Uttarakhand High Court
State Of Uttaranchal vs Rajpal Yadav And Another on 25 August, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
Reserved on 05.08.2025
Delivered on 25.08.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Government Appeal No. 128 of 2008
State of Uttaranchal ......Appellant
Versus
Rajpal Yadav and another ....Respondents
Present:
Ms. Manisha Rana Singh, Deputy Advocate General for the State.
Mr. Hari Om Bhakuni, Advocate for the respondents.
JUDGMENT
Hon’ble Ravindra Maithani, J.
The challenge in this appeal is made to the judgment and
order dated 13.07.2004 passed in Case No. 641 of 1994, State v. Rajpal
Yadav and another, by the court of Civil Judge (Jr. Division),
Rishikesh, by which the respondents (“the accused”) have been
acquitted of the charge under Sections 323, 325, 394 IPC.
2. Heard learned counsel for the parties and perused the file.
3. The prosecution case, briefly stated, is as follows. On
22.02.1994, at about 02:30 p.m., when PW 1 Gauri Shankar was in
his work place, suddenly the appellants entered. Accused Rajpal
Singh had a knife and the accused Nem Chand Yadav had a lathi.
They attacked PW 1 Gauri Shankar due to which his left leg was
fractured and he sustained various injuries. By that moment, PW 2
Dhakanath Subedi was working with PW 1 Gauri Shankar. PW 2
2
Dhakanath Subedi, one Rishipal, his wife, wife of Tara Dutt and many
other persons reached at that place. While fleeing away from the spot,
the accused snatched money and jewellery from PW 1 Gauri Shankar.
PW 1 Gauri Shankar was taken to hospital immediately thereafter. He
was examined by PW 3 Dr. Narendra Bahadur Srivastava at 03:00
p.m. He examined PW 1 Gauri Shankar and prepared the medical
examination report, Ex. A-2. He noted the following injuries in the
report:
“1. 3 cm x 2 cm on shell. Rt. Side occipital region, 5 cm
above occipital protuberance, reddish.
2. Abrasion 4 cm x 5 cm on ulnar surface of Lt.
forearm, 6 cm. below Lt. elbow.
3. Multiple abrasion Lt. forearm medial surface 3 cm
above wrist joint.
4. C/o pain in little finger, Lt. hand, movement painful
5. Swelling 5 cm x 5 cm on Left lower portion of leg (Lt.
Leg), swelling present on lateral aspect, swelling is
involving ankle joint. Abnormal movement present.
6. Abrasion on Rt. Knee joint, 5 cm x 5 cm over mid
portion of knee joint.”
4. According to PW 3 Narendra Bahadur Srivastava, he had
referred PW 1 Gauri Shankar for X-ray report. PW 6 Dr. B.C. Ramola
did conduct X-ray of PW 1 Gauri Shankar. According to him, there
was a fracture on the left leg of PW 1 Gauri Shankar. The Investigating
Officer prepared a site plan during investigation and after
investigation charge sheet under Section 323, 325 IPC was submitted
3
against the accused. On 10.09.1997, charge under Sections 323, 325
IPC was framed against the accused, to which they denied and
claimed trial.
5. In order to prove its case, the prosecution examined as
many as seven witnesses, namely, PW 1 Gauri Shankar, PW 2 Dhaka
Nath, PW 3 Dr. Narendra Bahadur Srivastava, PW 4 Suman Pant, PW 5
Tara Dutt Bhatt, PW 6 Dr. B.C. Ramola and PW 7 Kunwar Singh Bisht.
6. After examination of PW 1 Gauri Shankar and PW 2
Dhakanath Subedi, on 31.01.2000, additional charge under Section
394 IPC was framed against the accused on 04.05.2000. Thereafter,
PW 1 Gauri Shankar was further cross-examined, but PW 2 Dhakanath
Subedi did not appear for cross-examination.
