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2021 DIGILAW 804 (UTT)

STATE OF UTTARAKHAND v. HARDAYAL

2021-12-28

N.S.DHANIK, S.K.MISHRA

body2021
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 re-appreciate 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. Its power of reviewing evidence is wide and the appellate court can re-appreciate 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. (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. 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.