Allahabad High Court
State Of U.P. vs Smt. Indresh And 2 Others on 22 August, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- GOVERNMENT APPEAL No. - 614 of 2021 Appellant :- State of U.P. Respondent :- Smt. Indresh And 2 Others Counsel for Appellant :- G.A. Hon'ble Vivek Kumar Birla,J.
Hon'ble Shiv Shanker Prasad,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Mr. Kailash Prakash Pathak, learned AGA appearing for the appellant-State of UP and perused the record.
2. Present government appeal has been preferred against the judgement and order dated 11th February, 2021 passed by the Special Judge (POCSO)/Additional Sessions Judge-III, Hapur in Session Trial No. 310 of 2016 (State of U.P. Vs. Smt. Indresh & 2 Others), arising out of Crime No. 61 of 2015, under Sections 452, 236Ka, 504 and 506 I.P.C. Police Station-Gadhmukteshwar, District-Hapur, whereby all the accused-opposite parties, who are three in number, have been acquitted from the charges under Sections 452, 236Ka, 504 and 506 I.P.C.
3. Prosecution story, in brief, is that the complainant/-P.W.1, namely, Mangat/Mangal has been working at Rita's place for a long time. When the accused/opposite parties, namely, Indresh, Ranshu Rani and Ram Gopal forbade the complainant to work at the place of Rita, as there is enmity between them for which various litigations are going on, then the complainant told them that he cannot stop working at the place of Rita, as she gives his wages in return for his work on time, from which expenses of his family fulfills house. On this matter, they threatened the complainant that if he does not stop working at the place of Rita, they will not leave him alive. As the complainant has not stopped the working at, on 11th February, 2015 at about 10:00 a.m., the accused-opposite parties entered into his house forcefully and started abusing the complainant and his wife, namely, Anita. They also threatened that if he does not stop working at Rita's place, they will kill them. When the complainant objected , they, after closing the door of his house, tried to beat the complainant and his wife. When the daughter of the complainant, namely, Jyoti aged about six years, started crying on hearing the noise of her parents, then the accused Ram Gopal and Anshu Rani instigated the accused Indresh to stop the crying of Jyoti on which the accused Indresh threw Acid on the daughter of the complainant due which she sustained acid injuries on her hand. On hearing the screaming of the complainant, his wife and daughter, Babali and other neighbors of the complainant came there. On seeing Babali and other neighbous, the accused-opposite parties ran away threatening them to face evil civil consequences. On the complaint of the complainant, a first information report has been lodged against the accused-opposite parties, which has been registered as Case Crime No. 61 of 2015, under Sections 452, 326-Ka, 504 and 506 I.P.C. Thereafter the investigation in the matter was done and the charge-sheet was submitted against them under Sections . After submission of the charge-sheet and framing of charge against the accused-opposite parties, the trial was proceeded by the trial court. Resultantly, the impugned judgment and order has been passed.
4. In support of prosecution case, PW-1/complainant, namely, Mangat/Mangal, P.W.-2, namely, Anita (wife of the complainant), P.W.-3, namely, Kumari Jyoti (daughter of the complainant/victim), P.W.-4, namely, Babali, P.W.-5 Constable Omveer Singh, P.W.-6 Dr. Ravindra Kumar, P.W.-7 Dr. Sujeet Singh and P.W.-8 Sub-Inspector Sateyndra Kumar were produced and examined before the Court below.
5. In order to prove its case, the prosecution also relied upon documentary evidence, which were duly proved and consequently marked as Exhibits. The same are cataloged herein below:-
The written letter of the complainant was marked as Exhibit-Ka-1, Chik first information report was marked as Exhibit Ka-2, carbon copy of G.D. was marked as Exhibit Ka-3, medical report was marked as Exhibit Ka-4, referring slip was marked as Exhibit Ka-5, the medical report paper no.13 was marked as Exhibit Ka-6, cite plan was marked as Exhibit Ka-7, and the charge-sheet was marked as Exhibit Ka-8.
6. Apart from the above, the statements of the accused-opposite under Section 313 Cr.P.C. were recorded by the court below.
