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2014 DIGILAW 3229 (ALL)

Vinod Kumar v. State of U. P.

2014-10-29

RAKESH TIWARI, VIJAY LAKSHMI

body2014
JUDGMENT Hon'ble Mrs. Vijay Lakshmi, J. There is delay of 70 days' in filing the present application under section 378(4), Cr.P.C.. The appellant has moved an application for condonation of the delay. After hearing the submissions and going through the affidavit filed in support of delay condonation application, in our view, the cause shown is sufficient. Accordingly, delay is condoned and the delay condonation application stands allowed. 2. This application has been filed against the judgment and order dated 17.5.2014 passed by Addl. Session Judge,Special, Baghpat in S.T. No. 20 of 2012, State Vs. Yogesh Rana, by which the accused opposite party has been acquitted of the charges under section 323,307,506 IPC and section 3(1)10,SC/ST Act. 3. Heard Sri Sunil Kumar Dubey, counsel for the appellant and perused the impugned judgment. 4. Counsel for the appellant has challenged the order impugned on the ground that the court below has failed to consider the evidence on record; that testimony of the witnesses who were present on the spot and had seen the incident, has not been considered; that from the evidence on record, offence under section 323,307,506 IPC and 3(1)10,S.C./S.T. Act is made out against the opposite party and the court below has erred in acquitting the accused. 5. Prosecution story in brief is that on 23.8.2011 complainant Vinod Kumar, alongwith his brother Jaswant, Smt. Babita wife of Jaswant and Ajay son of Baburam, had gone to meet S.D.M. Baghpat where the accused respondent is said to have extended threats to kill to the complainant and on the same day at about 6.45 P.M. while the aforesaid persons were returning from Baghpat to their village Ghanaura Silvernagar on their personal Scorpio vehicle, it is alleged that near village Dojha, the accused respondent alongwith two others on a motorcycle overtook their vehicle, started Marpeet with them using caste based aspersions, dragged Smt. Babita from the vehicle and accused Yogesh Rana fired a shot at Vinod Kumar which missed the target and passed through mirror of the vehicle. 6. In order to prove its case, the prosecution examined Vinod Kumar-complainant P.W.1, his brother Jaswant P.W.2, Bhabhi Smt. Babita P.W.3, Constable Rajesh Kumar P.W.4, Sri Rajpal Singh-Addl. S.P. P.W.5 and Anil Sirohi P.W.6. 7. 6. In order to prove its case, the prosecution examined Vinod Kumar-complainant P.W.1, his brother Jaswant P.W.2, Bhabhi Smt. Babita P.W.3, Constable Rajesh Kumar P.W.4, Sri Rajpal Singh-Addl. S.P. P.W.5 and Anil Sirohi P.W.6. 7. Accused Respondent in his statement under section 313,Cr.P.C. stated that he is a R.T.I. worker and on his complaint, fair price shop allotted to Smt. Babita, sister-in-law (Bhabhi ) of the complainant, was cancelled since she was also serving as Shiksha Mitra and hence a false report has been lodged by the complainant against him. 8. From the evidence adduced in the case, the trial court found that it is a fact that on the complaint made by the accused respondent, licence of fair price shop to Smt. Babita was cancelled and for this reason they were unhappy with the accused; that all the witnesses of fact are family members and no independent witness was produced by the prosecution though in the F.I.R. one Ajay son of Baburam was also stated to be present in the vehicle but he was not produced; that there was no motive for the accused to commit the present offence; that Smt. Babita in her evidence did not say anything about her dragging out of the vehicle or Marpeet with her by the accused ; that technical examination report of the aforesaid vehicle falsifies the version of firing shot by the accused as put forward by the prosecution; that none of the occupants of the vehicle received any injury in the alleged Marpeet or fire arm injury and that neither weapon of assault nor the bullet was recovered and nothing incriminating was found by the investigating officer from the place of incident. On the basis of aforesaid findings, the court below concluded that prosecution has not been able to prove its case against the accused respondent beyond all reasonable doubts and as such acquitted the accused. 9. The findings recorded and the conclusions drawn by the court below are based on cogent reasons, evidence and material on record and it cannot be said that evidence of the prosecution has not been considered. In the facts and circumstances and on the face of the evidence on record, there appears to be no illegality or infirmity in the impugned judgment. 10. For all the aforesaid reasons, the application under section 378(4), Cr.P.C. is rejected. As a consequence, the appeal also stands dismissed.