Court No. - 20
Case :- GOVERNMENT APPEAL No. - 7355 of 2009 Appellant :- State Of U.P.
Respondent :- Jafunisha & Others Counsel for Appellant :- Govt. Advocate
Hon'ble Ravindra Nath Kakkar,J.
Heard learned A.G.A. for State-appellant and perused the material placed on record.
The instant appeal has been preferred against the impugned judgment and order dated 16.02.2009 passed by Additional Sessions Judge, Fast Track Court No.3, Gorakhpur in S.T. No.389 of 2005 (State Vs. Ajay Kumar Srivastava & others), whereby the accused respondents were acquitted from the charges under Section 328 I.P.C.
Prosecution story, in brief, is that complainant's wife Savitri Devi, her sister Anita and brother's wife Radhika Devi all the three were in the house, at about 11/12 hours three unknown ladies came to the house of the complainant and they had thrown some poisonous substance to the house of the complainant due to which all fell unconscious, who were immediately taken for medical aid.
An FIR was registered about the said incident and after completion of the investigation charge sheet has been submitted against the accused respondents.
Prosecution in support of its case examined P.W.1 Awadhesh, P.W.2 Smt. Savitri, P.W.3 Gulab, Pw.4 Anita Sahini, P.W.5 Constable Savdev Singh, P.W.6 Ram Narayan- Inspector, P.W.7 Dr. S.K. Srivastava.
Perusal of the impugned judgment and order reveals that learned trial court had acquitted the accused respondents on the ground that according to doctor's opinion it is not a case of zahar khurani; no evidence has been produced to prove the prosecution version; there is delay in lodging the FIR; the prosecution has failed to prove its case beyond any reasonable doubt.
It is relevant to mention that in Gamini Bala Koteswara Rao Vs. State of Andhra Pradesh, AIR 2010 SC Page 589 the Hon'ble Apex Court has held that :-
"Only in a case when the judgement of the trial court is stated to be perverse i.e. against the weight of evidence, only then conclusion drawn by the trial Court could be re-appraised."
In K. Prakashan Vs. P. K. Surenderan (2008) 1 SCC, 258, Hon'ble Apex Court held that :-
"When two views are possible appellate Court should not reverse the judgement of acquittal merely because the other view was possible when judgement of trial court was neither perverse nor suffered from any illegality or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified."
In T. Subramanyan Vs. Tamilnadu (2006) 1 SCC, page 401, Hon'ble Apex Court laid down that:-
"Where two views are reasonably possible from the very same evidence prosecution cannot be said to have proved its case beyond reasonable doubt."
In light of above legal propositions I have perused the impugned judgment and order of the trial court and do not find any illegality, infirmity and perversity in the same. The view taken by the trial judge is just, proper and does not suffer from any misreading of any material evidence on record.
In view of the aforesaid, there is no merit in the application for leave to appeal which is hereby rejected and consequently the present appeal is, accordingly, dismissed.
Order Date :- 23.8.2018 Anand Sri./-