State of U.P. vs Yogesh Verma and Others

Heard learned counsel for the State.

This application u/s 378(3) Criminal Procedure Code has been moved against judgment and order dated 19.08.2011 passed by learned Additional Sessions Judge/ Special Judge (Essential Commodities Act), Lakhimpur Kheri in Sessions Trial No. 1084 of 2004 whereby respondents No. 1, 2 & 4 have been acquitted of the charges levelled against them under Sections 302/34 & 307/34 IPC and respondent No. 3 has been acquitted of the charges levelled against him under Sections 302/149 & 307/149 IPC.

We have gone through the judgment as well as record of the court below.

It comes out that the incident had taken place on 29.09.2003 at about 01.45 pm wherein role assigned to the respondents is to the effect that they came on the spot with firearm and fired upon Dheeraj Kashyap, the decease and brother of P.W.-3, who after receiving firearm injuries succumbed to the same. Even four persons also received gun shot injuries out of which Vishal Mishra, who had received two firearm injuries, being complainant of the case was examined as P.W.-1. Apart from it, there is also evidence of Sachin Srivastava (P.W.-2) who is alleged to be eyewitness.

Argument advanced by learned counsel for the State is that prosecution story finds full support from the evidence of P.W.-4, the Doctor, who had examined Vishal Mishra on 29.09.2003 itself and found two firearm injuries with wound of entries. Further argument is that the incident is of broad day light, there being injured witnesses and medical evidence supports the prosecution story but inspite of it learned Sessions Judge has acquitted the respondents of the charges levelled against them on flimsy grounds and has gone to the extent showing presence of P.W.-1 to be doubtful since Chitthi Majrubi and original medical examination report was not on record. It is also a case where although FIR was lodged against five persons, charge sheet was filed against respondent Nos. 1 to 3 and respondent No. 4 was summoned and tried along with accused persons during the course of trial u/s 319 Criminal Procedure Code and case of one of the co-accused, namely, Ravi Mishra has been separated since he has been found to be Juvenile but the court below has passed the judgment and order of acquittal not only on the aforesaid grounds but also on the ground that there was no motive put forward by the prosecution for the commission of aforesaid crime. It has also been argued that since the incident is of broad day light and there being injured witnesses, the motive part losses its significance and the findings of acquittal recorded by the court below is based on presumptions and on incorrect appreciation of evidence.

We find force in the argument of learned counsel for the State.

Accordingly, prayer for grant of leave to appeal is allowed.