The Court allowed an application for condonation of delay. Subsequently, it rejected the leave to appeal against an order of acquittal, finding no perversity or error in the trial court's view, and dismissed the appeal.
Leave to appeal refused; application for condonation of delay allowed; appeal dismissed.
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Court No. - 14
Case :- APPLICATION U/S 378 DEFECTIVE No. - 374 of 2017 Applicant :- Chand Babu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Pramod Kumar Shukla,Surendra Pal Counsel for Opposite Party :- Govt. Advocate
Hon'ble Shamim Ahmed,J.
(C.M.Application No. 126628 of 2017)
The case is taken up in the revised call.
This is an application for condonation of delay in filing the appeal under Section 378 (3) Cr.P.C.
The Stamp Reporter has reported that this appeal is beyond time by twenty two days.
As per Office Report dated 16.02.2018 notice has been served personally on opposite party Nos. 2 to 4.
Neither anyone has put in appearance nor any counter affidavit has been filed on behalf of opposite party Nos.2 to 4.
Heard Sri Pramod Kumar Shukla, leaned counsel for the appellant and Sri Aniruddh Singh, learned A.G.A.-1 for the State-appellant.
The reason shown in the affidavit filed in support of the application for condonation of delay is sufficient and convincing.
The application of condonation of delay is allowed.
Delay in filing the appeal is hereby condoned.
Order Date :- 25.8.2022 Arvind
Court No. - 14
Case :- APPLICATION U/S 378 DEFECTIVE No. - 374 of 2017 Applicant :- Chand Babu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Pramod Kumar Shukla,Surendra Pal Counsel for Opposite Party :- Govt. Advocate
Hon'ble Shamim Ahmed,J.
The case is taken up in the revised call.
As per Office Report dated 16.02.2018 notice has been served personally on opposite party Nos. 2 to 4.
Neither anyone has put in appearance nor any counter affidavit has been filed on behalf of opposite party Nos.2 to 4.
Heard Sri Pramod Kumar Shukla, leaned counsel for the appellant and Sri Aniruddh Singh, learned A.G.A.-1 for the State-appellant.
The present leave to appeal under Section 372 Cr.P.C. has been filed against the judgment and order dated 07.09.2017 passed by learned Additional Session Judge Court No.1 Barabanki in S.T. No. 268/2013 in Case Crime No. 747 of 2009, under Section 323/34, 504, 427 I.P.C., Police Station Tikat Nagar, District Barabanki convicting and sentencing the respondents No. 2 to 4 under Section 323/34 I.P.C. and acquitting them from the charges framed against them under Sections 504, 427 I.P.C.
Brief fact of the case are that on 03.09.2009 at about 11.00 a.m. with intention of illegatl encroachment, respondents armed with lathi and danda entered into the shop of the appellant and started throwing the woods pieces in the pond and even started abusing him and when the appellant objected to it then respondents started beating him with lathi and danda. Against which appellant moved an application under Section 156 (3) Cr.P.C. about the alleged incident.
The court below after taking into consideration the facts and circumstances of the case and evidence available on record, passed the judgment and order of acquittal dated 07.09.2017.
Learned counsel for the appellant submits that the court below did not appreciate the evidence on record; prosecution has successfully proved the offence against the accused on the basis of evidence and the judgment was passed without considering the statement of witnesses and the case set up by the prosecution and the judgment of acquittal was passed on surmises and conjectures.
Learned A.G.A. submits that the present appeal is of the year, 2017. Moreover, there appears no illegality or infirmity in the judgment and order of acquittal passed by the court below, therefore, appeal may be dismissed. I have heard learned counsel for the applicant and learned A.G.A. as well as considered the ground taken by the appellant and gone through the judgment passed by the court below.
In the present case from the statements given by the witnesses produced by the prosecution, I found that prosecution has failed to establish that the crime in question has been committed by the accused and there was no direct evidence produced by the prosecution regarding involvement of the opposite party Nos. 2 to 4 in the crime.
Further, this Court observed that an appeal against acquittal stands on a different footing from the appeal against conviction. Hon'ble the Apex Court in a very recent judgment in the case of Sadhu Saran Singh Vs. State of Uttar Pradesh and Others reported in (2016) 4 SCC 357 has considered this difference and has observed in paragraph nos.20 and 21 as under:
"20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can raise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasiva V. State of Kerala 1998 SCC (Cri) 1320 has held:
"7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record
and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal."
21. The Court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative."
In the light of the aforesaid guidelines, the impugned judgment has to be considered from the point of view whether the view taken by the court below was a probable view based on the material on record or it is an absolutely erroneous judgment devoid of merits.
A criminal trial proceeds with the presumption of innocence of the accused persons. With the acquittal of the accused persons this presumption of innocence stands fortified. So very strong and cogent reasons must exist in interfering the judgment of acquittal.
Keeping in view the aforesaid weakness of the prosecution case, as noted by the court below, I am of the view that the view taken by the court below was a probable and logical view, which is based on valid reasons. The judgment of the court below cannot be said to be illegal, illogical and improbable and not based on material on record or is based on erroneous views and is against the settled position of law. So, this Court is satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference is called for.
Leave to appeal is refused.
Application for leave to appeal is rejected.
Accordingly, the appeal does not survive, and in view of above, the appeal is also dismissed.
No order as to costs.
Copy of this judgment be sent to the court below for its compliance.
Order Date :- 25.8.2022 Arvind
Digitally signed by ARVIND KUMAR SRIVASTAVA Date: 2022.09.12 17:51:01 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether delay in filing the appeal under Section 378 Cr.P.C. should be condoned.
Whether the High Court can interfere with the order of acquittal passed by the trial court.
Colour shows how this judgement treated each authority
Sadhu Saran Singh Vs. State of Uttar Pradesh and OthersExplained¶29
(2016) 4 SCC 357 · Who else cites this
Sambasiva V. State of KeralaExplained¶30
1998 SCC (Cri) 1320 · Who else cites this
4 provisions across 2 enactments
Chand Babu
State Of U.P.
Opposite Party No. 2
Opposite Party No. 3
Opposite Party No. 4
Shamim Ahmed
Arvind Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
