Allahabad High Court
State Of U.P. vs Mahendra on 16 December, 2022
Bench: Vivek Kumar Birla, Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- GOVERNMENT APPEAL No. - 379 of 2018
Appellant :- State of U.P.
Respondent :- Mahendra
Counsel for Appellant :- G.A.
Counsel for Respondent :- Not Known,Ardhendu Shekhar Sharma,Ram Babu Sharma
Hon'ble Vivek Kumar Birla,J.
Hon'ble Rahul Chaturvedi,J.
Re: Criminal Misc. Application (Leave to Appeal)
Heard Sri Ratan Singh, learned AGA for the State and Sri Ram Babu Sharma, learned counsel for the accused respodnents.
On 18.11.2022 following order was passed:-
"Heard Sri Ratan Singh, learned AGA for the appellant-State of UP and Sri Ram Babu Sharma, learned counsel for the accused respondents.
It was submitted that all the four accused persons were acquitted by the trial Court, however, only one Government Appeal being Government Appeal No. 4207 of 2002 (State of UP vs. Shankker) was filed challenging the acquittal of Shanker and no appeal against the acquittal of Om Prakash and Naipal was filed. By placing the status report, it is submitted that even the aforesaid government appeal was dismissed by this Court vide judgement dated 1.12.2004. He submits that the judgement is not available with him.
We grant time to Sri Ram Babur Sharma, learned counsel for the accused respondents to obtain the certified copy of the aforesaid judgement and place it before this Court by the next date.
List this appeal on 30.11.2022."
Sri Ram Babu Sharma, learned counsel for the accused respondent has filed the certified copy of the judgment passed in Government Appeal No.4207 of 2002 (State of U.P. vs. Shankar) which was filed challenging the acquittal of co-accused Shankar. The aforesaid judgment dated 01.12.2022 is quoted as under:
"Heard learned AGA.
We have gone through the judgement very carefully.
From the judgment, it transpires that two witnesses i.e. the informant who died during the first trial was not examined in this trial on account of death and the other female witness due to enmity of the area is the only witness examined. Yasin has given affidavit in the earlier trial S.T. No.462 of 1992 in which Nepal and Om Prakash were tried. They were acquitted. No Government Appeal against that acquittal was preferred. Apart from it, Yasin and Hamid (deceased) both have given affidavits in the court below and the said affidavits have been brought on record in the earlier trial and the judgment of that trial was brought on record of this trial. The Advocate, who has prepared the affidavits and got it sworn, was also examined. It was proved as Ext. Kha/1 and Kha/2. In this affidavit, they have denied the participation of the accused, who belongs to different village. These witnesses have also denied the factum of murder as such as alleged now according to them dacoity was committed in their house in which dacotis were unknown and his son Solu was murdered by the dacoits and Yasin was also injured. The trial court has placed reliance upon the evidence brought by the defence on record. Since the witness Yasin has admitted his signature on this affidavit Ext. Kha/1 and also accepted his photographs and he stated that he was in court when these affidavits were prepared. It is not the case of the prosecution that these affidavits were procured perforce or on coercion. Witness himself also did not say so.
In view of these facts and circumstances, the testimony of this witness cannot be relied upon. The application for leave to file appeal, therefore, in our opinion, does not find any merits. Acquittal cannot be disturbed. Application for leave to file Government Appeal, therefore, is rejected. Leave to file Government Appeal is accordingly refused."
The submission of the learned counsel for the accused respondents is that the present government appeal is liable to be decided in the light of the aforesaid judgment as the evidence given against the present accused-respondent Mahendra is same and identical and that role of the accused person herein is also not distinguishable and is identical in nature.
Learned AGA could not dispute the aforesaid fact.
Accordingly, application for granting leave to appeal is rejected in the light of the above quoted judgment.
Re: Government Appeal
Consequently, since the Criminal Misc. Application (Leave to Appeal) has been rejected by order of this date, the present government appeal is also dismissed.
Order Date :- 16.12.2022
Nitendra
