Dismissed

State of U.P. v. Gajraj

Allahabad HC23 Dec 2021GOVA/1000295/2008

Case brief

AI extract

What is this about?

In a criminal appeal under Section 378 Cr.P.C., the High Court rejected the State's application for leave to appeal against the acquittal of Gajraj. The court held that the prosecution failed to prove his guilt beyond reasonable doubt, as corroborated by documentary evidence placing him at a different location.

What did the court decide?

Application for leave to appeal rejected and memorandum of appeal dismissed.

State of U.P. Vs Gajraj — Murder and Culpable Homicide | Allahabad HC (2021)

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Chief Justice’s Court Additional Cause List Serial No. 9

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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(Lucknow)

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*******

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U/s 378 Cr.P.C. No. 295 of 2008

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State of Uttar Pradesh ...Applicant/appellant

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Through : Mr. Dhananjay Kumar Singh, Additional Government Advocate

v/s

Gajraj

....Opposite parties

CORAM : HON'BLE RAJESH BINDAL,CHIEF JUSTICE HON'BLE NARENDRA KUMAR JOHARI, JUDGE

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ORDER

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NARENDRA KUMAR JOHARI, J.

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The present Criminal Misc. Application under Section 378 (3) Cr.P.C. has been filed by the State seeking leave to appeal against the judgment and order dated 02.06.2008, passed by Additional Sessions Judge, Court No.6, Sitapur in S.T. No.423 of 2003, arising out of Case Crime No.68/2003, under Sections 147, 148, 149, 323, 307, 302 I.P.C. and Section 25 (1-B) of Arms Act, Police Station Machchrehta, District Sitapur. By the impugned judgment and order, the trial court convicted accused persons Vijaykant, Susheel, Bharose, Ashok, Santosh Kumar under Sections 148, 323/149, 302/149, 307/149 IPC but acquitted accused Vijaykant for the offence under Section 25 (1-B) of Arms Act. Learned trial court acquitted accused Gajraj from the charges under Sections 148, 323/149, 302/149, 307/149 IPC.

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The brief facts of the case are that on 24.03.2003, accused persons Vijaykant, Ram Bharose and Avadhesh had gone to town Machchrehta to see the fair (Dasva Mela), where they misbehaved with

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2 U/s 378 Cr.P.C. No.295 of 2008

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ladies, consequently, they were beaten by the general public. After returning from the fair, accused Vijaykant told his father that he had been beaten in the fair on the pointing out of Alha S/o Ram Avtar. According to Tehrir, on the same day, at about 9.00 P.M., when Ram Avtar and Sharda Bux were sitting near the house of Buddha, accused persons Gajraj, Sushil, Vijaykant, Sandeep, Santosh and Avadhesh started beating them. They were carrying country made pistols and guns in their hands. On the cry of Ram Avtar, Ram Bux came out of his house, then accused persons Vijaykant and Sushil opened fire on Ram Bux by their country made pistols with intention to kill him, which hit Ram Bux. After receiving firearm injury, Ram Bux fell down and died on the spot. In the incident, wife of Vishwambhar, namely, Sushila Devi also received firearm injury. The occurrence had been witnessed by Govind and Balak, who were residents of the same village.

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On the basis of a written application, an F.I.R. was lodged at Police Station Machchrehta against accused persons under Sections 147, 148, 149, 323, 307, 302 IPC, vide Crime No.68 of 2003.

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After completion of investigation, charge sheet was submitted in the court against the accused persons Vijaykant, Susheel, Sandeep, Bharose, Ashok, Santosh and Avadhesh under Sections 147, 148, 149, 323, 307, 302 IPC. Charge sheet under Sections 25 (1-B) of Arms Act was also submitted against accused Vijaykant. Learned Magistrate took cognizance and committed the case to the Sessions court, where charges under Sections 148, 323, 302/149, 307/149 IPC were framed against accused persons. Charge under Section 25 (1-B) of Arms Act was also framed against accused Vijaykant. Accused persons denied the charges, pleaded not guilty and claimed trial. The records of accused Sandeep and Avadhesh were sent to Juvenile Justice Board for hearing.

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In the trial, on behalf of prosecution, PW 1 Bishvambhar Dayal, PW 2 Sushila, PW 3 Ram Avtar, PW 4 Balak Ram, PW 5 Shri Govind, PW 6 Head Moharrir Puttu Lal, PW 7 Dr. A.K. Nigam, PW 8

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3 U/s 378 Cr.P.C. No.295 of 2008

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Dr. Rabindra Singh, PW 9 Inspector R.K. Rai, PW 10 Kaushal Kishore, PW 11 Constable Shrawan Kumar, and PW 12 Vashisth Narayan deposed as prosecution witnesses.

