Allahabad High Court
Smt. Usha Devi vs State Of U.P. And 4 Others on 4 April, 2017
Author: Shashi Kant Gupta
Bench: Shashi Kant Gupta, Abhai Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 45 Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 82 of 2017 Applicant :- Smt. Usha Devi Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Rakesh Kumar Rathore,Sanjeev Kumar Counsel for Opposite Party :- G.A. Hon'ble Shashi Kant Gupta,J.
Hon'ble Abhai Kumar,J.
Heard learned counsel for the appellant/applicant as well as learned A.G.A. for the State and perused the material on record.
This application has been filed by the appellant/applicant with the prayer that leave to appeal may be granted against the judgment and order dated 13.2.2017, passed in Special Sessions Trial No. 155 of 2010, State versus Ram Autar Yadav, arising out of Case Crime No. 208 of 2010, under Sections 364,302,201/34,394,412 IPC, and section 3(2)V S.C./S.T. Act P.S. Usrahar, District Etawah by the learned Special Judge(D.A..A.)/Additional Sessions Judge ETawah, whereby the accused respondents have been acquitted for the offence punishable under the section referred to above.
After perusal of the order dated 13.2.2017 passed by the learned Special Judge( D.A.A.)/Additional Sessions Judge, Etawah in Special Sessions Trial No. 155 of 2010 as well as perusal of the record shows that the I.O. simply collected the skeleton, but there is no evidence to the effect that the skeleton is of the deceased. Even the skeleton was not sent for D.N.A. test to prove the same and there is no evidence in this regard on record.
The Court also relied on the evidence with regard to the recovery and gave cogent reason to hold that the recovery was doubtful. Recovered jewelery is not proved by complainant who gave that jewelery to her husband. The weapons recovered was not sent for ballistic expert to establish that it was in working condition.
There is no last seen evidence in the case. The police simply based his case on the confessional statement of the accused which is not admissible. There are material contradictions in the testimony of P.W. 1 and P.W. 2, in the FIR as well as in the statement recorded under section 161,164 Cr.P.C. and the story set-up by the prosecution does not inspire confidence.
The call details has also not been placed on record to establish that the deceased Vinod had any telephonic conversation with the accused person Ram Autar while leaving the house of his friend Dr. Raghuvir Rajput. It is also noteworthy that the incident has occurred around 24.6.2010 but the FIR has been lodged on 19.7.2010 and no plausible explanation has been given for the delayed FIR. The recovery could not be proved.
We have carefully perused the judgement passed by the lower court. Perusal of the judgement shows that this a case of circumstantial evidence and it is a well settled law that in the case of circumstantial evidence all the links of events must be completed, so as to form a complete chain. It is also well settled law that, if two views are possible and the trial judge has taken one view, which is reasonable and plausible and appeals to the judicial mind, then the High Court should refrain from interfering with the order of acquittal. Interference with the order of acquittal should only be done when the findings are perverse, illegal and against the material available on record. The court below has given cogent, convincing and satisfactory reasons while passing the order of acquittal. The impugned judgement and order passed by the court below does not suffer from any infirmity.
We, therefore, do not consider it to be a fit case for grant of leave to appeal to the applicant. The application seeking leave to appeal is, accordingly, rejected.
Order Date :- 4.4.2017 N.A. Court No. - 45 Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 82 of 2017 Applicant :- Smt. Usha Devi Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Rakesh Kumar Rathore,Sanjeev Kumar Counsel for Opposite Party :- G.A. Hon'ble Shashi Kant Gupta,J.
Hon'ble Abhai Kumar,J.
Since the application seeking leave to appeal has been dismissed vide order of date, hence, this appeal is also dismissed.
Order Date :- 4.4.2017 N.A.