Court No. - 76
Case :- GOVERNMENT APPEAL No. - 121 of 2021 Appellant :- State of U.P. Respondent :- Anwar Counsel for Appellant :- G.A. Counsel for Respondent :- G
Hon'ble Subhash Chandra Sharma,J.
Heard learned A.G.A. on an application under Section 378 Cr.P.C. for granting of leave to appeal.
This appeal has been filed under Section 378 Cr.P.C. by the State against the judgment and order dated 19.12.2020 passed in Sessions Trial No. 681 of 2018 (State Vs. Anwar), arising out of Case Crime No. 208 of 2014, under Section 3/4 Prevention of Damage to Public Property Act, Police Station Kakrauli, District Muzaffar Nagar.
Learned A.G.A. in support of the appeal submits that the impugned order is based on surmises and conjectures and it is against the weight of evidence on record. Learned trial court has erroneously passed the impugned order while discarding the prosecution evidence without applying his mind. He further submits that accused made encroachment on the land belonging to pond. He was in unlawful possession of the land. He has committed offence by encroaching public property but learned trial court has not taken in view, the fact and evidence on record while passing the impugned order which is against law and perverse and deserves to be set aside.
From perusal of record it shows that in this case, P.W. 1 halka Lekhpal has been examined who has stated that accused was in possession of land belonging to pond measuring 45 sq. metre. A case under Section 112-B Z.A. Act was pending before the court of Tehashildar. Again accused came into possession on that area. Except Lekhpal, no other witness has been adduced before the trial court to support the prosecution version relating to unlawful possession on the land. It has also been alleged on the part of accused that he did not make any encroachment on public land but he built house on his paternal land. No any measurement was done by the Lekhpal or police. P.W. 1 Lekhpal and P.W.2 Investigating Officer has also not recorded the statement of any other witness relating to the fact of encroachment made by the accused. Learned trial court has recorded finding that Sections 3 and 4 Prevention of Damage to Public Property Act is not made out because under Section 3 of the Act mischief is to be proved by the prosecution against the accused and under Section 4 of the Act mischief by fire or explosive substance is required. The elements of Sections 3 and 4 are lacking. As a result, no charge of Section 3 and 4 of the Act is made out. No other evidence is on record to show that accused has caused mischief to the public property. In this way, judgement and order in question cannot be said to be illegal or perverse.
Learned A.G.A. has not been able to point out any other illegality or perversity with the findings as recorded by the learned trial court and thus it cannot be said that the view taken by the court below is a perverse view.
In this way, taking into consideration all the facts and circumstances enumerated above, this court is of the view that the trial court has passed the judgment and order for acquittal of the respondent regarding which it cannot be said that the view taken by the court below is not possible and plausible.
The learned trial court has given cogent and convincing reasons for acquitting the accused respondent, therefore, this is not a fit case for grant of leave to appeal to the appellant.
The application seeking leave to appeal is, accordingly, rejected. Consequently, appeal is also dismissed.
Order Date :- 27.7.2021 A. Singh