Dismissed

State of U.P. v. Mukesh

Allahabad HC23 Dec 2021GOVA/1000323/2008

Case brief

AI extract

What is this about?

The High Court of Judicature at Allahabad rejected the State's application for leave to appeal against the acquittal of the accused Sachendra. The High Court held that the trial court's view was logical and no interference was warranted as appeals against acquittal are extraordinary.

What the court decided

AI extract

State of U.P. Vs Mukesh — Allahabad HC (2021) — LawSathi Research

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Chief Justice’s Court Additional Cause List Serial No. 11

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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(Lucknow)

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U/s 378 Cr.P.C. No. 323 of 2008

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State of U.P. ...Applicant/appellant Through : Shri Dhananjay Kumar Singh, Additional Government Advocate v/s Sachendra ....Opposite parties

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....Opposite parties

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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 14.07.2008, passed by learned Additional Sessions Judge, Court No.3, Lakhimpur Kheri in S.T. No.9/2004, State Vs. Mukesh and others, vide Case Crime No.136/2001, under Sections 147, 148, 149, 302, 504, 506 IPC, Police Station Pasgawan, District Kheri. By the impugned judgment and order, learned trial court had convicted accused persons Mukesh, Jitendrapal, Naval Kishore, Rampal and Surendrapal for the offence under Sections 147, 148, 302/149, 504, 506 IPC, whereas acquitted the accused Sachendra from the above charges.

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2 U/s 378 Cr.P.C. No.323 of 2008

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In brief, the case of the prosecution was that the informant Kamlesh lodged an F.I.R. in police station concerned with contention that his brother Mithilesh had taken contract for paddy plantation, in 3 acre area of the field belonging to owner Mukesh Verma. On 27.06.2001, they had completed the plantation of paddy in about two acres of area, one acre field was left to be planted. The work could not be done on same date due to paucity of time. On the same evening, informant and his brother Mithilesh had gone to market, where Mukesh Verma met them and after rebuking regarding non completion of work in entire area, he started abusing. Mithilesh opposed but Mukesh Verma beat him and threatened for life. While returning from market to their house, as the informant along with his brother, reached near the house of Ram Lal Lohar, accused Mukesh Verma, Jitendrapal, Naval Kishore, Sachendra, Rampal and Surendrapal obstructed them and started firing on them by guns. After receiving firearm injury, injured Mithilesh fell down and succumbed. The villagers Rajendra Prasad, Meva Ram, Mahesh and Suresh Chandra reached on the spot, who had seen the occurrence along with informant and ran towards assailants but the accused persons fled away.

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On the basis of written application, the F.I.R. of the occurrence was lodged by police station concerned, against accused persons Mukesh, Jitendra Pal, Naval Kishore, Sachendra, Ram Pal and Surendra Pal under Sections 147, 148, 149, 302, 504, 506 IPC, vide Crime No.136/2001, in which, after completion of investigation, charge sheet against accused persons Mukesh, Jitendra Pal, Naval Kishore, Ram Pal, Surendra Pal and Sachendra was submitted in court. Learned Magistrate took the cognizance and committed the case to the court of Sessions, where charges under Sections 147, 148, 302/149, 504, 506 IPC were framed against accused persons. Accused persons denied the charges, pleaded not guilty and claimed trial.

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3 U/s 378 Cr.P.C. No.323 of 2008

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In trial court, informant Kamlesh as PW 1, Meva Ram as PW 2, Dr. A.K. Tyagi as PW 3, Head Moharrir Shiv Shanker Singh as PW 4, S.I. C.P. Gautam as PW 5, S.I. Devendra Pandey as PW 6 deposed as prosecution witnesses. In the statement under Section 313 Cr.P.C. accused persons denied their involvement in the offence and stated that they had been implicated falsely in the case due to village party bandi. They further stated that deceased Mithilesh was killed by some unknown person. Dr. Anand Kumar deposed as witness DW 1.

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Learned A.G.A., pressing the application under Section 378 (3) Cr.P.C. submitted that the trial court has committed material illegality in acquitting the accused Sachendra, whereas the court by placing reliance on the same prosecution evidence, convicted the other named accused persons Mukesh, Jitendra Pal, Naval Kishore, Ram Pal and Surendra Pal. Accused Sachendra was also named in the F.I.R. and prosecution witnesses had given evidence about his involvement in the occurrence. Hence, the judgment and order passed by the trial court, being based on surmises and conjecture, is liable to be set aside and application under Section 378 (3) Cr.P.C. deserves to be allowed.

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Heard learned Additional Government Advocate Shri Dhananjay Kumar Singh, on the application under Section 378 (3) Cr.P.C. and perused the record.

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Learned trial court after considering the case of prosecution and evidence on record inferred that the prosecution successfully established its case and proved the involvement of accused persons Mukesh, Jitendra Pal, Naval Kishore, Ram Pal and Surendra Pal in the offence, hence the Court convicted them for the offence under Sections 147, 148, 302/149, 504, 506 IPC. So far as the case of accused Sachendra is concerned, learned trial court placed reliance on the evidence of DW 1 Dr. Anand Kumar, who had stated in his evidence that Sachendra, S/o Umashanker Verma was suffering from jaundice and in serious condition, got admitted in emergency ward of hospital at 3.56

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4 U/s 378 Cr.P.C. No.323 of 2008

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O'clock on 25.06.2001. This witness further stated that he remained hospitalized till 29.06.2001. In the interregnum period, he was under treatment of Dr. Anand Kumar (witness DW 1). The witness DW 1 has also proved the bed head ticket, entry of admission register, discharge slip and blood examination report related to accused Sachendra.

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Learned trial court held that according to F.I.R. version and evidence, deceased Mithilesh performed plantation work in the field of accused Mukesh Verma till the evening, there was no prior enmity. Trial court further held that the motive of occurrence arose in spur of moment in evening on 27.06.2001, when deceased faced accused Mukesh Verma in market and some hot words were exchanged. In above scenario, there was no occasion for accused Sachendra to get admission in hospital on 25.06.2001 only to create false evidence with intention to save his prosecution. Learned trial court, accordingly, concluded that the prosecution could not prove his involvement in offence, hence acquitted Sachendra from the charges leveled against him.

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In the light of facts, circumstances and evidence available on record, the view taken by the trial court is possible. Impugned judgment is in accordance with law and is well reasoned.

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Appeals against acquittal are allowed only in exceptional circumstances. It is an extraordinary remedy. Appeals against acquittal should be allowed judiciously and only in cases where the judgment is so clearly wrong that its maintenance would amount to serious miscarriage of justice. The court exercising appellate power under this section has as much right to go into the evidence and appreciate the same on its own behalf after giving due weight to the conclusion of the trial court which had occasion to watch the demeanor of witnesses. In criminal case, there is a presumption of innocence also in favour of accused, unless he is held guilty by competent court of law. The innocence of accused stands fortified by the order of trial court, acquitting him from the charge of offence.

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5 U/s 378 Cr.P.C. No.323 of 2008

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In view of above, in our considered view, the conclusion drawn by the trial court is probable and logical. We are satisfied that there is absolutely no hope of success in the appeal. Accordingly, no interference is called for and application under Section 378 (3) Cr.P.C. is liable to be rejected.

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Accordingly, the application under Section 378 (3) Cr.P.C. for leave to appeal is rejected. Memorandum of appeal, consequently, 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 16:54:14 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. v. Mukesh

Case brief

What is this about?

What the court decided

State of U.P. v. Mukesh

Case brief

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