Rajjan vs State Of U.P. and Others

Heard learned A.G.A. This case is listed as peremptorily.

The counsel for the appellant is not present.

This application u/s 5 of Indian Limitation Act has been filed with a prayer to condone the delay in filing the appeal against the judgment and order dated 18.11.2011 passed by learned Additional Sessions Judge (Ex Cadre), Court No. 23, Allahabad in S.T. No. 505 of 2003 whereby the accused respondents have been acquitted for the offence punishable under sections 147, 148, 307/149, 324/149 and 504 IPC.

This appeal has been filed beyond the period of limitation by 409 days vide order dated 7.3.2013. Counsel for the appellant prayed for and is granted two weeks time to file supplementary affidavit in this regard because the another bench of this court was not convinced with the ground taken for condoning the delay by passing the following order:

This application for grant of leave to appeal has been filed on behalf of appellant beyond time by 413 days. An application u/s 5 of the Limitation Act showing cause of delay in filing the application for grant of leave to appeal ad appeal against acquitted supported with an affidavit has been filed.

In our mind, the grounds for condoning the delay are not convincing and has not been shown sufficiently.

Learned Counsel appearing on behalf of the appellant prays for and is granted two weeks'' time to file supplementary affidavit in this regard.

List this appeal immediately thereafter.

In pursuance of the order dated 7.3.2013 the counsel for the appellant has not filed any supplementary affidavit. The following grounds have been taken to condone the delay:

That trial of both case were conducted together vide Session Trial No. 18 of 2001 (State of U.P. Vs. Kallu and others) and Session Trial No. 505/2003 (state of U.P. Vs. Shivkant and others).

That the appellant and co-accused were convicted in Session Trial No. 18 of 2001 thereafter they preferred Criminal Appeal No. 6903

of 2011 & 6904 of 2011 whereas the accused persons of Crime No. 88A of 1999 were acquitted vide order dated 18.11.2011 passed by court concerned.

That in this case the co-accused Kallu and Sushil were released on bail vide order dated 14.03.2012 passed in Criminal Appeal No. 6903 of 201 whereas the bail application of the appellant was rejected as not pressed.

That when the deponent contacted to the counsel to file the second bail application on behalf of appellant in the month of Feb. 2013 then he was advised to file the instant criminal appeal against the acquittal order of he accused person of Crime No. 88-A of 1999.

That thereafter the deponent obtained the certified copy of the order dated 18.11.2011 and some relevant papers of crime No. 88A of 1999 with his local counsel and came to the office of the present counsel on 27.02.2013, thereafter the instant case was drafted and is being filed before this Hon''ble Court.

That there is a cross case of the instant case in which the co-accused persons have been convicted and the court has not decided that which party is aggressor.

that in view of facts and circumstances of the case stated as above, it is expedient in the interest of justice that this Hon''ble court may kindly be pleased to condone the delay and hear the case on merit, otherwise the appellant shall suffer irreparable loss and injury.

The above mentioned ground taken by the appellant are not sufficiently explaining the delay in filing the appeal. But we are cautious to the fact that only on the ground of delay in filing the appeal injustice may not be done with the appellant for which we feel it proper that the merits of the case may also be considered. The impugned judgment reveals that the FIR of this case has been lodged as cross case of the accused respondents against the appellant and others alleging that on 7.11.1999 at about 11.00 A.M. the first informant Rajjan, his brother Kallu and Sushil had gone to cut the tree, the accused respondents Chhedi Lal, Shivakant, Babau and Lalla armed with lathi, danda came there all of sudden, they hurled the abuses and asked not to cut the tree. When the first informant denied to do so, they became annoyed and with intention to commit the murder beaten the first informant, his brother Kallu and Sushil. In self defence they used lathi blows causing the injuries to the accused respondents. The accused respondents Lalla discharged the shot by country made pistol towards the first informant with intention to commit his murder but luckily nobody sustained any injury. On hue and cry the father of the first informant Kamlesh and other persons came at the place of the incident who intervened in the matter. Its information was given to the police station Lalapur and medical examination was done in Government hospital. But their FIR was not written then in pursuance of the order passed by this court the FIR was written in which after completing the investigation the final report was submitted, the same was protested then the learned Magistrate concerned took the cognizance and summoned the accused persons to face the trial for the offence punishable under sections 147, 148, 307, 323, 504 IPC, thereafter the case was committed to the court of sessions where that charges under sections 141, 148, 307/149, 323/149 and 504 IPC were framed. In support of the prosecution version three witnesses namely P.W. 1 Rajjan, who is the first informant of this case, P.W. 2 Kallu (the injured), P.W. 3 Sushil Kumar (the injured) have been examined. The statements of the accused respondents recorded u/s 313 Cr. P.C. have been recorded. In defence, from the side of the accused persons no witness has been examined. The P.W. 1 Rajjan who is the first informant and injured also deposed that in the morning of 7.11.1999 there was dark, that that time he was in village Ashwanipur, helmet of Goesara, the marpeet had not taken place in his presence, when he came to his house, he was informed about the incident by his brother Kallu and Sushil but they have not disclosed as to how they have sustained injuries, on saying the villagers he gave an application to the police station against the accused respondents, thereafter the investigation was done and final report was submitted by the I.O.. According to the deposition of P.W. 2 Kallu there was darkness, all of sudden, some persons assaulted by using lathi, danda blows and consequently he sustained injuries but he could not identify the persons who caused injuries. He saw the accused respondents in the court and stated that they have not caused injuries on his persons. P.W. 2 Kallu was declared hostile. According to the deposition of P.W. 3 Sushil Kumar Shukla who is also injured witness, the alleged occurrence has taken place in the month of November, 1999 at about 5.00 A.M. The time of the alleged incident he had gone to village Ashwanipur to cut the Babool, after cutting the Babool and carrying the same he was returning to his house but from the back side somebody used the lathi blows on his person. He could not identify the person who caused the injuries on his person, after sustaining the injuries he fell down, he categorically stated in the court that the accused respondents have not caused any injury on his person, he was declared hostile. In such circumstances, where three witnesses have been examined from the side of the prosecution, all the witnesses were injured witnesses, but they have not supported the prosecution story. In such circumstances, the trial court was having no option except to acquit the accused respondents. The impugned judgment by which the accused respondents have been acquitted also does not require any interference. Considering the same, there is no good ground to condone the delay in filing the appeal, therefore, the prayer for condoning the delay in filing the appeal is refused.

Accordingly this application is dismissed.

Since the application u/s 5 of Indian Limitation Act has been dismissed today, this application for granting the leave to appeal is also dismissed. Since the application u/s 5 of Indian Limitation Act has been dismissed today, this appeal is also dismissed.