Allahabad High Court
Anuj Kumar Maurya vs State Of U.P. & 2 Others on 6 March, 2017
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 52 Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 197 of 2016 Applicant :- Anuj Kumar Maurya Opposite Party :- State Of U.P. & 2 Others Counsel for Applicant :- Manoj Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Harsh Kumar,J.
Heard Sri Sandeep Kumar, Advocate holding brief of Sri Manoj Kumar Srivastava, learned counsel for the appellant and learned AGA for the State and perused the record of appeal as well as lower court record, which has been received after being summoned.
The application for leave to appeal has been moved for permission to file an appeal against the impugned judgment and order dated 12.8.2016 passed by Additional District and Sessions Judge, Court No.4, Bareilly in S.T. No.616 of 2013, State Vs. Naresh Maurya and another, acquitting the respondent nos.2 to 3 from the charges under sections 308/34, 323/34, 325/34 and 504 IPC.
Learned counsel for the applicant-appellant contended that the impugned judgment and order of acquittal is wrong on facts and law; that the trial court has acted wrongly in not considering the grievous head injuries as well as fracture of his leg caused to the injured Rakesh Maurya by accused-respondents; that the prosecution story was corroborated by two witnesses of fact Rakesh Maurya and Gopal Maurya; that there were no contradictions in the prosecution evidence of fact, which was duly supported by the oral as well as documentary evidence of formal witnesses, the Medial Officer as well as Investigating Officer; that the prosecution has proved the charges against the respondent nos.2 and 3 beyond any shadow of doubt; that the impugned judgment suffers from number of errors and is liable to be set aside and the accused-respondent nos.2 and 3 are liable to be convicted; that the applicant-appellant has every hope of success in appeal and so the leave to file appeal may be granted.
Per contra, learned AGA supported the impugned judgment and order and opposed the application for leave to appeal.
Upon hearing learned counsel and perusal of record, I find that the learned trial court has discussed and analyzed the prosecution evidence in detail. As per prosecution version mentioned in N.C.R., on 28.5.2006 at about 7:00 a.m., the informant Anuj Kumar Maurya was sitting in front of his house cum shop, with his brother Rakesh Maurya when respondent nos.2 and 3 arrived there with an intention to take their house and when they refused to give their house, the incident of marpeet was committed by respondent nos.2 and 3, resulting in multiple injuries to Rakesh Maurya brother of informant Anuj Maurya. The first informant Anuj Maurya as P.W.1 in his statement on oath has stated that "he is six real brothers, Suraj, Rakesh, Anuj, Gopal, Chaman and Prashant out of whom Suraj is eldest; that in the incident in question Rakesh was pushed to ground and seeing dandas in hands of accused-persons, he fled away from the spot; that due to injuries sustained by Rakesh he remained unconscious for 6-7 days and both of his legs were fractured; that he continued to watch the incident from a distance of 10-12 meters for about 15-20 minutes". P.W.2 the injured witness in his statement on oath has stated with some difference stating that "he was reading newspaper in front of his house at about 7:00 a.m. and Anuj was standing by his side, the accused arrived there and demanded their house and when they refused to give their house, the accused-persons returned and again came back after 10-5 minutes with lathi, dandas and considerably beaten him and his brother; that on hue and cry all the family members arrived there and his parents fall over him in order to cover and save him". The third witness of fact is P.W.4 Gopal Maurya, who is also real brother of informant as well as injured Anuj and Rakesh and stated on oath that "on the day of incident he was on the shop within house and was doing his business and when the accused-persons were beating his brothers, he did not come for their rescue and did not ask his customers that let him first save his brothers".
Undisputedly, no independent witness of fact has been produced. As per the site plan Anexure No.A-7, there are several houses around the place of occurrence and the house and shop of Vipin Asthana is just in front of the place of occurrence, while house and shop of Satya Prakash is adjoining in South to the house of Vipin Asthana and the house of accused-persons is adjacent to the house of informant in North, while house of Vinod Maurya and Vijendra Maurya with clinic of Dr. Sanjay Kumar is adjacent in South. Undisputedly, at the time of incident, customers were present on the shop inside the house, as stated by P.W.4 Gopal. It is strange enough that neither Anuj Maurya, the first informant who was allegedly present on the spot with injured Rakesh Maurya nor Gopal Maurya, who was allegedly present on the shop are alleged to have made any efforts for rescue of Rakesh Maurya, rather Anuj Maurya P.W.1 alleges to have fled away from the spot and no injuries is alleged to have been sustained to any of them. Non production of the best evidence the parents, who came for rescue, there is sufficient ground for drawing adverse inference against prosecution to the effect that had the above witnesses been produced to witness box they would not have corroborated the prosecution case. Moreover not sustaining even any minor injury to any of the two alleged eye witnesses, who were real brothers of injured also makes their presence doubtful at the time of alleged incident. It is also pertinent to mention that non production of any independent witness makes the prosecution case doubtful and when the father and elder brother of informant injured is alive, demanding the house from first informant and injured also becomes highly improbable and doubtful.
It is also noteworthy that according to statement of injured himself on alarm all the family members had arrived there and his parents fallen upon him in order to cover and save him, but neither mother nor father of the injured, who in all possibility would certainly sustained some injuries have not been produced. P.W.4 has gone upto the extent in saying that the injured continued to remain unconscious for a period of 10-12 days as against the statements of P.W.1 and P.W.2 regarding unconsciousness for 6-7 days. It is noteworthy that in the copy of G.D. or the injury report or any other prosecution paper, there is no mention of unconscious condition of the injured at the time of medical examination, which was conducted within one and half hour of the alleged incident. It is also noteworthy that Dr. A.K. Gautam as P.W.3 has stated that the age of injured was mentioned by him in the injury report upon being told by the injured himself, which shows that the injured was fully conscious at the time of medical examination within one and half hour of the incident and the contention of his falling unconscious and continuing unconsciousness for a period of 6-7 days or 8-10 days is absolutely wrong and incorrect. The Medical Officer, who has proved the injuries over left forehead and left knee of the injured, has stated that the above two injuries on one left side of the body, may be sustained if a person slips on the ground. The defence has put a suggestion to the injured that above injuries have been sustained by him, due to slip and fall on the road and due to enmity the accused-persons have been falsely implicated, which has been denied by him.
In view of discussions made above, I have come to the conclusion that the learned trial court has not left any evidence un-discussed. It is settled principle of law that if there can be two views on a point and the trial court by taking one view passes an order of acquittal, the appellate court may not interfere with the order of acquittal and pass an order of conviction unless there is any glaring mistake or perversity in the impugned order.
In view of the material contradictions in the statements of three witnesses of fact, who are real brothers and non production of any independent witness of the vicinity, so the trial court has not committed any mistake in passing the impugned order.
It is settled principle of law as held by Hon'ble the Supreme court in the case of K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified".
In view of discussions made above, I have come to the conclusion that the learned counsel for the applicant has failed to show any legal infirmity, incorrectness or perversity in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the impugned order of acquittal and substituting it with conviction order. The application for leave to file appeal has no force and is liable to be dismissed.
The application for leave to file appeal is dismissed accordingly and the appeal under section 372 Cr.P.C. also stands dismissed.
Order Date :- 6.3.2017 Tamang Order on Memo of Appeal Hon'ble Harsh Kumar,J.
Dismissed.
For order, see order of date passed on application for grant of leave to file appeal.
Order Date :- 6.3.2017 Tamang