Allahabad High Court
Surendre Kumar Chaturvedi vs State Of U.P.And 5 Ors. on 30 November, 2022
Author: Mohd. Aslam
Bench: Mohd. Aslam
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 31 Case :- CRIMINAL REVISION No. - 359 of 2008 Revisionist :- Surendre Kumar Chaturvedi Opposite Party :- State Of U.P.And 5 Ors. Counsel for Revisionist :- Ram Kushal Tiwari,Indra Mani Pande,Ravindra Shukla Counsel for Opposite Party :- G.A.,A P Mishra Hon'ble Mohd. Aslam,J.
1. Heard Sri Sanjay Srivastava, learned A.G.A. for the State-opposite party no.1, Sri A.P. Misra, learned counsel for the accused-opposite party nos.2 to 6 and perused the record. None present for the informant-revisionist.
2. The instant revision has been preferred by informant-revisionist Surendra Kumar Chaturvedi under Section 397 read with Section 401 Cr.P.C. against the impugned judgement and order dated 26.5.2008 passed by learned Sessions Judge, Sultanpur in Sessions Trial No.218 off 1996 (State Vs. Triveni Singh and others), arising out of Crime No.63 of 1994, under Sections 147, 148, 302/149 I.P.C., P.S. Jamo, District Sultanpur, by which the accused-opposite party nos.3 to 6 were acquitted from the charges of offence punishable under Sections 147, 302/149 I.P.C. as well as accused-opposite party no.2 was acquitted from the charges of offence punishable under Sections 148, 302/149 I.P.C.
3. The brief facts necessary for disposal of this revision is that the informant-revisionist Surendra Kumar Chaturvedi son of Prayag Prasad, resident of village Pure Ganesh Chaube lodged a first information report at Police Station Jamo, District Sultanpur on 18.8.1994 at 14:30 p.m. on the basis of application addressed to Superintendent of Police, Sultanpur dated 18.3.1994, which is Ex.Ka-1 alleging therein that his brother Shashi Bhal Chaturvedi (deceased) and Vidya Shankar Shukl (not examined) had gone to see his maternal grandmother on 17.3.1994 at around 07:00 p.m. They were coming back to their home from there in the night at about 10:00 p.m. and on the way at about 20 paces from the house of his maternal grandmother, the accused Triveni Singh armed with lathi and ballam, Ram Sahay, Virender Singh and two other unknown persons, to whom he can recognise on seeing them, armed with lathi were sitting in ambush. They have enmity with him because of election of co-operative. They attacked on his brother with deadly weapon and assaulted upon him with lathi and spade. His brother's condition became very critical. In order to save the life of his brother, he sent the information to the police station regarding the incident and got him admitted directly to the hospital at Musafirkhana. The condition of his brother was still very bad and he was referred to Sadar Hospital, Sultanpur. He was fighting for life and not yet regained consciousness. The informant-revisionist raised alarm at the place of occurrence, thereupon, Vidya Shankar Shukl and other villagers arrived there and seen the occurrence. The accused persons ran away thinking that his brother was dead.
4. The chik report Ex.Ka-9 was scribed by Head Constable Bhanu Pratap Singh (PW-6) on 18.3.1994. Constable Virendra Bahadur by making entry in GD Report No.24 (Ex.Ka-11) on 18.3.1994 at 14:30 p.m. registered the Case Crime No.Nil/1994, under Sections 147, 148, 323, 324, 308 I.P.C. at Police Station Jamo, District Sultanpur. Injured Shashi Bhal was medically examined by Dr. R.P. Pandey (PW-4) at Musafirkhana on 18.3.1994 at 02:30 a.m. (night). At the time of medical examination of injured Shashi Bhal, his age was found 49 years and the following injuries were found on his body:-
"1. Incised wound 6 cm x 0.5 cm x bone deep on left side of the skull, 7 cm above left ear. Advised x-ray of skull A/P
