# The State of U.P v. Durga Prasad & Ors

- **Citation:** (2022) 10 ILRA 1213
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-12
- **Case number:** Government Appeal No. 2450 of 1986
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-v-durga-prasad-ors-47689
- **Pages:** 24

## Headnote

A. Criminal Law - Acquittal - Indian Penal
Code, 1860 - Sections 147, 304, 149 & 323
- Code of Criminal Procedure, 1973 -
Section 378 - Scope of Interference - The
reasons for interfering in the judgment of
acquittal
should
be
compelling
and
substantive
in
order
to
prevent
miscarriage of justice through the parties.
This Court while exercising jurisdiction can only
interfere and grant indulgence in the judgment
and the order of acquittal when it is palpably
perverse, there has been complete misreading
of the evidences so sought to be adduced and it
proceeds towards a wrong directions so as to
indicate that the view taken by the learned Trial
Court is a view which cannot be perceived by a
prudent person. (Para 16)

B. It is well settled that it is not necessary
for the defence to prove its case with the
same rigour as the prosecution is required
to prove its case, and it is sufficient if the
defence
succeeds
in
throwing
a
reasonable doubt on the prosecution case
which is sufficient to enable the Court to
reject the prosecution version. (Para 36)

In almost all criminal cases, the bloodstained
earth found from the place of occurrence is
invariably sent to the Chemical Examiner and his
report along with the earth is produced in the
Court, and yet this is one exceptional case
where this procedure was departed from for
reasons best known to the prosecution. This
also, therefore, shows that the defence version
may be true.

The IO has specifically deposed that he had not
taken the bloodstained earth on the day he was
assigned the investigation (i.e. 11.07.1982). He
further could not justify in his St.ment as to why
he did not take the St.ment of the injured
(deceased). He has deposed that he had not
gone to the field in order to determine the fact
as to whether the crops were destroyed while
grazing by the accused or not. This stand taken
by the IO coupled with the fact that there is a
serious cloud over the incident which
occurred
in
the
agricultural
field
generating the commission of the alleged
offence does not link the accused to have
committed offence. (Para 35)

C. Enmity is a two sided dagger and one of the
basis of commission of crime being the motive
but the prosecution if, is taking aid of the
device of motive, has to prove it beyond
doubt so as to give the opportunity to the
defence to despell the same. (Para 39)

There was an enmity between the parties and
election took place only three days before the
incident and son (Vidyasagar) of the deceased
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
who defeated Pradhan had taken PW 1
Rajendra Prasad to lodge FIR at Police Station.
This Court finds that though on one hand
motive is being sought to be assigned as a basis
for commission of the crime but non implication
of the Pradhan itself creates a suspicion and
cloud
over
the
prosecution
theory
pertaining to the offence which has ri

## Text

_Characters 0–39,999 of 79,647. This is a partial read: ask again with offset=39999 for what follows._

10 All. The State of U.P. Vs. Durga Prasad & Ors.
1213
the present case, we have no option but to
concur with the view taken by the learned
Sessions Judge.

63. We find that it is not a case worth
granting leave to appeal. The application
for granting leave to appeal is rejected.

64. Since the leave to file the appeal
has not been granted, consequently, present
government appeal also stands dismissed.

65. Records of the present case be
sent back to the concerned court below.
----------
(2022) 10 ILRA 1213
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2022

BEFORE

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

Government Appeal No. 2450 of 1986

The State of U.P. ...Appellant
Versus
Durga Prasad & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Sri I.M. Khan, Sri A.B.L. Gaur, Sri Madhukar
Maurya, Sri Rahul Mishra, Sri Sandeep
Kumar

A. Criminal Law - Acquittal - Indian Penal
Code, 1860 - Sections 147, 304, 149 & 323
- Code of Criminal Procedure, 1973 -
Section 378 - Scope of Interference - The
reasons for interfering in the judgment of
acquittal
should
be
compelling
and
substantive
in
order
to
prevent
miscarriage of justice through the parties.
This Court while exercising jurisdiction can only
interfere and grant indulgence in the judgment
and the order of acquittal when it is palpably
perverse, there has been complete misreading
of the evidences so sought to be adduced and it
proceeds towards a wrong directions so as to
indicate that the view taken by the learned Trial
Court is a view which cannot be perceived by a
prudent person. (Para 16)

