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2000 DIGILAW 816 (PAT)

Aejaz Alam v. State Of Bihar

2000-06-30

INDU PRABHA SINGH

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Judgment Indu Prabha Singh, J. 1. This application under Secs. 397 and 401 of the Code of Criminal Procedure, 1973 (in short "the Code) is directed against the judgment and order dated 31-8-1998 passed in Cr. Appeal No. 59/94, by Shri Pradeep Kumar Singh, Additional Sessions Judge, Kishanganj whereby and whereunder he upheld the judgment of conviction passed by Shri Bhuneshwar Ram, Sub Divisional Judicial Magistrate, Kishanganj against the petitioner under Secs. 120- Band 411 of the Indian Penal Code in G.R. No. 735/93 Tr. No. 1595/94 sentencing him to undergo rigorous imprisonment for 2 years and simple imprisonment for 2 years respectively. 2. From the prosecution case, it appears that the informant was going to Purnia on 15-9-1992 with his brother-in-law, Pramod Mandal on a motor cycle to deposit Rs. 3,72.000.00 in the Bank and when they reached near Chargharia Chawk, the criminals over-took them and snatched away the bag containing the amount. Subsequently, the criminals were chased by the public as also by the officer-in-charge of Koch ad ham an police station. Finally, they were caught and a sum of Rs. 1,70,000.00 was recovered kept with the father of the present petitioner. The police after completing the investigation submitted charge-sheet. The cognizance of the offence was taken and this petitioner was convicted in the manner indicated above. His father Md. Kasim who also figured as an accused before the learned Magistrate was released on admonition due to his old age and physical condition. On appeal the conviction of the petitioner was maintained as stated above. 3. In this petition the petitioner has contended that the judgment of the learned Courts below are based on inadmissible evidence. Therefore, they are liable to be set aside. The prosecution case is improbable. The learned trial Magistrate has misdirected himself in course of examination of the present petitioner under Sec. 313 of the Code and based the judgment on his observation and personal opinion. It was not subjected to cross-examination. On these grounds amongst others, it has been contended that the judgment of conviction of the learned Courts below be set aside and the petitioner be acquitted. 4. At the time of argument, learned counsel for the petitioner has seriously drawn my attention to the fact that there has not been proper examination of the petitioner under Sec. 313 of the Code. 4. At the time of argument, learned counsel for the petitioner has seriously drawn my attention to the fact that there has not been proper examination of the petitioner under Sec. 313 of the Code. On this ground, he has prayed that the judgment of conviction of the Courts below is liable to be set aside. In support of this contention, he has relied on the case of Rautu Bodra and another V/s. State of Bihar. In the said case, the Hon ble Supreme Court had held that though the appellants were convicted and sentenced on proper appreciation of the evidence grave error was committed at the time of their examination under Sec. 313 of the Code inasmuch as the Court did not ask the appellants to explain the circumstances appearing in the evidence against them. Considering the ghastly nature of the crime committed, it was held that the matter should be remitted back to the trial Court for proper examination of the appellants under Sec. 313 of the Code. However, since 15 years had elapsed and the appellants had already served more than 4 years of imprisonment their conviction and sentence under Sec. 302 read with Sec. 34 of the Indian Penal Code were set aside. Relying on this decision, it has been submitted before me that though there is concurrent findings of the fact by both the Courts against the petitioner his examination under Sec. 313 of the Code was not proper and therefore, following the ratio of the decision of this case and also taking into consideration the fact that the petitioner has already remained in custody for about 18 months his conviction should be set-aside. 5. I have heard the parties in detail on this point. In the above-mentioned case, the Hon ble Supreme Court had held that the examination of the appellants under Sec. 313 of the Code was not proper inasmuch as the Court did not ask them to explain the circumstances appearing in evidence against them. In the present case, however, the situation is entirely different. Here the present petitioner has been examined under Sec. 313 of the Code on 3-5-1994 by the learned trial Court in a proper manner. All the circumstances as also the evidence against him were put to the present petitioner which he denied. In the present case, however, the situation is entirely different. Here the present petitioner has been examined under Sec. 313 of the Code on 3-5-1994 by the learned trial Court in a proper manner. All the circumstances as also the evidence against him were put to the present petitioner which he denied. Even other circumstances appearing against the petitioner in the evidence of PWs were put to him. From this it would appear that this is not one of those cases in which the examination of the petitioner under Sec. 313 of the Code was not proper. Hence the aforesaid decision is of no help to the petitioner. 