were having farsas, Edal was
having ballam and Habib was having lathi.
His injuries were examined by the doctor.

16. During cross examination, he
stated that the report in respect of incident
was scribed by Om Prakash in moon light.
Veerpal injuries were seen by Moharrir.
Veerpal injuries were caused by firearm.
Veerpal was not wearing clothes smeared
with blood. A very little blood oozed out
from his wound. Shamshad fired upon
Veerpal in a standing position facing each
other from the distance of 2-3 paces.
Shamshad first hit and then others hit.
Veerpal was given 3-4 lathi blows. He was
interrogated by the Investigating Officer
after 8-10 days of the incident. He further
stated that it is wrong to state that no
incident took place and he received injuries.

17. Diwan Singh (P.W.-4) is the
Investigating Officer of the instant case, who
has recorded the statement of the witnesses
and prepared the site plan and after concluding
the investigation, had submitted charge sheet.
During cross examination, he stated that
Veerpal in his statement under Section 161
Cr.P.C. had disclosed that all the assailants
came near him and stated to kill Veerpal then
Khajan opened fire, which did not hit him and
he narrowly escaped then all the accusedpersons exhorted Shamshad to kill him,
consequent to which, Shamshad opened fire
though he bent down but still pellets hit his
head. Hanif and Ramji Lal stood there holding
farsa whereas Edal and Habib assaulted him
by lathi and reverse side of the ballam.

18. Thereafter, statement of accused
persons under Section 313 Cr.P.C. has been
recorded by putting all the incriminating
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances to the accused-respondents.
The
accused-respondents
denied
the
incident and clearly stated that on account of
past enmity, they have been falsely
implicated, however the defence has not led
any
evidence. The
trial
court
after
appreciating the evidence and material on
record has held that the prosecution has
failed to prove its case against the accusedrespondent and thus acquitted all the
accused-respondent by holding that rest of
the accused except Ramji Lal are neither the
relatives of Edal with whom victim Veerpal
was having serious enmity but they are not
even their friends and had no animosity with
him, however just on account of fact that
Veerpal was an accused in a case of attempt
to murder of Manik father of Edal, in which
case he had been acquitted just one month
before and, as such, in order to settle their
scores and to teach a lesson to Edal he has
been falsely implicated in the present case.
The trial court further stated that the
accused-respondent is alleged to have
opened fire upon the victim from a distance
of 2-3 paces, however he received only a
grazing injury on his head though he is said
to have bent down when the fire was made.
The trial court has further held that even
Edal was armed with ballam but he is said to
have assaulted Veerpal from its reverse side.
Further Hanif and Ramji Lal though armed
with farsa but they did not wield any farsa
blow on him and merely stood there as a
spectator, which circumstance appears to be
highly improbable in the facts and
circumstance of the case and creates a dent
in the prosecution story.

19. The trial court has further held
that even doctor, who noted the injuries on
the person Veerpal pointed out that except
injury No. 1, all the injuries of Veerpal are
simple in nature. Even injury No. 1 is too
superficial and could not necessarily be
caused by firing. If the injury had been
caused by pellets, some pellets could have
been found in the injury but no X-ray was
done. Even the doctor, who had examined
the injuries has opined that the said injuries
could
be
manipulated/manufactured.
Admittedly, accused-respondents are said to
have assaulted the victim, who were armed
with lethal weapons like farsa, ballam, lathi
and country made pistol but none of the
injuries found on the person of the victim is
grievous in nature and even the ballam is
said to be used from the reverse side, as
such, the prosecution story is found to be
highly doubtful, on the basis of which, the
accused-respondents are liable to be
acquitted. Furthermore, firing was made
only from a distance of 2-3 paces after
extending their hands, yet only a grazing
injury is said to have been caused to the
victim, which in the facts and circumstances
of the case appears to be highly improbable
and not worth credence.

20.

Learned
Additional
Government Advocate for the State has
submitted that the testimony of P.W.-2 and
P.W.-3, who are injured witnesses, inspires
confidence and as such, their testimony
cannot be lightly discarded. The assailants
were known to witnesses P.W.1 and P.W. 2
and, as such, in the moon light they have
been identified to have caused injuries. The
medical
examination
report
also
corroborates the prosecution story and
injury No. 1 caused to Veerpal cannot be self
inflicted and therefore, the finding of
acquittal recorded by the trial court is wholly
illegal and liable to be set aside.

21. Per contra, learned counsel for
the accused-respondent has submitted that
Veerpal was an accused in an attempt to
murder case of Manik, father of Edal,
however, only about one and a half month
5 All. State Vs. Khajan
1037
back, he was acquitted in the said case and
after his acquittal Veerpal in order to settle
his scores and to teach a lesson to Edal and
his
witnesses,
concocted
the
present
prosecution story and by manufacturing the
injuries falsely implicated the accused
respondents in the said case. Even witnesses
of the aforesaid case and their relatives have
been falsely implicated in the instant case.
He has further submitted that the manner, in
which, incident is said to have taken place
and the injuries, which is said to have been
caused to the injured do not match and infact
are
self
inflicted,
manipulated
and
manufactured, just with an intention to
falsely implicate the accused-respondent as
held by the trial court.

