Smt. Vimla Bai Ojha vs State of M.P. and Others

M.K. Mudgal, J.—The petitioner has filed the revision u/s 397/401 of the Code of Criminal Procedure being aggrieved by the judgment dated 26.7.06 passed by the Court of First Additional Sessions Judge Ashok Nagar, District Guna in Criminal Appeal No. 90/2006 setting aside the conviction and acquitting the accused Brijesh Kumar u/s 325 of the IPC and the remaining accused Ramshri Bai and Vedram u/s 325 read with Section 34 of the IPC who were convicted by the Court of Judicial Magistrate First Class Ashok Nagar in Criminal Case No. 215/2000. The facts of the case in brief, are that the complainant Vimla Bai (PW/2) was repairing her clay-wall on 15.06.2000 at about 9.00 AM from the side of the accused''s house. At that time, the accused Ramshree Bai stopped her from doing so, owing to which, they had a dispute. The accused Brijesh hit her with an axe on her left hand. In the meantime, the accused Ramshree Bai and Vedram arrived there and also assaulted her with fists and kicks. At the same time, she was rescued by the eye witnesses Purushottam (PW. 5) and Ram Singh (PW. 7). Thereafter, the report Ex-P/3 of the incident was lodged on the same day to the Police Station Guna where from, she was sent for medical examination. After completion of the investigation, the charge sheet was filed before the Court of J.M.F.C. Ashok Nagar where from the accused Brijesh was convicted u/s 325 of the IPC and the remaining accused were convicted u/s 325/34 of the IPC and sentenced them vide judgment dated 21.01.06 against which, the Criminal Appeal No. 90/2006 was filed by the respondents and they were acquitted by the appellate Court.

Assailing the propriety and legality of the impugned judgment, the learned counsel for the petitioner submits that the findings recorded by the learned appellate Court are not based on proper reasonings and appreciation of the evidence as the accused Brijesh caused a fracture to Vimla Bai (PW. 2) on the ring finger of the left hand by making a blow with the axe. The said injury was corroborated by the report of the M.L.C. Ex-P/9 proved by Dr. M.L. Agrawal (PW/9) and X-Ray report Ex-P/6 and plate Ex. P/7 proved by Dr. R.K. Jain (PW6). Despite the said facts, the learned appellate court has erred in acquitting the accused of the said offence. The counsel further pleads that there was no sufficient reason for the appellate court to interfere in the trial Court''s judgment, that exercised it''s discretion properly in deciding and convicting the respondents-accused.

Controverting the submissions made by the petitioner, the learned counsel for the respondents submits that the reasonings of the impugned judgment are based on rational approach as both the eye witnesses have not supported the prosecution story. Besides, if the injury had been caused by an axe, the injury would have been caused in the form of incised wound but it was not found in this case. As per doctor''s statement, the injury of the fracture could be caused by falling. The counsel further submits that there is no reason for this court to interfere in the impugned judgment as the scope of revision is very limited.

Heard the arguments and perused the record.

The scope of the revision regarding the acquittal has been discussed by the Apex Court in para 9 of the judgment Bansi Lal and Others Vs. Laxman Singh, in which, it has been held as under:

Even in an appeal against an order of acquittal no interference will be made with the judgment of the trial Court except in rare and exceptional cases where there has been some manifest illegality in the approach to the case or the appreciation of the evidence or where the conclusion of fact recorded by the Trial Judge is wholly unreasonable so as to be liable to be characterised as perverse and there has been a resultant miscarriage of justice. The revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial Court is more narrow in its scope. It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care ''and caution. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, , this Court had occasion to consider the scope of the revisional jurisdiction conferred on the High Court in relation to orders of acquittal passed by the trial Court and after referring to two earlier decisions of this Court reported in D. Stephens Vs. Nosibolla, and Logendra Nath Jha and Others Vs. Shri Polailal Biswas, the legal position was explained thus:

These two cases clearly lay down the limits of the High Court''s jurisdiction to interfere with an order of acquittal in revision; in particular, Jogendranath Jha''s case stresses that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of S. 439(4) and that the High Court cannot do this even indirectly by ordering re-trial. What had happened in that case was that the High Court reversed pure findings of facts based on the trial Court''s appreciation of evidence but formally complied with sub-s. (4) by directing only a re-trial of the appellants without convicting them, and warned that the Court retrying the case should not be influenced by any expression of opinion contained in the judgment of the High Court. In that connection this Court observed that there could be little doubt that the dice was loaded against the appellants of that case and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witness and the circumstances of the case in general.

This decision was subsequently followed by this Court in Akalu Ahir and Others Vs. Ramdeo Ram, , where this Court observed:-

The unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given this right only when the criminal prosecution was instituted on his complaint and then also subject to special leave by the High Court. It is further provided in S. 439(5), Cr.P.C. that where no appeal is brought in a case in which an appeal is provided, no proceedings by way of revision would be entertained at the instance of the party who could have appealed. The State Government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again on revision, the High Court is expressly prohibited from converting an acquittal into a conviction. Considering the problem facing the Court in this case in the background of this scheme, 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. It is not expected to act under Ss. 435/439, Cr. P.C. as if it is a hearing on appeal in spite of the wide language under S. 435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity of any proceeding and also in spite of the fact that under S. 439 it can exercise inter alia the power conferred on a Court of appeal under S. 423, Cr. P.C. The power being discretionary, it has to be exercised judiciously, and not arbitrarily. Judicial discretion, as has often been said, means a discretion which is informed by tradition, methodised by analogy and disciplined by system. In Amar Chand Agarwalla Vs. Shanti Bose and Another, etc., , this Court said that normally the jurisdiction of the High Court under S. 439, Cr. P.C. is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on point of law and there has consequently been flagrant miscarriage of justice. In the background of the position just stated a private complainant can only claim a right, in common with all aggrieved parties in a criminal proceedings, to invoke the revisional jurisdiction of the High Court for redress against miscarriage of justice arising from an erroneous order of acquittal.

The same position has been reiterated by this Court in Satyendra Nath Dutta and Another Vs. Ram Narain,

On perusal of the record, it is evident that the eye witnesses Purushottam (PW. 5) and Ram Singh (PW. 7) have not supported the prosecution story and they turned hostile. Now, only the statements of the complainant Vimla Bai (PW2) and doctors remain to be evaluated in this case. As per the statement of Vimla Bai (PW2), the accused Brijesh caused the injury at her left hand with the axe. However, no incised wound was inflicted to the (PW2). It has not been stated by (PW2) that the injury was caused by the blunt side of the axe.

If the injury had been caused by the accused Brijesh with axe, it would have been caused as incised wound, but as per medical examination report Ex. P/9 proved by Dr. M.L. Agrawal (Pw8), all the injuries found in the nature of contusions along with bruises caused by hard and blunt object. Thus, the medical report does not corroborate the statement of Vimla Bai (PW2).

As per X-Ray report Ex. P/6 and Plate Ex. P/7 proved by Dr. R.K. Jain (PW6), the fracture has been found in the metacarpal bone of the ring finger of the left hand. If the injury was caused by the axe, it would not have been possible to cause the injury in the ring finger only. The doctor R.K. Jain (PW6) has deposed in para 2 that the said fracture may be caused by falling. The learned appellate court has also discussed the prosecution evidence in detail in para 9 to 12 of the impugned judgment. Considering the recorded evidence, it becomes clear that the findings recorded by learned appellate Court are based on proper reasonings. The learned appellate court has not committed any error in setting aside the judgment of the learned trial Court. Therefore, the revision petition having no substance, is hereby dismissed. The surety bonds and bail bonds of the accused-respondents stand discharged.