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2020 DIGILAW 247 (ALL)

State of U. P. v. I. Uniyal

2020-01-22

ARVIND KUMAR MISHRA, GAUTAM CHOWDHARY

body2020
JUDGMENT : 1. Report of C.J.M. Saharanpur dated 07.10.2013 reflects that accused-respondent no. 1- George Rajesh-died on 15.03.2018. 2. In view of the report of C.J.M. Saharanpur dated 07.10.2013, this appeal stands abated against accused-respondent no. 1-George Rajesh and is dismissed. 3. Now, this appeal relates to the surviving respondent no. 1-Indu Unival-for adjudication. 4. Heard learned A.G.A. for the State-appellant, Sri Pankaj Srivastava, learned counsel for the respondents, perused the impugned judgment of acquittal and record of the appeal. 5. The instant Government Appeal has been preferred by the State of U.P. against judgment and order of acquittal dated 25.1.1994 passed by III Additional Sessions Judge, Saharanpur in Sessions Trial No. 253 of 1987, under Sections 452, 307, 307 read with 34 I.P.C. police station-Sadar Bazar, district-Saharanpur. By the impugned judgment and order, trial court acquitted both the accused persons under the aforesaid sections of Indian Penal Code. 6. Relevant facts as discernible from the record giving rise to this appeal appear to be that- Father M.A. Joseph-Principal in Saint Merry Academy Mission Compound, Saharanpur was sitting in front of his table within the campus of Sofia Hindi Medium School (which is within the jurisdiction of Police Station-Sadar Bazar, district-Saharanpur). The electric light was illuminated in the campus of school and the room also. At that point of time, door of the room where the Father M.A. Joseph was sitting, were opened by accused-George Rajesh and Indu Unial and suddenly accused-George Rajesh opened fire on him (Father M.A. Joseph), as a result of which, he sustained injuries and both the accused are escaped away from the scene. 7. On hearing the noise of fire and scream of one unknown man, Father Joseph Puthath came out from his room and then he saw the injured M.A. Joseph who was seeped with blood and he was saying to him (Father Joseph Puthath) that fire was opened upon him by the accused. Thereafter, Father M.A. Joseph was taken to the District Hospital, Saharanpur by Father Joseph Puthath on taxi. In the hospital, the injured informed him that fire was made upon him by George Rajesh and accused Indu Uniyal was also present on the spot. 8. On the written report of informant-Father Joseph Puthath, the case was registered at police station-Sadar Bazar, District-Saharanpur on 2.9.1987 at 9.30 p.m. under Sections 452, 307 of Indian Penal Code. 9. In the hospital, the injured informed him that fire was made upon him by George Rajesh and accused Indu Uniyal was also present on the spot. 8. On the written report of informant-Father Joseph Puthath, the case was registered at police station-Sadar Bazar, District-Saharanpur on 2.9.1987 at 9.30 p.m. under Sections 452, 307 of Indian Penal Code. 9. Thereafter the Investigating Officer carried out the investigation and recorded the statement of informant-Joseph Puthath, witnesses- Martin Stephen, Father M.A. Joseph and others and after completing all necessary formalities filed chargesheet under Sections 307, 452 IPC. 10. Thereafter during course of hearing on the point of charge, the court concerned found the case covered under Section 452, 307/34 IPC for accused Indu Uniyal and under Section 307 IPC for accused George Rajesh, therefore, the court below committed the case to the Sessions Court, whereupon, accused were heard on the point of charge and charges under Sections 452, 307/34 IPC were framed against aforesaid accused persons, who denied charges and opted for trial. 11. In order to prove its case, prosecution produced informant-Joseph Puthath (PW-1), witness Martin Stephan (PW-2), injured Father M.A. Joseph (PW-3), I.O. Devraj Singh Bisnoi (PW-4), S.I. Dr. R.K. Tayal (PW-5) and R.K. Kashyap (PW-6). All the aforesaid prosecution witnesses are witnesses of fact/formal witnesses and the eye-witnesses. 12. Thereafter, evidence for the prosecution was closed and the statement of accused persons were recorded under Section 313 Cr.P.C. wherein, it was submitted that they have been falsely implicated in this case. They categorically stated in his deposition that at the time of incident, they are in the Mussorrie and they have been challaned in the M.V. Act. 13. In turn, five witnesses- Smt. Shanti Devi (DW-1), Baburam (DW-2), Rakesh (DW-3), Girdhar Gopal (DW-4), Kunwar Singh (DW-5) were produced on the behalf of the defence as defence witnesses. 14. Thereafter, the evidence for defence was closed and after considering the merit of the case, charges were found not proved beyond reasonable doubt. Resultantly, the trial court returned finding of acquittal against the accused. 15. Consequently, this Government Appeal. 16. The learned counsel for the appellant-State submits that learned trial court has not properly appreciated the evidence for the prosecution and has decided the case only on the basis of conjectures and surmises. Resultantly, the trial court returned finding of acquittal against the accused. 15. Consequently, this Government Appeal. 16. The learned counsel for the appellant-State submits that learned trial court has not properly appreciated the evidence for the prosecution and has decided the case only on the basis of conjectures and surmises. He also submits that impugned judgment and order of acquittal of the accused-respondents is not sustainable in the eyes of law and as such the same is liable to be set-aside by this Court. 17. The contention of learned counsel for the respondents is specific to the ambit that in this case trivial and minor contradictions alone prompted the trial Judge to record specific finding that the injured Father M.A. Joseph was not in a position to identify the weapon used by the appellants at the time of the occurrence and who was the assailant, was also not ascertained by the Father M.A. Joseph and under prevailing facts and circumstances, the attack was infact sudden. How can this finding be sustained in view of specific testimony of Father M.A. Joseph the injured that he takes and understands word gun to be applicable to both revolver as well as gun and it was never tried to be differentiated from revolver. In general parlance, the gun indicates both- the revolver and the gun. Therefore, the difference cannot be substantiated by claiming that the weapon used in the assault was not properly identified. 18. The moot point involved for consideration in this appeal is whether the finding of acquittal recorded by the trial court is erroneous and perverse, as alleged by the appellant- State? 19. We have carefully considered the aforesaid submissions of both the sides as well as perused the impugned judgment/order of acquittal. 20. We upon careful consideration cannot disagree with the finding of acquittal recorded in favour of the surviving respondent, for specific reasons that the injured was a literate man and was head of an educational institution and he, as per his cross- examination, is very much acquainted with the nature and identity of gun and revolver and he categorically stated in his testimony that he can identify these weapons, therefore it means that the weapon used can be specifically identified by him. However, that specific identification has not come out establishing its nature and specification. However, that specific identification has not come out establishing its nature and specification. The graver aspect of the case is that there is material contradiction on the point as to who opened the fire and on this point, admittedly the testimony of the prosecution witnesses is vacillating and is not certain. 21. For the reasons aforesaid, we have no doubt in affirming the finding of acquittal recorded in favour of the respondents. 22. It is established law that in case of acquittal, the finding recorded, if found to be based on material on record and the view taken by the trial court is justified although the alternate view is also available, then the view that favours the accused is to be preferred by the Appellate Court. It being so, we have no hesitation in observing that the view adopted by the trial court in recording finding of acquittal is based on material on record. 23. Consequently, this Government Appeal lacks merit and the same is dismissed. 24. The leave to appeal is hereby refused.