2. Incised wound 6 cm x 1 cm x bone deep on front of forehead left side above left eyebrow. Advised x-ray of skull.
3. Lacerated wound 4 cm x 0.5 cm x bone deep on forehead, 3 cm above right eye.
4. Lacerated wound 1 cm x 0.5 cm x bone deep on forehead above eyebrow.
5. Lacerated wound 3 cm x 0.5 cm x bone deep, 2 cm above right eye.
6. Lacerated wound 1 cm x 0.5 cm x muscle deep on right lip.
7. Contusion 7 cm x 2 cm on posterior side of hand.
8. Traumatic swelling 7 cm x 5 cm on the posterior side of the left hand.
9. Lacerated wound 1 cm x 0.5 cm x bone deep on right side of chest.
10. Lacerated wound 1.5 cm x 0.5 cm x bone deep on left foot.
11. Abraded contusion 2 cm x 1 cm on front of right foot.
12. Lacerated wound 1 cm x 0.3 cm skin deep on right ear.
Dr. R.P. Pandey (PW-4) advised x-ray for injury nos.1 to 5 and 8. He opined that injury nos.1 and 2 were caused by sharp edged weapon and rest by blunt object. The injuries were found fresh at the time of medical examination. The injured was semiconscious stage and was vomiting. He referred the injured to the district hospital. He prepared injury report Ex.Ka-4 in his own handwriting."
5. The investigation of the case was entrusted to SI R.N. Mishra. On 20.3.1994, a memo was received from KGMC at 07:20 p.m. at Police Station Jamo regarding death of Shashi Bhal Chaturvedi, which was entered in G.D. Report No.4 at 07:20 p.m. SI Naamwar Singh (PW-5) at that time was posted at Outpost Yahiaganj, Police Station Chowk, Lucknow. On obtaining copy of GD Report No.4 and memo of death of the deceased, he proceeded to mortuary KGMC, Lucknow. Constable Kunwar Naresh Singh of outpost KGMC, who was assigned for post-mortem duty, met him at mortuary. Shravan Kumar Pathak, Surendra Kumar Chaturvedi, Gaya Prasad Chaturvedi, Hanuman Dutta and Bhagwan Dutta Tripathi were appointed as witness of the inquest. The witnesses of the inquest opined that the deceased died during treatment as a result of ante-mortem injuries, which he sustained at the place of occurrence. They have also opined that for ascertaining the actual cause of death, post-mortem is needed. He prepared inquest report Ex.Ka-5, letter to CMO Ex.Ka-6, Photo Lash Ka-7, sealed the dead body and prepared challan lash Ex.Ka-8 and handed over the dead body to the Constable Kunwar Naresh Singh for carrying out the post-mortem. The post-mortem of the dead body of the deceased Shashi Bhal Chaturvedi was conducted by Dr L.S. Sanyal (PW-3) on 20.3.1994. At the time of post-mortem, the age of the deceased was found 26 years. He died on 19.3.1994 at 03:10 hours at KGMC during treatment. The deceased was man of average height and body built. The rigor mortis was not present on the upper part of the body while the same was found on the lower part of the body. At the time of post-mortem, the following ante-mortem injuries were found on the body of the deceased:-
"1. Stitched wound with 5 stitches on the left side of skull.
2. Stitched wound 5 cm in length with 3 stitches on the mid of skull.
3. Stitched wound with 2 stitches on the right part of the skull.
4. Stitched wound 4 cm long with 3 stitches on left side of the skull 8 cm above left ear.
5. Abraded contusion 8 cm x 4.5 cm on right side of the face and skull.
6. Abraded contusion 7 cm x 1.5 cm on the back of right hand.
7. Abraded contusion in area 16 cm x 6 cm on the lower side of the stomach.
8. Abraded contusion in area 6 cm x 3 cm on front part of left foot.
9. Abraded contusion in area 8 cm x 4 cm on the front part of right foot.
On internal examination, fracture was found in skull. The membrane of the brain was found torn. 90 ml liquid substance was found in stomach. The gas and fecal matters were found in the small intestine. Doctor has opined that the deceased died due to ante-mortem head injury. He has further opined that the ante-mortem head injuries were sufficient to cause death in ordinary course of nature. He prepared the post-mortem report Ex.Ka-3 in his own handwriting."