B. It is well settled that it is not necessary
for the defence to prove its case with the
same rigour as the prosecution is required
to prove its case, and it is sufficient if the
defence
succeeds
in
throwing
a
reasonable doubt on the prosecution case
which is sufficient to enable the Court to
reject the prosecution version. (Para 36)

In almost all criminal cases, the bloodstained
earth found from the place of occurrence is
invariably sent to the Chemical Examiner and his
report along with the earth is produced in the
Court, and yet this is one exceptional case
where this procedure was departed from for
reasons best known to the prosecution. This
also, therefore, shows that the defence version
may be true.

The IO has specifically deposed that he had not
taken the bloodstained earth on the day he was
assigned the investigation (i.e. 11.07.1982). He
further could not justify in his St.ment as to why
he did not take the St.ment of the injured
(deceased). He has deposed that he had not
gone to the field in order to determine the fact
as to whether the crops were destroyed while
grazing by the accused or not. This stand taken
by the IO coupled with the fact that there is a
serious cloud over the incident which
occurred
in
the
agricultural
field
generating the commission of the alleged
offence does not link the accused to have
committed offence. (Para 35)

C. Enmity is a two sided dagger and one of the
basis of commission of crime being the motive
but the prosecution if, is taking aid of the
device of motive, has to prove it beyond
doubt so as to give the opportunity to the
defence to despell the same. (Para 39)

There was an enmity between the parties and
election took place only three days before the
incident and son (Vidyasagar) of the deceased
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
who defeated Pradhan had taken PW 1
Rajendra Prasad to lodge FIR at Police Station.
This Court finds that though on one hand
motive is being sought to be assigned as a basis
for commission of the crime but non implication
of the Pradhan itself creates a suspicion and
cloud
over
the
prosecution
theory
pertaining to the offence which has rivalry
of Pradhan as the basis of commission of
crime. (Para 37)

D. Merely because there has been delay in
recording the St.ment of the prosecution
witnesses by the IO does not ipso facto
renders it to be fatal to the prosecution
case but there has to be an explanation so
as to suggest as to what was the reasons
occasioned in delay in recording the
St.ment of the prosecution witnesses.

In the present case, the IO had the due
opportunity to get recorded the St.ments of the
prosecution witness so as to eliminate the
chances of any soliciting or tutoring but there
was no reason assigned for delay in recording
the St.ment of the prosecution witness. (Para
44)

E. Conflict between the prosecution case
and medical evidence - If there is
inconsistency or discrepancy between
the medical evidence and the direct
evidence or between medical evidence
of two doctors, one of whom examined
the
injured
person
and
the
other
conducted postmortem on the injured
person after his death or as to the
injuries, then in criminal cases, the
accused is given the benefit of doubt,
and let off. Where the direct testimony is
found untrustworthy, conviction on the basis
of medical evidence supported by other
circumstantial evidence can be done, if that is
trustworthy. (Para 48, 49)

The Hon'ble Apex Court has gone to the issue
relating to the food which the deceased ate
and
condition
whether
the
same
was
digested, undigested or semi-digested in
order to determine the actual time of death
and while considering the same, determined
the veracity of the prosecution theory. (Para
48)
In the present case learned trial Court has
concluded that by no stretch of imagination the
semi digested food could be in stomach when
the incident took place at 5:00 in the evening.
(Para 50)

The prosecution could not prove the
commission of the offences by the accused
herein beyond doubt. This Court cannot
substitute the views so taken by the learned
Trial Court once the same is not actuated by
perversity. (Para 52)

