Allahabad High Court
State Of U.P. vs Amit Kumar Alias Nanhe And 2 Others on 28 April, 2022
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- GOVERNMENT APPEAL No. - 237 of 2021 Appellant :- State of U.P. Respondent :- Amit Kumar Alias Nanhe And 2 Others Counsel for Appellant :- G.A. Counsel for Respondent :- Sudhakar Yadav Hon'ble Om Prakash-VII,J.
Hon'ble Narendra Kumar Johari,J.
Heard learned AGA as well as Sri Sudhakar Yadav, learned counsel appearing for the accused respondents on leave to appeal application.
The present Government appeal under Section 378(3) Cr.P.C. has been filed by the State seeking leave to appeal against the judgment and order dated 07.03.2021 passed by Additional Sessions Judge, F.T.C. No. 26, Shahjahanpur in Session Trial No. 208 of 2014 (State Vs. Amit Kumar alias Nanhe and Others) arsing out of Complaint Case No. 67 of 2010, under Sections 302/34 IPC, Police Station Sindhauli, District Shahjahanpur. By the impugned judgment and order learned trial Court has acquitted the accused respondents for the offence under Sections 302/34 IPC.
Learned AGA submitted that the order of the trial Court is against the provisions of law and evidence on record. Learned trial Court did not appreciate the evidence, which was available on record and rejected the same. The judgment and order is perverse and is based on surmises and conjuncture. The prosecution was succeeded to prove the case against the accused persons, but learned trial Court has materially erred in acquitting the accused from the charges of offence.
Learned counsel for the accused respondents has submitted that the case was based upon circumstantial evidence. There was no evidence showing the involvement of accused persons in the offence. The witnesses, who deposed are not reliable. The FIR has been lodged with inordinate delay. The application under Section 156(3) Cr.P.C. was made after a gap of about one and half month. The present appeal has no force of law. Accordingly the application under Section 378(3) is liable to be rejected.
We have considered the arguments of rival side and perused the record.
The record indicates that the matter pertains to circumstantial evidence. The informant had gone from house to the resident of Shivdevi and it has been mentioned that the witness P.W. 1 (informant) has deposed as last seen evidence of deceased with accused persons.
It has also been mentioned that accused persons had beaten the deceased before throttling. Contrary to the same the victim has been found in hanging position from the tree. The autopsy report of the doctor indicates that there was injury of ligature mark on his neck and no other injury of any assault has been found on the body of the deceased. There is no opinion about throttling. The motive of offence has not been proved. The plausible explanation of delay in moving the application under Section 156(3) Cr.P.C. has not been shown. The chain of circumstances has not been completed. Hence in above situation the view taken by the trial Court is probable and is based upon proper reasoning which is in accordance with law. The perusal of record indicates that the judgment has been passed by trial court after proper appreciation of evidence also. No perversity is found in the impugned judgment.
It is fortified in our view that the court exercising the appellate power under Section 378 Cr.P.C. has as much right to go into the evidence and appreciate the same on its own behalf, after giving due weight to the opinion of the trial court as to the facts and circumstances of the particular case. In an appeal against acquittal, the High Court should attach greater weight to appreciate all evidence by the trial judge who had the occasion to watch the demeanor of witnesses. The appellate court should be slow in reversing the order of acquittal, based on reasonable and proper findings unless judgment suffers from illegality or perversity with manifest error. Also if two reasonable conclusions are possible, on the basis of evidence on record, the appellate court should not disturb the findings of acquittal recorded by trial court.
Therefore, we are of the considered view that the conclusion drawn by the trial court is in accordance with law. No illegality or irregularity is found in the judgment. The application for leave to appeal has no force. Hence, is liable to be rejected.
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 SK Srivastava