State of U.P v. Rampal and

banka and with firing. At that time, complainant and Balakram son of Cheddu of his village were coming to home from Wazirnagar after getting oil extracted from oil expeller, upon which they heard the noise of his brother Karan and as such, they came running to the spot and saw accused/respondents escaped with blood stained banka and countrymade pistol. On hue and cry, some villagers also came there and saw the accused/respondents escaped.

6. On the basis of aforesaid written report, F.I.R., bearing Case Crime No. 163 of 2005, under Section 302 I.P.C., at Police Station Pisawan, District 3 A378 No. 205 of 2013 Sitapur was registered and after investigation, a charge sheet was submitted against the accused/respondents, Rampal, Suresh and Ramratan, under Section 302 I.P.C. The Chief Judicial Magistrate, Sitapur took cognizance and summoned the accused/respondents. On appearance of the accused, the case was committed to the Sessions Court on

30.08.2008, wherein charges against the accused/respondents were framed under Section 302/34 I.P.C. on 21.05.2009. who pleaded not guilty to the charges and claimed trial. Accordingly, the trial commenced.

7. The prosecution in order to bring home the charges against the accused/respondents examined seven prosecution witnesses, namely, complainant-Rakesh (P.W.1), Balak Ram (P.W.2), Prahlad Singh (P.W.3), S.I. Devprakash Rawat (P.W.4), Dr. S.P. Ojha (P.W.5), S.I. Ashok Kumar Tiwari (P.W.6) and Retd. S.I. Kishanpal Singh (P.W.7). P.W.1-Rakesh had proved the written report; P.W.4-S.I. Devprakash Rawat had proved chik F.I.R., report regarding loss of original G.D. and copy of G.D; P.W.5-Dr. S.P. Ojha proved the post-mortem report of the deceased; P.W.6-S.I. Ashok Kumar Tiwari proved the inquest report, sample seal, letter to R.I., photo lash, challan lash, letter to C.M.O., blood stained and plain earth, site plan, recovery of Banka from the pointing out of accused Rampal, site plan of recovery of banka and documents regarding sealing banka and blood stained earth and plain earth sending it to Forensic Laboratory and charge—sheet; and P.W.7-Retd. S.I. Kishanpal Singh had proved the report (Ext. Ka. 19) submitted before the Court.

8. After recording of the evidence of the prosecution, the statements of the accused/respondents were recorded under Section 313 Cr.P.C., who denied the testimonies/allegations made by P.W.1-Rakesh, however, they 4 A378 No. 205 of 2013 could not say anything regarding the testimony of P.W.2-Balakram. In regard testimony P.W.4-S.I. Devprakash Rawat, accused/respondents had stated that at the instance of Constable Ram Bharosey and complainant, ante date and ante time report was registered, for which false testimony has been given. In regard to testimony of P.W.5-Dr. S.P. Ojha, accused respondents stated that they have nothing to say. In regard to testimony of P.W.6-S.I. Ashok Kumar Tiwari, accused/respondents stated that on the pressure of complainant, ante- dated and ante-time documents based on the wrong facts were prepared and banka was not recovered on the pointing out of accused Rampal from the field of sugarcane, but to emphasize the matter, P.W.6 had recorded the forged statements of the witnesses and all the documents were prepared on the advise of the complainant. In regard to P.W.7- Vedprakash Rawat, accused/respondents have stated that P.W.7 gave statement on the basis of wrong and incorrect facts. In addition to the aforesaid statements, accused/respondents stated that at the time of incident, deceased was having lot of money because of which miscreants had looted the deceased and also killed the deceased, however, because of partybandi in the village, a case of murder was lodged against them. However, no evidence by the defence was led.

9. Learned trial Court considered the evidence available on record and finding material contradiction in the statement of P.W.1-Rakesh and P.W.2-Balakram recorded before the trial Court and also finding various discrepancies in the statement of the other witnesses has given a finding that the prosecution has not been able to prove the charges against the accused/respondents beyond reasonable doubt and accordingly, acquitted the accused/respondents of the charges for which the accused/respondents 5 A378 No. 205 of 2013 were tried giving him benefit of doubt by means of judgment and order dated 19.07.2013.

