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2021 DIGILAW 381 (JK)

Bindu Kumari v. State of J&K

2021-07-29

VINOD CHATTERJI KOUL

body2021
Judgment Vinod Chatterji Koul, J.-This Revision petition has been filed by the complainant-Bindu Kumari against an order of acquittal recorded by the Chief Judicial Magistrate, Raman (hereinafter referred to as “the trial court”), whereby the accused-respondents have been acquitted vide judgment dated 31.10.2018. 2. The respondent-accused were put to trial before the learned trial Court on the basis of a complaint of the petitioner for the offences punishable under Sections 325/336/341/147/504/406 RPC. Initially, a charge-sheet was filed against them for offences punishable under Sections 307/341/147/336/504/506 RPC before the Magistrate and the case was committed to the Court of learned Sessions Judge, Ramban. The learned Sessions Judge, Ramban discharged the accused for offence punishable under Section 307 RPC, however, framed charges against the accused for offences punishable under Sections 325/336/341/147/504/506 RPC vide order dated 16.04.2015. The case was thereafter sent to the trial court for trial. 3. The trial court recorded the plea of the accused. They pleaded not guilty and claimed trial. The trial Court recorded the statements of the prosecution witnesses, namely, Bindu Devi-complainant, Madan Lal, Sher Singh, Mohd. Afzal, Dhrupti Devi, Krishan Lal, Zahoor Ahmed. After recording statement of the accused under Section 342 Cr.P.C, the trial court acquitted the accused, holding that the prosecution has failed to prove its case against them beyond doubt. The trial Court, while acquitting the accused vide judgment impugned, has made following observations. “9. In a criminal trial, there is presumption of innocence in favour of the accused facing the trial, and the onus is on the prosecution to prove its case beyond a reasonable shadow of doubt, by bringing convincing, reliable and cogent evidence on record. In the case in hand, there are of-course many material contradictions and dis-connectivity in the chain of evidence, casting she serious doubt on the prosecution case. Injured Krishan Lal has stated that he was attacked at the distance of 200 feet away from his house and he has narrated the occurrence to his wife Bindu Devi, and to witness Madan Lal and Sher Singh. The investigation of the case has shown the Bindu Devi, Madan Lal, Sher Singh and Dhrupti Devi to be the eye witnesses who have witnessed the occurrence. The investigation of the case has shown the Bindu Devi, Madan Lal, Sher Singh and Dhrupti Devi to be the eye witnesses who have witnessed the occurrence. But, Bindu Devi, who happens to be the wife of the injured, in her cross-examination, has stated that she had not herself witnessed the occurrence, as when she reached on the spot, the accused persons had already fled away. PW Madann Lal and Dhrupti Devi have stated that no occurrence has taken place in their presence. There is serious lacuna and doubt in the recovery of the alleged weapon of offence i.e. Lathi and stones. PW Bindu Devi has stated that it was handed over to the Police by her son who has just kept the Lathi and the stones inside the house. Her husband Krishan Lal has stated it was Bindu Devi and Sher Singh who handed over the Lathi and the stones to the police. The police case is that this Lathi and the stones were recovered on the disclosure of the accused, to which surprisingly the injured Krishan Lal has also shown to be the witness. Injured Krishan Lal in one breath states that he was in hospital for twenty days, and in another breath he states that he had signed the seizure memo with regard to the recovery of weapon of offence. So there version of one witness is not corroborating the another witness with regard to the recovery of weapon of offence, making the recovery itself doubt. The doctor was an important witness to certify about the injuries the injured has received but the prosecution has failed to produce him before this Court. It has come in evidence that the accused persons have also filed a case against the accused reflecting that the parties are inimical to each other. Neither the I.I. of the case is examined, nor is the person from FSL to whom the blood stained Jacket etc of the injured was sent. Therefore, on the analysis of the evidence there is complete disconnectivity in the linkage in the chain of evidence which the prosecution was supposed to establish in order to get the finding about guilt of the accused. The evidence brought on record is full of material contradictions and serious doubts therefore, can not be relied and in turn makes the prosecution case untrustworthy.” 4. The evidence brought on record is full of material contradictions and serious doubts therefore, can not be relied and in turn makes the prosecution case untrustworthy.” 