State vs Mohd Tahir & Ors

Court
Delhi High Court

$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
# CNR No. DLHC013283662017
+ CRL.L.P. 420/2017
Date of Decision : 24.08.2026
IN THE MATTER OF:

STATE .....Petitioner
Through: Mr. Mukesh Kumar, APP for State.

versus

MOHD TAHIR & ORS .....Respondents
Through: Respondents in person.

CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV

JUDGEMENT

PURUSHAINDRA KUMAR KAURAV, J. (ORAL)
The present application has been filed by the State assailing the
judgment dated 31.03.2017 passed by the learned Special Judge (POCSO
Act), Tis Hazari Courts, Delhi, in SC No.05/2013 arising out of FIR
No.83/2012, P.S. Chandni Mahal, Delhi, whereby the respondents/accused
were acquitted of the offences punishable under Sections 452/308/34 IPC.
2. Mr. Mukesh Kumar, learned counsel for the State submits that the
impugned judgment of acquittal dated 31.03.2017 is illegal, improper and
contrary to the evidence on record. It is further submitted that the learned
Trial Court failed to properly appreciate the testimony of the injured/victim
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and the corroborative medical and other evidence. Accordingly, the
impugned judgment deserves to be set aside and the appeal be allowed.
3. The respondents are appearing in person. They submit that the dispute
arose out of a property related issue between the parties, which was
essentially a family dispute, and that the same has now been amicably
settled between them. They further submit that, in view of the settlement, no
dispute or grievance now remains between the parties.
4. I have considered the submissions made by learned counsel appearing
for the State as well as the respondents who appear in person.
5. Before examining the rival submissions on merits, it would be
apposite to advert to the settled principles governing the scope of
interference in an appeal against an order of acquittal. Though the appellate
Court possesses full power to re-appreciate the evidence and arrive at its
own conclusions, such power is required to be exercised with due regard to
the presumption of innocence, which stands reinforced by the order of
acquittal. The appellate Court would ordinarily interfere only where the
findings recorded by the Trial Court are shown to be manifestly erroneous,
palpably wrong or demonstrably unsustainable
1
6. The Privy Council in Sheo Swarup v. King Emperor , in a
formulation that continues to anchor this branch of the law, held that while
the High Court possesses full power to review the evidence in an appeal
from an order of acquittal as it does in an appeal from conviction, it must
nonetheless always give proper weight and consideration to parameters
produced hereinunder:-
“ But in exercising the power conferred by the Code and before reaching

1
1934 SCC OnLine PC 42
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its conclusions upon fact, the High Court should and will always give
proper weight and consideration to such matters as:

1) The views/opinions of the trial judge as to the credibility of the
witness;
2) The presumption of innocence in favour of the accused;
3) The right of the accused to the benefit of any doubt; and
4) The slowness of an appellate court in disturbing a finding of fact
arrived at by a judge who had the advantage of seeing the
witnesses. ”
7. This formulation was reiterated by the Supreme Court in M.G.
2
Agarwal v. State of Maharashtra , and has since been consistently
3
followed, most recently in Siju Kurian v. State of Karnataka , where the
Supreme Court reaffirmed that these considerations are not mere formalities
but substantive checks on appellate interference. Paragraph no. 16 of M.G.
Agarwal (supra) is reproduced as under:-
“ 16. Section 423 (1) prescribes the powers of the appellate Court in
disposing of appeals preferred before it and clauses (a) and (b) deal with
appeals against acquittals and appeals against convictions respectively.
There is no doubt that the power conferred by clause (a) which deals with
an appeal against an order of acquittal is as wide as the power conferred
by clause (b) which deals with an appeal against an order of conviction,
and so, it is obvious that the High Court's powers in dealing with criminal
appeals are equally wide whether the appeal in question is one against
acquittal or against conviction. That is one aspect of the question. The
other aspect of the question centres round the approach which the High
Court adopts in dealing with appeals against orders of acquittal. In
dealing with such appeals, the High Court ;naturally bears in mind the
presumption of innocence in favour of an accused person and cannot lose
sight of the fact that the said presumption is strengthened by the order of
acquittal passed in his favour by the trial Court and so, the fact that the
accused person is entitled to the benefit of a reasonable doubt will always
be present in the mind of the High Court when it deals with the merits of
the case. As an appellate Court the High Court is generally slow in
disturbing the finding of fact recorded by the trial Court, particularly
when the said finding is based on an appreciation of oral evidence
because the trial Court has the advantage of watching the demeanour of
the witnesses who have given evidence. Thus, though the powers of the

