Allahabad High Court
Kaju Singh vs State Of U.P. And Anr. on 4 July, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 3507 of 2012 Appellant :- Kaju Singh Respondent :- State Of U.P. And Anr. Counsel for Appellant :- C.S. Sharma, G.S. Sharma Counsel for Respondent :- Govt. Advocate, V.B. Rao Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
(Oral Judgment by Hon'ble Vikas Budhwar, J.)
1. This appeal under Section 372 of Criminal Procedure Code, 1973 (in short 'Cr.P.C.'), has been instituted by the informant being Kaju Singh son of Balram Singh against the judgment and order dated 15.7.2011 passed by Addl. Sessions Judge, Court No. 5, District Banda, passed in S.T. No. 70 of 2008, under Sections 302, 201 IPC arising out of Case Crime No. 281 of 2007, and S.T. No. 71 of 2008, under Section 25/4 Arms Act (State Vs. Munna Singh alias Karan) arising out of Case Crime No. 15 of 2008, Police Station. Bisanda, District Banda, whereby learned trial court has acquitted the accused, who is respondent-opposite party no. 2.
2. This appeal was presented before this Court accompanied with a delay condonation application on 26.9.2011, and on 23.8.2012, this Court proceeded to pass the following order: -
"23.8.2012 Heard learned counsel for the appellant, learned AGA and Sri V.B. Rao, counsel appearing on behalf of the accused respondent.
This application has been filed with a prayer to condone the delay in filing the appeal.
The grounds taken for condoning the delay had not been controverted by the accused respondent because no counter affidavit has been filed.
This appeal has been filed beyond the period of limitation by 9 days.
Sufficient cause has been shown to condone the delay in filing the appeal. Therefore, the delay in filing the appeal is hereby condoned. The appeal shall be deemed to be filed within the period of limitation.
Office is directed to allot regular number to this appeal.
Accordingly, this application is allowed."
"Heard learned counsel for the appellant, learned AGA and Sri V.B. Rao, counsel appearing on behalf of the accused respondent.
Learned counsel for the appellant prays for and is granted three weeks' time to file an application for granting leave to appeal.
Summon the lower court record within a period of six weeks from today.
List on 18.10.2012 for admission. "
3. Thereafter on 30.10.2012, 10.12.2012, 16.1.2013, 25.8.2021, and lastly on 9.5.2022, the following orders were passed:-
"30.10.2012 Learned counsel for the appellant is not present.
In this case lower court record has been summoned on 23.8.2012 but the same has not been received.
List on 10.12.2012."
"10.12.2012 The learned counsel for the appellant is not present. In this case lower court record has been summoned, the same has not been received.
The office is directed to send reminder to the District Judge, Banda for sending the lower court reocrd within a month.
List on 16.1.2013."
"16.1.2013 Heard learned counsel for the appellant, learned A.G.A. for the State of U.P. and Sri V.B. Rao appearing on behalf of the accused respondents.
In this case lower court has not been received whereas the reminder has been sent to learned Sessions Judge, Banda on 10.12.2012.
List on 25.2.2013."
"25.8.2021 Put up on 15.9.2021 in the additional cause list before the appropriate Bench."
"9.5.2022 Matter is taken up.
None appeared on behalf of the appellant.
Learned A.G.A. on behalf of the State is present.
Today accused respondent is also not represented by any counsel nor he appeared in person before the Court.
Appeal is yet to be admitted.
In the circumstances, list this matter in the week commencing 4th July, 2022 for hearing on admission.
If on the next date fixed none will appear on behalf of the appellant Court will proceed to decide the matter appointing Amicus Curiae/with the help of the learned A.G.A."
4. Orders so passed from time to time in the present appeal show that the counsel for the appellant is avoiding to participate in the proceedings in order to facilitate in the disposal of the matter and thus, this Court was constrained to pass an order dated 9.5.2022 while directing and observing that in case on the next date so fixed, none appears on behalf of the appellant before this Court, the Court will have no option but to appoint Amicus Curiae / to decide the matter with the help of learned A.G.A.