6. The Investigating Officer SI Ravindra Nath Mishra (PW-9) copied the check report and GD registering the case and recorded the statements of scriber of GD and of informant-revisionist and inspected the place of occurrence on 20.3.1994. He has taken in possession the plain soil and blood-stained soil, blood stained bed-sheet, scarf, a pair of leather sleeper of the deceased from the place of occurrence and prepared memo of it Ex.Ka-13 & 14 and sealed it separately. He also prepared site plan Ex.Ka-15. On 22.3.1994, he arrested the accused Ram Sahai, Virendra Bahadur and recorded their statements and amended the Section 304 I.P.C. vide GD report no.12 Ex.Ka-16. Thereafter, the investigation was transferred to SI Vijayanand (PW-7) on 23.3.1994, who has recorded the statement of witness Vidya Shankar Shukl. On 31.3.1994, he recorded the statements of witnesses and copied the post-mortem report in case diary. On the same day, he has also recorded the statements of witnesses Shiv Prasad and Ishrat. On 30.4.1994, he has recorded the statement of accused Triveni Singh and sent the charge-sheet on 30.4.1994 Ex.Ka-10. Thereafter, on the application of informant, the investigation was transferred to CBCID. The charge-sheet Ex.Ka-10 was cancelled by Station Officer and the investigation was handed over to CBCID for re-investigation. Inspector Shamsher Singh CBCID was entrusted the investigation on 25.8.1994, who copied the application of Gurudev Kumar Dwivedi and tehrir of informant-revisionist Surendra Kumar Chaturvedi in the case diary. On 2.3.1995, he recorded the statement of ASI Ravindra Nath Mishra. On 13.3.1995, he recorded the statements of informant-revisionist Surendra Kumar Chaturvedi, Dr. R.P. Pandey and other witnesses. He has also recorded the statements of Smt. Lakhpati Devi and other witnesses and the statements of accused Vishambhar Prasad Mishra, Ram Abhilash Singh, Triveni Singh, Ram Sahai and Virender Singh and also recorded the statements of witnesses of inquest. On 15.3.1995, he has recorded the statement of scriber of the chik report. On 26.4.1995, he has recorded the statement of witness Vidya Shankar Shukl and has submitted the charge-sheet Ex.Ka-12 by amending Section 302 I.P.C.
7. The cognizance of offence was taken after complying the provision of Section 207 of Cr.P.C. and the case was committed to the court of session. The charges for offence punishable under Sections 147, 148, 302/149 I.P.C. were framed against accused-opposite party no.2 Triveni Singh, opposite party no.3 Ram Sahai, opposite party no.4 Virendra Singh, opposite party no.5 Ram Abhilash and opposite party no.6 Vishambhar Prasad to which they have not pleaded guilty and claimed to be tried.
8. In order to prove its case, the prosecution has examined informant-revisionist Surendra Kumar Chaturvedi as PW-1, Smt. Lakhpati as PW-2 as eyewitnesses. PW-1 has proved the written complaint Ex.Ka-1. Prosecution has also examined Dr. L.S. Sanyal as PW-3 to prove the post-mortem report of the deceased Ex.Ka-3, Dr. R.P. Pandey as PW-4 to prove injury report of the deceased Ex.Ka-4, SI Namwar Singh as PW-5 to prove panchayatnama Ex.Ka-5, letter to CMO Ex.Ka-6, photo lash Ex.Ka-7, challan lash Ex.Ka-8 and handed over the dead body to Constable Kunwar Naresh Singh for carrying out the post-mortem. Constable Bhanu Pratap Singh as PW-6 was also examined to prove chik report Ex.Ka-9 and GD registering the case Ex.Ka-11. Prosecution has also examined Investigating Officer/Sub Inspector Vijayanand Singh as PW-7 to prove the steps taken in investigation and has filed charge-sheet Ex.Ka-10 against the accused. Later on, the investigation was conducted by CBCID on the application of informant-revisionist after cancelling the charge-sheet Ex.Ka-10. Prosecution has also examined Inspector Shamsher Singh (CBCID) to prove the steps taken in investigation and after investigation he has submitted the charge-sheet Ex.Ka-12 and Sub Inspector Ravindra Nath Mishra to prove site plan Ex.Ka-15 as well as plain soil and blood-stained soil collected from the place of occurrence and sealed in separate containers and prepared the memo in this regard Ex.Ka-13 and Ex.Ka-14. He has also amended the section of the investigation into 304 I.P.C.
9. The statements of the accused were recorded under Section 313 Cr.P.C. to which they have denied their participation in occurrence and have stated that they have been falsely implicated in the case. In defence, the accused-opposite parties have examined Ram Lakhan Shukla as DW-1, Ram Pyarey Pandey as DW-2 and Chhotey Lal as DW-3 and has closed the evidence.
