Allahabad High Court
State Of U.P. vs Gauri Shanker And Others on 30 October, 2019
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 79 Case :- GOVERNMENT APPEAL No. - 217 of 2019 Appellant :- State of U.P. Respondent :- Gauri Shanker And Others Counsel for Appellant :- Govt. Advocate Hon'ble Ram Krishna Gautam,J.
Heard over application moved under Section 378(3) of Cr.P.C. for grant of leave to file appeal against judgment of acquittal passed by Sri Lal Chand Gupta, the then Additional Session Judge/F.T.C., Court No. 2, District Mirzapur, in S.T. No. 247 of 2005, (State Vs. Gauri Shankar & others), under Sections 367/34, 324/34, 308/34 I.P.C., P.S. Kotwali Dehat, District Mirzapur.
Learned AGA has vehemently argued that trial Judge failed to appreciate facts and law placed before it. Injured PW-2 Nanhak, was having injury over his head as well as hand, wherein, there was fracture of parietal bone and investigation had resulted submission of charge-sheet. But, trial Judge failed to appreciate facts and evidence, placed on record, thereby, passed impugned judgement of acquittal. Formal evidence Medical Officer Dr. Sharda Chandra Mishra PW-5 and Investigating Officer, have given their evidence in support of prosecution. Injured, himself, has been examined and his testimony was entered. PW-1 and PW-3, were not eye-witness account. Rather, after receiving information, they got criminal machinery put under motion. Subsequently, there son, who was injured, after gaining sense, narrated the occurrence and this injured was fully intact. Hence, this appeal with above prayer for leave.
Heard as well as gone through the impugned judgement and record, the First Information Report was got lodged by complainant Phood Chand Harijan, by way of an application submitted before the Superintendent of Police, Mirzapur. This was got registered and investigated, resulting in charge-sheet against Gauri Shankar, Basant Lal, Kripa Shankar and Bhaiya Lal for offences punishable under Sections 367, 323, 324, 308 I.P.C. Magistrate took cognizance and as the offence was exclusively triable by Court of Sessions, hence, the file was got committed to Court of Session, where from, it was made over to above Court of Additional Session Judge/Fast Track Court, Court No. 2, Mirzapur. Charges were framed and read over, denied with a claim for trial by those accused persons. Prosecution examined PW-1 informant Phool Chand Harijan, PW-2 injured Nanhka, PW-3 mother of the injured Sughra Devi, PW-4 Dr. K.N. Mehrotra, PW-5 Dr. Sharda Chandra Mishra. The genuineness of prosecution papers Ex.Ka-5, Chick F.I.R. Ex.Ka-6, G.D. Entry Ex.Ka-7, Chick Report Ex.Ka-8, G.D. Entry Ex.Ka-9, Site Map Ex.Ka-10 and Ex. Ka-11, were formally exhibited under Section 294 of Cr.P.C. Hence, its formal proof was deposed by learned counsel for the defence, therefore, they were exhibited. Statement of accused persons were recorded under Section 313 of Cr.P.C. whereupon the prosecution case was denied but injuries were admitted and were said to be owing to accident because of dash with rail, which was published in Daily Newspaper. In defence, it was filed and proved as Ex.Ka-1 and learned trial Judge after hearing both sides, passed impugned judgment of acquittal. PW-2 injured, in his testimony, in Examination-in-Chief, has said that those accused persons were under good relationship with him and he was associated as labour in their work since last three years. They were doing their labour job together and on the date of occurrence, he was taken by those accused persons for doing same labour work and then after, they assaulted. Wherein, they all were armed with weapons Gauri Shankar was armed with knife, Basant Lal with iron rod, Kripa Shankar with lathi and they all did assault by those weapons, resulting him injured. But injury found over the person of PW-2 were only two and there were injury No. 1 lacerated wound towards left side of head 5cm above left eyebrow in area of 10cm X 1.5cm X bone deep, with fresh bleeding, injuries were kept under observation, advise for X-ray was there. Crush injury of 9cm X 7cm over the left phalanges, 9cm below wrist joint with fresh bleeding, injuries were kept under observation, for which X-ray was advised and both of these two injuries were held to be of hard and blunt object and fresh, by PW-4, Medical Officer concerned. PW-5 Dr. Sharda Chandra Mishra, was the radiologist, who has proved fracture in X-ray of both of above injuries but the injury over the head, was one and the other was over the forelimb and they were said to be of hard and blunt object. No injury of knife is there and if iron rod and lathi were used by two accused persons, then this injury was over head, which could not be said as to who caused above injury nor there was accusation or evidence of assault by one or two of them, under joint mensrea, i.e. under Section 34 of I.P.C. There is material contradiction in the statement of PW-2 injured as well as PW-1 and PW-3. Accident, resulting above injury, was placed before the Court by Ex. Ka-1 and under all above facts and circumstances, trial Judge concluded with judgment of acquittal.
Apex Court in T. Subramanian Vs. State of Tamil Nadu (2006) SCC 461 has propounded if two views are reasonably possible on the very same evidence, it cannot be said that prosecution has proved case beyond reasonable doubt. Apex Court in Bhim Singh Vs. State of Haryana (2002) 10 SCC 461 that whether finding for acquittal is palpably wrong, manifestly erroneous or demonstratively insusceptible, then and only then, a judgment of acquittal is said to be perverse judgement. InK. Prakashan vs P.K. Surenderan (2008) 1 SCC 258, Apex Court had held that Appellate Court should not reverse acquittal merely because another view is possible on evidence.
On the basis of evidence placed before the Court as on record, the judgement of trial Judge was within appreciation of above evidence. There seems no illegality or irregularity. Hence, no ground for grant of leave is there.
The same is being rejected, accordingly.
Order Date :- 30.10.2019 Kamarjahan