Court No. - 78
Case :- GOVERNMENT APPEAL No. - 1888 of 2002 Appellant :- State of U.P. Respondent :- Brijesh Kumar Singh Counsel for Appellant :- R.P.Dubey Counsel for Respondent :- G.A.
Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned A.G.A. and perused the record.
This is an application for permission to grant leave to file appeal.
The matter is related to judgment of acquittal dated 15.02.2002 passed by the Sessions Judge, Mau in Sessions Trial No. 37 of 2001 (State of U.P. Vs. Brijesh Kumar Singh), under Section 8/20 of N.D.P.S. Act, Police Station- G.R.P. Mau.
Learned A.G.A. submitted that the learned trial Court has not read and assessed the prosecution evidence properly and committed gross illegality in acquitting the accused-respondent. There may be minor contradiction in the statement of prosecution witness but only on this ground their testimony cannot be discarded. He further submitted that only due to non production of independent witness the judgment of acquittal has been passed which is illegal as at the time of recovery, no one was present there to depose against the accused-respondent. The impugned judgment is against the evidence brought on record by the prosecution and same is liable to be set aside.
In brief, the prosecution story is that on 20.05.2001 police party of G.R.P. Mau lead by Sub-Inspector Kapil Dev Pathak accompanied with Constable Madan Sharma and Ratan Singh were on patrolling duty and when they were going on platform no.2 they saw a person holding polythene bag in his hand and on seeing the police party he started running. The police party intercepted him. The person told his name as Brijesh Kumar Singh and also told that he has Charas in his possession so he was running. On personal search Charas was recovered from a polythene bag which he was holding in his hand. Weight of Charas was 400 grams. Sample was taken from it and recovery memo was prepared and case got registered. After completion of investigation, charge sheet under Section 20 N.D.P.S. Act was submitted. During the trial, the prosecution produced three witnesses namely, P.W. 1- S.I. Kapil Dev Pathak, P.W.2 Constable Madan Sharma and P.W. 3 S.O. Ramchet Singh. The learned trial Court after hearing the arguments of both the sides, by the impugned judgment held that prosecution has failed to prove its case beyond reasonable doubt and acquitted the accused Brijesh Kumar Singh from charges under Section 20 of N.D.P.S. Act.
From the perusal of the impugned judgment, it is clear that the learned trial Court has described the whole evidence led by the prosecution and has appreciated and analyzed the oral evidence.
P.W.1 Kapil Dev Pathak, P.W.2 Madan Sharma are members of the police party who have arrested and recovered the alleged Charas from the possession of the accused while P.W.3 S.O. Ramchet Singh is Investigating Officer and a formal witness. The learned trial Court has observed that the place of incident was a public place where presence of public is natural but no independent public witness has been examined. Apart from it, learned trial Court while analyzing the oral testimony of prosecution witnesses P.W.1 Kapil Dev Pathak, P.W.2 Madan Sharma found major contradictions on material points including time of arrest. On the basis of analysis of oral evidence, the learned trial Court has come to the conclusion that testimony of prosecution witnesses is not reliable and prosecution has failed to prove its case beyond reasonable doubt. There appears to be no perversity or illegality in the findings recorded by the trial Court.
In the case of Babu Vs. State of Kerala (2010) 9 SCC 189, the Apex Court has held that the appellate Court should not ordinarily set aside the judgment of acquittal in a case where two views are possible. It has to consider the entire evidence on record so as to arrive at findings as to whether the view of the trial Court were perverse or otherwise unsustainable.
From the above discussions, it is clear that learned trial Court has properly appreciated the entire evidence and there is no illegality or perversity in the judgment of acquittal so there is no sufficient ground to grant leave to appeal and the same is liable to be rejected.
Application for leave to appeal is hereby rejected. Consequently, the Appeal also stands dismissed.
Order Date :- 28.7.2021 Krishna*