Court No. - 26
Case :- GOVERNMENT APPEAL No. - 4049 of 2009 Appellant :- State Of U.P.
Respondent :- Rajendra Singh & Others Counsel for Appellant :- Desh Ratna Chaudhary/Ga
Hon'ble Om Prakash-VII,J.
Heard learned A.G.A. and perused the entire record.
The present appeal has been filed along with leave to appeal application against the impugned judgement and order dated 04.02.2009 by Additional Sessions Judge, Court No.02, Bulandshahr passed in Criminal Appeal No.56 of 2008 (Rajendra Singh & others versus State of U.P.), under Section 344 Cr.P.C. whereby appeal was allowed respondents were acquitted setting aside the judgment and order passed by trial court.
Submission of learned A.G.A. is that accused respondents were rightly convicted and sentenced by the trial court. Appellate court illegally allowed, the appeal and set aside the judgment and order passed by the trial court. Procedure prescribed under Cr.P.C. have been followed. Trial was not vitiated on that ground. Thus referring to the findings recorded in the impugned judgment and order dated 04.2.2009 passed by the lower appellate court it was further argued that findings of the lower appellate court is illegal. Thus, prayer was made to grant leave to appeal.
I have considered the submissions and perused the entire record.
In this matter, as is evident from the record, conviction of accused-respondents was challenged in criminal appeal before the concerned sessions judge which was allowed on 04.02.2009 hearing both the parties and observing that mandatory provision provided under 344 Cr.P.C. for trial of small (petty) cases have not been followed. Sufficient opportunity was not given to the accused-respondents to defend the case. If the findings recorded by the trial court in the impugned judgment and order are minutely analyzed It is clear that on receiving the reply to the notice issued to the accused respondents simply trial court proceeded to record the conviction without affording opportunity for defence.
In view of the above opinion formed by lower appellate court in the impugned judgment and order cannot be termed to be illegal.
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."
The application moved by the appellant State of U.P. to grant leave to appeal for the reason discussed herein above is not liable to be allowed. Hence, the application for leave to appeal is refused.
Since the application for grant to leave has been refused, the appeal is also not liable to be admitted and is dismissed at this stage.
Order Date :- 24.8.2018 A.N. Mishra