Court No. - 50
Case :- GOVERNMENT APPEAL No. - 5690 of 2002 Appellant :- State Of U.P.
Respondent :- Saddik & Others Counsel for Appellant :- Govt. Advocate
Hon'ble Harsh Kumar,J.
The application has been moved by State for leave to file appeal against the impugned judgment and order dated 6.9.2002 passed by Additional Sessions Judge, Court No.10, Ghaziabad in S.T. No.1138 of 1999, State Vs. Saddik and others, acquitting the respondents from the charges under sections 147, 323/149, 325/149 and 308/149 IPC.
Heard learned AGA for the State and perused the record.
Learned AGA submitted that the learned trial court has acted wrongly and illegally in acquitting the accused-persons only for the reason that there was no source of light at the time of incident at 9:30 p.m.; that the learned trial court has failed to consider that the first informant as well as accused-persons belonged to the same vicinity and the neighbours can be identified even in darkness and there can be no mistake by the first informant in identifying the accused-persons; that it was proved from the evidence on record that there were some dues of accused-persons over first informant and the first informant and accused-persons were on inimical terms with each other since long; that it is proved from the evidence on record that P.W.1 Riyazuddin the first informant and his Bhabhi Nazma P.W.2 sustained multiple injuries in the incident in question and there can be no reason for disbelieving their injuries; that the impugned judgment and order is liable to be set aside and the accused-respondents are liable to be convicted and sentenced.
Upon hearing learned AGA and perusal of record, I find that as per averments made in F.I.R., “on 10.5.1998, the first informant was sleeping in courtyard of his house when his father returned after doing process of NAMAZ and knocked the door and in the meantime accused-persons armed with lathis called the first informant that “साले घर से बाहर िनकलकर आ, आज तुझे पसे लेने का मजा चखाएंगे िक मै अपने आं गन से बाहर आकर उन लोगो से कहने लगा िक गाली कयो दते हो / मने तुमसे पैसा नही िलया है िक करीब 9:30 बजे थे सब लािठयो से मेरे साथ मारपीट करने लगे / वादी ने शोर मचाया तो शोर सुनकर वादी की भाभी नजमा घर के बाहर आई व सधीर भी आ गया िजसने वादी को बचाया / वादी को बचाने मे वादी की भाभी नजमा को चोटे आई /”
The prosecution in order to prove charges against accused- persons has produced the first informant Riyazuddin as P.W.1, Nazma as P.W.2, Rahimuddin as P.W.3 and Tasliman as P.W.4, apart from Medical Officer and Investigating Officer as P.W.5 and P.W.6. It is not disputed that accused-persons are neighbours of first informant, as has been admitted by them in their statements under sections 313 Cr.P.C. It is pertinent to mention that the trial court has discussed the prosecution evidence in detail and after analyzation of prosecution evidence on record has passed the impugned order of acquittal.
The careful consideration of the material on record shows that according to averments made in F.I.R., the accused-persons called the first informant outside the house and upon his stating that he has not borrowed any money from them, they all committed marpeet with him with lathis and on his alarm, his bhabhi Nazma came out of the house and Sudhir also arrived there and saved him.
P.W.1 in his statement on oath has stated that the incident of marpeet was committed inside the house and P.W.2 Nazma the Bhabhi of P.W.1 has also stated that the incident in question was committed inside the house. P.W.3 and P.W.4 are father and mother of first informant P.W.1, out of whom P.W.3 father of first informant has stated that incident was committed outside the house when the first informant came on road, but P.W.4 the mother of first informant has stated that the incident in question was committed inside the house in the gallery.
Undisputedly, the trial court has held that there was no source of light at the place of occurrence and in the circumstances, the possibility of committal of incident by some unknown persons and for not identifying the real culprits, the accused-persons appear to have been falsely implicated, due to old enmity and considering the material contradictions between the statements of prosecution witnesses, has disbelieved the prosecution case.
It is pertinent to mention that all the four witnesses of fact are related to first informant and independent witness Sudhir mentioned in F.I.R. has not been produced by prosecution, who could have been the best and independent witness to throw light on the occurrence.
It is settled principle of law as held by Hon'ble the Supreme court in the case of K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified".
In view of discussions made above, I have come to the conclusion that the trial court has not committed any mistake and the learned AGA has failed to show any legal infirmity, incorrectness or perversity in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the impugned order of acquittal in the matter relating to 20 years old incident and substituting it with conviction order. The application for leave to appeal has no force and is liable to be dismissed.
The application for leave to file appeal is dismissed accordingly and the appeal also stands dismissed.
Order Date :- 25.4.2018 Tamang
Order on Memo of Appeal Hon'ble Harsh Kumar,J.
Dismissed.
For order, see order of date passed on application for grant of leave to file appeal.
Order Date :- 25.4.2018 Tamang