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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
VIVEK KUMAR BIRLA, VIKAS BUDHWAR, JJ.
Munna – Appellant
Versus
State Of U.P. And 7 Ors. – Respondents
Criminal Appeal U/S 372 Cr.P.C. No. 543 of 2022
Decided on : 14-07-2022
Criminal Procedure Code, 1973 - Section 372, 154, 174 – Indian Penal Code, 1860 - Sections 436, 120-B - Criminal Law Amendment Act - Section 7 - Consigned House to Flames - Damage - It has been alleged that in night, accused-respondent assembled in front of his house and consigned house to flames - Pursuant where to enormous damage occasioned - As per prosecution version, so contained in FIR after a period of two days, nephews of informant gave information regarding putting house on flames by aforesaid three accused - Held, This Court finds that prosecution proceeds on weak footing as not only there is delay in lodging of FIR, but other indices for linking accused for commission of crime is also lacking, particularly of fact that there are major contradictions in statement of PW-1 and PW-2 as well as fact that Pappu did not appear in witness-box and manner in which investigation has been done and lastly, but not least, fact that four accused as discussed above were in judicial custody, when said crime was said to have occasioned - This Court while bestowing anxious consideration on judgment passed by Trial Court finds its inability to interfere in present proceedings as according to this Court view taken by Trial Court does not seem to be suffering from any perversity, and this Court further finds that there is no other view ought to be taken, other than view so taken by court below - In absence of any perversity or misreading of evidences so sought to be adduced by prosecution, this Court has no option but to concur with judgment of Trial Court acquitting accused herein - Appeal dismissed.
JUDGMENT :
Vikas Budhwra, J.
1. This appeal under Section 372 of Criminal Procedure Code, 1973 (in short 'Cr.P.C.'), has been instituted by the appellant against the judgment and order dated 3.11.2018 passed by IVth Addl. Sessions Judge, District Hamirpur, passed in S.T. No. 1 of 2009, arising out of Case Crime no. 672 of 2008, under Sections 436, 120-B IPC, Police Station-Khanna, District Hamirpur, whereby learned trial court has acquitted the accused persons, who are opposite parties nos. 2 to 8.
2. Briefly stated facts shorn off unnecessary details are that the first informant being the appellant Munna son of Late Bhagwan Deen is a resident of village Gyodi, P.S. Khanna, District Hamirpur. As per the prosecution case, on 10.10.2008, one Rajesh Dubey, accused respondent no.7, Ashok Dubey-accused respondent no.8, Chhuttan Singh, accused-respondent no.6, Udai Bhan Singh, accused respondent no.5, Kishori Sahu, accused – respondent no.2, Rajju Mali-accused-respondent no.3 and Babu Mali accused – respondent no.4 in connection with certain water dispute indulged in administering beating with the brother and family members of the informant, pursuant whereto the brothers of the informant sustained injuries and they were put to medication in the District Hospital, Hamirpur. Further it has been alleged that on 12.10.2008 at 9:30 hours in the night, the accused-respondent Kishori, Rajju Mali and Babu Mali assembled in front of his house and consigned the house to flames. Pursuant whereto enormous damage occasioned. As per the prosecution version, so contained in the FIR after a period of two days, the nephews of the informant being Vivek and Pappu gave the information regarding putting the house on flames by the aforesaid three accused as named hereinabove. Accordingly, the informant came back to his house, as he was out-stationed and straightway went to the site of occurrence and on the same day, he reported the matter to the police station Khanna, District Hamirpur and accordingly, the FIR purported to be under Section 436 IPC read with section 7 of the Criminal Law Amendment Act was sought to be lodged being Case Crime no. 672 of 2008. The FIR in question was lodged on 13.10.2008 at 18:50 hours. The FIR was lodged against Kishori Sahu (accused-opposite party no.2), Rajju Mali (accused-opposite party no.3) and Babu Mali (accused – opposite party no.4).
3. Consequent to the lodging of the FIR, investigation was put to motion and investigating officer was nominated who went to the site of occurrence prepared site plan and recorded under Section 161 CrPC. A charge sheet was submitted by the Investigating Officer against the accused respondents herein purported to be under Sections 436, 120B IPC read with Section 7 Criminal Law Amendment Act. The matter was committed to the Court of Sessions. The accused pleaded innocent and not guilty.
4. To bring home the charges, the prosecution produced following witnesses, namely:
| 1. | Munna | PW1 |
| 2. | Vivek | PW2 |
| 3. | Head Constable Ram Bharose | PW3 |
| 4. | S.I. Balbeer Singh (I.O.) | PW4 |
5. We have heard Sri Ramanuj Yadav, learned counsel for the appellant and Sri Ratan Singh, learned A.G.A. for the State.
6. Before we embark on testimony and the judgment of the Court below, the contours for interfering in Criminal Appeals where accused has been held to be non guilty would require to be discussed.
7. The Hon’ble Apex Court in the series of decisions have been consistently mandating that it is well settled principle of law that appellate courts hearing the appeal filed against the judgment and the order of the acquittal should not overrule or otherwise disturb the judgment acquittal, if the appellate court does not find substantiate and compelling reasons for doing so.
8. Nonetheless if the trial courts conclusion with regard to the facts is palpably wrong if the trial court d
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