Allahabad High Court
State Of U.P. vs Noor Mohammad And Others on 16 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 2363
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 79 Case :- GOVERNMENT APPEAL No. - 170 of 2019 Appellant :- State Of U.P. Respondent :- Noor Mohammad And Others Counsel for Appellant :- Govt. Advocate Hon'ble Ram Krishna Gautam,J.
This Government Appeal has been proposed, under Section 378(3) of Code of Criminal Procedure, with an application for grant of leave to appeal against judgment of acquittal passed by Court of Special-Judge, EC Act/ Additional District and Sessions Judge, Bareilly, in Criminal Appeal No. 67 of 2001 Noor Mohammad vs. State of U.P. , wherein the judgment of conviction and sentence, passed by Court of Judicial Magistrate, North Eastern Railway, Bareilly, has been altered and convicted persons have been acquitted of charge of offence punishable, under Section 3 of Railway Property Unauthorized Occupation Act, with this contention that the Appellate Court failed to appreciate facts and law placed before it, thereby, judgment of acquittal is a result of perversity whereas, learned Trial Magistrate has appreciated facts and law and has passed impugned judgment of conviction and order of sentence made therein.
An appeal under Section 374 Cr.P.C. was filed by convict appellants against judgment of conviction and sentence, dated 17.7.2001, passed by the Additional Chief Judicial Magistrate (N.E.R.), Bareilly and it was transferred to above Court of Special-Judge, EC Act/Additional District and Sessions Judge, Bareilly as Criminal Appeal No. 67 of 2001 Noor Mohammad and others vs. State of U.P. wherein, learned First Appellate Judge passed impugned judgment of acquittal against it.
Learned AGA has argued that there was a case of recovery of Railway property from place of occurrence kept under 4 gunny bags and it was seen to be thrown by two persons who were consistently identified by the employee of Railway Protection Force. They were Noor Mohammad, Jawahar and one other accused person had also thrown bag having railway property in it and he was subsequently identified in identification parade, hence, there was a huge recovery of property of Railway and witnesses have identified the same during trial whereupon, learned Magistrate had passed judgment of conviction with order of sentence. But First Appellate Judge failed to appreciate facts and law placed before it and on the basis of perversity, passed impugned judgment of acquittal, hence, this appeal with above prayer for grant of leave for filing this appeal.
A perusal of impugned judgment reveals that there was no instant arrest of any accused persons nor there was any recovery of stolen article from their possession. Three persons were seen carrying gunny bag over their shoulder and on being enquired by RPF, they had thrown those bags and fled from spot. They could not be apprehended.
The RPF personnel recovered those gunny bags in which broken pieces of copper wire with broken and a railway brackets were kept which were said to be railway property but the two witnesses PW-1 and PW-2 who were witness for proving this fact that recovered articles were property of railway have said in their cross-examination that this electric wire was not manufactured by railway, rather it was purchased from private concern and it was available with private concern. Meaning thereby, the same being exclusively of railway and in no circumstance available with any other person, could not be proved beyond doubt.
The identification parade was conducted after a considerable delay; that too with no protection that the chance for identifying in between may never exist, was there. Hence, on the basis of above testimony, the First Appellate Judge passed impugned judgment, which was based on evidence on record. The conviction and sentence of Additional Chief Judicial Magistrate was result of perversity, which was corrected by First Appellate Court. The impugned judgment does not suffer from any illegality or irregularity.
Hence, no ground for grant of leave to file proposed appeal is there.
Accordingly, Application to grant leave for filing appeal, being devoid of merits, stand rejected.
Order Date :- 16.9.2019 Chandan