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2017 DIGILAW 703 (CHH)

Ram Banjare, S/o. Chaitu Ram Santnami v. Nem Singh, S/o. Dashrath Kurmi

2017-11-08

PRITINKER DIWAKER, RAM PRASANNA SHARMA

body2017
ORDER : RAM PRASANNA SHARMA, J. 1. This revision is directed against the judgment of acquittal dated 10.08.2001 passed by the Second Additional Sessions Judge, (F.T.C.) Bemetara, Sessions Division Durg, in Sessions Trial No. 393 of 1990, whereby the trial Court acquitted the non-revisioners No. 1 and 13 for offence punishable under Sections 148, 302 read with 149 and 326 read with Section 149 of the IPC. 2. From the record, it appears that on account of land dispute there was a free fight between the non-revisioners and the persons of other side for which the offence under sections 302, 307,147,148 and 149 of the IPC was registered against the persons namely Chaitu, Gangaprasad, Budharu and Shriram, they were tried in Sessions No. 337/1990. From the judgment of the trial Court, it is clear that Ramprasad was died from the non-revisioners side and some other persons were injured while in the same incident Paharsingh of other group died and other persons were injured. After marshalling the evidence adduced by the prosecution, the trial Court arrived at conclusion that there is history of riots between the two parties and the incident took place because non-revisioners removed the articles of cultivation from the field of Paharsingh. The trial Court opined that it may be a case of right of self-defence of body and right of private defence of property. The persons of Paharsingh side may have assaulted Ramprasad, Shriram and Budharu and their act comes within the ambit of Section 100 of the IPC and the same cannot be treated as criminal Act as per law of land. 3. The persons of Paharsingh side may have assaulted Ramprasad, Shriram and Budharu and their act comes within the ambit of Section 100 of the IPC and the same cannot be treated as criminal Act as per law of land. 3. Section 100 of the IPC may be read as under:- Section 100 When the right of private defence of the body extends to causing death- The right of private defence of body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailants, if the offence which occasions the exercise of the right be of any of the descriptions hereafter enumerated, namely:- First.- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly.- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly.- An assault with the intention of committing rape; Fourthly.- An assault with the intention of gratifying unnatural lust; Fifthly.- An assault with the intention of kidnapping or abducting; Sixthly.- An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. The trial Court concluded that the Act of the non-revisioners fall within the ambit of section 100 of the IPC and same cannot be treated as offence under the Indian Penal Code. 4. While exercising revisional jurisdiction at the instance of a private complainant, it is necessary to notice the principle on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of the Code of Criminal Procedure, 1973 prohibits conversion of a finding of acquittal into one of conviction. Hon'ble the Apex Court in the matter of Sheetal Prasad Vs. Sri Kant and another, reported in (2010) 2 SCC 190 has held that the revisional jurisdictions can be exercised by the High Court at the instance of a private complaint. Hon'ble the Apex Court in the matter of Sheetal Prasad Vs. Sri Kant and another, reported in (2010) 2 SCC 190 has held that the revisional jurisdictions can be exercised by the High Court at the instance of a private complaint. “(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. 5. Revisional jurisdiction cannot be exercised lightly and it can be exercised only in exceptional cases where interest of public justice requires interference for correction of manifest illegality or the prevention of gross miscarriage of justice. This Court has to see that it does not convert the finding of acquittal into one of conviction by the indirect method. In the present case, when the evidence adduced before the trial Court was such that it was a case of free fight between the two parties and both have made unlawful assembly as mentioned in section 141 of the IPC and one persons of both sides were succumbed to the injury caused during fight the trial Court had not left any relevant evidence out of its consideration or irrelevant material has been taken into consideration. Again the findings of the trial Court could not be termed to be a perverse one. Even in appeal, the settled legal principle is that if two reasonable conclusions are possible on the basis of evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court. Further more, in a case of revision against acquittal, the scope is very limited and interference can only be made when the same is against the established principle of law. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or mis-appreciated the evidence on record. When no glaring defects in the procedure or manifest error on a point of law is disclosed, we cannot assume that it is a case of flagrant miscarriage of justice. This Court cannot convert the findings of acquittal into one of conviction and the same cannot be done by any indirect method of ordering to retrial. While hearing the matter afresh in terms of the direction by this Court, the Trial court would be bound by the observations made therein and thus, looking to the facts and circumstances of the present case, we are of the view that it is not a fit case to direct for retrial of the case. 6. Accordingly, the revision is liable to be and is hereby dismissed.