Rajasthan High Court - Jodhpur
Kaptan vs State & Ors on 3 January, 2018
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 749 / 2014
Kaptan S/o Aadam, by caste Mehrat, resident of Baadiya Dhola
Datta, Chitaar, Police Station Sendra, District Pali
----Petitioner
Versus
1. State of Rajasthan
2. Ammi S/o Kesa,
3. Alwar @ Anwar S/o Hajari,
4. Kamarru Din S/o Shakru,
5. Mohan S/o Naseeba,
6. Bhanwaroo S/o Memaji,
7. Chhittar S/o Mendu,
8. Halloo S/o Dalla,
9. Kaloo S/o Jafroo
All by caste Mehrat, resident of Baadiya Dhola Datta, Chitaar,
Police Station Sendra, District Pali.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. P.N. Mohnani
For Respondent(s) : Mr. Rajesh Bhati, Public Prosecutor, for the
State.
None present for respondents No.2 to 9.
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order 03/01/2018 Petitioner-complainant has preferred this revision petition under Section 397/401 Cr.P.C. to assail judgment dated 21 st of May 2014, passed by Addl. Sessions Judge, Jaitaran, District Pali (for short, 'learned appellate Court'), whereby learned appellate Court has affirmed judgment dated 13 th of September 2013 passed by Judicial Magistrate, Bar, District Pali (for short, 'learned trial Court'), acquitting respondents No.2 to 9 for offence punishable under Sections 147, 452, 323, 325 read with Section 149 IPC.
(2 of 8) [CRLR-749/2014] The facts, in nutshell, giving rise to this revision petition are that on 26th of June 2010, at about 9 PM, petitioner-complainant submitted a written report at Police Station Sendra, District Pali, stating therein that on that day at about 7:30 PM, when he was at his home, accused-respondents with 4-5 others barged inside his house and started beating him. The report further unfurled that accused persons were carrying wooden-sticks and iron-rods, and accused Ammi gave a blow on the head of complainant and when his father, mother & other family members came to his rescue, they were also given beatings. As per report, the family members of complainant also received injuries on their head, forehead, ribs and back. Attributing old rivalry, for the planned attack by respondent accused persons, it is also stated in the report that offence was committed by them in furtherance of common object as the members of unlawful assembly. On the basis of report, FIR No.127/10 was registered and investigation commenced. Upon completion of investigation, chargesheet for offence under Sections 147, 452, 323, 325/149 IPC was submitted before learned trial Court against the accused persons. Later on, the learned trial Court, after hearing arguments on charge, framed charges against accused persons for the aforesaid offences and on their denial all of them were put on trial.
The prosecution, in order to prove the accusation, examined 8 witnesses besides tendering documentary evidence, which were exhibited as P/1 to P/11 respectively. After completion of (3 of 8) [CRLR-749/2014] prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C. and at their behest accused respondent No.2 Ammi himself appeared as DW1. The learned trial Court, thereafter, heard final arguments and by its judgment dated 13th of September 2013, acquitted all the accused- respondents for the aforesaid offences by extending benefit of doubt. While extending benefit of doubt, learned trial Court made sincere endeavour to appreciate the entire prosecution evidence and noticed many contradictions and inconsistencies. Upon examining the prosecution evidence, the learned trial Court also found that witness PW4 Jamila has projected a very blurred vision of the incident without attributing any specific role to any accused persons by citing reason of darkness at the scene of occurrence. Likewise, the Court has also found that evidence of PW5 complainant Kaptan is not inspiring confidence as he became unconscious. Referring to the statement of PW7 Aadam, the learned trial Court has recorded its finding that the said witness has also shown his inability to attribute specific role to any accused for causing injury. Thus, taking into account serious discrepancies in the testimony of all the prosecution witnesses, the learned trial Court recorded a definite finding that their testimony is not of sterling worth to bring home guilt against accused persons for the charged offences. It is in that background, the learned trial Court extended benefit of doubt to all the accused-respondents.
(4 of 8) [CRLR-749/2014] Feeling aggrieved by the verdict of acquittal, petitioner filed an appeal before learned appellate Court and the learned appellate Court, upon re-appreciation of evidence, fully concurred with the findings and conclusions of the learned trial Court, which entailed rejection of the appeal.
I have heard learned counsel for the petitioner, learned Public Prosecutor, perused the impugned judgments and thoroughly scanned the entire record of the case.
At the outset, it is observed that petitioner is a victim and therefore at his behest appeal against acquittal under Section 372 Cr.P.C. before this Court is maintainable after insertion of proviso in the aforesaid section by the Code of Criminal Procedure (Amendment) Act, 2008 by invoking sub-section (4) of Section 378 Cr.P.C. Be that as it may, acquittal of the accused- respondents is further examined by the appellate Court on merit and, therefore, for appreciating afflictions of the petitioner- complainant concurrent finding of both the courts below is available before this Court.
