State of UP v. Roshal Lal), arising out of Case Crime No

2015 (State of UP vs. Roshal Lal), arising out of Case Crime No. 664 of 2014 under Sections 376, 511, 506 IPC and Section 4 POCSO Act, PS Sikandrabad, District Bulandshahar.

3. Prosecution story, in brief, is that the informant, Smt. Omvati, wife of Harpal Singh Aheriya, resident of Mohalla-Khatribara near Kaka Degree College, Town and Police Station Sikandrabad, District Bulandshahr gave a typewritten complaint to the Superintendent of Police, District Bulandshahr on 3.8.2014 to the effect that one Roshanlal who lived on rent in the neighborhood used to come to her house often due to lack of space and being a relative used to stay there all day. On 01.08.2014, at around 2:30 in the evening, she had gone to work with her husband and the victim aged about 9 years old and the younger daughter aged about 5 years old were at home. Roshanlal with the intention of committing a crime tried to do a bad deed by closing the mouth of the victim with a dupatta and tying her hands and legs with a rope. The informant's brother-in-law Pankaj s/o Surendra saw from the window and told his grandfather Dharam Singh, who scolded him and cursed him and freed the victim from bondage. When she returned at around 6 in the evening, information was sent to the police. Thereafter, two policemen reached the spot and searched for Roshanlal but he absconded. Knowing this incident, Rohan Lal was kicked out by her sons, but the next day he went to the victim's school to find out. On complaint, Suresh, Ramesh's brother-in-law Babli, Bala (wife of Bijendra), Mrs. Revati (wife of Dhan Singh) and Renu (wife of Munesh) etc. came to the house in the evening and left after giving all kinds of threats. A report has been written and a request has been made to take legal action. On the basis of aforesaid complaint, a first information report was lodged against the accused and after lodging the FIR, investigating officer started investigation and after competition of investigation, charge- sheet was submitted against the accused. The accused denied the prosecution allegations and claimed to be tried.

4. In support of prosecution case, PW-1 Smt. Omwati, PW-2 Victim, PW-3 SI Arun Kumar, PW-4 Dr. Anita and PW-5 Constable Clerk Rakhi were produced and examined before the Court below.

5. The judgement of acquittal has been passed by the learned trial Court on the ground that although the victim was stated to be about nine years of age at the time of incident and allegation was that the accused person tried to rape her after tying her hands and legs with rope and this incident was seen by Pankaj s/o Surendra and grandfather of the victim Dharam Singh, however, neither Pankaj nor Dharam Singh were produced as prosecution witnesses before the trial Court and the informant is the mother of the victim who has not seen the incident. The trial Court further found that there was a delay of two days in lodging the FIR although it is being alleged that the incident was seen by two persons including the real grandfather but they were not produced as prosecution witnesses. The medical report reflects that there was no mark of internal or external injury and hymen was intact. PW-4 Dr. Anita had stated that she had medically examined the victim and although the accused Roshal Lal tied the victim, however, she had stated that nothing wrong was committed on her. The trial Court also noticed that the victim in her cross- examination has stated that some altercation took place between Dharam Singh (grandfather) and the accused Roshan Lal. Under such circumstances, the Court below found that the prosecution could not prove his case beyond doubt and the accused person was given benefit of doubt and judgement of acquittal was passed.

6. Challenging the impugned judgment, Sri Rahul Asthana, learned AGA submits that the trial Court has erred in appreciating the evidence on record. He further submits that the victim was of tender age and had clearly stated that she was tied with rope by the accused person and therefore, there was no reason to disbelieve the prosecution story. He further submits that it is not necessary for the prosecution to produce all the witnesses and it would not have adverse effect on the prosecution case. He further submits that the learned trial Court has given undue weightage to the evidence of defence and has wrongly ignored the prosecution evidence. He further submits that the witnesses are intact and have supported the prosecution case and the findings recorded b the learned trial Court is not one of the possible view. Submission, therefore, is that the judgement and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused persons herein are liable to be convicted.

7. We have considered the submissions and have perused the record.

8. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

9. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities"

10. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against against an order of acquittal passed by a Trial Court in the following words: "The power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ''possible view'. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re- appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."

11. In a judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered. For ready reference, paragraphs 10, 11 and 12 are quoted as under: "10. In the case of Babu vs. State of Kerala (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179, the Hon'ble Apex Court has observed that 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. Paragraphs 12 to 19 of the aforesaid judgment are quoted 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 more, the 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. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445).

13. In Sheo Swarup and Ors. King Emperor AIR 1934 PC 227, the Privy Council observed as under: "...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...."

14. The aforesaid principle of law has consistently been followed by this Court. (See: Tulsiram Kanu v. The State AIR 1954 SC 1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu Mohton & Ors. v. State of Bihar AIR 1970 SC 66; Sambasivan and Ors. State of Kerala (1998) 5 SCC 412; Bhagwan Singh and Ors. v. State of M.P. (2002) 4 SCC 85; and State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755).

15. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: "(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 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."

16. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this Court re- iterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that an "order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of Uttar Pradesh v. Banne alias Baijnath & Ors. (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances includes: i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; ii) The High Court's conclusions are contrary to evidence and documents on record; iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; v) This Court must always give proper weight and consideration to the findings of the High Court; vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. A similar view has been reiterated by this Court in Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401.

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."

11. Hon'ble Apex Court in the case of Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 : 1996 SCC (Cri) 972 has observed that while deciding appeal against acquittal, the High Court has to first record its conclusion on the question whether the approach of the trial court dealing with the evidence was patently illegal or conclusion arrived by it is wholly untenable which alone will justify interference in an order of acquittal.

