Balendra Bhushan Singh vs Shekhar Singh And (2) Ors.
2017 Latest Caselaw 2743 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 14							     A.F.R.
 
								         Reserved
 
Case :- CRIMINAL REVISION No. - 281 of 2003
 

 
Revisionist :- Balendra Bhushan Singh
 
Opposite Party :- Shekhar Singh And (2) Ors.
 
Counsel for Revisionist :- Rajeev Singh
 
Counsel for Opposite Party :- Govt.Advocate,I.B. Singh,Nisar Ahmad,Nitin Mohan,Sanjay Singh,Vijay Pratap
 

 
Hon'ble Sheo Kumar Singh-I,J.

1. The main controversy involved in the present revision is as to whether by exercising the powers vested under Section 397 read with Section 401 of Cr.P.C. 1973 this court can re-appreciate and re-assess the evidence recorded by trial judge whereby the accused have been acquitted from the charges levelled against them and  to convert the finding of acquittal into order of conviction.

2. The story as narrated in this revision is that the deceased and the accused inherited the common ancestor from late Ram Kumar Singh who had three sons namely Jai Singh, Krishna Pal Singh sand Ravindra Pratap Singh. Ravindra Pratap Singh has one son Shekhar Singh who is named as accused in the present case. Krishna Pal Singh had three sons namely Balendu Bhushan Singh, Shashi Bhusan Singh and Gyanendra Singh. Shashi Bhusan was shot dead at about 10.15 A.M. on 25.11.1997 in the campus of M.D.P.G. college, Prtapgarh. The prosecution story reveals that Sekhar Singh is the real cousin of deceased Shashi Bhushan and before three or four years prior to the incident, Shashi Bhushan had given three or four slaps to named accused Shekhar Singh due to certain property dispute and on 25.11.1997 at about 10.15 A.M. when the deceased and his brother Gyanendra visited to the college for the purpose of admission, Shekhar Singh fired from behind a pillar through a pistol resulting the death of Shashi Bhushan.

3. While the defence story reveals that there were certain quarrel between different group of boys called Romios, who had fallen out with each other and due to rivalry, the present incident took place and the deceased was shot dead by the different group of Romios, but the present accused were named in the first information report due to enmity and property dispute.

4. A first information report was lodged in the police station by Balendra Bhushan Singh on 25.11.1997 which was registered under Section 302 IPC against only one accused namely Shekhar Singh son of Sri Ravindra Pratap Singh. After investigation, the investigating officer has submitted charge sheet  on 2.12.1997 against the named accused. Further after about 24 days on 26.12.1997, another charge sheet was submitted against another accused having same name i.e. Shekhar Singh son of Shiv Sagar Singh under Section 302 IPC read with Section 120-B IPC. After framing the charge, the trial judge recorded the statement of witnesses and on the basis of evidence acquitted the accused on the following grounds:-

(i) That there was no motive to cause injury or death of the deceased only for the reason that the deceased had slapped the accused before three or four years of incident.

(ii) The Principal or Proctor of the college has reported so many times to the police authorities for proper security in the campus during the morning shift, which was meant exclusively for the girls student to protect the girls student from Romio youngsters moving within campus.

(iii) None of the witnesses were student of the college and there was no occasion to visit the college at the same time when the morning shift was meant only for the girl students and male students were not permitted to enter into the premises.

(iv) The medical report reveals ten injuries on the body of the deceased and are lacerated wound.  Shirt and button, which were on the body of the deceased at the time of incident were broken or torn and inference may be drawn that the injuries as narrated in the medical report is not cause of only fire arm injury but it also indicates that there were certain quarrel between the deceased and some other persons. According to defence story, these groups are eye teasers of girl students. The plucked button and injuries of the deceased signifies that some one had grappled with the button and shirts, which had been admitted by the prosecution witnesses.

(v) The Principal or the Dean or any of the employee of the college had not been examined by the prosecution. These persons may be presumed to be present in the college for official duty.

