Uttarakhand High Court
GA/71/2021 on 28 December, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
SRI JUSTICE S.K. MISHRA, A.C.J.
AND
SRI JUSTICE N.S. DHANIK, J.
28TH DECEMBER, 2021
SPECIAL LEAVE TO APPEAL No. 146 OF 2021
WITH
GOVERNMENT APPEAL No. 71 OF 2021
Between:
State of Uttarakhand.
...Appellant
and
Hardayal and another.
...Respondents
Counsel for the appellant. : Mr. J.S. Virk, the learned Deputy
Advocate General assisted by Mr.
Rajesh Joshi, the learned Brief Holder
for the State of Uttarakhand.
Upon hearing the Learned Counsel, the Court made
the following
JUDGMENT : (per Sri S.K. Mishra, A.C.J.)
In this application, filed under Section 378(3)
of the Code of Criminal Procedure, 1973 (hereinafter
referred to as 'the Code', for brevity), the appellant-
State of Uttarakhand has prayed for grant of leave to
appeal against an order of acquittal.
2. The proposed respondents in this case have
been acquitted by the learned First Additional District
and Sessions Judge, Udham Singh Nagar in Session
Case No. 305 of 2013 as per the judgment dated
31.08.2021 on the ground that the prosecution has
failed to establish the complete chain of circumstances
unerringly pointing towards the guilt of the accused
respondents.
3. The appeal is filed with a delay of 25 days.
Keeping in view the short duration of delay, and the red
tapism that is generally found in the administrative
matters, the delay of 25 days is, hereby, condoned.
Delay Condonation Application (IA No. 01 of 2021) is,
hereby, allowed.
4. However, considering the facts of the case and
the materials available on record, we are of the opinion
that no compelling reasons are put forth by the learned
Deputy Advocate General, Mr. J.S. Virk, to grant the
leave to appeal against an order of acquittal. In this
connection, we take note of the reported case of State
of Orissa v. Urmila Nayak; (2021) 81 OCR - 619, in
which one of us, (namely S.K. Mishra, A.C.J.), was a
member, wherein the High Court of Orissa, after taking
into consideration the case of Ghurey Lal v. State of
U.P.; (2008) 10 SCC 450, has held as follows :-
"6. After taking into consideration the aforesaid two
cases and several other authoritative pronouncements made
by the Hon'ble Supreme Court, the Division Bench of the
Hon'ble Supreme Court in the case of Ghurey Lal Vs. State
of U.P., (supra) has summarized the principles that emerged
from the referred cases. They are:-
"(1) The appellate court may review the
evidence in appeals against acquittal under Sections
378 and 386 of the Criminal Procedure Code, 1973.
Its power of reviewing evidence is wide and the
appellate court can reappreciate the entire evidence
on record. It can review the trial court's conclusion
with respect to both facts and law.
(2) The accused is presumed innocent until
proven guilty. The accused possessed his presumption
when he was before the trial court. The trial court's
acquittal bolsters the presumption that he is innocent.
(3) Due or proper weight and consideration
must be given to the trial court's decision. This is
especially true when a witness' credibility is at issue.
It is not enough for the High Court to take a different
view of the evidence. There must also be substantial
and compelling reasons for holding that trial court was
wrong. In the light of the above, the High Court and
other appellate courts should follow the well settled
principles crystallized by number of judgments if it is
going to overrule or otherwise disturb the trial court's
acquittal:
(1) The appellate court may only overrule or
otherwise disturb the trial court's acquittal if it has
"very substantial and compelling reasons" for doing
so. A number of instances arise in which the appellate
court would have "very substantial and compelling
reasons" to discard the trial court's decision. "Very
substantial and compelling reasons" exist when:
(i) The trial court's conclusion with regard to the
facts is palpably wrong;
(ii) The trial court's decision was based on an
erroneous view of law;
(iii) The trial court's judgment is likely to result
in "grave miscarriage of justice";
(iv) The entire approach of the trial court in
dealing with the evidence was patently illegal;
(v) The trial court's judgment was manifestly
unjust and unreasonable;
(vi) The trial court has ignored the evidence or
misread the material evidence or has ignored material
documents like dying declarations/report of the
Ballistic expert, etc.
(vii) This list is intended to be illustrative, not
exhaustive.
(2) The Appellate Court must always give proper
weight and consideration to the findings of the trial
court.
(3) If two reasonable views can be reached, one
that leads to acquittal, the other to conviction-the
High courts/appellate courts must rule in favour of the
accused."
7. No doubt the judgment rendered by the Hon'ble
Supreme Court in Ghurey Lal Vs. State of U.P., (supra)'s
case relates to final judgment of the appeal against
acquittal, but we are of the opinion that those
Considerations also should weigh in the mind of the Court
while granting the leave to file appeal against acquittal.
However, while considering the desirability or otherwise of
granting leave to appeal against acquittal, the appellate
Court, at the first instance, is required to, prima facie, be
satisfied about the existence of conditions that are required
for overturning a judgment of acquittal to one of conviction
While deciding a matter regarding grant of leave to appeal
against acquittal, the Court must be satisfied, prima facie,
that at the final hearing of the appeal 'very substantial and
compelling reasons' can be shown, on the basis of which it
will be most reasonable to overturn a judgment of acquittal.
Only then the appellate court should grant the leave to
appeal against acquittal."
5. Thus, keeping in view the aforesaid principles,
this Court comes to the conclusion, after analysis of the
impugned judgment, that the prosecution has not only
failed to prove a complete chain of circumstances
unerringly pointing towards the guilt of the accused
respondents, but also the prosecution has failed to
establish any compelling reasons to grant leave to
appeal against an order of acquittal.
6. It may be noted here that the learned Deputy
Advocate General has pointed out that the deceased and
the accused respondents were residing in one house.
The deceased being their tenant, they gave information
to the parents of the deceased that he committed
suicide, whereas the deceased met with a homicidal
death by asphyxia as a result of strangulation.
However, such facts may give rise to a strong suspicion,
but it cannot take the place of a legal proof.
7. In that view of the matter, we are of the
opinion that as per the reported cases of State of
Orissa v. Urmila Nayak, (supra) and Ghurey Lal v.
State of U.P., (supra), this is not a fit case to grant
leave to appeal against acquittal by the State of
Uttarakhand.
8. Though, the application for condonation of
delay has been allowed, the application for grant of
leave to appeal (SPLA No. 146 of 2021) is, hereby,
dismissed.
9. Consequently, Government Appeal No. 71 of
2021 is, hereby, dismissed as not admitted.
10. Urgent certified copy of this judgment be
granted to the parties on proper application.
________________
S.K. MISHRA, A.C.J.
_____________
N.S. DHANIK, J.
Dt: 28th December, 2021
Rahul
