Wasim Raja Alias Wasim Raza Khan Vs the State of Jharkhand

For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate Mr. Nishant Kumar Roy, Advocate For the State : Mr. Anup Pawan Topno, A.P.P. For the O.P. Nos.2-6 : Mr. Nilesh Kumar, Advocate Ms. Sonal Sodhani, Advocate

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Order No.09 Dated : 20.06.2024

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1. This criminal revision petition is directed against the order of acquittal passed in Cr. Appeal No.294 of 2018 by which the learned Additional Judicial Commissioner-XVI, Ranchi dismissed the appeal of the informant affirmed with the finding of acquittal passed by the learned trial court.

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2. Ranchi Sadar Lower Bazar P.S. Case No.247/2011 was registered under Sections 341, 323, 506/34 of the Indian Penal Code against the opposite party nos.2-6 on a written report of the informant-Wasim Raja.

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3. As per the F.I.R., on 05.09.2011 at around 1.45 hour, Manohar Azad Khan @ Babu, Aurangjeb Khan @ Bhola, Shahid Akhtar @ Mintu, Akib Javed and Bablu conjointly assaulted him with the butt of pistol and knife, resulting in serious injury to him over his hand and legs. He was rescued when police officer D.B. Singh came at the place of occurrence. The genesis of offence is stated to be land dispute which had been captured by the accused persons. It was also alleged that Rs.50,000/- cash, gold chain and wrist watch were snatched by them.

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4. Police on investigation, found the case true and the accused persons were put on trial after cognizance under Sections 341, 323, 504/34 of the IPC. Altogether six witnesses were examined on behalf of prosecution and relevant documents including injury report were adduced into evidence and marked as

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exhibit.

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5. Learned trial court acquitted accused persons on the ground that independent witnesses were not examined although injury report was proved, but incidence could not be established as no witness was eye witness. Learned Additional Judicial Commissioner affirmed the judgment of acquittal on the ground that one counter case for the same offence was lodged by one Aasif Javed against the informant and one Javed Akhtar being Lower Bazar P.S. Case No.248 of 2011 under Sections 341, 323, 506/34 of the Indian Penal Code. In this case after investigation, charge sheet was submitted and these facts were suppressed by the informant party of the present case. The learned appellate court also noted the material contradictions between the ocular evidence as established by the I.O. (P.W. 6) at para 10 and 11 of the crossexamination. In view of the infirmity between the parties, false implication could not be ruled out.

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It is argued by the learned counsel on behalf of petitioner that there are patent perversity in the order of acquittal passed by both the courts below. Informant of the case is Wasim Raja, who was injured in the incidence which has been established by the injury report proved and marked as Exhibit 2 by the Doctor (P.W. 5). The injured was examined as P.W. 1 and he has specifically stated about the complicity of the opposite parties that they had conjointly assaulted, resulting in injury. Despite this, it was surprisingly noted that there was no direct eye witness to the incidence. This finding suffered from perversity which calls for interference by this Court in view of ratio laid down in Chandra Babu @ Moses v. State through Inspector of Police & Others , (2015) 8 SCC 774

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It is well settled in law that inherent as well as revisional jurisdiction should be exercised cautiously. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the Court. (See Amit Kapoor v. Ramesh Chander [(2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] .)

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6. It is further argued that it was not obligatory on the part of the informant to disclose the cases pending against him. However, he has not

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suppressed rather had disclosed in examination-in-chief that Lower Bazar P.S. Case No.248 of 2011 was lodged against him in which he was on bail. The first appellate court’s observation and finding of suppression was therefore perverse on the point.

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7. Apart from the injured witness, P.W. 3 and 4 have also corroboratory incidence in which opposite party nos.2-6 had conjointly assaulted the informant on the time, date and place of occurrence.

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8. Learned A.P.P. assisted by learned counsel on behalf of opposite party nos.2-6 have defended the order of acquittal. It is submitted by learned counsel that there appears vital contradictions in the testimony of witnesses which have been noted by the both the courts below. There was contradictions between medical evidence and ocular evidence. The injuries were superficial in nature whereas the injured (P.W. 1) has deposed that he was conjointly assaulted by butt of revolver and knife resulting in the said injury.

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9. On the point of law, it is further submitted that there is a concurrent finding of fact in favour of the petitioners and the scope of interference by the revisional court against the order of acquittal is limited one. Reliance is placed on 2021 SCC OnLine Jhr, (1973) 2 SCC 583, AIR 2012 SC 431, 2022 SCC OnLine SC 90.

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10. Having considered the submissions advanced on behalf of both sides, I find merit in the submission advanced on behalf of the petitioner that there is error of record both in the trial court and the appellate court. The trial court has noted in para 12 of the judgment “It is clear that no witness is eye witness in this case. No witness says what injury he saw on the body of the informant although they allege that he was hit by the butt of pistol.”

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11. This falsifies the fact that informant (P.W. 1) is the injured who had been examined on the very same day of incidence by Dr. Sweta Tripathy (P.W. 5) who found altogether six abrasions on his person which was caused by hard and blunt substance. All injuries were simple in nature. Injured is himself an eye witness and therefore, it cannot be said that there was no eye witness to the incidence. Furthermore, other witnesses namely P.W. 2, P.W. 3 and P.W. 4 have also corroborated the testimony of P.W. 1.

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12. The appellate court disbelieved the eye witnesses on account of contradiction between oral and medical evidence. P.W. 1 has disclosed about

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the pending case with the accused persons in which he was on bail. Therefore, the finding that there was suppression of this fact, is also factually incorrect. In the absence of suppression, drawing of adverse inference by the appellate court, was without any basis. Having noted the above errors on record and being conscious of the power to be exercised by the revisional court while hearing a revision against acquittal, matter for consideration is whether this case is fit to be remanded after setting aside the impugned judgment of acquittal.

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13. This Court is of the view that this will not be expedient in the interest of justice to remand the case after more than twelve years of the incidence for the reason that injuries were simple and superficial in nature in which at best a judgment of conviction can be passed under Section 323 of the IPC by the trial court. Further, the matter involves land dispute leading to case and counter case in which the informant was himself an accused in the counter case.

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14. Under the aforesaid facts and circumstance, I am not inclined to interfere with the impugned judgment of acquittal for the ends of justice.

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Criminal Revision petition accordingly stands rejected.

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(Gautam Kumar Choudhary, J . )

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Anit

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Wasim Raja Alias Wasim Raza Khan v. the State of Jharkhand

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Wasim Raja Alias Wasim Raza Khan v. the State of Jharkhand

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