K. Narayan, J. - (1.) THIS appeal against acquittal by the informant, who also happens to be the son of the deceased, is directed against the order dated 20.10.1978 rendered by IIIrd Additional Sessions Judge, Bulandshahr in S.T. No. 40 of 1978. Briefly speaking the prosecution contention has been that father of the informant was done to death in a thatched verandah of tube -well while the son himself was inside the Kothari, in the evening of 12/13.7.1977. According to the F.I.R. son Jai Prakash had seen the occurrence from crevice of the door. One Kanchhi, according to the F.I.R. also should have been a witness of the occurrence. He was not examined.
(2.) BEFORE the investigation could be completed, the informant Jai Prakash also brought a complaint before the Special Chief Judicial Magistrate Bulandshahr being No. 817 of 1977. This was lodged on 23.8.1977 with lots of allegations conveying that the investigating officer had not recorded the first information report according to the version tendered by the appellant but had, in fact, given a prepared written report which the appellant was persuaded and rather compelled to copy out. It is thus apparent that there was lot of difference between the case as suggested in the F.I.R. and as stated by the informant even as P.W. 1. The main argument on behalf of the appellant has been that the trial court was not justified in coming to a conclusion that P.W. 1 Jai Prakash in all probability was not present at the time of occurrence. We have gone through the judgment of the learned Sessions Judge along with the counsel and we find ourselves unable to agree with the contention. However before proceeding with this aspect, the basics of an appeal against acquittal may be reiterated. An appeal against acquittal is not to succeed merely because a different view could be taken and rather it will need perversity in the approach of the trial court to succeed in getting an order of conviction. In the instant case, the situation is rather conversely true. The contention of the appellant in the first information report was by way of naming one Naresh and saying about others that they were from the locality and were also somewhat known to him. When he entered the witness box, he took the stand that the other accused persons were Naresh and his brothers Suresh Chandra and Chandra Pal whom he knew fully well. A person of weak memory may some times forget even his neighbours while trying to recognise them but it is rather impossible for any person to recognise one person and forget names etc. of his brothers who are equally well known to him. Possibly he took to his mind later on to implicate brothers of Naresh also and for that end preferred to take a stand that the sub -inspector of police had not taken down his first information report correctly and pressurised him to copy out another report. If it was so, although it cannot be accepted, first reaction of the appellant should have been to make some complaint to the higher officers of the police department. Instead he had preferred to wait for a month and ten days and then again he made an application by way of complaint to a court describing the occurrence in a different manner. It is rather inconceivable that the lawyer who might have drafted his complaint would advice him for the complaint of this nature in the circumstances now suggested. Any prudent lawyer would have advised him for a complaint to the higher police authority. This conduct itself shows that the theory has been simply later on worked out to give some weight to the contention put forward in order to implicate other brothers of Naresh Chandra. Needless to say that such a witness had rightly not been believed by the Sessions Judge.
(3.) THUS in the circumstances instead of finding a valid reason, for perversity in the judgment, we can only add few reasons already given by him.;