7. After the prosecution examination, the accused was
examined under Section 313 of the Code of Criminal Procedure, 1973
(“the Code”). According to them, they have falsely been implicated. After
hearing the parties, the court below acquitted the accused for the
offence as stated above.
8. Learned counsel for the State submits that the
prosecution has been able to prove its case beyond reasonable doubt;
PW 1 Gauri Shankar is an injured; he sustained injuries in the
incident; he has deposed about it; soon after the incident, the PW 1
was taken to a doctor, who examined him and noted the injuries and
also PW 3 Dr. Narendra Bahadur Srivastava has stated that he had
4
advised for X-ray of PW 1 Gauri Shankar; PW 6 Dr. B.C. Ramola has
confirmed that in X-ray, fracture was detected; he has proved the
report. It is argued that statement of both these witnesses are reliable
based on which, the accused persons were liable to be convicted under
Sections 323, 325 IPC. Accordingly, it is argued that while convicting
the accused under sections 323, 325 IPC, the judgment and order
passed in the case deserves to be modified accordingly.
9. On the other hand, learned counsel for the accused
submits that the entire prosecution case is unreliable; prosecution has
not been able to prove its case beyond reasonable doubt. He would
submit that the witnesses, who have been named in the FIR have not
been examined; PW 2 Dhakanath Subedi is an interested witness; he
has not been examined after additional charge under Section 394 IPC
framed against the accused, therefore, the statement of PW 2
Dhakanath Subedi cannot be read into evidence and after addition of
chare, the trial may be to have proceeded afresh. He submits that X-
ray plate is not proved. It is argued that in the instant case, the appeal
is delayed; delay condonation application has not been moved; delay
has not been condoned. On the question of scope of such appeal,
learned counsel for the accused submits that if two views are possible,
the view adopted by the trial court should be accepted.
10. Learned counsel for the accused has placed his reliance
on the principles of law as laid down in the cases of Basappa v. State of
Rajasthan, (2014) 5 SCC 154 and R. Rachaiah v. Home Secretary,
Bangalore, 2017(3) SCC (Cri) 710.
5
11. In the case of Basappa (supra), the Hon’ble Supreme
Court discussed the law on the point of appeal against acquittal and in
para 16 observed as follows:-
“16. The High Court in the impugned judgment does
not seem to have taken a view that the judgment of the trial
court acquitting the accused is based on no material or it is
perverse or the view by the trial court is wholly unreasonable
or it is not a plausible view or there is non-consideration of
any evidence or there is palpable misreading of evidence, etc.
It is not the stand of the High Court that there had been some,
miscarriage of justice in the way the trial court has
appreciated the evidence. On the contrary, it is the only stand
of the High Court that on the available evidence, another view
is also reasonably possible in the sense that the appellant-
accused could have been convicted. In such circumstances,
the High Court was not justified in reversing the acquittal. The
High Court itself having acquitted the appellant under Section
187 of the MV Act on the ground of no evidence, whether it
was possible, to hold him guilty under Sections 279 and304 A
of IPC, is itself a seriously doubtful question. However, it is not
necessary to pronounce on that issue since the appellant is
liable to succeed otherwise.”
12. In the case of R. Rachaiah (supra), the Hon’ble Supreme
Court discussed the procedure when the charges are altered or
additional charge is made and observed that “it is to be treated as
charge made for the first time and trial has to proceed from that
stage.”
13. On the question of delay, learned State Counsel submits
that the appeal is not delayed; the impugned judgment and order was
passed on 13.07.2004; certified copy of it was applied by the State on
22.07.2004, which was ready on 28.07.2004. Therefore, it is argued
that this period in preparation of copies should be excluded while
counting the period of limitation in view of Section 12(2) of the
6
Limitation Act, 1963 (“the Limitation Act“). On 13.10.2024 the appeal
had already been admitted. It is within ninety days. She submits that
90 days limitation prescribed for filing appeal in Article 114 (a) of the
Limitation Act. In support of her contention, learned State Counsel
has referred to the judgment in the case of State (Delhi Administration)
v. Dharampal, (2001) 10 SCC 372.
