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2000 DIGILAW 69 (PAT)

Nitya Nand Dubey v. Om Prakash Choudhary

2000-01-14

D.P.S.CHOUDHARY

body2000
Judgment D.P.S.Choudhary, J. 1. The petitioner has preferred this revision against the judgment and order dated 12th July, 1994, passed by Sri B.K. Thakur, Sessions Judge, Bhagalpur in S.T. No. 591/90, by which he recorded the judgment of acquittal in favour of the accused-persons-opposite parties, (1st Set). 2. Briefly stated, the case of the prosecution as made out in the fardbeyan, Ext. 8 is as follows: In the evening at about 6.45 p.m., on 5.10.89, Fudan Dubey (since deceased) was returning to his house from Ghogharailway station through the orchard of his cousin. Sajjan Sah was also following him at some distance. In the orchard, he was intercepted by the seven accused-persons, out of them, four accused, namely, Om Prakash Choudhary, Tuntun Jaiswal, Anil Choudhary and Mahesh Choudhary were armed with pistols while the rest three accused-persons were armed with Farsa, knife and dagger. Accused Om. Prakash Choudhary and Tuntun Jaiswal asked Fudan Dubey to stop and then Tuntun Jaiswal ordered to kill. Thereupon, accused Om Prakash Chaudhary fired from his pistol which hit the victim: on his chest. It is further alleged that accused Tuntun Suresh Jaiswal also fired on him, but it missed the target. Hearing the sound of firing, Sajjan Sah and Tetar Yadav and few others rushed to save the victim, and seeing them, the accused-persons fled away. The reason for the alleged occurrence, as mentioned in the F.I.R. is that Fudan Dubey had objected the accused-persons for playing cards and gambling till midnight in front of his Darwaza. This caused annoyance to them and accused Om Prakash Choudhary and threatened him with dire consequences. 3. It is the further case of the prosecution that after receiving firearm injuries, the victim Fudan Dubey was rushed to Jawaharlal Nehru Medical College, Hospital, Bhagalpur for treatment by his brother Nityanand Dubey, (P.W. 1) and others. Fudan Dubey gave his statement before the A.S.I. of police, who visited at the hospital. On the basis of the said statement, case was registered. The victim was admitted in the casuality ward of the hospital where his dying declaration was also recorded by a Magistrate deputed for the purpose. The victim died thereafter in the hospital itself. After investigation, police submitted charge-sheet against all the accused-persons who were put on trial and were charged for the offence under Secs. 302, 302/149, I.P.C. and 27 of the Amis Act. The victim died thereafter in the hospital itself. After investigation, police submitted charge-sheet against all the accused-persons who were put on trial and were charged for the offence under Secs. 302, 302/149, I.P.C. and 27 of the Amis Act. Accused Om Prakash was separately charged under Sec. 302, I.P.C. 4. The accused-persons pleaded not guilty and claimed to have been falsely implicated in this case. Their case is that Fudan Dubey was himself a criminal and might have been killed by some other criminals in the darkness at the alleged place of occurrence and taking advantage of this situation, because of the previous enmity, in between the parties, Fudan Dubey has implicated them falsely. 5. The prosecution, in support of its case, altogether, examined 9 witnesses, including the doctor and the Investigating Officer. The Court below after considering the evidence on the record came to the finding that unfortunately none of the witnesses on the point of occurrence have supported the charge as eye-witness against the accused-persons. Tetar Yadav, P.W. 2, Sajjan Sah P.W. 3 and Gyani Yadav, P.W. 4, who should have been eye-witness on the point of occurrence, have not supported the charge. The trial Court has further opined that in absence of any eye-witness of the occurrence, the charge levelled against the accused-persons rests on the dying declaration of Fudan Dubey, which he gave before the Magistrate. His fardheyan will also be taken as dying declaration, because, he died shortly after giving the same. The trial Court has held that dying Declaration by itself can form the basis of conviction, if it is found to be true, consistent and cogent and in support of this, relied upon the decisions reported in AIR 1980 S.C. 599 and A.I.R. 1983 S.C. 274. The trial Court scrutinized the dying declaration in order to come to the finding whether it is true, consistent and cogent. 6. The trial Court after scrutinizing the dying declaration in detail has come to the findings as follows: (i) that in normal course, the victim will certainly disclose the names of the assailants immediately, if he is in a position to speak to the persons or to the family members with whom he happened to meet at the earliest. 