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2009 DIGILAW 255 (CHH)

SHANKARLAL v. HIRAM GABEL ALIAS HEMLAL

2009-09-24

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2009
ORDER As per Hon'ble Shri Rajeev Gupta, C.J. :- 1. Shri Parag Kotecha, learned counsel for the petitioner is heard' on admission. 2. Petitioner/ informant Shankarlal has filed this revision petition against the impugned judgment of acquittal dated 08.11.2001, passed by the Additional Sessions Judge, Sakti, District Bilaspur in Sessions Trial No.22/2001, whereby respondents/accused persons Hiram Gabel @ Hernlal, Tribhuwan and Devdatt were acquitted of the charges under sections 302 and 323 read with Section 34 of the Indian Penal Code. 3. Police Malkharoda, district Janjgir Champa after completion of the investigation of the case registered on the report of the petitioner charge-sheeted accused persons Hiram Gabel @ HernIal, Tribhuwan and Devdatt on the accusation of their having committed murder of deceased Man Singh and caused simple hurt to petitioner Shankarlal in the intervening night of 8th and 9th of October, 2000. 4. The accused persons abjured their guilt and pleaded false implication to the charges framed by the trial Court. 5. At the trial, the above charges against the accused persons were sought to be proved on the evidence of PW-1 Shankarlal, PW-2 Chandrika Prasad, PW-3 Ishwardeen, PW-4 Melaram, PW-5 Pushpendra Kumar Yadav, PW-6 Jethmati, PW-7 Dr. RP Kurre, PW-8 Kripal Singh Thakur, PW-9 Dhukram, PW-10 Lansingh, PW-11 Johitram, PW-12 Narendra Tripathi, PW-13 Dr S. Chatterji, PW -14 Ramesh Chandra and PW -15 Gajendra. 6. Of the above-named prosecution witnesses, PW - 2 Chandrika Prasad, PW -4 Melaram and PW -11 Johitram did not support the prosecution case and were declared hostile. 7. The trial Court on a close scrutiny of the entire evidence of the prosecution witnesses found that the evidence of solitary eyewitness PW-1 Shankarlal suffered from serious infirmities and the evidence of PW -6 Jethmati was highly discrepant. The trial Court in view of the above infirmities in the prosecution evidence and the fact that the incident took place in the dark hours of night found it quite unsafe to record conviction of the accused persons and therefore, passed the impugned judgment of their acquittal. 8. Shri Parag Kotecha, learned counsel for the petitioner/complainant relying upon dictum of the Apex Court in the case of Ram Briksh Singh and Others Vs. Ambika Yadav and Another-1, vehemently argued that the trial Court has erred in recording the impugned judgment of acquittal by mis-appreciating the evidence of prosecution witnesses. 8. Shri Parag Kotecha, learned counsel for the petitioner/complainant relying upon dictum of the Apex Court in the case of Ram Briksh Singh and Others Vs. Ambika Yadav and Another-1, vehemently argued that the trial Court has erred in recording the impugned judgment of acquittal by mis-appreciating the evidence of prosecution witnesses. Learned counsel further submitted that the eyewitness account of PW-1 Shankarlal corroborated by the evidence of his mother PW-6 Jethmati and the medical evidence is sufficient to establish the charges against the accused persons. 1. (2004) 7 SCC 665 9. The Apex Court while considering the scope of interference in a complainant's revision petition against the acquittal in the case of Ram Briksh Singh and Others Vs. Ambika Yadav and Another-1 (Supra) relied upon by the petitioner/ complainant himself observed in paras 3 to 7 : "3. The principles on which a revisional court can set aside a judgment and order of acquittal passed in favour of the accused are well settled by a catena of judgments. The difficulty, however, arises at times about the application of the said principles. It is true that there is a statutory prohibition contained in sub-section (3) of Section 401 of the Criminal Procedure Code on converting a finding of acquittal into one of conviction and what is prohibited cannot be done indirectly as well. The question, however, is, has the High Court indirectly done what is prohibited. 4. Sections 397 to 401 of the Code are a group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice. 5. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice. 5. More than half a century ago, in D. Stephens v. Nosibolla (AIR 1951 SC 196 : 1951 SCR 284 : 52 Cri LJ 510) this Court held that revisional jurisdiction when it is invoked against an order of acquittal by a private complainant is not to be lightly exercised, it could be exercised only in exceptional cases to correct a manifest illegality or to prevent gross miscarriage of justice and not to be ordinarily used merely for the reason that the trial court has mis-appreciated the evidence on record. 6. In K Chinnaswamy Reddy v. State of A.P. (AIR 1962 SC 1788 : (1963) 3 SCR412; (1963) 1 Cri LJ 8) a note of caution was appended so that the High Court does not convert a finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot directly convert a finding of acquittal into a finding of conviction in view of specific statutory prohibition. While noticing that it is not possible to lay down the criteria for determining exceptional cases which would cover all contingencies for exercise of revisional power, some cases by way of illustration were mentioned wherein the high Court would be justified in interfering with the finding of acquittal in revision. The High Court would be justified to interfere where material evidence is overlooked by the trial court. 7. In a recent decision in Bindeshwari Prasad Singh v. State of Bihar (now Jharkhand) ((2002) 6 SCC 650: 2002 SCC (Cri) 1448 noticing principles laid down in Stephens! and Chinnaswamy Reddy-2 it was held that the High Court was not justified in reappreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code since it was well settled that the order of acquittal cannot be interfered with in revision merely on the ground of errors in appreciation of evidence. Relying upon these decisions, Mr. Relying upon these decisions, Mr. Mishra contends that the High Court while interfering with the judgment and order of the Court of Session has not kept in view the parameters of exercise of revisional jurisdiction." 10. The incident of assault on deceased Man Singh and injured Shankarlal admittedly took place in the dark hours of night. PW -1 Shankarlal in para 9 of his cross-examination frankly admitted that on account of the darkness he could not identify those three persons who were moving around in the field of the accused persons. It has also come in evidence of PW-6 Jethmati that when she reached her field next morning, she found Shankarlallying injured in the field who was taken by the villagers in a Jeep to the hospital and as Shankarlal was unconscious he could not talk to anyone. About the author of the First Information Report a serious doubt is created by PW -1 Shankarlal himselfby stating in paras 13 and 17 that the First Information Report was recorded on the information given by his brother and subsequently his thtu11b impression was obtained by the Police on the said report in the hospital. 11. On due consideration of the submissions of learned counsel for the petitioner; the findings recorded by the trial Court leading to the acquittal of the accused persons; the evidence led by the prosecution at the trial in general and that of PW-1 Shankarlal and PW -6 Jethmati in particular, we are of the opinion that the infirmities pointed out by the trial Court in the impugned judgment of acquittal in the evidence of PW -1 Shankarlal and PW -6 Jethmati are very much borne out from the record. Learned counsel for the petitioner could not point out any such piece of legal evidence which has been kept out of consideration by the trial Court. 12. Mere alleged mis-appreciation of the evidence of the prosecution witnesses by the trial Court in view of the above quoted dictum of the Apex Court in the case of Ram Briksh Singh and Others Vs. Ambika Yadav and Another-2 (Supra) will not by itself be a sufficient ground to warrant interference in a complainant's revision petition against the judgment of acquittal. 13. For the foregoing reasons, we do not find any scope for interference in the impugned judgment of acquittal. 14. Ambika Yadav and Another-2 (Supra) will not by itself be a sufficient ground to warrant interference in a complainant's revision petition against the judgment of acquittal. 13. For the foregoing reasons, we do not find any scope for interference in the impugned judgment of acquittal. 14. The revisional petition filed by the petitioner/complainant, therefore, is liable to be dismissed and is hereby dismissed summarily. Revision Dismissed.