Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 480 (ALL)

NASEEM v. STATE OF U. P.

2017-02-09

HARSH KUMAR

body2017
JUDGMENT : Hon'ble Harsh Kumar, J. Heard Shri Mirza Ali Zulfaquar, learned counsel for the applicant, learned A.G.A. for the State and perused the record. The appeal has been filed by complainant-appellant against the impugned judgment and order dated 26.09.2013 passed by Judicial Magistrate, J.P. Nagar in Complaint Case No. 116 of 2011, Smt. Naseem versus Zulfaquar & Others, Under sections 452, 323, 504, 506, 406 I.P.C., P.S. Saidnagli, District J.P. Nagar, acquitting the respondent nos. 2 to 7 from the charges under sections 452, 323, 504, 506 and 406 I.P.C. Learned counsel for complainant-appellant contended that the respondent nos. 2 to 7 came to her Maiyaka on 30.12.2010 at about 11:00 a.m. and committed marpeet with her and upon interference by Mohd. Mahir, Iftikhar, Jamina and others, her life could be saved; that F.I.R. of the incident was not lodged by the police officials so she had to file a complaint case in which respondent nos. 2 to 7 were summoned and after evidence under section 244 Cr.P.C. charges were framed against them; that the learned trial court has acted wrongly in acquitting the respondents by disbelieving the complainant-appellant's evidence; that the impugned judgment and order of acquittal is wrong on facts of law and is liable to be set aside and the respondent nos. 2 to 7 are liable to be convicted. Per contra learned A.G.A. supported the impugned judgment and contended that appeal is liable to be dismissed. Upon hearing learned counsel for the complainant-appellant and perusal of record, I find that the trial court has discussed the evidence on record in detail. It is pertinent to mention that despite mention of three named and several unnamed witnesses in the complaint who had allegedly arrived on the spot, only Mohd. Iftikhar and Mohd. Mahir were examined under section 202 Cr.P.C. while Mohd. Mahir was also examined under section 244 Cr.P.C. In evidence under section 246 Cr.P.C. only the complainant has been examined and none of the above persons who were the alleged eye- witnesses of the incident, as per averments made in complaint, has been produced to corroborate the statement of complainant. Mahir were examined under section 202 Cr.P.C. while Mohd. Mahir was also examined under section 244 Cr.P.C. In evidence under section 246 Cr.P.C. only the complainant has been examined and none of the above persons who were the alleged eye- witnesses of the incident, as per averments made in complaint, has been produced to corroborate the statement of complainant. Undisputedly the complainant is the most interested person in the case and without her corroboration by any independent witnesses, her single testimony may not be believed and there can be no justification to convict the accused-respondents on single testimony of most interested complainant particularly there is no corroborative evidence in the shape of injury report. It is settled principle of law that if on one point two views are possible and by taking one in favour of accused, the order of acquittal has been passed, merely for the reason that the other view could also have been taken, the appellate court is advised not to interfere, unless there is any legal infirmity or perversity in the impugned order of acquittal. It is settled principle of law as held by Hon'ble the Supreme Court in the case of K. Prakashan Vs. 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" In view of the discussions made above, I have come to the conclusion that the learned counsel for the appellant has failed to show any legal infirmity, illegality or perversity in the findings given in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the impugned acquittal or for and substituting it with conviction order. The application u/s 378(4) Cr. P.C. has no force and is liable to be dismissed. The application under section 378(4) Cr.P.C. for leave to file appeal is dismissed accordingly and consequently the appeal also stands dismissed.