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2019 DIGILAW 1701 (ALL)

State of U. P. v. Virendra Singh

2019-07-16

RAM KRISHNA GAUTAM

body2019
JUDGMENT : RAM KRISHNA GAUTAM, J. 1. Heard learned AGA on behalf of State of U.P. over application moved for grant of leave to appeal against judgment of acquittal dated 18.10.2002 passed by the Additional Sessions Judge/ F.T.C. No. 4, Moradabad, in S.T. No. 172 of 1998, State Vs. Virendra Singh and others, arising out of Case Crime No. 216 of 1996, u/s 323, 504 I.P.C. and 3(1)(x) of SC/ST Act, P.S. Rajabpur, District Moradabad, with contention that the trial court failed to appreciate facts and law placed before it, whereas prosecution has fully proved its case in which PW1 Harpal has reiterated version of F.I.R. and there was no embellishment, contradiction or exaggeration in his testimony. He has proved the assault made by accused persons. This was corroborated by the testimony of PW2 Preetam Singh, who has proved the occurrence. Formal witness PW5 I.O. Sukhpal Singh in his testimony has proved site map (Ext. Ka6) as well as charge sheet (Ext. Ka7) filed by him. Formal proof of chick F.I.R. (Ext. Ka4) and General Diary entry of registration of case crime (Ext. Ka5) was also done. Medico legal report of injured Preetam Singh (Ext. Ka2) and of other injured witness (Ext. Ka3) were formally proved by PW3 Dr. S. C. Mittal and there was no contradiction in the testimony of this witness, even then judgment of acquittal was passed. Hence this application with prayer for grant of leave to this appeal. 2. Perusal of judgment reveals that PW1 has said about genesis of occurrence that he along with others were playing Playing Card in front of his house, which was protested by accused Virendra Singh. Thereafter Virendra Singh armed with licensee gun and three others reached there at and did assault over injured persons. Meaning thereby the occurrence was at the place in front of his house, but PW2 has said the place of occurrence inside Verandah and he has said that Playing Card was being played inside Verandah then accused Virendra Singh came and protested. Thereafter this occurrence was committed. This was also shown in the site map, wherein Verandah was the place of occurrence. Four persons armed with licenced gun were said to have committed assault in which firearm shot was extended, but only two persons were medically examined and they were having simple injuries in hand caused by hard blunt object. Thereafter this occurrence was committed. This was also shown in the site map, wherein Verandah was the place of occurrence. Four persons armed with licenced gun were said to have committed assault in which firearm shot was extended, but only two persons were medically examined and they were having simple injuries in hand caused by hard blunt object. One other person Mahesh was said to be injured, but he was not examined. Hence sequence of assault and injuries were not in corroboration with each other. Time of registration of report was said by PW1 at 8.00 P.M., whereas chick report was registered at 6.30 P.M. Meaning thereby there was variance of one and half hours in the time of registration of case crime number. Specific word in the form of abuse with a view to insult and likely to commit breach of peace punishable u/s 504 I.P.C. was not said in the F.I.R. nor in the statement recorded u/s 161 Cr.P.C., rather it was said for the first time during course of trial before the trial Judge. Hence it was held to be embellishment and exaggeration. For offence punishable u/s 3(1)(x) SC/ST Act the condition precedent was to prove that a person, not belonging to Scheduled Caste and Scheduled Tribe, with a view to humiliate a person belonging to Scheduled Caste / Scheduled Tribe community did assault or committed offence. But this was not said in the F.I.R. or in the statement u/s 161 Cr.P.C., rather it was for the first time while being examined in the trial. This too was held to be embellishment and exaggeration by the trial Judge. Under all above facts and circumstances, the trial court granted benefit of doubt to accused persons and passed judgment of acquittal for which there was ground and correct appreciation of facts and law placed before it. 3. In Bhim Singh Vs. State of Haryana, 2002 10 SCC 461 the Apex Court has held that where finding of acquittal is palpably wrong, manifestly erroneous and demonstratively unsustainable, judgment of acquittal may be interfered in appeal by the appellate court. 4. Law laid down by Apex Court in Jemni Bala Koteshwar Rao Vs. 3. In Bhim Singh Vs. State of Haryana, 2002 10 SCC 461 the Apex Court has held that where finding of acquittal is palpably wrong, manifestly erroneous and demonstratively unsustainable, judgment of acquittal may be interfered in appeal by the appellate court. 4. Law laid down by Apex Court in Jemni Bala Koteshwar Rao Vs. State of A.P., 2009 10 SCC 636 , K. Prakashan vs P.K. Surenderan, 2008 1 SCC 258 is regarding appeal against order of acquittal in which essential ingredients for interfering in judgment of acquittal has been propounded to be perversity, judgment based on no material and judgment suffering with legal infirmity. 5. Under section 378(3) Cr.P.C. provision for leave to appeal against judgment of acquittal by Legislature has been with a view that unnecessary appeal is not to be filed in routine, rather it should be checked as to whether there is substance for hearing a judgment of acquittal in appeal then leave to appeal is to be granted by the appellate court under above section. 6. Hence prima-facie existence of perversity, manifestly wrong or demonstratively unsustainability of judgment of acquittal is to be seen. Under all above facts and circumstances impugned judgment seems to be based on proper and correct perspective of law with correct appreciation of evidence. Thus, application for leave to appeal merits its rejection. 7. Accordingly, application for leave to appeal is rejected.