14. In the case of Dharampal (supra), the Hon’ble Supreme
Court on this aspect observed that, in fact for State Appeal against
acquittal, the provision of Article 114(a) of the Limitation Act will be
applicable. Referring to the old Section 417, in para 20, 21, 22 of the
judgment, the Hon’ble Supreme Court observed as follows:-
“20. To understand what the periods of limitation under Section
378 CrPC are one must first look at Section 417 as it stood in the
Criminal Procedure Code, 1898. Section 417, as it then stood, reads
as follows:
“417. (1) Subject to the provisions of sub-section (5),
the State Government may, in any case, direct the Public
Prosecutor to present an appeal to the High Court from an
original or appellate order of acquittal passed by any court
other than a High Court.
(2) If such an order of acquittal is passed in any case in
which the offence has been investigated by the Delhi Special
Police Establishment constituted under the Delhi Special
Police Establishment Act, 1946, the Central Government may
also direct the Public Prosecutor to present an appeal to the
High Court from the order of acquittal.
(3) If such an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an
application made to it by the complainant in this behalf,
grants special leave to appeal from the order of acquittal, the
complainant may present such an appeal to the High Court.
(4) No application under sub-section (3) for the grant of
special leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of sixty days
from the date of that order of acquittal.
7
(5) If, in any case, the application under sub-section (3)
for the grant of special leave to appeal from an order of
acquittal is refused, no appeal from that order of acquittal
shall lie under sub-section (1).”
Thus it is to be seen that, under Section 417 of the Criminal
Procedure Code, 1898, an appeal against acquittal could be filed by
the State Government or by the Central Government. An appeal
against acquittal could in cases instituted upon complaint, be filed by
the complainant provided the complainant obtained special leave to
appeal from the High Court. Under Section 417(4) no application for
grant of special leave could be entertained by the High Court after an
expiry of 60 days from the order of acquittal. Thus, under Section 417
an application for special leave to appeal had to be made only by the
complainant. If the State Government or the Central Government filed
an appeal then no application for special leave to appeal had to be
made.
21. It is because of this that Article 114(a) of the Limitation
Act provided that an appeal, by the State Government or the Central
Government under sub-section (1) or (2) of Section 417 of the
Criminal Procedure Code, 1898, was to be filed within 90 days from
the date of the order. Article 114(b) provides that an appeal under
sub-section (3) of Section 417 of the Criminal Procedure Code, 1898,
must be filed within 30 days from the date of grant of special leave.
22. Thus under Section 417 of the Criminal Procedure Code,
1898 no application for special leave to appeal had to be made by the
State Government or the Central Government, if they filed an appeal
against acquittal. The period of 60 days provided in Section 417(4) did
not apply to an appeal by the State Government or the Central
Government. The period of limitation for the State Government
or the Central Government was only under Article 114(a) of the
Limitation Act.”
(emphasis supplied
15. On this question, the learned counsel for the accused
submits that in the instant case, leave to appeal was granted on
02.06.2008, though the appeal was admitted on 13.10.2004. He
submits that the limitation period is 60 days in view of Section 378(5)
of the Code and in the instant matter, it is argued that the appeal is
delayed by 61 days.
8
16. Learned counsel for the accused has placed reliance on
the judgment in the case of the State of Rajasthan v. Ramdeen and
others, 1977 AIR SC 1328, in which case in para 9, the Hon’ble
Supreme Court held that “Besides, under Article 114 of the
Limitation Act, in an appeal from an order of acquittal by the
State, the period of limitation is ninety days from the date of the
order appealed from, whereas in an appeal from order an order of
acquittal, in any case instituted upon complainant, the period is
thirty days from the date of the grant of special leave……”
17. The Court would first address the issue of delay.
18. Instant appeal was taken up for hearing on 13.10.2004.
On that day, the Court passed the following order:-
“Heard Sri H.C. Pande, learned A.G.A.