5. Till the dictation of the order, nobody appears for the appellant and thus this Court is proceeding to decide the matter with the assistance of the learned A.G.A.
6. The factual matrix as worded in the present appeal are that the appellant/ informant happens to be the son of the deceased being Man Singh who was at relevant point of time when the unlucky event occurred was working in an establishment in Delhi. As per the prosecution version, Balram Singh (deceased) on 23.11.2007 at 2:00 P.M, had gone to the disputed agricultural field in order to harvest grass & plants being cattle feed. However, he did not return back and after constant search and enquiry, when Maini son of Rajju Yadav had apprised the informant on 23.11.2007 at 5:00 P.M. that he had seen the deceased with accused. As per the prosecution story, one slipper of the deceased was found in the field and the accused at 7:00 in the morning was going in a tractor (no. UP90A9351) which was owned by one Ganga Singh son of Chhikaudi towards Atarra, and the accused after the said day, did not return to the village. Records further reveal that on 27.11.2007, the matter was reported to the concerned Police Station regarding the missing of the deceased. It has been further alleged that on 9.12.2007, the informant received a phone call that the corpus of the deceased was found in a gadara naala of the said village. Consequently, the inquest report was also prepared and the body was put up for post mortem on 10.12.2007. It was further alleged that on the pointing out of the accused, spade as well clothes which included the Kurta an inner wear were found which were blood stained. Consequently, investigating Officer was nominated, who conducted the investigation, pursuant whereto a charge sheet was submitted purported to be under Section 302, 201 IPC read with Section 4/25 of the Arms Act. The charges were read over to the accused. The accused denied the charges and claimed to be tried. Thereafter the case was committed to the Sessions.
7. To bring home the charges, the prosecution produced following witnesses, namely:
1.
Seerdhwaj Singh @ Kaju Singh PW1
2. Maini Singh PW2
3. Constable Chhedi Lal PW3
4. Dr. Mukesh Kumar PW4
5. S.I. H.D. Singh, I.O.
PW5
6. S.I. Parashuram Singh PW6
7. Constable Ram Vishal Pal PW7
8. We have heard Sri Ratan Singh, learned A.G.A. and with his assistance the present appeal is being decided.
9. Before we embark on testimony and the judgment of the Court below, the contours for interfering in Criminal Appeals where accused has been held to be non guilty would require to be discussed.
10. The principles, which would govern and regulate the hearing of an appeal by this Court against an order of acquittal, passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of Tota Singh and another vs. State of Punjab, reported in (1987) 2 SCC 529, the Hon'ble Apex Court in paragraph-6 has observed as under: -
"6. The High Court has not found in its judgment that the reasons given by the learned Sessions Judge for discarding the testimony of PW 2 and PW 6 were either unreasonable or perverse. What the High Court has done is to make an independent reappraisal of the evidence on its own and to set aside the acquittal merely on the ground that as a result of such reappreciation, the High Court was inclined to reach a conclusion different from the one recorded by the learned Sessions Judge. This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous."
11. Further, in the case of Ramesh Babulal Doshi vs. State of Gujarat, reported in (1996) 9 SCC 225, in paragraph 7, the Hon'ble Apex Court observed as under:
"7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above-quoted conclusions. This Court has repeatedly laid down that the mere fact that a 'view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial court are sustainable or not."
12. In the case of State of Rajesthan vs. State of Gujarat, reported in (2003) 8 SCC 180, in paragraph 7, the Hon'ble Apex Court observed as under:
"7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v. State of M.P.¹) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra², Ramesh Babulal Doshi v. State of Gujarat³ and Jaswant Singh v. State of Haryana."
13. In the case of State of Goa vs. Sanjay Thakran, reported in (2007) 3 SCC 755, in paragraph 15, the Hon'ble Apex Court observed as under:
"15. Further, this Court has observed in Ramesh Babulal Doshi v. State of Gujarat: (SCC p. 229, para 7) "7.... This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions." and in State of Rajasthan v. Raja Ram8: (SCC pp. 186-87, para 7) -
"7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 10, Ramesh Babulal Doshi v. State of Gujarat and Jaswant Singh v. State of Haryana11"."
