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2015 DIGILAW 403 (MP)

State of M. P. v. Ram Niwas

2015-04-08

SUBHASH KAKADE

body2015
JUDGMENT : Subhash Kakade, J. 1. This application under Section 378(3) of Code of Criminal Procedure, in short 'the Code' has been filed by the State for grant of leave to file appeal against the judgment of acquittal dated 28.11.2011 passed by Judicial Officer of Gram Nyayalaya Janpad Panchayat Karera, District Shivpuri (MP) acquitting the respondent from the offence punishable under Section 338 of IPC. 2. Short facts of the prosecution case are that while complainant Rajesh (PW/3) was traveling with his wife Yashodra (PW/4) and children in Bus No. MP 07 F 0948, he got injury on his thumb of right hand as the door of the bus negligently and rashly closed by the respondent Ramniwas Lodhi, who was cleaner of the said bus. 3. After lodging the FIR, complainant Rajesh was medically examined by Dr. Pradeep Sharma (PW/6) at PHC, Karera and after completing due investigation, the respondent charge-sheeted. 4. Learned trial Court in his turn framed charge punishable under Section 338 of IPC against the respondent. 5. To prove his case the prosecution examined seven witnesses and also exhibited documents Ex. P-1 to Ex. P-7. The defence does not chose to produce any evidence. 6. On the basis of the evidence adduced by the prosecution, the learned trial Judge after considering oral as well as documents evidence come to the conclusion that the prosecution failed to prove his case against the respondent beyond reasonable doubt and acquitted him. 7. Learned counsel for the State submitted that the impugned judgment passed by the learned trial court is illegal, contrary and is erroneous both of facts and in law. It is further submitted by learned counsel that the learned trial court erred in not appreciating the oral as well as documentary evidence available on record which clearly corroborated the prosecution story hence permission be granted to file the appeal. 8. Having heard learned Government Advocate for the applicant/State and after perusal of the record and judgment under challenge, the Court is of the opinion that in this case leave to appeal cannot be granted. Legal Position 9. Section 378(3) of the Code says that no appeal shall be entertained except with the leave of the High Court in cases of acquittal. State Government must obtain the leave of the High Court before appeals are preferred against acquittals. Appeal cannot be entertained except with the leave of the High Court. Legal Position 9. Section 378(3) of the Code says that no appeal shall be entertained except with the leave of the High Court in cases of acquittal. State Government must obtain the leave of the High Court before appeals are preferred against acquittals. Appeal cannot be entertained except with the leave of the High Court. The High Court has an absolute discretion to grant or withdraw such leave but it is discretion to exercise judiciously. 10. The High Court shall consider any special feature in a particular case and cannot ignore the effect which the granting of leave to appeal without due discrimination may have on the principles of normal presumption of innocence of the accused in our criminal law which has been further reinforced and strengthened by the order of acquittal by the trial court. 11. It will be better to keep in the mind settled position of law as well as principle laid down by the Apex Court in various cases that by the order of acquittal, the presumption of innocence of an accused is further strengthened and the golden thread which runs through the web of administration of justice in criminal cases that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. 12. The High Court while considering to grant leave to appeal against the judgment of acquittal is to be interfered only when there are compelling substantial reason for doing so. Accordingly, unless the High Court is satisfied, considered in the light above, about some indications or error in a judgment of acquittal the High Court may not grant leave. 13. First ingredient of Section 338 of IPC is proved by the statement of Dr. Pradeep Sharma (PW/6) and MLC report (Ex. P-6). The complainant got this injury, it is also supported by the statements of complainant Rajesh (PW/3) himself and his wife Yashodra (PW/4). 14. Learned trial Court given the benefit of doubt to the respondent in this regard in para 7 and 8 of the impugned judgment discussed the admissions of the complainant Rajesh (PW/3) and finally concluded in Para 13 of the impugned judgment that complainant Rajesh (PW/3) does not point out the act of negligence or rashness on the part of the respondent Ramniwas. 15. 15. It is apparent from the admission of complainant Rajesh (PW/3) in Para 2 of his cross-examination whereas he admitted that when the gate was closed respondent was present in the bus or not. He repeatedly admitted this fact that Rajesh (PW/3) and his wife Yashodra (PW/4) admitted also this fact that the door was opened by the complainant himself. 16. In such premises learned trial Court did not commit any error. 17. The acquittal of the respondent by the learned Trial Court is not based on unwarranted assumption or erroneous appreciation of evidence by ignoring valuable incredible evidence, resulting in serious and substantial miscarriage of justice. The procedural failure of the prosecution is also rightly pointed out by the learned Trial Judge. Hence, leave to appeal against the judgment of acquittal dated 28.11.2011 cannot be granted. 18. Accordingly, the application is hereby dismissed at this preliminary stage.