There remains no quarrel that scope of judicial review against verdict of acquittal is very much limited more specifically when it is concurrent findings of fact. Interference by this Court in exercise of revisional jurisdiction is only in a very rare and special case. The Court may exercise revisional jurisdiction where it is (5 of 8) [CRLR-749/2014] found that, either by misreading of some evidence or failure to consider some vital point, a grave failure of justice has resulted, or where the concurrent findings of lower courts are unfounded or unreasonable. While it is true that concurrent findings recorded by the trial and the appellate Court cannot be stamped as infallible, but when concurrent finding of courts below is based on proper appreciation of evidence, revisional jurisdiction cannot be exercised for upsetting the said finding.
Supreme Court in case of D. Stephens Vs. Nosibolla (AIR 1951 SC 1996) held that revisional jurisdiction against an order of acquittal by a private complainant is not to be lightly exercised. The Court further held that jurisdiction has to be exercised in exceptional cases to correct a manifest illegality or to prevent gross miscarriage of justice and not to be ordinarily used merely for the reason that trial Court has mis-appreciated the evidence on record. The said view was subsequently reiterated by the Supreme Court in various latter judgments.
In Thankappan Nadar and Ors. Vs. Gopala Krishnan and Anr. [(2002) 9 SCC 393], Supreme Court reiterated the same principle. The Court held:
"In the present case also, the High Court has not found any procedural illegality or manifest error of law in the order passed by the sessions judge. The High Court has merely re-appreciated the evidence and arrived at the conclusion that there was no reason not to rely upon the injured witnesses PW1, PW2 and PW4 and that when there is an attack by a large group of people armed with lethal weapons and when they belong to an organised (6 of 8) [CRLR-749/2014] group like RSS, the people of the locality may be terrorised and might be unwilling to testify even if they had actually seen the occurrence. The High Court observed that the victims in the case no doubt belong to the rival party, but that does not render their evidence, interested or partisan and thereafter set aside the acquittal order passed in appeal by the sessions judge and emitted it for fresh hearing and disposal by observing that court would decide the matter unhampered by any of the observations contained in the order. From the findings recorded by the High Court, it is difficult to hold that there was any manifest error of law or procedure. It is nobody's case that the appellate court has shut out or has overlooked the evidence which clinches the issue. The High Court has only re-appreciated the entire evidence and has taken contrary view for setting aside the acquittal order. This, in our view, is not permissible while exercising the revisional jurisdiction at the instance of de facto complainant against the order of acquittal."
In Suryakant Dadasaheb Bitale Vs. Dilip Bajrang Kale [(2014) 13 SCC 496], Supreme Court set aside the judgment of High Court in exercise of revisional jurisdiction against the verdict of acquittal by Sessions Judge and affirmed verdict of the Sessions Judge. The Court held:
"In the present case, the view taken by the Sessions Judge is neither unreasonable nor perverse. It is possible reasonable view based on the evidence on record. In the circumstances, the High Court was not justified in setting aside the order of acquittal.
For the reasons aforesaid, we set aside the impugned judgment and order dated 18th October, 2007 passed in Criminal Revision Application No. 321 of 2004 and affirm the order passed by the Sessions Court. The appeal is allowed."
Upon examining the judgment of the appellate Court as well as learned trial Court, I am unable to find any illegality or impropriety in appreciation of evidence by both the Courts below so as to interfere in exercise of revisional jurisdiction.
(7 of 8) [CRLR-749/2014] Even if the instant revision petition is examined in exercise of appellate jurisdiction under Section 372 Cr.P.C., in the light of Code of Criminal Procedure (Amendment) Act 2008, then too the appeal requires consideration on the same yardsticks as that of appeal by persecuting agency under Section 378 Cr.P.C. against acquittal. However, I am constrained to observe that in the backdrop of facts of the instant case, I am afraid, the afflictions of the petitioner cannot be made subject matter of judicial scrutiny in exercise of appellate jurisdiction under Section 372 Cr.P.C. after rejection of appeal by the Sessions Judge because no second appeal is tenable. It may be emphasised here that by applying yardsticks of an appeal under Section 378 Cr.P.C., I am afraid, no case for grant of leave is made out.
In that background, from academic point of view also, if the concurrent findings of both the courts below are examined, then too I am unable to find any manifest error in appreciation of evidence by both the courts below. Undeniably, in the instant case, evidence of one eye witness contradicts other eye witness and is irreconcilable and therefore benefit of doubt given by the learned trial Court to the accused-respondents and affirmed by the appellate Court warrants no interference.
In substance, neither there is any perversity in the appreciation of evidence by both the Courts below, nor it is a case of misreading of the prosecution evidence, or eschewing material (8 of 8) [CRLR-749/2014] and reliable evidence. Therefore, even in exercise of appellate jurisdiction also, subject to the observations made hereinabove, no interference is warranted.
The upshot of above discussion is that I find no merit in this revision petition, and the same is, therefore, dismissed.
(P.K. LOHRA),J.