1) In the FIR there has been no specific role
assigned to the accused herein particularly
when the first informant being PW 1 Rajendra
Prasad happened to be the son of the deceased
and also an eye witness.
2) How could the narration of the facts while
travelling in bullock cart before the journey yet
to be commenced was recited in the written
complaint.
3) Involvement of Durga Prasad in the
commission of the crime who is St.d to be aged
about 70-75 years chasing Rajendra Prasad and
administering beating with a wooden stick
despite presence of other accused.
4) Non-resistance of Rajendra Prasad (PW 1) for
an hour while permitting accused Prem Narayan
to graze the agricultural field and destroy the
crops.
5) Delay in recording of the St.ments of the
prosecution witness. (Para 51)

Appeal dismissed. (E-4)

Precedent followed:

1. Ravi Sharma Vs St. Government of N.C.T. of
Delhi & anr., Criminal Appeal No. (S). 410411/2015, decided on 11.07.2022 (Para 17)

2. Lakshmi Singh & ors. Vs St. of Bihar, (1976) 4
SCC 394 (Para 36)

3. Maruti Rama Naik Vs St. of Mah., (2003) 10
SCC 670 (Para 41)

4. Jagjit Singh @ Jagga Vs St. of Pun., (2005) 3
SCC 689 (Para 42)

5. V.K. Mishra & anr. Vs St. of Uttarakhand &
anr., (2015) 9 SCC 588 (Para 43)
10 All. The State of U.P. Vs. Durga Prasad & Ors.
1215
6. Shivaji Sahabrao Bobade & anr. Vs St. of
Mah., (1973) 2 SCC 793 (Para 46)

7. Ram Narain Singh Vs St. of Pun., (1975) 4
SCC 497 (Para 47)

8. Sanjay Khanderao Wadane Vs St. of Mah.,
(2017) 11 SCC 842 (Para 49)

Present
Government
Appeal
assails
judgment and order dated 03.06.1986,
passed by Additional Sessions Judge,
Fatehpur.

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

1. Challenge in this appeal u/s 378 of
code
of
Criminal
Procedure
1973
(hereinafter referred to as Cr.P.C.) is made
to the judgment and order dated 03.06.1986
passed by Additional Sessions Judge,
Fatehpur in Sessions Trial No. 211/1983
(State Vs. Durga Prasad and Others) u/s
147, 304/149, 323/149 IPC, P.S. Ghazipur,
District Fatehpur acquitting the accused
herein.

2. This appeal was initially filed while
arraying as many as seven accusedrespondents.
However,
the
accusedrespondents nos. 1, 2 and 4 during the
pendency of the present appeal expired.
Accordingly, the present appeal stood
abated against the accused-respondents nos.
1, 2 and 4.

3. Factual matrix of the case so
interwoven in the present appeal centres
around with an allegation that a written
report/complaint
was
submitted
on
10.07.1982 by the first informant being
Rajendra Prasad S/o Chandra Bhushan
Prasad R/o Village Kewai, P.S. Ghazipur,
District Fatehpur before the Police Station
Ghazipur,
District
Fatehpur
with
an
allegation that the accused herein who were
seven in number at the time of the filing of
the appeal had committed offences at 12 in
the noon on 10.07.1982 when the first
informant being Rajendra Prasad along
with his brother Virendra had gone along
with the cattle in the agriculture field which
was owned by them near the tube well in
Kolanhar. Agriculture crop being paddy
was cultivated and the same was in matured
condition. However, at 05:00 in the
evening on the fateful day i.e. 10.07.1982
the
accused-respondent
no.
5
Prem
Narayan S/o Mishri Lal who was grazing
his cattle trenched in the agricultural field
along with cattle and trampled the paddy
and the sugar cane crop so present therein
causing destruction. Protest was sought to
be made by the first informant Rajendra,
however, the same was not liked by the
accused Prem Narayan and he hurled
abuses upon the first informant. From there
the first informant along with his cattle
straight away went to the house of the Prem
Narayan raising protest. Prosecution further
alleges that the said protest was not
accepted however, rather to the contrary at
that point of time Durga Prasad S/o Kali
Charan, Mishri Lal S/o Durga Prasad
committed the role of extortion while
instigating the accused Dhunnu, Jagat
Narayan and Prem Narayan and in turn
they instigated the brother Ram Kumar and
nephew Santosh Kumar S/o Mewa Lal.
Thereafter, all the accused aided with
wooden stick chased the first informant
Rajendra Prasad and the first informant run
away and when he reached near the main
gate of the house of Jiya Lal then the
accused gave a blow with the wooden stick
upon the first informant and witnessing the
same the elder brother of the first informant
Bajrang Prasad and his father Chandra
Bhushan came forward to rescue the first
informant,
however
they
were
also
administered blow with the aid of wooden
stick pursuant whereto they fell down and
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
witnessing the said incident Ram Lal
Tiwari S/o Devi Lal and Bishun Dayal S/o
Bhikuyuwa and Lakhan S/o Devi Lal came
to rescue however, on account of the
onslaught of administering wooden stick,
the father of the first informant Chandra
Bhusan became unconscious and so much
so the first informant Rajendra and his
elder brother Bajrang Prasad also sustained
injuries and thereafter they took their father
Chandra Bhushan in a bullock cart to the
police station for lodging of written
complaint.

