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2003 DIGILAW 850 (RAJ)

Rupa Ram v. State of Rajasthan

2003-05-29

H.R.PANWAR

body2003
Honble PANWAR, J.–This revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, has been filed against the judgment and order dated 25.10.2002 passed by the learned Special Judge (SC/ST) Court, Merta, in Sessions Case No. 13/2002, by which the accused-respondents No. 2 to 4 have been acquitted of the offence under Section 447 and 323/34, IPC and Section 3 (1) (x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ``the Act). (2). I have heard learned counsel for the petitioner and the learned Public Prosecutor for the State. I have also gone through the impugned judgment and order as well as the certified copies of the record. (3). The facts and circumstance giving rise to this case, in nut shell, are that on 22.8.2000, an FIR was lodged by complainant- petitioner Roopa Ram with the Police Station, Thavla with the allegation that on that day, at about 2:00 p.m., when the was watching his Gawar crop, some five-six buffalows came to his filed and started grazing in the filed, he tried to save and protect his field and crop and by that time, Mahipal Singh, Shyam Singh, Chandan Singh and Mangu came there armed with Kassi and Lathis and started beating him and forcibly snatched Rs. 4500/- from him and started abusing him to lower down his prestige and caste. On this, the police registered a case under Sections 143, 323 and 379, IPC and Section 3 (1)(X of the Act. The investigation ensued and after conclusion thereof, a challan was filed in the Court of the learned Judicial Magistrate, Degana and ultimately the case was committed to the trial Court. The trial Court framed charges against the accused for the offences under Section 447 and 323/34, IPC and Section 3 (1)(X) of the Act and after trial, acquitted the accused of the aforesaid offences. Hence this revision petition. (4). It has been contended by the learned counsel for the petitioner that the learned trial court has erred in law as well as on facts in acquitting the accused of the offences aforesaid. It was further contended that the trial court erred in giving much emphasis on the Tehrir Ex.P.4 issued by the S.H.O. and ignored the injury report issued by Medical Officer Dr. Radhey Shyam Khatod. It was further contended that the trial court erred in giving much emphasis on the Tehrir Ex.P.4 issued by the S.H.O. and ignored the injury report issued by Medical Officer Dr. Radhey Shyam Khatod. It was also contended that the presence of PW 3 Pema Ram and PW 4 Anda Ram at the scene of the occurrence was most natural but the same have been disbelieved only on the pretext that they are the close relatives of the petitioner and as such they are interested witnesses in subserving the cause of the petitioner; and the minor contradiction in the statement of the witnesses shows that natural conduct of the witnesses and the same cannot be taken note of for recording to acquittal. (5). In Bansi Lal & Ors. vs. Laxman Singh (1), the Honble Supreme Court held as under:- ``The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside the order of acquittal and directing a retrial of the accused...... The dominant jurisdiction of the order of acquittal recorded by the trial court is the view it took of the evidence of the two eye witnesses. Having carefully gone through the records of the case we are satisfied that it was a possible view and it cannot be charecterised as illegal or perverse. It may well be that the learned Single Judge of the High Court was not inclined to agree with he said view on the basis of his independent scrutiny and appreciation of the evidence adduced in the case but that would not furnish any jurisdiction for interference in revision with the order of acquittal passed by the learned Additional Sessions Judge. Even in an appeal the appellate Court would not have been justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope. We accordingly hold that the High Court has clearly transgressed the limits of its revisional jurisdiction under Section 439(4) of Cr.P.C. in setting aside the order of acquittal passed by the Additional sessions Judge and directing a retrial of the case. (6). The revisional power of the High Court is much more restricted in its scope. We accordingly hold that the High Court has clearly transgressed the limits of its revisional jurisdiction under Section 439(4) of Cr.P.C. in setting aside the order of acquittal passed by the Additional sessions Judge and directing a retrial of the case. (6). In Mahendra Pratap Singh vs. Sarju Singh (3), the Honble Apex Court held as under:- ``In fact on reading the judgment of the High Court it is apparent to us that the learned Judge has re-weighed the evidence from his own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them. (7). In Khetra Basis Samal & Anr. vs. The State of Orissa etc. (3), placing reliance on its earlier judgment in D. Stephens vs. Nosibolla (4), the Honble Supreme Court held as under:- ``The revisional jurisdiction conferred on the High Court under Section 439 of the Code of Criminal Procedure is not to be lightly exercised, when it is invoked by a private complaint against an order of acquittal, against which the Government has a right of appeal under Section 417. It would be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record. (8). In Kaptan Singh & Ors. vs. State of M.P. & Anr. (5), The Apex Court held that the revisional power of High Court, chile sitting in judgment over an order of acquittal, should not be exercised unless there exists a manifest illegality or there is grave miscarriage of justice. (9). In Harihar Chakravarty vs. The State of West Bengal (6), the Supreme Court held that revisional jurisdiction of the High Court in not to be lightly exercised when it is invoked by a private complainant. (10). (9). In Harihar Chakravarty vs. The State of West Bengal (6), the Supreme Court held that revisional jurisdiction of the High Court in not to be lightly exercised when it is invoked by a private complainant. (10). In Gurshinder Singh vs. Joga Singh & Anr. (7), in a murder case, a revision was filed by the private complainant, however, the State did not file an appeal against the order of acquittal. The High Court summarily dismissed the revision filed by the complainant and the Honble Supreme Court held as under:- ``We have an obvious