Court No. - 17
Case :- GOVERNMENT APPEAL No. - 8027 of 2009 Appellant :- State Of U.P. Respondent :- Purnamasi 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 03.06.2009 passed in Session Trial No. 333 of 2006 (State of U.P. Vs. Purnamasi and others), under Sections 308, 323, 325, 504 and 506 I.P.C where by respondent nos.
1, 2 and 3 were acquitted.
Learned A.G.A. argued that trial court while acquitting respondent nos. 1, 2 and 3 vide impugned judgement and order committed illegality in appreciating the prosecution evidence. Date, time and place of the occurrence was proved by the prosecution from its evidence beyond reasonable doubt. Medical evidence fully support the prosecution case. Contradiction occurred in the prosecution evidence was not fatal to the prosecution case. PW-3 Mahendra is the injured witness and was medically examined on the date of incident itself. Offence under Section 308 I.P.C. was also clearly proved. Only on the ground of delay in lodging the FIR and improvement which were not fatal to the prosecution case, trial court acquitted the respondent nos. 1 to 3.
I have gone through the impugned judgment and order carefully.
The FIR was not immediately lodged after the incident. No effort appears to have been made for lodging the FIR nor the prosecution was able to adduce any document to establish the efforts made by the victim/informant to lodge the FIR.
There is contradiction in the statement of fact witnesses PW-1, PW-2 and PW-3 on the point of weapons assigned to the respondents. PW-1 and PW- 2 both are not the eye account witnesses. There is also contradiction in the statement of injured PW-3 whether he was beaten by the accused persons inside chakki or outside chakki. The prosecution has made an improvement at the stage of examination of witness before the court to fill up the lacuna and to explain the delay occurred in lodging the FIR.
If the findings recorded by the trial court in the impugned judgement and order are minutely analyse with the settled legal proposition learned trial court has correctly appreciated the prosecution evidence and acquitted the respondent nos. 1 to 3. The view taken by the trial court in the facts and circumstances of the case cannot be said to be 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."
Thus, leave to appeal application is not liable to be allowed. Hence rejected.
Since leave application has been rejected, therefore, the appeal is also dismissed at this stage.
Order Date :- 26.7.2018 Sanjeet