Court No. - 51
Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 294 of 2018 Applicant :- Virendra Gaur Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Syed Wajid Ali,Santosh Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard learned counsel for the applicant-appellant on the application seeking leave to appeal and perused the record.
The present criminal appeal has been filed along with an application for seeking leave to appeal against the judgment and order dated 4.6.2018 passed by Additional District & Sessions Judge, F.T.C., Court no. 2, Baghpat in S.T. No. 330/2016 whereby accused-respondents, namely, Sarfaraz has been acquitted for the offences under Section 307 IPC, P.S. Khekra, District Baghpat.
Learned counsel for the appellant has strongly pressed the application with the contention that the prosecution evidence has not been appreciated by the court concerned in its correct perspective. He has submitted that the finding of acquittal recorded by learned trial judge is against the evidence on record. He has next submitted that the learned trial judge has committed a patent error of law and ignored the material evidence on record while holding that the prosecution had failed to prove the charge against the accused respondents beyond the reasonable doubt. He further submitted that there are vast contradictions in the testimony of the witnesses.
We have perused the judgment and order dated 4.6.2018 and the findings as recorded therein.
PW-1 H.C.P. Radhacharan Singh in his cross-examination has stated herein as under:
“fdUrq ih0MCyw0&1 ,p-lh-ih- jk/kkpj.k flag ds }kjk viuh ftjg eas dFku fd;k x;k gS fd ;g ckr lgh gS fd bl ?kVuk esa fdlh iqfyl dehZ;kas dks pksV ugha vk;h FkhA xkMh eas D;k eky Hkjk Fkk bldh tkudkjh geas ugha FkhA xkMh dk jxa flyVs h FkkA tc ge cSfj;j yxk jgs Fks rks mlls igys gh xkMh fudy pqdh FkhA xkMh fdruh LihM ls Fkh eSa ugha crk ldrkA xkMh eas fdrus ykxs Fks eSa ugha crk ldrkA xkMh ds Hkkxus ds ckn eSa o esjs lkFk ,l0vkbZ0 lqHkk"kpUnz o ohjsUnz xkSM psd iksLV ij igqaps FksA mDr lk{; ds vk/kkj ij ;g Li"V gks tkrk gS fd mDr ?
kVuk eas fdlh Hkh iqfyldehZ dks pkVs ugha vk;h Fkh rFkk ;gkW Hkh Li"V gks tkrk gS fd tc Lo;a vfHk;kstu lk{kh ds vuqlkj xkMh cSfj;j yxus ls igys gh fudy x;h Fkh rks ,slh fLFkfr eas vfHk;ktus i{k dk ;g dFkkud fd b'kkjk dj jksdus dk iz;kl fd;k x;k rks xkMh pkyd us ge iqfyl okykas ij tku ls ekjus dh fu;r ls dqpyus dk iz;kl fd;s tkus dk dFku fujk/kkj izrhr gksrk gSA** PW-2 S.I. Subhash Chandra in his cross-examination has stated herein as under:
