BULU vs STATE OF U P AND 4 OTHERS

Heard learned counsel for the applicant, learned AGA for the State.

The application for leave to appeal has been moved for permission to file an appeal against the impugned judgment and order dated 3.12.2016 passed by Additional Sessions Judge, Court No.3, Budauan in S.T. No.410 of 2014 in N.C.R. No.07 of 2012, (Smt. Bulu Vs. Yashpal and others), acquitting the opposite party nos.2 to 5 from the charges under sections 323/34, 504 and 506 IPC.

Learned counsel for the complainant-appellant contended that the complainant has proved her case by the evidence of complainant and two other witnesses, all of whom corroborated the prosecution case; that the learned trial court has acted wrongly and illegally in acquitting the accused-persons by giving them benefit of doubt; that it is proved from the evidence on record that as many as four injuries were sustained by the complainant Smt. Bulu, when she had gone to make a complaint with accused-persons regarding the drainage water passing over her land; that on the complaint made by the complainant, accused-persons beaten her with lathi, dandas and when her husband came for rescue, he was also beaten and accused-persons also damaged the shop and house of complainant; that the learned trial court has acted wrongly in holding that the complaint case has been filed as a matter of counter blast to case crime no.1 of 2012, under section 307 IPC, regarding alleged attempt made by Girish Sarkar, the husband of complainant, on the life of Neeraj, the son of accused-respondent Tularam, by causing by bullet injury on left side of his chest on 6.1.2012; that it was proved from the evidence on record that information of the incident in question was given by complainant at police station concerned on 10.1.2012, upon which N.C.R. case no.7 of 2012, under sections 323, 504 and 506 IPC was registered; that the applicant has every hope of success in appeal; that the impugned order is liable to be set aside and the accused-persons are liable to be convicted.

Per contra, learned AGA supported the impugned judgment and contended that the appeal has been filed on wrong and baseless allegations and is liable to be dismissed.

Upon hearing learned counsel and perusal of record, I find that the learned trial court has discussed and analyzed the prosecution evidence in detail. It is pertinent to mention that in N.C.R. case on application under section 155 (2) Cr.P.C., the investigation was ordered by Magistrate in this case but on completion of investigation, final report was submitted and on the protest petition moved by complainant, the case was treated as complaint case and process was issued against the named accused-persons. The trial court has found that the complainant-appellant in her statement on oath has not only reiterated the averments made in complaint, but has also given evidence to shield her husband in case crime no.1 of 2012, under section 307 IPC and has stated that the accusedpersons beaten him with lathi, danda and when her husband Girish Sarkar came for her rescue, accused-respondent Tularam fired at him with an intention to cause his death, but per chance the fire hit his own son Neeraj and then the accused-respondent Tularam left with his son Neeraj. It is also pertinent to mention that in the N.C.R. relating to this complaint case, it has been contended that husband of the complainant when came for her rescue, was also beaten and other persons arrived there, and the shop and house of complainant were also damaged but the above averments have not been supported in her statement on oath by the complainant and further P.W.2 Girish Sarkar, the husband of complainant-appellant in his statement on oath has not dared to state that he was also beaten by the accused-persons. Dr. K.K. Sharma, who is alleged to have examined the injuries of complainant-appellant Smt. Bulu on 10.1.2012 has stated on oath that he being emergency Medical Officer in District Hospital, Budaun examined the complainant at 4:55 p.m. on 10.1.2012 and found four injuries upon her person, which were caused by hard and blunt object, were about 5 days old and X-ray of injury nos.1 and 2 was advised. It is not disputed that no X-ray was conducted and there is no X-ray report on record. The trial court has also noted that Medical Officer has stated in his statement on oath that the injuries of complainant-appellant may be sustained by falling on some hard object and in some other manner also. It is pertinent to mention that all the four injuries are simple in nature. It is highly improbable for a Medical Officer to ascertain the duration of injuries correctly after a period of 5 days and the duration so mentioned in the injury report, may not be be believed to be true. Otherwise also, the duration mentioned by the Medical Officer, may have 6 hours variation, either side according to Medical Jurisprudence and so the observation of Medical Officer about injuries being 5 days old, may not be accepted. It is also pertinent to mention that neither complainant nor any of her witnesses could dare to make any whisper to support the allegations of damage caused to complainant''s house by the accused-persons. The trial court after analyzing all evidences on record has found that N.C.R. of the incident was registered after 4-5 days and improvements were made during evidence in complaint case (after submission of final report) and the complainant-appellant has failed to prove the charges against accused-persons by any reliable, cogent, trustworthy and independent evidence beyond reasonable doubt.

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 discussions made above, I have come to the conclusion that the learned counsel for the applicant has failed to show any legal infirmity, incorrectness or perversity in the findings 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 378 (4) Cr.P.C. has no force and is liable to be dismissed.

The application u/s 378 (4) Cr.P.C. for leave to file appeal is dismissed accordingly and the appeal also stands dismissed.