Court No. - 20
Case :- GOVERNMENT APPEAL No. - 5205 of 2010 Appellant :- State Of U.P. Respondent :- Rajkumar Counsel for Appellant :- G.A.
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 filed alongwith application seeking leave to appeal against impugned judgement and order dated 13.4.2010 passed by Special Judge/ Additional Sessions Judge, Bijnore in Sessions Trial No. 63 of 2008 (State Vs. Rajkumar), Police Station-Kotwali Dehat, District-Bijnore whereby he has acquitted the opposite party of charges under Section 135 of Electricity Act.
Prosecution story in brief is that on 16.02.2008 during the course of special checking, when the informant Krishna Kumar, Executive Engineer, 33/11 K. V., U.P. Sansthan, Peeli Chauki alongwith his staff Sri Ram Singh, Lineman, C. B. Singh, Incharge Jhaalu, Ankush, Dinesh Verma, Executive Engineer- Jhaalu reached Gangoda Shekh, found that the accused Raj Kumar S/o Rajendra Singh resident of Gangoda Shekh, theft the electricity by connecting a wire of three code, having blue color, length about 44 meter with the main L. L. Line and from that he operated Kolhu. The time was bout 16:15. In this regard, a First Information Report has been registered in which after investigation accused had been charged to face trial. Accused-respondent denied the prosecution allegations and claimed trial.
Prosecution in order to prove its case has examined PW1 Krishna Kumar, PW2 Ram Singh, PW3 S.I. Ghanshyam Tyagi and PW4 Nadeem Akhtar.
Perusal of the impugned judgement and order shows that court below had recorded acquittal against the accused-respondent on the basis that F.I.R. was doubtful, no credible evidence has been produced by the prosecution to prove the alleged recovered cable. More so, there is no credibility in the statements of the prosecution witnesses who were examined during trial.
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 laiddown 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 judgement and order of the trial Court and I do not find any illegality, infirmity or perversity in the impugned judgement and order. The view taken by the trial Court is just and does not suffer from any misreading of any material evidence on record.
In view of the aforesaid, the leave to appeal is declined. The application for leave to appeal is accordingly rejected.
Consequently, the appeal is also dismissed.
Order Date :- 26.7.2018 AKT