Allahabad High Court
Hariraj vs State Of Up on 5 February, 2020
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 74 Case :- CRIMINAL REVISION No. - 2220 of 2019 Revisionist :- Hariraj Opposite Party :- State of U.P. Counsel for Revisionist :- Sunil Kumar Chaudhari,Avinash Mani Tripathi Counsel for Opposite Party :- G.A. Hon'ble Ram Krishna Gautam,J.
1. This revision under Section 397 read with Section 401 of Code of Criminal Procedure, has been filed by convict-revisionist Hariraj, against State of U.P., with a prayer for setting aside impugned judgment of conviction and sentence made, therein, by trial Court of Additional Chief Judicial Magistrate, Court No. 3, Moradabad, passed in criminal Case No. 2806 of 2014, related with Case Crime No. 202 of 2012, under Sections 279 and 304-A I.P.C., P.S. Majhola, District Moradabad, along with judgment of Appellate Court of Sessions Judge, Moradabad, passed in Criminal Appeal No. 76 of 2018 (Hariraj Vs. State of U.P.).
2. Learned counsel for the revisionist argued that both the courts below failed to appreciate facts and law placed before it. Thereby, passed impugned judgment, wherein, conviction was awarded and sentence was passed. It was on the basis of statements recorded under Section 313 of Cr.P.C., before trial Court. But, no such statement was made by revisionist, whereas it was written under mistaken facts. The witnesses examined as eye witnesses i.e. PW-1 and PW-2, were of same department of Homegaurd, of which deceased was. They were interested witnesses. Investigating Officer did investigation under influence of department concerned. He did not recorded statements of nearby persons. The arrest was said to be made from his home that too, after 21 days of occurrence. Whereas, the statements recorded thereafter it, and PW-1 has specifically said that driver of the truck concerned ran from spot, after leaving truck there. It was all a concoction and on the basis of this, conviction and sentence was awarded. It was appealed before learned Sessions Judge, Moradabad, where specific arguments of these facts were made, but above Court also failed to appreciate facts and law and thereby, dismissed the appeal. Hence, this revision with above prayer.
3. Learned AGA has vehemently opposed with this contention that trial Court recorded statements of prosecution witnesses, wherein, PW-1 and PW-2, were two eye witnesses of spot. They have categorically said about the occurrence and rash and negligent act of revisionist, whereby, this accident occurred, resulting, injury to deceased, who subsequently succumbed to above injuries. The judgment of conviction and sentences therein, was not on the mere basis of statement recorded under Section 313 of Cr.P.C. Rather, it was upon the appreciation of entire evidence, laid before trial Court and it was well in accordance with law and evidence, on record. Appellate Court has appreciated the arguments raised by learned counsel for appellant and has passed impugned order, whereby, criminal appeal has been dismissed. In this revision, the course open to this revisional Court is limited one. It can never be second appellate court for appreciation of facts, which were confirmed by two subordinate courts. Hence, there is no illegality or irregularity in impugned judgments. This revision be dismissed.
4. Having heard learned counsels for both sides and gone through material placed on record, it is apparent that Section 397 of Code of Criminal Procedure, provided a limited jurisdiction to Court of Session Judge as well as High Court, for summoning and examining any record of any proceeding pending before inferior criminal court, situated within its legal jurisdiction, for the purpose of satisfying itself 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. Record may be summoned, for perusal of same i.e. scope of the provision is to set right of patent defect or an error of jurisdiction, or law or the perversity, which crept in the proceeding, under this exercise of Revisional jurisdiction, as has been propounded by Apex Court in State Of Rajasthan vs Fatehkaran Mehdu, AIR 2017 SC 796. It has further been held by Apex Court in Amit Kapoor vs Ramesh Chander & Anr, (2012) 9 SCC 460, that the revisional court is empowered to call for and examine the records of any inferior Court, for the purpose of satisfying itself, as to the illegality and irregularity of any proceeding or order, made in a case. Object of this provision is to set right of patent defect or error of jurisdiction or of law. Meaning thereby, under jurisdiction of this jurisdiction, this Court is not to set as a second appellate Court for analyzing the facts involved therein. Rather, jurisdictional error or legal error or patent error, regarding jurisdiction or law, which has resulted perversity, is to be seen and the same is to set right. Under above pretext of law, the fact of case in hand is to be scrutinized.
