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2009 DIGILAW 293 (CHH)

RAMDAS v. RAM KUMAR .

2009-11-10

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2009
JUDGMENT As per Hon 'ble Shri Sunil Kumar Sinha, J. :- 1. Being aggrieved with the judgment of acquittal dated 27th of November 2002, passed in ST. No.279/2002 by the V Additional Sessions Judge, Bilaspur (C.G.), the complainant (PW-1) has filed this Criminal Revision. 2. Respondents 1 to 6 were charged with the offences punishable under Sections 147& 302/149 IPC for commission of murder of deceased Kartikram Satnami on 15.01.2002 at about 5 :00 p.m. It was alleged that on the said date and time, the respondents/accused persons participated in rioting, formed unlawful assembly and in furtherance of the common object of the said assembly, committed murder of the deceased. According to the prosecution, the incident was witnessed by five eye-witnesses namely Ramdas (PW-1), Ramfal (PW-2), Shyamkali (PW-4), Narayan Prasad (PW -5) and Ramvilas (PW-6). The First Information Report (Ex.-P/1) was lodged by Ramdas (PW-1). It contains the names of the respondents/accused persons. It further contains that the respondents/accused persons had assaulted the deceased with lathi/danda. 3. After preparation of the Panchanama etc., the dead body of the deceased was sent for its postmortem and the postmortem examination was conducted by Dr.(Smt.) Kiran Nahrel (PW -7), who prepared her report (Ex-P/ 5). According to the postmortem report, she found 7 lacerated wounds on the person of the deceased. On internal examination, she found a linear fracture on the left portion of the skull and she also noticed sub-dural haemorrhage in the skull as also severe bleeding and haemorrhage in the internal portion of the brain. She further noticed a compound fracture on the right forearm having corresponding external injury. The Autopsy Surgeon opined that the cause of death was shock due to' internal and external haemorrhage and the injuries sustained and the death was homicidal in nature. 4. At the trial, all the above eye-witnesses namely Ramdas (PW-1), Ramfal (PW-2), Shyamkali (PW-4), Narayan Prasad (PW-5) and Ramvilas (PW-6) supported the case of the prosecution. They deposed that they saw the respondents/ accused persons assaulting the deceased Kartikram Satnami. 5. The learned Sessions Judge did not believe the testimonies of these witnesses on the ground that these witnesses deposed that the respondents/accused persons were assaulting the deceased with tabbal and lathi, whereas, in the First Information Report, it comes that the deceased was assaulted by the respondents/ accused persons with iathi/danda. 5. The learned Sessions Judge did not believe the testimonies of these witnesses on the ground that these witnesses deposed that the respondents/accused persons were assaulting the deceased with tabbal and lathi, whereas, in the First Information Report, it comes that the deceased was assaulted by the respondents/ accused persons with iathi/danda. It appears that the learned Sessions Judge has given much importance to the omission that there was no mention of use of tabbal by the respondents/accused persons in the First Information Report. which was lodged by one of the eye-witnesses namely Ram Das (PW -1). On this account, the testimonies of all the eye-witnesses have been disbelieved. 6. We may note that the eye-witnesses have never stated that the accused persons were armed with tabbal only and further that they had used the sharp portion of tab bal. On the contrary, it comes in their evidence that the respondents/ accused persons were armed with lathi and tabbal and they had assaulted the deceased by those weapons. All the injuries on the body of the deceased were found to be lacerated wounds. Therefore, the version of the eyewitnesses cannot be brushed aside on the basis of the said omission alone, when it was supported by the medical evidence and there was no discrepancy in the eye witness account and the medical evidence. So far as assaulting the deceased by using dandal/lathi is concerned, we may also note that even the lacerated wounds could be caused by tabbal, if the blunt portion of the same is used by the person using it. 7. It is a settled legal position that the revisional power of the High Court under Section 397 read with Section 401 does not create any right in the litigant, but only conserves the power to see that justice is done and the subordinate Courts do not exceed jurisdiction or abuse their powers. The order of lower Court ought not to be lightly set aside unless it has entailed miscarriage of justice or where two views are possible merely because the revisional Court takes the other view. It is only in glaring cases of injustice, resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of acquittal and direct are-trial of the acquitted accused. It is only in glaring cases of injustice, resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of acquittal and direct are-trial of the acquitted accused. The mere circumstances that a finding of fact recorded by the trial Court may, in the opinion of the High Court, be wrong, will not justify setting aside the acquittal and directing re-trial. The revisional court is entitled to reverse the finding only when it reaches to the conclusion that finding of the trial Court is perverse and the jurisdiction cannot be invoked lightly. Even in the cases where it is possible to take two views on the same matter then in the ordinary course the view taken by the Court below should not be interfered in the revisional jurisdiction. 8. In the case on hand, there were 5 eye-witnesses, who have categorically deposed about the incident, which took place on 15.01.2002 at 5:00 p.m. at an open place. There are no material discrepancies in the ocular version of these witnesses and the medical evidence available on record. Even the version of the eye-witnesses to the effect that the deceased was assaulted by the respondents/ accused persons by lathi/danda finds support from the contents of the First Information Report, which was lodged by one of the eye-witnesses. Therefore, the findings of the Sessions Court appear to be perverse, when it has completely discarded the case of the prosecution and the version of the five eye-witnesses, only on the ground that they deposed that some accused persons were armed with tabbal also and that fact is an omission in the First Information Report. Therefore, it is a case in which the testimonies of the reliable witnesses have been I brushed aside on account of the minor omission in the First Information Report which has resulted in grave miscarriage of justice. 9. In the opinion of this Court, the finding recorded by the Sessions Court deserves to be set aside and the matter deserves to be sent back for retrial in accordance with law. 10. In the result, the revision is allowed. 11. The impugned judgment of acquittal dated 27th November 2002 is set aside. 12. The matter is remitted back to the Sessions Court for its retrial in accordance with law. 13. 10. In the result, the revision is allowed. 11. The impugned judgment of acquittal dated 27th November 2002 is set aside. 12. The matter is remitted back to the Sessions Court for its retrial in accordance with law. 13. We observe that the Court retrying the respondents/accused persons will not be influenced by any observation made by us, because, the same is limited to the purpose of decision of this Criminal Revision. 14. The records of the Sessions Court be sent back forthwith along with the judgment of this Court. Revision Allowed.