Surendra Kumar vs Sukh Deo and Others

B.N. Katju, J.—Surendra Kumar has filed this revision against the judgment of II Additional Sessions Judge, Banda dated 30-4-1981 passed in S.T. No. 167 of 1980 acquitting Sunder Lal, Sukhdeo, Deva and Ram Swarup under Sections 307 and 324 IPC.

The order of acquittal was passed by the learned judge u/s 232 Code of Criminal Procedure on the ground that there was no such evidence that the accused persons could have been called upon to enter on their defence.

In the judgment of the learned judge there is a detailed discussion of the evidence led by the prosecution and he has come to the conclusion that it is unreliable.

It is contended by the learned Counsel for the applicant that an order of acquittal could have been passed by the learned judge u/s 232 Code of Criminal Procedure only on the ground of absence of evidence and not on the ground of its unreliability. The appreciation of evidence and the determination of the question of its reliability could only take place in the judgment u/s 235 Code of Criminal Procedure after the accused had been called upon to enter on his defence and adduce any evidence he may have in support thereof u/s 233 Code of Criminal Procedure and after the examination of the defence witnesses, if any, and hearing the prosecutor and the pleader for the defence u/s 234 Code of Criminal Procedure. In my opinion, there is force in this contention. It is clear from a plain reading of Section 232 Code of Criminal Procedure that it is only applicable in cases where the judge considers that there is no evidence that the accused committed the offence, which means that there is absence of sufficient evidence, which is distinct from its reliability. At the stage of Section 232 Code of Criminal Procedure the question of reliability of the evidence must not be taken into consideration as the appreciation of evidence is not required to be done at two stages but only at the stage of pronouncing judgment u/s 235 Code of Criminal Procedure.

Even if it be held that the trial court erred in considering the question of reliability of evidence u/s 232 Code of Criminal Procedure, I am of the opinion that no prejudice has been caused to the prosecution as the learned judge has given good reasons for not placing reliance on the prosecution evidence. The acquittal of the accused was thus fully justified. No miscarriage of justice has taken place. The order of the learned judge, therefore, does not deserve to be interfered with.

The application is accordingly rejected.