4. On the basis of the written
complaint so submitted by the first
informant Rajendera Prasad FIR was
lodged on 10.07.1982 at 21:20 hours
against the accused herein u/s 147/308/323
IPC. The injured was sent to District
Hospital, Fatehpur. The first informant
being Rajendra Prasad and his brother
Bajrang and father Chandra Bhuhan were
medically examined by Dr. V.K. Tripathi,
Medical Officer who was on duty at 02:30
am
and
02:40
am
on
11.07.1982.
According to the prosecution Chandra
Bhushan who happened to be the father of
the fist informant, who was in unconscious
situation was admitted in the hospital
where he succumbed to injuries at 03:45
am on 11.07.1982.

5. Prosecution alleges that after the
death of Chandra Bhushan G.D. Ex. Ka-10
was entered and the Sub-Inspector was
deputed for completing the formalities for
inquest and accordingly, Panchayatnama
was prepared. The dead body of the
deceased was sent for postmortem which
was put to scrutiny by Dr. U.S. Tiwari, who
conducted the postmortem on 11.07.1982 at
05:50 in the evening. As Chandra Bhushan
died so the penal section which found its
presence in FIR so lodged by the first
informant on 10.07.1982 at 21:20 hours
was transformed into section 147/304/323
IPC.

6. ne S.I. Sri Ram Dayal Singh was
nominated as the Investigating Officer who
claims to have recorded the statement of
prosecution witnesses. I.O. Sri Ram Dayal
Singh after recording the statements of the
prosecution witnesses and also completing
the formalities which are to be conducted
during
the
course
of
investigation
submitted charge sheet u/s 147, 304, 149
and 323 IPC.

7. The case was committed to
Sessions.

8. Charges were read over to the
accused. Accused pleaded non-guilty and
claimed to be tried.

9. The prosecution in order to bring
home the charges the following prosecution
witnesses were produced:-

1.
Rajendra Prasad
P.W.1
2.
Bajrang Prasad
P.W.2
3.
Ram Lal
P.W.3
4.
S.I.
Ram
Dayal
Singh
P.W.4

10. The defence in order to
substantiate its stand has submitted various
documents being:-

1.
Copy of the affidavit of Bajrang
Prasad filed in connection with bail
application
2.
Order of S.D.M. dated 16.03.1982 in
case u/s 107, 116 Cr.P.C.
10 All. The State of U.P. Vs. Durga Prasad & Ors.
1217
3.
Chalani Report against Chandra
Bhushan,
Bajrang
Prasad,
Ram
Gopal, Ram Lal
4.
Copy of Surety Bond
5.
Ex.Kha 7, Copy of order of corss
case u/s 107 Cr.P.C.
6.
Ex. Kha 8, Copy of Chalani Report
7.
Ex. Kha 9, State of Mewa Lal
8.
Ex. Kha 10, Copy of the Order
9.
Ex. Kha 11, Mark Sheet of High
School Examination

11. The learned trial court by virtue of
judgment and the order under challenge has
acquitted the accused herein.

12. Challenging the same, now the
State of U.P. is before this Court in the
proceedings purported to be u/s 378 of the
Cr.P.C.