14. Further in the case of Chandrappa and others vs. State of Karnataka, reported in (2007) 4 S.C.C. 415, the Apex Court has observed as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as,"substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
15. In the case of Ghurey Lal vs. State of U.P., reported in (2008) 10 SCC 450, in paragraph 43 and 75, the Hon'ble Apex Court observed as under:
"43. The earliest case that dealt with the controversy in issue was Sheo Swarup v. King Emperor. In this case, the ambit and scope of the powers of the appellate court in dealing with an appeal against acquittal has been aptly a elucidated by the Privy Council. Lord Russell writing the judgment has observed as under (at AIR p. 230): (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he b has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
The law succinctly crystallised in this case has been consistently followed by this Court. On proper analysis of the ratio and findings of this case, it is revealed that the findings of the trial court are based on the fundamental principles of the criminal jurisprudence. Presumption of innocence in favour of the accused further gets reinforced and strengthened by the acquittal of the trial court. The appellate court undoubtedly has wide powers of reappreciating and re-evaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the d trial court is palpably wrong, totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.
...
75. On careful analysis of the entire evidence on record, we are of the view that the reasons given by the High Court for reversing the judgment of acquittal is unsustainable and contrary to settled principles of law. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable."
16. In the case of Siddharth Vashishtha Alias Manu Sharma vs. State (NCT of Delhi), reported in (2010) 6 SCC 1, in paragraph 303(1), the Hon'ble Apex Court observed as under:
"303. Summary of our conclusions:
(1) The appellate court has all the necessary powers to re-evaluate the evidence let in before the trial court as well as the conclusions reached. It has a duty to specify the compelling and substantial reasons in case it reverses the order of acquittal passed by the trial court. In the case on hand, the High Court by adhering to all the ingredients and by giving b cogent and adequate reasons reversed the order of acquittal. ..."
17. In the case of Babu vs. State of Kerala, reported in (2010) 9 SCC 189, in paragraph 12 and 19, the Hon'ble Apex Court observed as under:
"12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P.¹, Shambhoo Missir v. State of Bihar2, Shailendra Pratap v. State of U.P.3, Narendra Singh v. State of M.P.4, Budh Singh v. State of U.P.5, State of U.P. v. Ram Veer Singh6, S. Rama Krishna v. S. Rami Reddy7, Arulvelu v. State8, Perla Somasekhara Reddy v. State of A.P.9 and Ram Singh v. State of H.P.10).
...
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
18. In the case of Ganpat vs. State of Haryana, reported in (2010) 12 SCC 59, in paragraph 14 and 15, the Hon'ble Apex Court observed as under:
"14. The only point for consideration in these appeals is whether there is any ground for interference against the order of acquittal by the High Court. This Court has repeatedly laid down that the first appellate court and the High Court while dealing with an appeal is entitled and obliged as well to scan through and if need be reappreciate the entire evidence and arrive at a conclusion one way or the other.
15. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly, against an order of acquittal: (i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.
(ii) The appellate court can also review the trial court's conclusion with respect to both facts and law.
(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.
(iv) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed. (Vide Madan Lal v. State of J&K¹, Ghurey Lal v. State of U.P.2, Chandra Mohan Tiwari v. State of M.P.3 and Jaswant Singh v. State of Haryana4.)"
19. In the case of Sunil Kumar Sambhudayal Gupta (Dr.) and others vs. State of Maharashtra, reported in (2010) 13 SCC 657, in paragraph 38, 39 and 40, the Hon'ble Apex Court observed as under:
"38. It is a well-established principle of law, consistently reiterated and followed by this Court that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanour of the witnesses is the best judge of the credibility of the witnesses.
39. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration. The appellate court should bear in mind the presumption of innocence of the accused, and further, that the trial court's acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference.
40. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding material or by taking into consideration irrelevant/inadmissible material. A finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (See Balak Ram v. State of U.P.9, Shailendra Pratap v. State of U.P.10, Budh Singh v. State of U.P.11, S. Rama Krishna v. S. Rami Reddy¹2, Arulvelu v. State 13, Ram Singh v. State of H.P.14 and Babu v. State of Kerala¹5.))"
20. In the case of State of U.P. vs. Naresh, reported in (2011) 4 SCC 324, in paragraph 33 and 34, the Hon'ble Apex Court observed as under:
"33. We are fully aware of the fact that we are entertaining the appeal against the order of acquittal. Thus, the Court has to scrutinise the facts of the case cautiously and knowing the parameters fixed by this Court in this regard.
34. Every accused is presumed to be innocent unless his The presumption of innocence is a human right subject to the statutory exceptions. The said principle forms the basis of criminal jurisprudence in India. The law in this regard is well settled that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. An appellate court must also consider whether the court below has placed the burden of proof incorrectly or failed to take into consideration any admissible evidence or had taken into consideration evidence brought on record contrary to law? In exceptional cases, whether there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal. So, in order to warrant interference by the appellate court, a finding of fact recorded by the court below must be outweighed evidence or to suffer from the vice of guilt is proved. such finding if outrageously defies logic as irrationality. [Vide Babu v. State of Keralall and Sunil Kumar Sambhudayal Gupta (Dr.)8.]"
21. In the case of State of M.P. vs. Ramesh, reported in (2011) 4 SCC 786, in paragraph 15, the Hon'ble Apex Court observed as under:
"15. We are fully alive of the fact that we are dealing with an appeal against acquittal and in the absence of perversity in the said judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. It is settled proposition of law that the appellate court being the final court of fact is fully competent to reappreciate, reconsider and review the evidence and take its own decision. Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court and there can be no quarrel to the said legal proposition that if two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal."
22. The Apex Court recently in Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219, has laid down the principles for laying down the powers of appellate court in re-appreciating the evidence in a case where the State has preferred an appeal against acquittal, which read as follows:
"13. It is by now well settled that the Appellate Court hearing the appeal filed against the judgment and order of acquittal will not overrule or otherwise disturb the Trial Court's acquittal if the Appellate Court does not find substantial and compelling reasons for doing so. If the Trial Court's conclusion with regard to the facts is palpably wrong; if the Trial Court's decision was based on erroneous view of law; if the Trial Court's judgment is likely to result in grave miscarriage of justice; if the entire approach of the Trial Court in dealing with the evidence was patently illegal; if the Trial Court judgment was manifestly unjust and unreasonable; and if the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert etc. the same may be construed as substantial and compelling reasons and the first appellate court may interfere in the order of acquittl. However, if the view taken by the Trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case, the Appellate Court generally will not interfere with the order of acquittal particularly in the absence of the aforementioned factors.
14. It is relevant to note the observations of this Court in the case of Ramanand Yadav vs. Prabhu Nath Jha & Ors., (2003) 12 SCC 606, which reads thus:
"21.There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not."
23. The Apex Court recently in Jafarudheen & Ors. vs. State of Kerala, JT 2022(4) SC 445 has observed as under:-
"DISCUSSION Scope of Appeal filed against the Acquittal:
25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. Precedents:
Mohan @Srinivas @Seena @Tailor Seena v. State of Karnataka, [2021 SCC OnLine SC 1233] as hereunder: -
"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.
22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.
23. This court, time and again has laid down the law on the scope of inquiry by an Appellate court while dealing with an appeal against acquittal under Section 378 CrPC. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this court in Anwar Ali v. State of Himanchal Pradesh, (2020) 10 SCC 166:
14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under : (Babu case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179]) "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality.
(Vide Rajinder Kumar Kindra v. Delhi Admn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131], Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312], Triveni Rubber & Plastics v. CCE [Triveni Rubber & Plastics v. CCE, 1994 Supp (3) SCC 665], Gaya Din v. Hanuman Prasad [Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501], Aruvelu [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] and Gamini Bala Koteswara Rao v. State of A.P. [Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372] )"
It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429], that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.
14.3. In the recent decision of Vijay Mohan Singh [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586], this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by the High Court [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 [Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108]. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while 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 [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320], the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable.
Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under:
''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 : 1996 SCC (Cri) 972] viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a 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 [K. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309: 1999 SCC (Cri) 410], after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653], 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 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 presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52]; Wilayat Khan v. State of U.P. [Wilayat Khan v. State of U.P., 1951 SCC 898 : AIR 1953 SC 122]) 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 [K. Gopal Reddy v. State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305], this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."
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 : (2007) 2 SCC (Cri) 325 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 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 [Murugesan v. State, (2012) 10 SCC 383: (2013) 1 SCC (Cri) 69] 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 : (2017) 2 SCC (Cri) 653 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 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."
24. This Court had the occasion to consider the scope and the extent of interference in the cases, wherein this Court has to delve into the issues, which gets encompassed in the proceedings, and the judgment and the order under challenge is of acquittal and this Court in Government Appeal no. 3804 of 2010, State of U.P. vs. Subedar and others, has held that it is a settled principle of law that while exercising powers even at two reasonable views/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.
25. Recently, the Division Bench of this Court in the case of Virendra Singh vs. State of U.P. and others reported in 2022(3) ADJ 354 had held that while deciding appeals against acquittal, the High Court has to first record its conclusion on the question whether approach of the Trial Court dealing with the evidence was patently illegal or the conclusion arrived was based on no evidence or it was equated by perversity and in case two views are possible then the High Court should detained itself from the order of acquittal.
26. On the contours of the decisions, referred to hereinabove, as well as the legal proposition so culled out, the judgment of the Trial Court is to be scanned and scrutinized.
27. In the present case in hand, the entire prosecution story, is erected on the premise that the father of the appellant-informant went missing from 23.11.2007 at 2:00 P.M, while according to the prosecution he had gone to cut the grass for cattle feed and he did not return back. However it is one Sri Mani Singh, who happens to be PW-2, who witnessed that the accused was with the deceased and according to his statement, the accused sat in the tractor on the next date, and proceeded from the village on 24.11.2007 at 7:00 in the morning and thereafter he was not seen. It is also not in dispute that the first information has been lodged on 27.11.2007 and nobody had seen the accused committing the crime as the present case does not fall within the parameters as envisaged under eye-witness count. Rather to the contrary, the case (if it is) would come under the parameters of circumstantial evidence. PW-1 was not an eye-witness, however the only witness who had seen the accused with the deceased on 27.11.2007 at 5:00 P.M, was PW-2 Mani Singh. Records further reveal that as per the statement of PW-1, the deceased were three brothers, elder one being Indrabhan Singh, then Chunni Singh and the deceased. The deceased happens to be the son of Balram Singh as well as the accused is the son of Indrabhan Singh. It has further come on record that 8-10 years ago from the date of the statement so sought to be recorded of PW-1, Indrabhan Singh had died and so far as Chunni Singh is concerned, he happens to be in police and he is not blessed with any child. Meaning thereby, the informant and the accused belong to the same family. According to the statements of the prosecution witness, there was a dispute with respect to some landed property, which was the basis for commission of the crime by the accused. The basic question, which falls for consideration before this Court is as to whether the ingredients for holding the accused guilty of commission of offence qualifies the following tests:
A- Motive B- Eye-witness testimony C- Circumstantial evidence D- Last Seen Theory E- Delay in lodging the FIR F- Defective investigation, etc.
28. So far as the issue with relation to the para-meters regarding delay in lodging of FIR is concerned, admittedly, the deceased went missing on 23.11.2007 and the FIR has been lodged on 27.11.2007, after four days. The court below has analyzed each and every aspect of the matter while recording a categorical finding that there has been no explanation regarding delay in lodging of the FIR. It is not disputed that the informant was in his house and rather in the village on 23.11.2007 when the deceased went missing. However, no explanation whatsoever, either plausible or justifiable has been given regarding delay in lodging of the FIR. It is further improbable and unconceivable the , once one of the slippers of the deceased was recovered and the deceased was not traceable on 23/24.11.2007, then in normal situation, an FIR ought to have been lodged, as no aggrieved party, whose near relative is missing would not approach the police station while putting search of the missing person in motion. The learned trial court has rightly disbelieved the prosecution case on the additional count of delay in the lodging of the FIR.