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In their statements under Section 313 Cr.P.C., accused persons denied their involvement in the offence and submitted that they had been falsely implicated in the case. Accused Gajraj stated that on the date of occurrence, he was working as stenographer in the court of Civil Judge, Junior Division, Mahmoodabad and till 8.00 P.M. he was typing the order dictated by the Presiding Officer of the Court. In defence accused persons produced witnesses Krishna Kumar as DW 1 and Santosh Kumar Bajpai as DW 2.

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Learned trial court, after considering the case on merit, by impugned judgment convicted accused persons Vijaykant, Susheel, Bharose, Ashok, Santosh but acquitted accused Gajraj by holding that prosecution failed to prove its case against him beyond shadow of doubt. The State has filed the present application seeking leave to appeal against the acquittal of Gajraj.

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Learned A.G.A. has submitted that the trial court after relying the prosecution evidence had convicted the accused persons Vijaykant, Susheel, Bharose, Ashok, Santosh, on the other hand had acquitted the accused Gajraj, which is illegal. Gajraj was also named in F.I.R. along with other accused persons and showing his involvement, the witnesses of fact have given evidence in trial court. Learned trial court did not consider the evidence of prosecution properly and wrongly relied upon the defence evidence, therefore, the order of trial court being based on surmises and conjecture, is liable to be set aside, and the application for leave to appeal deserves to be allowed.

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Heard learned A.G.A. Mr. Dhananjay Kumar Singh and perused the record.

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The record indicates that learned trial court after proper scrutiny of evidence held that the prosecution witnesses were

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4 U/s 378 Cr.P.C. No.295 of 2008

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trustworthy and by relying their evidence concluded that the prosecution had succeeded to prove its case against accused persons Vijaykant, Susheel, Bharose, Ashok, Santosh without any doubt and, accordingly, convicted and sentenced them under Sections 148, 323/149, 302/149, 307/149 IPC. So far as involvement of accused Gajraj was concerned, PW 1 Vishwambhar Dayal in his statement had stated that although Gajraj had not committed the murder but he was involved in the occurrence. The witness further stated at page No.8 of his statement that Gajraj was not residing in the village, rather at the time of occurrence, he was residing at the place of his employment. He was working as Stenographer in Mahmoodabad. The above fact regarding the residence of Gajraj was corroborated by the oral statement of PW 2 Sushila. Witness DW 1 Krishna Kumar had stated in his statement that on 24.03.2003, Presiding Officer had dictated judgment in Case No.216/1997. He dictated the judgment to Gajraj in his Chamber till 8.00 P.M. Learned trial court believed on fact that at the time of occurrence he was present at his place of work, which was approximately 80-82 Kms. away from the place of occurrence. Witness PW 2 also stated that she was not acquainted with accused Gajraj. The statements of witness DW 1 and DW 2 were corroborated by the documentary evidence, i.e. attendance register of the court, where the accused Gajraj was posted as Stenographer, showing that Gajraj was present in court on 24.03.2003. Relying upon the above evidence, learned trial court concluded that no specific role had been assigned in the F.I.R to Gajraj. He was not present on spot on the date and time of occurrence. Consequently, learned trial court acquitted him from the charges leveled.

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The judgment under appeal is elaborate, well discussed and is based on proper appreciation of evidence. Learned trial court has based its judgment on proper reasoning also. As a fundamental law of criminology, a criminal trial proceeds with the presumption of innocence of accused person. The above presumption stands fortified

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5 U/s 378 Cr.P.C. No.295 of 2008

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by acquittal of accused by the trial court. The appellate court has as much right to go into the evidence and appreciate the same on its own behalf after giving due weight to the opinion of the trial court. In a case where admissible evidence is ignored and trial court has acted on the surmises and conjecture, a duty is cast upon the appellate court to reappreciate the evidence when the accused is acquitted. But finding of trial court, if is based upon proper appreciation of evidence and is not perverse, would not be interfered with on flimsy grounds. If on same evidence, two views are reasonably possible, one in favour of the accused must be preferred.

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In the case in hand, the prosecution failed to prove its case against accused Gajraj beyond reasonable doubt, and the documentary evidence regarding presence of accused Gajraj, far away from the place of occurrence, was corroborated by the evidence of reliable witnesses PW 1, PW 2, DW 1 and DW 2. Hence, in the light of facts, circumstances and evidence on record, we are of considered view that there is absolutely no chance of success in appeal. Hence, no interference is called for.

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Accordingly, the application under Section 378 (3) Cr.P.C. has no force and is hereby rejected. Consequently, the memorandum of appeal does not survive and stands dismissed.

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(Narendra Kumar Johari, J.) (Rajesh Bindal, C.J.)

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Lucknow December 23, 2021 ML/P.Sri.

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Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No

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Digitally signed by MUNNA LAL Date: 2022.03.15 16:53:21 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. v. Gajraj

Case brief

What is this about?

What did the court decide?

State of U.P. v. Gajraj

Case brief

What is this about?

What did the court decide?

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