13. We have heard Sri Indra Pal Singh
Rajpoot, learned A.G.A. for the Stateappellant and Sri Madhukar Maurya, learned
counsel for the surviving accused respondent
nos. 3, 5, 6 and 7.

14. Sri Indra Pal Singh Rajpoot, learned
A.G.A. in support of the appeal has made
manifold submissions namely:-

(a). The learned trial court has
committed manifest illegality in acquitting the
accused herein while completely misreading
the evidence available on record as the present
case was a case wherein there was a prompt
FIR, disclosing offences committed by the
accused herein as they had been specifically
marked in the FIR assigning roles.

(b). The prosecution witnesses
has supported the occurrence of the
incident that too by the accused and there
was ample evidence available on record so
as to pointedly mark the accused to have
committed the crime.

(c). There was clear cut motive
attributed upon the accused herein for
commission of crime which itself was
catalyst for doing the acts which not only
injured the P.W. 1 and P.W. 2 but also took
the life of their father Chandra Bhushan, the
deceased.

(d). Merely because, there are
minor contradictions in the statements of the
prosecution witnesses the same could be a
ground to acquit the accused herein once the
other factors consistently proves that the
accused had committed the crime.

15. Sri Madhukar Maurya, learned
counsel for the surviving accused respondents
has made the following submissions:-

(a). FIR in question is anti-timed
and the accused have been falsely roped in in
the present criminal case.

(b). No specific role has been
assigned in the FIR but as an after thought
different
role
has
been
assigned
for
commission of crime by the accused which is
nothing but a case of improvement.

(c).
There
are
material
contradictions in the statement of the
prosecution
witnesses
which
itself
demolishes the prosecution theory.

(d). There was no such motive
which could be the basis for commission of
the crime as alleged by the prosecution.

(e). Judgment and the order of
acquittal is based upon correct appreciation
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
of the prosecution testimony and evidences
so adduced which does not need any
interference at the stage.

16. Before embarking upon the
validity and the legality of the judgment
and the order of acquittal passed by the
learned trial court, this Court is to bear in
mind the fact that this Court is occasioned
to deal with the judgment and the order of
acquittal in an appellate jurisdiction that to
under section 378 of Cr.P.C. To put it
otherwise, there are certain limitations
which have to be noticed and kept in mind
that while exercising appellate jurisdiction,
as this Court while exercising appellate
jurisdiction can only interfere and grant
indulgence in the judgment and the order of
acquittal when it is palpably perverse, there
has been complete misreading of the
evidences so sought to be adduced and it
proceeds towards a wrong directions so as
to indicate that the view taken by the
learned trial court is a view which cannot
be perceived by a prudent person. The
reasons for interfering in the judgment of
acquittal
should
be
compelling
and
substantive in order to prevent miscarriage
of justice through the parties.

17. The Hon'ble Apex Court in the
recent judgment in the case of Criminal
Appeal No (S). 410-411/2015 (Ravi
Sharma Vs. State (Government of N.C.T.
of Delhi) & Anr.) decided on 11.07.2022
in paragraph nos. 8 and 9 has held as
under:-

"8. Before venturing into the
merits of the case, we would like to
reiterate the scope of Section 378 of the
Code of Criminal Procedure (for short
''Cr.P.C.') while deciding an appeal by the
High Court, as the position of law is rather
settled. We would like to quote the relevant
portion of a recent judgment of this Court
in Jafarudheen and Others v. State of
Kerala (2022 SCC Online SC 495) as
follows:

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

9. This Court in the aforesaid
judgment has noted the following decision
while laying down the law:

Precedents:

