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2009 DIGILAW 375 (CHH)

Balram v. Chhediram Patel

2009-12-09

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2009
Judgment RAJEEV GUPTA, C.J. (1) This is complainant's revision petition against the impugned judgment dated 26-7-2003, passed by the Third Additional Sessions Judge, Ambikapur, Surguja, in a Sessions Trial No. 183/1995, whereby respondent/accused Chhediram Patel was acquitted of the charge under Section 302 read with Section 34 of the IPC. (2) POLICE Sitapur, district Surguja after completion of investigation of the case registered initially on the Merg intimation about a dead body being found in a well in the village, charge-sheeted respondent/accused Chhediram Patel and his co-accused Laxmi Prasad for the alleged commission of the offence punishable under Section 302 read with Section 34 of the IPC on the accusation of their having committed murder of deceased Devraj in the night of 25-3-1994. Accused Laxmi Prasad died during the trial on 25-6-2002 and as such, the trial against him stood abated. (3) RESPONDENT/accused Chhediram Patel abjured his guilt and pleaded false implication to the charge framed by the trial Court under Section 302 read with Section 34 of the IPC. (4) AT the trial, the above charge against respondent/accused Chhediram Patel was sought to be proved by the prosecution on the evidence of PW-1 Jitku, PW-2 Dr. K. K. Dutta, PW-3 Mangal Das, PW-4 Asharam, PW-5 Chamru Prasad Gupta, PW-6 Deenanath, PW-7 Parmeshwar Barik, PW-8 Banshidhar Yadav, PW-9 Shivkumar, PW- 10 KMS Khan, and PW-11 B. K. Singh. In addition to the above prosecution witnesses, two more witnesses were examined as Court witnesses (CW/1 Balram and CW/2 Paras), both sons of deceased Devraj. The accused also examined two witnesses in his defence - DW/1 Sakaru and DW/2 Veersingh. Of these eleven witnesses examined by the prosecution, PW/1 Jitku and PW/4 Asharam were examined as eyewitnesses of the alleged incident of murder of Devraj. Of these two eye-witnesses, PW/1 Jitku did not support the prosecution case at all and was declared hostile by the prosecution. (5) The trial Court, on a close scrutiny of the entire evidence led before it found that the evidence of the prosecution witnesses suffers from serious infirmities; PW/4 Asharam in fact did not witness the occurrence and was a got-up eye-witness; the alleged seizure of lathi as weapon of offence from accused Chhediram Patel could not be established by the prosecution. The trial Court, on the above evidence found it quite un-safe to act upon the prosecution evidence and as such, acquitted respondent/accused Chhediram Patel vide impugned judgment dated 26-7-2003. (6) SHRI D. N. Prajapati, learned counsel for the petitioner vehemently argued that the trial Court has erred in discarding the evidence of PW/4 Asharam on flimsy and untenable grounds. Learned counsel further submitted that the evidence of PW/4 Asharam which stood corroborated by the evidence of the Court witnesses CW/1 Balram and CW/2 Paras, was more than sufficient for conviction of respondent/ accused Chhediram Patel under Section 302 read with Section 34 of the IPC. Shri Manoj Mishra, learned counsel for respondent No. 1 on the other hand supported the impugned judgment of acquittal and contended that as the evidence of PW/4 Asharam was not reliable and the prosecution could not adduce any other evidence before the trial Court to connect respondent /accused Chhediram Patel with the alleged commission of murder of Devraj, the trial Court was left with no other option, but to acquit respondent/accused Chhediram Patel, of the charge under Section 302 read with Section 34 of the IPC. (7) SHRI Akhil Agrawal, learned Panel Lawyer supported the submissions of SHRI D. N. Prajapati, learned counsel for the petitioner/complainant. (8) 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 v. Ambika Yadav and another (supra) 2004 Cri LJ 3115 : AIR 2004 SC 4583 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. 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. 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 misappreciated the evidence on record. 6. In K. Chinnaswamy Reddy v. State of AP (AIR 1962 SC 1788 : (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. 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 : 2002 Cri LJ 3788 : AIR 2002 SC 2907 noticing principles laid down in Stephens' and Chinnaswamy Reddy2 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. 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." 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 v. Ambika Yadav and another (supra) (2004 Cri LJ 3115) will not by itself be a sufficient ground to warrant interference in a complainants revision petition against the judgment of acquittal. (9) Now reverting to the present case, admittedly, the body of deceased Devraj was found floating in the well of one Govardhan. The entire prosecution case against accused Chhediram Patel was founded on the eyewitness account of PW/1 Jitku and PW/4 Asharam. PW/1 Jitku did not support the prosecution case at all and was declared hostile by the prosecution. The trial Court on a close scrutiny of the evidence of PW/4 Asharam in paras 13 to 20 of the impugned judgment found several infirmities in his evidence which have been spelt out in paras 15 to 19 of the impugned judgment. The case diary statement of PW/4 Asharam was recorded by the Police on 24-8-1994 i.e. after about five months of the alleged incident which is said to have taken place on 25-3- 1994. True, prior to that his another statement was recorded under Section 164 of the Cr. P. C. but even the said statement was recorded after about one month of the incident on 27-4-1994. True, prior to that his another statement was recorded under Section 164 of the Cr. P. C. but even the said statement was recorded after about one month of the incident on 27-4-1994. No chemical examiners report was produced before the trial Court to establish that the lathi said to have been seized at the instance of accused Chhediram Patel was stained with blood, much less with human blood. (10) On due consideration of the submissions of learned counsel for the parties; the findings recorded by the trial Court leading to acquittal of accused Chhediram Patel; the evidence led before the trial Court in general and that of PW/4 Asharam in particular; and the above mentioned broad features of the case, we are satisfied that the findings recorded by the trial Court leading to acquittal of respondent/accused Chhediram Patel do not suffer from any such infirmity which may warrant interference by this Court in this complainant's revision petition against the impugned judgment of acquittal. The revision petition filed by the petitioner/ complainant against the impugned judgment of acquittal, therefore, is liable to be dismissed and is hereby dismissed. Petition dismissed.