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. 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