Court No. - 75
Case :- GOVERNMENT APPEAL No. - 3074 of 2003 Appellant :- State Of U.P.
Respondent :- Dhuruwa And Others Counsel for Appellant :- Government Advocate
Hon'ble Om Prakash-VII,J.
Heard learned A.G.A. for the State and perused the record.
The present government appeal has been filed along with leave to appeal application against the impugned judgement and order dated 5.3.2003 passed by Additional Sessions Judge / Special Judge (D.A.A.), Lalitpur in Sessions Trial No. 47 of 1997 under Sections 308/34 I.P.C. in case crime no. 171/1994, Police Station Madawara, District Lalitpur, whereby accused-respondents were acquitted.
Submission of learned A.G.A. is that prosecution was able to prove its case beyond reasonable doubt. Findings recorded by the trial court in the impugned judgment and order are illegal and perverse. Offence under Section 308/34 IPC was proved beyond reasonable doubt against accused respondents. Accused respondents were present on the spot and participated in commission of offence. Thus, prayer is made to grant leave to appeal.
I have considered the submissions.
In this matter, as is evident from record, Trial Court while passing the impugned judgment and order was of the view that witnesses examined on behalf of the prosecution are relatives and respondents acted in their right of private defence of property. They have not taken any undue advantage and have tried to convince the informant. When encroachment was continued, the respondents acted in their right of private defence. If the findings recorded by the Trial Court in the impugned judgment and order are compared with the facts and evidence of the present matter, no illegality or infirmity is found in the impugned judgment and order. Although, respondents faced trial for the offence under section 308/34 IPC, but in the opinion of the Court, prosecution has failed to establish the guilt of the respondents beyond reasonable doubt. Thus, findings recorded by the trial court acquitting the respondents from the charges levelled against them cannot be termed to be illegal. In the facts and circumstances of the case, view taken by the trial court is also a possible view.
Hon'ble Supreme Court in the case of S. Govindaraju Versus State of Karnataka, (2013) 15 SCC 315 has held as under :
"It is a settled legal proposition that in exceptional circumstances, the appellate court, for compelling reasons, should not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse i.e if the conclusions arrived at by the court below are contrary to the evidence on record, or if the court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence."
In the case of Gangabhavani Versus Rayapati Venkat Reddy and Others, (2013) 15 SCC 298, Hon'ble Supreme Court has held as under:
"This Court has persistently emphasised that there are limitations while interfering with an order against acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the acquittal by the lower Court bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
Thus, the application moved by the appellant State of U.P. to grant leave to appeal for the reasons discussed here-in-above is not liable to be allowed and same is refused.
Since the application for grant of leave to appeal has been refused, the appeal is also not liable to be admitted and same is dismissed at this stage.
Order Date :- 30.4.2019 ss