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2017 DIGILAW 336 (ALL)

Nafisa v. State of U. P.

2017-01-24

HARSH KUMAR

body2017
JUDGMENT : Harsh Kumar, J. 1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. 2. The Appeal has been filed against the impugned judgment and order dated 26.07.2016 passed by A.C.J.M. Kairana, in Complaint Case No. 685/9 of 2013 (Smt. Nafisa v. Ishtiyak and others) under sections 323, 392 I.P.C., Police Station Kairana, District Shamli acquitting the three accused from charges under sections 323 and 392 I.P.C. 3. Learned counsel for the complainant/appellant contended that on 15.06.2013 at about 2:00 a.m. in the night, six persons including a lady entered in his house; that the two persons and lady had covered their faces with the cloth for concealing their identity; that the above persons made the entire family wake up and started committing loot of Rs. 10,000/- kept in the house, gold earrings, sepal, Chukti and Rs. 10,000/- kept in the house, gold earrings, sepal, Chukti and Rs. 2100/- from his pocket and also threatened of life at the time of leaving; that thereafter in scuffle and marpeet the cloth from the face of the lady and one person was dropped and they were identified by the complainant, her disabled son Shamshad, daughter-in-law Shiba and two ladies from the neighbourhood Samina wife of Yasin and Sana wife of Saukin who had come to their roof upon hue and cry, and on the next day during panchayat, the accused respondent No. 2 refused to return the looted articles; that in order to prove its case, the complainant produced herself as PW-1, Samina as PW-2, her son Shamshad as PW-3 and one Nasim as PW-4; that it was fully proved from the evidence on record that the complainant had established that the incident in question was committed by accused respondents and none other than them; that the findings given by the Magistrate are self contradictory at internal pages 5 and 6 wherein the discussions of evidence has been made; that the Magistrate has mentioned PW-2, as son of complainant while she is sister of complainant and similarly at internal page 5, it has been mentioned that PW-2 stated that nobody fell unconscious and everybody seen the occurrence as against the statement of the same witness at page 6, that at the time of incident, he was inside the room and there was darkness on the spot; that the learned Magistrate has acted wrongly in observing the contradictions in the persecution evidence and has acted wrongly in acquitting the accused persons; that the impugned order of acquittal is liable to be set aside and the order of acquittal is required to be converted into an order of conviction. 4. Upon hearing the learned counsel and perusal of record, I find that the learned Magistrate has discussed the prosecution evidence in detail and has found material contradictions in the prosecution evidence at internal pages 5 and 6 of the judgment, wherein it has been noted that while the complainant has stated that she was sleeping in the courtyard and an amount of Rs. 10,000/- was on her bed on pillion side, PW-3 has stated that the amount of Rs. 10,000/- was looted form the drawer of the bed inside room and then Rs. 10,000/- was on her bed on pillion side, PW-3 has stated that the amount of Rs. 10,000/- was looted form the drawer of the bed inside room and then Rs. 2100/- of her mother and ornaments of her wife were taken away and it has also been noted that as per PW-3, bed was inside the room. It has also been noted that according to the statement of complainant marpeet was committed for about 10 to 15 minutes, on account of which she fell unconscious, while PW-2 has stated that nobody fell unconscious and all had seen the occurrence. 5. On the other hand, PW-2 has stated that sum of Rs. 10,000/- was drawn from the drawer of bed in which room they were sleeping but the same was not looted before them as by that time they were sleeping and the sum of Rs. 2100/- was looted from the mother after they had awaken. It is pertinent to mention here that as per averments made in the complaint the miscreants after entering into the house, firstly made all the family members awake and thereafter started to commit loot while as per statement of PW-2 the loot of Rs. 10,000/- was made when they were sleeping inside the room and thereafter loot of Rs. 2100/- was made from the mother/the complainant. At the place loot of Rs. 2100/- is said to have been made from pocket which is also highly improbable, as at the time of sleeping nobody is supported to keep Rs. 2100/- or any other money in his pocket. It is also pertinent to mention here that in complaint, two eye witnesses from the neighbourhood Smt. Samina and Sana have been mentioned and PW-2 Samina produced by complainant is said to be the sister of the complainant but the applicant could not make it clear that when Samina is sister of complainant then why this fact was not mentioned in the complaint and she was shown to be mere neighbour. 6. It is settled principle of law that if on any point two views are possible and the trial court by taking one view passes an order of acquittal the appellate court is advised not to interfere merely for the reason that another view was also possible, unless there is some manifest error of law or perversity in the impugned order of acquittal. From the discussions made above, I find that there are material contradictions in the prosecution evidence which makes the prosecution case doubtful and there is no legal infirmity or perversity in the impugned order of acquittal. 7. I do not find any force in the arguments so advanced as there is no contradiction in the statements of witnesses rather the contradictions are there in the discussions of the Magistrate. If due to typing mistake at some place PW-2 has been mentioned as son of complainant, it may not be material rather the statement of PW-2 is material. The trial court has also found that the statement of PW-2 is unreliable as his presence at the spot at about 2:30 a.m. is itself doubtful who has said that he had seen the miscreants in the light as against the statement of PW-1, PW-2, PW-3 complainant his sister and son that there was darkness on the spot and the power supply resumed after two hours. 8. It is settled principle of law as held by Hon'ble the Supreme Court in the case of K. Prakashan v. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified" 9. In view of discussions made above, learned counsel for the applicant has failed to show any legal infirmity, incorrectness or perversity in the finding given in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the acquittal order and substituting it with conviction order. The application u/s 378(4) Cr.P.C. has no force and is liable to be dismissed. 10. The application u/s 378(4) Cr.P.C. for leave to file appeal is dismissed accordingly and the appeal also stands dismissed.