Sewaram vs State Of Chhattisgarh
2022 Latest Caselaw 5188 Chatt

                                                 1

                                                                                               AFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR
                         Criminal Revision No.287 of 2009

        Sewaram, S/o. Salikram, Aged about 40 years, R/o. Badedabha, Police
        Station Basna, In front of Jaistambh, Mahasamund, Dist Mahasamund
        (CG)
                                                               ----- Applicant

                                              Versus

    1. State of Chhattisgarh Through Police Station Basna, Dist Mahasamund
       (CG)
    2. Kewaram, S/o. Salikram, Aged about 46 years,
    3. Ku.Pushpa Bai, D/o. Kewaram, Aged about 21 years,
    4. Ku.Prem Bai (died and deleted)
    5. Savitri Bai, W/o. Kewaram, Aged about 42 years,
        All above i.e. respondent no.2 to 5 are R/o. Village Badedabha, Police
        Station Basna, District Mahasamund (CG)

                                                                                 ----- Respondents
-----------------------------------------------------------------------------------------------------
For Applicant:                   Mr. Manoj Paranjape and Mr.Bharat Sharma,
                                 Advocates
For Respondent No.1: Mr.Ashish Tiwari, Government Advocate
For Res.No.2, 3 and 5: Mr.Ravindra Sharma, Advocate
-----------------------------------------------------------------------------------------------------
                            Hon'ble Shri Sanjay K. Agrawal and
                           Hon'ble Shri Sachin Singh Rajput, JJ.

ORDER ON BOARD (17.8.2022)

Sanjay K. Agrawal, J.

1. This criminal revision is directed against the impugned order of acquittal

dated 29.4.2009 by which the learned First Additional Sessions Judge,

Mahasamund in Sessions Trial No.3/2009 has acquitted respondents

No.2 to 5 herein from the charge under Sections 302/34 and 323/34 of

the IPC.

2. Learned counsel for the applicant would submit that the learned trial

Court has committed grave legal error in acquitting respondents No.2 to

5 herein from charge under Sections 302/34 and 323/34 of the IPC by

committing manifest error of law as the material available on record has

been overlooked by the trial Court and respondents No.2 to 5 herein

have been acquitted. Therefore, in the light of judgment of the Supreme

Court in the matter of Joseph Stephen and others v. Santhanasamy

and others 1, criminal revision deserves to be allowed and the matter be

remitted to the trial Court for retrial after setting aside the order of

acquittal.

3. On the other hand, Mr.Ravindra Sharma, learned counsel for

respondents No.2, 3 and 5, would submit that the trial Court has rightly

recorded the finding that death of deceased Neelambar was not

homicidal in nature and furthermore, the trial Court has disbelieved the

statements of injured witness Sevaram (PW-8), his son Koushal

(PW-9) and Grahan (PW-10) as they are relative witnesses and in view

of exaggeration in their statements recorded before the Court,

therefore, this Court in criminal revision should not reappreciate the

material available on record as there is no manifest error of law in the

order of acquittal. He would rely upon the judgments of the Supreme

Court in the matters of Bindeshwari Prasad Singh alias B.P. Singh

and others v. State of Bihar (Now Jharkhand) and anothe r2 and

Sheetala Prasad and others v. Sri Kant and another 3.

4. We have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the record

with utmost circumspection.

1 2022 SCC OnLine SC 90 2 AIR 2002 SC 2907 3 (2010) 2 SCC 190

5. The trial Court while acquitting the private respondents has recorded

the following findings:-

(i) That, injury suffered by Neelambar could have been caused by falling

on the ground, seized article has not been examined by Dr.J.P.Pradhan

(PW-3) and death of deceased Neelambar has not been proved to be

homicidal in nature.

(ii) That, the statement of Sevaram (PW-8) (father of the deceased),

who is also injured witness, is shaky and does not inspire confidence

and furthermore, statements of other witnesses Koushal (PW-9) and

Grahan (PW-10) do not inspire confidence and they have tried to falsely

implicate the private respondents herein.

6. At this stage, it would be appropriate to consider the scope of revisional

jurisdiction by this Court.

7. The Supreme Court in the matter of K. Chinnaswamy Reddy v. State

of Andhra Pradesh and another 4 has laid down the scope of

interference in the order of acquittal and held that in exceptional case,

revisional jurisdiction has to be exercised by holding as under:-

"7. It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of S. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the

4 AIR 1962 SC 1788

power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of S. 439 (4). We have therefore to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles."