**ih0MCyw0&2 ,l0vkbZ lqHkk"kpUnz ds {kjk viuh ftjg eass Lohdj fd;k gS fd xkMh eas diMs Hkjs FksA geus mu diMkas dh QnZ ugha cuk;h FkhA xkMh eas dkbZs voS/k lkkeku ugha feykA ,slh fLFkfr eas U;k;ky; ;g le> ikus eas foQy jgk gS fd tc Lo;a vfHk;kstu lk{kh ds vuqlkj mDr xkMh eas dkbZs voS/k lkeku ugha feyk FkkA ,slh fLFkfr eas xkMh pkyd fdl dkj.k ls viuh xkMh dfFkr :i ls cSfj;j rksMdj Hkkxsxk rFkk dfFkr :i ls gh iqfyl dfeZ;ksa dks dqpyus dk iz;kl djsxkA** PW-3 injured Virendra Gaur in his cross-examination has stated herein as under:
**;gkW ij ;g iz'u mBuk LokHkkfod gS fd ih0MCyw0&3 ds } kjk viuh eq[; ijh{kk eas xkMh dk uEcj crk;k x;k gS tcfd mlds }kjk viuh ftjg eas igys ;g dFku djuk fd eq>s xkMh ugha irk gS vkSj ckn eas xkMh dk uEcj crk;k tkuk lna g;s kLin izrhr gkrs k gSA vkxs ih0MCyw0&3 ds }kjk viuh ftjg eas dFku fd;k gS fd ftl xkMh us eq>s Vddj ekjh Fkh mldk tks Hkh Hkkx VwVk Fkk esjh Fk;ksMh ij yxk Fkk A xkMh dk vxyk cEHkj tks VwV x;k Fkk og lMd ij iMk Fkk mlds mBkdj lk{kh deZpkjh us pkSdh ij j[kjk FkkA** PW-4 S.I. Karanveer Singh in his cross-examination has stated herein as under:
**ih0MCyw0&3 ds mijksDr c;ku dk fojks/kkHkkl c;ku ih0MCyw0&4 ,l0vkbZ0 d.kZohj flag ds }kjk viuh ftjg eas fd;k x;k gS muds }kjk dFku fd;k x;k gS fd ;g ckr lgh gS fd xkMh eSaus nqq?ZkVuk okyh ns[kh FkhA mldk vxy cEHkj VwVk gqvk ugha FkkA u gh uhps fxjk gqvk FkkA eq>s et:c us ;g ugha crk;k Fkk fd xkMh us fdl le; Vddj ekjh Fkh u gh xkMh dk uEcj] ekWMy dEiuh o jax dk C;kSjk crk;k FkkA** PW-5 and PW-6, namely, Dr. Dinesh Pandey and Dr. Amit Kumar Gupta respectively in their cross-examinations have stated herein as under:
“lk{kh ih0MCyw0&5 Mk0 fnus'k ik.Ms ds }kjk viuh ftjg eas dFku fd;k x;k gS fd&pqVSy dks njksxk th ysdj vk;s Fks og [kqn pydj vk;k FkkA et:c csgks'kh dh gkyr eas ugha FkkA cfYd iw.kZ :i ls gks'k gck'k eas FkkA U;k;ky; ;g le> ikus eas vleFkZ gS fd tc vfHk;ktus lk{kh ih0MCyw0&3 pqVSy VDdj [kkus ds ckn fxj x;k Fkk rFkk csgks'k gks x;k Fkk rks ,slh fLFkfr eas [kqn pqVSy pydj MkDVj ds ikl dSls igqap x;k ;gh ugha cfYd tc mls ftyk vLirky ls jSQj fd;k x;k Fkk rks ml le; Hkh oks csgks'kh dh gkyr eas ugha Fkk tSlk fd lk{kh ih0MCyw0&6 Mk0 vfer dqekj xqIrk ds }kjk viuh ftjg eas dFku fd;k x;k gS fd&et:c dks tc ftyk vLirky ls jsQj fd;k x;k vkSj og tc gekjs vLirky eas HkrhZ gqvk Fkk ml le;
og csgks'kh dh gkyr eas ugha FkkA** Thus, the court concerned while returning the verdict of acquittal has concluded herein as under:
**ih0MCyw0&5 Mk0 fnus'k ik.Ms o ih0MCyw0&6 Mk0 vfer dqekj ds c;ku ls ;g ckr rks Li"V gks tkrh gS fd tc pqVSy dks vLirky eas ys tk;k x;k Fkk rks og iw.kZ gks'ks gckl eas Fkk rFkk og [kqn pydj x;k FkkA rFkk og csgks'kh dh gkyr eas ugha FkkA mijksDr lk{khx.k ds c;ku ls ih0MCyw0&3 ohjsUnz xkSM+ ds csgks'kh okys c;ku lansg ds ?ksjs eas vk tkrs gSA lk{kh ih0MCyw0&5 Mk0 fnus'k ik.Ms ds }kjk pqVSy dks vk;h pksVas ds ckjs es viuh ftjg eas dFku fd;k x;k gS fd&pksVas izk.k?