7. The impugned judgment of acquittal was passed on the ground that the prosecution has failed to prove his case that the accused opposite parties have thrown acid on the daughter of the complainant, namely, Jyoti, who is six years old due to which she sustained injuries on her hand. There was huge delay in recording the statements of eye witnesses i.e. P.W.-3 and P.W.-4, namely, Kumari Jyoti (victim) and Babali respectively by the Investigating Officer under Section 161 Cr.P.C., for which no plausible explanation has been given by the prosecution side and for the same best known to the prosecution, the statements of both eye witnesses i.e. P.W.-3 and P.W.-4 have been recorded by the Investigating Officer only after receiving the report of Forensic Science Laboratory and thereafter the charge-sheet has been submitted. It was also recorded in the order of acquittal by the trial court that the Investigating Officer did not inspect the school of Kumari Jyoti as to whether she went to the school on the date of incident i.e. 11th February, 2015. As the incident took place on 11th February, 2015 at about 10:00 a.m. and the P.W.-3/victim/injured witnesss herself stated in her examination-in-chief that on the date of incident she went to her school and was not present at her residence. Her school is closed at about 12:00 noon, therefore, it is impossible to believe that at 10:00 a.m. on the date of incident, the accused-opposite parties had thrown acid on P.W.3/victim in her house, when she was not present at her residence. It has been further recorded that P.W.-1 i.e. the complainant, in his examination-in-chief, himself clearly stated that the accused-opposite parties abused the complainant in front of their house and at that time, the daughter of the complainant i.e. P.W.-3 was present at her house and when the complainant and his wife i.e. P.W.-1 and P.W.2, on hearing the sound of crying of their daughter, went inside their house, they saw that a bottle of acid was lying on the floor and thereafter they took her to the hospital but no document had been produced by the prosecution as to in which hospital the victim i.e. P.W. 3 has been treated. The Investigating Officer, while preparing the site plan, did not find any mark of acid on the floor as alleged by the prosecution. The trial court also found that P.W.2 i.e. mother of the victim, in cross-examination, had stated that when the accused Indresh was pouring acid on her from a distance of two steps, then her daughter came in the middle due to which the acid fell on her and her small finger of her right hand got burnt. Both the doctors, who examined the victim i.e. P.W.3, in their examination-in-chief have stated that that there were blisters in the axillary finger of the right hand of the victim. On throwing acid, firstly the thumb of the hand should be burnt and not the last small finger of the hand. The term of the injury suffered by the victim i.e. P.W.-2 reflects that the same could not ascertained in case of acid by somebody else. Under such circumstances, the Court below found that the prosecution could not prove his case beyond doubt and the judgement of acquittal was passed.
8. Challenging the impugned judgment, Mr. Kailash Prakash Pathak, learned AGA submits that there was cogent evidence to convict the accused persons herein. He next submits that the trial court has not properly appreciated the evidence of the prosecution and has decided the case only on the basis of conjectures and surmises. He further submits that the trial court has committed gross error in disbelieving the testimonies of the witnesses of the prosecution and given importance to the version fo the defence. The trial court has applied a different concept which is now alien to the principles of appreciation of the evidence in criminal trial. On the cumulative strength of the aforesaid, Mr. Pathak, the learned A.G.A. submits that as the judgment and order of the acquittal of the accused-opposite parties is both against the facts and evidence on record, the same requires serious consideration and reversal and the accused persons herein are liable to be convicted.
9. We have considered the submissions and have perused the record.
10. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
11. In the case of Bannareddy and others vs. State of Karnataka and others, reported in (2018) 5 SCC 790, in paragraph 10, the Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities"
12. In Jayamma vs. State of Karnataka, reported in 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court.
13. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, reported in 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.
14. Similar view has been reiterated by the Apex Court in Rajesh Prasad vs. State of Bihar and another, reported in (2022) 3 SCC 471.
15. On perusal of record, we find that there is material contradiction in the statements of the witnesses. One hand, the complainant/P.W.1 himself in his examination-in-chief has stated that is only after hearing the crying of his daughter i.e. P.W.3, he went to the spot along his wife i.e. P.W.2 and found that a bottle of acid was lying on the floor of his house and the victim Jyoti had suffered acid injury. However, as per site plan, no such bottle of acid or any kind of acid was found by the Investigating Officer. Further, the injured witness i.e. P.W.3, in her examination-in-chief herself has stated that on the date of incident i.e. 11th February, 2015, she had gone to her school and her school closed at 12:00 noon, whereas the incident as per the prosecution took place at 10:00 a.m. on the same day. We further find that the injured was medically examined by P.W.-7, namely, Dr. Sujeet Singh, who his examination-in-chief has stated that the victim alone came to the hospital on the next date of incident i.e. 12th February, 2015 at 09:00 p.m. (night). P.W.-7 further stated that after examining the victim, he found that the victim had burn marks on her right hand and there was blisters on her last little finger. How is it possible that a six year old girl who lives with her parents and whose hands are burnt by acid, herself went to the hospital and got treated that too on the next day.
16. In view of the aforesaid, as reflected from perusal of the evidence, we find that the court below has taken possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above.
17. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
Re: Government Appeal
1. Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by order of date, the present government appeal is also dismissed.
(Shiv Shanker Prasad, J.) (Vivek Kumar Birla, J.)
Order Date :- 16.8.2022
Sushil/-