Admit. Issue notices to the respondents and put up thereafter.
Also summon the lower court record.”
19. It may be noted that any leave to appeal was not then
granted by the Court. Thereafter, on 02.06.2008, this Court passed
the following order:-
“SPLA No. 3/2004
Mr. Amit Bhatt, Addl. Government Advocate for the
appellant-State.
Mr. L.K. Tiwari, Advocate on behalf of Mr. J.P. Joshi,
Advocate for the respondents.
It was pointed out that the matter has already been
fixed for hearing on the leave petition but perusal of the order
9sheet reveals that there is no order on the leave to appeal
petition.
Leave to Appeal Petition:
Heard learned counsel for the parties and perused the
entire record. After going through the entire record, I am
convinced that it is a fit case where the leave to appeal should
be granted. Therefore, the leave to appeal is granted.
Government Appeal:
Heard.
Since the leave to appeal has been granted, the government
appeal is liable to be admitted.
Admit.
The trial court’s record has already been received.
As the respondents are duly represented, no need send notices
to the respondents.
Post this matter in due course.”
20. While referring to the provisions of Section 29 of the
Limitation Act, on behalf of the accused, it is argued that in the instant
case, the period of limitation should be such as given under Section
378(5) of the Code i.e. 60 days. Section 29 of the Limitation Act is a
saving clause. First and foremost, it is to be seen that under what
provision of law, the period of limitation has been prescribed in appeal
by the State against acquittal. Section 378 of the Code reads as
follows:-
“378. Appeal in case of acquittal.–[(1) Save as otherwise
provided in sub-section (2), and subject to the provisions of sub-
sections (3) and (5),–
(a) the District Magistrate may, in any case, direct the Public
Prosecutor to present an appeal to the Court of Session from
an order of acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence;
(b) the State Government may, in any case, direct the Public
Prosecutor to present an appeal to the High Court from an
original or appellate order of acquittal passed by any Court
10other than a High Court not being an order under clause (a) or
an order of acquittal passed by the Court of Session in
revision.
(2) If such an order of acquittal is passed in any case in
which the offence has been investigated by the Delhi Special Police
Establishment constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or by any other agency
empowered to make investigation into an offence under any Central
Act other than this Code, the Central Government may, subject to the
provisions of sub-section (3), also direct the Public Prosecutor to
present an appeal–
(a) to the Court of Session, from an order of acquittal passed
by a Magistrate in respect of a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an
acquittal passed by any Court other than a High Court [not being an
order under clause (a)] or an order of acquittal passed by the Court of
Session in revision.
(3) No appeal to the High Court under sub-section (1) or sub-
section (2) shall be entertained except with the leave of the High
Court.
(4) If such an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an application
made to it by the complainant in this behalf, grants special leave to
appeal from the order of acquittal, the complainant may present such
an appeal to the High Court.
(5) No application under sub-section (4) for the grant of
special leave to appeal from an order of acquittal shall be entertained
by the High Court after the expiry of six months, where the
complainant is a public servant, and sixty days in every other case,
computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for
the grant of special leave to appeal from an order of acquittal is
refused, no appeal from that order of acquittal shall lie under sub-
section (1) or under sub-section (2).”
21. A bare perusal of Section 378 of the Code reveals that
sub-section (5) of it comes into play if the matter pertains to sub-
section (4), and sub-section (4) of Section 378 is related to
complainant. Therefore, by no stretch of imagination, the provision of
11
Section 378(5) of the Code may in any manner be made applicable in
State appeal against acquittal. They are made applicable against
acquittal in a complaint case. Therefore, this argument on behalf of the
accused has less merit for acceptance.
