Ramshankar Mishra vs Avdhesh Chaudhary and Another

M.K. Mudgal, J.—The petitioner-complainant has filed this revision u/s 397 read with Section 401 of Code of Criminal Procedure against the judgment dated 28.9.2004 passed by the Court of V Additional Sessions Judge, Bhind in Criminal Appeal No. 116 of 2004 acquitting the respondent no. 1-accused, setting aside the judgment dated 21.7.2004 passed by the Court of Judicial Magistrate First Class Bhind in Cr. Case No. 218 of 1999 whereby the respondent no. 1-accused was convicted and sentenced u/s 456 of Indian Penal Code. No exhaustive statement of facts is required to be narrated for the purpose of this revision. Suffice it to say that before 14-15 years back, the complainant/petitioner Ramshankar Mishra took the shop on rent owned by the respondent no. 1-accused. As usual, on 24th December 1994 in the evening complainant closed the shop and went his home. Thereafter, on the next day morning at 5 AM, he was told by his neighbours that some cloths and sign board of his shop were lying in front of the house of Munshilal Liloiwale and Chaudhary Karora. On this, the complainant went to the spot and found that some cloths and sign board of the shop were lying there. He went to the Kotwali District Bhind and informed the police. Thereafter, when he went to the shop, he found the respondent No. 1/accused Chaudhary Awdhesh Kumar along with a man armed with a gun standing near the shop. The respondent no. 1-accused told the complainant that he was not ready to vacate the shop and now he would see what had happened to him. Hearing this, the complainant left the place quietly and returned to the Kotwali and apprised the Town Inspector about the incident, on which, an FIR Crime No. 291 of 1994 was lodged at Kotwali District Bhind and a case was registered against the respondent no. 1-accused. During investigation a spot map Ex. P/2 was prepared, the scattered clothes were seized vide Ex. P/1 and after investigation, charge sheet was filed in the Court of Judicial Magistrate, First Class Bhind.

The learned trial court framed the charge against the accused u/s 456 of IPC and after completion of trial, convicted the respondent no. 1-accused u/s 456 of IPC and sentenced him to undergo Six months RI with fine of Rs. 500/-. Being aggrieved by the judgment of conviction, respondent no. 1-accused preferred Criminal Appeal No. 116/04 before V Additional Sessions Judge, Bhind and learned appellate Court vide impugned judgment, acquitted the respondent no. 1-accused as indicated herein above.

Being aggrieved by the said judgment the petitioner/complainant has preferred this revision on the ground that the learned appellate court has overlooked the material evidence concerning the issue and has committed a gross injustice in the case.

The learned counsel for the petitioner submits that the petitioner was tenant in the shop owned by the respondent No. 1/accused who forcibly took possession of the shop by breaking the locks of the shop during midnight and the accused put his own locks on the shop after removing the articles therein. The learned counsel further pleads that although there is no eye witness in the case, yet the manner in which the accused broke the locks of the shop and put his own locks and threatened the complainant not to enter the shop, shows that the accused was the only person who forcibly took the possession of the shop by breaking the locks and removing the articles after the closure of the shop by the complainant during the midnight. The counsel further submits that the findings recorded by the learned appellate Court are not based on proper reasonings and are perverse to the recorded evidence. The learned counsel further submits that the findings of the learned trial Court were based on proper appreciation of evidence. Inspite of that the learned appellate Court reversed the findings of the trial Court arbitrarily and has drawn the conclusion contrary to the recorded evidence. The learned counsel prays for setting aside the impugned judgment and remitting the case to the appellate Court for deciding the case afresh.

Controverting the submissions made by the petitioner''s counsel, the learned counsel for the respondent No. 1 submits that the shop was not in the possession of the complainant on the day of incident and he had vacated it long back i.e. in 1986. The findings of the learned appellate Court are based on proper reasonings and appreciation of evidence. The counsel for the respondent No. 1 Shri R.N. Sharma further submits that the scope of revision against the acquittal is very limited unless the findings are perverse or have overlooked the evidence, no interference is required in the impugned judgment. The learned counsel has further submitted that the power of revision is required to be exercised sparingly. As per the recorded evidence the prosecution has utterly failed to prove that the complainant was in possession of the shop as a tenant on the date of incident, therefore, the judgment of acquittal passed by the appellate Court being well reasoned no interference is required in it.

Heard the arguments and perused the record.

In order to prove the case, the prosecution has examined ten witnesses and produced the documents Ex. P/1 to P/23.

The witness Rakesh Bhadoriya (PW 7) who was the witness of spot map has not supported the prosecution story. Similarly, the other witness Vinay Kumar Soni (PW 8) has also not corroborated the prosecution story. Both the witnesses turned hostile.

It is true that there is no eye witness in this case as the incident took place at midnight. Therefore, the consideration has to be made by the court in the case on the circumstantial evidence.

It is correct that Sections 397 to 401 of the Code are group of sections conferring on higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under S. 401 cannot be invoked to only to correct wrong appreciation of evidence and the High Court is not required to act as a Court of appeal but at the same time, it is the duty of the Court to correct manifest illegality resulting into gross miscarriage of justice. The Hon''ble Supreme Court in Ram Briksh Singh and other Vs. Ambika Yadav and anr., AIR 2004 S.C. 4583 has held as under:-

Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under S. 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a Court of appeal but at the same time, it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice.

More than half a century ago, in D. Stephens Vs. Nosibolla, , this Court held that revisional jurisdiction when it is invoked against an order of acquittal by a private complainant is not to be lightly exercised, it could be exercised only in exceptional cases to correct a manifest illegality or to prevent a gross miscarriage of justice and not to be ordinarily used merely for the reason that the trial Court has mis-appreciated the evidence on record.