29. Hon'ble Apex Court on the question of delay in lodging the FIR and its impact upon the prosecution theory has observed in the case of (1973) 3 SCC 114 Apren Joseph Alias Current Kunjukunju and others Vs. The State of Kerala wherein para 11 following was mandated:
11. Now first information report is a report relating to the commission of an offence given to the police and recorded by it under Section 154, Cr. P. C. As observed by the Privy Council in K. E. v. Khwaja, the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under Section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue unreasonable delay in lodging the F. I. R., therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case.
30. In the case of Tara Singh and others Vs. State of Punjab 1991 Supp (1) SCC 536, the Hon'ble Apex Court in paragraph 4 has observed as under:-
4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case.
31. Yet, in the case of P. Rajagopal and others Vs. State of Tamil Nadu (2019) 5 SCC 403, the Hon'ble Apex Court in paragraph 12 has held as under:-
12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely.
32. Applying the ratio so culled out by the Hon'ble Apex Court in the above quoted decisions and inescapable conclusions stands drawn that mere delay in lodging of the FIR does not ipso facto can be a ground to hold the prosecution case as weak or the proceedings vitiated. However, this Court finds that there has been no plausible explanation offered by the prosecution as to why there has been delay in lodging the FIR, coupled with the fact that neither any motive is attributed or proved, nor there is eye-witness testimony, nor the chain of events link the basic index of circumstantial evidence and less to say the last theory also does not attract, coupled with defective investigation.
33. So far as the statement of PW-2 Maini Singh is concerned, the same is also not reliable and it does not link the commission of the crime with the accused, particularly in view of the fact that as per the statement of the PW-2 Maini Singh though he has come up with the stand that on 23.11.2007, he had seen the accused talking with the deceased at 5:00 P.M, but he has deposed that there was no heated exchange of words or hurling of abuses, but he could only hear certain sound. The presence of the accused and the deceased as stated by PW-2 Maini Singh does not in any manner whatsoever, complete the chain while linking the accused while commission of crime as to said event was dated 23.11.2007 at 5 hours, as well as the corpus of the deceased was recovered on 9.12.2007. In so far as the presence of motive for commission of the crime is concerned undisputedly, as per the deposition of the prosecution witnesses and the documents available on record, it reveals that there was a landed dispute between the accused and the informant fraction as an appeal under Section 210 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 was instituted which culminated in passing of the order dated 30.6.2006, wherein the accused got victory and the informant fraction lost the case. None the less, the motive also does not appear to be a factor for commission of the crime by the accused as a party, who is victorious in the legal proceedings is a beneficial party and how could a beneficial party bore enmity or motive against the loosing party, particularly, in view of the fact that all the accused and the informant fraction happens to be close relatives. Even otherwise, the court below had also noticed the fact that accused had gone on 23.11.2007 for cutting grass in order to provide cattle feed for the cattle. It has come on record that the deceased was aged about 67 years on the date of the incident and he was not doing agricultural work, but getting it done from others and he did not own a single cattle. Thus it has been rightly observed by the court below, as there was no occasion for the deceased to have cut grass in order to feed the cattle, as stated in the FIR. None the less, none of the prosecution witnesses had disputed the fact that the deceased did not own cattle. The court below has further recorded a categorical finding that the investigation itself was defective as so far as the recovery of the slipper of the deceased is concerned, as according to the prosecution version on 9.12.2007, the body of the deceased was found near the gadara nala, whereat slipper was also found. It has been further alleged that the slipper of the deceased was not sealed by the I.O. and it was also not produced before the Court and further no signatures whatsoever was appended on recovery memo. Further as per the statement of PW-1 being Seerdhwaj Singh @ Kaju Singh, the information regarding the recovery of the body of the deceased was apprised to him by his brother Rajjan on 9.12.2007 through mobile phone at about 7:30 A.M to 8:00 A.M. According to the statement of PW-1, he has apprised the said fact to the S.O. Bisanda on his mobile number. It has been further deposed that PW-1, at the relevant point of time, did not possess any mobile phone, but he called S.O. Bisanda from a S.T.D. booth. As per the further statement of PW-1, he reached the site, where body of the deceased was recovered at 15:30 to 4:00 hours and after 1-1/2 hours, S.O. Bisanda came to the site. The Trial Court has analyzed the said aspect of the matter and has observed that it is highly improbable and inconceivable that the informant/ complainant appellant, who happens to be the real son of the deceased would wait for such a long time and then get himself present at the site, where body of the deceased was recovered. In normal circumstances, as soon as recovery or whereabouts of a missing person, who happens to be a close relative, which is in the shape of the dead body is found, then the immediate reaction would be that a suffering party will reach within a short span and will not take such a long time. None the less the panchayatnama was prepared on 9.12.2007 at 15:15 / 16:15 hours, which itself creates a doubt regarding the manner, in which the prosecution case is being sought to be engineered for implicating the accused.
