Neutral Citation No. - 2022:AHC:224895-DB

Court No.42

Case :- GOVERNMENT APPEAL No. - 828 of 2018

Appellant :- State of U.P.

Respondent :- Sanjay

Counsel for Appellant :- G.A.

Hon'ble Vivek Kumar Birla,J.

Hon'ble Rahul Chaturvedi,J.

Re: Criminal Misc. Application (Leave to Appeal)

1. Heard Sri Kailash Prakash Pathak, learned AGA appearing for the

appellant-State of UP and perused the record.

2. Present government appeal has been preferred against the judgement

and order dated 31.07.2018 passed by the Additional Sessions Judge,

Court No.5, Aligarh in Session Trial No.224 of 2001 (State vs. Sanjay),

arising out of case crime no.257 of 2000, under sections 147, 148, 149,

352, 302, 323, 504, 506, 120 B IPC, Police Station Tappal, District

Aligarh whereby accused respondent has been acquitted by the trial Court.

3. Prosecution story, in nutshell is that the complainant of the case

Shishpal has given a written report on 11.09.2000 at Police Station

concerned, stating therein that today in the morning at 10:00 hours his

sons Prakash, younger son Dalvir were waiting for travelling at Jattari,

standing on the road at College, at the same time, villagers Satendra and

Praveen both sons of Chainsukh were armed with rifle and Tamancha.

Chainsukh son of Kanha, armed with Tamancha, Kalu son of Sukhvir

armed with gun and Gulvir soh of Babu, resident of Kalyanpur, Police

Station Tappal armed with rifle and along with them two unknown

persons were also coming and started abusing to complainant and his son.

On making objection his son tried to beat Prakash, then Prakash ran away

jumping the wall, but the accused persons committed his murder by

making indiscriminate firing. When the complainant tried to stop them,

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then the accused persons beaten him with barrel and when they tried to

beat Dalvir, he rescued himself by running from the spot. The dead body

of his son Prakash is lying on spot. Satendra and Gulvir are absconding in

dacoity case, as such there is suspicion that he wants to arrest them, they

commit such crime. The aforesaid incident was witnessed by the teacher

of the college, his grandson Bablu alias Radhey Shyam and others.

4. On the basis of aforesaid information, first information report was

lodged and after completing all the formalities and collecting sufficient

material evidences the investigating officer submitted chargesheet against

the accused respondent in the court below. The case was committed to the

Court of Sessions and charges were framed against the accused who

pleaded his innocence and not guilty.

5. In support of prosecution case, PW-1-Shishpal (complainant), P.W.-

Dalvir, PW.3-S.K. Podwal, PW.4-Sub Inspector, Atar Singh, PW-5-Sub

Inspector Shripal Singh Nagar, P.W.6-Head Constable Bhoop Singh and

P.W.7-Dr. Yogendra Singh were produced and examined before the Court

below.

6. The judgement of acquittal was passed by the Court below on the

ground that prosecution could not prove his case beyond reasonable doubt

and the accused persons were given benefit of doubt and judgement of

acquittal was passed.

7. Challenging the impugned judgment, learned AGA submits that the

learned trial court has not properly appreciated the evidence on record and

decided the case only on the basis of conjectures and surmises. It is

further submitted that the order of acquittal of the accused respondent is

per se illegal, unjustified and bad in the eyes of law. It is submitted that

there was cogent evidence to convict the accused herein. He next submits

that the judgement and order of acquittal passed by the trial Court requires

serious consideration and reversal and the accused herein is liable to be

convicted.

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8. We have considered the submissions and have perused the record.

9. Before proceeding further, it would be appropriate to take note of law

on the appeal against acquittal. By the following case laws Hon’ble

Supreme Court have put certain legal embargo in re-appreciating the

entire ev