22. Learned counsel for the
accused-respondents has further submitted
that only one fire arm injury is said to have
been received by Veerpal on his head when
he bent down to rescue him, however if we
go through the nature of the said injuries
then possibility of said injury being
manufactured or manipulated or self
inflicted cannot be ruled out. Admittedly,
even according to the statement of the
witnesses, a very little blood oozed out from
the said wound, which in normal course is
not possible particularly when he is said to
have been hit by a fire arm causing a pellet
injury hitting his head. Even the doctor in his
statement has stated that the said injury
could be manufactured or manipulated.

23. Learned counsel for the
accused-respondent has further submitted
that there are material contradictions in the
statement of P.W.-2 and P.W.-3 regarding
manner of incident. Accused Hanif and
Habib are cousins and Shamshad is their
nephew. Since Habib was a witness in the
case under Section 307 IPC and, as such,
they have been falsely implicated. Even
Edal and Ramji Lal are also cousins and
were on inimical terms with Veerpal as he
was prosecuted for the offence of attempt to
murder of Manik, father of Edal in which
Habib was a witness and in the backdrop of
the
said
circumstance,
the
accused
respondent has been falsely implicated.

24. The trial court after making a
detail discussion and considering each and
every aspect of the matter, has rightly
recorded the finding of acquittal, which as
per settled proposition of law, cannot be said
to be perverse, illegal and impossible as held
by the Hon'ble Supreme Court in several of
its decision.

25. Having considered the rival
submissions made by the learned counsel for
the parties and taking into consideration the
evidence adduced before the trial court, the
prosecution case is that in the night at 11-30
p.m. Accused-persons, who were six in
numbers reached at the khalian of the victim
Veerpal and a shot was fired by accusedrespondent Khajan, however, it missed the
target, though it is said to have been fired
from a distance of 2-3 paces. Moreover, the
victim Veerpal have been assaulted by
Habib with lathi and Edal from the reverse
side of the ballam, which injuries are too
superficial. It is further stated that on the
exhortation of Hanif and Ramji Lal as per
the statement of P.W.-2, Shamshad opened
fire, which hit him on his head though P.W.
2 in his statement stated that all the accused
persons exhorted to open fire. It is further
stated that servant Ranvir was also
assaulted, who too received simple injury on
his person.

26. Now when we go through the
injuries of the two injured persons, we find
that their injuries are simple in nature and
even as per the doctor opinion, the injuries
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
may be manipulated, manufactured or self
inflicted. Only an injury said to be caused on
the head of the victim Veerpal by firing from
a country made pistol is noteworthy,
however if we carefully look to the nature of
the said injury, it also appears to be
manipulated as admittedly even according to
the prosecution own case, a very little blood
oozed out from the said wound, which in our
opinion, is not possible looking to the
firearm injury allegedly caused to him. Had
the said injury been caused by a pellet
hitting his head, then blood would have
considerably oozed out but even according
to the prosecution own case, a very little
blood oozed out, which neither fell on his
clothes nor any blood was found on the cot
nor any pellet or wad was recovered at the
place of incident. To quote:

"यह झगडर करीब 5-6 दर्नट हुआ थर चररपरई यर पहने
हुए कपडो पर खून नहीं दगरर थर र्ेरे सर की चोट से थोडर सर खून
दनकिर थर यह र्ैने नहीं िेखर दक र्ौके पर छरे दगरे थे यर नहीं, र्ैने
खोखर कररतूस िी नहीं िेखर।"
The said circumstance particularly
creates a serious dent in the prosecution
story and, in our opinion, makes it highly
doubtful as held by the trial court.

27. Admittedly, even according to
the prosecution own case, victim Veerpal
was an accused in an attempt to murder case
of Manik father of Edal, in which, very
recently about one month back, he was
acquitted of the said charge and the
possibility that in order to settle personal
scores and teach a lesson to Edal son of
Manik and the witnesses of the said case,
who have also been made an accused in the
instant case and their close relatives have
been falsely implicated. It is well settled
principle of law that prior enmity cuts both
ways. It may be motive for the commission
of the crime but at the same time can well be
used for false implication. Thus, in the
backdrop
of
the
said
facts
and
circumstances, false implication of the
accused-respondents cannot be ruled out.

28. The trial court by impugned
judgment and order has considered each and
every aspect of the matter and has passed an
order acquitting the accused, which in our
opinion is just, proper and legal. It is well
settled principle of law that there is a
presumption of innocence in favour of the
accused, which further has been concretised
by recording the finding of acquittal against
the accused-respondent.