10. We have considered the submissions advanced by learned Additional Government Advocate appearing for the State and gone through the records.

11. Before appreciating the findings of the trial Court while acquitting the accused/respondents by means of the impugned judgment and order dated

19.07.2013, we deem it apt to mention herein that in State of Rajasthan Vs. Shera Ram alias Vishnu Dutta, reported in (2012) 1 SCC 602, Hon’ble Supreme Court has held that though there is no substantial difference between an appeal against conviction and an appeal against acquittal, however, what is to be borne in mind while dealing with an appeal against acquittal is that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the trial Court is a reasonable one and the conclusion reached by it is based on the material on record, the acquittal may not be interfered with. In this case, Hon’ble Supreme Court has also observed that though there is no absolute restriction to re-look the entire evidence on which the order of acquittal is based, however, it is only if the appellate Court finds that the decision of the trial Court is based on an erroneous view and is against the settled principles of law, then, the order of acquittal should be set aside. Paragraphs 10 and 11 of the judgment in the case of Shera Ram (supra) are relevant which are extracted herein below :- "10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal 6 A378 No. 205 of 2013 against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.

11. Also, this Court in Abdul Mannan case had the occasion to state the principles which may be taken into consideration by the appellate court while dealing with an appeal against acquittal. There is no absolute restriction in law to review and re-look the entire evidence on which the order of acquittal is founded. If, upon scrutiny, the appellate court finds that the lower court's decision is based on erroneous views and against the settled position of law then the said order of acquittal should be set aside".

12. In Shyam Babu Vs. State of U.P. : (2012) 8 SCC 651, Hon'ble Supreme Court has reiterated the principles on which the Appellate Court may interfere with the order of acquittal passed by the trial court. Hon'ble Supreme Court has stated in Shyam Babu (supra) that the Appellate Court while entertaining the appeal against the judgment of acquittal rendered by the trial Court is though entitled to re-appreciate the evidence and come to an independent conclusion, however, such interference with the order of acquittal should not be made unless the decision of the trial Court is found perverse or unreasonable resulting in miscarriage of justice. Para- 16 of Shyam Babu (supra) is relevant, which is reproduced herein below:- "16. It is true that it would not be possible for the appellate Court to interfere with the order of acquittal passed by the trial Court without rendering specific finding, namely, that the decision of the trial Court is perverse or unreasonable resulting in miscarriage of justice. At the same time, it cannot be denied that the appellate Court while entertaining an appeal against the judgment of acquittal by the trial Court is entitled to re-appreciate the evidence and come to an independent conclusion. We are conscious of the fact that in doing so, the appellate Court should consider every material on record and the reasons given by the trial Court in support of its order of 7 A378 No. 205 of 2013 acquittal and should interfere only on being satisfied that the view taken by the trial Court is perverse and unreasonable resulting in miscarriage of justice. We also reiterate that if two views are possible on a set of evidence, then the appellate Court need not substitute its own view in preference to the view of the trial Court which has recorded an order of acquittal".

13. Keeping in view the aforesaid principles of law enunciated by the Hon'ble Supreme Court regarding scope and ambit of this Court in an appeal filed against the judgment of acquittal, we now proceed to examine whether the prayer made by the State in this case for grant of leave to appeal can be granted. Such grant of leave will be permissible only if the judgment of acquittal in this case is found suffering from any manifest legal infirmity or is found based on erroneous appreciation of evidence.

14. As observed above, the prosecution has examined seven prosecution witnesse, out of which P.W.2-Balakram and P.W.3-Prahlad Singh were declared hostile, as, both the witnesses have not supported the prosecution case. P.W.2-Balakram had deposed before the trial Court that he was not present on the date, time and place of the incident as he was at his house, whereas P.W.3-Prahlad Singh, who is the witness of arrest of accused as well as recovery of banka and other articles as per the case of the prosecution, had deposed before the trial Court that he was not present at the time of incident nor he saw the deadbody of the deceased nor the police had arrested the accused in his presence nor recovered the banka or any articles in his presence.

