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2016 DIGILAW 734 (JHR)

Khairul Ansari v. State of Jharkhand

2016-04-28

RAVI NATH VERMA

body2016
JUDGMENT : The petitioners have questioned the legality of the judgment dated 09.09.2015 passed by learned Additional Sessions Judge-III, Godda in Cr. Appeal No.25 of 2011/34 of 2014 whereby the conviction of the petitioners under Section 323 of the Indian Penal Code and sentence of rigorous imprisonment for three years with fine of Rs.500/- with default clause dated 22.02.2011 passed by learned Judicial Magistrate, 1st Class, Godda in G.R. No.632 of 2006 (T.R. No.46 of 2011), has been affirmed. 2. Bereft of unnecessary details, the relevant facts which is necessary for the proper adjudication of this revision application, in short, is that on the fardbeyan of Yaruddin Ansari-the informant (P.W.4) Godda (M) P.S. Case N0.178 of 2006 was instituted under Sections 323/34, 341/334, 325/34 and 504/34 of the Indian Penal Code with the allegation that one mason namely Pina Mian (P.W.2) was engaged by the informant for fencing the courtyard and when the said mason started the work at about 8.00 a.m., his neighborers Khairul Ansari and Jiyafat Ansari came armed with spade, lathi and danda and abused him and to the mason. When the informant opposed, Jiyafat called his son and assaulted the informant and Pina Mian both resulting in Pina Mian fell down on the ground. On raising alarm, neighborers came there and saved them. The police after investigation submitted the charge-sheet against the petitioners under Sections 341/323/325/504/34 of the Indian Penal Code. Accordingly, cognizance of the offence was taken on 23.08.2006. The prosecution, after framing of charge, examined altogether five witness and also brought on record some documents. The trial court on consideration of the evidences available on record and after hearing the parties, convicted the petitioners under Section 323 of the Indian Penal Code and sentenced as indicated above. Being aggrieved, the two petitioners preferred an appeal and the appellate court by the judgment dated 09.09.2015 affirmed the judgment of conviction and sentence and dismissed the appeal and directed the petitioners to surrender in court below within a month to serve the rest punishment. Hence, this revision. 3. Learned counsel appearing for the petitioners assailing the judgment of conviction and sentence as bad in law and perverse seriously contended that both the courts below have failed to appreciate the evidences available on record in right perspective. Hence, this revision. 3. Learned counsel appearing for the petitioners assailing the judgment of conviction and sentence as bad in law and perverse seriously contended that both the courts below have failed to appreciate the evidences available on record in right perspective. Learned counsel tried to invite the attention of this Court to various parts of the evidence and developed his argument that the court below has not correctly appreciated the evidence and there are series of infirmities and contradictions in the evidence of the witnesses. It was also contended that the doctor, who had treated the injured, has not been examined and that there was a land dispute between the parties. Lastly, it was submitted that the F.I.R. in question was lodged in the year 2006 and since then the petitioners have been facing the rigorous of trial and appeal and since the petitioners remained in custody for a week out of the sentence of three months, they deserve consideration and the sentence may be reduced to the period already undergone by the petitioners. 4. Contrary to the aforesaid submissions, the learned counsel representing the State contended that this Court sitting in revision has a very limited scope for interference and cannot re-appreciate the evidence. It was also submitted that impugned judgment of courts below are based on proper appreciation of evidence. 5. Before I enter into the veils of the submissions of the learned counsels and the evidence available on record, it would be necessary to examine the scope of interference by a revisional Court. In the case of Satyajit Banerjee & Ors. v. State of West Bengal & Ors., 2005 (1) East Cr C 65 (SC) while considering the scope of revisional court the Hon'ble Supreme Court in Paragraph 13 held as follows:- Reliance has been placed on K. Chinnaswamy Reddy v. State of Andhra Pradesh; 1963 (3) SCR 412 at 413 and particularly on the following observations mentioned therein on the scope of identical provisions of revision in the old Code of Criminal Procedure. “That it was open to a High court in revision and at the instance of a private party to set aside an order of acquittal though the State might not have appealed. “That it was open to a High court in revision and at the instance of a private party to set aside an order of acquittal though the State might not have appealed. But such jurisdiction should be exercised only in exceptional cases, as where a glaring defect in the procedure or a manifest error of law leading to a flagrant miscarriage of justice has taken place. When s. 439(4) of the Code forbids the High Court from converting a finding of acquittal into one of conviction, it is not proper that the High Court should do the same indirectly by ordering a retrial. It was not possible to lay down the criteria for by which to judge such exceptional cases. It was, however, clear that the High Court would be justified in interfering in cases such as (1) where the trial court had wrongly shut out evidence sought to be adduced by the prosecution, (2) where the appeal court had wrongly held evidence admitted by the trial court to be inadmissible, (3) where material evidence has been overlooked either by the trial court or the court of appeal or, (4) where the acquittal was based on a compounding of the offence not permitted by law and cases similar to the above.” 