Dharm Narain vs State of U.P. and Others

Hon''ble Arvind Kumar Tripathi, J.—The present appeal has been filed by the appellant u/s 372 Cr.P.C. with a prayer to grant leave to file the present appeal against the order dated 15.06.2011 passed by District & Sessions Judge, Auraiya, District Auraiya, in Criminal Appeal No. 01 of 2010, arising out of case crime No. 245 of 2011, under sections 323, 504, 506 IPC, P.S. Diviyapur, District Auraiya, whereby acquitting the opposite parties No. 2 to 4. The appeal is reported to be beyond time by 170 days.

Learned counsel for the appellants submitted that by the judgment and order of acquittal dated 18.01.2010, three accused persons namely; Bade @ Rajnikant, Amit Kumar and Ashish Kumar, were convicted and sentenced under sections 323, 506 IPC, and one accused respondent Devendra has been acquitted in appeal. There are two injured in the present case, hence judgment and order of acuqittal is liable to be set aside and accused O.P. are liable to be convicted and sentenced. He further contended that the appellant is villager, he has no knowledge regarding limitation. He contacted the counsel in the month of September, 2011. Thereafter relevant papers has not been given to the lower court''s counsel on 10.10.2011. On 10.01.2012, he further contracted to the counsel and, thereafter, the appeal was prepared along with application u/s 5 of Limitation Act. There is no delebaratly delay from the side of appellant, hence application u/s 5 Limitation Act be allowed and delay be condoned and the appeal be treated to have been filed within time.

Learned AGA opposed the prayer.

From perusal of the affidavit, submission of the parties and judgment and order of acquittal dated 18.01.2010, there is no proper explanation why the counsel was not contacted in between 18.01.2010 and September 2011. thereafter, again he contacted on 10.01.2012. Hence, there is no proper explanation regarding delay. Hence the present application is hereby rejected. Even on merit, both the injured were declared hostile, who have not supported the prosecution case, hence there is no illegality in the impugned order of acquittal and the judgment is not perverse. In view of the fact, the application u/s 5 of Limitation Act is hereby rejected.