15. The statement of complainant, PW.1-Rakesh, is relevant to be discussed at this juncture. Complainant P.W.1-Rakesh had stated in the written report that when he along with Balakram (P.W.2) were coming to home from Wazirnagar after getting oil extracted from oil expeller, they heard the noise of his brother Karan and went there and saw 8 A378 No. 205 of 2013 accused/respondents escaped with blood stained banka and countrymade pistol, but in examination-in-chief, P.W.1-Rakesh had deposed before the trial Court that he saw the accused persons killing the deceased and also described the role of each accused. Thus, the trial Court came to the conclusion that there are major contradiction in the factum of incident narrated in the written report by the complainant and the testimony of P.W.1-Rakesh deposed in the trial Court.

16. The trial Court has found P.W.1-Rakesh as chance witness because house of the deceased and the house of the complainant are at the distance of about 1 K.M. and as such presence of P.W.1 at the place of occurrence appears to be not natural. The trial Court had also found the presence of P.W.1-Rakesh at the place of occurrence doubtful because in his deposition, P.W.1 had stated that while he was coming along with Balakram after extracting oil from oil expeller, he saw the incident. The trial Court found that P.W.1 had not only described the role of each accused persons but also stated that accused persons hid in the maize and sorghum field of Amrika Prasad and from this field, accused persons came out and surrounded his brother Karan and thereafter assaulted him and then his brother Karan raised alarm and on hearing his brother’s alarm, he reached the place of occurrence. Learned trial Court in the judgment of acquittal has thus found that this is quite unnatural that when P.W.1 reached the place of occurrence on hearing the alarm of his brother Karan, then, as to how he had seen the accused persons hidding in the maize and sorghum field of Amrika Prasad and saw the accused persons surrounded his brother Karan. The trial Court has also found that P.W.1 had deposed that when he along with Balakram (P.W.2) were going to the market at about 03:00 p.m., then, at that time also he saw the accused 9 A378 No. 205 of 2013 persons hid in the said field. But the complainant has neither asserted these facts in the written report nor stated to the Investigating Officer in his statement. Thus, the trial Court came to the conclusion that this statement of P.W.1 appears to be fabricated. Thus, in case there is material contradiction in the statement made before the court during trial and no sufficient believable explanation comes-forth complainant for such material contradiction, the benefit should go to the accused.

17. Having examined the judgment passed by the trial court, what we find is that learned trial Court has considered the evidence on record thoroughly and has rightly given a finding that P.W.1-Rakesh had attempted to make deliberate improvement on the material point. He has also not been able to give any explanation which can be said to be satisfactory on any count about material contradiction between what he had stated in the written report and what he had stated before the trial Court in his deposition.

18. In view of above, based on the statement of P.W.1 coupled with other material evidence, learned trial Court has given a finding that this witness (P.W.1) was neither present on the date, time and place of incident nor saw the incident and he was a chance witness, therefore, his testimony cannot be reliable. In any case, even if another view is possible, in absence of any compelling and substantial reason, the appellate Court dealing with appeal against acquittal would not interfere with the acquittal unless the approach of the trial Court is found to be manifestly vitiated while it makes consideration of evidences.

19. In the light of the discussion made above, what we find is that in the 10 A378 No. 205 of 2013 instant case the view taken by the learned trial Court for acquitting the accused was a possible and plausible view on the basis of analysis of evidence available on record and further, we do not find any perversity in the finding recorded by the learned trial Court.

