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2017 DIGILAW 594 (ALL)

Swamideen v. State of U. P.

2017-02-20

HARSH KUMAR

body2017
JUDGMENT : Harsh Kumar, J. Heard learned counsel for the applicant, learned AGA for the State and perused the record. 2. The application for leave to appeal under section 378(4) Cr.P.C. has been moved for permission to file appeal against the impugned judgment and order dated 30.11.2016 passed by Special Judge (D.A.A.), Hamirpur in complaint case no.54 of 2014 (Swamideen v. Drag Pal Singh), under sections 392 and 506 IPC, P.S. Rath, District Hamirpur, acquitting the sole accused-respondent Drag Pal Singh. 3. 3. Learned counsel for complainant-appellant contended that on 13.8.2010 at about 9:00 a.m., he was going to Bank by his bicycle to withdraw the amount of Rs.25,000/-, the loan sanctioned to him and on way accused-respondent Drag Pal Singh met him and asked him on which he told the accused-respondent Drag Pal Singh that he is going to withdraw the money; that at Bank, he was given only Rs.22,000/- and at about 5:00 p.m. when he was returning back to home by putting the money in right pocket of his Pant and reached outside the village, at bridge of the canal, the accused-respondent met him with rifle and after putting his rifle on his chest and abusing him taken out the sum of Rs.22,000/- from right pocket of his Pant and threatened him of life, in case, he discloses the incident to anybody; that on application given by appellant on 14.8.2010 to Inspector of Police Station Rath, no action was taken and so he moved an application under section 156(3) Cr.P.C. in which, by order of the Magistrate case crime no.1140 of 2013 was registered and upon investigation, final report was submitted; that the first informant-appellant filed protest petition against the final report, which was treated as complaint and after recording the statements under sections 200 and 202 Cr.P.C., process was issued against the accused-respondent under section 204 Cr.P.C. for trial under sections 392 and 506 IPC; that in order to prove his case, the complainant appellant produced himself as P.W.1 and eye witnesses Raghuraj Singh and Bhanu Pratap Singh, as P.W.2 and P.W.3, respectively; that the trial court has acted wrongly and illegally in disbelieving the prosecution evidence and acquitting the accused-respondent by giving him benefit of doubt; that it is wrong to say that the F.I.R./complaint was lodged against the respondent on account of any old enmity; that the defence witness Mahesh is real brother of complainant-appellant and has given evidence against the complainant on account of differences, due to property dispute between the two brothers. 4. Per contra, learned AGA supported the impugned judgment and contended that the appeal has no force. 5. Upon hearing learned counsel and perusal of record, I find that undisputedly, the names of Raghuraj Singh and Bhanu Pratap Singh, P.W.2 and P.W.3, who were alleged to be eye witnesses of the incident, have not been mentioned in the F.I.R. or complaint. Per contra, learned AGA supported the impugned judgment and contended that the appeal has no force. 5. Upon hearing learned counsel and perusal of record, I find that undisputedly, the names of Raghuraj Singh and Bhanu Pratap Singh, P.W.2 and P.W.3, who were alleged to be eye witnesses of the incident, have not been mentioned in the F.I.R. or complaint. The complainant P.W.1 has stated that two eye witnesses Raghuraj Singh and Bhanu Pratap Singh were working in nearby fields and seen the occurrence from their fields, while out of above witnesses, P.W.2 Raghuraj Singh has stated that he was not working in the fields, rather had gone to attend the call of nature and seen the occurrence these from, while P.W.3 Bhanu Pratap Singh has stated that he had come to village Padra from Rath through Tempo. 6. It is also noteworthy in the statement of complainant-appellant, P.W.1 on oath, as mentioned by trial court in para 10 at internal page 4 and 6 of the impugned judgment, "that at the time of incident he was accompanied with his son Neeraj", but neither these is any whisper in the F.I.R. or complaint to the effect that at the time of incident, the complainant-appellant was accompanied with his son Neeraj nor complainant's son Neeraj has been produced in evidence nor the complainant has given any reasonable cause or excuse for not producing Neeraj. 7. It is also pertinent to mention that the complainant has stated that the disputed amount of Rs.22,000/- was taken out from right pocket of his pant in para 10 page 5 of the judgment, but P.W.2 Raghuraj Singh at page 4 of his statement, as mentioned in para 11 at page 7 of the impugned judgment that ^^eSaus d`iky flag dks Lokehnhu ds :i;s fudkyrs ugha ns[ks FksA eq>s Lokehnhu us crk;k FkkA** and so the evidence of P.W.2 Raghuraj is only a hearsay evidence, which is not admissible in evidence. Similarly, the presence of P.W.3 Bhanu Pratap Singh at the time of occurrence is not established, as these are material contradictions with regard to the fact as stated by him mentioned at page 8 para 12 that ^^ftl fnu Lokehnhu ds lkFk ?kVuk gqbZ Fkh ml fnu Lokehnhu dqrkZ iStkek lQsn jax dk igus FkkA**. 8. Similarly, the presence of P.W.3 Bhanu Pratap Singh at the time of occurrence is not established, as these are material contradictions with regard to the fact as stated by him mentioned at page 8 para 12 that ^^ftl fnu Lokehnhu ds lkFk ?kVuk gqbZ Fkh ml fnu Lokehnhu dqrkZ iStkek lQsn jax dk igus FkkA**. 8. The above contradiction shows that P.W.2 and P.W.3 were not the eye witnesses of the incident and even the occurrence of the incident becomes doubtful. Apart from above, it has also come in the evidence that the real brother of complainant has deposed as defence witness (D.W.1) and has stated that no loot was committed with his brother on 13.8.2010. No suggestion has been made to this witness in cross examination by complainant-appellant that he is deposing on account of any property dispute between the two brothers. It has also been admitted by the complainant-appellant that accused Drag Pal Singh had made a complaint against Swamideen, the appellant and Saheb Singh regarded the licensed gun of Dharam Das kept by them and that Saheb Singh, the Ex-Pradhan had provided government job of cook in a school to Smt. Janki, the wife of Swamideen. 9. It is settled principle of law that if a party possess best evidence/witness on any point, but does not produce the same, adverse inference will be drawn against him, that had such witness been produced, he would have deposed against the interests of such party. In this case as alleged by the complainant-appellant Swamideen, he was accompanied with his son Neeraj at the time of alleged loot of Rs. 22,000/- by the accused-respondent and for not producing Neeraj in witness box, adverse inference has to be drawn against the complainant-appellant. 10. It is settled principle of law that in case of acquittal if two views are possible on any point and the trial court by taking one, has passed the order of acquittal, the same may not be interfered with and the order of acquittal, may not be converted into conviction unless these is any manifest error of law or perversity in the impugned judgment. these is no case by the appellant that any material evidence was ignored by the trial court or some other evidence was misread. 11. these is no case by the appellant that any material evidence was ignored by the trial court or some other evidence was misread. 11. 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 these of by High Court was not justified". 12. In view of discussions made above, I have come to the conclusion that the learned counsel for the applicant has failed to show any legal infirmity, incorrectness or perversity in the findings given in the impugned order of acquittal and these 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. 13. The application u/s 378 (4) Cr.P.C. for leave to file c accordingly and the appeal also stands dismissed.