2
1963 SCR (2) 405
3
(2023) 14 SCC 63
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High Court in dealing with an appeal against acquittal are as wide as
those which it has in dealing with an appeal against conviction, in-dealing
with the former class of appeals, its approach is governed by the
overriding consideration flowing from the presumption of innocence.
Sometimes, the width- of the power is emphasized, while on other
occasions, the necessity to adopt a cautious approach in dealing with
appeals against acquittals is emphasised, and the emphasis is expressed in
different words or phrases used from time to time. But the true legal
position is that however circumspect and cautious the approach of the
High Court may be in dealing with appeals against acquittals, it is
undoubtedly entitled to reach its own conclusions upon the evidence
adduced by the prosecution in respect of the guilt or innocence of the
accused. this position has been clarified by the Privy Council in Sheo
Swarup v. The, King Emperor (1) and Nur Mohammad v. Emperor ”

8. The general principles governing the exercise of this jurisdiction were
authoritatively summarised by the Supreme Court in Chandrappa v. State of
4
Karnataka , holding that “an appellate court has full power to review,
reappreciate and reconsider the evidence upon which an order of acquittal is
founded, and the Cr.P.C. places no restriction on the exercise of that power.”
Expressions such as “substantial and compelling reasons,” “good and
sufficient grounds” or “glaring mistakes” are not intended to curtail this
power, but are, in the words of the Supreme Court, merely “flourishes of
language” emphasising the appellate court’s reluctance to interfere.
Paragraph 42 is reproduced 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, reappreciated 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 law.
(3) Various expressions, such as, “substantiated and compelling reasons”,

4
(2007) 4 SCC 415
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goof and sufficient grounds”, very strong circumstances”, “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. ”

9. This Court had occasion to apply this framework in State v. Ravi
5
Kumar , where leave to appeal against an acquittal was declined on the
ground that the State had failed to demonstrate that the trial Court’s view
was anything other than a plausible one, notwithstanding that certain
individual observations of the trial court were themselves open to debate.
10. The Supreme Court’s decision in Ramesh Babulal Doshi v. State of
6
Gujarat , supplies the analytical discipline that an appellate court must bring
to this exercise. It requires the appellate court, before embarking upon any
independent reappraisal of the evidence, to first pose a threshold question:
do the findings of the trial court suffer from any of the recognised
infirmities, namely, that the approach is vitiated by manifest error of law or
fact, that it results in a miscarriage of justice, or that the conclusion is one
that could not reasonably have been reached on the material on record.
11. Only if this threshold question is answered in the affirmative does the