6. The trial Court after scrutinizing the dying declaration in detail has come to the findings as follows: (i) that in normal course, the victim will certainly disclose the names of the assailants immediately, if he is in a position to speak to the persons or to the family members with whom he happened to meet at the earliest. In the instant case, from the evidence of the P.Ws., it is clear that Fudan Dubey did not disclose the names of any of the assailants to them including the family members. His fardbeyan was recorded after four hours from the time of occurrence in the hospital at about 11.30 p.m. in the same night. For the first time, he disclosed the names of the assailants in the fardbeyan. It raises a shadow of doubt over the credibility of his dying declaration and the fardbeyan. Before recording fardbeyan, he was stir rounded by her family members and relatives. (ii) none-examination of the wife of the deceased who must have rushed to the place of occurrence after getting the news, is another circumstance to create a doubt, as she has not come to say that her husband named any of the assailants before her. (iii) There is material discrepancy with regard to the weapon held by the accused-persons as given in the fardbeyan and the dying declaration recorded by the Magistrate. (iv) The place of occurrence is also not consistent. As per the fardbeyan, the occurrence of firing took place in the mango orchard about 100 yards from the Railway line, but the I.O. did not find any blood mark in the orchard, rather he found copious blood mark on the ground near the iron gate of the boundary wall of P.H.E.D. boring, which is at a distance of about 700 yards from the orchard. (v) Direction of the fire-arm injury as disclosed in the prosecution case does not fit in with the direction as found by the doctor. As per the evidence of the doctor, the direction of the fire-arm injury on the body of Fudan Dubey was from lower to upward, which was not possible when the assailants and the victim were in standing position as disclosed in the fardbeyan. (vi) The person who recorded the fardheyan has not been examined. As per the evidence of the doctor, the direction of the fire-arm injury on the body of Fudan Dubey was from lower to upward, which was not possible when the assailants and the victim were in standing position as disclosed in the fardbeyan. (vi) The person who recorded the fardheyan has not been examined. Therefore, this fact could not be brought on record whether the deceased was in a condition to speak and to give such statement. (vii) The dying declaration recorded by the Magistrate is not consistent and cogent enough to justify the conviction of the accused persons on its basis alone and accordingly, the trial Court has given benefit of doubt and acquitted the accused-persons. 7. Learned Counsel appearing on behalf of the petitioner submitted that P.W. 7, Sri Abdul Samad, Judicial Magistrate, has recorded the dying declaration, Ext. 5 and there is no infirmity in the dying declaration and his earlier statement made in the fardbeyan. P.W. 7 has stated that Fudan Dubey was in a fit mental condition to give his dying declaration Learned Counsel submitted that the finding of the trial Court that dying declaration is not true and consistent is based on surmises and misreading of the evidence on record. There was no cogent reason to disbelieve the. dying declaration, and the reasons assigned for discarding the dying declaration are baseless and not in accordance with law. The factum of dying declaration.. Ext. 5, is consistent with his statement made in the fardbeyan. This fact is enough to believe the dying declaration as true and consistent, None-examination of the eye-witness has not caused any serious damage to the prosecution case, because it is settled law that conviction can be based on the dying declaration alone if it is found to be true, consistent and voluntary. 8. Learned Counsel for the petitioner placed reliance on the case of Ram Bilas Prasad V/s. Binda Tanti and Ors. reported in 1999 (2) P.C.C.R. 486 and submitted that revision against acquittal at the instance of a private party, though case instituted on a police report, is maintainable. The power of revision vested in the Court is to prevent miscarriage of justice. Miscarriage will not only affect the State but also to the private party, the informant and even the witnesses. The Court has to look into the manifest illegality in the order of acquittal and nothing else. The power of revision vested in the Court is to prevent miscarriage of justice. Miscarriage will not only affect the State but also to the private party, the informant and even the witnesses. The Court has to look into the manifest illegality in the order of acquittal and nothing else. The reasons assigned by the trial Court in discarding the dying declaration are full of illegality which led to flagrant miscarriage of justice and in support of this contention, further relied upon the case of Kaptan Singh v. The State of M.P. and Ors. , Pakalapati Narayan Gajapathi Raju V/s. Bonapalti Peda Appadu and Anr. reported in -- Bansilal and Ors. V/s. Laxman Singh -- , and K Chinnaswamy Reddy V/s. State of Andhra Pradesh . 9. In reply to the above contention, learned Counsel appearing on behalf of the opposite parties, 1st Set, submitted that in a recent decision reported in -- Kaptan Singh V/s. The State of M.P. and Ors. the apex Court has held that private party has no right to file a revision against acquittal in a case instituted upon a police report. Even formal permission of the Public Prosecutor would not entitle him of such right. Learned lawyer further submitted that revisional power against the order of acquittal has to be exercised only in exceptional cases and with great care and caution, only to prevent flagrant miscarriage of justice. Revisional Court has no power to alter the order of acquittal into an order of conviction. At best it can commit the matter to the trial Court. High Court cannot reappraise the evidence as if it was hearing in appeal. The Court will interfere only when there is glaring defect in the procedure or manifest error on the point of law which has resulted into flagrant miscarriage of justice. In support of this contention, learned Lawyer placed reliance on the decisions on which the petitioner has also relied upon, namely 1999 (2) P.C.C.R. 486 (supra) and AIR 1962 S.C. 1788 (supra). 