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2017 DIGILAW 408 (ALL)

SHIV KUMAR DWIVEDI v. STATE OF U. P.

2017-02-03

ARVIND KUMAR MISHRA I

body2017
JUDGMENT : Arvind Kumar Mishra-I, J. 1. Heard Sri Ravindra Sonkar, Advocate holding brief of Sri M.C. Chaturvedi, learned counsel for the revisionist, Sri J.K. Upadhyay, learned AGA for the State and perused the impugned judgment of acquittal. 2. The instant revision has been filed against the judgment and order of acquittal dated 25.02.1999 passed by Chief Judicial Magistrate, Mahoba, in Criminal Case No. 2842 of 1997 Shiv Kumar vs. Shushil Kumar, under Sections 323, 452, 427, 504, 506 IPC, Police Station Mahoba, District Mahoba whereby learned Chief Judicial Magistrate has acquitted opposite party no. 2 of charges under aforesaid Sections of IPC. 3. It is gathered from the impugned judgment that the prosecution case was confined to the ambit that the accused-opposite party no. 2 Shushil Kumar Dwivedi is the son of the complainant Shiv Kumar and he separated from the complainant in the year 1989. The complainant was residing with his another son Kamlesh Kumar. While separating, Shushil Kumar Dwivedi was given one flour mill and speller with condition that he will repay the loan to the tune of Rs. 25,000/- to Allahabad Bank. After two years, the accused-opposite party no. 2 sold flour mill and speller and did not repay the loan amount to the bank. Due to this, the complainant had to repay the loan amount and when the same was demanded from the accused-opposite party no. 2, he felt annoyed and in that particular factual background, he came to the house of the complainant around 12:00 noon on 29.12.1994 and tried to take way television set from his house. When he was stopped by the victim Kusum Lata and she asked him not to take away the television set, he beat up his mother by fists and kicks, besides abusing and threatening her. 4. It is also gathered from the impugned judgment that the report was also tried to be lodged at Police Station Mahoba but the same was not registered. A report was sent by registered post to the Superintendent of Police, Mahoba and Station House Officer Mahoba. Even then no action was taken. At last, a complaint was filed before the trial court under Sections 323, 452, 427, 504, 506 IPC. Charge was framed and read over and explained to the accused-opposite party no. 2 who denied charges and opted for trial. 5. Even then no action was taken. At last, a complaint was filed before the trial court under Sections 323, 452, 427, 504, 506 IPC. Charge was framed and read over and explained to the accused-opposite party no. 2 who denied charges and opted for trial. 5. As a sequel to it, the complainant Shiv Kumar got himself examined as PW-1, Virendra PW-2 and Parshu Ram PW-3. Thereafter, the accused-opposite party no. 2 produced Smt. Mamta Dwivedi as DW-1 in support of the defence. Some inland letters were also produced by the defence. 6. Grounds urged while assailing the aforesaid finding of acquittal is confined to fact that the impugned judgment is fraught with manifest error of law and fact. Chief Judicial Magistrate, Mahoba has not properly appreciated evidence produced by the revisionist and based its finding of acquittal on conjectures and surmises. The impugned judgment itself is arbitrary. 7. Learned counsel for the revisionist has submitted that wholesome reading of the evidence will reflect on culpability of the accused-opposite party no. 2 that he has committed heinous offence by beating his own mother, though the mother has not been produced as witness before the trial court, but that factor would not mitigate magnitude of the offence against the lady victim and the accused-opposite party no. 2 deserves punishment. The eye account testimony of occurrence has been given by Parshu Ram PW-3 but that has not been properly appreciated by the trial court. Trial court did not appreciate evidence and facts in right perspective. Therefore, the impugned judgment is laible to be set aside. 8. Learned AGA while retorting to the aforesaid contention has submitted that in this case, the trial court has based findings of acquittal on evidence on record which do not support the prosecution story. The injured witness was not produced by the prosecution before the trial court. This way, doubt was created and legal position is that doubt always favours the accused. 9. Considered the rival submissions and also perused the impugned judgment. 