Court No. - 51

Case :- APPLICATION U/S 378 No. - 68 of 2018

Applicant :- Radhey Shyam

Opposite Party :- State Of U.P. And 3 Others

Counsel for Applicant :- Ram Ashish Pandey

Counsel for Opposite Party :- G.A.

Hon'ble Vipin Sinha,J.

Hon'ble Ifaqat Ali Khan,J.

Heard Sri Ram Ashish Pandey, learned Advocate appearing for the

appellant who is the first informant.

We have perused the record and findings as have been recorded by

the court concerned.

We have heard counsel for the appellant at great length on the application

seeking leave to appeal against the judgment and order dated 19.05.2018,

by means of which accused-respondents have been acquitted of the

offences under sections 364/511 IPC passed by learned Special Judge

(Dacoity Affected Area) / Additional Sessions Judge, Etawah in Special

Case No. 55 of 2011.

Perusal of the judgment shows that with regard to when incident of

06.06.2011 said to have been taken place at about 08:00pm the FIR was

registered in pursuance of an application under section 156(3) CrP.C. The

prosecution in support of his case examined the witness PW-1 Radhey

Shyam Gupta who is first informant and the appellant/applicant before

this Court and PW2 Mohan who happens to be son of the first informant

and PW-3 Sailesh Kumar. At the very outset it is mentioned that as far as

PW-3 Sailesh Kumar is concerned, is only a formal witness. It may

further be appreciated that as per the FIR itself there are two witnesses

namely Mohan who is the son of first informant and has been examined

as PW-2 and Bala din however has not been produced as witness and has

not been examined.

We have also perused the findings which shows that the court

concerned has discussed elaborate contradiction in the statement of PW-1

and PW-2, the several discussion in this regard is contained in paragraph

13 of the judgment. The court has clearly observed that as far as the

independent witness, he has not been examined and on the basis of such

evidence on record and the findings as recorded by the court concerned

has concluded herein as under:-

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LFky ds vkl ikl vkcknh gS fQj Hkh dksbZ vU; O;fDr fudydj ugh vk;k

vkSj u gh mlus ?kVuk ns[khA ikap&ikap O;fDr;ksa }kjk reapksa ds cy ij

ifjoknh dks ys tkus dk iz;kl fd;k ftldk mlds }kjk fojks/k Hkh fd;k

x;k fdarq fQj Hkh u rks ifjoknh dks dksbZ pksV vk;h] u mlds diMs+ QVs

vkSj u gh nqdku dk lkeku vLr O;Lr gqvkA ?kVuk ds Lora= lk{kh

ckyknhu tkVo dks ifjoknh us ijhf{kr ugh djk;k gSA ih0 MCyw0&2 eksgu

dqekj ifjoknh dk iq= gksus ds dkj.k fgrc) lk{kh gSA ?kVuk LFky ij

mifLFkr lksgu dqekj Hkh U;k;ky; esa ijhf{kr ugha djk;k x;k gSA ftlls

lEiw.kZ vfHk;kstu dFkkud lansgkLin gks tk tkrk gSSA

The court has thereafter concluded that as per testimony of PW-1

and PW-2 that is the father and son who claims to be eye witness

themselves. It is apparent that the presence of the accused persons as well

as the witness and the place of occurrence is doubtful and the same has

not been proved beyond doubt. The court has rightly concluded that the

prosecution has failed to prove his case on doubt. It has been contended

that the court has given cogent reason for arriving at the conclusion.

As regards the exercise of the powers of the Appellate court the

Supreme Court in Sanmwat Singh vs. State of Rajasthan 1961

SC 715 has laid down three broad principles.

(I) Appellate Court has full powers to review the evidence upon

which the order of acquittal is found it.

(ii) The Principles laid down by the judicial committee of the privy

counsel in Sheo Swaroop vs. King Emperor (AIR 1934 PC)

page 227. Afford a correct guide for the appellate court approach to a

case in disposing of such an appeal. These principles require that the

appellate court should give proper weight and consideration to such

matters as, the view of the trial Judge as to credibility of the witnesses,

the presumption o