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

"20. Section 378 CrPC enables
the State to prefer an appeal against an
order of acquittal. Section 384 CrPC
speaks of the powers that can be exercised
by the Appellate Court. When the trial
court renders its decision by acquitting the
accused, presumption of innocence gathers
strength before the Appellate Court. As a
consequence, the onus on the prosecution
becomes more burdensome as there is a
double
presumption
of
innocence.
10 All. The State of U.P. Vs. Durga Prasad & Ors.
1219
Certainly, the Court of first instance has its
own advantages in delivering its verdict,
which is to see the witnesses in person
while they depose. The Appellate Court is
expected to involve itself in a deeper,
studied scrutiny of not only the evidence
before it, but is duty bound to satisfy itself
whether the decision of the trial court is
both possible and plausible view. When two
views are possible, the one taken by the
trial court in a case of acquittal is to be
followed on the touchstone of liberty along
with the advantage of having seen the
witnesses. Article 21 of the Constitution of
India also aids the accused after acquittal
in a certain way, though not absolute.
Suffice it is to state that the Appellate Court
shall remind itself of the role required to
play, while dealing with a case of an
acquittal.

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

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

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

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

"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. [(1984) 4 SCC 635], Excise
&
Taxation
Officer-cum-Assessing
Authority v. Gopi Nath & Sons [1992 Supp
(2) SCC 312], Triveni Rubber & Plastics v.
CCE [1994 Supp (3) SCC 665], Gaya Din
v. Hanuman Prasad [(2001) 1 SCC 501],
Aruvelu v. State, [(2009) 10 SCC 206] and
Gamini Bala Koteswara Rao v. State of
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
A.P. [(2009) 10 SCC 636])." It is further
observed, after following the decision of
this Court in Kuldeep Singh v. Commr. of
Police [(1999) 2 SCC 10], 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.

14.3. In the recent decision of
Vijay Mohan Singh v. State of Karnataka,
[(2019) 5 SCC 436], this Court again had
an occasion to consider the scope of
Section 378 CrPC and the interference by
the High Court [State of Karnataka v. Vijay
Mohan Singh, 2013 SCC OnLine Kar
10732] 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:

"31. An identical question came
to be considered before this Court in
Umedbhai Jadavbhai v. State of Gujarat,
[(1978) 1 SCC 228]. 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 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:

''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, [(1998) 5 SCC 412], 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:

''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
Doshi case [Ramesh Babulal Doshi v. State
of Gujarat, (1996) 9 SCC 225] viz. first
recording its conclusion on the question
whether the approach of the trial court in
dealing with the evidence was patently
10 All. The State of U.P. Vs. Durga Prasad & Ors.
1221
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 well-
considered 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
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, [(1999) 3 SCC
309], 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.,
[AIR 1955 SC 807], in para 5, this Court
observed and held as under:

''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
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
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 have 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 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 [1951 SCC 1207]; 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 evidence and coming
to its own conclusions.'

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

N. Vijayakumar v. State of T.N.,
[(2021) 3 SCC 687] as hereunder:-- "20.
Mainly it is contended by Shri Nagamuthu,
learned Senior Counsel appearing for the
appellant that the view taken by the trial
court is a "possible view", having regard to
the evidence on record. It is submitted that
the trial court has recorded cogent and
valid reasons in support of its findings for
acquittal. Under Section 378 CrPC, no
differentiation is made between an appeal
against acquittal and the appeal against
conviction. By considering the long line of
earlier cases this Court in the judgment in
Chandrappa v. State of Karnataka, [(2007)
4 SCC 415] has laid down the general
principles regarding the powers of the
appellate Court while dealing with an
appeal against an order of acquittal. Para
42 of the judgment which is relevant reads
as under: (SCC p. 432)

"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
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
10 All. The State of U.P. Vs. Durga Prasad & Ors.
1223
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
disturb the finding of acquittal recorded by
the trial court."

21. Further in the judgment in
Murugesan v. State, [(2012) 10 SCC 383]
relied on by the learned Senior Counsel for
the appellant, this Court has considered the
powers of the High Court in an appeal
against acquittal recorded by the trial
court.
In
the
said
judgment,
it
is
categorically held by this Court that only in
cases where conclusion recorded by the
trial court is not a possible view, then only
the High Court can interfere and reverse
the acquittal to that of conviction. In the
said judgment, distinction from that of
"possible view" to "erroneous view" or
"wrong view" is explained. In clear terms,
this Court has held that if the view taken by
the trial court is a "possible view", the
High Court not to reverse the acquittal to
that of the conviction.