5. Case Crime No. 202 of 2012, was got lodged at P.S. Majhola, District Moradabad, for offences punishable under Sections 279 and 304-A I.P.C., upon the report of Shahane Alam, Company Commander Homegaurd, on 30.11.2012, with this contention that Mangu Khan, a homeguard, was on his way upon a motorcycle and when he reached in front of Moradabad Development Authority, a truck Registration No. UP 21 N/9471, being driven by, its driver rashly and negligently, did dash with motorcycle No. UP AC/5083, of Mangu Khan, resulting grievous hurt to him. This occurrence was witnessed by witnesses Sanjeev Kumar Sharma and Irshad Hussain, Homeguard 4005 and Homegaurd 0197, respectively, who were on duty at Moradabad Development Authority Office. This information was received by informant, who got this case lodged. Injured was instantly taken by those witnesses for treatment at District Hospital, Moradabad, where he was declared dead, i.e. he succumbed to this injury. Meaning thereby, this report was against the driver, who was driving above truck Registration No. UP 21 N/9471. Investigation proceeded, wherein, truck was detained. Its technical examination etc. was got conducted. Autopsy examination of deceased was conducted. Then after, charge sheet was filed, wherein, cognizance was taken. Trial proceeded. Statements of those three witnesses, two of fact and one of informant along with Investigating Officer and constable clerk, who got this case lodged, were got recorded. After closing the evidence of prosecution, statement of accused was recorded for an explanation, if any, regarding incriminating evidence, led by prosecution witnesses. There was admission of this accident that too under accident. Then after, no evidence in defence was led and court after hearing both sides, passed impugned judgment of conviction and sentence of six months simple imprisonment under Section 279 I.P.C. and two years simple imprisonment under Section 304-A of I.P.C., with a direction of concurrent running of sentences. This judgment was challenged before Sessions Judge, Moradabad, in Criminal Appeal No. 76 of 2018. The contention of appellant was same, as has been written above in this revision and learned Appellate Judge, after hearing both sides, dismissed the above appeal, holding no illegality in appreciation of law and evidence, by trial Court and this revision has been filed. The judgment of both of the Courts contains this fact that above truck was detained and against it, compensation case was filed, wherein, name of revisionst as driver of that truck, having above registration number, was there. It was contested and then after, compensation was awarded. No point of time it was raised that present revisionist was not driver of above truck at above time, date and place of accident and it was determined by Motor Accident Claim Tribunal, wherein, award of compensation was there. Meaning thereby, this fact that appellant-revisionist was or was not driver of above truck on above date, time and place was adjudicated priorly.
A.F.R. Court No. - 74 Case :- CRIMINAL REVISION No. - 2220 of 2019 Revisionist :- Hariraj Opposite Party :- State of U.P. Counsel for Revisionist :- Sunil Kumar Chaudhari,Avinash Mani Tripathi Counsel for Opposite Party :- G.A. Hon'ble Ram Krishna Gautam,J.
1. This revision under Section 397 read with Section 401 of Code of Criminal Procedure, has been filed by convict-revisionist Hariraj, against State of U.P., with a prayer for setting aside impugned judgment of conviction and sentence made, therein, by trial Court of Additional Chief Judicial Magistrate, Court No. 3, Moradabad, passed in criminal Case No. 2806 of 2014, related with Case Crime No. 202 of 2012, under Sections 279 and 304-A I.P.C., P.S. Majhola, District Moradabad, along with judgment of Appellate Court of Sessions Judge, Moradabad, passed in Criminal Appeal No. 76 of 2018 (Hariraj Vs. State of U.P.).
