Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 929 (RAJ)

Maniya v. State of Rajasthan

2005-03-29

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By this revision petition under Section 397/401, CrPC, the petitioner has challenged the Judgment dated 03.04.2000 passed by the Additional Sessions Judge, Abu Road (for short, “the appellate Court” hereinafter) in Criminal Appeal No. 54/1996, by which the appellate Court dismissed the appeal filed by the accused-petitioner challenging the Judgment and order of conviction and sentence dated 06.02.1996 passed by the Judicial Magistrate, Pindwara (for short, “the trial Court” hereinafter) whereby the accused-petitioner was held guilty of the offence under Section 394, IPC, and sentenced to rigorous imprisonment for one year and a fine of Rs.500/-and in default of payment of fine further to undergo one month’s rigorous imprisonment. 2. The accused-petitioner, alongwith co-accused Vagta, was tried for the offence punishable under Section 394, IPC, on the allegation that in the intervening night of 29.06.1995 and 30.06.1995, he along with co-accused Vagta took away gold ear-ring of complainant’s mother Smt. Bhanwari by causing injury to her right ear. After hearing the parties and appreciating the evidence on record, the trial Court, vide Judgment and order dated 06.02.1996, acquitted co-accused Vagta of the offence by giving him the benefit of doubt. However, petitioner has been convicted and sentenced for the offence under Section 394, IPC, as stated hereinabove. Being aggrieved by the Judgment and order of the trial Court, petitioner preferred an appeal which has been dismissed by the appellate Court vide Judgment dated 03.04.2000. Hence, this revision petition. 3. I have heard learned Counsel for the petitioner and the Public Prosecutor. Perused the Judgment s of the Courts below as also the record of the case. 4. The impugned Judgment was passed by the appellate Court on 03.04.2000 and the present revision petition was filed 22.01.2005. Thus, the revision has been filed after the delay of 4 years and 204 days. An application under Section 5 of the Limitation Act has been filed on behalf of the petitioner for condonation of delay. The main ground taken in the application under Section 5 of the Limitation Act is that the appeal was decided in the absence of the petitioner and his Counsel and petitioner could come to know about decision in the appeal only on 112.2004 when the warrant of arrest was executed on him. The main ground taken in the application under Section 5 of the Limitation Act is that the appeal was decided in the absence of the petitioner and his Counsel and petitioner could come to know about decision in the appeal only on 112.2004 when the warrant of arrest was executed on him. It is, no doubt, true that on account of non-appearance of the petitioner and his Counsel before the appellate Court, the appeal was decided in their absence on merit after re-appreciating the entire evidence on record. The appeal was filed before the appellate Court on 11.03.1996 and the same was decided on 03.04.2000. The petitioner and his Counsel were well aware about pendency of the appeal but none of them put in appearance before the appellate Court when the matter came up for hearing. Petitioner himself deliberately avoided his appearance before the appellate Court for nearly 5 years. It seems that the appellant deliberately avoided appearance before the appellate Court on the day when the appeal was to be heard and remained away from the Court till his arrest by execution of warrant. Therefore, I do not find any merit in the application under Section 5 of the Limitation and the same is hereby dismissed. As the appeal is hopelessly barred by limitation, it is liable to be dismissed on this count alone. 5. After perusal of the impugned Judgment s and the record, I am of the view that even on merit, the petitioner has no case. PW 5 Smt. Bhanwari, in her statement has stated that in the intervening night of the incident, some one snatched the gold ear-ring and she saw two persons running. On account of snatching the ear-ring, injury was caused to her right ear. She has stated that her son followed those persons running towards the water-pond but could not apprehend them. Similar is the statement of her son PW 3 Sawara Ram. It is established from the facts on record that the said ear-ring was recovered on the information and at the instance of the petitioner in the presence of independent Motbir witnesses. The recovered ear-ring has been identified by these two witnesses as belonging to PW 5 Smt. Bhanwari. The medical evidence also supports causing of injury on the right ear of PW 5 Smt. Bhanwari, though with some discrepancy regarding duration of the injury. The recovered ear-ring has been identified by these two witnesses as belonging to PW 5 Smt. Bhanwari. The medical evidence also supports causing of injury on the right ear of PW 5 Smt. Bhanwari, though with some discrepancy regarding duration of the injury. There is also an information under Section 27 of the Evidence Act by the petitioner to the effect that he and co-accused committed the said offence. The trial Court, after hearing the parties and appreciating the evidence on record came to the conclusion that it was the petitioner, who committed the aforesaid offence. In appeal, though the petitioner and his Counsel did not put-in appearance but the appellate Court has also re-appreciated the evidence and concurred with the finding arrived at by the Court below. Thus, there are concurrent findings of facts arrived at by the Courts below holding the petitioner guilty of the offence under Section 394, IPC. 6. A Three Judge Bench of the Hon’ble Supreme Court in Duli Chand vs. Delhi Administration, 1975 (4) SCC 649 , held that it is not the practice of the Court to re-assess and re-appreciate the evidence for the purpose of examining whether the finding of fact concurrently arrived is correct or not and it is only in rare and exceptional cases where there is some manifest illegality or grave and serious miscarriage of justice that this Court would interfere with such finding of fact. 7. In view of the settled legal proposition, on close scrutiny of the evidence produced by the prosecution in the instant case, I do not find any jurisdictional error, illegality or perversity. Both the Courts below concurrently found the petitioner guilty for the offence, for which he has been convicted and sentenced. In the circumstances, therefore, it cannot be said that any manifest illegality or grave and serious injustice has been caused to the petitioner. In the circumstances, therefore, it is not a fit case warranting interference in the revisional jurisdiction. 8. Consequently, the application under Section 5 of the Limitation Act as well as the revision petition on merit are dismissed accordingly. The impugned Judgment s of conviction and sentence passed by the Courts below are maintained. The application for suspension of sentence also stands dismissed.