Criminal revision against acquittal in a trial arising from criminal misconduct case. The High Court Bench dismissed the petition, finding no perversity or manifest illegality to warrant interference with the Session Court's acquittal.
The criminal revision was failed and dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 45
Case :- CRIMINAL REVISION No. - 384 of 2004
Revisionist :- Shambhu Sharan Opposite Party :- State Of U.P. & Others Counsel for Revisionist :- Rajesh Yadav Counsel for Opposite Party :- Govt. Advocate
Hon'ble J.J. Munir,J.
Case called on in the revised list. No-one appears on behalf of revisionist. Sri G.P. Singh, learned AGA, appearing on behalf of State is present.
The Court has perused the record with the assistance of learned AGA, appearing on behalf of State.
This revision is directed against the judgement and order of Sri Ramesh Tiwari, the then Additional Sessions Judge, Fast Track Court No.3 Ghazipur dated 1.12.2003 acquitting the revisionist in Session Trial No.275 of 1997 (arising out of N.C.R. No.77 of 1993) under Sections 323/34 and 504 IPC.
This revision came up before this Court on 5.2.2004 when notice was issued to the opposite parties nos. 2 to 5. The revision has yet not been admitted to hearing.
According to the prosecution case, the revisionist Shambhu Saran Yadav and opposite parties nos. 2 to 5 are all natives of village Ramjanpur, P.S. Karanda, District Ghazipur. There is a civil dispute between them over land concerning which litigation is said to be pending. It is claimed that on account of the said hostility in the night intervening 26/27.12.1993 at 12'O clock the accused/opposite parties nos. 2 to 5 alighted at the
revisionist's door and hurled abused at him and his family. The revisionist is said to have asked the opposite parties nos.2 to 5 not to do so, whereupon the accused/opposite parties armed with sticks (lathi and danda) assaulted the revisionist, besides delivering blows. On finding the revisionist-informant beleaguered his brother Bramhchari Yadav came to his rescue, whereupon the accused/opposite parties assaulted him too, employing sticks they were wielding. The occurrence is said to have been witnessed by two natives of the Village Kalika Yadav and Pariksha Yadav.
It is said that information of the occurrence was lodged at P.S. Karanda on 28.12.1993 at 6:30 PM where a case against opposite parties nos.2 to 5 was registered under Section 323, 504 IPC as an NCR. It was registered as NCR No.77 of 1993. The NCR finds entry in the general diary of the station as G.D. Entry No.26. It is also said that before registration of the aforesaid non-cognizable case, the police found injuries sustained by Sambhu Saran Yadav and Mahatim Yadav, regarding which both of them informed the police that they have already got themselves medically examined. Revisionist Sambhu Saran Yadav and Bramhachari Yadav got themselves medically examined on 28.12.1993 and 27.12.1992 respectively at the District Hospital Ghazipur, and an X-ray relating to Bramhachari Yadav dated 31.12.1993 shows that it could not be a fracture.
It appears that on a report submitted by P.S. Karanda, the Magistrate permitted the police to investigate the matter.
The Investigating Officer commenced investigation collecting evidence, including medico legal evidence comprising the injury reports, visiting the place of occurrence, drawing up a site plan and recording statement of witnesses. The witnesses examined refuted the allegations including the occurrence on 20.01.1994; the I.O. contacted the revisionist who was in Ghazipur Jail along with Mahatim Yadav and Bramhachari Yadav. The statements of these witnesses were also recorded by the I.O. The details of injuries carried in the injury report dated 24.2.1994 were recorded by the I.O. in the case diary. The I.O. concluded the investigation and filed a charge-sheet on 24.2.1994, against opposite parties nos. 2 to 5, under Sections 323 and 504 IPC. The Magistrate took cognizance of the offence and summoned the accused to stand their trial. Since, there was a cross case relating to the same occurrence registered on the report of the opposite parties that involved offences triable exclusively by Sessions, the Magistrate committed the present case for trial to the Sessions, treating it to be a cross case, in S.T. No.58 of 1995 (State of U.P. Vs. Mahatim and another) pending against the informants of the present case. It is in this manner that the present case that involves noncognizable offences, punishable under Sections 323/34 and 504 IPC landed before the Sessions Court for trial, upon committal. Charges against the accused/opposite parties nos. 2 to 5 were framed on 9.2.1998, under Section 323/34 and 504 IPC. The accused pleaded not guilty and claimed trial.