10. Obviously, proceedings were initiated on the complaint moved by complainant Shiv Kumar, husband of the victim Kusum Lata. Admittedly, the prosecution did not produce the victim before the trial court, whereas, the prosecution produced only complainant Shiv Kumar who was not present on the spot at the time of occurrence. 10. Obviously, proceedings were initiated on the complaint moved by complainant Shiv Kumar, husband of the victim Kusum Lata. Admittedly, the prosecution did not produce the victim before the trial court, whereas, the prosecution produced only complainant Shiv Kumar who was not present on the spot at the time of occurrence. Virendra Singh PW-2 was not cross examined under Section 246 Cr.P.C. Therefore, his testimony also was not taken into account by the trial court as he was examined only under Section 244 Cr.P.C. 11. Insofar as testimony of Parshu Ram PW-3 is concerned, he happens to be an outsider. His presence on the spot was found not natural, therefore, he was rightly treated chance witness by the trial court which aspect, under facts and circumstances of the case, cannot be said to be either perverse or erroneous. Moreso, it has been observed by the trial court that PW-3 has not proved fact of any assault being caused by the accused-opposite party no. 2 to his mother and, therefore, his testimony was rightly not acted upon by the trial court which under facts and circumstances of the case is justified. 12. Moreover, the best evidence that was left with the complainant was that of the victim Kusum Lata but she was not produced by the complainant in support of his claim that some assault was in fact caused to her by accused-opposite party no. 2 Shushil Kumar Dwivedi. The legal outcome would be that evidence not produced, if produced, would have been unfavourable for the prosecution. This proposition flows from Section 114 (g) of the Evidence Act. The mandate stipulates that evidence which was not produced would have been unfavourable to the person who withheld it. Therefore, there is an element of presumption in favour of the accused and runs against the complainant. This being reivisonal jurisdiction, the Court has to act cautiously and not to function as appellate Court to appreciate afresh facts and merit of the case as that would be beyond jurisdictional periphery of the revisional Court. 13. Revisional jurisdiction has narrower scope of appreciating evidence and it cannot be appreciated afresh as if this Court is an appellate Court. Mistake apparent on record or perverse finding not based on material on record alone is to be looked into in revisional jurisdiction. 14. 13. Revisional jurisdiction has narrower scope of appreciating evidence and it cannot be appreciated afresh as if this Court is an appellate Court. Mistake apparent on record or perverse finding not based on material on record alone is to be looked into in revisional jurisdiction. 14. In the backdrop of above discussion, it would be relevant to take note of fact that after careful scrutiny of the impugned judgment no perversity is discernible in the judgment of the trial court. Presumption of innocence is always available to the accused even up to revisional / appellate stage which got strengthened by order of acquittal in favour of accused by the trial court. Thus the view taken by the trial court in recording finding of acquittal is found to be just and reasonable. Even if alternative view is possible it would not be proper to substitute the view in place of finding recorded by the trial court. This approach is to be avoided and the view taken by the trial court has got to be affirmed. This rationale/principle has been enunciated in detail in Bhadragiri Venketa Ravi vs. Pubic Prosecutor High Court of A.P. Hyderabad 2013 (4) Supreme 450 . 15. Similarly, in Kanhaiya Lal and Others vs. State of Rajasthan, AIR 2013 SC 1940 , Hon'ble Apex Court has observed that while dealing with an appeal against acquittal the court should keep in view the presumption of innocence in favour of the accused as the same gets fortified by his acquittal if the view taken by the trial court is well grounded and based on material on record. 16. In view of the discussion made hereinabove, I do not find any infirmity latent or patent in the judgment of acquittal recorded by the trial court. I am, accordingly, not inclined to interfere with the judgment and the order of acquittal recorded by the trial Judge in respect of the accused-opposite party no. 2. The instant revision sans merit and the same is liable to be dismissed. Accordingly, the instant revision is dismissed. Let a copy of this order be certified to the court concerned. ——————