4. The petitioner in this revision petition challenges the order of acquittal on the ground that despite there being sufficient evidence on record, the accused have been acquitted. The prayer of the petitioner is that on the basis of evidence respondents be convicted after setting aside their acquittal recorded by the trial court. 5. So far as, prayer for conviction of the accused after setting aside the order of acquittal is concerned, the powers of this Court under revisional jurisdiction are limited. According to Sub Section 4 of Section 439 of the Code of Criminal Procedure, nothing in the said Section shall be deemed to authorize High Court to convert a finding of acquittal into the one of conviction. So far as prayer of the petitioner for converting the order of acquittal into conviction is concerned, the same is devoid of any merit, being barred under Sub Section 4 of Section 439 Cr.P.C. Even otherwise, the powers of revision under the Code of Criminal Procedure in dealing with an order of acquittal are limited. The powers of revision of the High Court are defined in Section 439 of the Code of Criminal Procedure. Therefore, to appreciate the controversy involved in this petition, it would be apt to reproduce Section 439 Cr.P.C., which reads thus:- “439. High Court’s powers of revision.-(1) In the case of any proceedings the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence ; and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 429. (2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. (2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a [Judicial Magistrate of the first class]. (4) Nothing in this section shall be deemed to authorise the High Court to convert a finding of acquittal into one of conviction. (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. (6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction. 6. From a bare perusal of afore-quoted provisions of Section 439 Cr.P.C., it is quite evident that scope of revision is very limited and revisional jurisdiction can be exercised only in certain contingencies, as have been provided in Section 439. 7. In Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC 583 , the Hon’ble Supreme Court has held that: “8. The unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given this right only when the criminal prosecution was instituted on his complaint and then also subject to special leave by the High Court. It is further provided in Section 439(5) Cr.P.C., that where no appeal is brought in a case in which an appeal is provided, no proceedings by way of revision would be entertained at the instance of the party who could have appealed. The State Government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again, on revision, the High Court is expressly prohibited from converting an acquittal into a conviction. The State Government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again, on revision, the High Court is expressly prohibited from converting an acquittal into a conviction. Considering the problem facing the Court in this case in the background of this scheme, the High Court when approached by a private party for exercising its power of revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. It is not expected to act under Sections 435/439 Cr.P.C. as if it is a hearing on appeal in spite of the wide language under Section 435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity of any proceeding and also in spite of the fact that under Section 439 it can exercise inter alia the power conferred on a Court of appeal under Section 423 Cr.P.C. The power being discretionary, it has to be exercised judiciously and not arbitrarily. ...” 8. In Johar v. Mangal Prasad, (2008) 3 SCC 423 , the Hon’ble Supreme Court has observed that: 23. In Mahendra Pratap Singh v. Sarju Singh [ AIR 1968 SC 707 : (1968) 2 SCR 287 ] this Court stated the law thus: (AIR pp. 708-09, para 8) “8. The practice on the subject has been stated by this Court on more than one occasion. In D. Stephens v. Nosibolla [ AIR 1951 SC 196 : 1951 SCR 284 ] only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misappreciation of evidence. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misappreciation of evidence. Again, in Logendranath Jha v. Polai Lal Biswas [ AIR 1951 SC 316 : 1951 SCR 676 ] this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is ‘perverse’ or ‘lacking in true correct perspective’. It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the subordinate court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy v. State of A.P. [ AIR 1962 SC 1788 : (1963) 3 SCR 412 ] it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court.” 