10. Learned court below after hearing the learned counsel for the parties and appreciating the evidence of informant Surendra Kumar Chaturvedi (PW-1) held that the informant-revisionist has taken the name of only four accused persons in his written complaint and two unknown persons to whom he can recognize when they come before him. After four months of the occurrence, on 25.7.1994, an application has been moved from the side of informant for investigation of case by CBCID and later on the investigation was transferred to CBCID. He has not named the accused Vishambhar Prasad Mishra and Ram Abhilash Singh in his written complaint. Even in application moved for investigation by CBCID, he has not named the accused Vishambhar Prasad Mishra and Ram Abhilash Singh. Witness PW-2 has deposed that the accused Vishambhar Prasad Mishra and Ram Abhilash Singh were known to her since their childhood because they are resident of her village. The informant Surendra Kumar Chaturvedi (PW-1) has not disclosed the name of accused Vishambhar Prasad Mishra and Ram Abhilash Singh in his statement under Section 161 Cr.P.C. recorded by Investigating Officer. On appreciation of evidence, learned court below has held that the first information report was lodged after due deliberation and during investigation the name of the accused Vishambhar Prasad Mishra and Ram Abhilash Singh was deliberately added to falsely implicate them. Learned court below has also held that the alleged independent eyewitness Vidya Shankar has not been produced by the prosecution. In this case, PW-1 Surendra Kumar Chaturvedi and PW-2 Smt. Lakhpati are the alleged eyewitnesses. The eyewitness Vidya Shankar, whose name is mentioned in the first information report, has not been produced by prosecution before lower court during trial. It has also held that PW-1 Surendra Kumar Chaturvedi has admitted in his cross-examination that the accused Vishambhar Prasad Mishra and Ram Abhilash Singh are brothers of accused Triveni Singh and were known to him before lodging of the F.I.R. It has further held that PW-1 has admitted that the occurrence has taken place at the door of Fulesara and the house of the maternal grandmother of informant is not shown in the site plan. PW-2 Smt. Lakhpati in her statement has stated that her age was about hundred years at the time of examination in the court. She has also admitted that on the day of occurrence she was ill and was suffering from high fever. She has further admitted that she could not see beyond 2-3 paces. The occurrence was taken place at 10:00 p.m. in the night and her house was away from place of occurrence and she can hardly move 2 or 3 steps. Learned lower court has also held that the deposition of alleged eyewitnesses PW-1 Surendra Kumar Chaturvedi and PW-2 Smt. Lakhpati do not inspire confidence and no conviction can be recorded on the basis of their ocular testimony and has acquitted the accused-opposite party nos.2 to 6 from the charges. Feeling aggrieved by it, the informant-revisionist has preferred this revision.
11. Learned counsel for the informant-revisionist in memo of revision has stated that the impugned judgement of acquittal recorded by learned lower court is against fact and law. It is further stated that learned lower court has wrongly disbelieved the statement of informant-revisionist PW-1 and his maternal grandmother PW-2 in the impugned judgement and has illegally acquitted the accused-opposite party nos.2 to 6. It is further stated that the four accused persons were named in the first information report and two accused were not named. It is further stated that during investigation the name of the accused not named also came into light. It is further stated that the informant-revisionist PW-1 Surendra Kumar Chaturvedi and his maternal grandmother PW-2 Smt. Lakhpati were the eyewitnesses of the occurrence and are corroborated by the first information report and the post-mortem report. It is further stated that the learned court below has not appreciated the evidence available on record in right prospective and the judgement of acquittal recorded by learned court below is perverse and illegal and is liable to be set aside. It is further stated that the charges against accused-opposite party nos.2 to 6 is proved beyond reasonable doubt and judgement of acquittal recorded by learned lower court is liable to be reversed and accused-opposite party nos.2 to 6 are liable to be convicted for offence punishable under Sections 147, 148, 302/149 I.P.C. and sentenced to undergo rigorous imprisonment for life and fine also.
12. Learned A.G.A. has supported the judgement of the court below and has submitted that all the accused-opposite party nos.2 to 6 were known to the informant-revisionist, but he has only named four accused and two unknown persons. He has further submitted that the above fact establishes that the informant-revisionist has not witnessed the incident and his presence on the place of occurrence is doubtful. He has further submitted that PW-2 Smt. Lakhpati is maternal grandmother of informant-revisionist and her house has not been shown in the site plan. She in her statement has stated that her age was about hundred years at the time of examination before the court. She has also admitted that on the day of occurrence she was ill and was suffering from high fever. She has further admitted that she could not see anything beyond 2-3 paces. The occurrences has taken place at 10:00 p.m. in the night and her house is away from the place of occurrence and she can hardly move 2-3 steps. Therefore, learned lower court has rightly held that she has not witnessed the occurrence and has rightly acquitted the accused-opposite party nos.2 to 6 from the charges.
