Allahabad High Court
Mahesh Kumar Jatav vs State Of U.P. And Anr on 24 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. - 227 of 2012 Applicant :- Mahesh Kumar Jatav Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Kumar Dhananjay Counsel for Opposite Party :- Govt. Advocate,D.S.Pandey Hon'ble Harsh Kumar,J.
Heard learned counsel for the appellant, learned A.G.A. and perused the record.
The present appeal has been filed by the first informant-appellant against the order dated 9.5.2012 passed by Special Judge, S.C./S.T. Act, District Ghaziabad in S.S.T. No.80 of 2002, Case Crime No.09 of 1997, P.S. Niwadi, District Ghaziabad, acquitting the accused respondent from the charges under Sections 323, 504 I.P.C. and 3(1)(x) of S.C./S.T. Act.
Learned counsel for the appellant contends that it was proved from the evidence on record that on 16.2.1997 the mother of appellant went to the house of accused-respondent no.2 for getting Rs.5,500/- which were borrowed by accused respondent and when his mother demanded the amount at the house of accused-respondent, he abused her with the caste name and committed mar-peet; that it was proved from the evidence on record that the incident in question did take place as per averments made in F.I.R.; that learned trial court has acted wrongly in disbelieving the prosecution evidence merely on the ground of one week delay in lodging of F.I.R.; that the appellant is a poor person and the delay in lodging the F.I.R. was not intentional; that the prosecution case was corroborated by the statement of first informant, who supported the version made by victim, his mother.
Per contra, learned A.G.A. supported the impugned judgment and order.
Upon hearing learned counsel and perusal of record as well as lower court record which has been summoned, I find that the trial court has discussed and analysed prosecution evidence in detail. Though in the F.I.R., it has not been contended that as to when the above amount of Rs.5,500/- was borrowed by respondent, but the first informant in his statement has tried to fill-up the lacuna by stating that the money was advanced about two years before the incident. In the F.I.R. there is no whisper as to when the amount of Rs.5,500/- was borrowed by accused-respondent. However, it has been contended that the mother of first informant went to the house of accused-respondent for demanding back the above amount of Rs.5,500/- on 16.2.1997 when the incident did take place and the several persons of village came for her rescue and saved her. It is pertinent to mention that in order to prove its case as well as charges against the accused-respondent, the prosecution has produced the victim Smt. Kunwar and first informant Mahesh Kumar Jatav as witnesses of fact and none of the independent witness, or villager who allegedly came for her rescue, has been produced to corroborate the prosecution version. It is also pertinent to mention that first informant is not an eye witness of the incident and at page 2 of his cross examination he has stated that he did not see the incident in question and has no knowledge as to which person committed mar-peet and which person abused because he was not on the spot. It is also noteworthy that it has come in the cross examination of victim, the mother of first informant that the accused-respondent was her tenant over a shop and had filed a civil suit for injunction in respect of the above shop. In the circumstances, the contention of lending of Rs.5,500/- by the mother of first informant to the accused-respondent becomes highly improbable.
It is settled principle of law that if at the time of passing an order of acquittal two opinions are possible on some point and the trial court has taken one in passing the acquittal order, the appellate court may not interfere with the order of acquittal and take another view unless there is some glaring mistake of law or perversity in 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 the discussions made above, I find that in passing the impugned order of acquittal the learned trial court has not committed any mistake. Learned trial court has rightly disbelieved the prosecution case for unexplained delay of seven days in lodging of F.I.R. and the nature of superficial injuries on the person of mother of first informant which were opined to be one week old by the medical officer, who was also not produced in evidence.
In view of discussions made above, I have come to the conclusion that the learned counsel for the applicant-appellant has failed to show that the learned trial court has not considered any evidence on record or has misread any evidence on record or to show any legal infirmity, incorrectness or perversity in the finding given in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the acquittal order and substituting it with conviction order. The application u/s 372 Cr.P.C. has no force and is liable to be dismissed.
The application u/s 372 Cr.P.C. for leave to file appeal is dismissed accordingly and the appeal also stands dismissed.
Order Date :- 24.3.2017 Kpy