Court No. - 51
Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 454 of 2017
Applicant :- Mohd. Shareef
Opposite Party :- State Of U.P. & 2 Others Counsel for Applicant :- Ansar Ahmad Counsel for Opposite Party :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri Ansar Ahmad, learned counsel for the appellant on the application seeking leave to appeal against the judgment and order dated 30.10.2017 by means of which accused respondents, namely Matloob Husain and Sameer have been acquitted of the offences under Sections 307/34, 323/34 and 504 I.P.C.
We have perused the impugned judgement and order and the findings as recorded therein.
Learned counsel for the appllent 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 has 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.
While returning the verdict of acquittal, the court concerned has observed herein as under:-
35& mYys[kuh; gS fd izLrqr ekeys es foospd }kjk ek= v[rj }kjk ?kVuk dkfjr fd, tkus dh iqf"V gksus ij ek= v[rj ds fo:) vkjksi i= izsf"kr fd;k FkkA vfHk;qDr erywc lehj] Qjkt o vjeku dh rych gsrq vfHk;kstu }kjk fnukad 21-07-14 dks izkFkZuk i= izLrqr fd;k x;k Fkk ftlds vkyksd esa esjs iwoZorhZ }kjk ek= vfHk;qDrx.k erywc o lehj dks ryc fd;k x;k rFkk vU; vfHk;qDrx.k Qjkt o vjeku dks fopkj.k gsrq ryc ugh fd;k x;k] bl vkns'k ds fo:) vfHk;kstu i{k }kjk dksbZ pkjktksgh ugha dh xbZ gSA ogh izLrqr ekeys es ;fn 5 vfHk;qDrx.k fdlh O;fDr ds lkFk ykBh] MUMk o ykr ?kwlksa ls ekjihV djsxs] ml fLFkfr es de ls de 5 pksVs et:c dks vo'; vkuk lEHko izrhr gksrk gS ijUrq izLrqr ekeys es ih0 Mcyw0&3 Mk }kjk lkfcr pksVksa ls Hkh izdV gksrk gS fd ,d uhyxw fu'kku cka, dku ds Åij o nks [kjksap dh pksV dze'k% nka;s o cka, gkFk ij o ,d vkXus;kL= ?kko ds vfrfjDr vU; dksbZ pksV et:c dks ugha vkbZ gSA vkXus;kL= ds vfrfjDr vU; pksVs Lo;a et:c ds ?kk;yoLFkk es fxjus ls vkus dh lEHkkouk ls budkj ugha fd;k tk ldrk gSA izLrqr ekeys es Hkh ,ulhvkj izn'kZ d&5 es Hkh ek= 3 vfHk;qDrx.k vafdr dj x;s gSA mijksDr rF;ksa o ifjfLFkfr;ksa es bl fu"d"kZ dks cy feyrk gS fd v[rj ds vfrfjDr vU; vfHk;qDrx.k ds uke lk{kh }kjk vius c;kuksa esa fodflr fd;s x;s gSA 38& bl lk{kh ls cpko i{k }kjk ih-Mcyw- 1 o 2 ds lk{;ksa ds lEcU/k es izfri`PNk Hkh dh xbZ gSA lk{kh us dFku fd;k gS fd nkSjku foospuk lk{kh us tks lk{; dh Fkh muesa erywc gqlSu o eks- lehj ij vkjksih dh iqf"V ugh gqbZ Fkh A vkl&ikl ds yksxksa us ?kVuk dk leFkZu djrs gq, dksbZ tkudkjh ugha nh FkhA ijUrq bl lEcU/k esa dsl Mk;jh ds voyksdu ls izdV gS fd foospd us ?kVuk dh iqf"V ds lEcU/k es vlko/kkuhoa'k dFku dj jgk gS] dsl Mk;jh es Lo;a foospd }kjk ek= vfHk;qDr v[rj ds }kjk d`r ?kVuk dh iqf"V lEcU/kh lk{; foospd }kjk vafdr fd;s x;s 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) 1 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 :- 31.7.2018 M/A. Ravi