13. I have given thoughtful consideration to the contentions raised by learned counsel for the informant-revisionist in the memo of revision as well as contention raised by learned A.G.A. for the State and have gone through the record. Now the question arises whether the revision can be heard and decided in absence of the revisionist. The procedure for hearing of the revision is analogous to hearing of the appeal with the exception as mentioned in Section 401 Cr.P.C. Section 401 Cr.P.C. speaks as follows:-
"Section 401. (1) In the case of any proceeding the record of which has been called for by itself 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 386, 389, 390 and 391 or on a Court of Session by section 307 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 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code tan appeal lies but an application for revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."
14. From perusal of Section 401 Cr.P.C., it is abundantly clear that High Court may exercise any of the power conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307. It is further provided in sub-section (2) that no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
15. Sub-section (2) of section 401 Cr.P.C. cast duty upon the revision court to hear opposite party if order is made in revision prejudiced to the accused or other person. Meaning thereby, where impugned order is liable to be set aside and prejudicial to the opposite party, the opposite party must be heard.
16. Section 386 of the Code of Criminal Procedure provides the procedure to be followed in hearing of the appeal and also provides the power of appellate court. That is also applicable in revision also in view of the Section 401 Cr.P.C. with exception that if the order to be made in revision is prejudicial to the accused or other person (opposing party), opportunity of hearing must be given to opposite party. The proviso appended with Section 386(e) provides that the sentence shall not be enhanced unless the accused has been given an opportunity of showing cause against the such enhancement. Therefore, from the perusal of provision of Section 386 Cr.P.C., it is mandatory that the accused should be heard if order is made in revision prejudicial to the accused.
17. The Hon'ble Apex Court in the case of "Shyam Deo Pandey Vs. State of Bihar, AIR 1971 SC 1606" has held that if the court decided not to dismiss the appeal summarily, it must take the step mentioned in Section 385 and proceed to hear the parties on merit. At this stage also it has the power to dismiss the appeal, if it considered that there is no sufficient ground for interfering, but such consideration must be based on the merit of the appeal. After the records are before the court and the appeal is listed for hearing [s.385 (2)], whether the appellants appear or not in response to the notice, the appellate court dispose of the appeal only after reasoning and finding of the trial court as recorded in its judgement on tested in the light of record of the case for this purpose the appellate court must- (a) peruse such record: (b) hear the appellants or his pleader, if he appears and (c) hear the public prosecutor, if he appears. It is abundantly clear that the procedure followed in hearing of the appeal will be followed in hearing the revision with certain exceptions. Therefore, the revision can be heard in absence of the revisionist also on merit.
18. Sub-section (3) of section 401 Cr.P.C. speaks as follows:-
"Nothing in this section shall be deemed to authorize High Court to convert of finding of acquittal to conviction."
19. Even in case of appeal against acquittal the Hon'ble Apex Court in the case of "Mool Chand Vs. Jagdish Singh and others" reported in 1993 Supp (2) Supreme Court Case 714 has held in paragraph 18, which reads as follows:-
"....in appeal against the order of acquittal by the High Court was to be considered as whether the approach by the High Court is wrong or the view taken by the High Court is unreasonable. If that evidence is of such nature that two views are possible and one view in favour of the accused with the High Court in acquitting them, the Supreme Court will be slow to interfere with the order of acquittal. If only the High Court has committed grave error in appreciation of evidence and misread itself by ignoring legal principle and arrived at the conclusion, the decision can be characterized as perverse and illegal requiring interference by the court under Article 136."
20. Even in appeal against the acquittal if the judgement of the trial court is not perverse and is not based on misreading of the evidence and two views are possible, one favouring the accused, the acquittal is not liable to be interfered in appeal. In present case, the revision has been preferred against the acquittal and the revision court cannot convert acquittal to conviction in view of sub-section (3) of section 401 Cr.P.C. The judgement of the court below is based on right appreciation of evidence and cannot be said to be perverse, therefore, the case is not liable to remanded for pre-trial. Keeping in view the facts and circumstances of the case and reasons enumerated by court below, the instant revision is liable to be dismissed.