22. Article 114(a) of the Limitation Act provides 90 days
period of limitation for filing of appeal from the date of order appealed
from. This Article basically relates to Section 417 of the old Code,
which has already been quoted hereinabove, while quoting the
principle of law as laid down in the case of Dharampal (supra). In fact,
Section 417(3) of the old Code does resemble with Section 378(1)(b)
where the State may file appeal against acquittal to the High Court.
After discussing the law on the point in the case of Dharampal (supra),
the Hon’ble Supreme Court has categorically held that the period of
limitation for the State Government or Central Government to file
appeal against acquittal is only under Article 114(a) of the Limitation
Act, which is 90 days. It has been so held by the Hon’ble Supreme
Court in the case of Ramdeen (supra).
23. Learned State Counsel has also referred to the provision
of Section 12(2) of the Limitation Act. Definitely while computing the
period of limitation, the day on which the judgment complained of was
pronounced and the time requisite for obtaining a copy of the decree,
sentence or order appealed from or sought to be revised or reviewed
shall be excluded. There is no dispute that in the instant case it has to
be excluded.
12
24. Therefore, it is settled that in the instant matter, the
period of limitation is 90 days and certain period shall be excluded in
view of Section 12(2) of the Limitation Act and if all this time is
excluded, in the instant matter, the admission of appeal on 13.10.2004
is within ninety days from the date of judgment i.e. from 13.07.2004.
Therefore the appeal is not time barred.
25. But, there is another aspect of the matter. Under the old
Code, under Section 417, the State Government was not required to
obtain leave of the Court before their appeal may be entertained. But,
now sub-section (3) of Section 378 of Code makes it mandatory for the
State Government to obtain leave to appeal before their appeal against
acquittal may be entertained. In the instant matter, on 13.10.2004, the
appeal has been admitted, but the leave to appeal was not granted. It
was granted on 02.06.2008. What would be its effect? This aspect was
considered by the Hon’ble Calcutta High Court in the case of Mahafuja
Banu v. Md. Asadul Islam and State, 2012 SCC OnLine Cal 9390. Once
appeal is admitted it implies that the leave has been granted. Merely
because specifically leave has not been granted, the order of admission
will not become irregular or illegal. In the case of Mahafuja Banu
(supra), where the Hon’ble Calcutta High Court observed as
hereunder:-
“28. The next point for decision is whether the appeal is
incompetent because no express leave was obtained under Section
378 of the Code of Criminal Procedure.
………………………………………………………………………………
…………………………………………………………………………………………
……………………………………………………………………………………….
In the case before us it appears that the Division Bench not
only admitted the appeal in express words but also issued notice to
the accused/respondent which the Division Bench would not have
13done if it were minded to refuse the leave. We can therefore safely
conclude that leave was impliedly granted
…………………………………………………………………………………………
……………………………………………………………………………..”
26. Therefore, above discussion makes it abundantly clear
that this appeal was admitted on 13.10.2004, which was within time. It
was not delayed.
27. The question is as to what procedure is to be adopted
after addition of charge?
28. The position of alteration of charge and recall of witnesses
has been given under Sections 216 and 217 of the Code, which reads
as under:-
“216. Court may alter charge.–(1) Any Court may alter or
add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and
explained to the accused.
(3) If the alteration or addition to a charge is such that
proceeding immediately with the trial is not likely, in the opinion of
the Court, to prejudice the accused in his defence or the prosecutor in
the conduct of the case, the Court may, in its discretion, after such
alteration or addition has been made, proceed with the trial as if the
altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding
immediately with the trial is likely, in the opinion of the Court, to
prejudice the accused or the prosecutor as aforesaid, the Court may
either direct a new trial or adjourn the trial for such period as may be
necessary.
(5) If the offence stated in the altered or added charge is one
for the prosecution of which previous sanction is necessary, the case
shall not be proceeded with until such sanction is obtained, unless
sanction has been already obtained for a prosecution on the same
facts as those on which the altered or added charge is founded.