20. Accordingly, the application seeking leave to appeal in this case is hereby rejected. Consequently, the appeal is also dismissed. November 4, 2025 Ajit (Zafeer Ahmad,J.) (Rajnish Kumar,J.) AJIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

banka and with firing. At that time, complainant and Balakram son of Cheddu of his village were coming to home from Wazirnagar after getting oil extracted from oil expeller, upon which they heard the noise of his brother Karan and as such, they came running to the spot and saw accused/respondents escaped with blood stained banka and countrymade pistol. On hue and cry, some villagers also came there and saw the accused/respondents escaped.

6. On the basis of aforesaid written report, F.I.R., bearing Case Crime No. 163 of 2005, under Section 302 I.P.C., at Police Station Pisawan, District 3 A378 No. 205 of 2013 Sitapur was registered and after investigation, a charge sheet was submitted against the accused/respondents, Rampal, Suresh and Ramratan, under Section 302 I.P.C. The Chief Judicial Magistrate, Sitapur took cognizance and summoned the accused/respondents. On appearance of the accused, the case was committed to the Sessions Court on

30.08.2008, wherein charges against the accused/respondents were framed under Section 302/34 I.P.C. on 21.05.2009. who pleaded not guilty to the charges and claimed trial. Accordingly, the trial commenced.

7. The prosecution in order to bring home the charges against the accused/respondents examined seven prosecution witnesses, namely, complainant-Rakesh (P.W.1), Balak Ram (P.W.2), Prahlad Singh (P.W.3), S.I. Devprakash Rawat (P.W.4), Dr. S.P. Ojha (P.W.5), S.I. Ashok Kumar Tiwari (P.W.6) and Retd. S.I. Kishanpal Singh (P.W.7). P.W.1-Rakesh had proved the written report; P.W.4-S.I. Devprakash Rawat had proved chik F.I.R., report regarding loss of original G.D. and copy of G.D; P.W.5-Dr. S.P. Ojha proved the post-mortem report of the deceased; P.W.6-S.I. Ashok Kumar Tiwari proved the inquest report, sample seal, letter to R.I., photo lash, challan lash, letter to C.M.O., blood stained and plain earth, site plan, recovery of Banka from the pointing out of accused Rampal, site plan of recovery of banka and documents regarding sealing banka and blood stained earth and plain earth sending it to Forensic Laboratory and charge—sheet; and P.W.7-Retd. S.I. Kishanpal Singh had proved the report (Ext. Ka. 19) submitted before the Court.

8. After recording of the evidence of the prosecution, the statements of the accused/respondents were recorded under Section 313 Cr.P.C., who denied the testimonies/allegations made by P.W.1-Rakesh, however, they 4 A378 No. 205 of 2013 could not say anything regarding the testimony of P.W.2-Balakram. In regard testimony P.W.4-S.I. Devprakash Rawat, accused/respondents had stated that at the instance of Constable Ram Bharosey and complainant, ante date and ante time report was registered, for which false testimony has been given. In regard to testimony of P.W.5-Dr. S.P. Ojha, accused respondents stated that they have nothing to say. In regard to testimony of P.W.6-S.I. Ashok Kumar Tiwari, accused/respondents stated that on the pressure of complainant, ante- dated and ante-time documents based on the wrong facts were prepared and banka was not recovered on the pointing out of accused Rampal from the field of sugarcane, but to emphasize the matter, P.W.6 had recorded the forged statements of the witnesses and all the documents were prepared on the advise of the complainant. In regard to P.W.7- Vedprakash Rawat, accused/respondents have stated that P.W.7 gave statement on the basis of wrong and incorrect facts. In addition to the aforesaid statements, accused/respondents stated that at the time of incident, deceased was having lot of money because of which miscreants had looted the deceased and also killed the deceased, however, because of partybandi in the village, a case of murder was lodged against them. However, no evidence by the defence was led.

9. Learned trial Court considered the evidence available on record and finding material contradiction in the statement of P.W.1-Rakesh and P.W.2-Balakram recorded before the trial Court and also finding various discrepancies in the statement of the other witnesses has given a finding that the prosecution has not been able to prove the charges against the accused/respondents beyond reasonable doubt and accordingly, acquitted the accused/respondents of the charges for which the accused/respondents 5 A378 No. 205 of 2013 were tried giving him benefit of doubt by means of judgment and order dated 19.07.2013.

