Court No. - 45
Case :- GOVERNMENT APPEAL No. - 1675 of 2013 Appellant :- State Of U.P.
Respondent :- Hari Om Counsel for Appellant :- Govt. Advocate
Hon'ble Shashi Kant Gupta,J. Hon'ble Ajit Kumar,J.
We have heard learned AGA for the State- appellant and perused the trial court's judgment on record.
This application has been filed by the appellant/applicant with the prayer that leave to appeal may be granted against the judgement and order dated 17.12.2012, passed in Sessions Trial No.176 of 2009, State Vs. Hari Om and S.T. no. 177/2009, State Vs. Hari Om, arising out of case crime no. 171 /2008 connected case crime no. 172/2008, under section 307 I.P.C. and 25 Arms Act, P.S. Sector -39 Noida, District Gautam Budh Nagar by the VIth Additional Sessions Judge,G.B.Nagar whereby the accused respondent has been acquitted of the offence punishable under the sections referred to above.
From perusal of the record, it transpires that the incident is alleged to have taken place on 28.3.2008. In fact the F.I.R. was neither lodged by the injured himself nor his any relative. The police itself after making inquiry and arresting the accused respondent from the petrol pump registered an F.I.R. and made an entry to that effect in the General Diary and thereafter started investigation. Since both the sons of the injured did not support the prosecution story , they were declared hostile. Even the Doctor, who is alleged to have informed the police about the incident, also did not support the prosecution story.Except the injured, no witness of fact has supported the prosecution story. Even the court below after meticulously analyzing the testimony of the prosecution, did not find any evidence believable and inspiring. The court has observed that the injured Sukhpal in his examination in chief has although stated that the shot was fired by the accused on his chest yet, in his cross examination, he has stated that he came to know about the firing upon him when the blood started oozing out.The court below after assessing the evidence arrived at a conclusion that even the injured was not sure that as to who had fired upon him and had not seen the incident clearly. The court below has also discussed the evidence of the Doctor who had examined the injured and observed that the doctor has not mentioned in his medical report about the details of the injuries and the age, name and identity mark as well as the name of the father of the injured.The doctor has also not mentioned the exact place of injury allegedly suffered by the injured. It also transpired from the testimony of the doctor that the injured had told him that he suffered fire arm injury accidentally by his own firing and that is why the M.L.C. was not prepared. The court below after analyzing the testimony of the Doctor did not find the same inspiring and therefore did not place reliance upon it. The court below has also given cogent reasons for discarding the evidence regarding recovery of empty cartridges and bullet from the alleged place of occurrence.The court below has further observed that even the recovered country made pistol was not sent to the ballistic expert for its examination. The prosecution has also failed to prove that as to who had told the police about the alleged incident. The F.I.R. was neither lodged by the injured himself nor any third person but it was lodged by the police on the basis of its own information and started investigation. The trial court after scanning the entire evidence recorded a finding that the prosecution failed to prove the charges framed against the accused respondent beyond reasonable doubt. The veracity of the testimonies of the prosecution witnesses was found gravely suspected and the participation of the accused person was also found highly doubtful. Having opined thus, the benefit of doubt was accorded to the accused person and the prosecution story was disbelieved. Learned A.G.A also failed to point out any illegality or infirmity in the findings so recorded by the court below. Thus, the court below appears to have rightly acquitted the accused respondent of the charges levelled against him Thus, it cannot be said that the view taken by the trial judge is perverse or unreasonable. Simply because another view might have been taken of the evidence provides no ground for interfering with the order of acquittal unless the view taken by the trial judge is not a possible view. The court below has given cogent, convincing and satisfactory reasons while passing the impugned judgment and order. 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 :- 26.2.2018 MLK