Allahabad High Court
Shiv Narayan Agrawal vs State Of U.P. And Others on 3 January, 2020
Author: Ali Zamin
Bench: Ali Zamin
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 86 Case :- CRIMINAL REVISION No. - 635 of 2006 Revisionist :- Shiv Narayan Agrawal Opposite Party :- State of U.P. and Others Counsel for Revisionist :- Niraj Tripathi Counsel for Opposite Party :- Govt. Advocate Hon'ble Ali Zamin,J.
Case called out in the revised list. No one appears on behalf of the parties while learned A.G.A. is present for the opposite party no.1.
Heard learned A.G.A. for the State respondent no.1 and perused the record.
The present revision has been preferred against the judgement and order of acquittal dated 14.12.2005 passed in S.T. No.80 of 2002 (State vs. Amit Pratap Singh and others), under Sections 307, 307/34, 506, 452, 323, 427, 325, 324 I.P.C., P.S. Kulpahar, District Mahoba by learned Additional Session Judge (Court No.1), District Mahoba with a prayer to direct retrial of the aforesaid case by setting aside the judgement and order.
According to revisionist on 20.07.1999 at 11:00 a.m. he was sitting in his shop of radio and watch, at that time respondent nos.2 and 3 Amit Pratap Singh and Manish Pratap Singh respectively came armed with knife, hockey and other lethal weapons. Some unknown persons were also accompanying them. As the accused persons came, they said that this person should be killed today as he has made many complaints against us. Amit Singh by lathi and Manish with intention to kill assaulted him. At three to four places knife assaults were made and near about 25 to 30 times he was assaulted by hockey and other associates were provoking them.
As per medical report informant/revisionist was examined on 20.07.1995 at 11:45 a.m., the following injuries were found:
1. A contused red colour mark of 5 cm x 4.5 cm on the right jaw.
2. Cut wound of 4 cm x 0.75 cm muscle deep on the end of left thumb and index finger.
3. Abrasion 3.5 cm x 2.00 cm on the left arm, 3 cm below the elbow.
4. Abrasion 5 cm x 2 cm on the mid right clavicle.
5. Lacerated wound by 1.5 cm muscle deep on the back side of the right arm below 7 cm of the elbow.
6. Contused swelling 6 cm x 2.5 cm on the upper right shoulder.
7. Tender contused mark on the interior lower part of the right shoulder of 7 cm x 5 cm.
8. Contused swelling of 4 cm x .05 cm on the right thigh above the 16 cm of knee.
9. Contused swelling of 5.5 cm x 2 cm on the right thigh.
According to Doctor all the injuries are simple in nature except injury nos. 5 and 7 which were advised for x-ray.
From the perusal of the judgement, it appears that x-ray report Ext.Ka-9 was produced by the prosecution, according to which coracoid process of shoulder and radius ulna lower shaft was found fractured while Doctor had advised x-ray of right forearm and right thigh.
The learned Additional Session Judge has held that there is enmity of litigation between respondent nos.2, 3 and informant Shiv Narayan Agrahari. It has also been held that on the basis of the enmity accused may have motive to beat informant. On the other hand it is also possible that some unknown persons have caused injuries to the informant and due to non identification of the assailants, accused persons might have involved. With regard to the more probability the learned Additional Session Judge has considered that informant Shiv Narayan Agrahari in his cross examination has admitted that he did politics with some associates Mahipat and Deshraj. He had also made complaint against land grabber and on the basis of his statement it has been observed that there was not shortage of enemies of informant. It has been opined that it may be possible that the land grabbers by sending some persons committed mar peet with the informant to whom informant could not identify and due to enmity of the litigation the accused persons have been involved in the present case.
The learned Additional Session Judge has also considered that so far as question of committing mar peet of the accused persons with informant is concerned, if by force he had to settle the dispute then he could not have taken the shelter of civil court by filing a suit against informant and other persons but he would have settled by committing mar peet with the informant. The learned trial court has further considered that the incident has taken place in the busy market and at the time of incident other shops of the locality were opened but no any person of the locality came at the time of incident. Learned Judge, ultimately came to the conclusion that from the perusal of evidence available on the record, it is clear that the testimony of the informant is not supported by any independent witness. Looking the enmity of the informant with the accused persons testimony without corroboration of informant by independent and impartial witness convicting accused persons on the basis of sole testimony of informant will not be proper.
According to F.I.R. 3 and 4 knife injuries, 25 to 30 hockey injuries were caused to the informant but as per medical report only one incised wound in between left hand thumb and index finger and eight rest injuries have been found. It is also alleged that apart from the respondent nos.2 and 3 some unknown persons were also armed with lethal weapons. If they had come with intention to cause fatal injuries to informant then they should have participated and used their weapons but in this respect the prosecution story is silent. The injuries as alleged also do not commensurate with the medical report. X-ray was also not conducted as advised.
The Hon'ble Supreme Court in paragraph 8 of the case of Akalu Ahir And Others Vs. Ramdeo Ram, (1973) 2 SCC 583 has held as under:
"8...This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision
(i) Where the, trial court has no jurisdiction to try the case, but has still acquitted the accused;
(ii) Where the trial court has wrongly shut out evidence which the prosecution wished to produce;
(iii) Where the appellate court has wrongly held the evidence which-was admitted by the trial court to be inadmissible;
(iv) Where the material evidence has been over-looked either by the trial court or by the appellate court; and
(v) Where the acquittal is based on a compounding of the offence which is invalid under the law.
These categories were however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal."
The observation of the Hon'ble Supreme Court in para 9 in the case of Vimal Singh Vs. Khuman Singh And Another, (1998) 7 SCC 223 would also be apt is being extracted below:
"9. Coming to the ambit of power of High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgment of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue have been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 403 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. Infect, Sub-section (3) of Section 401 of the Code forbids the High Court in converting the order of acquittal into one of conviction."
Hon'ble Supreme Court in the case of Venkatesan Vs. Rani And Another, (2014) 4 SCC (Cri) 157 relying on the cases of Akalu Ahir (supra) and Vimal Singh (supra) has held as under:
"Revisional jurisdiction of the High Courts while examining an order of acquittal is extremely narrow and ought to be exercised only in cases where trial court had committed a manifest error of law or procedure or had overlooked and ignored relevant and material evidence thererby causing miscarriage of justice. Reappreciation of evidence is an exercise that the High Court must refrain from while examining an order of acquittal in the exercise of its revisional jurisdiction."
Keeping in mind the aforesaid propositions set forth by the Hon'ble Supreme Court in the above referred cases when the impugned judgment and order is perused then it is found that the learned Sessions Judge had jurisdiction to pass the impugned judgment and order. No manifest error of law or procedure has been committed in passing the judgment and order. The order neither suffers from glaring illegality nor the court below has illegally shut out the evidence which otherwise ought to have been considered or material evidence which clinches the issue has been overlooked.
In view of the above, revision has no force. Therefore, no interference is warranted by this Court as such it is liable to be dismissed. Accordingly, it is dismissed.
Order Date :- 3.1.2020 Jitendra