Court No. - 32
Case :- GOVERNMENT APPEAL No. - 328 of 2013 Appellant :- State Of U.P.
Respondent :- Asif & Another Counsel for Appellant :- Govt. Advocate
Hon'ble Shashi Kant Gupta,J. Hon'ble Shashi Kant,J.
Heard learned A.G.A. for the State appellant/applicant and perused the material on record.
This application has been filed by the State appellant/applicant with the prayer that leave to appeal may be granted against the judgement and order dated 9.1.2012, passed in Sessions Trial No. 1239 of 2008 (State Vs. Ashif and another), arising out of Case Crime No. 92 of 2008, under Sections 307/34 & 452 IPC, P.S. Mundali, District Meerut by the learned Additional District & Sessions Judge, Court No. 2, Meerut whereby the accused respondents have been acquitted for the offence punishable under the sections referred to above.
A perusal of the record shows that the incident is said to have taken place in the midnight of 10/11.4.2008 at 12 A.M. but the FIR has been lodged after delay of ten and a half hour and no plausible explanation has been given with regard to inordinate delay. The first information report was sent to the concerned Magistrate after one week of the incident. It has come on record that according to the FIR, the injured Gulishta, P.W. 3 suffered fire arm injury in her abdomen. She has also affirmed the said fact in her testimony also but as per the medical report, fire arm injury was inflicted on her thigh, as such, there is material contradiction in the oral and medical evidences. This fact completely knocks down the case of the prosecution. The court below further observed that the clothes, which was worn by the injured Gulishta, P.W. 3 at the time of incident, was not taken into possession by the Investigating Officer. Even Fardnama of the alleged torch which was used to see the accused in the night at the time of incident was not made. No independent witness of the alleged incident was produced to support the prosecution case.
From perusal of the record, we do not find any factual or legal error in the assessment of evidence by the court below while acquitting the accused respondents. Moreover, the view taken by the court below is a possible view. The court below has given cogent, convincing and satisfactory reasons while passing the order of acquittal.
The learned AGA has failed to point out any illegality or perversity in the findings recorded by the court below.
We, therefore, do not consider it to be a fit case for grant of leave to appeal to the applicant. The application seeking leave to appeal is, accordingly, rejected and, consequently the appeal is also dismissed.
Order Date :- 31.10.2018 vinay