2. Learned counsel for the revisionist argued that both the courts below failed to appreciate facts and law placed before it. Thereby, passed impugned judgment, wherein, conviction was awarded and sentence was passed. It was on the basis of statements recorded under Section 313 of Cr.P.C., before trial Court. But, no such statement was made by revisionist, whereas it was written under mistaken facts. The witnesses examined as eye witnesses i.e. PW-1 and PW-2, were of same department of Homegaurd, of which deceased was. They were interested witnesses. Investigating Officer did investigation under influence of department concerned. He did not recorded statements of nearby persons. The arrest was said to be made from his home that too, after 21 days of occurrence. Whereas, the statements recorded thereafter it, and PW-1 has specifically said that driver of the truck concerned ran from spot, after leaving truck there. It was all a concoction and on the basis of this, conviction and sentence was awarded. It was appealed before learned Sessions Judge, Moradabad, where specific arguments of these facts were made, but above Court also failed to appreciate facts and law and thereby, dismissed the appeal. Hence, this revision with above prayer.
3. Learned AGA has vehemently opposed with this contention that trial Court recorded statements of prosecution witnesses, wherein, PW-1 and PW-2, were two eye witnesses of spot. They have categorically said about the occurrence and rash and negligent act of revisionist, whereby, this accident occurred, resulting, injury to deceased, who subsequently succumbed to above injuries. The judgment of conviction and sentences therein, was not on the mere basis of statement recorded under Section 313 of Cr.P.C. Rather, it was upon the appreciation of entire evidence, laid before trial Court and it was well in accordance with law and evidence, on record. Appellate Court has appreciated the arguments raised by learned counsel for appellant and has passed impugned order, whereby, criminal appeal has been dismissed. In this revision, the course open to this revisional Court is limited one. It can never be second appellate court for appreciation of facts, which were confirmed by two subordinate courts. Hence, there is no illegality or irregularity in impugned judgments. This revision be dismissed.
4. Having heard learned counsels for both sides and gone through material placed on record, it is apparent that Section 397 of Code of Criminal Procedure, provided a limited jurisdiction to Court of Session Judge as well as High Court, for summoning and examining any record of any proceeding pending before inferior criminal court, situated within its legal jurisdiction, for the purpose of satisfying itself 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. Record may be summoned, for perusal of same i.e. scope of the provision is to set right of patent defect or an error of jurisdiction, or law or the perversity, which crept in the proceeding, under this exercise of Revisional jurisdiction, as has been propounded by Apex Court in State Of Rajasthan vs Fatehkaran Mehdu, AIR 2017 SC 796. It has further been held by Apex Court in Amit Kapoor vs Ramesh Chander & Anr, (2012) 9 SCC 460, that the revisional court is empowered to call for and examine the records of any inferior Court, for the purpose of satisfying itself, as to the illegality and irregularity of any proceeding or order, made in a case. Object of this provision is to set right of patent defect or error of jurisdiction or of law. Meaning thereby, under jurisdiction of this jurisdiction, this Court is not to set as a second appellate Court for analyzing the facts involved therein. Rather, jurisdictional error or legal error or patent error, regarding jurisdiction or law, which has resulted perversity, is to be seen and the same is to set right. Under above pretext of law, the fact of case in hand is to be scrutinized.