The prosecution examined revisionist Shambhu Saran
Yadav and Bramhachari Yadav as witnesses of fact, besides Dr. Bhupendra Nath Srivastava who had examined the injuries sustained by Bramhachari Yadav, details of which have been extracted in the impugned judgement. A fourth witness examined was Dr. D.M. Saxena, Medical Officer, District Hospital, Ghazipur who examined the injuries sustained by the revisionist and authored the medical report dated 28.12.1993; the medico legal report shows as many as 10 injuries sustained, which are extracted in the impugned judgement. A further formal witness Head Constable Bhola Nath posted at the Police Station concerned, who had entered the NCR in the G.D of the station was also examined. On the basis of evidence of these witnesses a number of documents were exhibited for the prosecution, that were proved by these witnesses, numbering a total of seven documents.
Upon conclusion of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded wherein the accused/opposite parties said that they had a dispute with the informent side, at whose instance this prosecution has been launched, relating to land and admitted that litigation was pending. All other allegations were denied. They submitted further that doing a misdirected investigation a charge-sheet had been filed against them, and the prosecution witnesses had deposed falsely. In particular, the accused/opposite parties submitted that on the basis of the First Information Report lodged on their side by opposite party no.1, Siya Ram Yadav, Case Crime No.119 of 1993, under Sections 147, 148, 307, 427, 506 and 452 IPC. P.S. Karanda, District
Ghazipur had been registered wherein after investigation, as already said, a charge-sheet had been filed against the revisionist side, there the case being exclusively triable by the Sessions. It was said that a post committal, Sessions Trial No.58 of 1995 (State of U.P. Vs. Mahatim Yadav and another) is pending against Revisionist and his co-accused. They said in defence that it is in order to escape the consequences of the said case that the present case has been filed on the basis of fabricated injuries. Markanday Singh was examined as a defence witness (D.W.1). He proved the Panchayatnama , paper no.6A. The said Panchayatnama was exhibited as exhibit Kha-20. A number of documents in defence, from the file of S.T. No.58 of 1995 were filed, that were exhibited as exhibit nos. Kha-1 and Kha-2.
On a perusal of the evidence on record, appreciated by the learned Sessions Judge in his very detailed and elaborate judgement, it was held that it appears to be a case that is more brought up by way of a defence to the case registered at the instance of opposite parties, giving rise to S.T. No.58 of 1995. No doubt the two cases do appear to have been the result of an altercation, where both sides have sustained injuries. Ideally, the present case should have been consolidated and tried along with S.T. No.58 of 1995, with common evidence being recorded. This has all, for a fact, been noticed by the Sessions Judge in paragraph 30 of the impugned judgement. This Court fails to understand that once the present case, though not triable by Sessions, was committed to the Sessions on account of the cross version brought at the instance of the opposite parties
giving rise to a Sessions Trial, why the two trials were not consolidated; but that has not happened. It appears that the present case has been decided while S.T. No.58 of 1995 was still pending, as recorded by the learned Sessions Judge in paragraph 13 of the impugned judgement. Later on, it appears that in S.T. No.58 of 1995, the accused in the said case were convicted and sentenced to a ten year term and a fine of Rs.20,000/-. Precisely who was convicted, and of what offence, is not clear as the only mention of this fact is discernible from ground no.3 to the memorandum of revision.
A perusal of the impugned judgement shows that the learned Sessions Judge has come to a definite conclusion that the prosecution case here, was more brought-up by way of defence and a counter-blast to the case of the opposite parties, subject matter of S.T. No.58 of 1995. The learned Sessions Judge has also recorded findings based on a reference to relevant evidence that injuries were got up to raise a defence by the revisionist. The magnitude of injuries sustained by the opposite parties have also been taken into consideration, to reach that conclusion. There is somewhere a remark by the learned Sessions Judge, in the judgement impugned, that the written information was scribed by the revisionist, while he was in police custody and that was handed over to the police, to secure his defence in S.T. No.58 of 1995. The learned Sessions Judge has also taken note of the fact that the written information in original, on the basis of which the N.C.R. giving rise to the present trial has proceeded was no longer available, and was said to have been weeded out, along with the
original G.D. This Court also thinks that there is no good reason to weed out the original written information on the basis of which N.C.R. No.77 of 1993, giving rise to the present trial was registered. It could well be that the paper on which the information was scribed would have revealed that it was written on some stationary from the police station where the revisionist, and the other co-accused on this side were already in police custody, may be at the suggestion of the police, to raise a plausible defence. The learned Sessions Judge has discarded the evidence of the revisionist/prosecution in S.T. No.275 of 1997, taking a plausible view of it.
This being a revision from a judgement of acquittal, not even an appeal, there is no such perversity or patent and manifest illegality to be found, as may require this Court to interfere and disturb the impugned judgement.
This revision fails, and is dismissed.
Order Date :- 5.1.2019/Neeraj
2 issues framed by the court
Whether this Court should interfere with the Sessions Court's acquittal of the revisionist in the instant criminal revision.
Whether the impugned judgment suffers from perversity or patent and manifest illegality warranting interference.
State Of U.P.
Other Opposite Parties
J.J. Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
