Court No. - 41
Case :- GOVERNMENT APPEAL No. - 2514 of 1997
Appellant :- State Of U.P.
Respondent :- Devi Ram & Another
Counsel for Appellant :- Vijay Shanker Mishra
Hon'ble Rajesh Dayal Khare,J. Hon'ble Mrs. Vijay Lakshmi,J.
This government appeal under Section 378 Cr.P.C. alongwith an application for grant of leave to appeal has been filed against the judgment and order dated 11.4.1997 passed by Additional Sessions Judge, Bulandshahr in Sessions Trial No. 70 of 1976 (State versus Deviram and another under sections 364 IPC, police station Khurja Nagar, district Bulandshahr whereby the accused respondents have been acquitted of the offence punishable under the section referred to above.
Heard learned A.G.A. on application seeking leave to appeal and perused the impugned judgment.
Learned A.G.A. contends that it is a case of circumstantial evidence and the court below has misread the evidence on record and returned the finding of acquittal, which cannot be sustained.
On a careful perusal of the impugned judgment and evidence available on record, it is apparent that it is a case of circumstantial evidence and initially first information report was lodged by the mother only indicating that her son went missing/kidnapped without naming anybody and after seven months of the alleged incident, it has been intimated that the co- brother of the husband of the first informant had kidnapped her son without there being any explanation as to why this information was withheld by the informant for seven long months. Perusal of the judgment impugned also shows that nobody had seen the incident and there is gross anomaly in the statement of P.W.-1 and P.W.-2 which has been taken note of by the court below and therefore, the court below had come to the conclusion that the testimony of said witnesses who are highly interested witnesses, could not be relied upon and even the motive part has been disbelieved by the court below on the ground of shifting stands taken by P.W.-1 and P.W.-2 in their statements. Even chain of events is not complete which may point out to the guilt of the accused-respondents to conclusively prove that the accused-respondents were involved in commission of the alleged offence.
The learned AGA has challenged the legality and correctness of the impugned judgment on the ground that the learned trial court without a proper appreciation of evidence has decided the case only on the basis of surmises and conjectures and has acquitted the accused despite the fact that there was cogent evidence of accused being last seen in the company of the victim. It is further contended that the prosecution has also adduced sufficient evidence with regard to the motive behind the occurrence but the court below has ignored it while passing the judgment of acquittal, therefore, the impugned judgment is liable to be set aside and the appeal deserves to be admitted.
The present case rests on circumstantial evidence. However, we do not find that the prosecution has been successful in establishing all the circumstances conclusively in such a manner so as to point out only to the guilt of the accused and to no other hypothesis. The well settled law regarding a case based on circumstantial evidence is that the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances, so proved, must form such a chain of events as would permit no conclusion other than one of guilt of the accused.
We do not find any factual or legal error in the assessment of evidence by the court below.We are also of the view that the chain of circumstances is incomplete. The learned lower court has discussed the evidence point-wise and no other inference except that arrived at by the trial court could be drawn on the basis of weak and shaky prosecution evidence in this case. The view taken by the court below is a possible view and the well settled law is that, if two views are possible and the trial judge has taken one view, which is reasonable and plausible and appeals to the judicial mind, then the High Court should refrain from interfering with the order of acquittal. Interference with the order of acquittal should only be done when the findings are perverse, illegal and against the material available on record. The court below has given cogent, convincing and satisfactory reasons while passing the impugned order. It does not suffer from any infirmity. We, therefore, do not consider it to be a fit case for grant of leave to appeal to the applicant.
Considering the facts and circumstances in wake of the above cited legal position, we 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 :- 24.4.2018 faraz