State Of U.P. Thru. Prin. Secy. ... vs Vijay And 2 Others
2023 Latest Caselaw 1700 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 9
 

 
Case :- APPLICATION U/S 378 DEFECTIVE No. - 9 of 2023
 

 
Applicant :- State Of U.P. Thru. Prin. Secy. Home, Lucknow
 
Opposite Party :- Vijay And 2 Others
 
Counsel for Applicant :- G.A.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Narendra Kumar Johari,J.

Crl. Misc. Delay Condonation Application No. 1 of 2023

The present application under Section 5 of the Limitation Act has been filed for condoning the delay of 95 days in filing the application for leave to appeal.

For the reasons stated in the affidavit filed in support thereof, the delay of 95 days in filing the application for leave to appeal is condoned.

The application is allowed.

On Main Application

1. The present Crl. Misc. Application under Section 378(3) Cr.P.C. along with government appeal has been filed by the State-applicant against judgment and order dated 28.5.2022 passed by the Special Judge (Essential Commodities Act, 1955)/Additional Sessions Judge, Court No. 4, Sitapur in Sessions Trial No. 105 of 2007 arising out of Case Crime No. 214 of 2006 under Sections 379, 427, 413, 411 IPC P.S. Hargaon District Sitapur. By the impugned judgment, trial court has acquitted the accused-Ramjeevan and Harish under Sections 379, 427, 413 and 411 IPC and accused Vijay has been acquitted under Sections 379, 427 and 413 IPC.

2. Brief facts of the prosecution are that the informant R.P. Sonkar gave a written application to the police station concerned that in the night of 16/17.7.2006 electric wires from three poles situated between Udnapur to Koreya, in the night of 20/21.7.2006 electric wires from three poles situated at Village Pichora in the night of 23/24.7.2006 and electric wires from five poles (of side of T.F.) situated between Mussaipur to Chattia were siphoned by unknown thieves, which were of 3600 mtrs. in length and were of metal Aluminium. Apart from that six disk insulator, four cross arms, nine insulators and six pins also got damaged. Further on 5.10.2006 while the Station House Officer, Ravi Srivastava along with other police personnel were busy in patrolling and moving in area in search of criminals, at 1:30 AM when they reached the railway platform, they found that a person was sitting on white plastic bag who was waiting for train. After seeing the police personnel, he tried to escape from the spot. The police personnel chased him and within hundred steps they caught him. On enquiry, he disclosed his name as Ramjeevan S/o Fakira. When the police personnel searched his plastic bag, they found that some electric wires of different size were kept in that plastic bag. The police personnel seized the electric wires and arrested the accused person. On enquiry, he has admitted that he along with his companions namely Vijay, Nand Kishore, Harish and Vinod were involved in theft and cutting of the electric wires from the electric poles as mentioned in the First Information Report. They further admitted that in bulk quantity, they sold the wires to a ragman in Lucknow. Accordingly, the police party also prepared the 'ferd' of recovered articles. The weight of electric wires were found approximately 30 kg.

3. On the basis of written application which was given by the informant at police station concerned, an FIR under Sections 379, 427 IPC vide Crime No. 214 of 2006 was registered against the accused Ramjeevan.

4. During the investigation proceedings, the names of accused Vijay and Harish also came on surface. In the meantime, the police arrested accused Vijay from the train compartment while he was sleeping over the bag which was carrying electric wires of approximately 40 kg.

5. After completing the investigation, the police submitted charge sheet against the accused persons Vijay, Harish and Ramjeevan under Sections 379, 427, 411 and 413 IPC.

6. Learned Trial Court framed the charges against the accused persons, who abjured the charges, pleaded not guilty and requested for trial.

7. On behalf of the prosecution, R.P. Sonkar as PW-1, Parshuram as PW-2 and Ravi Srivastava as PW-3 have recorded their oral statements.

8. After conclusion of prosecution evidence, the statements of accused persons were recorded under Section 313 Cr.P.C. in which the accused persons denied their complicity in the offence and stated that police has wrongly arrested them and the recovered pieces of electric wires have been forcibly implanted against them. They are innocent.

9. Learned Trial Court after considering the facts and evidence on record, acquitted the accused persons of the charges of offence against which the present appeal has been filed by the State along with Application U/S 378(3) of the Code of Criminal Procedure.

10. Learned counsel for the State/appellant has argued that prosecution had succeeded to establish and prove the prosecution case but learned Trial Court has committed material illegality and irregularity in acquitting the accused. Learned State counsel further submits that there are good chances of success in appeal, hence the application of appellant under Section 378(3) of Code of Criminal Procedure deserves to be allowed, instant government appeal be admitted and the impugned judgement and order is liable to be set aside.

11. We have heard the learned State counsel and perused the record.

12. Learned Trial Court while discussing the case held that the theft was committed on 16/17.7.2006, 20/21.7.2006 and 23/24.7.2006 but the application for lodging the FIR was submitted by the informant on 2.8.2006. There was considerable delay which witness PW-1 could not explain. The examination-in-chief of witness PW-2 has not been completed after recording the examination-in-chief in part, the prosecution moved the application for adjournment thereafter the witness PW-2 did not turn up in court to record his evidence. The recovered wires had not been produced in court, therefore, in absence of any incriminating and cogent evidence, it cannot be said that the accused persons have committed the offence of theft by cutting the electric wires.

13. The record indicates that in the evidence of witness PW-1 who was the informant, no reason has been mentioned regarding the delay of lodging the FIR as the first occurrence of theft had taken place on 16/17.7.2006, second occurrence took place on 20/21.7.2006 and third one took place on 23/24.7.2006 but the FIR of all the thefts has been lodged by witness PW-1 on 2.8.2006 in a casual manner. Witness PW-2 has stated that he had arrested the accused Vijay from the train compartment but neither the recovered electric wires were produced in court nor the recovered pieces of electric wires have been sent to Forensic Science Laboratory. In the same way, witness PW-3 has stated that he had arrested the accused Ramjeevan from railway platform but he also not sent the recovered pieces of electric wires for laboratory examination to ascertain that the aforesaid wires were same which were subjected to theft from the electric poles. The witness PW-3 also did not identify the recovered electric wires in court. Both the accused Vijay and Ramjeevan had given statements to police that they have sold the electric wires, which were subjected matter of theft, to a ragman in Lucknow but investigating officer did not try to search the said ragman.

14. We have reviewed the record and the impugned judgment. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the basic principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having been acquitted by trial court, the presumption of his innocence is further strengthened. It is also to be kept in mind that if on the basis of evidence produced by prosecution, two reasonable conclusions, one against and another in favour of accused, are possible and learned trial court chooses to go with acquittal of accused, the appellate court should not disturb the finding of acquittal recorded by the trial court unless found to be perverse.

15. For the reasons mentioned above, we are of the considered view that the judgment of trial court is well reasoned and based on evidence available on record. The view taken by trial court is one of the possible view and it cannot be said to be perverse. There seems absolutely no hope of success in this appeal and accordingly, no interference is called for.

16. Hence, the prayer for grant of leave to appeal is hereby refused and the application is for leave to appeal U/s 378(3) Cr.P.C. is rejected.

17. Since prayer for grant of leave to appeal has been refused, hence the memorandum of appeal also does not survive and stands dismissed.

Order Date :- 17.1.2023

AKK