KALYAN AND ORS. versus STATE OF U.P.

Citation: [2001] SUPP. 3 S.C.R. 407 · Decided: 28-09-2001 · Supreme Court of India · Bench: M.B. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

KALYAN AND ORS. 
v. 
STATE OF U.P. 
SEPTEMBER 28, 2001 
[M.B. SHAH AND R:P. SETHI, JJ.] 
Penal Code, 1860: Sections 302, 307, 147, 148 read with sections 149 
and 1208. 
A 
B 
Criminal trial-Murder-Variance between FIR and deposition of 
C 
witnesses-Conflict between statements of eye witnesses and medical evidence-
Failure of prosecution to prove charges against accused beyond doubt-Acquittal 
by Trial Court-Appeal-Reversal of acquittal order by Appellate Court-Held 
not justified-Acquittal order passed by Trial Court upheld. 
Code ~f Criminal Procedure, 1973 : Section 378. 
Appellate court-Power to interfere with acquittal order-Scope ~f. 
In a criminal trial under section 302, 307, 147, 148 read with sections 
149 and 1208 of the Penal Code, 1860, the Trial Court acquitted all 
the accused persons holding that the prosecution had failed to prove its 
case beyond reasonable doubt. It negated the existence of a criminal 
conspiracy and found that (i) the sequence of circumstances narrated by 
the witnesses in the Court was totally different from the occurrence detailed 
in the First Information Report; (ii) though in the F.I.R. and panchnamas 
it was stated that injuries were caused to the deceased by gun shots, yet at 
the evidence stage the prosecution came out with a new case that the 
injuries to the deceased were caused with weapons like ballam, kanta and 
lathi; and (iii) the dead body of a victim was not found from a place as 
mentioned in the F.I.R. On appeal High Court reversed the order of 
acquittal in respect of nine persons and convicted them for various offences 
and sentenced them to imprisonment which ranged upto imprisonment for 
life. 
In appeal to this Court it was contended on behalf of the appellants 
accused that (i) the High Court was not justified in interfering with the 
well considered order of acquittal passed by the trial court; (ii) as the 
407 
D 
E 
F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
408 
SUPREME COURT REPORTS 
(2001] SUPP. 3 S.C.R. 
prosecution had failed to prove the charges beyond doubt, the appellants 
were entitled to the benefit of all reasonable doubts and (iii) the view taken 
by the trial court being probable, could not have been substituted by 
another view even though it is possible to be drawn from the circumstances 
of the case. 
Allowing the appeal and setting aside the judgment of High Court, 
the Court 
HELD : 1. In an appeal against an order of acquittal though the High 
Court has full powers to review the evidence upon which an order of acquittal 
is passed but it is equally well settled that the presumption of innocence of 
the accused persons is further reinforced by his acquittal by the trial court. 
The High Court while dealing with the appeals against the order of acquittal 
must keep in mind the propositions namely; (i) the slowness of the appellate 
court to disturb a finding of fact; (ii) the non-interference with the order of 
acquittal where it is indeed only a case of taking a view differentfrom the one 
taken by the High Court. [412-D; 413-G; H] 
2. The incident stated in the F.I.R., being the first version of the 
occurrence has to be given due weight. The trial court does not appear to 
have committed any glaring irregularity in disbelieving the alleged eye-
witnesses whose testimony was concededly contrary to the case of the 
prosecution as projected in the F.I.R. The case of the prosecution, as 
sought to be proved at the trial, appears to be different than the one as 
narrated in the F.I.R. When the testimony of eye-witnesses is totally different 
from the story set out in the F.I.R., the trial court cannot be held to have 
taken a view which was not at all possible. [415-H; 416-B] 
3. The trial court had found that the prosecution had come with a 
new case that the injuries to the deceased were not caused by the gun shots 
but with weapons like ballam, kanta and lathi. Such a view cannot be 
termed to be either erroneous or highly improbable in the light .of the 
statements of the witnesses and the record produced before the trial court. 
The panchnamas showed that the deceased had received gun shot injuries 
but in the post mortem report no such injury was noticed on the body of 
any of the deceased persons. The dead body of the deceased was not found 
on the roof of any house as mentioned in the F.I.R. but in the courtyard of 
the house of another person. The post mortem report of the deceased 
persons did not show any of the gun shot injury and the 

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