2015 (State of UP vs. Roshal Lal), arising out of Case Crime No. 664 of 2014 under Sections 376, 511, 506 IPC and Section 4 POCSO Act, PS Sikandrabad, District Bulandshahar.

3. Prosecution story, in brief, is that the informant, Smt. Omvati, wife of Harpal Singh Aheriya, resident of Mohalla-Khatribara near Kaka Degree College, Town and Police Station Sikandrabad, District Bulandshahr gave a typewritten complaint to the Superintendent of Police, District Bulandshahr on 3.8.2014 to the effect that one Roshanlal who lived on rent in the neighborhood used to come to her house often due to lack of space and being a relative used to stay there all day. On 01.08.2014, at around 2:30 in the evening, she had gone to work with her husband and the victim aged about 9 years old and the younger daughter aged about 5 years old were at home. Roshanlal with the intention of committing a crime tried to do a bad deed by closing the mouth of the victim with a dupatta and tying her hands and legs with a rope. The informant's brother-in-law Pankaj s/o Surendra saw from the window and told his grandfather Dharam Singh, who scolded him and cursed him and freed the victim from bondage. When she returned at around 6 in the evening, information was sent to the police. Thereafter, two policemen reached the spot and searched for Roshanlal but he absconded. Knowing this incident, Rohan Lal was kicked out by her sons, but the next day he went to the victim's school to find out. On complaint, Suresh, Ramesh's brother-in-law Babli, Bala (wife of Bijendra), Mrs. Revati (wife of Dhan Singh) and Renu (wife of Munesh) etc. came to the house in the evening and left after giving all kinds of threats. A report has been written and a request has been made to take legal action. On the basis of aforesaid complaint, a first information report was lodged against the accused and after lodging the FIR, investigating officer started investigation and after competition of investigation, charge- sheet was submitted against the accused. The accused denied the prosecution allegations and claimed to be tried.

4. In support of prosecution case, PW-1 Smt. Omwati, PW-2 Victim, PW-3 SI Arun Kumar, PW-4 Dr. Anita and PW-5 Constable Clerk Rakhi were produced and examined before the Court below.

5. The judgement of acquittal has been passed by the learned trial Court on the ground that although the victim was stated to be about nine years of age at the time of incident and allegation was that the accused person tried to rape her after tying her hands and legs with rope and this incident was seen by Pankaj s/o Surendra and grandfather of the victim Dharam Singh, however, neither Pankaj nor Dharam Singh were produced as prosecution witnesses before the trial Court and the informant is the mother of the victim who has not seen the incident. The trial Court further found that there was a delay of two days in lodging the FIR although it is being alleged that the incident was seen by two persons including the real grandfather but they were not produced as prosecution witnesses. The medical report reflects that there was no mark of internal or external injury and hymen was intact. PW-4 Dr. Anita had stated that she had medically examined the victim and although the accused Roshal Lal tied the victim, however, she had stated that nothing wrong was committed on her. The trial Court also noticed that the victim in her cross- examination has stated that some altercation took place between Dharam Singh (grandfather) and the accused Roshan Lal. Under such circumstances, the Court below found that the prosecution could not prove his case beyond doubt and the accused person was given benefit of doubt and judgement of acquittal was passed.

6. Challenging the impugned judgment, Sri Rahul Asthana, learned AGA submits that the trial Court has erred in appreciating the evidence on record. He further submits that the victim was of tender age and had clearly stated that she was tied with rope by the accused person and therefore, there was no reason to disbelieve the prosecution story. He further submits that it is not necessary for the prosecution to produce all the witnesses and it would not have adverse effect on the prosecution case. He further submits that the learned trial Court has given undue weightage to the evidence of defence and has wrongly ignored the prosecution evidence. He further submits that the witnesses are intact and have supported the prosecution case and the findings recorded b the learned trial Court is not one of the possible view. Submission, therefore, is that the judgement and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused persons herein are liable to be convicted.

7. We have considered the submissions and have perused the record.

8. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

9. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities"

10. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against against an order of acquittal passed by a Trial Court in the following words: "The power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ''possible view'. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re- appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."

11. In a judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered. For ready reference, paragraphs 10, 11 and 12 are quoted as under: "10. In the case of Babu vs. State of Kerala (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179, the Hon'ble Apex Court has observed that 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. Paragraphs 12 to 19 of the aforesaid judgment are quoted 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 more, the 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. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445).

13. In Sheo Swarup and Ors. King Emperor AIR 1934 PC 227, the Privy Council observed as under: "...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...."

14. The aforesaid principle of law has consistently been followed by this Court. (See: Tulsiram Kanu v. The State AIR 1954 SC 1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu Mohton & Ors. v. State of Bihar AIR 1970 SC 66; Sambasivan and Ors. State of Kerala (1998) 5 SCC 412; Bhagwan Singh and Ors. v. State of M.P. (2002) 4 SCC 85; and State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755).

15. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: "(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 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."

16. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this Court re- iterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that an "order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of Uttar Pradesh v. Banne alias Baijnath & Ors. (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances includes: i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; ii) The High Court's conclusions are contrary to evidence and documents on record; iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; v) This Court must always give proper weight and consideration to the findings of the High Court; vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. A similar view has been reiterated by this Court in Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401.

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."

11. Hon'ble Apex Court in the case of Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 : 1996 SCC (Cri) 972 has observed that while deciding appeal against acquittal, the High Court has to first record its conclusion on the question whether the approach of the trial court dealing with the evidence was patently illegal or conclusion arrived by it is wholly untenable which alone will justify interference in an order of acquittal.