10. Learned lawyer further submitted that the trial Court can base its conviction on the testimony of dying declaration if after scrutinizing it carefully, the Court comes to the conclusion that it is true, consistent and voluntary. 10. Learned lawyer further submitted that the trial Court can base its conviction on the testimony of dying declaration if after scrutinizing it carefully, the Court comes to the conclusion that it is true, consistent and voluntary. The trail Court has given several reasons after discussing the evidence and considering the facts and circumstances of the case, that dying declaration of Fudan Dubey cannot be said to be consistent and cogent enough to justify conviction of the accused-persons on its basis alone. The main contention of the petitioner is that the trial Court has wrongly considered the evidence and on its basis has wrongly come to the conclusion that dying declaration is not true, consistent and cogent. Petitioners lawyer has failed to point out that there is any glaring defect in the procedure or manifest error on the point of law which has resulted into flagrant miscarriage of justice, which is the only scope of the revisions Court in such revision. Petitioners Lawyer wants that High Court in revision should reappraise the evidence as if it was hearing in appeal, which is beyond the scope of such revision. There is limitation on the powers of the High Court to set aside the finding of acquittal in revision and it is only in exceptional cases that this power can be exercised. The trial Court has put some test while scrutinizing the dying declaration and has perused the evidence along with the dying declaration and thereafter has come to the conclusion that it is not consistent and cogent enough to justify the conviction of the accused-persons of its basis alone. The doctor who was present at the time of recording of the dying declaration by the Magistrate has not been examined, nor the Investigating Officer. Therefore, there is no expert opinion of the doctor to say whether Fudan Dubey was in a state of mind to give such dying declaration which is in detail. In support of this contention, reliance was placed on the case of Kusa V/s. The State of Orissa . 11. From the submissions made on behalf of the parties and after scrutinizing the judgment of the trial Court, this fact is not in dispute that revisional power of the High Court against the order of acquittal is to be exercised with great care and caution only in a case of flagrant miscarriage of justice. 11. From the submissions made on behalf of the parties and after scrutinizing the judgment of the trial Court, this fact is not in dispute that revisional power of the High Court against the order of acquittal is to be exercised with great care and caution only in a case of flagrant miscarriage of justice. High Court cannot reappraise the evidence as if it was hearing in appeal. The Court will interfere only when there is glaring defect in the procedure or manifest error on the point of law which has resulted into flagrant miscarriage of justice. This places limitation on the powers of the High Court to set aside the finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. In the case of K. Chinnaswamy Reddy V/s. The State of Andhra Pradesh and Anr. -- (supra), the apex Court held that Sub-section (4) of Sec. 439, forbids the High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method or ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. The apex Court has indicated some cases by way of example which would in their opinion justify the High Court in interfering with the finding of acquittal in revision. These cases may be: (i) where the trial Court has no jurisdiction to try the case but has still acquitted the accused, (2) where the trial Court has wrongly shut out the. evidence which the prosecution wished to produce, (3) where the appeal Court has wrongly held the evidence, which was admitted by the trial Court to be inadmissible, (4) where the material evidence has been overlooked either by the trial Court or by the appeal Court and (5) where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with the order of acquittal, and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Sec. 439(4) Cr.P.C. In view of these guidelines of the apex Court, I have considered the submissions made on behalf of the petitioner as mentioned above. The substance of the submissions of the Counsel for the petitioner is that the trial Court has wrongly considered the evidence and in that light, wrongly disbelieved the dying declaration. If the submission of the Counsel for the petitioner is accepted, that will amount to reappraisal of the evidence on record, which is beyond the scope of this Court in revision. Even if two views are possible, after scrutinizing the evidence and one view has been accepted by the trial Court, this Court cannot come to the finding that there was any miscarriage of justice and the finding of the trial Court is perverse. The submissions made on behalf of the petitioner do not even remotely come within the illustrations given by the apex Court, as mentioned above. It is true that these illustrations may not cover all the contingencies, but they cover a wide spectrum and none of the submissions made on behalf of the petitioner come under these illustrations. In the facts and circumstances of the case, I do not find any ground to interfere with the order of acquittal passed by the trial Court. 12. In the result, there is no merit in this revision petition, which is dismissed accordingly.