5
MANU/DEOR/48163/2025
6
(1996) 9 SCC 225
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appellate court proceed to reappraise the evidence and substitute its own
conclusion; if it is answered in the negative, the acquittal must stand
undisturbed, and however persuasively an alternative view might be
constructed. Paragraph No. 7 of Ramesh Babulal (supra) is reproduced as
under:
“7. Before proceeding further it will be pertinent to mention that the entire
approach of the High Court in dealing with the appeal was patently wrong
for it did not at all address itself to the question as to whether the reasons
which weighed with the trial Court for recording the order of acquittal
were proper or not. Instead thereof the High Court made an independent
reappraisal of the entire evidence to arrive at the above quoted
conclusions. This Court has repeatedly laid down that the mere fact that a
view other than the one taken by the trial Court can be legitimately arrived
at by the appellate Court on reappraisal of the evidence cannot constitute
a valid and sufficient ground to interfere with an order of acquittal unless
it comes to the conclusion that the entire approach of the trial Court in
dealing with the evidence was patently illegal or the conclusions arrived at
by it were wholly untenable. While sitting in judgment over an acquittal
the appellant Court is first required to seek an answer to the question
whether the findings of the trial Court are palpably wrong, manifestly
erroneous or demonstrably unsustainable. If the appellant Court answers
the above question in the negative the order of acquittal is not to be
disturbed. Conversely, if the appellant Court holds, for reasons to be
recorded, that the order of acquittal cannot at all be sustained in view of
any of the above infirmities it can then - and then only - reappraise the
evidence to arrive at its own conclusions. In keeping with the above
principles we have therefore to first ascertain whether the findings of the
trial Court are sustainable or not.”
7
12. The Supreme Court in Ghurey Lal v. State of Uttar Pradesh ,
reinforced this position by holding that an appellate Court reviewing an
acquittal must attach due weight to the trial Court’s finding, because the
presumption of innocence is “further strengthened” by it, and must reverse
the acquittal only where there exist “ very substantial and compelling
reasons ”.

7
(2008) 10 SCC 450
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13. It is against this settled matrix of law that the submissions of the State
must be tested, and it bears emphasis that the question before this Court at
this stage is not whether an alternative view of the evidence is possible, but
whether the view actually taken by the Trial Court is one that no reasonable
court, applying its mind to the record, could have taken.
14. Applying the aforesaid principles, this Court is first required to
examine whether the view taken by the learned Trial Court is palpably
wrong, manifestly erroneous or demonstrably unsustainable.