9. In K. Ramachandran v. V.N. Rajan, (2009) 14 SCC 569 , the Hon’ble Supreme Court has observed with respect to cases which would justify the High Court in interfering with the finding of acquittal in revision that: “40. In K. Ramachandran v. V.N. Rajan, (2009) 14 SCC 569 , the Hon’ble Supreme Court has observed with respect to cases which would justify the High Court in interfering with the finding of acquittal in revision that: “40. This question has been considered in the celebrated judgment of Akalu Ahir v. Ramdeo Ram [ (1973) 2 SCC 583 : 1973 SCC (Cri) 903], where, after considering the judgments of D. Stephens v. Nosibolla [ AIR 1951 SC 196 : 1951 SCR 284 ], Logendranath Jha v. Polai Lal Biswas [ AIR 1951 SC 316 : 1951 SCR 676 ], K. Chinnaswamy Reddy v. State of A.P. [ AIR 1962 SC 1788 : (1963) 3 SCR 412 ] and Mahendra Pratap Singh v. Sarju Singh [ AIR 1968 SC 707 : (1968) 2 SCR 287 ] this Court came out with categories of cases which would justify the High Court in interfering with the finding of acquittal in revision: (Akalu Ahir case [ (1973) 2 SCC 583 : 1973 SCC (Cri) 903], SCC pp. 587-88, para 8) “(i) where the trial court has no jurisdiction to try the case, but has still acquitted the [appellant]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 overlooked only (either) by the trial court or by the appellate court; and (v) where the acquittal is based on the compounding of the offence which is invalid under the law.” Of course, these categories were declared by this Court to be illustrative and this Court observed that other cases of similar nature could also be properly held to be exceptional in nature where the High Court could justifiably interfere with the order of acquittal.” 10. In Sheetala Prasad v. Sri Kant, (2010) 2 SCC 190 , the Hon’ble Supreme Court has observed that: “12. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of the Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of the Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of a private complainant (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. 13. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice requires interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered.” 11. From the decisions discussed herein above, it can be inferred that it is open to this court in the revisional jurisdiction to interfere with the order of the acquittal of the lower court, if the order of trial court is found to be vitiated on account of illegality, impropriety or incorrectness and thereby, causing serious miscarriage of justice. Of course, this Court cannot convert any finding of acquittal into one of conviction nor can it re-appreciate the evidence and substitute its own view. From the legal position discussed herein above, it becomes abundantly clear that the revisional jurisdiction, invoked by a private party against an order of acquittal recorded by the Trial Court, can be exercised only in certain exceptions such as, where the Trial Court has no jurisdiction to try and case, where the Trial Court has wrongly shut out the evidence which the prosecution wished to produce, where material evidence has been overlooked etc. etc. 12. etc. 12. There is no dispute with regard to the fact that a private party has a right to invoke revisional jurisdiction of the High Court in appropriate cases, where order of the trial court occasioned greater failure of justice, at different stages of the trial, if grounds for interference in revision are otherwise satisfied. In dealing with the revisional power of the High Court vis-à-vis the right of private party to move any revision against the order passed in a case instituted upon a police report, it is open to the High Court in revision to set aside the order of acquittal even at the instance of private party, though the State may not have though fit to appeal; but this jurisdiction should be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure or there is manifest error on a point of law and consequently there has been flagrant miscarriage of justice (Balbir Singh v. Krishan Singh and Others, 2010(4)JKJ 400 [HC]). 13. As it is apparent from the record, the learned Trial Court in its well reasoned judgment has appreciated the material evidence on record and came to the conclusion that the prosecution has failed to prove its case against the accused beyond reasonable shadow of doubt. I have gone through the judgment of the trial Court and do not find any defect in the procedure or any manifest error. Therefore, Looking from any angle, this case does not fall in any of the exceptions carved out by Hon’ble the Supreme Court in Sheetala Prasad’s case (supra), justifying exercise of revisional jurisdiction by this Court. 14. For the foregoing reasons, this revision petition is found to be without any merit, hence the same is dismissed along with connected applications.