Court No. - 45
Case :- GOVERNMENT APPEAL No. - 471 of 2018 Appellant :- State Of U.P. Respondent :- Shafiq Counsel for Appellant :- G.A.
Hon'ble Shashi Kant Gupta,J. Hon'ble Ajit Kumar,J.
Heard learned A.G.A. for the State appellant/applicant and perused the material on record.
This application has been filed by the State appellant/applicant with the prayer that leave to appeal may be granted against the judgement and order dated 21.11.2017, passed in Sessions Trials No. 739 & 740 of 2010, arising out of Case Crime No. 119 & 121 of 2010, under Section 302 IPC and Section 25 Arms Act respectively, P.S. Dibai, District Bulandshahar by the learned Additional District & Sessions Judge, Anoopshahar, Bulandshahar whereby the accused respondent has been acquitted for the offence punishable under the sections referred to above.
The incident is said to have occurred in the intervening night of 5/6.4.2010. The FIR was lodged by Sarvar Ali, father of the deceased Imran at 7.30 am. According to the FIR, on 5.4.2010 at 11 pm Imran (deceased), aged about 22 years, after watching TV had gone to the terrace for sleeping. Apart from him, his brother Intejar, sister Nauseen and his cousin brother Sadab were also sleeping on the terrace. On 6.4.2010 when his son Imran did not come down in the morning, the informant went to the terrace and saw him lying dead on his cot. The blood was oozing out from his head and his bed was soaked with blood. Some unknown person appeared to have committed his murder by firing on his head. On the basis of the said information, the FIR was registered as Case Crime No. 119 of 2010, under Section 302 IPC.
A perusal of the record shows that according to informant, he saw his son lying dead on the cot at 8 am on 6.4.2010 on the terrace and the proceeding of Panchayatnama had also commenced at 8.20 am but the FIR on the contrary was lodged at 7.30 am on the said date much before the informant acquired knowledge about the murder of the deceased. In the circumstances, no explanation has been given how the FIR can be lodged at 7.30 am on the very same date without knowing about the alleged incident. No explanation appears to have been given by the prosecution in this regard.
It has also come on record that PW 3, Nauseen, who has been termed as a child witness, was the minor daughter of the informant and she has stated in her statement that the accused- respondent is her distant relative (maternal uncle), as such, she recognizes him. She further stated in her statement that she was also sleeping on the terrace along with his cousin Sadab and brother Imran (deceased) and after hearing the sound of the gun shot, she got awakened and saw her maternal uncle Safique running away and jumping over the wall carrying gun in his hand. She also saw the blood oozing out from the body of his brother Imran but she did not make any hue and cry and again went to sleep. She stated all these facts to Daroga Ji but did not tell about the aforesaid fact immediately to her father but had disclosed about it to him after about 2-3 days. The statement of PW 3 Nauseen appears to be totally uninspiring. It is very unnatural that in case, PW 3 had seen the accused-respondent running away in the night after committing the murder of her brother, she instead of raising alarm will go again to sleep and would not raise alarm or tell her family members about the said incident immediately and further wait for 2-3 days to disclose this fact. The story set up by prosecution is not at all inspiring and is shattered completely and falls flat on its face. It is also notable that the ballistic examination report also does not support the prosecution case. According to Ballistic Examination Report, the alleged bullet was not fired from the alleged country made pistol, which is alleged to have been recovered from the possession of the accused- respondent.
Perusal of the judgement shows that it is a case of circumstantial evidence and the prosecution has miserably failed to prove the motive for the commission of the alleged crime. It is a well settled law that in the case of circumstantial evidence all the links of events must be completed, so as to form a complete chain. It is also well settled law that, if two views are possible and the trial judge has taken one view, which is reasonable and plausible and appeals to the judicial mind, then the High Court should refrain from interfering with the order of acquittal. Interference with the order of acquittal should only be done when the findings are perverse, illegal and against the material available on record. The court below has given cogent, convincing and satisfactory reasons while passing the order of acquittal. The impugned judgment and order passed by the court below does not suffer from any infirmity.
The learned AGA has failed to point out any illegality or perversity in the findings recorded by the court below.
We, therefore, do not consider it to be a fit case for grant of leave to appeal to the applicant. The appeal is devoid of merit. The application seeking leave to appeal is, accordingly, rejected and, consequently the appeal is also dismissed.
Before parting with the case, we would like to note here that we have failed to understand as to why the present government appeal has been preferred by the State despite the fact that there is absolutely nothing on the merit to establish that the crime has been committed by the accused- respondent.
Order Date :- 28.3.2018 vinay