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1998 DIGILAW 54 (HP)

GODAWARI v. RATTAN LAL

1998-05-04

R.L.KHURANA

body1998
JUDGMENT R.L. KHURANA, J.—The present revision petition has been directed by the complainant Smt. Godawari Devi under Sections 397 and 401 read with Section 482, Code of Criminal Procedure, against the judgment dated 9.9.1996 passed by the learned Additional Sessions Judge, Solan, in Criminal Appeal No. 1-NS/10 of 1994 whereby the respondents have been acquitted of the offences under Sections 325, 323 and 506, (Part II), Indian Penal Code after setting aside their conviction and sentence for such offences as recorded by the learned Sub-Divisional Judicial Magistrate, Arki, in Criminal Case No. 3/2 of 1992. 2. Briefly stated, the facts of the present case are these. The complainant Smt. Godawari Devi is a resident of Village Aslu of Tehsil ( Arki in District Solan. Her husband Hari Ram is serving in the Health Department and posted at Shimla in Ripon Hospital He visits his village only during the holidays. Smt. Godawari is residing in the village along with her children. 3. On 11.10.1991 at about 6.00 a.m. when the complainant along with her sisters-in-law Smt. Kamla Devi and Smt. Hardei had gone to their field to fetch the grass, she saw the four respondents and one Smt. Roshani Devi digging her field so as to take water to their land through her land. Respondent Rattanu at that time was armed with a "Jhamb" while respondent Jiwa Nand was armed with a "Khilna" and a "danda". She asked the respondents as to why they were digging her field and were trying to take water through her field. Respondent Rattanu then attacked her. Respondents Yashoda and Saju Devi as well as Smt. Roshani abovenamed caught hold of her and started pressing her neck with thumb. The respondents Rattanu and Jiwa Nand inflicted "Jamb*, "Khilna" and "danda" blows on her person as a result of which she sustained injuries on different parts of her body. On hearing her cries, her sisters-in-law, Smt. Kamla Devi and Hardei came to the spot and when they tried to intervene in order to save her, they were also assaulted by the respondents. !n the meantime, Lachhman and Banti Devi arrived at the spot. The respondents by that time had run away after extending threats to the complainant that she would be shot dead. 4. !n the meantime, Lachhman and Banti Devi arrived at the spot. The respondents by that time had run away after extending threats to the complainant that she would be shot dead. 4. On the basis of the report made to the police by the complainant Smt. Godawari Devi, a case came to be registered on 11 10.1991 vide F.I.R. No. 97 of 1991 (Ex. PW-1/A). After completion of the investigation, the four respondents were arrested, challaned and sent up for trial. 5. The respondents did not plead guilty to the charge framed against them for the offences under Sections 323, 325 and 506 (Part II) read with Section 34, Indian Penal Code. The respondents in their statements recorded under Section 313, Code of Criminal Procedure, after denying the prosecution story, came up with the defence that the lands of respondent Rattanu are being irrigated by the water from the Tank from which the water flows to his lands through a "kuhal" which passes through the land of the complainant. Respondent Rattanu had sown ginger crop in his land. On the relevant day at about 4.00 a.m., he had gone to irrigate his land as per his turn. The complainant knew that he would be coming to his land to irrigate the same. She along with others armed with "dandas" hid herself near the place of occurrence. When respondent Rattanu reached his land, he was given beatings by the complainant and her associates. A case was registered against the complainant and her companions vide F.I.R. No. 98 of 1991 on the basis of report made by respondent Rattanu. Injuries were sustained by him at the hands of the complainant and her companions. The complainant had sustained the injuries when respondent Rattanu, who was all alone, had acted in exercise of his right of private defence. 6. Admittedly, a civil suit is pending between the parties regarding the right of respondent Rattanu to irrigate his land by taking water from the tank through a kuhal1 from the Sand of the complainant It is also admitted that in such civil suit, the complainant has been restrained by way of a temporary injunction from obstructing the respondent Rattanu to irrigate his land by taking water from the tank through a "kuhal” from her land. 7. 7. The learned Magistrate on the basis of the material placed before him convicted all the four respondents of the offences charged against them. While respondents Smt. Yashoda Devi and Smt. Saju Devi were given the benefit of the Probation of Offenders Act, 1958, respondents Rattanu alias Rattan Lai and Jiwa Nand were sentenced to various terms of imprisonment and fine on each of the three counts. 8. On an appeal having been preferred by the respondents Rattanu and Jiwa Nand, the learned Additional Sessions Judge vide the impugned judgment acquitted all the respondents of the offences charged against them by setting aside the conviction and sentence imposed upon them by the learned Magistrate. 9. Be it stated that the acquittal of the respondents as recorded by the learned Additional Sessions Judge has not been assailed by the State by way of an appeal, The complainant has, therefore, approached this Court by way of the present revision petition. 10. The learned Counsel for the respondents, at the very outset, has contended that unless there is a manifest illegality or grave miscarriage of justice, the High Court should not exercise its revisional power while sitting in judgment over an order of acquittal. 