Research › Search › Judgment

J&K High Court · body

2021 DIGILAW 386 (JK)

Surat Singh v. State of J&K

2021-07-30

VINOD CHATTERJI KOUL

body2021
ORDER : Vinod Chatterji Koul, J. 1. This revision petition has been filed against the order whereby juvenile – Gourav Badyal in respect of whom proceedings were initiated in respect of an FIR No. 339/2016, Police Station, Udhampur for offences under Sections 279/337/304-A RPC has been acquitted by the learned Chief Judicial Magistrate, Udhampur (“the trial Court”) vide its judgment dated 26.06.2018 on the grounds that trial court has wrongly discarded the statement of PW-Ranjeet Singh on ground that he was an interested witness. The second ground urged before this Court to assail the judgment impugned is that the trial Court observed that the prosecution has failed to examine the Investigating Officer due to which FIR, site map remained unexhibited and not proved, whereas a bare perusal of the judgment impugned reveals that I.O. appeared before the trial Court and was examined in support of the challan. 2. The facts in brief are that on 19.10.2016, a Scooty bearing Registration No.JK14D/5424 while going from TCP towards Salathia Chowk, Udhampur met with an accident near D.C. Office at about 5.20 p.m., as a result whereof scooty driver and the pillion rider, namely, Naresh Singh sustained grievous injuries. The injured with taken to Udhampur hospital where pillion rider succumbed to the injuries. The accident was allegedly occurred due to rash and negligent driving of the scooty by its driver-respondent No.2 herein. The challan was presented before the trial Court on 31.01.2017, the accused was declared juvenile and his statement in terms of Section 242 Cr.P.C. was recorded. The delinquent was charge-sheeted for commission of offence under Sections 279/304-A RPC. The delinquent denied the charges and claimed to be tried. The prosecution in support of its case, examined 14 witnesses out of 18 witnesses cited in the challan. No witness has been examined in defence. 3. The trial Court, after appreciating the prosecution evidence, held that the prosecution has miserably failed to prove its case against the delinquent juvenile. Accordingly, the charge-sheet was dismissed and the delinquent juvenile was acquitted by the trial Court with the following observations:- “Having observed, it is noticed that the prosecution evidence which has come on record in the present case is neither sufficient nor cogent to establish the case of the prosecution. Accordingly, the charge-sheet was dismissed and the delinquent juvenile was acquitted by the trial Court with the following observations:- “Having observed, it is noticed that the prosecution evidence which has come on record in the present case is neither sufficient nor cogent to establish the case of the prosecution. The positive case of the prosecution is that the accused was driving his Scooty in a rash, negligent and reckless manner and in the process it overtured on the road. However, the prosecution evidence which has came on record has given different versions of the day and the manner in which the occurrence has taken place. All the prosecution witnesses are interested witnesses (in relation with the deceased) except police personnel’s and PW Ram Dass. None of the prosecution witness is known to the fact regarding the colour and manufacturing company of the offending scooty. The Police employees cited as prosecution witnesses have also not supported the prosecution story and as such the statements recorded by all the prosecution witnesses are having contradictions. PW Ram Dass cited as an eye, witness, in his examination in chief stated that he has not seen how the accident and also deposed in his examination in chief that he does not know the accused present in the court. Moreover the I.O. namely Faiz Ullah has deposed in the cross-examination that he prepared the site map of occurrence as per his imagination but had not prepared it as per the statement of the witnesses recorded under Section 161 of Cr.P.C. In addition to it, he had only examined the witness Ram Dass who had said nothing incriminating against the accused. The investigation of the present case is therefore both faulty and marred by a series of infirmities and a lack of sense of direction. The contradictory versions regarding the manner, in which the occurrence took place, as deposed by the prosecution witnesses are sufficient to throw out the case of the prosecution without going into the other minute details regarding the exact place of occurrence etc. The failure of the Investigating Officer to appear before the Court as witness has further damaged the credibility of the case of the prosecution. That said, I have no hestigation in observing at the cost of the repetition that the prosecution has miserably failed to prove its case against the delinquent juvenile. The failure of the Investigating Officer to appear before the Court as witness has further damaged the credibility of the case of the prosecution. That said, I have no hestigation in observing at the cost of the repetition that the prosecution has miserably failed to prove its case against the delinquent juvenile. In the circumstances this charge sheet is dismissed and the delinquent juvenile is acquitted. His bail and personal bonds stand cancelled. ............” 4. The petitioner in this petition has sought two reliefs, one for setting aside the judgment impugned and second is to convict respondent No.2 for commission of offences u/s 304-A RPC and 4/81 of the M.V. Act. 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. (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 1[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) CrPC, 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 CrPC 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 CrPC. The power being discretionary, it has to be exercised judiciously and not arbitrarily. ...” 8. 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. Subsection (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. 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.” 9. In Bhupinder Singh v. Harbhajan Singh, 2006 (1) JKJ 23 (J&K), it has been held that it is open to the High Court in revision to set-aside the order of acquittal even at the instance of the private parties, though State may not have thought fit to appeal. But this jurisdiction should be exercised 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. Sub-section (4) of Section 439 CrPC forbids the High Court from converting a finding of acquittal into the one of conviction. 10. 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. 11. While going through the record on file and the order of acquittal passed by the trial court and the grounds taken in the revision, the order of acquittal recorded by the Trial court is well founded on merits. etc. 11. While going through the record on file and the order of acquittal passed by the trial court and the grounds taken in the revision, the order of acquittal recorded by the Trial court is well founded on merits. The conclusion which has been drawn by the trial Court was the only conclusion possible in the case on the basis of evidence that was produced in support of their case. The Trial court has thus proceeded rightly in recording the respondents’ acquittal. The State has not questioned the acquittal of the respondent. It could be interfered with only if a strong case demonstrating failure of justice is made out. 12. Therefore, having regard to what has been stated hereinabove, I do not find any illegality in the order passed by the trial Court. There is no justification for this court to interfere with the order of acquittal passed by the trial Court. As such, this revision petition is being without merit and is accordingly dismissed.