6. From the perusal of the judgment of the learned Courts below it appears that the respective cases of the parties have been taken into consideration properly and there has been proper discussion of the evidence both oral and documentary produced before the trial Court. There is concurrent finding of fact by both the Courts below with respect to the allegations made against the petitioner. It is well settled that at the stage of revision the concurrent findings of facts of the learned Courts below can not be lightly interfered with unless there is some glaring defect in the appraisal of the evidence on record. Learned counsel for the petitioner has not been able to show any such thing which may go to create any reasonable doubt in the concurrent findings of facts by the two Courts so as to result in setting aside the judgments of the Courts below. In this connection the law is well settled as has been laid down from time to time by different Courts of India as also by the Hon ble Supreme Court. In the case of Pritam Singh and another V/s. The State of Punjab, while disposing of Special Leave to Appeal the Hon ble Supreme Court has held that where the witnesses on a certain point are after due consideration of the circumstances and the criticisms levelled against their evidence believed by both the Courts below, it is not for the Supreme Court to re-weigh or to re-appreciate their evidence and come to a contrary conclusion. Hearing the appeal on special leave, they should not lightly interfere with the appreciation of the evidence by the Courts below unless there are compelling reasons to do so. Hearing the appeal on special leave, they should not lightly interfere with the appreciation of the evidence by the Courts below unless there are compelling reasons to do so. Though the aforesaid finding has been recorded by the Hon ble Supreme Court while disposing of the special leave petition. However, the law laid down in it will also apply with full force to G. revision application to be disposed of by this Court. From this it would follow that unless there are compelling reasons to do so the revisional Court will not interfere with the concurrent findings of facts by both the Courts below. This point of law is well settled. 7. Learned counsel for the petitioner in course of his argument has mainly confined himself to the question of incomplete examination of the petitioner under Sec. 313 of the Code and in support of his submission, he relied upon the decision of the Hon ble Supreme Court noted above. From the record, however, it appears that there has been proper examination of the petitioner under Sec. 313 of the Code and it is not one of those cases in which the Court failed to ask the accused to explain the circumstances appearing in evidence against him. Hence, I do not find any force in this contention. 8. Learned counsel for the petitioner has also placed reliance on the case of Rajan V/s. The State of M.P.. In this decision, the Hon ble Supreme Court has laid down the scope and power of the Court in appeal. As per Secs. 374 and 386 of the Code, it was held that the jurisdiction of the appellate Courts are coextensive with that of the trial Court. In the said case, the High Court had adopted an angle as if it was considering a revision petition. Accordingly, the order of the High Court was set aside and the case was remanded back for fresh consideration. It is well known that the power of the appellate Court is coextensive with the trial Court. In the said case, the High Court had not properly appreciated the evidence as an appellate Court should have done but has treated the matter before it as if it is a revision petition. It is well known that the power of the appellate Court is coextensive with the trial Court. In the said case, the High Court had not properly appreciated the evidence as an appellate Court should have done but has treated the matter before it as if it is a revision petition. In the present case, however, the judgment of the learned lower appellate Court shows that there has been proper discussion of the facts and materials on record and the findings of the learned trial Court. Learned lower appellate Court has properly appreciated the evidence on record and the findings recorded by the learned trial Court and has come to its independent opinion. As such, it cannot be said that the learned lower appellate Court was treating the appeal as if it is a revision petition before him. Thus, I do not find any merit in this submission of the learned counsel for the petitioner. 9. From the detailed discussions made above, it becomes clear that there is no merit in this revision application. It is accordingly dismissed and the judgment of the lower Court is confirmed.