(vi) The telephonic information from the Principal or the Dean of the college to the police authorities  with the facts that some unknown person fired and caused death of someone signifies that the accused were not known to the college authorities, who were present at the time of incident, or witnesses said to be present on the spot were not told the name to authorities.

(vii) That P.W.1 Balendra Bhushan Singh complainant/informant was not believed to be eye witness of the occurrence by the trial judge on the ground that there are certain contradictions in the statement deposed before the court and further that none of the witness came to rescue at the time of incident and if the witnesses were present then second accused might had been named in the first information report.

(viii) The presence of the witnesses for admission was also considered to be doubtful by the trial judge on the ground that last date for admission had expired much before the date of incident.

(ix) P.W.1 Balendra Bhushan and other supporting witnesses had stated that there were only fire arms injuries and there were two or three fires but injuries as found by the doctors were more than ten and are of lacerated wound and fire arms and torn up cloths and buttons which reveal that before firing, there were certain quarrel between the groups.

5. Considering all above facts as alleged by prosecution, the accused-opposite parties were acquitted from the charges levelled against them on the basis of benefit of doubt.

6. Learned counsel for revisionist has urged that no acceptable basis for the impugned acquittal is evident in the order of learned trial court while learned counsel for the opposite parties has submitted that the acquittal made by the learned trial court is based on full and complete consideration of the evidence and material on record. It is further submitted that cogent reasons have been assigned by the trial court in support of order, ordered by it.

7. To answer the questions that have arisen in the present case, as noticed at the very outset, the extent and ambit of the revisional jurisdiction of the High Court, particularly in the context of exercise thereof in respect of a judgment of acquittal, may be briefly noticed. The law in this regard is well settled by a catena of decisions of Apex Court. Illustratively, as also chronologically, the decisions rendered in Pakalapati Narayana Gajapathi Raju v. Bonapalli Peda Appadu (1975) 4 SCC 477, Akalu Ahir v. Ramdeo Ram (1973) 2 SCC 583, Mahendra Pratap Singh v. Sarju Singh AIR 1968 SC 707, K. Chinnaswamy Reddy v. State of A.P. AIR 1962 SC 1788 and Logendranath Jha v. Polai Lal Biswas AIR 1951 SC 316 may be referred to.

8. Specifically and for the purpose of a detailed illumination on the subject the contents of paras 8 and 10 of the judgment in the case of Akalu Ahir v. Ramdeo Ram (supra) may be usefully extracted below:-

"8. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision:

(i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the Accused;

(ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce;

(iii) Where the appellate court has wrongly held the evidence which was admitted by the trial Court to be inadmissible;

(iv) Where the material evidence has been overlooked only (either) by the trial Court or by the appellate court; and

(v) Where the acquittal is based on the compounding of the offence which is invalid under the law.

9. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal.

10. No doubt, the appraisal of evidence by the trial Judge in the case in hand is not perfect or free from flaw and a Court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to re-appraise the evidence for itself as if it is acting as a Court of appeal and then order a re-trial.

11. The observations in para 9 in the case of Vimal Singh v. Khuman Singh (1998) 7 SCC 223 would also be apt for recapitulation and, therefore, are being extracted below:-

"9. Coming to the ambit of power of the High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial Court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial Court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial Court has no jurisdiction to try the case or where the trial Court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the Accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial.

12. The above consideration would go to show that the revisional jurisdiction of the High Courts while examining an order of acquittal is extremely narrow and ought to be exercised only in cases where the Trial Court had committed a manifest error of law or procedure or had overlooked and ignored relevant and material evidence thereby causing miscarriage of justice. Re-appreciation of evidence is an exercise that the High Court must refrain from while examining an order of acquittal in the exercise of its revisional jurisdiction under the Code. Needless to say, if within the limited parameters, interference of the High Court is justified the only course of action that can be adopted is to order a re-trial after setting aside the acquittal. As the language of Section 401 of the Code makes it amply clear there is no power vested in the High Court to convert a finding of acquittal into one of conviction.

