Court No. - 75
Case :- GOVERNMENT APPEAL No. - 4183 of 2003
Appellant :- State Of U.P.
Respondent :- Karam Chand And Others
Counsel for Appellant :- G.A.
Hon'ble Om Prakash-VII,J.
The present government appeal has been filed along with leave to appeal application against the impugned judgement and order dated 3.5.2003 passed by Additional District and Sessions Judge, Bulandshahr in Sessions Trial No. 529 of 1990 under Sections 147, 148, 323, 324, 325, 308 I.P.C. in case crime no. 197/1983, Police Station Chhatari, District Bulandshahr, 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 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, in support of its case prosecution has examined eight witnesses, namely, PW-1 Pitamber, PW-2 Vinod Kumar, PW-3 Chakkhan Lal, PW-4 Balmukund, PW-5 Lote Singh, PW-6 Dr. R.K. Upadhyay, PW-7 B.N. Mehta (retired Inspector) and PW-8 Dr. Mohan Lal. Out of the said witnesses, PW-1 was declared hostile as he did not support the prosecution case. Statement of PW-2 is based on hearsay. PW-3 Chakkhan Lal did not support the prosecution case and he was also declared hostile. PW-4 Balmukund, the injured, has supported the prosecution case in examination in chief but when he was cross examined, he specifically stated that accused, who caused injuries, had covered their faces. Therefore, he could not see them. The trial court while analysing the statement of PW-5 has observed that there is contradiction in his statement on the point of number of injured persons. He has only stated that injury was caused only to Balmukund. As mentioned above, Balmukund has been examined in this case as PW-4 but he resiles with his statement recorded in examination in chief. If statement of prosecution witnesses examined in the matter are taken cumulatively, they cannot be placed in the category of reliable witnesses. Since there are major contradictions in the statements of prosecution witnesses on material points and some of them have not supported the prosecution case in toto, the findings recorded by the trial court acquitting the respondents from the charges levelled against them cannot be termed to be illegal. No illegality, infirmity or perversity is found in the impugned judgement and order. 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 safi