Allahabad High Court
State Of U.P. vs Shahzad @ Bhura on 28 April, 2022
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- GOVERNMENT APPEAL DEFECTIVE No. - 88 of 2021 Appellant :- State of U.P. Respondent :- Shahzad @ Bhura Counsel for Appellant :- G.A. Counsel for Respondent :- Madan Lal Rai Hon'ble Om Prakash-VII,J.
Hon'ble Narendra Kumar Johari,J.
(Crl. Misc. Delay Condonation Application No.01 of 2021)
1. Present application under Section 378 (3) Cr.P.C. has been filed with an application under Section 5 of Limitation Act for condoning the delay of 286 days. The application is supported with an affidavit.
2. Heard.
3. For the reasons stated in the affidavit filed in support of the application for condonation of delay, the delay of 286 days in filing the appeal/application is condoned.
4. The application is disposed of.
Order on Application under Section 378 (3) Cr.P.C.:
1. The present appeal with application under Section 378 (3) Cr.P.C. has been filed by State Government against the judgment and order dated 31.01.2020, passed by Additional Session Judge, Court No.5, Meerut in S.T. No. 873 of 2014 (State Vs. Shahzad @ Bhura), arising out of Case Crime No.723 of 2012, under Sections 270, 272 IPC, Police Station Mawana, District Meerut. By the impugned judgment and order, the trial court acquitted the accused- respondent, Shahzad @ Bhura from the charges under Sections 270, 272 IPC.
2. The facts of the case in hand, in short, are that, informant Sachendra Kumar lodged a First Information Report at Police Station Mawana, District Meerun to the effect that on 21.10.2012 at 6.00 hours in the evening informant got an information that beef was being taken from Mawana through vehicle TATA S. No. UP 15 AT 2097, which would be taken to Meerut. At this information, informant along with his companion Sandeep Kumar reached at Police Outpost Mawana Khurd and shared the information with S.I. Rakesh Kumar Panwar. S.I. Rakesh Kumar Panwar along with constable Amit Kumar and the informant kept on waiting on the road for the vehicle which was carrying the meat. At about 7.00 hours in the evening, the said vehicle came from the side of Mawana and the same was stopped. When the vehicle was checked, it was found that about 700 Kg. meat was loaded. The driver disclosed his name as Shahzad and the person who was sitting with him disclosed his name as Kamil. When the inquiry was made about the meat, it was disclosed that it was the meat of buffalo, some was fresh and rest was four days old, which was not selling here in the shops. It was being taken to Meerut factory for sale. No papers could be shown. For inspection of the meat, team of doctors from Mawana Hospital reached at the spot. Checked the meat and took sample. Doctor stated that prima facie, it did not seem to be the beef. This meat was prima facie of buffalo. But due to its staleness, it was not edible, and if it was consumed, it could cause diseases. Therefore, the meat was disposed of under the ground.
3. On the basis of Tehrir of the informant, a case was registered under Sections 270, 272 IPC, vide Crime No.723/2012 against the accused persons. The Investigating Officer, after completion of the Investigation, submitted charge sheet against the accused-respondent. The case was committed to the Court of Session. The charges were framed by the Court under Sections 270, 272 IPC against accused-respondent, who denied the charges and preferred trial.
4. On behalf of the prosecution, the witnesses PW 1 Sachendra, PW 2 Sandeep Kumar, PW 3 Dr. K.R. Tomar, PW 4 S.I. Sitab Singh, PW 5 Rakesh Kumar Panwar, PW 6 S.I. Madanpal Singh were examined. After completion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C.
5. Learned trial court after hearing the arguments of rival parties and after perusal of the record, acquitted the accused-respondent from the charges of Sections 270, 272 IPC. The above acquittal order has been assailed by the State Government in the present appeal.
6. Submission of learned A.G.A. is that the trial court has wrongly acquitted the accused-respondent. The trial court has failed to appreciate the evidence in correct perspective and ignored the evidence of doctor who has examined the meat as obnoxious and not edible. The judgment and order of acquittal being based on surmises and conjecture is liable to be set aside and the appeal be admitted for hearing.
7. Learned counsel for the accused-respondent has submitted that the impugned judgment and order of the trial court is just and proper. Prosecution failed to prove the guilt of the accused beyond the shadow of doubt. There is nothing on record which may indicate the guilt of accused-respondent. The meat has allegedly been recovered while it was being transported. It was not going to be sold. There is no proof of any technical investigation to establish that meat was obnoxious and not fit for consumption. There is no report of the competent authority in this regard.
8. We have considered the arguments of learned A.G.A. as well as learned counsel for the accused-respondent and perused the entire record.
9. The record indicates that witness PW 1 is the member of U.P. Gau Samiti and the meat was recovered from the vehicle Tata S. It has been found that the meat was having bad odour as well as not in condition to be consumed as edible item. Witness PW 3 is the Doctor who inspected the recovered meat on the spot and declared it as not fit for consumption and if consumed, may cause diseases. It has not been shown as to how the doctor has examined the meat, except ocular observation. It has not been shown by the prosecution that under what circumstances the report of F.S.L. could not be called for. In view of the above, it is apparent that the prosecution could not produce the substantial evidence to prove this case against accused-respondent. The judgment and order of trial court is just and proper. The view taken by the trial court is probable and the same was with proper reasoning.
10. In the cases where accused are acquitted by giving benefit of doubt or in absence of cogent and incriminating evidence, while deciding the application for leave to appeal, it has to be kept in mind by the appellate court that when the reasons given by the trial court for recording acquittal are good and sturdy, the High Court should not set aside the order of acquittal. In other words, it can be said that where the reason of the trial court for acquitting the accused is well in conformity with the evidence and material on record, the High Court should not reverse the order of acquittal.
11. It has been held by Hon'ble Supreme Court in the case of Ramanand Yadav Vs. Prabhunath Jha, AIR 2004 SC 1053 :
"(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(2) The High Court has the power to reconsider the whole issue, reappraise the evidence, and come to its own conclusion and findings, in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court had to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.
(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(6) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box.
(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.
(8) Unless the High Court arrives at definite conclusion that the findings recorded by trial court are perverse, it would not substitute its own view on a totally different perspective.
(9) The appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference."
12. Hence, no interference is called for with the order of acquittal, unless the approach of the lower court in appreciating evidence is perverse or the case is vitiated by some manifest illegality or the conclusion recorded by the court is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse.
13. For the aforesaid reasons, we are of the considered view that the impugned judgment is well discussed and based on proper reasoning. The view taken by the trial court is possible and no perversity or illegality is found. Therefore, the prayer for leave as mentioned in the application under Section 378 (3) Cr.P.C. is rejected.
14. The application under Section 378 (3) Cr.P.C. is, accordingly, rejected. Consequently, the memorandum of appeal does not survive and is hereby dismissed.
Order Date :- 28.4.2022 ML