Chota vs State Of Uttarakhand

Ravindra Maithani, J

The instant revision is preferred against the judgment and order dated 25.08.2009 passed in Sessions Trial No.235 of 2007, State Vs. Kuldeep and Others, by the Court of Additional District and Sessions Judge, Roorkee, District Haridwar (for short 'the case'). By the impugned judgment and order, Kuldeep (respondent no.2), Mange (respondent no.3) and Bablu (respondent no.4) have been acquitted of the charge under Section 307 r/w 34, 504 and 506 IPC.

Heard learned counsel for the parties through video conferencing and perused the record.

In this revision, notices were issued to the private respondents. It was reported that respondent no.3 has died. None represented the respondent nos.2 and 4 at the time of hearing.

The factual aspects, necessary for the disposal of the revision are as hereunder;

On 09.12.2006, when the informant Chota (the revisionist herein) and his brother Kasim were returning home, near the house of Hukum Singh, the private respondents (hereinafter referred to as 'the accused respondents') abused them. The informant and the injured asked them, not to abuse, but, instead of stopping to abuse, they started marpeet. The villagers intervened, but, meanwhile accused respondent Kuldeep fired at the brother of the informant. He was taken to hospital. The report was lodged, when he was under treatment.

After investigation, chargesheet was submitted against the accused respondents. On 18.10.2008, charges were framed. Prosecution, in order to prove its case, examined as many as eight witnesses. After hearing the parties, by the impugned judgment and order, the private respondents have been acquitted. Aggrieved by it, the instant revision is preferred by the informant.

Learned counsel for the revisionist would argue that the prosecution has been able to prove its case beyond reasonable doubt, but, the learned court below did not consider the material evidence, particularly, the fact that FIR was prompt and categorical and also the fact that the medical examination report of the injured Kasim was also prompt, which supported the version of the FIR; the learned court below committed a mistake in not believing the statement of the informant on the ground that he did not conduct his medical examination, despite, having been beaten with Lathi and Danda. It is argued that in villages, it is normal that Lathi and Danda attack may not sustain any injury, so as to get medical examination.

On behalf of the State, it is argued that the impugned judgment and order is correct in the eye of law and the evidence of informant has rightly been disbelieved.

This is a revision. The scope is much limited. It is not an appeal. In the case of Akalu Ahir and Others Vs. Ramdev Ram (1973) 2 SCC 583, the Hon'ble Supreme Court discussed the scope of revisional jurisdiction of the High Court and observed that "the High Court when approached by a private party for exercising its power of revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure, of justice." (Para 8)

In the case of Akalu Ahir (supra), in fact, the Hon'ble Supreme Court has illustratively given the circumstances, under which, interference in revision, may be made by the High Court.

In the case of State of Maharashtra Vs. Jagmohan Singh Kuldeep Singh Anand, (2004) 7 SCC 659, it was further observed by Hon'ble Supreme Court that "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."

In the case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, in paragraph 12, the Hon'ble Supreme Court, observed that "If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits." (para 12)

This is a revision and as stated, its scope is restricted, although, well defined. It is not an appeal. Appreciation of evidence cannot be done, as is done in the appeals. The golden principle of criminal jurisprudence is that a person is presumed innocent, until proven guilty. In cases of acquittal, this presumption even gets stronger because of a finding of acquittal having been recorded in favour of the person. It is also settled legal position that even in the cases of appeals also that if two views are possible and finding of acquittal is challenged, the view taken by Trial Court should be accepted.

In the instant case, unfortunately, the injured could not be examined. He died during the proceedings of the case. There is only one witness of the fact, he is PW1 Chota, the informant. He has stated about the incident. PW5 Dr. Akhilesh Agarwal has stated about the injury report and also opined that one of the injuries was with firearm. It is true that according to the prosecution, the incident occurred at 05:00 PM and the FIR was lodged at 07:45 PM in the evening and the injured was examined at 08:40 PM, at a distance, at District Hospital, Haridwar.

The learned Court below has considered the statement of eye witness PW1 Chota in quite detail, appreciated it on various aspects, but, not believed him for various reasons, as indicated in the impugned judgment.

The learned Court below also found the presence of PW1 Chota, at the scene of occurrence, much doubtful. At page 9, last but two paragraphs in the impugned judgment, it is observed that the presence of PW1 Chota is doubtful, because according to the statement of PW1 Chota, he did not know that his brother was fired at, until doctor told it to him. The place of occurrence was also found doubtful. It was also found that the FIR was ante-timed.

It is not that the Court has not considered the medical examination report, although, the learned court below in para 22 of the judgment recorded an incorrect fact that in the medical report, there is no mention of firearm injury. It may be stated that, in fact, in the medical examination report, Exh. A4, the doctor has mentioned that injury no.1 was caused by some firearm and this is what has been stated by PW5 Dr. Akhilesh Agarwal, but, it also does not affect the entire impugned judgment. It is a factual error. Whatever arguments have, in fact, been raised relates to the appreciation of evidence. It cannot be said that the learned Court below did not consider all the aspects of the matter. (a factual error recorded in para 22 does not have such an impact that it may invalidate the impugned judgment and order). Therefore, this Court is of the view that the finding of acquittal recorded does not need any interference and the revision deserves to be dismissed.

The instant revision is dismissed.

Let a copy of the judgment along with lower Court record be sent to the Court below for compliance.