Allahabad High Court
State Of U.P. vs Virendra @ Guddu Giri S/O ... on 28 April, 2022
Bench: Om Prakash-Vii, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?E-COURT
JUDGMENT RESERVED ON : 19.04.2022
JUDGMENT DELIVERED ON: 28.04.2022
Court No. - 53
Case :- GOVERNMENT APPEAL No. - 202 of 2022
Appellant :- State of U.P.
Respondent :- Virendra @ Guddu Giri S/O Brahmnand Giri And 02 Others
Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Om Prakash-VII,J.
Hon'ble Narendra Kumar Johari,J.
Heard learned A.G.A. for the State and perused the entire record.
The present Government Appeal has been filed along with leave to appeal application against the impugned judgement and order dated 16.12.2021 passed by Additional Sessions Judge/Fast Track Court-IIIrd, Ballia in Sessions Trial No. 208 of 2010 (State of U.P. Vs. Virendra @ Guddu Giri and others) arising out of case crime no. 103 of 2004, under Sections 364, 302, 201 IPC, Police Station Phephna, District Ballia, whereby accused-respondents were acquitted.
It is submitted by the learned A.G.A. that finding recorded by the Trial Court in the impugned judgment and order are perverse and illegal. Although FIR was lodged belatedly but sufficient reason has been explained for the delay occurred in lodging the FIR. Dead body of the deceased was recovered in the "Gher" of the accused respondents Virendra @ Guddu. Deceased was taken away by the accused respondents before the mother of the deceased. This fact has been proved by the P.W-2 Madhuri Devi before the Court which find support with the statement of P.W-6 Ram Singhasan Verma. Motive to commit the present offence has also been established by the prosecution. Finding of the Trial Court disbelieving the motive established in the matter is perverse and illegal. Chain of circumstantial evidence are fully linked with each other to form an irresistible conclusion against the accused respondents. Mere non examination of the witnesses disclosed in the protest petition is not sufficient to disbelieve the statement of P.W.-1 Ram Nagina Verma, P.W.-2 Madhuri Devi and P.W.-6 Ram Singhasan Verma. Thus, prayer for grant to leave to appeal was made.
We have considered the submissions advanced by the learned AGA.
In this matter, as is evident from record, deceased was missing since 06.07.2004. Dead body of the deceased was found on 09.07.2004 in the "Gher" of Brahamanand giri. Information to the local police was given on 10.07.2004 mentioning this fact. It also appears that second application was moved by the informant on 20.08.2004 disclosing the name of the accused. Trial Court while passing the impugned judgment and order was of the view that last seen evidence of P.W.-2 Madhuri Devi is not disclosed in the first and second application moved by the informant. Nothing was mentioned in the aforesaid application regarding motive. FIR has been lodged at belated stage. Thus, Trial Court was of the opinion that statement as stated by P.W.-2 Madhuri Devi is not believable because motive part as well as last seen evidence have also not been disclosed in the statement under Section 161 Cr.P.C. Statement of P.W.-6 is based on information given by P.W.-2 Madhuri Devi. Thus, Trial Court has also not placed reliance upon the statement of P.W.-6. If the finding arrived at by the Trial Court in the impugned judgment and order are compared with the fact and circumstances as well as submissions raised on behalf of the learned A.G.A., no illegality or perversity is found in the impugned judgment and order. It is a circumstantial evidence case. Last seen evidence is not disclosed in the second application moved by the informant. PW.-2 Madhuri Devi in her statement made before the Trial Court has stated that she was unconscious for about 4-5 days. Thereafter she disclosed this fact. Had the aforesaid fact been disclosed by P.W.-2 Madhuri Devi within a week, this fact would have come in the second application moved on 20.08.2004 itself. Prosecution has also not examined the witnesses shown in the protest petition on which basis final report was rejected and accused respondents were summoned. It is settled principle of law that in the circumstantial evidence case accused could be held guilty only in cases where persecution was able to establish the chain of circumstantial evidence. In the present matter, in the opinion of the Court prosecution failed to establish the chain of circumstantial evidence. Nothing is on record to show that deceased was seen at any time along with the accused respondents. Motive is also not believable as same has been stated for the first time before the Court. If such is the position, in the opinion of the Court view taken by the Trial Court in the present matter cannot be termed to be perverse or illegal. Impugned judgment and order is well discussed and well reasoned order.
Hon'ble Supreme Court in the case of S. Govindaraju Versus State of Karnataka, (2013) 15 SCC 315 has held as under :
"It is a settled legal proposition that in exceptional circumstances, the appellate court, for compelling reasons, should not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse i.e if the conclusions arrived at by the court below are contrary to the evidence on record, or if the court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence."
Further, in Gangabhavani Versus Rayapati Venkat Reddy and Others, (2013) 15 SCC 298, Hon'ble Supreme Court has held as under:
"This Court has persistently emphasised that there are limitations while interfering with an order against acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the acquittal by the lower Court bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
Similar view has also been propounded by the Apex Court in Bannaraddy and others Vs. State of Karnataka and others reported in 2018 0 Supreme (SC) 291.
If the findings recorded by the trial Court in the impugned judgment and order are minutely analysed with the facts, evidence and settled principle of law, no illegality, infirmity or perversity is found in it. View taken by the trial court is also a possible view. No interference in the judgment and order of the trial court is called for. Hence, prayer made in the application moved by the appellant - State of U.P. to grant leave to appeal is refused and the application is rejected.
Since the application for grant of leave to appeal has been rejected, the appeal also does not survive. Consequently, the appeal is also dismissed.
Order Date :- 28.4.2022
Sachdeva