* * *
14
217. Recall of witnesses when charge altered.–Whenever
a charge is altered or added to by the Court after the commencement
of the trial, the prosecutor and the accused shall be allowed–
(a) to recall or re-summon, and examine with reference to
such alteration or addition, any witness who may have been
examined, unless the Court, for reasons to be recorded in writing,
considers that the prosecutor or the accused, as the case may be,
desires to recall or re-examine such witness for the purpose of
vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think
to be material.”
29. A bare reading of makes it abundantly clear that in case
addition of charges in any manner does not prejudice the accused in
his defence or the prosecutor in the conduct of the case, the trial shall
proceed as if the altered or added charge had been the original charge.
It is clear by sub-section (3) to Section 216 of the Code. But, in case, it
is prejudices the accused or the prosecution a new trial may be
directed or trial shall be adjourned as provided under sub-section (4) to
Section 216 of the Code.
30. Section 217 of the Code makes another provision that if
charges are altered or added, an accused may be permitted to further
cross-examine the prosecution witness. The proposition of law is not in
dispute.
31. In the instant case, after examination of PW1 Gauri
Shankar and PW 2 Dhakanath Subedi was complete, additional charge
under Section 394 IPC was framed against the accused on 04.05.2000.
Thereafter, during the course of trial, on behalf of the accused an
application was submitted that after additional charges, they want to
15
cross-examine PW 1 Gauri Shankar and PW 2 Dhakanath Subedi. This
application was allowed by the court on 17.07.2001. Fact remains,
thereafter on 16.05.2002, PW 1 Gauri Shankar was cross-examined
but PW 2 Dhakanath Subedi did not appear for cross-examination.
Therefore, the trial court did not rightly read the evidence of PW 2
Dhakanath Subedi for the charge under Section 394 IPC.
32. PW 1 is Gauri Shankar, who is the injured. According to
him, on the date of incident, he was working with PW 2 Dhakanath
Subedi , when suddenly both the accused attacked him with knife and
lathi; he sustained injuries; medical examination was done and X-ray
was also done. He proved the FIR, Ex. A-1, which was got typed by his
father.
33. PW 2 Dhakanath Subedi has supported this version of
this witness.
34. PW 3 Dr. Narendra Bahadur Srivastava has examined PW
1 Gauri Shankar. He has proved the medical report, Ex. A-2. He had
referred the injured PW 1 Gauri Shankar for X-ray, which was done
by PW 6 Dr. B.C. Ramola, who opined that there has been a fracture
in left leg.
35. PW 4 Suman Pant and PW 5 Tara Dutt Bhatt have not
supported the prosecution case.
36. PW 7 Kunwar Singh Bisht has proved the other
documents. He is not the investigating officer in the instant case.
According to him, the investigating officer had died.
16
37. In an appeal against acquittal, generally interference is
not made. Particularly, if two views are possible, the view adopted by
the trial court should be respected. In the case of State of Rajasthan v.
Abdul Mannan, (2011) 8 SCC 65, the Hon’ble Supreme Court
discussed this aspect and in para 13 observed as follows:-
“13. When an accused is acquitted of a criminal charge, a
right vests in him to be a free citizen and this Court is very cautious
in taking away that right. The presumption of innocence of the
accused is further strengthened by the fact of acquittal of the accused
under our criminal jurisprudence. The courts have held that if two
views are possible on the evidence adduced in the case, then the one
favourable to the accused, may be adopted by the court. However,
this principle must be applied keeping in view the facts and
circumstances of a case and the thumb rule is that whether the
prosecution has proved its case beyond reasonable doubt. If the
prosecution has succeeded in discharging its onus, and the error in
appreciation of evidence is apparent on the face of the record then the
court can interfere in the judgment of acquittal to ensure that the
ends of justice are met. This is the linchpin around which the
administration of criminal justice revolves.”
