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2023 DIGILAW 1868 (ALL)

Suryabali v. State of U. P.

2023-08-04

SANJAY KUMAR PACHORI

body2023
JUDGMENT : SANJAY KUMAR PACHORI, J. 1. Heard Sri Ashok Kumar Mishra, Advocate holding brief of Sri Lakshmi Kant Pandey, learned counsel for the revisionist, Sri Rajendra Prasad Shukla, learned counsel for the opposite party no. 2 and Sri Karunakar Singh, learned A.G.A. for the State and perused the material on record. 2. The Present Criminal Revision has been preferred to set-aside the judgement and order dated 29.6.2016 passed by the Sessions Judge, Bhadohi at Gyanpur in Criminal Appeal No. 02 of 2012 by which the appellate Court partly affirmed the judgment and order dated 13.4.2012 passed by the Chief Judicial Magistrate, Bhadohi at Gyanpur and acquitted the other accused persons, whereby the trial Court convicted the revisionist and two other persons under Section 323, 325 and 504 of Indian Penal Code (in short “I.P.C.”) and sentenced under Section 323 of I.P.C. to undergo simple imprisonment of six months and a fine of Rs. 200/-, under Section 325 of I.P.C. to undergo simple imprisonment of two years and fine of Rs. 500/- and under Section 504 of I.P.C. to undergo simple imprisonment of six months and fine of Rs. 200 and in default in payment of fine to further undergo an additional imprisonment of one month. All the sentences shall run concurrently. 3. Brief facts of the case are that the one N.C.R. No. 196 of 2004 was registered on 10.10.2004 at 18:30 hours on the basis of oral statement of Jai Devi, under Sections 323, 504 of I.P.C. against the revisionist and two other named persons stating that on 10.10.2004 at about 09:00 A.M., the revisionist and other accused persons started to tying their cattle in the land of the first informant Jai Devi forcibly. When she denied, the revisionist and other two co-accused persons (who acquitted by the appellate court) annoyed and abused her and committed marpeet by lathi and danda and on making hue and cry of Jai Devi, several other villagers came at the place of occurrence and saved her. In this incident, she sustained injures. The revisionist and other accused person fled away from the spot and threatened her with dire consequences. Thereafter, the police got the injured Jai Devi medically examined and as per the X-ray report, fracture was found in the left shoulder bone. In this incident, she sustained injures. The revisionist and other accused person fled away from the spot and threatened her with dire consequences. Thereafter, the police got the injured Jai Devi medically examined and as per the X-ray report, fracture was found in the left shoulder bone. The investigation was started, after passing an order under Section 155(2) of Cr.P.C. After completing the investigation, the Investigating Officer was submitted charge sheet against two accused persons (who are acquitted by the appellate Court) and exonerated the revisionist. 4. The revisionist was summoned under Section 319 of Cr.P.C. by the trial court. To prove the case of prosecution, the prosecution examined as many as 6 witness namely PW-1 Smt. Jaidevi, PW-2 Dayaram, PW-3 Rajmani Upadhyay Retd. Sub-Inspector, PW-4 Dr. (Captain) A.K. Pandey, PW-5 Dr. S.N. Gupta, PW-6 Constable Ramesh Singh. 5. After examining the prosecution witnesses, statement of the accused under Section 313 of Cr.P.C. was recorded, wherein he denied the prosecution evidence and stated that he was implicated in a false case due to enmity. On behalf of the revisionist some documentary evidence had been filed but the revisionist has not examined any witnesses. 6. The appellate Court vide its judgment dated 29.06.2016 partly allowed the criminal appeal filed by the revisionist and two other coaccused persons, by which the trial court acquitted the other coaccused persons. The appellate Court held that the injured Jai Devi, sustained one injury which was caused by the revisionist. The appellate court further held that the prosecution has failed to prove the common intention of the other co-accused in committing the offence, and acquitted the other co-accused Gautam and Fullesh. 7. Learned counsel for the revisionist vehemently argued that there is material irregularity, illegality, in appreciation of finding recorded by the trial court as well as appellate court and argued as follows: (a) There is material contradictions in the evidence of Jai Devi (as per prosecution “injured”) assaulted by the revisionist by ¼jEHkk½- There is material contradictions in the evidence of Jai Devi, firstly she stated that the other co-accused Gautam and Fullesh committed marpeet with her by ¼jEHkk½ kicks and fist on exhortation of the present revisionist. Secondly, she stated that in her chief examination that the revisionist assaulted her twice by ¼jEHkk½ due to which she sustained injury. Secondly, she stated that in her chief examination that the revisionist assaulted her twice by ¼jEHkk½ due to which she sustained injury. (b) The aforesaid contradiction with regard to role of the revisionist is corroborated by PW-3 Raj Bali Upadhyay Sub-Inspector, Investigating Officer. (c) There is material contradiction between the ocular and medical testimony because the sole injured PW-1 Jai Devi stated that the revisionist and other two named co-accused persons assaulted by ¼jEHkk½ lathi and danda, kicks and fist but as per medical evidence, no visible injury was found on her body. As per statement of PW-4 Dr. (Captain) A.K. Pandey, no visible injury was found on PW-1 and only single injury of complain of pain was found. (d) The trial court as well as appellate court have not recorded any finding with regard to the contradiction argued before the court. 8. Per contra, learned A.G.A. as well as opposite party no. 2 have supported the order passed by the Sessions court and vehemently opposed the prayer and submits that there is no illegality in the impugned judgment and orders. 9. I have heard the submissions made by learned counsel for the revisionist and learned A.G.A. for the State and perused the material on record. 10. Before appreciating the evidence and submissions of the revisionist, it would be appropriate to discuss the scope of invoking the jurisdiction of the High Court in Criminal Revision against the conviction. 