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2010 DIGILAW 900 (ALL)

State of U. P. v. Suresh Narain & Anr.

2010-03-17

YOGENDRA KUMAR SANGAL

body2010
Hon'ble Yogendra Kumar Sangal,J.- This application for leave to appeal on behalf of State by AGA arose from the judgment dated 04.12.2009 passed by learned Additional Sessions Judge, Fast Tack, Court No. 5, District Gonda in S.T. No. 22/2005 under Sections 452, 323, 325, 308, 504, 506 IPC. By the impugned judgment and order, learned trial court had acquitted the accused respondents Suresh Narain alias Guddu and Bihari Lal Tiwari. 2. As per prosecution case, on 16.10.2003 when informant Shiv Kumar Mishra alias Rinku along with Mukesh were going by motor-cycle at about 6.00 P.M. When they reach near Ambedkar School, both the accused forced them to stop the motor-cycle, the same came in slow speed Guddu had given below of iron rod and Suresh Narain has given lathi below on the head of victim Shiv Kumar Mishra alias Rinku. These belows were given with the intention to kill him. In the process to save him, he entered into the house of Smt. Meena Kumari alias Nakktiya. Accused persons followed him and entered into the house of Smt. Meena Kumari and there also they have given below of lathi and iron rod on him. He fell down on the earth. On the hue and cry, witnesses Paras Nath, Suresh Tiwari and Om Prakash reached there. They have rebuked the accused persons. They succeeded in escaping from there. Injuries of the victim were examined by the doctor. Report was lodged at police station concerned. Case was registered against both the accused. Investigation was made by the Investigating Officer and after conclusion of the investigation, charge-sheet was submitted in the court concerned. Learned Magistrate after taking cognizance in the matter committed the case in the court of session as case was triable by court of session. 3. Both the accused persons were charged to face trial for the offence under Sections 323, 325, 308, 504, 506 IPC but they plead not guilty and claimed their trial. 4. Prosecution examined 7 witnesses. PW-1 injured Shiv Kumar alias Rinku, PW-2 Suresh Kumar Tiwari eye-witness, PW-3 I.O. of the case Munni Lal Gupta, PW-4 another I.O. Suresh Dutt Misra, PW-5 Dr. Javed Hayat, PW-6 Dr. Ashok Kumar Agarwal and PW-7 another I.O of the case Virendra Singh. They have proved the documents produced on behalf of the prosecution. 5. 4. Prosecution examined 7 witnesses. PW-1 injured Shiv Kumar alias Rinku, PW-2 Suresh Kumar Tiwari eye-witness, PW-3 I.O. of the case Munni Lal Gupta, PW-4 another I.O. Suresh Dutt Misra, PW-5 Dr. Javed Hayat, PW-6 Dr. Ashok Kumar Agarwal and PW-7 another I.O of the case Virendra Singh. They have proved the documents produced on behalf of the prosecution. 5. In their statements under Section 313 IPC both the accused have denied the correctness of the prosecution case and evidence. Accused Suresh Narain has stated that his uncle has lodged the case against the uncle of informant of dacoity and murder and uncle of the informant was convicted in that case. Against the maternal uncle of the informant, a report was lodged causing damages in the Mandir by him so for these reasons he has been falsely involved in this case. Another accused Bihari Lal stated that his near related was abducted in other case. Informant and his mother are accused in that case so he has been falsely implicated in this case. They have examined DW-1 Smt. Meena Kumari and DW-2 Kaushal Kishore Pandey, they said that no such occurrence took place either in the house of Smt. Meena Kumari or at any other place. Documentary evidence to show enmity on behalf of the accused was also filed. 6. After hearing learned counsel for the accused and Government Counsel for the State by impugned judgment, learned trial court held that no case is made out against the accused persons so they were acquitted. Against the order of acquittal, this appeal has been instituted. 7. Heard learned AGA and perused the record. 8. There is delay in lodging the FIR which is not sufficiently explained. Parties were at enmical terms it is not disputed. Old enmity is always a double edged weapon, if it can be said that due to this enmity accused persons have committed this offence possibility also cannot rule out, that only due to this enmity accused persons were falsely implicated in this case. What was the immediate motive of the accused persons to commit the offence on that particular date and time it is not clear from the record. What was the immediate motive of the accused persons to commit the offence on that particular date and time it is not clear from the record. Learned trial court which has the advantage of see the demeanor of witnesses and hearing their evidence had given the finding that there are material contradictions in the statements of the witnesses of the fact regarding the presence of the witnesses, place of occurrence and the manner in which the injuries are said to have been caused to the victim of the case. As per prosecution case, occurrence took place in two part. First part of the occurrence said to have been taken place on the road and another part in the house of Smt. Meena Kumari. This Smt. Meena Kumari could have been best witness to support the prosecution case in whose house second part of the occurrence is said took place but to the best reasons known to the prosecution, she was not examined. This witness was examined on behalf of the accused as DW-1 where in her on oath statement, she had specifically said that no such occurrence has taken place in her house. One other witness DW-2 Kaushal Kishore was also examined on behalf of the accused who has also challenged the correctness of case of the prosecution and said that injured Rinku fell down from the motor-cycle in accident and he received injuries in that accident. He was not beaten by any of the accused. Why these two defence witnesses are stating as such in their statement it is not sufficiently explained on behalf of the prosecution. It is established law that findings of the trial court who has the advantage of see the demeanor of the witnesses and hearing their evidence can be reversed only for substantial and compelling reasons. Details of contractions in the statement of witnesses are given in the impugned judgment and order by the trial court in very detail which causes doubt in presence of the witnesses on the spot. Reasons given by the trial court in passing the judgment of acquittal are seen carefully. Such reasons are with the evidence. It is established law that as a matter of prudence the court of appeal should not interfere with the order of acquittal by re-appreciating the evidence and taking some other view. Reasons given by the trial court in passing the judgment of acquittal are seen carefully. Such reasons are with the evidence. It is established law that as a matter of prudence the court of appeal should not interfere with the order of acquittal by re-appreciating the evidence and taking some other view. It is also established law that reasons given by the trial court if not find contrary to the weight of evidence, no interference of appellate court is required in the finding of the trial court. There are catena of judgments of the Hon'ble Apex Court that generally the order of acquittal shall not be interfered because the presumption of innocence of the accused is further strengthened by the order of acquittal by trial court. If two views are possible on the evidence adduced in the case one pointing to the guilty of the accused and other to his innocence the view which is favourable to the accused should be adopted. 9. Considering the facts and circumstances of the case and established law and taking into consideration of the findings of the trial court, I do not find any sufficient ground to interfere in the judgment and order of acquittal passed by the trial court. Trial court rightly acquitted the accused persons, hence this application for leave to appeal is hereby dismissed Accordingly, appeal also stand dismissed.