Gangeshwari Devi vs State of Bihar and Others

A.K. Sinha, J.—This revision application has been directed against the order of acquittal recorded by Session Judge, Vaishali at Hajipur in Session Trial No. 124 of 1999 u/s 302 of the Indian Penal Code, whereby he an quitted the accused/opposite party Nos. 2 to 5

The F.I.R. was lodged on the basis of the fardbeyan of the (sic) (P.W. 9) which was recorded at the place of occurrence without any delay. According to the fardbeyan the deceased him gone to take tea in the shop of Ram Prasad Sah (P.W. 2) situated at (sic) Chowk along with his Bhaginas. After sometime, the informant went there to (sic) him and the deceased told the (sic) that he will be coming soon. While the informant was waiting for him at (sic) of about two laggis on the west by the side of the road, after ten minutes a jeep came and stopped near the shop of Ram Prasad Sah, four unknown person got down from the jeep and took (sic) towards the north side. Thereafter accused/opposite party Nos. 2 to 5 also down from the same jeep armed with Bhujali, dagger etc. and they assaulted the deceased with their respective weapon indiscriminately. In course of the occurrence two to three bombs were also exploded and the neighbouring shop keepers fled away. It is stated that the informant''s brother Baleshwar Rai and Sarpanch Jagdhari Singh who had witnessed the occurrence tried to save the deceased and resisted the assailants but they were also attacked, so they fled away. The informant went near his son and found that her son is dead with several injuries on his person. The accused/opposite parties were put on trial and denied the charges.

In order to prove the charges, the prosecution examined as many as 11 witnesses, including the doctor and the I.O. who are P.Ws. 10 and 11. It appears from the impugned order that save and except P.Ws. 3 and 9, the other witnesses either turned volte face or their evidence were not found reliable. Therefore, the case of the prosecution rested on the evidence of P.Ws. 3 and 9 who claimed to be eye witnesses to the occurrence.

The learned Sessions Judge considered the evidence of P.W. 3 and was of the view that his presence at the place of occurrence was doubtful and as such no reliance can be placed on his testimony. He has given solid and cogent reason for his coming to such conclusion and the conclusion drawn by him does not suffer from any infirmity.

The next witness is P.W. 9 the informant herself. The learned Sessions Judge discussed her evidence in detail and found that her testimony has not been corroborated by any independent witness. He also found that the evidence, of P.W. 9 did not inspire confidence for which he has assigned valid reason and the learned Sessions Judge on the basis of the materials available on record has given benefit of doubt to opposite party Nos. 2 to 5 and acquitted them of the charges.

In this connection while appreciating the reasons assigned by the learned Sessions Judge for disbelieving the evidence of uncorroborated testimony of P.W. 9 it was pointed out that in her examination-in-chief P.W. 9 suppressed the material facts that only opposite party Nos. 2 to 5 got down from the jeep being armed with dagger and Bhujali and assaulted her son with their respective weapon but in her cross-examination she admitted that four unknown persons also got down from the jeep being armed with dagger and Bhujali and the neck of the deceased was cut, meaning thereby that four unknown persons had also participated in the occurrence but P.W. 9 deliberately suppressed this material fact in her examination-in-chief. The statement made by P.W. 9 that two to three bombs were exploded in course of the occurrence was also not corroborated by the objective finding of the I.O. who did not find any sign of bomb explosion while inspecting the place of occurrence. P.W. 9 also admitted in her evidence that there was no land dispute between her and the accused persons and she could not say as to which accused had assaulted by which weapon and learned Sessions Judge also found that the prosecution could not bring on record the immediate cause for the occurrence.

The learned Counsel for the Petitioner however, submitted that the learned Sessions Judge committed error of record by stating in his judgment that P.W. 9 had not been able to say where she was sitting and he also committed similar mistake in respect of situation of the house of Jamun Rai and he wrongly stated that there was no land dispute between the parties although there was such evidence on the record.

All these submissions do not carry any weight in view of the settled principle of law enunciated by the apex court in several judgments whereby it has been held that the "High Court should not interfere in the order of acquittal recorded by the trial court in its revisional jurisdiction except in rare of rarest case or in exceptional circumstances where there have been flagrant miscarriage of justice. In the case of K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, the Apex court held as hereunder:

It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but that jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method or ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. Some cases of this kind however may be indicated, which would justify the High Court in interfering with a finding of acquittal in revision. These cases may be where the trial court has jurisdiction to try that case but has still acquitted the accused or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law.

The case of the Petitioner admittedly does not fall in any of the aforesaid categories which have been enumerated in that decision of the apex court. That apart, I find that the learned Sessions Judge has taken pains to consider the evidence of all the witnesses and by judging the pros and cons, has, come to be definite conclusion that the evidence a P.W. 3 and P.W. 9 do not inspire confidence for which he has assigned definite and cogent reason and ultimately he gave benefit of doubt to opposite party Nos. 2 to 5. The findings of the learned Sessions Judge and the conclusion arrived at by him does not, in my view, suffer with any infirmity, muchless any illegality.

In the result, therefore, I find no merit in this revision application which stand dismissed.