Allahabad High Court
Haribansh Dubey vs State Of Up And 4 Others on 2 May, 2024
Author: Subhash Chandra Sharma
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:78655
Court No. - 81
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 179 of 2024
Appellant :- Haribansh Dubey
Respondent :- State Of Up And 4 Others
Counsel for Appellant :- Ashok Kumar Pandey
Counsel for Respondent :- G.A.,Sanjeev Kumar Shukla
Hon'ble Subhash Chandra Sharma,J.
Heard learned counsel for both the parties as well as learned A.G.A. for the State and perused the record.
The present appeal has been moved with prayer to set aside the acquittal judgment and order dated 13.10.2023 passed by Civil Judge (Senior Division) FTC/Additional Chief Judicial Magistrate, Azamgarh in Criminal Case No.4443/2023 (State vs. Dev Narayan Dubey & others) arising out of NCR No.59/1990, under Sections 323, 504, 427 I.P.C., Police Station Pawai, District Azamgarh.
It is submitted by the learned counsel for the appellant that in this case there was complaint case and police case and both the cases were consolidated u/s 210 Cr.P.C., thereafter, the case was conducted as State case. Further submitted that complainant and other witnesses died and an application was moved by the son of the complainant to continue the proceedings of the case but his application was rejected by the learned court. Thereafter, in view of provision as contained u/s 256 Cr.P.C. the complaint was dismissed and accused persons were acquitted which cannot be said to be lawful. It is also submitted that there was injury report on record but it was not relied on and no conviction was recorded on that basis. In this way, the finding recorded by the learned trial court cannot be said to be based on the law and evidence on record, therefore, it is liable to be set aside. As a result, he request to admit the appeal and set aside the order of acquittal while allowing the appeal.
Learned counsel for the respondent as well as learned A.G.A. opposed the prayer as aforesaid.
Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and the fact that there was a complaint case u/s 323, 379, 504, 506, 452, 427 I.P.C. and regarding the same incident there was a N.C.R. No.59/1990 u/s 323, 504, 427 I.P.C. in which charge sheet was filed by the police after investigation u/s 323, 504, 427 I.P.C. Thereafter, both the cases were consolidated in view of the provision as contained u/s 210 Cr.P.C. and trial was conducted as State case. During the course of trial process was issued by the learned court to summon the evidence for examination before it. Even coercive measures were also adopted but witnesses Rajmani, Ramuday, Lekhai and complainant/informant Sursati died. Except PW-1 Phoolchandra Dwivedi no one was alive who was examined before the learned court on 29.08.2023 and he also did not support the prosecution version but turned hostile. Thereafter, the statement of the accused persons u/s 313 Cr.P.C. were recorded and after hearing the learned prosecutor as well as the learned counsel for the accused persons, the judgment and order in question dated 13.10.2023 was passed by which respondent/accused persons were acquitted. So far as the argument of learned counsel for the appellant is concerned regarding dismissal of complaint u/s 256 Cr.P.C., it cannot be accepted at all because the case was not dismissed by the learned trial court in view of Section 256 Cr.P.C. on the basis of death of the complainant but it was decided on merit and also the complaint case and State case both were consolidated and even the prosecution was also conducted as State case. In this way, there was no application u/s 256 Cr.P.C. It is also to note that the son of the complainant filed an application before the learned court to permit him to conduct the prosecution which was rejected by the learned court as he was not witness of the incident. In view of the aforesaid circumstance, there appears no any material on record to show that learned trial court committed error in appreciating the evidence on record or passed the judgment and order of acquittal illegally but this appeal being devoid of merit is liable to be dismissed at the admission stage.
Accordingly, this appeal is, hereby, dismissed at the admission stage.
Order Date :- 2.5.2024
Ashok Gupta