11. The Supreme Court observed in Raj Kumar vs. State of Himachal Pradesh, (2008) 11 SCC 76 , as under: “9. In Duli Chand vs. Delhi Admn. (1975) 4 SCC 649 the scope of invoking jurisdiction of the High Court in criminal revision was examined and it was held in a case involving vehicular accident as follows: (AIR p. 1960) The question whether the accused was guilty of negligence in driving the bus and the death of the deceased was caused due to his negligent driving is a question of fact which depends for its determination on an appreciation of the evidence. Where the Magistrate, and the Additional Sessions Judge arrived, on an assessment of the evidence at a concurrent finding of fact that the death of the deceased was caused by negligent driving of the bus by the accused and the High Court even though justified in refusing to re-appreciate the evidence reviewed the same in order to satisfy itself that there was evidence in support of the finding and that the finding was not perverse, came to the conclusion that the evidence established the death of the deceased was caused by the negligent driving of the bus by the accused, the Supreme Court on an appeal under Article 136 refused to interfere. 10. In State of Orissa vs. Nakula Sahu, (1979) 1 SCC 328 , it was held that the High Court should not have interfered with the concurrent findings recorded by the trial court and the Sessions Judge in exercise of revisional jurisdiction when there was no error or fact or law arrived at by the trial court or the Sessions Judge. 11. In State of Kerala vs. Puttumana Illah Jathavedan Namboodiri, (1999) 2 SCC 452 , it was held that the revisional jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appriciate the evidence and come to its own conclusion on the same unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 12. In State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand and Others, (2004) 7 SCC 659 , the Apex Court has been observed that: “22. The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, “for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceeding of such inferior court.” It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.” 13. In Krishnan and Another vs. Krishnaveni and Another, (1997) 4 SCC 241 , the Supreme Court observed as under: “1. Exercises of the revisional power by the high court under Section 397 read with Section 401 is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. The Court of Sessions and the Magistrates are inferior criminal courts to the High Court and Courts of judicial Magistrate are inferior criminal courts to the sessions judge. Ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and Section 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under Section 401 to exercise the revisional power on the grounds mentioned therein, i.e. to examine the correctness, legality or propriety of any finding sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior court, and to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional. The revisional. power of the high Court merely conserves the power of the high Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinates courts do not exceed the jurisdiction or abuse the power vested in them under the code or to prevent abuse of the process of the inferior criminal courts or to prevent miscarriage of justice.” 14. It is well settled principle of law that the inherent as well as revisional jurisdiction should be exercised cautiously. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. (Vide: Amit Kappor vs. Ramesh Chander, (2012) 9 SCC 460 ). 15. It is also well settled principle of law that the findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible evidence. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide: Rajinder Kumar Kindra vs. Delhi Administration, AIR 1984 SC 1805 , H.B. Gandhi and Others vs. Gopi Nath and Sons, 1992 Supp. (2) SCC 312, Triveni Rubber and Plastics vs. Collector of Central Excise, Cochin, AIR 1994 SC 1341 , Gaya Din (D) through LRs. and Others vs. Hanuman Prasad (D) through LRs. and Others, AIR 2001 SC 386 , Aruvelu and Another (Supra) and Gamini Bala Koteswara Rao and Others vs. State of Andhra Pradesh, (2009) 10 SCC 636 ). 16. PW-1 stated in her cross-examination that other co-accused Gautam, Fullesh having lathi and danda in their hands and they assaulted her but she sustained invisible injury. Visible injuries have been sustained by the assault of revisionist. She further stated that no bleeding was oozing from the wounds, she did not stated how many injuries she sustained. She further stated in her statement recorded under Section 161 of Cr.P.C. that at the time of the incident other coaccused were tied their cattle and they abused and committed marpeet by kicks and fits and danda and the present revisionist exhorted to the other accused persons. 17. She further stated in her statement recorded under Section 161 of Cr.P.C. that at the time of the incident other coaccused were tied their cattle and they abused and committed marpeet by kicks and fits and danda and the present revisionist exhorted to the other accused persons. 17. The arguments of the learned counsel for the revisionist are two fold firstly, he argued that PW-1 Jai Devi, sustained no injury; secondly, he vehemently argued that there is material contradiction between the statement of PW-1 and medical report. As per medical report which has been annexed as Ex.A-2 of the affidavit, single injury of complain of pain was found to PW-1 Smt. Jai Devi, no visible injury was found on the person of the injured as stated by PW-4 Dr. (Captain) A.K. Pandey. 18. After analysing the evidence of PW-1 Jai Devi, there is material contradiction in her testimony. Firstly, she stated that she sustained invisible injury and there is a contradiction with regard to role of the present revisionist. 19. It is evident from the evidence of PW-1 Jai Devi, wherein she stated that the present revisionist had not assaulted her but in her cross-examination she stated that the revisionist had assaulted her twice through ¼jEHkk½ but no injury was caused. The said evidence has also been corroborated by PW-3 Raj Bali Upadhyaya (Retd.) Sub-Inspector. 20. In view of the above foregoing discussion, I am not satisfied with the reasoning and conclusion of the Appellate Court as well as the trial Court in the impugned judgment and order. The trial court as well as the Appellate Court ignored the material contradictions. The findings recorded by the trial court as well as the Appellate Court are perverse, therefore, the judgment and order dated 13.04.2022 passed by the Chief Judicial Magistrate, Bhadohi at Gyanpur and 29.6.2016 passed by the Appellate Court are not sustainable. Hence, the abovementioned orders are set-aside and the present criminal revision is allowed. 21. The revisionist Suryabali, is acquitted from the charges of offence punishable under Sections 323, 325, 504 of I.P.C.