10. We have considered the submissions advanced by learned Additional Government Advocate appearing for the State and gone through the records.

11. Before appreciating the findings of the trial Court while acquitting the accused/respondents by means of the impugned judgment and order dated

19.07.2013, we deem it apt to mention herein that in State of Rajasthan Vs. Shera Ram alias Vishnu Dutta, reported in (2012) 1 SCC 602, Hon’ble Supreme Court has held that though there is no substantial difference between an appeal against conviction and an appeal against acquittal, however, what is to be borne in mind while dealing with an appeal against acquittal is that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the trial Court is a reasonable one and the conclusion reached by it is based on the material on record, the acquittal may not be interfered with. In this case, Hon’ble Supreme Court has also observed that though there is no absolute restriction to re-look the entire evidence on which the order of acquittal is based, however, it is only if the appellate Court finds that the decision of the trial Court is based on an erroneous view and is against the settled principles of law, then, the order of acquittal should be set aside. Paragraphs 10 and 11 of the judgment in the case of Shera Ram (supra) are relevant which are extracted herein below :- "10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal 6 A378 No. 205 of 2013 against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.

11. Also, this Court in Abdul Mannan case had the occasion to state the principles which may be taken into consideration by the appellate court while dealing with an appeal against acquittal. There is no absolute restriction in law to review and re-look the entire evidence on which the order of acquittal is founded. If, upon scrutiny, the appellate court finds that the lower court's decision is based on erroneous views and against the settled position of law then the said order of acquittal should be set aside".

12. In Shyam Babu Vs. State of U.P. : (2012) 8 SCC 651, Hon'ble Supreme Court has reiterated the principles on which the Appellate Court may interfere with the order of acquittal passed by the trial court. Hon'ble Supreme Court has stated in Shyam Babu (supra) that the Appellate Court while entertaining the appeal against the judgment of acquittal rendered by the trial Court is though entitled to re-appreciate the evidence and come to an independent conclusion, however, such interference with the order of acquittal should not be made unless the decision of the trial Court is found perverse or unreasonable resulting in miscarriage of justice. Para- 16 of Shyam Babu (supra) is relevant, which is reproduced herein below:- "16. It is true that it would not be possible for the appellate Court to interfere with the order of acquittal passed by the trial Court without rendering specific finding, namely, that the decision of the trial Court is perverse or unreasonable resulting in miscarriage of justice. At the same time, it cannot be denied that the appellate Court while entertaining an appeal against the judgment of acquittal by the trial Court is entitled to re-appreciate the evidence and come to an independent conclusion. We are conscious of the fact that in doing so, the appellate Court should consider every material on record and the reasons given by the trial Court in support of its order of 7 A378 No. 205 of 2013 acquittal and should interfere only on being satisfied that the view taken by the trial Court is perverse and unreasonable resulting in miscarriage of justice. We also reiterate that if two views are possible on a set of evidence, then the appellate Court need not substitute its own view in preference to the view of the trial Court which has recorded an order of acquittal".

13. Keeping in view the aforesaid principles of law enunciated by the Hon'ble Supreme Court regarding scope and ambit of this Court in an appeal filed against the judgment of acquittal, we now proceed to examine whether the prayer made by the State in this case for grant of leave to appeal can be granted. Such grant of leave will be permissible only if the judgment of acquittal in this case is found suffering from any manifest legal infirmity or is found based on erroneous appreciation of evidence.

14. As observed above, the prosecution has examined seven prosecution witnesse, out of which P.W.2-Balakram and P.W.3-Prahlad Singh were declared hostile, as, both the witnesses have not supported the prosecution case. P.W.2-Balakram had deposed before the trial Court that he was not present on the date, time and place of the incident as he was at his house, whereas P.W.3-Prahlad Singh, who is the witness of arrest of accused as well as recovery of banka and other articles as per the case of the prosecution, had deposed before the trial Court that he was not present at the time of incident nor he saw the deadbody of the deceased nor the police had arrested the accused in his presence nor recovered the banka or any articles in his presence.

