TMI Blog2022 (1) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... entire evidence on record. In fact, the High Court has only made the general observations on the deposition of the witnesses examined. However, there is no reappreciation of entire evidence on record in detail, which ought to have been done by the High Court, being a first appellate court. Under the circumstances on the aforesaid ground alone, impugned judgment and order passed by the High Court deserves to be quashed and set aside and the same is to be remanded back to the High Court to decide the appeal afresh in accordance with law and on its own merits being mindful of the observations made. The impugned judgment and order passed by the High Court is hereby quashed and set aside. The appeal before the High Court is ordered to be restored to its original file. - CRIMINAL APPEAL NO. 78 OF 2022 - - - Dated:- 18-1-2022 - M. R. SHAH AND B. V. NAGARATHNA, JJ. For the Appellant : Mr. T. V. George, AOR For the Respondent : Mr. Adarsh Upadhyay, AOR, Mr. Amol Chitravanshi, Adv., Mr. Md. Shahid Anwar, AOR, Mr. Amir Naseem, Adv., Mr. Aryan P. Nanda, Adv., Mr. Naeem Ilyas, Adv., Mr. Zulfiqar Ali Khan, Adv., Mr. Firoz Shaikh, Adv. JUDGMENT M. R. Shah, J. 1. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is one page/paragraph order. After observing in paragraph 3 that I have gone through the judgment of the learned Trial Court carefully thereafter without further elaborate reappreciation of the entire evidence on record the High Court has dismissed the appeal by observing in paragraph 4 as under: 4. Trial Court has considered the statement of P.W.2 carefully and has found that the testimony of P.W.2 cannot be relied on for offence under Sections 354, 504, 506 IPC, 3(1)(x) and 3(1)(xi) S.C./S.T. Act. There is no corroboration to the testimony of P.W.2 when the trial Court itself has found the testimony of P.W.2 doubtful. There is no ground to interfere with the well considered judgment of trial Court and, therefore, I find this appeal without merit and substance. The appeal is thus, dismissed. 6. We are constrained to observe that this is not the manner in which the High Court should have dealt with the appeal against an order of acquittal which as such is a first appeal against the order of acquittal. The High Court has only made general observations on the deposition of the witness examined. However, there is no reappreciation of the entire evidence in detail which exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. [Balak Ram v. State of U.P., (1975) 3 SCC 219], Shambhoo Missir v. State of Bihar [Shambhoo Missir v. State of Bihar, (1990) 4 SCC 17] , Shailendra Pratap v. State of U.P. [Shailendra Pratap v. State of U.P., (2003) 1 SCC 761], Narendra Singh v. State of M.P. [Narendra Singh v. State of M.P., (2004) 10 SCC 699], Budh Singh v. State of U.P. [Budh Singh v. State of U.P., (2006) 9 SCC 731], State of U.P. v. Ram Veer Singh [State of U.P. v. Ram Veer Singh, (2007) 13 SCC 102], S. Rama Krishna v. S. Rami Reddy [S. Rama Krishna v. S. Rami Reddy, (2008) 5 SCC 535], Arulvelu v. State [Arulvelu v. State, (2009) 10 SCC 206], Perla Somasekhara Reddy v. State of A.P. [Perla Somasekhara Reddy v. State of A.P., (2009) 16 SCC 98] and Ram Singh v. State of H.P. [Ram Singh v. State of H.P., (2010) 2 SCC 445) 13. In Sheo Swarup v. King Empero ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 U.P. [Ghurey Lal v. State of U.P., (2008) 10 SCC 450 : (2009) 1 SCC (Cri) 60] , this Court reiterated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r view is possible should be avoided, unless there are good reasons for interference 16. When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in para 20 of the aforesaid decision, which reads as under : (Babu case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , SCC p. 199) 20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence , or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L S) 131] , Excise Taxation OfficercumAssessing Authority v. Gopi Nath Sons [Excise Taxation OfficercumAssessing Authority v. Gopi Nath Sons, 1992 Supp (2) SCC 312] , Triveni Rubber Plastics v. CCE [Triveni Rubber Plastics v. CCE, 1994 Supp (3) SCC 665] , Gaya Din v. Hanuman Prasad [Gaya Din v. Hanuman Prasad, (2001) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. 31.1. In Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] , the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under : (SCC p. 416) 8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 31.3. In Atley v. State of U.P. [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653] , in para 5, this Court observed and held as under : (AIR pp. 80910) 5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case. 19. In Atley v. State of U.P. [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653] , this Court has observed and held as under : (AIR pp. 80910, para 5) 5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the High Court is totally erroneous as it has ignored the settled legal position. As observed hereinabove, the High Court has not at all discussed and/or reappreciated the entire evidence on record. In fact, the High Court has only made the general observations on the deposition of the witnesses examined. However, there is no reappreciation of entire evidence on record in detail, which ought to have been done by the High Court, being a first appellate court. Under the circumstances on the aforesaid ground alone, impugned judgment and order passed by the High Court deserves to be quashed and set aside and the same is to be remanded back to the High Court to decide the appeal afresh in accordance with law and on its own merits being mindful of the observations made hereinabove. 8. In view of the above and for the reasons stated above and without expressing anything on the merits of the case, the present appeal is allowed. The impugned judgment and order passed by the High Court in Criminal Appeal No.2356 of 2019 is hereby quashed and set aside. The appeal before the High Court is ordered to be restored to its original file. The High Court to decide and dispose of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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