Magnu Devi vs State of U.P. and Another

Hon''ble Arvind Kumar Tripathi, J.—The present leave to appeal has been filed against the judgment and order of acquittal of the charges u/s 452, 323, 504, 506 IPC and 3(1)X SC/ST Act, P.S. Seohara, District Bijnor by impugned judgment and order dated 7.1.2012 passed by Additional Sessions Judge, Court No.2, Bijnor.

Heard Learned Counsel for the appellant, learned AGA for the State and perused the record.

Learned Counsel for the appellant submitted that the incident took place on 4.12.2008 at about 5.30 P.M. and on the next date injured Smt. Malti Devi was medically examined. The injuries were reported on her person. There was one tramatic swelling on skull, one incised wound over back, which was muscle deep, which was back of right forearm and there was contusion. The first information report was lodged on application moved u/s 156(3) Cr.P.C. However, case was proved and the injured was appeared as P.W. 1 and other witnesses were also examined including the doctor P.W. 4 Sunil Kumar. They have proved the injuries. However, the court below has committed error and acquitted accused opposite party no.2 from the charges, which is perverse and against the evidence on record.

Learned AGA opposed aforesaid prayer.

Considered the submission of counsel for the parties and perused the record. From perusal of the order, it is clear that according to prosecution case, incident took place on 4.12.2008 at 5.30 P.M. No first information report was lodged in this case. Subsequently, an application was moved u/s 156(3) Cr.P.C. before the court of Additional Chief Judicial Magistrate, court no.1 and by direction of the Magistrate, concerned the first information report was lodged. The allegation was that the opposite party no.2 entered into her house, used abusing words and assaulted by kick, fist and knife. Even earlier he tried to assault. In the present case, according to injured witness P.W. 1, there was enmity between the parties. As far as P.W. 2 and P.W. 3 are concerned, there was enmity because a complaint was lodged by wife of accused opposite party no.2 against P.W. 2 Smt. Magnu Devi in which she was released on bail. P.W. 3, Nand Ram has also admitted that wife of opposite party no.2 lodged the criminal case against him in which he was released on bail hence both the witnesses are not independent witness. They belong to the same family. In the present case, there is no independent witness to prove the incident. According to medical report, the injuries were fresh. The injured was examined on the next date on 5.12.2008 at 6.00 P.M. and if the injuries were fresh the medical report does not support the prosecution case since time is 23 hours before he was medically examined hence the trial court found that due to enmity there was chances that opposite party no.2 was implicated in the present case. As far as the offence u/s SC/ST Act is concerned, the Magistrate, concerned found that according to prosecution case, itself incident took place in side of room hence no offence is made out u/s SC/ST Act because as per allegation he used symbolic words of caste.

In view of the fact, it cannot be said that the view taken by the trial court is not possible and perverse hence no interference is required.

Accordingly, leave to appeal is hereby rejected.