15. The statement of complainant, PW.1-Rakesh, is relevant to be discussed at this juncture. Complainant P.W.1-Rakesh had stated in the written report that when he along with Balakram (P.W.2) were coming to home from Wazirnagar after getting oil extracted from oil expeller, they heard the noise of his brother Karan and went there and saw 8 A378 No. 205 of 2013 accused/respondents escaped with blood stained banka and countrymade pistol, but in examination-in-chief, P.W.1-Rakesh had deposed before the trial Court that he saw the accused persons killing the deceased and also described the role of each accused. Thus, the trial Court came to the conclusion that there are major contradiction in the factum of incident narrated in the written report by the complainant and the testimony of P.W.1-Rakesh deposed in the trial Court.

16. The trial Court has found P.W.1-Rakesh as chance witness because house of the deceased and the house of the complainant are at the distance of about 1 K.M. and as such presence of P.W.1 at the place of occurrence appears to be not natural. The trial Court had also found the presence of P.W.1-Rakesh at the place of occurrence doubtful because in his deposition, P.W.1 had stated that while he was coming along with Balakram after extracting oil from oil expeller, he saw the incident. The trial Court found that P.W.1 had not only described the role of each accused persons but also stated that accused persons hid in the maize and sorghum field of Amrika Prasad and from this field, accused persons came out and surrounded his brother Karan and thereafter assaulted him and then his brother Karan raised alarm and on hearing his brother’s alarm, he reached the place of occurrence. Learned trial Court in the judgment of acquittal has thus found that this is quite unnatural that when P.W.1 reached the place of occurrence on hearing the alarm of his brother Karan, then, as to how he had seen the accused persons hidding in the maize and sorghum field of Amrika Prasad and saw the accused persons surrounded his brother Karan. The trial Court has also found that P.W.1 had deposed that when he along with Balakram (P.W.2) were going to the market at about 03:00 p.m., then, at that time also he saw the accused 9 A378 No. 205 of 2013 persons hid in the said field. But the complainant has neither asserted these facts in the written report nor stated to the Investigating Officer in his statement. Thus, the trial Court came to the conclusion that this statement of P.W.1 appears to be fabricated. Thus, in case there is material contradiction in the statement made before the court during trial and no sufficient believable explanation comes-forth complainant for such material contradiction, the benefit should go to the accused.

17. Having examined the judgment passed by the trial court, what we find is that learned trial Court has considered the evidence on record thoroughly and has rightly given a finding that P.W.1-Rakesh had attempted to make deliberate improvement on the material point. He has also not been able to give any explanation which can be said to be satisfactory on any count about material contradiction between what he had stated in the written report and what he had stated before the trial Court in his deposition.

18. In view of above, based on the statement of P.W.1 coupled with other material evidence, learned trial Court has given a finding that this witness (P.W.1) was neither present on the date, time and place of incident nor saw the incident and he was a chance witness, therefore, his testimony cannot be reliable. In any case, even if another view is possible, in absence of any compelling and substantial reason, the appellate Court dealing with appeal against acquittal would not interfere with the acquittal unless the approach of the trial Court is found to be manifestly vitiated while it makes consideration of evidences.

19. In the light of the discussion made above, what we find is that in the 10 A378 No. 205 of 2013 instant case the view taken by the learned trial Court for acquitting the accused was a possible and plausible view on the basis of analysis of evidence available on record and further, we do not find any perversity in the finding recorded by the learned trial Court.

20. Accordingly, the application seeking leave to appeal in this case is hereby rejected. Consequently, the appeal is also dismissed. November 4, 2025 Ajit (Zafeer Ahmad,J.) (Rajnish Kumar,J.) AJIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench