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2020 DIGILAW 77 (ALL)

Dulari Devi v. State of U. P.

2020-01-08

ALI ZAMIN

body2020
JUDGMENT : Ali Zamin, J. 1. Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record. 2. The present revision has been preferred against the judgment and order dated 09.11.2006 passed by Sri Subbendra Kumar learned Special Judge (Dacoity effected area) Kanpur Dehat in Session Trial No.7 of 2000, under Section 392/506 I.P.C., Police Station Mangalpur, District Kanpur Dehat (Smt. Dulari Devi vs. Prem Nath & others) where by the learned court below have acquitted the opposite party no.2 to 5 for the offence under Section 392/506 I.P.C. 3. Learned counsel for the revisionist submits that the learned trial judge in the impugned judgment has observed that due to darkness the complainant could not identify the accused persons but accused persons are neighbourers, so, in darkness also they can be identified. Therefore, the finding of the trial court is erroneous one. Apart from it the revisionist Dulari Devi and witness Urmila Devi have supported the prosecution case but without proper appreciation of the evidences, the trial judge has acquitted the respondents. 4. Learned A.G.A. opposed the contention of learned counsel for the revisionist and submitted that it is admitted fact that many cases are running between the parties. The witness Shanti Devi has admitted that she reached the spot after half an hour and due to darkness of night she could not identify the accused persons. Even complainant herself admitted that an altercation and mar peet had taken place with Shakila (wife of Kedar Nath). In such circumstances and evidence adduced, the trial court has rightly passed the impugned judgment and order in which no illegality or impropriety has committed by learned Special Session Judge, Kanpur Dehat. 5. From perusal of the judgment, it appears that according to complainant herself an altercation and dispute had occurred with Shakila (wife of Kedar Nath respondent no.3) in which complainant got injuries, which has been admitted by the complainant herself in her testimony and it is also borne out from the impugned judgment that the said eye witness Smt. Shanti Devi has also admitted that she reached the spot after half an hour of the incident and she could not identify the accused persons. 6. 6. Learned Additional Session Judge has held that complainant has not succeeded in proving the loot of her jewellery was committed by accused persons in the night of 05.11.2000 at 11:00 p.m. by entering into her house and threat was given to kill her. Accordingly, learned Judge has acquitted to the respondents. 7. The Hon'ble Supreme Court in paragraph 8 of the case of Akalu Ahir And Others Vs. Ramdeo Ram, (1973) 2 SCC 583 has held as under: "8...This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision (i) Where the, trial court has no jurisdiction to try the case, but has still acquitted the accused; (ii) Where the trial court has wrongly shut out evidence which the prosecution wished to produce; (iii) Where the appellate court has wrongly held the evidence which-was admitted by the trial court to be inadmissible; (iv) Where the material evidence has been over-looked either by the trial court or by the appellate court; and (v) Where the acquittal is based on a compounding of the offence which is invalid under the law. These categories were however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal." 8. The observation of the Hon'ble Supreme Court in para 9 in the case of Vimal Singh Vs. Khuman Singh And Another, (1998) 7 SCC 223 would also be apt is being extracted below: "9. Coming to the ambit of power of High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgment of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue have been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 403 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. Infect, Sub-section (3) of Section 401 of the Code forbids the High Court in converting the order of acquittal into one of conviction." 9. Hon'ble Supreme Court in the case of Venkatesan Vs. Rani And Another, (2014) 4 SCC (Cri) 157 relying on the cases of Akalu Ahir (supra) and Vimal Singh (supra) has held as under: "Revisional jurisdiction of the High Courts while examining an order of acquittal is extremely narrow and ought to be exercised only in cases where trial court had committed a manifest error of law or procedure or had overlooked and ignored relevant and material evidence thererby causing miscarriage of justice. Reappreciation of evidence is an exercise that the High Court must refrain from while examining an order of acquittal in the exercise of its revisional jurisdiction." 10. Keeping in mind the aforesaid propositions set forth by the Hon'ble Supreme Court in the above referred cases when the impugned judgment and order is perused then it is found that the learned Sessions Judge had jurisdiction to pass the impugned judgment and order. No manifest error of law or procedure has been committed in passing the judgment and order. The order neither suffers from glaring illegality nor the court below has illegally shut out the evidence which otherwise ought to have been considered or material evidence which clinches the issue has been overlooked. 11. Learned counsel for the revisionist also unable to point out that court had no jurisdiction to pass impugned judgment or order. The order neither suffers from glaring illegality nor the court below has illegally shut out the evidence which otherwise ought to have been considered or material evidence which clinches the issue has been overlooked. 11. Learned counsel for the revisionist also unable to point out that court had no jurisdiction to pass impugned judgment or order. He is also unable to point out that learned Additional Session Judge committed manifest error of law or procedure, glaring illegality or shutting out the evidence which otherwise ought to have been considered or material evidence which clinches the issue has been overlooked. 12. In view of the above, revision has no force. Therefore, no interference is warranted by this Court as such it is liable to be dismissed. Accordingly