Allahabad High Court
State Of U.P. vs Vinayak on 14 September, 2022
Bench: Vivek Kumar Birla, Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- GOVERNMENT APPEAL No. - 377 of 2018
Appellant :- State of U.P.
Respondent :- Vinayak
Counsel for Appellant :- G.A.
Counsel for Respondent :- Not Known
Hon'ble Vivek Kumar Birla,J.
Hon'ble Rahul Chaturvedi,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Mr. Kailash Prakash Pathak, learned AGA appearing for the appellant-State of UP and perused the record.
2. Present government appeal has been preferred against the judgement and order dated 21.09.2017 passed by the Additional Sessions Judge/Special Judge (Electricity Act), Court No.6, Kanpur Dehat in Session Trial No. 355 of 2012 (State vs. Vinayak and others) arising out of Case Crime No. 61 of 2012, under Sections 147, 302/149 IPC, P.S. Ghatampur, District Kanpur Dehat, whereby the accused has been acquitted from the charges under Sections 147, 302/149 IPC.
3. Prosecution story, in nutshell is that the complainant has given a report at police station Chatampur, Kanpur Nagar stating therein that on 29.01.2012 at about 3.30 p.m. her husband was returning back from Nauranga Market and when he reached near Pahewa in the field of Eucalyptus of one Arun Trivedi, then the accused-respondents and other co-accused persons were present there armed with lathi and danda with their common intention have mercilessly beaten to her husband, thereafter the complainant taken away the injured at police station and prayed to provide medical treatment. On the basis of the aforesaid, the first information report of the present case was registered and thereafter her husband died and the Investigating Officer after due investigation has submitted charge sheet.
4. In support of prosecution case, PW-1 Chandra Devi, PW-2 Aman alias Raju, PW-3 Dr. S.N. Bajpayee, PW-4 Jitendra, PW-5 Shiv Singh, PW-6 Dr. M.S. Sachan, CHC, Ghatampur and PW-7 Vijay Pal Singh (Retired Inspector)(Second Investigating Officer) were produced and examined before the Court below.
5. The judgement of acquittal was passed by the Court below on the ground that the presence of PW-1 Chandra Devi, wife of the deceased, is not proved and the presence of PW-2 Aman alias Raju, who was minor at the time of recording of statement is also disbelieved as he could not prove his presence on the spot and that he had informed his mother about the incident on mobile, who was working in a nearby field. The court found that his minor son was tutored and could reply the questions put to him to the satisfaction of the court. The court also noticed that all the injuries suffered are on non vital part of the body and no motive whatsoever has been attributed to commit the crime. The court further found that no recovery whatsoever was made in the present case and the court also found that all witnesses of fact, namely, PW-1-Chandra Devi (wife of the deceased), PW-2-Aman alias Raju (son of the deceased), PW-4-Jitendra (son of the deceased) and PW-5-Shiv Singh (a close friend of PW-4) are highly interested witnesses, whose presence on the spot could not be proved and therefore judgment of acquittal was passed.
6. Challenging the impugned judgment, Mr. Kailash Prakash Pathak, learned AGA submits that there was cogent evidence to convict the accused person herein. He next submits that it is a case where judgement is perverse in nature. There are four eye witnesses and there testimonies has wrongly been disbelieved on minor contradiction or because of the defective investigation and as such the judgement of acquittal is liable to be set aside and reversed.
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.
9. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have re-appreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities"
10. 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 an order of acquittal passed by a Trial Court.
11. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.
12. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
13. On perusal of record, we find that first information report was lodged by PW-1, however in the aforesaid report, it was not mentioned that she was informed about the incident that the offence is committed by accused persons, by his minor son Raju, who also appeared as PW-2 whereas he stated that he had informed his mother about the incident and stated that he was also present on the spot. On perusal of record, we find that the PW-1 was informed by her son Raju about the incident on the mobile phone, when she was working in nearby field, is also not proved, inasmuch as both the witnesses have failed to point out the mobile number used by them for this purpose and her presence in a nearby field was also not shown in the site plan prepared by the Investigating Officer. PW-2 has also stated that he was present on the spot, however when the incident was taking place after informing his mother as stated he left the place and went to some other village and stayed there for about 1-1/2 months and did not return to his residence and he never talked with his mother about the murder of his father. He could not even disclose the name of the village where he had gone and stayed for 1-1/2 months. Therefore, the court below in our opinion rightly found that this child was planted and tutored witness and could not prove that he was present at the time of commission of the offence. All the injuries are on non-vital part and the cause of death is heart failure, coupled with the fact that all the witnesses are directly related to the deceased except PW-5, who is also interested witness being a close friend of PW-4. In such view of the matter, the court below has taken plausible and possible view of the matter in the present case. We do not find any illegality or infirmity to take different view of the matter and substitute our opinion as per the law discussed above.
14. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
Re: Government Appeal
1. Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by order of date, the present government appeal is also dismissed.
Order Date :- 14.9.2022
Abhishek Sri.