5. Case Crime No. 202 of 2012, was got lodged at P.S. Majhola, District Moradabad, for offences punishable under Sections 279 and 304-A I.P.C., upon the report of Shahane Alam, Company Commander Homegaurd, on 30.11.2012, with this contention that Mangu Khan, a homeguard, was on his way upon a motorcycle and when he reached in front of Moradabad Development Authority, a truck Registration No. UP 21 N/9471, being driven by, its driver rashly and negligently, did dash with motorcycle No. UP AC/5083, of Mangu Khan, resulting grievous hurt to him. This occurrence was witnessed by witnesses Sanjeev Kumar Sharma and Irshad Hussain, Homeguard 4005 and Homegaurd 0197, respectively, who were on duty at Moradabad Development Authority Office. This information was received by informant, who got this case lodged. Injured was instantly taken by those witnesses for treatment at District Hospital, Moradabad, where he was declared dead, i.e. he succumbed to this injury. Meaning thereby, this report was against the driver, who was driving above truck Registration No. UP 21 N/9471. Investigation proceeded, wherein, truck was detained. Its technical examination etc. was got conducted. Autopsy examination of deceased was conducted. Then after, charge sheet was filed, wherein, cognizance was taken. Trial proceeded. Statements of those three witnesses, two of fact and one of informant along with Investigating Officer and constable clerk, who got this case lodged, were got recorded. After closing the evidence of prosecution, statement of accused was recorded for an explanation, if any, regarding incriminating evidence, led by prosecution witnesses. There was admission of this accident that too under accident. Then after, no evidence in defence was led and court after hearing both sides, passed impugned judgment of conviction and sentence of six months simple imprisonment under Section 279 I.P.C. and two years simple imprisonment under Section 304-A of I.P.C., with a direction of concurrent running of sentences. This judgment was challenged before Sessions Judge, Moradabad, in Criminal Appeal No. 76 of 2018. The contention of appellant was same, as has been written above in this revision and learned Appellate Judge, after hearing both sides, dismissed the above appeal, holding no illegality in appreciation of law and evidence, by trial Court and this revision has been filed. The judgment of both of the Courts contains this fact that above truck was detained and against it, compensation case was filed, wherein, name of revisionst as driver of that truck, having above registration number, was there. It was contested and then after, compensation was awarded. No point of time it was raised that present revisionist was not driver of above truck at above time, date and place of accident and it was determined by Motor Accident Claim Tribunal, wherein, award of compensation was there. Meaning thereby, this fact that appellant-revisionist was or was not driver of above truck on above date, time and place was adjudicated priorly.
6. PW-1, in his examination-in-Chief, has categorically said that he was present, on that date and time on above spot, when this accident occurred, wherein, driver of above truck, registration UP 21 N/9471, driving the same rashly and negligently, did dash with the motorcycle of Mangu Khan, resulting him serverly hurt. He was instantly taken to district hospital, where he was declared dead. He died owing to above injuries. This fact is very well there in examination-in-Chief. Whereas, no cross questioning is on this fact that it was not a death owing to above accident. The same is the situation with P.W.-2. Investigating Officer has proved his formal investigation. But no variance is there in cross-examination. This Court in Kunwar Singh Vs. State of U.P. 1993 (3) AWC 1305 Alld., has held about the effect of non cross examination of a witness, regarding the averment made in Examination-in-Chief and has held that once the fact has been said in Examination-in-Chief, but has not been controverted or cross-examined in cross-examination by other side, then the unrebutted Examination-in-Chief, will be taken in toto. The factum of death, owing to above accident, was said by PW-1 and PW-2, but it was not cross-examined by learned counsel for the defence. Hence, it was unrebutted and uncontroverted sentence of both and the same is to be taken with intact evidence. On the basis of those witnesses as well as formal exhibits, proved by Investigating Officer as well as informant, the judgment of conviction and sentence was passed. It was well in accordance with law and facts on record. There was neither any illegality or irregularity or any perversity in the impugned judgment. Accordingly, this revision merits its dismissal.
7. Hence, dismissed as such.
8. Record of trial Court with copy of judgment be sent back.
Order Date :- 5.2.2020 Kamarjahan
7. Hence, dismissed as such.
8. Record of trial Court with copy of judgment be sent back.
Order Date :- 4.2.2020 Kamarjahan