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2018 DIGILAW 781 (ALL)

STATE OF U. P. v. BHAGIRATHI

2018-04-03

MRS.VIJAY LAKSHMI, RAJESH DAYAL KHARE

body2018
JUDGMENT : 1. This government appeal under Section 378 Cr.P.C. alongwith an application for grant of leave to appeal has been filed against the judgment and order dated 25.01.2014 passed by Additional Sessions Judge, Court No. 10, Varanasi in S.T. No. 590 of 2010 (State Vs. Bhagirath and another) connected with S.T. No. 653 of 2010 (State Vs. Ganesh Yadav) whereby the respondents have been acquitted of the charges under Section 307 readwith 34 I.P.C. and 3/25 Arms Act. 2. Heard learned A.G.A. on application seeking leave to appeal. Perused the impugned judgment and lower court's record. 3. Learned A.G.A. has contended that the court below by the impugned judgment and order, wrongfully and illegally acquitted the accused respondents despite the fact that there was sufficient evidence against them on the record. It has been further contended that only on the basis of some minor contradictions, the whole prosecution case should not have been disbelieved by the court below. 4. A careful perusal of the impugned judgment shows that the trial court has discussed in detail the entire evidence produced by the parties. The facts of the case show that the incident in this case was occurred on 5.6.2010 when the injured Rajesh Yadav was going on a motorcycle to his house. It has been alleged that at that time the accused respondent no. 1 - Bhagirathi alongwith co-accused Ganesh Yadav came on a motorcycle and opened fire, due to which the injured sustained firearm injuries. The motive behind the incident, as mentioned in the F.I.R., is that about one year prior to the occurrence, some altercation had taken place between the parties on a minor issue of dispute between their children. Thus, it is clearly evident that there was no immediate motive with the assailants to inflict firearm injury on the complainant/injured. 5. Learned A.G.A. has contended that in case of direct evidence, the motive pales into insignificance and P.W. 1, who is the injured witness, has supported the prosecution case in his statement during trial, which should not have been disbelieved by the trial court. 6. There is no doubt that in case of direct evidence, the motive is not relevant. However, keeping in view the entire facts and circumstances of the present case, we do not find any illegality in the impugned judgment. 6. There is no doubt that in case of direct evidence, the motive is not relevant. However, keeping in view the entire facts and circumstances of the present case, we do not find any illegality in the impugned judgment. The injuries found on the body of the injured do not find corroboration with the ocular evidence relating to manner of occurrence. Moreover, the statements of the witnesses were found full of contradictions. P.W. 1 has admitted the fact that two years prior to the occurrence, a dispute between him and the accused respondents had taken place on a minor issue of sitting on a cot during an orchestra programme. Neither blood nor any pellet/empty cartridge or bullet was recovered from the place of occurrence. The recovered country made pistol was not sent for ballistic examination. P.W. 2 - Ramesh Yadav stated about the existence of Shyamjee Harijan's hut near the place of occurrence whereas the P.W. 5, who is the investigating officer, has stated that there was no house or hut near the place of occurrence. Two named eye witnesses were not produced by the prosecution, therefore, the court below found the prosecution story doubtful and gave the benefit of doubt to the accused respondents. 7. There does not appear any reason to interfere with the aforesaid findings recorded by the learned trial court after a detailed appreciation of evidence. 8. It is also to be kept in mind that the present appeal is against acquittal and the golden thread which runs through the administration of criminal justice while hearing the appeal against the acquittal is that even if two views are possible on the evidence, one pointing towards the guilt of the accused and other towards their innocence, the view which is favourable to the accused should be accepted and the finding of acquittal recorded by the trial court should not be disturbed by the appellate court. The reason is that while passing the order of acquittal, the presumption of innocence in favour of the accused is re-inforced 9. In Ramesh Babulal Doshi Vs. State of Gujrat; 1996 (9) SCC 225 , the Hon'ble Supreme Court has held as under : - "...in case of acquittal, there is double presumption in favour of the accused. The reason is that while passing the order of acquittal, the presumption of innocence in favour of the accused is re-inforced 9. In Ramesh Babulal Doshi Vs. State of Gujrat; 1996 (9) SCC 225 , the Hon'ble Supreme Court has held as under : - "...in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocence unless he is proved to be guilty by a competent court and secondly the accused having secured an acquittal, the presumption of innocence is, re-enforced and strengthened by the trial court......." 10. In Mahadeo Laxman Sarane vs. State of Maharashtra, (2007) 12 SCC 705 , the Apex Couirt has observed that : - "It is true, that the settled legal position is that in an appeal against acquittal the High Court ought not to interfere with the order of acquittal if on the basis of the same evidence two views are reasonably possible-one in favour of the accused and the other against him. In such a case if the trial court takes a view in favour of the accused, the High Court ought not to interfere with the order of acquittal." 11. In C. Antony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1 , the Apex Court has laid down the law as follows:- "Unless the findings of trial court are perverse or contrary to the material on record, High Court cannot, in appeal, substitute its finding merely because another contrary opinion was possible on the basis of the material on record." 12. In Sirajuddin Vs. State of Karnataka, (1980) 4 SCC 375 , the Apex Court has reiterated the same principle in the following words:- "Where trial Court's order of acquittal is based on a reasonably possible view, High court should not, as a rule of prudence, disturb the acquittal." 13. Considering the facts and circumstances in wake of the above cited legal position, we do not consider it to be a fit case for grant of leave to appeal to the applicant. 14. The application seeking leave to appeal is rejected and consequently the appeal is dismissed.