11. The Apex Court in Kaptan Singh and others v. State of M.R and another, 1997(6) SCC 185, while dealing with the scope and extent of exercise of revisional jurisdiction by the High Court invoked by a private complainant against an order of acquittal, has held: "......the revisional power of the High Court while sitting in judgment over an order of acquittal should not be exercised unless there exists a manifest illegality in the judgment or order of acquittal or there is grave miscarriage of justice." 12. Again in The Associated Cement Co. Ltd. v. Keshvanand, JT 1997(1) SC 165, while drawing a distinction between the appellate powers and the revisional powers, it has been held by the Apex Court :— "It appears that learned single Judge has equated appellate powers with revisional powers, and that the core difference between an appeal and a revision has been overlooked. It is trite legal position that appellate jurisdiction is co-extensive with original Courts jurisdiction as for appraisal and appreciation of evidence and reaching findings on facts and appellate Court is free to reach its own conclusion on evidence untrammelled by any finding entered by the trial Court. It is trite legal position that appellate jurisdiction is co-extensive with original Courts jurisdiction as for appraisal and appreciation of evidence and reaching findings on facts and appellate Court is free to reach its own conclusion on evidence untrammelled by any finding entered by the trial Court. Revisional powers on the other hand belong to supervisory jurisdiction of a superior Court. While exercising revisional powers the Court has to confine to the legality and propriety of the findings and also whether the subordinate Court has kept itself within the bounds of its jurisdiction including the question whether the Court has failed to exercise the jurisdiction vested in it. Though the difference between the two jurisdictions is subtle, it is quite real and has now become well recognised in legal provinces." 13. The Apex Court reiterated its earlier view taken in State of Kerala v. K.M. Char/a Abdullah & Co., AIR 1965 SC 1585, wherein it was held:— "There is an essential distinction between an appeal and a revision. The distinction is based on the differences implicit in the said two expressions. An appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power." Read in the context of the above principle of law, i have no hesitation in concluding that the judgment of acquittal of the learned Additional Sessions Judge does not suffer from any manifest illegality nor there has been a grave miscarriage of justice. The learned Additional Sessions Judge has given adequate reasons for interfering with the judgment of conviction and sentence as recorded by the learned Magistrate. As stated above, admittedly the land of respondent Rattanu is being irrigated by the water of a tank which exists at the spot. The water of this tank is carried to his field by the said respondent by way of a "kuhal" through the land of the complainant. As stated above, admittedly the land of respondent Rattanu is being irrigated by the water of a tank which exists at the spot. The water of this tank is carried to his field by the said respondent by way of a "kuhal" through the land of the complainant. A civil suit is pending between the parties with regard to the right of the respondent to take water from the tank with the help of a "kuhal" through the land of the complainant and in such suit a temporary injuction stands issued against the complainant restraining her from interfering/obstructing with the right of the respondent Rattanu to take water from the tank to his land through a kuhal through her land. It is also admitted that the complainant and his companions, namely, Hardei, Kamla, Ganpat, Satya and Sevti were prosecuted for the occurrence of 11.10.1991 on the basis of report made by the respondent Rattanu. It is also in evidence that the said respondent had sustained injuries in such occurrence, though no explanation therefore has been offered by the complainant and her witnesses. The evidence coming on record brings out two possible versions. One as alleged by the prosecution and the other as put forth by the respondents. It is well settled that if from the evidence coming on record two possible versions are made out, then the one favourable to the accused has to be accepted. 14. In Gopi Ram and others v. State of Haryana, 1995(2) CLR 556, the parlies had lands adjacent to each other and had a dispute as to irrigation of their respective lands. Both the parties sustained injuries during the occurrence. Injuries on the person of the accused were not explained by the prosecution. There was no evidence to show as to which of the party was the aggressor. It was held by the High Court of Punjab and Haryana that under such circumstances, it was not safe to convict the accused on the basis of interested testimony of the witnesses of the prosecution. 15. The facts of the said case are similar to the facts of the present case on all fours and the ratio laid down therein is fully applicable to the present case. 16. For the foregoing reasons, the impugned judgment of acquittal recorded by the learned Additional Sessions Judge does not call for any interference. 15. The facts of the said case are similar to the facts of the present case on all fours and the ratio laid down therein is fully applicable to the present case. 16. For the foregoing reasons, the impugned judgment of acquittal recorded by the learned Additional Sessions Judge does not call for any interference. Resultantly, the present petition, being devoid of merits, is dismissed. Petition dismissed.