Devendra Kumar vs State Of U.P.
2014 Latest Caselaw 6396 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
Court No. - 14
 

 
Case :- CRIMINAL REVISION No. - 2020 of 2006
 
Revisionist :- Devendra Kumar
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- K.K. Tripathi
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. This revision has been preferred against the conviction and sentence imposed by Additional Sessions Judge, Court No. 4, Hamirpur in Criminal Appeal No. 02 of 2004 (Devendra Kumar Vs. State) under Sections 229, 304A and 338 I.P.C, Police Station Lalpura, District Hamirpur arising out of Case Crime No. 111/1991, dismissing the appeal of the appellant and confirming the sentence awarded by Civil Judge (Junior Division) / Magistrate 1st class, Hamirpur on 17..01.2004 in criminal case no. 121 of 2003 convicting the revisionist under Section 279 I.P.C. for three months R.I., under Section 304A I.P.C. for six months R.I. and under Section 338 I.P.C. for four months R.I.

2. Brief facts of the case are that on 29.12.1991 at about 8 O'clock the son of the complainant namely Sushil aged about 13 years was going for tuition. Suddenly, near the Government Ayurvedic Hospital, Pauthia about six feet away from the National Highway when he was walking on the Kacchi Patri, a truck bearing no. CPK 4911 on which sand was loaded, the driver driving the truck in rash and negligent manner hit Sushil. The body of Sushil was seriously injured due to which he died on the spot.

3. Balbir and Rajesh Kumar was present on the spot who saw the incident and tried to catch the driver of the truck but he fled away with the truck. The report was lodged on 29.12.1991, on the basis of which the case was registered. The investigating officer has investigated the case and submitted charge sheet against the revisionist. Charges were framed against the accused who pleaded not guilty and claimed trial.

4. The prosecution examined Shiv Prasad as PW-1, Rajesh as PW-2, Basant Lal as PW-3, Dr. P.N. Parye as PW-4 and Dr. R.B. Singh as PW-5. On the basis of evidence on record, learned Magistrate convicted the accused as aforesaid.

5. Feeling aggrieved, the accused preferred criminal appeal bearing no. 02 of 2004 which has been dismissed by the appellate court and confirmed the conviction and sentence.

6. Feeling aggrieved the present revision has been preferred.

7. As far as the scope of revision is concerned, It is settled principle of law that the revisional jurisdiction is not as wide as the appellate jurisdiction and under the revisional jurisdiction, the High Court is required to exercise its powers where there is material irregularity or manifest error of law or procedure, or there is misconception or misreading of evidence or where the court below has failed to exercise jurisdiction vested in it or has exercised the jurisdiction wrongly and perversely or where the facts admitted or proved do not discloses any offence.

8. As a broad proposition, the interference of revisional court may be justified in cases (i) where the decision is grossly erroneous (ii) where there is no compliance with the provision of law (iii) where the finding of fact affecting the decision is not based on evidence on record (iv) where the material evidence of parties has not been considered (v) where the court below has misread or mis-appreciated the evidence on record (vi) where the judicial discretion has been exercised arbitrarily or perversely.

9. In exercise of revisional jurisdiction the court may not exercise jurisdiction to reassess the evidence and reappraisal of evidence is not permissible within the revisional jurisdiction. Hon'ble the Apex Court in A.I.R. 1999 Supreme Court 981 in the case of State of Kerela Vs. Putthumana Illath Jathavedan Namboodiri has held that "the High Court while hearing revision does not work as an appellate court and will not re-appreciate the evidence, unless some glaring mistake is pointed out to show that injustice has been done".

10. In A.I.R. 2002 Supreme Court 2229 in the case of Jagannath Chaudhary Vs. Ramayan Singh, Hon'ble Apex Court has held that "revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error on point of law resulting in miscarriage of justice". Similarly In A.I.R. 2002 Supreme Court 107 in the case of Munni Devi Vs. State of Rajasthan and others it was held by Hon'ble Apex Court that "while exercising the revisional power the High Court has no authority to re-appreciate the evidence in the manner as the trial court and appellate courts are required to do".

