Court No. - 17
Case :- GOVERNMENT APPEAL No. - 8082 of 2009 Appellant :- State Of U.P. Respondent :- Harinandan And Others Counsel for Appellant :- G.A.
Hon'ble Om Prakash-VII,J.
The present appeal has been filed along with leave to appeal application against the impugned judgement and order dated 20.07.2009 passed in Special Session Trial No. 78 of 2005 (State of U.P. Vs. Harinandan and others), under Sections 323/34, 504, 506, I.P.C. and Section 3(1)(X) SC/ST Act whereby respondent nos. 1, 2 and 3 were acquitted.
The submission of learned A.G.A. is that there was sufficient evidence on record to held guilty to the respondents for the offence under Sections 323/34, 504, 506, I.P.C. and Section 3(1) (X) SC/ST Act. Specific word was uttered by the accused persons abusing the wife of informant. Thus, offence under Section 3(1)(X) SC/ST Act is clearly proved. At this stage, learned A.G.A. also referred the statement of the witnesses described in the impugned judgement and order and argued that other offences under Sections 323/34, 504, 506, I.P.C. were also proved beyond reasonable doubt. Findings recorded by the trial court are perverse and leave to appeal be allowed.
I have considered the submission and perused the record.
If the trial court findings recorded in the impugned judgement and order are compared with the fact and evidence of the present case, it is evident that only following facts ware stated by the informant and the witnesses in their statement to attract the offence under Section 504 I.P.C. "अभभियक्तगण नने गन्ददी गन्ददी गगाललियगायाँ ददी". This fact is not sufficient to attract the offence under Section 504 I.P.C. Finding of the trial court on this point is not interferable. As far as the offence under Section 323/34 I.P.C. is concerned, I.O. has taken the blouse of the victim but it was not torn. Irrespective of this fact, PW-2 Shanti Devi has stated that injury was caused from sharp side of the Fawda. Trial court recorded the finding that if the injury was caused by the accused/respondent in the manner stated by the PW-2, atleast some symptom on the blouse of the victim must remain present.
Since the blouse taken into possession by the police was not found torn, there is contradiction in the statement of the prosecution witnesses about the injuries caused by sharp edged weapon, thus, trial court finding that prosecution was not able to prove the offence under Section 323/34 I.P.C. beyond reasonable doubt is also not interferable.
As far as offence under Section 506 I.P.C. is concerned, there is general allegation and it is ornamental section. Ingredients of offence under Section 506 I.P.C. are also not available in the present matter. Trial court's finding on this point is also not interferable.
As far as offence under Section 3(1)(X) SC/ST Act is concerned, there are contradictory statement of the prosecution witnesses. Findings recorded by the trial court on this issue are also based on correct appreciation of the evidence. Leave to appeal is granted only in those cases where the view taken by the trial court is perverse.
Findings recorded by the trial court in the impugned judgement and order are not perverse.
Hon'ble Supreme Court in the case of S. Govindaraju Versus State of Karnataka, (2013) 15 Supreme Court Cases 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 Supreme Court Cases 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."
Leave to appeal prayed by the learned A.G.A. is not liable to be allowed and is hereby refused.
Since application for leave to appeal has been refused, appeal is also liable to be dismissed.
Hence, it is dismissed accordingly.
Order Date :- 26.7.2018 Sanjeet