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2009 DIGILAW 586 (UTT)

MEHAR SINGH v. state OF UTTARAKHAND

2009-11-30

ALOK SINGH

body2009
JUDGMENT None appears on behalf of the revisionist even in the revised list. 2. Mr. B.S. Parihar, learned Brief Holder for the State of Uttarakhand/respondent no. 1. 3. Mr. Arvind Vashisht and Mrs. Monika Pant, learned counsel for the respondent no. 2. 4. Order sheet reveals that none was present on behalf of the revisionist on 02.04.2008, 28.04.2008, 21.05.2008, 18.06.2008, 09.07.2008, 03.12.2008, 07.01.2009, 19.02.2009. Even today none is present for the revisionist. This court has no other option except to proceed with matter and to hear the respondents and decide the revision on merit. 5. Present revision has been filed by the revisionist under section 397 read with 401 of Cr.P.C. challenging the order of acquittal of respondents no. 2 to 5 vide judgment dated 28.04.1997 passed by Additional District and Sessions Judge, Roorkee in Sessions Trial No. 37 of 1996 (State Vs. Mukhatayara) under section 302 read with section 34 IPC, Police Station – Ganganahar, District – Haridwar. 6. Brief facts of the present case are that Mehar Singh – PW3 lodged an First Information Report in the intervening night of 13-14.07.1995 alleging therein that son of his brother-in-law Sompal was drinking water from Government tap. Thereafter, Mukhatayara, his son-in-law Amichand and Ompal who were residents of the same village started using abusive language to Sompal. Sompal tried to stop them and came to the house. Mukhatayara having ballam in his hand and Elamchand son of Sameru and Ompal armed with lathi (stick) followed Sompal. Ompal caught from behind Sompal and Mukhatayara gave blow on the chest of Sompal by ballam. Informant stopped Mukhatayara then often accused started beating informant by lathi (sticks). Having heard the noise Tasin and Rishipal and other villagers reached on the spot and on their alarm accused escaped from the spot. 7. Chargesheet under section 302 read with section 34 IPC, against the accused, was filed after due investigation. After committal of the case to Sessions Court same was transferred to the court of Additional District and Sessions Judge, Roorkee, who has heard the matter and passed order of acquittal. 8. From the prosecution side ten witnesses were examined and out of 10 witnesses PW1 – Rishipal did not support the prosecution story and declared hostile. Informant – Mehar Singh tried to support the prosecution story. Rest of the witnesses were formal in nature. 8. From the prosecution side ten witnesses were examined and out of 10 witnesses PW1 – Rishipal did not support the prosecution story and declared hostile. Informant – Mehar Singh tried to support the prosecution story. Rest of the witnesses were formal in nature. Doctor, who has conducted the postmortem, has not been examined and instead B.S. Rana Pharmacist was examined as PW9 to prove postmortem report. 9. Learned Trial Court recorded finding of fact that there is no eye witness of the occurrence. Learned Trial Court further recorded that Rishipal PW1 who was shown to have been reached on the spot did not support the prosecution story. Learned Trial Court further observed that Mehar Singh PW 3 – informant, stated on oath that he has not seen the occurrence rather he reached on the spot thereafter and save Sompal laying on the cot with injury on his chest. Learned Trial court disbelieved that prosecution story and acquitted the respondents herein. 10. Mr. Arvind Vashisht, learned counsel for the respondent no. 2 argued that power of Revisional Court under section 397 and 401 of Cr.P.C. is limited to the extent to see perversity, illegality and procedural error committed by the Trial Court. He further argued that High Court while exercising revisional jurisdiction cannot re-appreciate the evidence. 11. Hon’ble Apex Court in the case of Akalu Ahir reported in 1973 (3) SCC page 583 has observed in para 8 as under: “......................the revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. ........................ it is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court in the court of trial, that the High Court is empowered to set aside the order of acquittal and direct the retrial of the acquitted accused persons. From the very nature of this power, it should be exercised in exceptional cases and with great care and caution. Trials are not to be lightly set aside when such order expose the accused persons to a fresh trial with all its consequential harassment. This matter is not res integra and had indeed been dealt with by this court at least in four cases noticed by the High Court. ......................... Trials are not to be lightly set aside when such order expose the accused persons to a fresh trial with all its consequential harassment. This matter is not res integra and had indeed been dealt with by this court at least in four cases noticed by the High Court. ......................... It makes 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 re-trial. No doubt, in the opinion of this court no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court’s power of ordering retrial can be laid down. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision: i. Where the trial court has no jurisdiction to try the case, but has still acquitted the accused; ii. Where the trial court has wrongly shut out evidence which the prosecution wished to produce; iii. Where the appellate court has wrongly held the evidence which was admitted by the Trial Court to the inadmissible; iv. Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and v. Where the acquittal is based on the compounding of the offence which is invalid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal.” 12. Hon’ble Apex Court, in the matter of Bindeshwari Prasad Singh Vs. State of Bihar reported in 2002 (6) SCC 650. In paras 13 and 14 observed as under: “13. The instant case is not one where any such illegality was committed by the Trial Court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the Trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. 14. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the Trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. 14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. At the best the High Court thought that the prosecution witnesses were reliable while the trial court took the opposite view. This Court has repeatedly observed that in exercise of revisional jurisdiction against an order of acquittal at the instance of a private party, the court exercises only limited jurisdiction and should not constitute itself into an appellate court which has a much wider jurisdiction to go into questions of facts and law, and to convert an order of acquittal into one of conviction.” 13. In the matter of Johar Vs. Mangal Prasad reported in 2008 (3) SCC 423 in para 19 has held as under : “19. The approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under sections 397 and 401 of the Code of Criminal Procedure, it exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred, but severally (sic severely) restricted particularly when it arises from a judgment of acquittal.” 14. From the dictum of the Hon’ble Apex Court (supra) it can safely be held that in a revision filed by the complainant against the order of acquittal, Revisional Court has no jurisdiction to re-appreciate the evidence. From the dictum of the Hon’ble Apex Court (supra) it can safely be held that in a revision filed by the complainant against the order of acquittal, Revisional Court has no jurisdiction to re-appreciate the evidence. Of course, Revisional Court has jurisdiction to see as to whether Trial Court has shut out or has overlooked the evidence which clarified the issue. Revisional Court can also see manifest error of law or jurisdictional or procedural error committed by Trial Court amounting to failure of justice. 15. I have carefully examined the record. I find that learned Trial Court has not committed any jurisdictional or procedural grave error justifying the interference by this Court under section 397 read with section 401 Cr.P.C. Learned Trial Court has discussed entire evidence available on record and came to the conclusion that prosecution fails to prove prosecution story. There is no material on record which was escaped from the notice of the Trial Court while passing the impugned order. I find Trial Court nowhere shut out the evidence which clinched the issue. 16. In view of this I do not find any justification to interfere with impugned judgment acquitting the accused. Revision is devoid of merit and as such, is dismissed.