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2009 DIGILAW 1611 (JHR)

Prakash Prasad Swarnkar v. State of Jharkhand

2009-12-18

D.K.SINHA

body2009
Judgment D.K. Sinha, J.-This Cr. Revision Application is directed against the judgment of acquittal of the members of the O.P. Nos. 2 to 8 herein in Cr. Appeal No. 70 of 2008 recorded by the Sessions Judge, Hazaribagh on 10th July, 2008 by setting aside the judgment of their convictibn and order of sentence passed by Sri Prakash Jha, Judicial Magistrate, 1st Class, Hazaribagh in G.R. No. 2960 of 2002 on 3.5.2008 corresponding to T.R. No. 128 of 2008 for the charge under Sections 147/ 323/504/341 I.P.C. 2. The prosecution against the O.P. Nos. 2 to 8 herein was launched on the basis of the Complaint Petition filed on behalf of the petitioner herein alleging inter alia that on 20.11.2002 at about 9.30 a.m. while he was engaged in making gold ornaments in his house the O.P . Nos. 2 to 8 entered 'into his house by breaking open forming an unlawful assembly and started abusing him. It was alleged against the O.P. No. 2 Lakhan Prasad that he attempted to strangulate the complainant whereas the O.P. No.6 Niranjan Prasad attempted to assault him with "Farsa" but the complainant managed to escape. At the instigation of the accused Jaibeer Sonar, accused Manoj Kumar attempted on the witness Shyam Kishore with "Ballam" but he was rescued by another witness Nand Kishore who happened to be the brother of the complainant. In the meantime, the complainant/informant's brothers, his mother, wife, sister, sister-in-law and wife of Nand Kishore screamed for help but all the accused assaulted his mother with Lathi as a result of which she sustained injuries. The overt act against the other accused Prabhat Kumar, Santosh Kumar and Sanjeet Kumar was attributed in the manner that they scattered household articles of the house of the complainant and that all the accused took away the ornaments from the possession of the complainant. The genesis of the occurrence was land dispute and the members of the Opposite Party-accused wanted to grab his land and that they had been earlier held guilty by a court of law in a different case. Pursuant to the order recorded under Section 156(3) of the Code of Criminal Procedure the case was registered as Ramgarh P.S Case No. 441 of 2002 on 4.12.2002 for the alleged offence under Sections 147/341/323/504 of the Indian Penal Code. 3. Mr. P.P.N. Roy. learned Sr. Pursuant to the order recorded under Section 156(3) of the Code of Criminal Procedure the case was registered as Ramgarh P.S Case No. 441 of 2002 on 4.12.2002 for the alleged offence under Sections 147/341/323/504 of the Indian Penal Code. 3. Mr. P.P.N. Roy. learned Sr. Counsel appearing on behalf of the petitioner assailed the impugned order of acquittal passed by the Sessions Judge, Hazaribagh in Cr. Appeal No. 70 of 2008 recorded on 10th July, 2008 on the ground that the material part of the evidence of the eyewitnesses viz. P.W, 1 Bhuneshwar Prasad, P.W.2 Deonandan Sonar, P.W. 3 Shyam Kishore Verma, P.W. 4 Nand Kishore Prasad, P.W. 5 Prakash Prasad Swarnkar informant himself and P.W. 6 Irshad Ansar was overlooked and ignored while recording the order of acquittal though they had categorically and consistently stated that they had seen the occurrence with the involvement of the accused persons who assaulted the informant, his brother and mother and also used abusive language by breaking open the door of the house of the complainant/informant. They were further consistent that all the accused persons i.e. the O.P. Nos. 2 to 8 herein, after forming unlawful assembly, stormed the house of the complainant, assaulted the inmates and scattered household articles by taking law in their hands. The learned Sessions Judge further failed to take into consideration that on account of prevailing land dispute between th13 parties, there was genesis and cause for the accused persons who took the law in their hands and they were aggressors by entering in the personal life and property of the complainant and in view of such materials on record, acquittal of the accused persons would amount to miscarriage of justice and therefore, the judgment of acquittal recorded by the Sessions Judge Hazaribagh in Cr. Appeal No. 70 of 2008 may be set aside and accordingly appropriate order may be passed by remanding back the matter for fresh consideration. 4. On the other hand learned Counsel appearing for the O.P. Nos.2 to 8 Mr. Anil Kumar strongly controverted the contention of the Counsel for the petitioner and submitted that the judgment recorded in the appeal by the Sessions Judge is well discussed and it was not the case wherein clean acquittal was awarded to the accused persons, who are the O.P. Nos. Anil Kumar strongly controverted the contention of the Counsel for the petitioner and submitted that the judgment recorded in the appeal by the Sessions Judge is well discussed and it was not the case wherein clean acquittal was awarded to the accused persons, who are the O.P. Nos. 2 to 8 herein rather they were acquitted after benefit of doubt was given to them as the learned Sessions Judge held that the prosecution case could not be proved beyond all probabilities. The Sessions Judge observed:- "It appears that all the witnesses have given a different place of occurrence and manner of occurrence. The complainant stated that he was assaulted by tangi and Manoj assaulted his brother with Ballam but all the witnesses have stated that they were assaulted by fists and blows. Even the place of occurrence is not fixed. While the informant stated that he saw the occurrence while sitting on the well but other witnesses stated that they saw the occurrence outside of the house. Some of the witnesses have stated that the occurrence took place inside the house. There is vital contradictions about the place of occurrence, manner of occurrence. Thus, in my opinion the prosecution case has become doubtful and the prosecution has failed to prove the case beyond reasonable doubt. Accordingly, benefit of doubt is given to the appellants and they are acquitted from the charges levelled against them." 5. It would not be out of place to mention that the offence as alleged against the accused persons were of the nature of summons trial and substance of accusation was explained to each of them. However, the Counsel appearing on behalf of the petitioners failed to show any ground that the observation made by the Appellate Court suffered illegality or irregularity on material particulars or there was error of record in his observation so as to call for interference. 6. The Supreme Court of India in K. Chinnaswamy Reddy VS. However, the Counsel appearing on behalf of the petitioners failed to show any ground that the observation made by the Appellate Court suffered illegality or irregularity on material particulars or there was error of record in his observation so as to call for interference. 6. The Supreme Court of India in K. Chinnaswamy Reddy VS. The Stale of Andhra Pradesh and Another, reported in A. I. R. 1962 S.C. 1788 observed:- 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 private parties, though the State may not have thought fit to appeal; but this jurisdiction should 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.' Sub-section (4) of S. 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 and 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 overlooked either by the trial court or by the appeal court, or 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 an order of acquittal." 7. I am constrained to observe that the learned Counsel for the petitioner failed to show the present one as an exceptional case by pointing out glaring defect in the procedure while conducting trial of the accused persons or there was manifest error on a point of law consequent to flagrant miscarriage of justice or other criteria relying upon the proposition of law, as referred to hereinbefore. I am afraid that the Sr. Counsel failed to show any ground for interference in the judgment of acquittal recorded by the Sessions Judge in Cr. Appeal No. 70 of 2008 arising out of T.R. No. 128 of 2008 (G.R. No. 2960 of 2002) so as to call for interference. 8. There being no merit, this Revision is dismissed.