34. None the less, so far as the recovery at the point out of the accused on 4.1.2008 is concerned with respect to offending and objectionable articles which became the basis for implicating the accused in the said criminal case is concerned, the trial court has categorically observed that there was no independent witnesses available there and however, whoever were the witnesses were the close relatives of the informant. Taking into consideration the import and the impact of the post mortem report itself, it reveals that the post mortem was conducted on 10.12.2007 at 2:00 P.M, as well as, as per the statement of PW-2 Maini Singh, the accused was lastly sent with the deceased on 23.11.2007 at 5:00 P.M, i.e, after a period of 16 days and as per the death occurred one week or two weeks before it. Thus in case, the opinion of the Dr. who conducted the post mortem is taken into consideration that death occurred on 25.11.2007 and as per the statement of P.W.-2 Maini Singh, the accused was lastly seen on 23.11.2007 and he went out of village on 24.11.2007 at 7:00 in the morning. Thus by all eventualities the complete chain so as to encompass the accused with relation to circumstantial evidence or the factors relating to last seen theory does not apply in the present case. Notably, there is no eye witness of commission of crime.
35. An additional fact may also be put to notice that there has been no recovery of wooden stick and shackle (hasiya), particularly in the light of the fact that the deceased is stated to have gone to the disputed agricultural field for cutting the grass for the cattle. Even otherwise, no investigation whatsoever has been conducted by the Investigating Officer with respect to the deposition so made by PW-2 being Maini Singh regarding the accused sitting in the tractor on 24.11.2007 while going outside the village in question. According to this Court, the prosecution has failed to prove existence of motive and the present case is not a case of eye-witness testimony, circumstantial evidence, the last seen theory, but it is nothing but a classic example of defective investigation and further delay in lodging the FIR.
36. This Court has given anxious consideration to the pleadings so set forth in the appeal as well as the documents available on record, and after marshaling the factual and legal aspect, the Court finds its inability to subscribe to the prosecution case as for the purposes of discarding the view taken by the learned Trial Court. The prosecution case, if taken into face does not cumulatively complete the chain of linking the accused to have committed the crime, as neither any motive is attributed nor there is any ingredient of eye witness testimony, nor the theory of last seen stands attracted. Even otherwise, there is no recovery so made from the accused. This Court further finds that the prosecution case proceeds on weak evidence and and in any view of the matter, this is not a case wherein the appellant/ complainant can insist the Court to take a different view from the view taken by the Trial Court while acquitting the accused, while reversing the judgment in question.
37. Hence, in any view of the matter applying the principles of law so culled out by the Hon'ble Apex Court in the facts of the present case, we have no option but to concur with the view taken by the learned Sessions Judge.
38. We find that it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
39. Since the application for granting leave to appeal has not been granted, consequently, present criminal appeal also stands dismissed.
40. Records of the present case be sent back to the concerned court below.
(Vikas Budhwar, J.) (Vivek Kumar Birla,J.)
Order Date :- 04.07.2022
N.S. Rathour