JUDGMENT 1. Petitioner has prayed for setting aside the judgment dated 16.12.2002 passed by Sri Chandra Pathak, Judicial Magistrate, 1st Class, Siwan in connection with G.R. No.2040 of 1999 acquitting Opposite Party Nos. 2 to 5 from the charges under Section 379, 323, 323, 341/34 of the IPC. 2. On 23-11-1993 at about 07:45 P.M., P.W.-2, Ram Suresh Yadav gave his fardbeyan while he was admitted at Sadar Hospital, Duraunda alleging inter alia that on the same day while he along with his brother Ramesh Yadav was returning from Rasalpur Bazar and at about 07:00 P.M. reached near the orchard of Devi Babu, his co-villagers, Sitabi Yadav, Gulab Chand Yadav, Rudal Yadav, Kedar Yadav, Nagu Yadav armed with Lathi, Danda, Chain, Knife besieged them and further said that why they have filed Sanha against them. During course thereof, an altercation took place as a result of which all of them assaulted him as well as his brother on account of which they sustained hurt. On hue and cry when the villagers began to assemble Sitabi Yadav snatched away Rs.5000/- from his pocket while the others took away wrist watch and bicycle from his brother and escaped towards village Rasalpur. The aforesaid occurrence was committed in the background of land dispute. 3. On the basis of the aforesaid fardbeyan Daraunda P.S. Case No.139 of 1999 was registered whereupon investigation commenced and concluded by way of filing charge sheet against Sitabi Yadav, Rudal Yadav, Nagu Yadav, Kedar Yadav. On the basis thereof trial proceeded and culminated in a manner which happens to be the subject matter of instant revision. 4. It has been submitted on behalf of petitioner that there happens to be consistent version of the injured who have been examined as PW-2 as well as PW-3 regarding assault as well as snatching of cash, bicycle, wrist watch, which also been found duly corroborated by PW-1 as well as PW-4. It has further been submitted that by way of examination of PW-5, the doctor, the injuries having on the persons of both the brothers have been legally brought up on record to corroborate the occurrence of assault. However, the learned trial court without appreciating the evidence in its right perspective acquitted the Opposite Party Nos.2 to 5. 5. The learned Additional Public Prosecutor endorsed the view as argued on behalf of petitioner. 6. The learned counsel for the Opposite Party Nos. However, the learned trial court without appreciating the evidence in its right perspective acquitted the Opposite Party Nos.2 to 5. 5. The learned Additional Public Prosecutor endorsed the view as argued on behalf of petitioner. 6. The learned counsel for the Opposite Party Nos. 2 to 5 have submitted that instant petition is not maintainable because of the fact that from the judgment impugned, it is apparent that the learned lower court had minutely gone through the evidence available on the record and after appreciating the embellishment as well as inconsistency persisting therein, disbelieved the prosecution version. Therefore, there happens to be no scope for the revisional court to interfere with the finding recorded by the learned lower court. 7. During criminal prosecution, innocence of accused is the presumption till it is rebutted by the judgment of conviction. When there happens to be judgment of acquittal then this presumption possesses more strength and in the aforesaid background, there happens to be consistent judicial pronouncement that in case two views are possible from the evidence available on the record, the view having in favour of accused should be accepted. 8. The Apex Court has occasion to adjudicate upon revision against acquittal at the instance of private party, and therefore, laid down certain parameter for that purpose. In Sheetala Prasad & Ors. Vs. Sri Kant & Anr. reported in 2012 CR.L.J. 1404 the Apex Court has dealt with the ambit and scope of revisional jurisdiction while adjudicating upon revision against acquittal, and for better appreciation the relevant paras are quoted below: “9. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-Section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-Section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice require interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered. 10. Applying the above stated principles to the facts of the case on hand, this Court finds that after discussing medical evidence and evidence of injured witness in great detail the High Court has prima facie come to the conclusion that case under Section 308 IPC is made out against the appellants. Such a conclusion could have been recorded only in a properly constituted appeal, filed by the State Government. The High Court has further concluded that no offence punishable under Section 324 IPC is committed by the appellants. This finding could have been recorded only in an appeal filed by the appellants. In the face of prohibition contained in Section 401(3) of the Code of Criminal Procedure, it was all the more incumbent upon the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method. This finding could have been recorded only in an appeal filed by the appellants. In the face of prohibition contained in Section 401(3) of the Code of Criminal Procedure, it was all the more incumbent upon