Uttarakhand High Court
CRLA/85/2013 on 22 March, 2022
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE ACTING CHIEF JUSTICE SHRI SANJAYA KUMAR MISHRA
AND
JUSTICE SHRI RAMESH CHANDRA KHULBE
CRIMINAL APPEAL NO.85 OF 2013
22nd MARCH, 2022
Between:
Mohd. Harun ...... Appellant
State of Uttarakhand and Others ...... Respondents
Counsel for the appellant : Mr. H.C. Pande, learned counsel.
Counsel for the State : Mr. Amit Bhatt, learned Deputy
Advocate General along with
Mr. Pankaj Joshi, learned Brief
Holder for the State.
Counsel for Respondent Nos.2&3 : Mr. Piyush Sammal, learned
counsel holding brief of Mr. R.S.
Sammal.
Upon hearing the learned Counsel, the Court made the
following
JUDGMENT: (per the Acting Chief Justice Shri Sanjaya Kumar Mishra)
This is an appeal against acquittal. The
complainant in Sessions Trial No.146 of 2007 has
assailed the final judgment passed by the learned
Additional Sessions Judge, Haldwani, District Nainital on
dated 29.01.2013 acquitting respondent nos.2 and 3 for
the offences u/s 395, 397, 506 and 427 of Indian Penal
Code, 1860 (referred to as "the Penal Code"). The case
is initiated on a private complaint, which was forwarded
to the police having jurisdiction u/s 156(3) of the Code of
Criminal Procedure (hereinafter referred to as "the
Cr.P.C."). After investigation of the case, the protest
petition was treated as a complaint and inquiry under
Section 202 of the Code was taken up and the learned
Magistrate took cognizance of the offences.
2. In this case the prosecution alleges that on the
date of occurrence that is on 27.07.2006, the respondent
nos. 2 & 3 trespassed into the premises of the
complainant and damaged his residential house as well
as uprooted some plants and trees from the place. The
prosecution case was not believed by the learned
Additional Sessions Judge on the ground that the alleged
eye-witnesses are in relations and they have dispute with
the private respondent nos.2 & 3. The post-occurrence
witnesses were also not disbelieved.
3. In this connection, we take into consideration
the settled principle of law governing appeal against
acquittal as enunciated by the Hon'ble Supreme Court in
the case of Ghurey Lal vs. State of U.P. reported in
(2008) 10 SCC 450, wherein the Hon'ble Supreme
Court after taking into consideration several earlier
judgments pronounced by it, has laid down following
principles of law while deciding the appeal against the
judgment of acquittal: -
"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.
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(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."
4. It is trite law that the appellate court while
reassessing the evidence in a case wherein acquittal has
been recorded by the learned Trial Judge may come to a
different conclusion than the conclusion arrived at by the
learned Trial Judge but that shall not be a ground to
allow the appeal and set aside the acquittal leading to
3
conviction of the respondent. It is also trite law that the
presumption of innocence which is available to the
accused persons at the beginning of the trial it becomes
reinforced by an order of acquittal by the Trial Judge.
5. So, in this case, we are of the opinion that this
is not a case where the evidences have not been
discussed properly by the learned Sessions Judge or that
he committed material irregularity and perversity while
appreciating the evidence of the prosecution's witnesses.
So, in other words, we do not find any compelling and
substantial reasons to disturb the findings of acquittal of
the private respondents by the learned Trial Judge.
6. In that view of the matter, since the Criminal
Appeal lacks merit, hence, the instant criminal appeal
against acquittal is dismissed.
7. Urgent certified copy of the order be supplied
to the learned counsel for the parties, as per rules.
_______________________
SANJAYA KUMAR MISHRA, A.C.J.
______________
RAMESH CHANDRA KHULBE, J.
Dated: 22nd MARCH, 2022
SS/RB
