Court No. - 45
Case :- GOVERNMENT APPEAL No. - 1949 of 2017 Appellant :- State Of U.P.
Respondent :- Shyam Sunder @ Badaku Yadav And 2 Others Counsel for Appellant :- G.A.
Hon'ble Shashi Kant Gupta,J. Hon'ble Abhai 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 30.11.2016, passed in Sessions Trial No. 30 of 2008 (State Vs. Shyam Sunder @Badaku Yadav and others), arising out of Case Crime No. 421 of 2004 under Sections 302,201 IPC, P.S. Sahjanwa, District Gorakhpur by the learned Additional Sessions Judge/Special Judge( Prevention of Corruption Act), Court No.2,Gorakhpur whereby the accused respondents have been acquitted for the offence punishable under the sections referred to above.
A perusal of the record shows that as per the prosecution story on 25.8.2004 at about 3.00 P.M. a dead body was found at the bank of a river by a Fisherman, who reported the same to Gram Pradhan Dharmendra Yadav. The Gram Pradhan identified the dead body to be of Angad, a resident of the village. An application was given to the Station House Officer of the Police Station Sahjanwa being report No. 37 dated 25.8.2004. Thereafter another report dated 27.8.2004 was submitted by P.W.2 Arjun Yadav to the Station House Officer Police Station Sahjanwa stating therein that his real brother was fond of wrestling. On 20.8.2004 at about 9.00 a.m. when he and his mother Sunra Devi were present in the house, at that time all the accused persons came to his house and took his brother for wrestling bout in "Dangal" (Wrestling Competition) and since then his brother has not returned. P.W. 2 Arjun Yadav is said to have filed an FIR. He appeared before the court and did not support the prosecution story. He clearly stated in his statement that the accused persons took away his brother for wrestling bout in "Dangal" as such, P.W. 2 the First Informant was declared hostile. The Court after discussing his evidence at length, recorded a finding that the prosecution has not been able to establish the motive to commit the alleged offence. It is a case of circumstantial evidence. Except P.W. 3 Sunra Devi and P.W. 4 Smt. Lila Devi none of the witnesses of facts have supported the prosecution story. The Court below was of the view that there is no cogent and convincing evidence found against the accused respondents.
We have carefully perused the judgement passed by the lower court. Perusal of the judgement shows that this a case of circumstantial evidence and 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. We, therefore, do not consider it to be a fit case for grant of leave to appeal to the applicant. The application seeking leave to appeal is, accordingly, rejected and, consequently the appeal is also dismissed.
Order Date :- 18.4.2017 N.A.