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2013 DIGILAW 1199 (PAT)

Paras Sahani v. State of Bihar

2013-10-01

RAJENDRA KUMAR MISHRA, V.N.SINHA

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JUDGMENT V.N. SINHA Heard learned counsel for the petitioners and the State. None appears for opposite party nos. 2 to 18, though Vakalatnama has been filed on their behalf. 2. Instant revision petition has come up before the Division Bench in the light of order no.5 dated 14.08.2012 passed by the Single Judge of the Court with reference to Chapter-II (1) (xv) of the Patna High Court Rules as according to the Single Judge the revision application assailing the order of acquittal for the offence under Section 302 and other allied Sections of the Indian Penal Code is required to be heard by a Division Bench of this Court for the reason that the offence is punishable with death or with imprisonment for life or with imprisonment of either description for more than ten years. 3. The revision application is directed against the judgment dated 6.9.2002 passed by Additional Sessions Judge, Fast Track Court No. 5, East Champaran, Motihari in Sessions Trial No. 157/90/115/02 arising out of Turkaulia P.S. Case No. 66/88 whereunder opposite party nos. 2 to 18 have been acquitted of the charge under Sections 147, 302/149 of the Indian Penal Code. 4. The informant has invoked the revisional jurisdiction of this Court. Learned Single Judge referred the matter to the Division Bench as he was of the view that the punishment which may be imposed on opposite party nos.2 to 18 in view of the High Court Rules is within the competence of the Division Bench of the Court. 5. Informant having invoked the revisional jurisdiction under Sections 397, 401 of the Code of Criminal Procedure, we have to consider the scope of the two Sections and our jurisdiction to convert the finding of acquittal into one of conviction. In this connection, we refer to sub Section 3 of Section 401 of the Code of Criminal Procedure, which specifically restrain the High Court from converting the finding of acquittal into one of conviction. 6. In view of the provision of sub Section 3 of Section 401 of the Code of Criminal Procedure, we are of the view that the reference of the revision application to the Division Bench was not called for. However, we having heard counsel for the parties, perused the judgment proceed to consider the merit of the revision petition. 8. 6. In view of the provision of sub Section 3 of Section 401 of the Code of Criminal Procedure, we are of the view that the reference of the revision application to the Division Bench was not called for. However, we having heard counsel for the parties, perused the judgment proceed to consider the merit of the revision petition. 8. Prosecution case as set out in the fardbeyan of informant Paras Sahani (P.W. 7) is that on the eve of Holi his son had gone to the village temple where the accused persons i.e. opposite party nos. 2 to 18 also came, asked the son of the informant to leave the temple premises as his other co-villagers have already left. Son of the informant refused to leave the temple premises asserting that his Khalihan (threshing-field) is nearby and by remaining present in the temple premises he is able to guard his Khalihan (threshing-field). Aforesaid interaction between the son of the informant and the accused persons led to altercation and exchange of unpleasant words persuading the accused persons to assault him by lathi causing his death. The occurrence is said to have been witnessed by other co-villagers, who according to the prosecution party were also present along with the deceased in the temple premises and had just left the temple premises but having seen the altercation and assault returned back and saw the occurrence. 9. In support of the prosecution case, besides the father of the deceased other villagers i.e. P.Ws. 2 to 6 have been examined. Their evidence has been elaborately considered by the trial court. It appears from paragraph 9 of the judgment that there is serious contradiction between the evidence of the villagers, who according to the prosecution party were present at the place of occurrence during altercation and assault. From perusal of their evidence as discussed in paragraph 9 of the impugned judgment, it is quite evident that they are not consistent about the place of altercation, assault, as according to some of the witnesses altercation, assault took place near the mango tree but according to others in the Khalihan (threshing-field) of Sk. Daroga. Neither the Khalihan (threshing-field) of Sk. Daroga nor the mango tree is within the temple premises as Mango tree is at a distance of 75 ft. from the temple and Khalihan (threshing-field) of Sk. Daroga is further 45-60 ft. Daroga. Neither the Khalihan (threshing-field) of Sk. Daroga nor the mango tree is within the temple premises as Mango tree is at a distance of 75 ft. from the temple and Khalihan (threshing-field) of Sk. Daroga is further 45-60 ft. away from the Mango tree. There is even confusion about the temple as few of the witnesses have stated about the other temple and not the village temple where the altercation is said to have ensued between the accused and the deceased. To confirm the actual place of occurrence examination of the Investigating Officer of the case was necessary but he has not been examined. In such circumstances, the view taken by the trial court appears to be plausible one and we do not find any ground to interfere with the impugned judgment. Revision application is, accordingly, dismissed.