In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, a note of caution was appended so that the High Court does not convert a finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot directly convert a finding of acquittal into a finding of conviction in view of specific statutory prohibition. While noticing that it is not possible to lay down the criteria for determining exceptional cases which would cover all contingencies for exercise of revisional power, some cases by way illustration were mentioned wherein the High Court would be justified in interfering with the finding of acquittal in revision. The High Court would be justified to interfere where material evidence is over looked by the trial Court.

In a recent decision in Bindeshwari Prasad Singh @ B.P. Singh and Others Vs. State of Bihar (Now Jharkhand) and Another, noticing principles laid in Stephen''s and Chinnaswamy Reddy it was held that the High Court was not justified in reappreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under S. 401 of the Code since it was well settled that the order of acquittal cannot be interfered with in revision merely on the ground of errors in appreciation of evidence. Relying upon these decisions, Mr. Misra contends that the High Court while interfering with the judgment and order of the Court of Session has not kept in view the parameters of exercise of revisional jurisdiction.

As per the respondent no. 1/accused''s defence the complainant Ramshankar Mishra (PW/4) was tenant in the respondent No. 1''s shop till 1986 and the complainant had vacated the shop in the same year but the said defence story is totally false as is obvious from the recorded evidence as the complainant paid an amount of Rs. 15,000/- by cheque for payment of rent in the year 1991. In this regard certificate from the State Bank of Indore was issued (Ex-P/5) on 28.1.95. The receiving of the said amount was not denied by the accused whereas a false explanation was given by him that the said amount was received by him in payment of amount for sale of grain and gram to the complainant which was firmly denied by the complainant in para 16 during the cross-examination. Moreover, no evidence has been produced on record by the accused to prove his defence.

On perusal of the para 13 and 14 of the impugned judgment, it becomes clear that the learned appellate court has held that the receipt of payment of rent has not been produced on record after the year 1986. The complainant Ramshankar Mishra (PW/4) has stated in para 12 that some important documents were stolen in the incident. The learned appellate court has further observed that the witness has not deposed in his statement that the receipts of payment of the rent were stolen in the incident. This observation is perverse to the Ex-P/23. On the back side of the said document, it has been specifically mentioned that the receipts of payment of rent which were kept in the shop were not found. Thus, it becomes clear that the learned appellate court has overlooked the material evidence in this case.

The complainant Ramshankar Mishra (PW/4) has deposed in para 5 that the receipt Ex-P/5 to Ex-P/10 were given by the respondent No. 1 Avdesh Kumar Choudhary with his signature after receiving the rent and this fact was not denied by the respondent no. 1/accused. The PW/4 has further deposed that on 3.3.91 a cheque for Rs. 15,000/- was given to the Avdesh Kumar Choudhary. The said cheque was encashed by him in his account and in this regard the certificate has been issued by the State Bank of Indore Ex-P/12. In para 16 of the statement, in this regard the cross-examination has been carried out by the accused wherein a few suggestions have been given to the witness PW/4 and he has infirmly denied all the suggestion. The PW/4 has further stated in the statement that the said cheque was not given to the accused for any purchase of grain and gram from him but for payment of outstanding rent. The respondent has not produced any evidence on record showing that he had been grain merchant and sold the grain to the Ramshankar Mishra (PW/4) and an amount of Rs. 15,000/- was due against the PW/4 for the transaction of the alleged sale of grain. The said defence story appears to be baseless.

The respondent has admitted while answering the question no. 1 asked in examination u/s 313 of the Cr. P.C. that the complainant Ramshankar Mishra (PW/4) was his tenant in his shop situated near Kusum Bai Vidyalaya. Though the respondent has tried to say in his defence that the Ramshankar Mishra vacated his shop in the year 1986 yet no document for proving the said fact has been produced on record otherwise there was no reason for the respondent to accept the cheque in the year 1991 from the complainant. If the shop had been vacated by Ramshankar Mishra (PW/4) in the year 1986 he would also not have had any reason to lodge the report Ex-P/3 on 25.12.94 at the Police Station City Kntwali Bhind, on the basis of which, Crime No. 291/94 u/s 456 of the IPC was registered and during investigation it was not found that Ramshankar Mishra (PW/4) had vacated the shop or he was not in possession of the respondent No. 1''s shop on the day of incident. The PW/3 has proved the spot map Ex-P/2. The said statement also corroborates the statement of Ramshankar Mishra (PW/4) that Ramshankar Mishra was in possession of the disputed shop which is indicated in the spot map Ex-P/2. Besides, the clothes which were kept in the shop were lying at some distance from the disputed shop which were seized by the police during investigation. It is also pertinent to mention here that after getting information about breaking the locks of his shop the complainant Ramshankar Mishra arrived at the shop where the respondent No. 1 alongwith the gunman were present and they did not permit him to enter the shop. These circumstances also corroborate the complainant Ramshankar Mishra''s statement that the possession of the shop was forcibly taken during midnight by breaking the locks he had put on the shop. Though there is no eyewitness in this case. Entire case is based on circumstantial evidence. The material evidence has been overlooked by the learned appellate court in setting aside the judgment of the lower Court. To prevent the gross miscarriage of justice in this case, this court deems it fit to interfere in setting aside the impugned judgment and remit the case to the learned appellate court for deciding it afresh. Therefore, allowing the revision and setting aside the impugned judgment the case is remitted to the learned appellate court for deciding the case afresh. The respondent is directed to appear before the appellate court on 8.10.2013. It is expected of the learned appellate court to decide the appeal expeditiously as far as possible. The records of the court below be sent immediately to the appellate court before the due date.