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2014 DIGILAW 986 (ALL)

Devendra Kumar Jain v. State of U. P.

2014-03-27

KARUNA NAND BAJPAYEE

body2014
JUDGMENT Karuna Nand Bajpayee, J.: - The list has been revised, but none appears to press the revision on behalf of revisionist. 2. This is an old revision of 2007. The dockets of pending cases are already huge and the matter cannot be allowed to linger on for indefinite period of time. 3. Shri A. N. Mishra, counsel for the opposite parties is present in the Court. In the aforesaid circumstances, this Court, therefore, proposed to proceed with the hearing of the case with the assistance of learned A.G.A. and also on the basis of the record of the case. 4. This is a criminal revision filed against judgment and order dated 28.6.2007, passed by Additional Sessions Judge/Special Judge(D.A.A. Act), Lalitpur, in Special Session Trial No.20 of 2005, State Vs. Mulu & others, whereby the three accused respondents have been acquitted under various charges of Sections 395/397, 307/149, 148 I.P.C., for which they were arraigned. 5. Shorn of unnecessary details the prosecution story may be described in brief to the effect that on 21.5.2010, while the complainant, Devendra Kumar Jain was going on his Jeep along with Kailash, Karan and Surendra Kumar at about 8: 00 p.m., when he reached at the place of occurrence, two motorcycles overtook the Jeep and intercepted them. Thereafter, accused Mulu, Prabhu, Feran along with two unknown assailants alighted from the motorcycles and after hurling threats, made criminal assault on the complainant's side. Accused Feran fired from the country made pistol and then the complainant was dragged out from the Jeep and was badly beaten. Accused Prabhu also fired from the country made pistol which he was wielding at the time of incident. It is admitted that the fires made at complainant missed the target and he had a skin escape and remained uninjured, as a result to the fires made at him. It was also alleged that Rs.2,000/- were also snatched away from the complainant which he was carrying in his pocket. After committing the aforesaid incident, the accused took to their heels and made their escape good. According to the complainant's version he tried to get the F.I.R. registered against the accused, but his effort did not succeed and he had ultimately to bring the present complaint in question in the court against the accused. After committing the aforesaid incident, the accused took to their heels and made their escape good. According to the complainant's version he tried to get the F.I.R. registered against the accused, but his effort did not succeed and he had ultimately to bring the present complaint in question in the court against the accused. The accused were summoned under the aforesaid charges and after the observance of the regular procedure of the trial the prosecution evidence was adduced. There were chiefly four witnesses produced by the complainant. P.W.1 was Devendra Kumar Jain, the complainant himself, P.W.2 was Kailash, P.W.3 was Karan, while P.W.4 was doctor, who is said to have examined the complainant. The version of the incident which has been referred above was substantially the same which was given by witnesses, but P.W.2, Kailash turned hostile and contradicted the version on very factual aspect of the case. P.W.4, who medically examined the complainant, found some minor and simple injuries on his person. 6. During the course of argument raised on behalf of the respondent-accused, a preliminary objection was raised at the very outset of the hearing about the maintainability of the revision. According to the counsel, as the prosecution emanated on the basis of a complaint, and, therefore, the legally provided remedy for the complainant was to file an appeal under Section 378 (4) of the Code of Criminal Procedure, and that too after obtaining special leave to appeal from the order of acquittal. The counsel has also drawn the attention of the Court to Section 378 (5) of Cr.P.C., which provides for a limitation of sixty days, within which the special leave to appeal has to be sought. According to the counsel, if an appeal is provided to be filed by a particular party against the particular order any other remedy in the form of filing revision shall be simply not maintainable in the law. The contention is that on this very ground the revision should be dismissed summarily and simply may not be entertained. 7. I find force to the submission made on behalf of the respondents. It may be relevant and apt to extract the relevant provision of the Code which are as follows : - "378. Appeal in case of acquittal.-(1) .......... (2) ................ (3) ............... 7. I find force to the submission made on behalf of the respondents. It may be relevant and apt to extract the relevant provision of the Code which are as follows : - "378. Appeal in case of acquittal.-(1) .......... (2) ................ (3) ............... (4) If such an order of acquittal is passed in any case instituted upon complainant and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)." 8. Even, if we cast a fleeting glance on the aforesaid provision it leaves no doubt to see that the impermissible course has been adopted by the complainant, and this Court cannot either ignore or override the statutory law prevalent. In fact, the provision under Section 401(4) of Cr.P.C. is also relevant in this regard to be kept in mind and the same reads as follows : - "401. High Court's powers of revision.-(1) ...... (2) .............. (3) ............... (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed." 9. This is true that if the High Court is satisfied that the revision has been brought under the erroneous belief that no appeal lies thereto and the call of substantive justice requires to still look into the same and entertain it, this Court, in its wisdom, may treat the application of revision as a petition of appeal and deal with the same as such, accordingly. There is absolutely nothing on record to indicate any such erroneous belief. There is absolutely nothing on record to indicate any such erroneous belief. No material, whatsoever, either, in the form of affidavit or by any other way has been brought on record to indicate any such circumstance, which may persuade the Court to take a liberal view of the matter. But, still, as this Court has proceeded to decide this revision in the absence of revisionist's counsel, this Court proposes to apply all the standards and settled principles which are conventionally applied to the appreciation of evidence while the Court sits to exercise its jurisdiction in appeal. Such a course is being adopted to avert the faintest chance of any miscarriage of justice. 