Jyoti vs State Of U.P. And 3 Others
2018 Latest Caselaw 3663 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 41
 
Case :- APPLICATION U/S 378 No. - 128 of 2018
 
Applicant :- Jyoti
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Dhirendra Kumar Srivastava,Virendra Singh Tomar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Harsh Kumar,J.

The present application has been moved for leave to file an appeal against the impugned judgment and order dated 4.9.2018 passed by Judicial Magistrate/Additional Civil Judge(Junior Division), Court No.3, Bijnor in Complaint Case No.1001 of 2018 (Jyoti Vs. Anuj and others), under sections 452, 323, 504, 506, 427 IPC, P.S. Kotwali City, District Bijnor, acquitting the opposite party nos.2 to 4 from the charges under sections 452, 323, 504, 506 and 427 IPC.

Heard Sri Rajeev Sissodia, Advocate holding brief of Sri Dhirendra Kumar Srivastava, learned counsel for the applicant, learned AGA for the State and perused the record.

Learned counsel for the applicant contends that the complainant has produced herself as well as her mother and Chachi as P.W.1 to P.W.3 and from the evidence on record, the complaint case is fully proved; that the learned trial court has acted wrongly in disbelieving the prosecution case for want of independent witness as well as in view of material contradictions in the statements of complainant's witnesses; that in passing the impugned order of acquittal, the learned Magistrate has committed manifest error of fact on law and the impugned order is wrong and perverse and is liable to be reversed in a judgment of conviction.

Per contra, learned AGA supported the impugned order.

Upon hearing parties counsel and perusal of record, I find that the complaint has been filed with the contention that the accused-respondents approached complainant for providing her service in their Coaching Centre and obtained her original certificates as well as signatures on certain registration forms and subsequently it came to her knowledge that there is no Coaching Centre of accused-respondents in Moradabad, rather they have obtained her signatures with criminal conspiracy and are threatening her that they have obtained a marriage certificate. It is also contended that (i) her family members enquired in the office of Registrar, Moradabad and found that marriage has been registered on 15.1.2014, since then the complainant is under tension and accused are treating her with cruelty, (ii) that on 4.6.2015 at about 2:00 p.m., accused-persons came to her house, tried to fetch her and when she, her Chachi Neeraj and mother Geeta opposed, they committed marpeet inside the house and also damaged the television, refrigerator etc. and upon alarm, neighbours Sarjeet and others came there and the complainant could be protected, (iii) that the complainant was living at the house of her Mama Ranvir Singh and was studying in Vivekanand Maha Vishwa Vidhyalay Darbara, Chandpur.

During evidence, the complainant in her statement on oath under section 246 Cr.P.C. has stated that accused Anuj is her cousin brother being son of his Phupha Mahavir, the co-accused and another co-accused Jitendra is maternal uncle of Anuj. She stated that there were total five persons including the accused-persons named in complaint and all of them were armed with guns, firstly they committed marpeet with her, thereafter with her mother and Chachi and she does not know the name of any other persons, who arrived on noise, except Sarjeet. P.W.2 Smt. Geeta Devi, the mother of complainant in her statement on oath under section 246 Cr.P.C. has stated that she did not know accused-persons Mahavir, Jitendra and Anuj and there were total 6-7 assailants, but were not armed with lathi, danda etc. though committed marpeet with kicks and fists. Another prosecution witness P.W.3 Smt. Neeraj Devi, the Chachi of complainant in her statement on oath under section 246 Cr.P.C. has stated that she did not know the accused-persons and knows them since the date of incident and they neither visited their house earlier nor she ever met any of them. She further stated that she does not know as to what relationship exists between the complainant Jyoti and the accused-persons and that the accused-persons were not armed with any weapons, rather were only misbehaving. She did not state of any marpeet committed by them with complainant, her mother or with P.W.3 herself.

In view of the above evidence of complainant on record, I find that the learned trial court has not committed any mistake in holding that there are material contradictions in the statements of complainant and her witnesses. It is surprising that the complainant, who has not disclosed her relationship with the accused-persons in the complaint has categorically stated on oath that accused Anuj is her cousin brother (Phuphera Bhai), Mahavir is her Uncle (Phupha) and Jitendra is Mama of Anuj (meaning thereby brother-in-law of Mahavir or brother-in-law of her Phupha). P.W.2 and P.W.3 are respectively, mother and Chachi of complainant and in view of relationships with the accused-persons disclosed by complainant for the first time in her statement on oath, though accused-respondent no.3 Mahavir happens to be real brother-in-law (Nandoi) of P.W.2 and P.W.3 and accused-respondent no.2 Anuj is their first nephew being son of their real Nanad and accused-respondent no.4 Jitendra is a real brother-in-law of their Nandoi i.e. Saala, who may also not be termed to a stranger or unknown person. In these circumstances, not admitting the above relationship by P.W.2 and P.W.3 the mother and Chachi of complainant raises doubt on complainant story about the incident. Moreover, above suspicion gets stronger when P.W.3 the real Chachi of complainant states that she did not know her real Nandoi and his son and they never visited their house, rather she came to know of them only since the date of incident.

It is also pertinent to mention that Sarjeet and others were allegedly arrived at the time of incident for rescue of complainant and her mother, chachi, but none of them has been produced. So the learned trial court has rightly observed that complainant has failed to produce any independent witness.

In view of the above material contradictions, I find that the reasoning given by the learned trial court is cogent and there is no manifest error of fact on law or any perversity, which may require interference by this Court. It is not the case of applicant that the learned trial court failed to consider any evidence, which was there on record.

Perusal of record shows that the impugned judgment rendered by the trial court is absolutely flawless since he has analyzed the evidence in great detail and appreciated them in correct perspective. The trial court has ascribed cogent reasons for not placing reliance on the untruthful testimony of complainant and her witnesses. In such a fact situation, High Court is not advised under law to interfere with the judgment of acquittal.

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 learned counsel for the applicant has failed to show any legal infirmity, incorrectness or perversity in the findings given in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the acquittal order and substituting it with conviction order. The application u/s 378 (4) Cr.P.C. 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 :- 14.11.2018

Tamang

Order on Memo of Appeal

Hon'ble Harsh Kumar,J.

Dismissed.

For order, see order of date passed on application for leave to file appeal.

Order Date :- 14.11.2018

Tamang