Court No. - 82
Case :- APPLICATION U/S 378 No. - 11 of 2009 Applicant :- Shabha Jeet Pandey Opposite Party :- State of U.P. and Others Counsel for Applicant :- N.D. Shukla Counsel for Opposite Party :- Govt. Advocate,Ashwani Mishra,Dinesh Mishra
Hon'ble Harsh Kumar,J.
List revised. No one present for private opposite parties.
Heard Sri Vivek Shukla, Advocate holding brief of Sri N.D. Shukla, learned counsel for applicant-appellant, learned A.G.A. for the State and perused the record.
The instant application has been moved for permission to file an appeal against the impugned judgment and order dated 23.3.2009 passed by A.D.J./F.T.C., Court No.2, Bhadohi Gyanpur in Criminal Appeal No.16 of 2008 (Raj Nath and others Vs. State of U.P. and others), under Sections 147, 352/149 I.P.C., P.S. Suriyawa, District Sant Ravi Das Nagar Bhadohi.
The brief facts relating to the case are that Sri Hari Shanker Pandey, the father of applicant-appellant Shabha Jeet Pandey filed a complaint case against opposite party nos.2 to 7 and one Batuk Shanker in which accused persons were summoned for offences under Sections 147, 148, 149, 352, 504, 506 I.P.C. and after trial learned Judicial Magistrate-Ist, Bhadohi vide judgment and order dated 28.2.2008 held the accused persons guilty of offences under Sections 147 & 352/149 I.P.C. and sentenced them accordingly and acquitted all the accused persons from the charges of offences under Sections 148, 504 & 506 I.P.C. The convicted accused persons filed Criminal Appeal No.16 of 2008 against their conviction under Sections 147 & 352/149 I.P.C. which was allowed by impugned judgment and order dated 23.3.2009 setting aside the conviction order and acquitting the accused persons. Hence the instant appeal has been filed by Shabha Jeet Pandey since the original complainant Hari Shanker Pandey died during pendency of complaint case.
It is pertinent to mention that as per complaint case the incident in question did take place at 6:00 p.m. on 12.10.2001 and on 12.10.2001 Pradhan Shiv Shanker Upadhyay had arrived for evidence for complainant in civil case upon which the accused persons asked the complainant for not producing him in evidence in civil case and when complainant returned home from Court all of them armed with lathi-danda assaulted him hurling abuses and when they chased with lathi-danda the complainant feeling apprehended entered in his house and on his alarm Shabha Jeet, Munnu and other villagers reached there and intervened.
Learned counsel for applicant-appellant contends that learned appellate court acted wrongly and illegally in allowing the appeal of private opposite parties and setting aside the findings of conviction recorded by trial court convicting the opposite party nos.2 to 7 and Batuk Shanker for offences under Sections 147 & 352/149 I.P.C.; that it was proved from the evidence on record that on 12.10.2001 village Pradhan Shiv Shanker Upadhyay was brought to court by complainant for evidence in civil case which was opposed by accused persons and when the complainant went home, due to above enmity the accused persons armed with lathi-danda assaulted him with hurling of abuses; that learned appellate court acted wrongly in holding that motive could not be proved by complainant.
Per contra, learned A.G.A. supported the impugned judgment and order passed by appellate court and contended that there is nothing on record to show that on 12.10.2001 Pradhan Shiv Shanker Upadhyay even came to court for evidence and more over there is nothing on record to show that if 12.10.2001 was fixed in civil case and he was produced in evidence by complainant Hari Shanker in alleged civil case; that complainant has failed to prove the genesis of incident and appellate court has rightly allowed the appeal setting aside the conviction of accused persons under Sections 147 & 352/149 I.P.C.; that trial court had acquitted accused persons from the charges of offences under Section 148, 504, 506 I.P.C. and against that part of order recording acquittal no appeal was filed by applicant-appellant before Sessions Judge.
Upon hearing parties' counsel and perusal of record, I find that complainant or applicant-appellant have failed to produce Sri Shiv Shanker Upadhyay, Pradhan as a witness in this complaint case and there is nothing on record to show that 12.10.2001 was date fixed in civil suit or above Pradhan Shiv Shanker Upadhyay had even arrived to courts for evidence in civil case and despite protest by accused persons his evidence was recorded on behalf of complainant. Since it is not proved that his evidence was recorded in civil case and in case he was not produced in evidence, there can be no reason for commission of incident in question by the accused persons. Moreover the learned appellate court has rightly disbelieved the evidence of complainant and his witnesses for the reason that as many as seven persons armed with lathi-danda allegedly chased and assaulted the complainant but none of them is alleged to have committed mar-peet either with lathi-danda or with kicks or fists or could even touched the complainant. Learned counsel for applicant has failed to show that learned appellate court has ignored any material evidence which was there on record or committed any glaring mistake in passing the impugned judgment. Learned counsel for applicant-appellant has failed to show any illegality or perversity in the impugned judgment and order. Undisputedly against part acquittal recorded by Magistrate, no appeal was filed by complainant-appellant.
It is settled principle of law as held by Hon'ble the Supreme court in the case of K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified".
In view of discussions made above, I have come to the conclusion that the learned counsel for the applicant-appellant has failed to show any legal infirmity, incorrectness or perversity in the findings given in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the acquittal order and substituting it with conviction order. The application for leave to file appeal has no force and is liable to be dismissed.
The application for leave to file appeal is dismissed accordingly and the appeal also stands dismissed.
Lower court record, if any, be sent back to court concerned along with a copy of this order.
Order Date :- 18.12.2019 Kpy
Order on Memo of Appeal Hon'ble Harsh Kumar,J.
Dismissed.
For order, see order of date passed on application for leave to file appeal.
Order Date :- 18.12.2019 Kpy