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2001 DIGILAW 542 (PAT)

Jagdish Singh v. State Of Bihar

2001-07-06

A.K.SINHA

body2001
Judgment A.K.Sinha, J. 1. This revision application has been directed against the order dated 27-1-1999 passed by the 1st Additional Sessions Judge Katihar in Cri. Appeal No. 69 of 1994 whereby he dismissed the appeal. The appellants were convicted by Shri N.N. Singh, Judicial Magistrate 1st class. Katihar in G.R. Case No. 781/89 and were convicted under Sec. 324 of the IPC and were released on admonition under Section, 3 of the Probation of the Offenders Act. 2. The case of the prosecution in short was that on 23-4-1989 at a.m., the informant saw that the appellants along with their father were ploughing his field with a tractor which was protested by the informant but the accused persons did not pay any heed. The informant pleaded for getting the land measured but the accused persons persisted with ploughing. Thereafter an altercation took place and Kaplido Sen Gupta (deceased) ordered to assault Jagdish Singh whereupon Aditya Sen Gupta is alleged to have assaulted him with Bhujali, hitting him on his back and left hand whereas accused Anup Sen Gupta struck the informant with sword causing injuries on his ring finger. On alarm raised by the informant the witnesses namely Bhimraj Singh and Bibhikhan Singh came running and thereafter the accused persons fled away. The informant fell down and became unconscious. 3. It appears that the learned appellate court took into consideration the First Information Report named witnesses namely Bhimraj Singh and Bibhikhan Singh who were not examined by the prosecution nor the police made them witnesses in the charge sheet. Instead, PW 3, PW 4 and PW 1 who were chance witnesses were examined by the prosecution to support its version and the evidence of PW 1 disclosed that he was at a distance of 400 to 500 yards from the PO and PW 3 witnesses the occurrence from dam which was also situated at a distance of 400 to 500 yards. As such they were not found to be reliable witnesses. Similarly PW 4 who happened to be related to the informant was also not found to be reliable witness. The only witness who supported the prosecution case was PW 5, the informant but the defence elicited contradiction by drawing his attention to the statement, which he made before the IO. The prosecution has failed to produce the blood stained cloths of the informant. The only witness who supported the prosecution case was PW 5, the informant but the defence elicited contradiction by drawing his attention to the statement, which he made before the IO. The prosecution has failed to produce the blood stained cloths of the informant. The appellate Court also found discrepancy in the time of occurrence and the evidence of the doctor who stated on oath that he had examined the patient at 1.50 a.m., but the trial Court ultimately held that he had examined the patient at 7.50 a.m., without declaring the doctor as hostile witness. The learned appellate court was also of the view that the prosecution party were a trespassers and the appellant do not seems to have exceeded the right of private defence, in as much as there is no statement of any witness that the accused persons had repeated the blow though the informant was lying unconscious before them. The doctor also found only two injuries by sharp cutting weapon and the third injury was abrasion. As such the appellate Court was of the view that the finding of the trial Magistrate that the appellants and exceeded the right of private defence was erroneous. Taking into consideration the aforesaid facts the learned appellate Court allowed the appeal and set-aside the order of conviction and sentence recorded by the trial Magistrate. 4. The learned counsel appearing for the petitioner however strenuously argued that the learned appellate court committed error by giving the benefit of right of private defence to the appellants when no such defence was taken by the appellants nor any evidence was adduced in that regard. It was next submitted that the witnesses examined by the prosecution including the doctor and the IO fully established the prosecution case and the learned appellate court was not justified in acquitting the accused persons. It was, therefore, submitted that the learned appellate court committed illegality in acquitting the appellants. 5. It was next submitted that the witnesses examined by the prosecution including the doctor and the IO fully established the prosecution case and the learned appellate court was not justified in acquitting the accused persons. It was, therefore, submitted that the learned appellate court committed illegality in acquitting the appellants. 5. In the case of Chinnaswamy V/s. State of Andrha Pradesh, the Apex Court held as under: "It is true that it is open to a High Court in revision to set-aside an order of acquittal even at the instance of the private parties, though the State may not have thought fit to appeal, but this jurisdiction in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Subsection 4 of Sec. 439 forbids a 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 of 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 that it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases, which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be where the trial court has no jurisdiction to try the case but has still acquitted the accused or where the trial Court has wrongly shut out evidence which the prosecution wished to produce or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been over looked either by the trial Court or by the appeal Court, or where the acquittal is based on the compounding of the offence which is invalid under the law. These and other cases of similar nature can properly be held to be case of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it can not be said that the High Court was doing indirectly what it could not do directly in view of provisions of Sec. 439(4)." 6. In the instant case I find that the case of the petitioner does not fall in any of the criteria enumerated by the Apex Court as referred to above. That apart it is evident from the judgment of the learned appellate court that he has discussed the evidence of all the witnesses in detail and reached to the conclusion as stated above. It is well settled rule of law that even if a different conclusion may be drawn from the same set of facts the High Court shall not interfere in such conclusion drawn by the Court in its revisional jurisdiction and in exceptional cases the High Court shall exercise its power in its revisional jurisdiction to set-aside the order of acquittal. The case of the petitioner in my view is not of exceptional nature so that the High Court can interfere with the finding given by the appellate court, which is based on discussion of the evidence facts and circumstances of the case and the appellate court has given positive reasons from his coming to the conclusion. The case is of the year 1989 and a period of 12 years has already lapsed from the date of the occurrence and it will be an exercise in futile after lapse of such time to send the case for retrial. 7. In view of the above discussions and after considering the facts an a circumstances of the case I find no merit in this revision application which is dismissed.