kkrd Fkh ;k ugha ;g dg ikuk eqf'dy gS pksV uEcj 2 lk/kkj.k izd`fr dh gSA ,slh fLFkfr eas vfHk;ktus i{k dk ;g dFkkud fd vfHk;qDrx.k /kkjk 307 Hkk0na0la0 ds vijk/k curk gS ;qfDr;qDr izrhr ugha gksrk gSA U;k;ky; ds bl er dks vfHk;kstu lk{kh ih0MCyw0&4 dk leFkZu feyrk gS tSlk fd mlds }kjk dFku fd;k gSA lk{kh ih0MCyw0&4 ds }kjk Hkh fd;k x;k gS fd&;g ckr lgh gS fd esjh foospuk eas esjs }kjk tks efs Mdy et:c ohjsUnz xkSM+ ds ladfyr fd, x, Fks os ,slh dksbZ lIyhesUVªh fjiksVZ ugha Fkh ftleas MkDVjkas gksA }kjk et:c ds 'kjhj ij vk;h pksVas izk.k?kkrd crk;h x;h vr% lk{; ds mijksDr fo'ys"k.k ds ifjizs{; eas vfHk;ktus i{k vius dFkkud dks lansg ls ijs lkfcr djus eas vlQy jgs gSaA vr% vfHk;qDr lansg dk ykHk izkIr djus dk vf/kdkjh gS vkSj ifj.kker% nks"keqDr fd;s tkus ;ksX; gSA** Reference may be made to the recent judgment of the Apex Court rendered in the case of Bannareddy & Ors. vs. The State of Karnataka & Ors reported in 2018 (5) SCC 790 wherein the Apex Court has held as under:
11. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in the case of Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 11 SCC 186, para 13, wherein this Court observed that: “The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt.
12. It is not in dispute that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favor. [Vide Rabindra Kumar Pal @ Dara Singh vs. Republic of India, (2011) 2 SCC 490 in para. 94].
27. Keeping in view the facts and circumstances of the case, we hold that the prosecution was not able to establish the guilt of the accused persons beyond reasonable doubt. Further, the High Court should not have re-appreciated evidences in its entirety, especially when there existed no grave infirmity in the findings of the trial court. There exists no justification behind setting aside the order of acquittal passed by the trial court, especially when the prosecution case suffers from several contradictions and infirmities. No specific assertion could be proved regarding the role and involvement of the accused persons. Further, certain actions of the victim-respondents themselves are dubious, for instance admitting themselves later in a Multi-speciality hospital without proper cause. It has further come to our notice that respondents have already compromised and have executed a compromise deed to that extent, though the same is not the basis for our conclusion.
Reference may also be made to the judgments of the Apex Court rendered in the cases of Sanmwat Singh Vs. State of Rajasthan reported in 1961 SC 715, Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011, Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal No. 512 of 2014, Ashok Rai Vs. State of U.P. & Ors. Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005, Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990 and Murugesan v. State through Inspector of Police reported in 2012 AIR SCW 5627.
Thus, in view of aforesaid consistent legal position as elaborated above and also in view of the fact that learned counsel for the appellant has failed to point out any illegality or perversity with the findings so recorded in the impugned order, no case for interference has been made out.
It is an established position of law that if the court below has taken a view which is a possible view in a reasonable manner, then the same shall not be interfered with moreso in view of the fact that more than 3 years have already elapsed as the incident is of the year 2016.
After perusal of the impugned judgment shows that the trial court after a thorough marshalling of the facts of the case and a microscopic scrutiny of the evidence on record has held that the prosecution has failed to prove the charge against the accused respondents and the findings recorded by the learned trial judge in the impugned judgment are based upon evidence and supported by cogent reasons.
No interference with the impugned judgment and order of acquittal is warranted. Accordingly leave to appeal is refused and application is rejected. Consequently, the appeal also stands dismissed.
Let the lower court record be sent back to the court concerned forthwith.
Copy of the order be certified to the court concerned for consequential follow up action.
Order Date :- 31.07.2018 Anand