13. Through perusal of evidence, it seems that there is no eye witness to the occurrence. Prosecution witnesses though examined as eye witnesses can not be understood that they actually witnessed any of the occurrence, that could be crucial for determination of the liability of the opposite parties-accused. While considering the matter in Bansi Lal and others versus Laxman Singh 1986 (3) Supreme Court Cases 444, the court observed in para 9 as follows:-

"9. 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 characterized 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.C. Reddy v. State of Andhra Pradesh [1963]3SCR412 , 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. Stenbens v. Nosibolla 1951CriLJ510 and Jogendranath Jha v. Polailal Biswas [1951]2SCR676 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 Section 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-section (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 the Court in Akalu Ahir and Ors. v. Ramdeo Ram 1973CriLJ1404 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 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 as if it is a hearing on appeal in spite of the wide language 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 it can exercise inter alia the power conferred on a court of appeal. 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, methodized by analogy and disciplined by system. In Amar Chand Aggarwal v. Shanti Bose 1973CriLJ577 , this Court said that normally the jurisdiction of the High Court under Section 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."

14. After careful examination of the judgment of learned Additional Session Judge, there seems to be no manifest illegality. Dominant justification of the order of acquittal recorded by the trial court is the view, it took of the evidence of the witnesses. Having carefully gone through the records of the case, this court is of the view that it was possible view and it can not be characterized as illegal or perverse. The above reference of law finds support 2002 (6) SCC 650 Bindeshwari Prasad Singh alias B.P Singh versus State of Bihar and another in which Hon'ble the Apex Court in para 12 of the case held as follows:-

"12. We have carefully considered the material on record and we are satisfied that the High Court was not justified in re-appreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code of Criminal Procedure. Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a re-trial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. ( See. D. Stephens v. Nosibolla AIR1951SC 196: 1951CriLJ510; K.C. Reddy v. State of Andhra Pradesh AIR 1962 SC 1788: 1963(1) CriLJ 8; Akalu Ahir and Ors. v. Ramdeo Ram 1973 (2) SCC 583: 1973 SCC (Cri)903, Pakalapati Narayana Gajapathi Raju and Ors. v. Bonapalli Peda Appadu 1975(4) SCC 477 and Mahendra Pratap Singh v. Sarju Singh AIR 1968 SC 707: 1968 Cri LJ 665)."

15. This court is conscious that in exercise of revisional jurisdiction against an order of acquittal at the instance of a private party, the court exercises only limited jurisdiction and should not constitute itself into an appellate court which has much wider jurisdiction to go into question of facts and law.

16. The revisional court jurisdiction conferred on the High Court is not to be lightly exercised, when it is invoked by a private complaint against the order of acquittal. It can be exercised only in exceptional cases, where the interest of public justice requires interference or correction of manifest illegality or the prevention of gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because lower court had taken a wrong view of the law and out of two views, one view taken, which is said to be misappropriated the evidence on record. The perusal of order impugned does not show any glaring defect in procedure or any manifest error on the point of law or any flagrant miscarriage of justice.

17. In light of above facts, the view taken by trial court in acquitting the accused can not be held to be a view impossibility of being reached at. For the aforesaid reasons, the contention of the learned counsel for the revisionist that trial court failed to exercise proper jurisdiction or any material irregularity had been committed or medical evidence had not been fully discussed or trial court has erroneously misinterpreted the facts are not tenable. The appreciation of evidence of learned trial court is based on the statement of the witnesses with test of reasonability and actual occurrence. There is no infirmity or illegality or any irregularity in the judgment and order dated 3.5.2003 passed by Additional session Judge/Fast Track Court no.1, Pratapgarh while deciding the Session Trial No. 40 of 1998 State versus Shekhar Singh and another under Section 302 IPC read with Section 34/120-B IPC. Thus no interference in the judgment and order dated 3.5.2003 is required.

18. The criminal revision lacks merit and thus dismissed.

19. The lower court record be returned back to the court concerned.

Order Date :- 28.7.2017

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