Allahabad High Court
Naresh Kumar vs State Of U.P. And 3 Ors. on 4 November, 2022
Bench: Vivek Kumar Birla, Ram Manohar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- CRIMINAL MISC. APPLICATION DEFECTIVE U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 23 of 2019
Applicant :- Naresh Kumar
Opposite Party :- State Of U.P. And 3 Ors.
Counsel for Applicant :- Pavan Kishore,Piyush Kishore Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Birla,J.
Hon'ble Ram Manohar Narayan Mishra,J.
Re: Criminal Misc. Delay Condonation Application No. Nil of 2019
On 21.10.2022 following order was passed:-
"Case called out. No one is present on behalf of the appellant.
The present appeal has been filed beyond time of 973 days and was presented before the Court on 08.02.2019 whereas we find that Government Appeal No.3044 of 2016 filed by the State had already been dismissed on merits vide judgment dated 17.08.2016. Therefore, we find that the present appeal has been filed after dismissal of the Government Appeal with delay of 973 days.
From perusal of ordersheet we further find that on the earlier occasion also no one was present to press this appeal or learned counsel has sent his illness.
Taking a lenient view of the matter, the case is passed over for the day.
List this case on 4th November, 2022.
It is made clear that on the next date the case shall be taken up in the first round and in case no one is present on behalf of the appellant, this Court may proceed to pass appropriate order on the delay condonation application."
Today Sri Pavan Kishore, learned counsel for the applicant is present. He could not dispute the fact noted in the above quoted order. The connected Government Appeal No.3044 of 2016 filed by the State was dismissed on merits vide judgment dated 17.08.2016. The said judgment is quoted as under:-
"Heard Sri Rahul Asthana, learned counsel appearing for the appellant and perused the material on record.
This application has been filed by the State appellant/applicant with the prayer that leave to appeal may be granted against the judgement and order dated 10.03.2016, passed in Sessions Trial No. 31/2009 (State Vs. Gaurav Sharma And Anr.), arising out of Case Crime No. 353/2008, under Sections 307 read with section 34, 504 and 506 IPC I.P.C. Police Station brahmpuri, District Meerut by the learned Additional Sessions Judge/Special Judge (Prevention of Corruption Act) Special Court No.1, Meerut, whereby the accused respondents have been acquitted for the offence punishable under the sections referred to above.
Learned A.G.A. appearing on behalf of appellant-State of U.P. submits that the Trial Court has not weighed and assessed the prosecution case as well as evidence produced by it and has erroneously acquitted the accused respondents, as such the impugned judgment and order is illegal, not sustainable in law and is liable to be set-aside.
We have carefully perused the impugned judgment and order of acquittal passed by the court below as well as material available on record which reveals that the main accused Tushar has already been convicted and sentenced under section 308 IPC. Lower Court has recorded the findings to the effect that the main accused Tushar with intention to kill had fired on Ashish. So far as other accused respondents Gaurav Sharma and Rohit Malik are concerned, they have assigned the role of exhortation only but there is no evidence on record to the effect that the above two accused respondents have hatched any conspiracy or there was per-meeting of minds for committing the murder of injured Ashish.
Considering the above aspects of the matter along with other facts and circumstances of the case and evidence available on record, the Lower Court has passed the impugned judgment.
Learned A.G.A. could not demonstrate that the observation of the court below while acquitting the accused respondents were factually incorrect.
We do not find any factual or legal error in the assessment of evidence by the court below while acquitting the accused respondents. Moreover, the view taken by the court below is a possible view. The court below has given cogent, convincing and satisfactory reasons while passing the order of acquittal.
We, therefore, do not consider it to be a fit case for grant of leave to appeal to the applicant. The application seeking leave to appeal is, accordingly, rejected and, consequently the appeal is also dismissed."
Learned counsel for the applicant insisted for hearing the present appeal on merits after condoning the delay in filing the appeal.
We found that the delay in filing the appeal is 973 days and that too has been filed after dismissal of the Government Appeal on 17.08.2016. While considering the prayer made by the learned counsel for the applicant we have also gone through the judgment passed in the Government Appeal. No different view can be taken in the present appeal and as such we do not find any good ground for condoning such huge delay in filing the present appeal.
In paragraph 6 of the affidavit filed in support of the delay condonation application it has been stated that on 09.07.2018 when the appellant came to Allahabad to appear in the aforesaid Government Appeal then his counsel advised him to file appeal against the judgment and order whereby opposite parties no.2, 3 and 4 were acquitted under Section 307/34, 504, 506 IPC. We find that this does not provide any sufficient explanation for such huge delay particularly in view of the fact that the Government Appeal No.3044 of 2016 arising out of the same impugned judgment has already been dismissed by this Court on merits vide order dated 17.08.2016 which is quoted above.
In such view of the matter, present delay condonation application is being rejected.
Consequently, appeal also stands dismissed.
Order Date :- 4.11.2022
Nitendra
