High Court
Case Details
Neutral Citation No. - 2025:AHC:136063 Reserved Court No. - 71 Case :- CRIMINAL APPEAL No. - 362 of 1986 Appellant :- Nagar Palika Respondent :- Gauri Shankar Counsel for Appellant :- Swami Dayal,Devendra Kumar Counsel for Respondent :- R.P.Goyal,A.G.A.,Bharat Pratap Singh Hon'ble Raj Beer Singh,J. 1. This criminal appeal has been preferred on behalf of Nagar Palika, Atrauli, District Aligarh against judgment and order dated 28.07.1981, passed by learned A.C.J.M.- 3rd, Aligarh, in Case No. 296 / 1980, under Section 185 of Nagar Palika Adhiniyam, whereby respondent Gauri Shankar has been acquitted of charge under Section 185 of Nagar Palika Adhiniyam. 2.
Legal Reasoning
Heard learned counsel for the appellant and learned AGA for the State. None has appeared on behalf of respondent. 3. As per prosecution version, on 19.03.1976 one Mridul Arora has made a complaint against respondent to the effect that he was having some land at ‘Jukkhan Ki Sarai’, Bhanpara, Atrauli and respondent has started illegal construction on that land without any permission of Nagar Palika, Atrauli. The Nagar Palika officials visited the spot and found that respondent has made illegal construction. A notice was issued to the respondent for demolition of said construction but the reply of respondent was not found satisfactory and thus, complaint Ext. ka 4 was filed against respondent. The respondent has taken plea that he has not made any construction and in fact the alleged construction belongs to his uncle Kallu Singh and it was an old construction. The complainant has produced four witnesses. Learned trial Court has found that there are material contradictions in the statements of witnesses and that the alleged construction was made earlier. On the basis of evidence, learned trial Court observed that evidence of complainant was not reliable and it could not be proved that respondent has made the construction in question, rather the defence version that alleged construction (room) was already there, was found more plausible. On the basis of these observations, the respondent was acquitted. 4. Before considering the appeal on merits, the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal is required to be considered. In the case of Babu v. State of Kerala, (2010) 9 SCC 189), the Apex Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 14, it is observed and held 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 subjectmatter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445) 13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) “… the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.”