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2019 DIGILAW 1897 (ALL)

State of U. P. v. Rakesh

2019-08-06

RAM KRISHNA GAUTAM

body2019
JUDGMENT : RAM KRISHNA GAUTAM, J. 1. Heard learned AGA. 2. This Government Appeal with application for grant of leave for filing appeal u/s 378(3) Cr.P.C. has been filed by the State of U.P. against Rakesh and three others against the judgment of acquittal dated 8.11.2002 passed by the F.T.C. No. 5 of Additional Sessions Judge, Etah, in S.T. No. 457 of 1999, State Vs. Rakesh and others, arising out of Case Crime No. 15 of 1991, u/s 306 I.P.C., P.S. Jaithra, District Etah. 3. Learned AGA has vehemently argued that the informant Bahori Singh was not witness of fact. Rather when he reached at the home of his sister, the family members of accused i.e. Raju, aged about 12 years, and his sister, aged about 5-6 years, narrated that parents of them have abused for demand of money with Javitri and when she narrated incapacity of her parents, Rakesh, Bhagwati, Mohar Singh and Ajay Pal committed murder of her, in which Rakesh and Ajay Pal caught hold her hands and legs and Bhagwati and Mohar Singh put pressure over her neck. Then after dead body was kept in a tractor and was taken somewhere else. On the basis of this information given by those two children, report of Case Crime No. 15 of 1991 was got registered at police station concerned. But in the trial none of them have been examined and all the three witnesses, who were examined by prosecution, were not witnesses of fact. Thereby judgment of acquittal has been passed. Hence this appeal. 4. From the very perusal of the impugned judgment and the record, it is apparent that the offence of murder was complained in the F.I.R. and this case crime number was got registered, which resulted in submission of final report i.e. no evidence regarding alleged occurrence of murder was found. But on protest filed by complainant, the trial court summoned husband-accused Rakesh for offence punishable u/s 306 I.P.C., for which charge was framed, who pleaded not guilty with claim for trial, wherein three prosecution witnesses were examined. Upon application moved u/s 319 Cr.P.C. those three accused Mohar Singh, Bhagwati and Ajay Pal were summoned for the offence punishable u/s 306 I.P.C. Charge for offence punishable u/s 306 I.P.C. i.e. abetment to suicide resulting suicide committed by deceased. They too pleaded not guilty and claimed for trial and those three prosecution witnesses were examined. Upon application moved u/s 319 Cr.P.C. those three accused Mohar Singh, Bhagwati and Ajay Pal were summoned for the offence punishable u/s 306 I.P.C. Charge for offence punishable u/s 306 I.P.C. i.e. abetment to suicide resulting suicide committed by deceased. They too pleaded not guilty and claimed for trial and those three prosecution witnesses were examined. Then after statements u/s 313 of accused was got recorded, wherein they pleaded innocence. In defence two witnesses DW1 Shyam Lal and DW2 Anokhe Lal were examined and the trial court passed judgement of acquittal. Investigation resulted in submission of final report i.e. accusation lodged was not substantiated. The court summoned accused for offences punishable u/s 306 I.P.C. but no evidence of abetment to suicide resulting commission of suicide was adduced. All the three prosecution witnesses were the witnesses, who have rushed on the spot after the occurrence took place, and they were not having opportunity for preserving the fact of abetment to suicide thereby committing suicide. Hence the trial court passed judgment of acquittal. There is no perversity in it nor there is any sufficient ground for grant of leave to appeal. 5. 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. 6. 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. 7. 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. 8. Hence prima-facie existence of perversity, manifestly wrong or demonstratively unsustainability of judgment of acquittal is to be seen. 8. 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. 9. Accordingly, application for leave to appeal is rejected.