6. At this juncture, it would be pertinent to rely on another judgment of the Hon’ble Supreme Court in the case of Bindeshwari Prasad Singh @ B.P. Singh & Ors. v. State of Bihar (now Jharkhand), (2002) 6 SCC 650 wherein the Hon’ble Apex Court in Paragraphs 13 and 14 held as follow : 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. 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. 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 jurisdiction 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 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 jurisdictional 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. It cannot be lost sight of that when a re-trial is ordered, the dice is heavily loaded against the accused, and that itself must caution the Court exercising revisional jurisdiction. We, therefore, find no justification for the impugned order of the High Court ordering retrial of the appellants. As such the aforesaid mandates given by Hon’ble Supreme Court clearly display and demonstrate that only in exceptional circumstances, the High Court while exercising its revisional jurisdiction can interfere with the order of acquittal passed by the court below, if at all, there is any perversity or any application of law in interpreting the evidence, the question of interference as against the order of acquittal would arise or in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice, would interfere. 7. 7. The present revision is against affirmation of judgment of conviction and order of sentence but the principle is almost same as the evidence on record has already been appreciated by two courts. Even then I examined the evidences available on record. Admittedly, there was a case and counter case but nothing has been brought on record to say that in the counter case one of the petitioner-Khairul Ansari had even sustained any injury. The injury sustained by petitioner no.2-Jiyafat Ansari has also not been brought on record to substantiate their claim but all the witnesses examined at the instance of the prosecution in the instant case have fully corroborated the prosecution version of assault of Pina Mian at the hands of Khairul Ansari. The main submission of the learned counsel for the petitioner was confined to the point that injury reports have not been proved and the doctor, who had examined the injured, has also not been examined by the prosecution but in a case under Section 323 of the Indian Penal Code examination of doctor and the injury report are not so vital. P.W.2 Pina Ansari (Mian) one of the injured has fully corroborated the allegation that the accused persons came armed with weapons such as lathi, spade and assaulted him and the accused-Jiyafat Ansari gave one spade blow over the head and back and Khairul Ansari (Mian)-petitioner no.1 assaulted the informant-Yaruddin Ansari by means of lathi. I.O. of this case has been examined as P.W.5 and he has affirmed that he had issued the memo of injury of Pina Mian which has been marked as Ext-2 and 2/1. I find that there is minor contradictions or inconsistency in the evidence of witnesses but they are not sufficient to demolish the entire prosecution version of assault. Merely because the witnesses, who have been examined by the prosecution are closely related with the informant, cannot be a good ground to demolish the entire prosecution version. Even the appellate court on consideration of the evidence and after re-appreciation, observed and found that the witnesses adduced on behalf of the prosecution have fully supported the prosecution version of assault subject to minor contradictions and inconsistency. 8. Even the appellate court on consideration of the evidence and after re-appreciation, observed and found that the witnesses adduced on behalf of the prosecution have fully supported the prosecution version of assault subject to minor contradictions and inconsistency. 8. Hence, I am of the opinion that the ingredients responsible to constitute the offence and the evidences available on record are sufficient to prove the charge under Section 323 of the Indian Penal Code read with Section 34 of the I.P.C. I find that the petitioners have not pointed out any cogent ground to interfere in the judgment of conviction under Section 323 of the Indian Penal Code and order of sentence. 9. In the facts and circumstances and considering that there was case and counter case and that these two petitioners have suffered the ordeal of trial and rigorous of appeal for a period of almost ten years, in my opinion, the ends of justice shall be met if the sentence already gone by the petitioners is awarded for the offence under Section 323 of the Indian Penal Code. 10. In the result, this revision application is dismissed with modification in the sentence as mentioned above. Application dismissed.