IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL NAINITAL Crl. Leave to appeal application No. 59 of 2007 IN Govt.Appeal No. 87 of 2007 State of Uttarakhand ----Appellant/applicant. Vs. Arvind Mishra S/o Sri Satish Mishra, R/o Tajukhel Nai Colony near Telephone Exchange, Police Station Sadar Bazar, District Sahjahanpur. ------Respondent Sri Amit Bhatt, learned Addl. Advocate for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Nainital dated 24.03.2008 Per Coram:- Delay Condonation Application:- This is an application for condonation of delay to file appeal against the acquittal of the respondent Arvind Mishra passed by the learned Sessions Judge, Nainital in Sessions Trial No. 94/2004 u/s 302 I.P.C. vide his order dated 11.05.2006 Notice was issued to the respondent which was served personally upon him but no objection/counter affidavit has been filed to the delay condonation application. The delay is sufficiently explained ion the affidavit of Suresh Chandra Joshi, Station Officer, Police Station Kathgodam. The delay condonation application is allowed. The delay is condoned. Also heard on leave to appeal application. This application has been filed to prefer appeal against the judgment and order dated 11.05.2006 passed by the learned Sessions Judge, Nainital in Sessions Trial no. 94 of 2004 whereby the respondent Arvind Mishra was acquitted for the offence punishable u/s 302 I.P.C. Perused the aforesaid judgment and order challenged in this appeal. Having gone through the record we found that the learned Trial Court has come to the conclusion that the prosecution is Successful in proving the charge only against the accused Avtar Singh alias Toni who was convicted and sentenced for life for the offence punishable u/s 302 I.P.C. and was also directed to pay a sum of Rs. 5,000/- as fine however against the respondent Arvind Mishra the offence was not found proved by the Trial Court. Learned counsel for the appellant/State argued that the eye- witnesses have adduced the evidence against the respondents Arvind Mishra also. We have gone through the impugned judgment and order and found that there was no sufficient evidence on record to prove the charge for the offence punishable u/s 302 read with Section 34 I.P.C. as against the respondent Arvind Mishra. We think it just and proper to reproduce the relevant Para-24 of the impugned judgment and order which reads as under:- tgkW rd vfHk;qDr vjfoUn feJk dk iz’u gS] bl vfHk;qDr dks dksbZ Hkh lk{kh ugha tkruk FkkA ih0MCyq0 5 ds vuqlkj mldh nqdku ls vjfoUn feJk vyx LdwVj esa x;k Fkk vkSj e`rd rFkk vfHk;qDr vorkj flag mQZ Vksuh ,d gh LdwVj esa x;s FksA bl vfHk;qDr dh f’kuk[r foospd us fdlh lk{kh ls ugha djkbZ vkSj u gh U;k;ky; esa bl vfHk;qDr dh igpku djkbZ x;hA e`rd ds ‘kjhj ij ,d xksyh ikbZ x;h FkhA vfHk;qDr vjfoUn feJk vkSj vfHk;qDr vorkj flag mQZ Vksuh dk e`rd dh gR;k djus dk dksbZ lkekU; vk’k; ugha ik;k x;k gSA vr% vfHk;qDr vjfoUn feJk ds fo:) /kkjk 302 Hkkjrh; n.M lafgrk ds varxZr vkjksi lUnsg ls ijs lkfcr ugha gSA Having gone through the entire judgment and after considering the submissions advanced by the learned counsel for the applicant, we do not find sufficient reason to grant leave to appeal. Leave to appeal is refused. Accordingly, the appeal stands dismissed. (Dharam Veer, J.) (Prafulla C. Pant, J.) NCM