xxx xxx xxx

23. Further, in Hakeem Khan v.
State of M.P., [(2017) 5 SCC 719] this
Court has considered the powers of the
appellate court for interference in cases
where acquittal is recorded by the trial
court. In the said judgment it is held that if
the "possible view" of the trial court is not
agreeable for the High Court, even then
such "possible view" recorded by the trial
court cannot be interdicted. It is further
held that so long as the view of the trial
court can be reasonably formed, regardless
of whether the High Court agrees with the
same or not, verdict of the trial court
cannot be interdicted and the High Court
cannot supplant over the view of the trial
court. Para 9 of the judgment reads as
under; (SCC pp.722-23) "9. Having heard
the learned counsel for the parties, we are
of the view that the trial court's judgment is
more than just a possible view for arriving
at the conclusion of acquittal, and that it
would not be safe to convict seventeen
persons accused of the crime of murder i.e.
under Section 302 read with Section 149 of
the Penal Code. The most important reason
of the trial court, as has been stated above,
was that, given the time of 6.30 p.m. to 7.00
p.m. of a winter evening, it would be dark,
and, therefore, identification of seventeen
persons would be extremely difficult. This
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
reason, coupled with the fact that the only
independent witness turned hostile, and two
other eyewitnesses who were independent
were not examined, would certainly create
a large hole in the prosecution story. Apart
from this, the very fact that there were
injuries on three of the accused party, two
of them being deep injuries in the skull,
would lead to the conclusion that nothing
was premeditated and there was, in all
probability, a scuffle that led to injuries on
both sides. While the learned counsel for
the respondent may be right in stating that
the trial court went overboard in stating
that the complainant party was the
aggressor, but the trial court's ultimate
conclusion leading to an acquittal is
certainly a possible view on the facts of this
case. This is coupled with the fact that the
presence of the kingpin Sarpanch is itself
doubtful in view of the fact that he attended
the Court at some distance and arrived by
bus after the incident took place."

24. By applying the abovesaid
principles and the evidence on record in
the case on hand, we are of the considered
view that having regard to material
contradictions which we have already
noticed above and also as referred to in the
trial court judgment, it can be said that
acquittal is a "possible view". By applying
the ratio as laid down by this Court in the
judgments which are stated supra, even
assuming another view is possible, same is
no ground to interfere with the judgment of
acquittal and to convict the appellant for
the offence alleged. From the evidence, it is
clear that when the Inspecting Officer and
other witnesses who are examined on
behalf of the prosecution, went to the office
of the appellant-accused, the appellant was
not there in the office and office was open
and people were moving out and in from
the office of the appellant. It is also clear
from the evidence of PWs 3, 5 and 11 that
the currency and cellphone were taken out
from the drawer of the table by the
appellant at their instance. There is also no
reason, when the tainted notes and the
cellphone were given to the appellant at
5.45 p.m. no recordings were made and the
appellant was not tested by PW 11 till 7.00
p.m."

18. In the light with the aforesaid
proposition of law so culled out by the
Hon'ble

19. The ocular testimony of the
prosecution witnesses is to be analysed.

20. As P.W. 1, the first informant
being Rajendra Prasad entered into the
witness
box,
according
to
him
he
recognizes all the accused. He in his
statement has deposed that he along with
his younger brother Virendra had gone to
his agriculture field to graze the cattle at 12
in the noon on 10.07.1982 which is near
tube well where at the crop of paddy was
existing and at that point of time accused
Prem Narayan along with his cattle came
into the agricultural field of the first
informant and when the first informant
raised his protest then he abused the first
informant. Occasioning the said situation,
the first informant came back from the field
and straight away went to the house of the
accused
Mishri
Lal
and
raised
his
complaint. He has further stated that behind
him the accused Prem Narayan also came
along with his cattle and when he was
complaining about the same in the house of
the Prem Narayan then the accused Durga
Prasad indulged into extortion while telling
his son and the other accused that the first
informant be put to administration of
beating. When the accused aided with
wooden stick ran to inflict blow upon the
10 All.