handicap in going into the merits of the case because the High Court has refused to consider the case on merits. This is not a case where the revision should have been dismissed summarily as has been done by the High Court. The case as presented by the prosecution requires a detailed scrutiny and evaluation of the evidence at the revisional stage, particularly because the State did not choose to file any appeal. Interest of justice requires that the revisional jurisdiction should have been exercised in an effective manner for ascertaining whether the acquittal was unmerited and consequently whether there was miscarriage of justice. (11). In Akalu Ahir & Ors. vs. Ramdeo Ram (8), the Apex Court observed as under:- ``This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision: (i) Where the trial court has no jurisdiction to try the case, but has still acquitted the accused; (ii) Where the trial court has wrongly, shut out evidence which the prosecution wished to produce; (iii) Where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible; (iv) Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and (v) Where the acquittal is based on the compounding of the offence which is invalid under the law. There categories were, however, merely illustrative and it was clarified that other case of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of the acquittal. (12). There categories were, however, merely illustrative and it was clarified that other case of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of the acquittal. (12). The Apex Court further observed as under:- ``No doubt, the appraisal of evidence by the trial judge in the case in hand is not perfect or free from flaw and a court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to reappraise the evidence for itself as if it is acting as a court of appeal and then order a retrial. It is unfortunate that a serious offence inspired by rivalry and jeolousy in the matter of election to the office of village Mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court. (13). In Vimal Singh vs. Khuman Singh & Anr. (9), the Honble Supreme Court held as under:- ``Coming to the ambit of power of the High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case of where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one conviction even if it is conviction. Sub-section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one conviction even if it is conviction. No doubt, the High Court in exercise of its revisional power an set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. (14). Same view held been taken by the Honble Supreme Court in Logendra Nath Jha & Ors. vs. Polailal Biswas (10); K. Chinnaswamy Reddy vs. State of A.P. (11); Mahendra Pratap Singh vs. Sarju Singh (12); Pakalapathi Narayana Gajapathi Raju & Ors. vs. Bonapalli Peda Appadu & Ors. (13); and Ayodhya Dube & Ors. vs. Ram Sumer Singh (14). (15). A Three Judges Bench of the Honble Supreme Court, in Thankappan Nadar & Ors. vs. Gopala Krishnan & Anr. (2002(2) WLC (15), reiterated the same view and held that it is not permissible for the High Court to re-appreciate evidence where there was no manifest error of law or procedure when there was no question of evidence on clinching issue having been overlooked. (16). In the instate case, the State has not filed any appeal against the impugned judgment and order of acquittal passed by the Court below and, therefore, the instant revision is examined in the light of the settled principles of law. I have carefully gone through the statement of witnesses produced b the prosecution. PW 1 Roopa Ram stated that when he was assaulted, one of the assailant took away Rs. 4500/- from his pocket. he does not know which of five accused removed the said amount. He further stated that one of the accused sat over him but does not know which of them sat over him. he further stated that PW 3 Prema Ram and PW 4 Ananda Ram are his uncle and nephew, respectively, whose field is away from that of his filed where the occurrence alleged to have taken place. PW 3 Prema Ram stated that some of the agriculturists informed him that there is a quarrel near to the well of Pooran Regar. he further stated that PW 3 Prema Ram and PW 4 Ananda Ram are his uncle and nephew, respectively, whose field is away from that of his filed where the occurrence alleged to have taken place. PW 3 Prema Ram stated that some of the agriculturists informed him that there is a quarrel near to the well of Pooran Regar. On this, he alongwith PW 4 Ananda Ram, went there and saw accused persons armed with Kassia and Lathis. From the careful scrutiny of the statements of PW 3 and PW 4, it is clear that these two persons have not witnesses the occurrence. None of them saw happening of occurrence, whereas PW 1 complainant stated that PW 3 and PW 4 intervened and rescued him. Further injuries, as stated by the complainant neither tally nor find corroboration from the injury report as well as from the statement of PW 6 Dr. Radhey Shyam Khatod. According to prosecution case, PW 3 and PW 4 went to the site of occurrence together. Statement of witnesses are not consistent, there are material contradictions and serious infirmities in the version given by them. PW 4 appears to have planted himself to be an eye witness when PW 3 has not witnesses the occurrence, there is absolutely no possibility for PW 4 to witness the occurrence. (17). A perusal of the impugned judgment and order reveals that the learned court below has considered the entire evidence, found material contradictions and discrepancies in the statement of the alleged eye witnesses, doubted the genuineness of the injury report and the presence of the alleged eye witnesses on the place of the incident and the relevant time. The injury report shows in all nine simple injuries caused by blunt weapon but, in fact, most of the alleged injuries are actually to injuries and the same are the pain felt by the victim. Thus, in view of the aforesaid settled legal proposition and the facts of the case, the order of acquittal passed by the trial Court cannot be said to unmerited. The is no manifest illegality or miscarriage of justice. Hence order impugned does not require any interference. I find no illegality, irregularity or perversity in the order impugned warranting interference under the limited revisional jurisdiction. (18). Consequently, the revision fails and is hereby dismissed.