the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method. Further, the matter is remitted to the learned Additional Sessions Judge for the purpose of passing fresh order of conviction and imposition of sentence on the appellants in the light of what is observed in the impugned judgment. In the impugned judgment, the High Court has concluded that the appellants are guilty under Section 308 read with Section 149 IPC and not under Section 324 read with Section 149 IPC. Therefore, on remand the Trial Court is left with no judicial discretion but to convict the appellants under Section 308 read with Section 149 IPC and impose punishment on them. Normally, when High Court decides to interfere with the judgment of the Trial Court in exercise of revisional jurisdiction, the retrial of the case is ordered based on certain well settled principles. However, after recording guilt of an accused under particular provision of Indian Penal Code, the matter could not have been remitted to the Sessions Court for passing appropriate order of conviction and punishment.” 9. Because of the fact that the law as laid down did not permit to deal with the evidence in detail and conclude identifying application of particular penal provision as it amount to directing the lower court to confine its options to proceed with the trial in case the matter is remitted back being in violation of Section 401(c) Cr. P.C. therefore certain grave lapses are brought up on record which could speak about the non-application of judicial mind, justifying remand for reappraisal in proper way duly recognized under law. 10. From the evidence of PW-5, it is apparent that both the injured were examined on the same date and numerous injuries were found over their person. The cross-examination did not succeed in getting its truthfulness shattered. From the judgment impugned it is manifest that learned trial court did not wish to see the same nor dealt with the same in consonance with the oral evidence. 11. The cross-examination did not succeed in getting its truthfulness shattered. From the judgment impugned it is manifest that learned trial court did not wish to see the same nor dealt with the same in consonance with the oral evidence. 11. From the lower court judgment it is also evident that the evidence of both the injured has not been properly appreciated. Certain minor contradiction is not going to adverse to the prosecution case. Even if, part of the evidence is found unreliable, that does not mean that whole evidence has to be thrown away when it is found consistent as well as corroborated by the medical evidence as well as by the independent witness as the principle falsus in uno falsus omnibus is not applicable during course of appreciation of evidence. Status of an injured witness has been identified by the Hon’ble Apex Court in Mano Dutt & Anr. Vs. State of U.P. reported in 2012 (2) PLJR (SC) 163. “23. In our view, non-examination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. We may merely refer to the case of Abdul Sayeed v. State of Madhya Pradesh [ (2010) 10 SCC 259 ], where this Court held as under: "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.] 29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tube well. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. 29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW-4) has rightly been relied upon by the courts below." 30. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW-4) has rightly been relied upon by the courts below." 30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein." 24. To the similar effect is the judgment of this Court in the case of Balraje @ Trimbak (supra).” 12. From the evidence of PWs, it is crystal clear that they all happens to be consistent not with regard to manner of occurrence rather also with regard to place of occurrence and having their evidence un-shattered on those very points, the non-examination of Investigating Officer was not at all found to be a grave lacuna persisting in the prosecution case apart from the fact that no material contradiction is found in the evidence of PWs. 13. Thus, after having cautious appraisal of the evidence available on the record in consonance with the finding recorded by the learned lower court, it become crystal clear that the approach of the learned lower court was quite erroneous and on account thereof, attracts interference at the present stage while exercising revisional jurisdiction. 14. The learned lower court failed to consider that the whenever there happens to be eye witness then in that circumstance, the motive has got no important role to play. 15. Hence, the judgment impugned is set aside. Petition is allowed. The matter is remitted back to learned lower court to proceed afresh from the stage of hearing argument and will pass judgment in accordance with law. 15. Hence, the judgment impugned is set aside. Petition is allowed. The matter is remitted back to learned lower court to proceed afresh from the stage of hearing argument and will pass judgment in accordance with law. The Opposite Party Nos.2 to 5 are directed to surrender before the learned lower court with a prayer of bail, in case there happens to be considerable delay, then in that event the learned lower court will be at liberty to take proper steps for their appearance. Petition allowed.