SMT. NAFISA Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

(2.) The Appeal has been filed against the impugned judgement and order dated 26.07.2016 passed by A.C.J.M. Kairana, in Complaint Case No. 685/9 of 2013 (Smt. Nafisa Vs. Ishtiyak and others) under sections 323, 392 I.P.C., Police Station Kairana, District Shamli acquitting the three accused from charges under sections 323 and 392 I.P.C.

(3.) Learned counsel for the complainant/appellant contended that on 15.06.2013 at about 2:00 a.m. in the night, six persons including a lady entered in his house; that the two persons and lady had covered their faces with the cloth for concealing their identity; that the above persons made the entire family wake up and started committing loot of Rs. 10,000.00 kept in the house, gold earrings, sepal, Chukti and Rs. 2100.00 from his pocket and also threatened of life at the time of leaving; that thereafter in scuffle and marpeet the cloth from the face of the lady and one person was dropped and they were identified by the complainant, her disabled son Shamshad, daughter-in-law Shiba and two ladies from the neighbourhood Samina wife of Yasin and Sana wife of Saukin who had come to their roof upon hue and cry, and on the next day during panchayat, the accused respondent No. 2 refused to return the looted articles; that in order to prove its case, the complainant produced herself as PW-1, Samina as PW-2, her son Shamshad as PW-3 and one Nasim as PW-4; that it was fully proved from the evidence on record that the complainant had established that the incident in question was committed by accused respondents and none other than them; that the findings given by the Magistrate are self contradictory at internal pages 5 and 6 wherein the discussions of evidence has been made; that the Magistrate has mentioned PW-2, as son of complainant while she is sister of complainant and similarly at internal page 5, it has been mentioned that PW-2 stated that nobody fell unconscious and everybody seen the occurrence as against the statement of the same witness at page 6, that at the time of incident, he was inside the room and there was darkness on the spot; that the learned Magistrate has acted wrongly in observing the contradictions in the persecution evidence and has acted wrongly in acquitting the accused persons; that the impugned order of acquittal is liable to be set aside and the order of acquittal is required to be converted into an order of conviction.