29. The law with regard to
interference by the Appellate Court is very
well crystallized. Unless the finding of
acquittal is found to be perverse or
impossible, interference with the same
would not be warranted. Though, there are a
catena of judgments on the issue, we will
only refer to two judgments, which are as
reproduced below:

"13. In case of Sadhu Saran Singh
vs. State of U.P. (2016) 4 SCC 397, the
Supreme Court has held that:-
"In an appeal against acquittal
where the presumption of innocence in
favour of the accused is reinforced, the
appellate Court would interfere with the
order of acquittal only when there is
perversity of fact and law. However, we
believe that the paramount consideration of
the Court is to do substantial justice and
avoid miscarriage of justice which can arise
by acquitting the accused who is guilty of an
offence. A miscarriage of justice that may
occur by the acquittal of the guilty is no less
than from the conviction of an innocent.
Appellate Court, while enunciating the
principles with regard to the scope of
powers of the appellate Court in an appeal
against acquittal, has no absolute restriction
5 All. State Vs. Khajan
1039
in law to review and relook the entire
evidence on which the order of acquittal is
founded."
14. Similar, in case of Harljan
Bhala Teja vs. State of Gujarat (2016) 12
SCC 665, the Supreme Court has held that:-
"No doubt, where, on appreciation
of evidence on record, two views are
possible, and the trial court has taken a view
of acquittal, the appellate court should not
interfere with the same. However, this does
not mean that in all the cases where the trial
court has recorded acquittal, the same
should not be interfered with, even if the
view is perverse. Where the view taken by
the trial court is against the weight of
evidence on record, or perverse, it is always
open far the appellate court to express the
right conclusion after re-appreciating the
evidence if the charge is proved beyond
reasonable doubt on record, and convict the
accused."

30. This Court in the case of Rajesh
Prasad v. State of Bihar and Another
encapsulated the legal position covering the
field after considering various earlier
judgments and held as below: -

"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
[Chandrappa v. State of Karnataka, (2007)
4 SCC 415]
"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,
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 reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as,
"substantial and compelling reasons",
"good and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere
with acquittal than to curtail the power of
the court to review the evidence and to come
to its own conclusion.
(4) An appellate court, however,
must bear in mind that in case of acquittal,
there is double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly,
the accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by
the trial court.
(5) If two reasonable conclusions
are possible on the basis of the evidence on
record, the appellate court should not
distrub the finding of acquittal recorded by
the trial court."

31. Thus, it is beyond the pale of
doubt that the scope of interference by an
appellate Court for reversing the judgment
of acquittal recorded by the trial Court in
favour of the accused has to be exercised
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
within the four corners of the following
principles:-

1. That the judgment of acquittal
suffers from patent perversity;
2. That the same is based on a
misreading/omission to consider material
evidence on record;
3. That no two reasonable views are
possible and only the view consistent with
the guilt of the accused is possible from the
evidence available on record.

32. The appellate Court, in order to
interfere with the judgment of acquittal
would have to record pertinent findings on
the above factors if it is inclined to reverse
the judgment of acquittal rendered by the
trial Court.

33. In view of the above settled
principles of law and after examining the
present case, we find that the first informant
and the accused-respondents were on highly
inimical terms. Even possibility of the
injuries being self inflicted/manipulated or
manufactured by the injured persons cannot
be completely ruled out as rightly held by
the trial court. All the injuries caused to two
injured Veerpal and Ranvir are simple in
nature. Even the injury on his head cannot
be caused in the manner as described by the
injured witness Veerpal by a fire arm hitting
his head only a very little blood coming out
from his wound creates serious dent in the
prosecution story and makes it unreliable.
The possibility of the said injury being
manipulated as opined by the doctor (P.W.-
1) cannot be ruled out.

34. In our opinion, the trial court
has passed well reasoned and detailed order,
which in view of settled principle of law
regarding reversal of acquittal needs no
interference by this Court. The view taken
by the trial court cannot be said to be
perverse, impossible and illegal and, as
such, present Government Appeal filed by
the State has no force and is accordingly
dismissed.

35. Trial court's record be remitted
back forthwith
----------
(2024) 5 ILRA 1040
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Government Appeal No. 1974 of 1983

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

Counsel for the Appellant:
A.G.A., Sri B.P. Gupta, Sri Bhagwat Prasad, Sri
Prakhar Srivastava, Sri S.N. Mulla

Counsel for the Respondent:
Sri T. Rathore, Sri Archit Mandhyan, Sri
Markanday Singh, Sri Nikhil Kumar, Sri Pramod
Kumar Vishwakarma, Sri Rishabh Kumar Sri S.S.
Rathore

Criminal Law-Indian Penal Code-1860Sections 324, 307, 300 & 302- Government
Appeal against the judgment and order whereby
the accused-respondents have been acquitted of
the charges leveled against them- A fight
(Maarpeet) between the members of prosecution
and the defence, in which members of both sides
have caused injuries to each other in their private
defence- That the accused persons exceeded
their right of private defence by causing two
injuries to the deceased Jagarnath by lathi and
knives as well as by causing three injuries to the
other deceased Nand Lal by knives and lathi and
as many as five injuries to the first informant by
lathi and knives as also causing one injury of
spear to P.W.-4- On the other-hand both the