8. In a recent decision delivered by their Lordships of the Supreme Court

in the matter of Joseph Stephen (supra), their Lordships have

reviewed its earlier decisions i.e. K. Chinnaswamy Reddy (supra),

Sheetal Prasad (supra), Ganesha v. Sharanappa 5 and Ram Briksh

Singh v. Ambika Yadav 6 and formulated the following question for

consideration :-

"18. Having heard the learned counsel for the respective parties, the following questions arise for the consideration of this Court:

i) Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C. is justified in setting aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction ?"

Their Lordships proceeded to answer the question and held that in

revisional jurisdiction, order of acquittal cannot be altered to that of 5 (2014) 1 SCC 87 6 (2004) 7 SCC 665

conviction and held as under:-

"20. Applying the law laid down by this Court in the aforesaid decisions and on a plain reading of sub-section (3) of Section 401 Cr.P.C., it has to be held that sub-section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction. Though and as observed hereinabove, the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be. As observed by this Court in the case of K. Chinnaswamy Reddy (supra), if the order of acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure as mentioned in paragraph 11 of the decision in K. Chinnaswamy Reddy (supra), referred to hereinabove, can be followed. Therefore, in the present case, the High Court has erred in quashing and setting aside the order of acquittal and reversing and/or converting a finding of acquittal into one of conviction and consequently convicted the accused, while exercising the powers under Section 401 Cr.P.C. The order of conviction by the High Court, while exercising the revisional jurisdiction under Section 401 Cr.P.C., is therefore unsustainable, beyond the scope and ambit of Section 401 Cr.P.C., more particularly sub-section (3) of Section 401 Cr.P.C. Issue no.1 is answered accordingly."

9. Reverting to the facts of the present case in the light of aforesaid

parameters laid down by their Lordships of the Supreme Court in K.

Chinnaswamy Reddy (supra) followed in Joseph Stephen (supra), it

is quite vivid that Dr.J.P.Pradhan (PW-3), who has examined deceased

Neelambar, has clearly stated in his cross-examination that injury

suffered by deceased Neelambar could be caused on falling on the

ground. The trial Court has further held that Shivnarayan Manjhi (PW-

5), who has conducted postmortem of the deceased, has also not

stated the nature of injury and thereby held that it has not been proved

by the prosecution that death of deceased Neelambar was homicidal in

nature. The said finding is neither perverse nor contrary to record.

10. Furthermore, the trial Court has disbelieved the statement of

injured witness Sevaram (PW-8) (father of the deceased). It is the case

of the prosecution and also stated by eyewitnesses that one of the co-

accused Kewaram made assault to Sevaram by axe. A careful perusal

of Ex.P-10 would show that no injury has been noticed in the body of

Sevaram (PW-8) by axe and no incised wound was found by Dr.J.P.

Pradhan (PW-3) who has examined this witness and furthermore, no

incised wound was found over the body of deceased Neelambar, which

is apparent from Ex.P-11 proved by Dr.J.P.Pradhan (PW-3). As such,

the trial Court has rightly disbelieved the statement of Sevaram (PW-8)

in absence of incised wound over the body of deceased Neelambar or

over the body of this injured witness Sevaram (PW-8) and furthermore,

no recovery has been made from Ku.Pushpa Bai / respondent No.3

herein and that there is no FSL report available on record to connect

the private respondents in offence in question.

11.Further, the trial Court in para-21 of its judgment after disbelieving the

statements of eyewitnesses has clearly recorded the finding that the

prosecution has failed to prove that respondents No.2 to 5 have

assaulted in furtherance of common intention either to Sevaram (PW-8)

or to deceased Neelambar and Sevaram has made exaggerated

statement before the Court. The trial Court has taken a reasonable view

of the matter after appreciating oral, medical and circumstantial

evidence available on record, which is neither perverse nor contrary to

record. We do not find exceptional case in the line with the judgment

rendered by the Supreme Court in K. Chinnaswamy Reddy (supra)

either glaring defect in the procedure or there is a manifest error on a

point of law and consequently there has been a flagrant miscarriage of

justice and the applicant has failed to make out exceptional case for

interference in the order of acquittal against respondents No.2 to 5

herein.

12. In the considered opinion of this Court, the trial Court is absolutely

justified in acquitting the private respondents from the charge under

Sections 302/34 and 323/34 of the IPC. We do not find any merit in this

criminal revision. Accordingly, the criminal revision deserves to be and

is hereby dismissed.

              Sd/-                                              Sd/-
       (Sanjay K. Agrawal)                                (Sachin Singh Rajput)
           Judge                                                 Judge

B/-