Allahabad High Court
State Of U.P. vs Mayaram And Others on 5 August, 2022
Bench: Vivek Kumar Birla, Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 92 of 2005
Appellant :- State of U.P.
Respondent :- Mayaram And Others
Counsel for Appellant :- Govt. Advocate
Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
Heard Sri Kailash Prakash Pathak, the learned A.G.A. and perused the record.
The present government appeal has been filed challenging the judgment and order dated 10.11.2004, passed by the IVth Additional Sessions Judge, FTC No.2, Siddharthnagar in Sessions Trial No. 1 of 1998, arising out of Case Crime no. 26 of 1994, under Sections 326, 308 IPC, P.S. Tetri Bazar, District Siddharth Nagar acquitting the accused respondents herein.
That in brief the case of the prosecution is that complainant Radhey Shyam Gupta, son of Ram Narayan Gupta on 27.2.94 at 19.45 hrs. has given a written report at the Police Station- Tetri Bazar with the allegation that on 27.2.1994, his uncle namely Mayaram son of Sri Parmeswar Ram was unloading bricks in his field, being possessed with decree of law. Mayaram, son of Luddur Ram and Munnu alias Haridwar Prasad son of Mayaram and Shyama Prasad son of Dayaram armed with iron rod and peeler made of iron had beaten Ganga Prasad and Baijnath, by their respective weapons due to said beating they got injured, and due to serious injuries the complainant and others were taken to the Primary Health Centre, where the Doctor referred him to Gorakhpur Medical College. On the basis of said report a case was registered at the Police Station and investigation commenced and after completing investigation the charge-sheet was submitted against Mayaram and Shyama Prasad. Thereafter, I.O. Bharat Singh has submitted the charge-sheet against Munni alias Haridwar, and the case was committed to the Sessions. The accused pleaded not guilty and claimed to be tried.
That in order to bring home the charges, the prosecution examined P. W. 1 Radhey Shyam, P.W.2 Ganga Prasad @ Gangesh, P.W.3 Baijnath Prasad P.W. 4 Srawan Kumar, P.W.5 Const. Moharrir Mahendra Kumar P.W.6 Dr. Sanjay Kumar Arora, P.W.7, Dr. Rakesh Saxena, P.W.8 Cost. Ram Lal Kureel and P.W.9 Constable Ram Krishna Yadav.
The judgment of acquittal has been passed on the ground that the injury reports were not proved and at the best, the doctor at the Primary Health Centre has certified that the complainant fraction had suffered injuries, however description of injuries has not been disclosed in the injury report. The concerned Doctor who has stated to have proved the injuries had stated in his examination that it is only by way of precaution that the injured was referred to the Gorakhpur Medical College. It was further found that the seriousness of injury was not believed by the Trial Court on the ground that PW-1 injured has stated in his statement that he after being hit on his head and after suffering several injuries immediately fell down and was unconscious and was brought to medical college, Gorakhpur in an unconscious state and when the doctor there had clearly stated that when he had examined the injured witness, he was absolutely conscious. It is also reflected from the record that although CT scan was advised, however, he had not seen the CT Scan plate and the CT Scan, whether it was got done privately or in the Medical College was also not on record. Thus it was further found that on one hand, injured witness is stating that he had seen several persons as named in the FIR, who had witnessed the incident, however, none of them was produced as eye-witness. The Trial Court further found that motive for such incident was that when the bricks were being unloaded by the informant side and the land in respect whereof they were holding the decree was not proved, inasmuch as the decree in favour of the informant had not been placed before the Trial Court.
In such circumstances, the learned Trial Court found the genuineness of the statement of the alleged eye-witnesses as well as that of the injured was found to be doubtful and the nature of injuries were also could not be proved, so as to attract offence under Sections 326 and 308 IPC.
Challenging the same, submission is that the judgment is perverse in nature, inasmuch as evidence was not appreciated in correct perspective.
On perusal of record, we find that there is material contradiction in the eye-witness account of the injured witness and other alleged witnesses.
Several injuries were said to have been caused upon the injured but there is only one simple injury, which too is not specified by the doctor at Primary Health Centre and he had only stated that it is only by way of precaution that he had referred the injured to the Medical College, Gorakhpur. The statement of PW-1 /injured witness is also found to be in fact not worth reliance inasmuch as at one stage, he says that large number of persons have committed the offence and at the same time, he states that on being hit, he fell unconscious and thus did not see any person.
Moreso, nature of injuries is not proved to be serious in nature. We are of the view that the trial court has rightly held that the prosecution has failed to prove its case beyond doubt. Hence, in any view of the matter applying the principles of law so culled out by the Hon'ble Apex Court in the facts of the present case, we have no option but to concur with the view taken by the learned Sessions Judge.
The above noted proposition of law is clearly spelt out in umpty number of decisions, some of them are as under namely:-Tota Singh and another vs. State of Punjab, (1987) 2 SCC 529, Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, State of Rajesthan vs. State of Gujarat, (2003) 8 SCC 180, State of Goa vs. Sanjay Thakran, (2007) 3 SCC 755, Chandrappa and others vs. State of Karnataka, (2007) 4 S.C.C. 415, Ghurey Lal vs. State of U.P., (2008) 10 SCC 450, Siddharth Vashishtha Alias Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1, Babu vs. State of Kerala, (2010) 9 SCC 189, Ganpat vs. State of Haryana, (2010) 12 SCC 59, Sunil Kumar Sambhudayal Gupta (Dr.) and others vs. State of Maharashtra, (2010) 13 SCC 657, State of U.P. vs. Naresh, (2011) 4 SCC 324, State of M.P. vs. Ramesh, (2011) 4 SCC 786, Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219, Guru Dutt Pathak vs. The State of Uttar Pradesh (2021) 6 SCC 116 and Rajesh Prasad vs. State of Bihar and another reported in (2022) 3 SCC 471.
We find that it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
Since the application for granting leave to appeal has not been granted, consequently, present government appeal also stands dismissed at the admission stage itself.
Records of the present case be sent back to the concerned court below.
Order Date :- 5.8.2022
N.S.Rathour