10. First of all, it may be apt to recall the broader principles. In the hearing of appeal against the order of acquittal, the law is trite and too well settled. There is a marked difference between the approach to be adopted while sitting to hear the appeal against conviction and the approach which is adopted while the Court sits to hear an appeal against acquittal. There is a general golden rule of criminal jurisprudence which runs as a thread underlining the criminal law that accused is to be presumed innocent unless he is proved guilty. This presumption of innocence does not forsake the accused after he obtains the verdict of acquittal in his favour. In fact, the presumption gets fortified. It may be apt to quote the famous words of the Privy Council used in the case of Sheo Swaroop Vs. King Emperor, AIR 1934 PC 227 , which run as under : - "The High Court should and will aways give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainty not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." 11. This view of law adopted by the Privy Council has formed the chief plank on the basis of which most of law in the following decades was laid down. This view of law adopted by the Privy Council has formed the chief plank on the basis of which most of law in the following decades was laid down. The Supreme Court decisions on this point regarding the scope of interference in the verdicts of acquittals, have further supplemented the aforesaid view of the Privy Council. 12. In the case of Brahm Swaroop Vs. State, AIR 2010 SCW 6704 also, the same view was reiterated. The substance of what was held in the case may be summarized as follows : - "It is well established in law that the appellate court should not ordinarily set aside a judgement of acquittal in a case where two views are possible, though the view of the appellate court may be more, the probable one. While dealing with a judgment of acquittal, the appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law. Similarly, the incorrect placing of the burden of proof may also be a subject matter of scrutiny by the appellate court. The court of appeal may not interfere where two views are possible for the reason that in such a case it can be held that prosecution failed to prove the case beyond reasonable doubt and accused is entitled for benefit of doubt." 13. In yet another case of Pudhu Raja & Anr. Vs. State, 2012 (9) JT 252 , the Apex Court observed as further : - "7. The law on the issue of interference with an order of acquittal is to the effect that only in exceptional cases where there are compelling circumstances and the judgement in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference." 14. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference." 14. Thus, the presumption of innocence is by no means weakened by the verdict of acquittal given in favour of the accused. Unless in higher Court's scrutiny it is found that the judgment of acquittal suffers either from a perversity of approach or the findings arrived at by the trial court are against the weight of evidence on record. It has also to be seen whether there has been left out any important admissible piece of evidence from consideration or whether some inadmissible piece of evidence has wrongly been considered by the court below. Failure to consider the some important admissible piece of evidence as well as the error of having considered an inadmissible piece of evidence, both may adversely affect the correctness of the judgment arrived at by the trial court. There may be some other circumstances also where the higher Court may find after weighting the evidence on record that an approach of the Court has been either cursory or was so lackadaisical that it has resulted in the miscarriage of justice. In all the aforesaid circumstances this Court does not desist to interfere or to upset the judgment, but otherwise, this Court is always slow to replace the judgment of the lower court, even in the event where it feels inclined to take a different view of the matter. Sometimes it may so happen that the higher Court may feel that another view was also possible and the accused instead of having been acquitted, could also have been convicted. But, this finding does not rule out the view that has been taken by the trial court in the case that an accused could also have been acquitted. In other words, it may be said that if two views, one in favour of accused and another against him, are possible, then too, the one which favours the accused ought to be adopted, because in the presence of this possibility that the accused could also have been judiciously evaluated as innocent, it cannot be said that the guilt of the accused has been proved beyond all possible reasonable doubts. This is the hub and substance of the law that has evolved during the course of several decades and it does not admit of any controversy. 15. When this Court appreciated and evaluated the evidence as has been discussed in the impugned order and is also present before this Court in the form of original record, it can be said that the impugned order does not suffer from any of such infirmities which may constitute a valid ground to interfere in the matter. The Court has validly taken into account the improbability of the allegation that even on the repeated fires having been made on the complainant, he was still escaping in a magical manner repeatedly and remained uninjured, by the shots fired at him all throughout. It has also been taken into account as to how the complainant's side has completely failed to give any details or any kind of discription about the motorcycles used in the alleged crime. The fact that the witnesses produced by the complainant have a history of loyalty to him and that they have been used as witnesses even in other cases by the complainant, has also been considered by the trial court. The discrepancy in the version inter se between the testimonies produced before the court has also been adversely viewed by the Court. In fact the entire prosecution version given out by the complainant has been found to be palpably improbable and also reflecting the unnatural conduct of the witnesses. The enormity of the assault made on the complainant has also been found to be not in consonance with the scars and nominal injuries found on the person of the complainant. 16. The impugned order of the trial court does not seem to suffer from any such infirmity and impropriety or illegality or with any of those judicially recognized vices referred to above, which may persuade the Court to interfere and set aside the judgment. 17. In the aforesaid view of the matter, the revision stands, dismissed, both on the ground of its maintainability as well as on its merits.