Court No. - 34
Case :- GOVERNMENT APPEAL No. - 3916 of 2009 Appellant :- State Of U.P.
Respondent :- Smt.Rashmi Devi And Another Counsel for Appellant :- G.A.
Hon'ble Om Prakash-VII,J.
Heard learned AGA perused the entire record.
Present State appeal along with leave application has been preferred by the State of Uttar Pradesh against the judgement and order dated 27.1.2009 passed by the Additional Sessions Judge, Fast Track Court No.1, District Ghazipur, passed in Session Trial No. 96 of 2003 under Sections 323, 504 I.P.C. and Section 3(1)(X) SC/ST (P.A) Act, whereby respondents-accused were acquitted.
Submission of the learned AGA is that P.W.2 was the injured witness and he has supported the prosecution case. Referring to the statement of P.W. 5 it was also argued that prosecution case is also supported by medical evidence. Findings recorded by the trial court in the impugned judgement and order are perverse and illegal. It was next argued that prosecution was able to prove its case beyond reasonable doubt. Thus, prayer was made to grant leave to appeal.
I have considered the submissions made by the learned AGA.
As is evident, offence is said to have been committed on 27.1.1996, Charge sheet was submitted for the offence under Sections 323, 504 I.P.C. and Section 3(1)(X) SC/ST (P.A) Act. Prosecution examined five witnesses to prove its case. Out of them, P.W. 1 Hori Ram Yadav has been declared hostile and he did not support the prosecution case P.W. 2 Smt. Kamta Devi was the injured witness, P.W. 3 R.N. Rai, chik writer, P.W. 4 Ram Subhag Yadav, I.O. and P.W. 5 Dr. S.N Singh who has medically examined the injured. Trial Court while passing the impugned judgement and order has observed that medical evidence does not support the prosecution case. Prosecution was not able to establish its case beyond reasonable doubt. It was also observed that prosecution has suppressed the material witnesses, thus, presumption was drawn against the prosecution. If the observation recorded by the Trial Court are minutely analysed in consonance with the evidence no illegality or infirmity is found in the impugned judgement and order. There is major contradiction in the statement of prosecution witnesses on point of injuries said to have been sustained by the injured as well as number of assailants and also the actual words uttered by the assailants to attract the offence under Section 504 I.P.C. and 3(1)(X) SC/ST (P.A) Act.
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."
In view of the above, this Court is of the opinion that it is not a fit case to grant leave to appeal.
Thus, the application for leave to appeal is hereby rejected.
Since, leave to appeal application has been rejected, hence, the appeal is also dismissed.
Order Date :- 27.7.2018 A.N. Mishra