Allahabad High Court
State Of U.P. vs Naval Kishor S/O Nand Lal And ... on 8 July, 2022
Bench: Vivek Kumar Birla, Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- GOVERNMENT APPEAL No. - 302 of 2022
Appellant :- State of U.P.
Respondent :- Naval Kishor S/O Nand Lal And Another
Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
1. Heard Sri Ratan Singh, learned AGA appearing for the State of UP and perused the record.
2. Present government appeal has been preferred against the impugned judgement and order of acquittal dated 7.12.2021 passed by the Additional Sessions Judge, Court No. 9, Badaun in Sessions Trial No. 321 of 2018 (State of UP vs. Naval Kishore and another) arising out of Case Crime No. 264 of 2017, under Sections 436, 323, 504 IPC, P.S. Binawar, District Badaun.
3. Prosecution story, in brief, is that the complainant Pappu Yadav s/o Kasturi Singh gave oral information at Police Station Binawar, Badaun stating therein that he is resident of village Ibrahimpur Gadhi, Police Station Sahaswan, District Badaun and is Manager of shop of country made liquor and English Wine in Binawar Block. On 1.5.2017 the complainant is going to wine shop at village Beyor and at the tiraha of Malgaown the accused-respondents along with his two accomplices met and told the complainant that he caught hold their wine and, thereafter, while abusing committed marpeet with him, due to which he received open injury on his head and hidden injuries on several part of the body. On the basis of the aforesaid, initially an NCR No. 72 of 2017, under Sections 323, 504 IPC was registered, thereafter on the same day on the basis of written report given by the complainant, case was converted and a first information report as Case Crime No. 264 of 2017 under Sections 436, 323, 504 IPC was registered against the accused respondents.
4. In support of prosecution case, PW-1 complainant Pappu Yadav, PW-2 Mukesh, PW-3 retired Sub Inspector Prithiviraj and PW-4 Constable Intezar Ahamd were produced and examined before the Court below.
5. The judgement of acquittal was passed on the ground that there is no certain allegation in relation to the offence having been committed under Section 436 IPC. No evidence whatsoever was produced in this regard. On the contrary PW-1 informant and PW-2 Mukesh have stated that in village Malgaon no mischief by fire had taken place in the wine shop and as such, the offence is not made out. In respect of offences under Sections 323 and 504 IPC, it was found that although the informant has stated that he suffered injury and was medically examined, however, PW-3 Investigating Officer had disputed this fact and stated that no medical was conducted and on record there is no medical/injury report and as such, even though the offence under Section 323 IPC can prove without medical certificate but it was not proved as to who had caused the injury as at the time of alleged incident admittedly there were, even as per the evidence of PWs and 2, about 50 persons were present on the spot. The incident like stampede had taken place and it was categorically stated by the prosecution witness that he did not know the person who had caused the injury but one person present in the crowd, namely, Dariyab Singh gave his name but since Dariyab had died, he could not be represented as prosecution witness. Admittedly, as stated by PW-3 Investigating Officer no test identification parade was conducted, therefore, it is not proved that injury was caused by the accused persons. It has also come on record that no fight or marpeet etc. had taken place at Malgaon shop and crowd was collected about 500 mt. away from that spot. PW-3 Investigating Officer had further mentioned the enmity between the parties, therefore, it was found that there is every possibility of false implication also. Under such circumstances, the judgement of acquittal was passed.
6. Challenging the impugned judgment, Sri Ratan Singh, learned AGA submits that the there was cogent evidence to convict the accused persons and there was strong motive as noted above which was lightly brushed aside by the trial court. It thus submits that he judgement of acquittal suffers from perversity. Submission, therefore, is that the impugned judgment is liable to be set aside and the accused persons are liable to be convicted.
7. We have considered the submissions and have perused the record.
8. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against against an order of acquittal passed by a Trial Court in the following words:
"The power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ''possible view'. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."
9. On perusal of record we find that the court below has taken possible view of the matter on appreciation of entire evidence on record. We also find that the findings as noticed above are reflected from perusal of the evidence that has been considered by the trial Court specifically by mentioning the piece of evidence, namely, statements of PWs 1 and 2 as well as of PW-3 Investigating Officer. Admittedly, there was no evidence on record that any offence was committed under Section 436 IPC. Insofar as the other Sections are concerned, the accused persons was not known and it is only on the saying of some other persons, namely, Dariyab Singh was implicated and due to his death, he could not be produced as witness to prove the identify of the persons. In such view of the matter, this Court is of the opinion that the trial Court has correctly appreciated the evidence on record and we find no merit in the appeal filed by the appellant.
10. We, therefore, find that it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
11. Since the the application for granting leave to appeal has not been granted, consequently present Government Appeal stands dismissed.
Order Date :- 8.7.2022
Abhishek