11. In another case A.I.R. 1993 Supreme Court 1126 in the case of State of Karnataka Vs. Appa Balu Ingale and others it has been held by the Hon'ble Apex Court that "generally speaking, concurrent findings of fact arrived at by two courts below are not to be interfered with by the High Court in absence of any special circumstances or unless there is any perversity."

12. Considering the limited scope of revisional jurisdiction it is apparent that the evidence recorded by trial court and reappreciated by the appellate court is not required to be reappreciated again on the point raised by the learned counsel for the revisionist. The appellate court has given findings after detailed discussions and has found no substance in the arguments of accused-appellant. The findings of facts recorded by two courts below may not be interfered with in this revision.

13. However, in State of Orissa v. Nakula Sahu and Ors. (AIR 1979 SC 663) it was held that the High Court should not have interfered with the concurrent findings recorded by the Trial Court and the Sessions Judge in exercise of revisional jurisdiction when there was no error of fact or law arrived at by the Trial Court or the Sessions Judge. In State of Kerala v. Puttamana Illath Jathayedan Namboodiri (1999 (2) SCC 452) it was held that the revisional jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate Court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.

14. Learned counsel for the revisionist has vehemently argued that the investigating officer has not been produced in the case which has caused prejudice to the accused and thus the accused deserves acquittal.

15. Counsel for the revisionist could not point out as to what prejudice was caused to the accused. There is overwhelming evidence of the witnesses as of fact who have proved the prosecution case, the death of the child and the rash and negligent driving of the accued.

16. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference that an innocent person was wrongfully prosecuted. "It is, therefore, essential that every state should put in place a procedural mechanism which would ensure that the cause of justice is served, which would simultaneously ensure the safeguarding of interest of those who are innocent".

17. As far as oral evidence is concerned PW-1 Shiv Prasad who has categorically stated that at the time of accident he was on the spot, PW-2 Rajesh Kumar has also stated that he is an eye witness of the accident. The lengthy cross-examination has been put forth to these witnesses but the statements remain intact also. Perusal of the statements shows that all the witnesses of fact have proved the factum of death of the deceased along with the rash and negligent driving of the accused.

18. It has also been argued that the investigating officer has not been produced. The appellate court had found that the investigating officer had died during the trial before trial court so he could not be produced as evidence.

19. As far as the non production of I.O. is concerned in Ambika Prasad and another Vs. State (Delhi Admn., Delhi) it has been held as under:

"Further, it is to be borne in mind that criminal trial is meant for doing justice to the accused, victim and the society so that law and order is maintained. Hence, as observed by this court in State of U.P. v. Anil Singh, AIR 1988 SC 1998) it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. Hence, we would only state that it is unfortunate state of affair that police officers resiled from their own statements and deposed something contrary before the court. Equally, it is unfortunate that investigating officer has not stepped into the witness box without any justifiable ground. But this conduct of the investigating officer or other hostile witnesses cannot be a ground for discarding the evidence of witnesses whose presence on the spot is established beyond reasonable doubt. They have suffered injuries and their evidence is corroborated by medical evidence. It is also in-conformity with what has been stated in the FIR. In any case, investigating officer is not at all material witness for the purpose of establishing whether accused or the complainant party was the aggressor. Not only that, accused have examined the defence witnesses for establishing their say. Hence, non-examination of the investigating officer cannot be a ground for holding that injured witnesses should not be believed."

20. On the same principle of law in AIR 1996 Supreme Court 2905 (Behari Prasad Etc. Etc. Vs. State of Bihar) it has been held that the involvement of the accused in committing the crime has been clearly established by the evidences of the eye witnesses. Such evidences are in conformity with the case made out in F.I.R. and also with the medical evidence. Hence, for non examination of Investigating Officer, the prosecution case should not fail.

21. As I have said earlier that the counsel for the revisionist could not point out any prejudice cause to the acused by non examination of the I.O. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straight jacket formula should be laid down that non examination of Investigating Officer per se vitiates a criminal trial.

22. Thus, in this particular case, non-examination of the I.O. has not been caused any prejudice to the revisionist and is also not fatal to the prosecution.

23. I find no irregularity, illegality or impropriety in the impugned order and the revision is liable to be dismissed.

24. Accordingly the revision is dismissed.

25. Let certified copy of this judgment be sent to the court concerned for compliance.

Order Date :- 12.09.2014

sailesh