Allahabad High Court
State Of U.P. vs Udai Ram And Others on 1 August, 2019
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 79
Case :- GOVERNMENT APPEAL No. - 4943 of 2011
Appellant :- State Of U.P.
Respondent :- Udai Ram And Others
Counsel for Appellant :- G.A.
Hon'ble Ram Krishna Gautam,J.
1. This appeal under Section 378(3) Cr.P.C. has been proposed by State of U.P. against Udai Ram, Luxman, Sheeshpal and Nand Kishore with a prayer for leave to appeal against judgment of acquittal, passed by Court of Special Session Judge, District J.P. Nagar in Sessions Trial No. 448 of 2008 (State Vs. Udai Ram and others), arising out of Case Crime No. 1177 of 2008, under Sections 323/34, 324, 452, 504 I.P.C. and 3(1)(X) SC/ST Act.
2. Learned A.G.A. argued that trial Court failed to appreciate facts and law placed before it. PW-1 informant / injured and PW-2 have proved case of prosecution and it was corroborated by testimony of PW-4 Dr. Samar Alam. There had been no contradiction or exaggeration in statement of PW-1 Satyapal, PW-2 Lal Singh, PW-3 Chandrapal and these testimonies were corroborated by formal witness PW-5 Constable Karan Singh. In statement recorded under Section 313 Cr.P.C., none of accused have given any explanation for those proved evidence, put to them under question. Even then, this judgment of acquittal is there. Hence, this appeal with prayer for grant of leave.
3. Heard learned A.G.A. and perused the impugned judgment. It is apparent that an application under Section 156(3) Cr.P.C. was moved before Court of Special Judge, J.P. Nagar, wherein contention was made that on 04.05.2008 at about 7.00 A.M. Udai Ram, Luxman, Sheeshpal and Nand Kishore, resident of same village, entered in altercation with informant, in which those accused persons assaulted him and insulted on the basis of being of Scheduled Caste. An application dated 05.05.2008 was filed before Superintendent of Police, J.P. Nagar through registered post and when accused persons came to know about it, they became furiated. On 08.05.2008, at about 11.00 A.M., Nand Kishore armed with Tabal (an incised weapon), Udai Ram, Luxman and Sheeshpal came and they did criminal tress pass. This was protested by informant and upon hue and cry, Lal Singh, Chandra Pal and many others came there. They intercepted causing escape of informant. Accused persons have abused on the basis of their caste and in case of opening their lip they will have to face dire consequences. Attempt was made for getting case registered at police station, but a direction for medical examination was given, which was done at Community Health Centre, where PW-4 Dr. Samar Alam examined injured Satyapal. A direction for registration and investigation of case was given, which was complied by registration of Case Crime No 1177 of 2008, under Sections 323, 324, 452, 504 I.P.C. and Section 3(1)X SC/ST Act.
4. The following injuries were found over the persons of injured:-
(i) Crushed wound in an area of 5cm x 3cm on the left side of chest towards posterior side with red colour.
(ii) Crushed wound in an area of 3cm x 2.05cm towards right side of chest.
(iii) Incised wound in an area of 1.5cm x 05cm, muscle deep over the upper right limb towards outer side, 5cm below wrist.
5. Though, original medical report was not placed on record nor it was proved by Medical Officer, who has proved a photostat copy of medico legal report that too without having original papers before him i.e. it was neither primary evidence nor secondary evidence.
6. Injury nos. 1 and 2 are of blunt object and injury no. 3 was of sharp edged object. This medico legal report was proved as Ext. Ka-2 on record. This case crime number was got registered, of which Chick F.I.R. is Ext.Ka-3 and G.D. Entry is Ext.Ka-4. After investigation made by Circle Officer Rajpal Singh (PW-6) Charge Sheet (Ext.Ka-6) for offence punishable, as above, with site map (Ext.Ka-5) was prepared and filed before Magistrate. As offence under Section 3(1)X SC/ST Act was exclusively triable by Special Court of Sessions Judge, hence trial was conducted thereat, in which witnesses of prosecution were examined. Statement under Section 313 Cr.P.C. was got recorded, in which accusation was denied and witnesses were said to be with false testimony and after hearing argument, said judgment of acquittal was passed.
7. Previous occurrence of 04.05.2008 was not brought on record. The subsequent occurrence of 08.05.2008 was said to be by Udai Ram, Luxman, Sheeshpal and Nand Kishore, in which Nand Kishore was armed with Tabal, but all three injuries of the injured were not of Tabal. Rather first two were crushed wounds, written to be of hard blunt object and third was of pointed sharp edged weapon, which were not assigned to any of accused persons. Trial Court, under all above facts and circumstances, and considering a much delayed registration of report on 24.07.2008 for occurrence of 08.05.2008, coupled with material contradiction, passed impugned judgment of acquittal, for which there seems to be no illegality or irregularity. The judgement is not apparently against the facts and evidence placed on record.
8. In Bhim Singh Vs. State of Haryana, (2002) 10 SCC 461 the Apex Court has held that where finding of acquittal is palpably wrong, manifestly erroneous and demonstratively unsustainable, judgment of acquittal may be interfered in appeal by the appellate court.
9. Law laid down by Apex Court in Jemni Bala Koteshwar Rao Vs. State of A.P., (2009) 10 SCC 636, K. Prakashan vs P.K. Surenderan, (2008)1 SCC 258 is regarding appeal against order of acquittal in which essential ingredients for interfering in judgment of acquittal has been propounded to be perversity, judgment based on no material and judgment suffering with legal infirmity.
10. Under section 378(3) Cr.P.C. provision for leave to appeal against judgment of acquittal by Legislature has been with a view that unnecessary appeal is not to be filed in routine, rather it should be checked as to whether there is substance for hearing a judgment of acquittal in appeal then leave to appeal is to be granted by the appellate court under above section.
11. Hence prima-facie existence of perversity, manifestly wrong or demonstratively unsustainability of judgment of acquittal is to be seen. Under all above facts and circumstances impugned judgment seems to be based on proper and correct perspective of law with correct appreciation of evidence. Thus, application for leave to appeal merits its rejection.
12. Accordingly, application for leave to appeal is rejected.
Order Date :- 1.8.2019
NS