21. In this case, the appeal has not been preferred by the State against the acquittal recorded by trial court under the circumstances. This revision has been preferred against the acquittal by informant Surendra Kumar Chaturvedi.
22. In this case revisionist Surendra Kumar Chaturvedi as PW-1 deposed that his brother Shashi Bhal Chaturvedi and Vidya Shankar Shukl had gone to see his maternal grandmother on 17.3.1994 at around 07:00 p.m. and while they were coming back to their home in the night at about 10:00 p.m. and reached about 20 paces from the house of his maternal grandmother, the accused Triveni Singh armed with lathi and ballam, Ram Sahay, Virender Singh and two other unknown persons, to whom he can recognize on seeing them, armed with lathi were sitting in ambush. He has further deposed that they have enmity with him because of election of co-operative. He has also deposed that they attacked on his brother with deadly weapon and assaulted upon him with lathi and spade. His brother's condition became very critical. In order to save the life of his brother, he sent the information to the police station regarding the incident and got him admitted directly to the hospital at Musafirkhana. He has next deposed that the condition of his brother was still very bad and he was referred to Sadar Hospital, Sultanpur, where he was fighting for his life and not yet regained consciousness. He has also deposed that when he raised alarm, Vidya Shankar Shukl and other villagers arrived there at the spot and saw the occurrence, then the accused persons ran away thinking that his brother was dead. Later on his brother Shashi Bhal succumbed to death.
23. In his cross-examination, the informant-revisionist Surendra Kumar Chaturvedi (PW-1) has admitted that he has only named four accused in the written complaint and two unknown persons to whom he can recognize when they come before him. He has also admitted that after four months of the occurrence, on 25.7.1994, an application was moved from his side for investigation of case by CBCID and later on the investigation was transferred to CBCID. He has not named in his written complaint the name of the accused Vishambhar Prasad Mishra and Ram Abhilash Singh. Even in application moved for investigation by CBCID he has not named the accused Vishambhar Prasad Mishra and Ram Abhilash Singh. PW-1 informant Surendra Kumar Chaturvedi has not disclosed the name of accused Vishambhar Prasad Mishra and Ram Abhilash Singh in his statement under Section 161 Cr.P.C. recorded by Investigating Officer
24. PW-2 Smt. Lakhpati has deposed that the accused Vishambhar Prasad Mishra and Ram Abhilash Singh were known to her since their childhood because they are resident of her village.
25. On appreciation of evidence, learned court below has held that the first information report was lodged after due deliberation and during investigation the name of the accused Vishambhar Prasad Mishra and Ram Abhilash Singh was deliberately added to falsely implicate them. In this case, the independent eyewitness Vidya Shankar mentioned in first information report, not produced by prosecution, which cast doubt on prosecution case. In this case PW-1 Surendra Kumar Chaturvedi and PW-2 Smt. Lakhpati are the alleged eyewitnesses. PW-1 has admitted in his cross-examination that the accused Vishambhar Prasad Mishra and Ram Abhilash Singh are brothers of accused Triveni Singh and were known to him before lodging of the F.I.R. PW-1 has admitted that the occurrence has taken place at the door of Fulesara. The house of the maternal grandmother of informant-revisionist has not been shown in the site plan. PW-2 Smt. Lakhpati in her statement has stated that her age was about hundred years at the time of examination before the court. She has also admitted that on the day of occurrence she was ill as she was suffering from high fever. She has further admitted that she could not see beyond 2-3 paces. The occurrences has taken place at 10:00 p.m. in the night and her house is away from the place of occurrence and she can hardly move 2-3 steps. Therefore, the deposition of eyewitness PW-1 Surendra Kumar Chaturvedi does not inspire confidence and is not of such quality that can be acted upon.
26. From the appreciation of evidence of PW-2 Smt. Lakhpati, it is proved that she can only see anything at the distance of 2-3 paces and her presence at the place of occurrence is not established. Her deposition does not inspire confidence and no conviction can be recorded on the basis of ocular testimony of PW-1 and PW-2 and learned court below has rightly acquitted the accused-opposite party nos.2 to 6 from the charges of offence punishable under Sections 147, 148, 302 read with 149 I.P.C.
27. In such circumstances, the instant revision lacks merit and is, accordingly, hereby dismissed.
Order Date :- 30.11.2022 Anil K. Sharma