Court No. - 51
Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 163 of 2018
Applicant :- Mahadev
Opposite Party :- State Of U.P. And 2 Ors. Counsel for Applicant :- Dharm Singh Parmar Counsel for Opposite Party :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard learned AGA on the application seeking leave to appeal against the judgment and order dated 28.02.2018 by means of which all the accused persons have been acquitted for the offence punishable under section 452, 302/34 IPC.
Learned A.G.A. has strongly pressed the application with the contention that the prosecution evidence has not been appreciated by the court concerned in its correct perspective. He has submitted that the finding of acquittal recorded by learned trial judge is against the evidence on record. He next submitted that the learned trial judge has committed a patent error of law and ignored the material evidence on record while holding that the prosecution had failed to prove the charge against the accused respondents beyond the reasonable doubt.
We have perused the impugned judgment, which shows that the concerned court has recorded categorical findings after perusing the entire evidence on record. It is admitted fact on record that there is no eye witnesses of the said incident and that the F.I.R. has been lodged on the basis of suspicion. As far as, the testimony of PW 2 and PW 3 are concerned they are full of contradiction. Most relevant part of the judgment is being extracted herein below:
“A. mDr dkxt dks fy[kus dh D;k vko';drk Fkh] bl lEcU/k esa ih0MCyw0&2 dLrwjh o ih0MCyw0&3 lq'khyk dk c;ku mYys[kuh; gSA ih0MCyw0&2 dLrwjh ds vuqlkj tc og ekSds ij igaqph] rc e`rd dh e`R;q gks pqdh FkhA bl lk{kh us viuh ftjg fd ist&6 ij dgk gS fd] ^^eSaus njksxk th dks vius c;ku esa crk;k Fkk fd HkkbZ txUukFk cksy ugh jgs Fks^^ vkSj nksuksa lkf{k;ksa ds c;ku esa vk;k gS fd tc os ekSds ij igaqph rks e`rd tehu ij fxjk iM+k FkkA ih0MCyw0&3 lq'khyk dk c;ku gS fd] ^^ml le; esjk HkkbZ QM+&QM+k jgk FkkA og yM+[kM+kbZ vkokt esa cksy jgk FkkA dgk Fkk fd VSEiks ysdj vkoksA eSa Fkkus pydj c;ku ns ldrk gw¡A ;g Hkh crk;k fd mls fnfc;k o jkeiky us xksyh ekjh gS^^] ijUrq dkxt dh cjkenxh ds lEcU/k esa dgk gS fd e`rd ds ikl mls dqN ugh feyk FkkA bl lk{kh ds c;ku ds vuqlkj ;fn e`rd cksy jgk Fkk vkSj Fkkus tkdj c;ku nsus dk dFku dj jgk Fkk vkSj viuh cgu ls vfHk;qDrksa dk uke Hkh crk;k vkSj ml c;ku esa ek= fnfc;k o jkeiky dk uke crk;k] rks fQj dkxt ij uke fy[kus dk dksbZ vkSfpR; ugh jg tkrk Fkk vkSj ;fn vfHk;qDr us nks uke crk;s Fks] rks dkxt ij rhu uke fy[kus dk dksbZ vkSfpR; ugh FkkA
B. mijksDr leLr lk{;ksa ds lanHkZ esa vfHk;qDrksa dh vksj ls dgk x;k gS fd vfHk;qDrksa dh vfHk;kstu lkf{k;ksa ls xgu jaft'k gSA fufoZokn :i ls e`rd dks lu~ 2007 esa xksyh ekjus ds dsl esa vfHk;qDrksa dk HkkbZ cPpw mQZ fo'okfe= vfHk;qDr gS vkSj blh jaft'k ds vk/kkj ij vfHk;kstu lkf{k;ksa us Hkh vfHk;qDrksa ij gR;k dh vk'kadk tkfgj fd;k FkkA ?kVuk dk dksbZ izR;{kn'khZ lk{kh ugh gSA tks ckn esa ;g rF; ifjofrZr fd;k x;k gS fd lkf{k;ksa us e`rd ds dejs ls vfHk;qDrksa dks Hkkxrs gq;s ns[kk Fkk] rks ;g dFku U;k;ky; ds le{k igyh ckj fn;k x;k gS] tcfd foospuk ds le; vFkok rgjhj esa bldk dksbZ mYys[k ugh gSA
vr% vfHk;kstu vius }kjk is'k dh x;h lk{; ls ;g izekf.kr djus esa vlQy jgk gS fd e`rd dks tks xksyh ekjh x;h vkSj ifj.kke Lo:i e`rd dh e`R;q gqbZ] og vfHk;qDrksa }kjk pykbZ x;h FkhA xgu jaft'k dk ykHk vfHk;qDrksa ds i{k esa tkrk gS] fo'ks"krkSj ls mu ifjfLFkfr;ksa esa] tgka izFke lwpuk fjiksVZ ntZ djkus ds le; o foospuk ds nkSjku vfHk;qDrksa ij ek= ?kVuk dkfjr djus dh vk'kadk O;Dr dh x;h gSA^^ Reference may be made to the recent judgment of the Apex Court rendered in the case of Bannareddy & Ors. vs. The State of Karnataka & Ors reported in 2018 (5) SCC 790 wherein the Apex Court has held as under:
11. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in the case of Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 11 SCC 186, para 13, wherein this Court observed that: “The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt.
12. It is not in dispute that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favor. [Vide Rabindra Kumar Pal @ Dara Singh vs. Republic of India, (2011) 2 SCC 490 in para. 94].
27. Keeping in view the facts and circumstances of the case, we hold that the prosecution was not able to establish the guilt of the accused persons beyond reasonable doubt. Further, the High Court should not have re-appreciated evidences in its entirety, especially when there existed no grave infirmity in the findings of the trial court. There exists no justification behind setting aside the order of acquittal passed by the trial court, especially when the prosecution case suffers from several contradictions and infirmities. No specific assertion could be proved regarding the role and involvement of the accused persons. Further, certain actions of the victim- respondents themselves are dubious, for instance admitting themselves later in a Multi-speciality hospital without proper cause. It has further come to our notice that respondents have already compromised and have executed a compromise deed to that extent, though the same is not the basis for our conclusion.
Reference may also be made to the judgments of the Apex Court rendered in the cases of Sanmwat Singh Vs. State of Rajasthan reported in 1961 SC 715, Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011, Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal No. 512 of 2014, Ashok Rai Vs. State of U.P. & Ors. Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005, Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990 and Murugesan v. State through Inspector of Police reported in 2012 AIR SCW 5627.
Thus, in view of aforesaid consistent legal position as elaborated above and also in view of the fact that learned A.G.A. has failed to point out any illegality or perversity with the findings so recorded in the impugned order, no case for interference has been made out.
It is an established position of law that if the court below has taken a view which is a possible view in a reasonable manner, then the same shall not be interfered with.
After perusal of the impugned judgment shows that the trial court after a thorough marshalling of the facts of the case and a microscopic scrutiny of the evidence on record has held that the prosecution has failed to prove the charge against the accused respondents and the findings recorded by the learned trial judge in the impugned judgment are based upon evidence and supported by cogent reasons.
No interference with the impugned judgment and order of acquittal is warranted. Accordingly, Government Appeal is dismissed.
Let the lower court record be sent back to the court concerned forthwith.
Copy of the order be certified to the court concerned for consequential follow up action.
Order Date :- 30.7.2018 VG..