15. The trial Court, while appreciating the evidence on record, has
recorded its findings in paragraphs 17 to 19 of the impugned judgment. The
said findings may be usefully extracted hereinbelow for appreciating the
reasons which weighed with the learned Trial Court in extending the benefit
of doubt to the respondents.
“ 17. Against the backdrop of these facts and circumstances, if the other
aspects are looked into, then the credibility of the prosecution's case
becomes doubtful. The first blow comes in the shape of delay in
registration of the FIR, leaving scope for manipulation. The incident
took place at 09.00 P.M. on 06.12.2010 whereas FIR came into
existence after about 18 hours and that too. when the patient was fit for
statement as he was removed to the hospital almost immediately after
the incident although it remains shrouded in mystery as to whether the
victim was removed to the hospital by the PCR or by PW-3 Mohd.
Sharif. The victim has stated that police has recorded his statement at
about 10 or 11 p.m. on 06.06.2012 whereas the Investigating Officer
has stated that the statement of the victim was recorded on the next day
i.e. 07.06.2012 and that is how the police has tried to explain the delay
in the registration of the FIR. However, it is not reconcilable. PW-2
Mohd. Zahid has stated that he made a call to the police at 100 number
and consequently police arrived there and took him to JPN Hospital
whereas the other mainstay of the prosecution's case i.e. PW-3 Mohd.
Sharif has stated in his examination in chief that police took PW-2
Mohd. Zahid to hospital, but in the cross examination, he made a turn
around by saying that he took the injured to the hospital that too on a
cycle rikshaw. According to the victim and PW-3 Mohd. Sharif, blood
was coming out from the injuries sustained by the victim, but the blood
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stained clothes, either of the victim or of PW-3 Mohd. Sharif, have not
been seized by the police and there is no answer as to why it has not
been whereas the circumstances reflect that blood must have fallen on
the clothes of the victim and most likely on the clothes of PW-3 Mohd.
Sharif as well if he took the victim to hospital. Investigating Officer has
admitted that blood stains were there on the clothes which Mohd. Zahid
was wearing, but in the same breath, he has taken a turn around and
stated that no blood stains were found on the clothes of Mohd. Zahid. In
the next line, he states that he had not seized the blood stained clothes
of Mohd. Zahid and the reason given by him is that when he visited for
this purpose, he could not find the clothes. There is no reason as to why
he has not recorded any statement/supplementary statement of Mohd.
Zahid in this context. Incidentally, PW-2 Mohd. Zahid, who was taken
to hospital, has stated that the PCR van took him to the hospital in his
cross examination very clearly and categorically and as pointed out
and noted above PW-3 Mohd. Sharif has stated that he took the victim
to the hospital in a cycle rikshaw. Evidently, both the things are not
possible.
18. There is a reference of cross case, but the entire case is silent. The
investigating Officer has, however, admitted about the existence of the
cross case about which the Counsel for the accused has stated that the
victim herein Mohd. Zahid was an accused in the cross case and he has
been acquitted. This can be seen from the opening lines of the cross
examination of the Investigating Officer examined as PW-10, that on
the basis of the statement of accused Tahir a case FIR No. 84/2012 was
registered against the victim herein i.e. Mohd. Zahid. The present case
stems from FIR No. 83/2012 of the same police station, that is, Chandni
Mahal. Ideally, both the cases arising out of the FIR No. 83 and 84
should have been tried and disposed of together. Nevertheless, that
eventuality cannot be there now in view of what has been stated by the
Counsel for the accused persons. PW-2 Mohd. Zahid in this context has
specifically denied that Tahir has sustained injuries whereas the
Investigating Officer has admitted this fact.
19. There are other inconsistencies in the testimony of the witnesses, for
instance PW-2 Mohd. Zahid has stated that his family consisting his
wife and two daughters, but at the time of the incident they were not
present. On the other hand, PW-3 Mohd. Sharif, who happens to be the
real brother of the accused Shahid All and who was having inimical
terms with accused Shahid Ali, and has been examined by the
prosecution in support of its case, has stated that wife and children of
the victim were in the same room where the incident had taken place.
The area of the room is about 8x7 and household articles, which were
lying in their room were also scattered here and there. In such
circumstances, either of the two is not stating correct facts. If the wife
and children of the victim Mohd. Zahid were there in that very room
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where the incident took place, they should have been made a witness
.and if they were not there, then why PW-3 Mohd. Sharif stated about
their presence. It shows that he is not a witness to the incident and
corroboration to the testimony, the testimony of PW-2 Mohd. Zahid,
which otherwise is not there in the testimony of PW-3 Mohd. Sharif is
not available, if the victim was in possessions of the property in
question, then at the time of incident i.e. 09.00 P.M., the other family
members i.e. his wife and daughters are supposed to be present there.
None of them is either a witness or injured, puts a question mark about
the possession of the second floor by the victim. ”
16. A perusal of the aforesaid findings would show that the trial Court
principally found the prosecution case doubtful on account of the delay in
registration of the FIR and the inconsistent versions regarding the time of
recording of the statement of the injured and the manner in which he was
removed to the hospital. The trial Court also noticed the non-seizure of the
alleged blood stained clothes despite the prosecution version that the injured
had suffered bleeding injuries.
17. The trial Court further took into consideration the existence of the
cross-case arising out of the same occurrence and the conflicting evidence
regarding the injuries sustained by accused Tahir. It also noticed the material
inconsistency concerning the presence of the wife and daughters of the
injured at the place of occurrence and the consequent doubt regarding the
presence of PW-3 and the prosecution version concerning possession of the
second floor.
18. The aforesaid reasoning demonstrates that the acquittal was not
founded merely upon conjectures or surmises, but upon an appreciation of
material inconsistencies and circumstances emerging from the prosecution
evidence. The trial Court has assigned reasons for doubting the prosecution
case and for extending the benefit of doubt to the respondents.
19. In the light of the settled principles governing an appeal against
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acquittal, this Court is unable to hold that the view taken by the trial Court is
palpably wrong, manifestly erroneous or demonstrably unsustainable. Even
if another view may be possible on re-appreciation of the evidence, that by
itself would not justify interference where the view taken by the trial Court
is a reasonably possible view.
20. Accordingly, this Court finds no sufficient ground to interfere with
the impugned judgment dated 31.03.2017.
21. The present application is, therefore, dismissed.

22. Pending application, if any, also stands disposed off.


PURUSHAINDRA KUMAR KAURAV, J
AUGUST 24, 2026
ab


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