38. In the case of Chandrappa and others v. State of
Karnataka, (2007) 4 SCC 415, the Hon’ble Supreme Court laid down
the principles regarding powers of the appellate court and summed up
the principles in para 42 of the judgment as under:-
“42. From the above decisions, in our considered view, the
following general principles regarding powers of the appellate court
while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate
and reconsider the evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling
reasons”, “good and sufficient grounds”, “very strong
17circumstances”, “distorted conclusions”, “glaring mistakes”, etc.
are not intended to curtail extensive powers of an appellate court
in an appeal against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasise the reluctance of
an appellate court 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.”
39. In the case of Murugesan and others v. State through
Inspector of Police, (2012) 10 SCC 383, the Hon’ble Supreme Court,
inter alia, held that only in cases where the conclusion recorded by the
trial court is not a possible view, then only the High Court can interfere
and reverse the acquittal to conviction.
40. Undoubtedly, PW 1 Gauri Shankar has stated about the
incident. He was medically examined promptly and a report was
lodged. The trial court has not found the evidence of PW 1 Gauri
Shankar and PW 2 Dhakanath Subedi as such, which may bring home
the guilt of the accused.
41. There are few things, which require attention. In the FIR,
it is categorically stated that at the time of incident, PW 2 Dhakanath
Subedi was present and thereafter Rishipal, his wife, wife of Tara Dutt
also reached the place of incident. The FIR only does not say that these
persons were present at the place of incident, but according to the FIR,
18
they stopped the accused Rajpal from further attacking PW 1 Gauri
Shankar, or else, according to the FIR, they would have killed PW 1
Gauri Shankar. But, in his examination, PW 1 Gauri Shankar, in page
2 has stated that when he raised alarm, some persons came. One of
whom was Janki Devi. According to him, he does not know others by
name. This is very important. If PW 1 did not know the name of the
persons, who reached at the spot soon after the incident, how the name
of the witnesses was recorded in the FIR? According to PW 1 Gauri
Shankar, one Janki Devi had reached the place of incident. PW 1 Gauri
Shankar is clear about her. But, Janki Devi is not named in the FIR.
42. As a principle of law, it cannot be said that every witness
should be named in the FIR. There may be situations where a person
may not be knowing the name of such persons, who reached at the
place of incident. But, instant is not such a case. In the instant case,
PW 1 Gauri Shankar categorically states that he identified only Janki
Devi, who reached at the place of incident and he does not know the
others. In such a situation, the recording of name of other witnesses in
the FIR makes the prosecution story definitely doubtful.
43. In the instant case, the scribe of the FIR has not been
examined. He could have told as to who told him as to who were
present, because admittedly PW 1 Gauri Shankar did not identify
Rishipal, his wife and the wife of Tara Dutt. Father of PW 1 Gauri
Shankar has died, as told by him. It is he, who, according to PW 1
Gauri Shankar had got the report typed.
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44. The trial court has doubted the testimony of PW 2
Dhakanath Subedi. As stated, his statement cannot be read for the
charge under Section 394 IPC.
45. In the instant matter, the Investigating Officer has not
been examined. The site plan prepared by him has been proved by PW
7 SI Kunwar Singh Bisht. The site plan is Ex. A-6. In it, the place of
incident is a pathway, adjacent to the place of PW 1 Gauri Shankar
and accused Rajpal Yadav. The place of incident is not inside any work
place. The FIR records that when PW 1 Gauri Shankar was working, he
was attacked. It is not the case in the FIR that the incident took place
on a pathway. It has further been clarified by the PW 1 Gauri Shankar.
In first paragraph of his examination done of 31.01.2000, he says that
when he was working in his godown, the appellants entered into his
godown, where the incident took place, which means that the place of
incident is inside a godown. It is not supported by the site plan. Place
of incident is not established. It definitely further doubts the
prosecution case.
46. Having considered all the aspects, this Court is of the view
that the view taken by the trial court is a possible view. Therefore, in
this appeal no interference is warranted and the appeal deserves to be
dismissed.
47. The Government appeal is dismissed.
(Ravindra Maithani, J.)
25.08.2025
Avneet/