Dismissed

Mahaanand Mandal v. the State of Bihar and Anr.

Patna HC6 Jan 2014CR. REV./439/2011

Case brief

AI extract

What is this about?

In Criminal Revision No. 439 of 2011, the Patna High Court rejected the petitioner's appeal against an appellate court's acquittal of the respondent for assault. The High Court held that the revision was not warranted due to inconsistencies in the petitioner's evidence regarding land possession and the absence of clean hands, concluding the acquittal should stand.

What did the court decide?

Petition rejected; judgment of appellate court upholding acquittal of Opposite Party No. 2 is confirmed.

Mahaanand Mandal Vs the State of Bihar and Anr. — Property and Title | Patna HC (2014)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.439 of 2011

¶2

====================================================== MAHANAND MANDAL, SON OF LATE JAGDISH MANDAL, RESIDENT OF VILLAGE-NANDANA, POLICE STATION-JADIA, DISTRICT-SUPAUL. .... .... PETITIONER/S VERSUS 1. THE STATE OF BIHAR. 2. JALANDHAR URAON, SON OF JAGGAN URAON, RESIDENT OF VILLAGE-NANDAN, POLICE STATION-JADIA, DISTRICTSUPAUL. .... .... OPPOSITE PARTY/S ====================================================== Appearance: For the Petitioner/s : Mr. Amar Nath Jha, Adv. Mr. Gopal Kumar Jha, Adv. For the Opp. Party No.2 : Mr. Kumar Malendu, Adv. For the State : Mr. P.N. Pandit, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. ORDER

¶3

5. 6-01-2014 Informant/ petitioner is aggrieved by judgment dated 20.01.2011 passed by First Additional Sessions Judge, Saharsa in Cr. Appeal No.9 of 2010 by which the learned appellate court had set aside the judgment dated 09.06.2010 passed by First Assistant Sessions Judge in Sessions Trial No.106 of 2002 convicting and sentencing the Opposite Party No.2 for various offences, and had allowed the appeal.

¶4

2. On 04.04.2002 informant filed written report disclosing therein that while he along with his family members were uprooting potato crop Jalandhar Uraon (Opposite Party No.2), Shambhu Uraon, Debo Uraon, Dipo Uraon, Fulo Devi arrived and made protest. Then, thereafter they abused and also

¶5

¶6

assaulted with fist and slap. During course thereof, at the instigation of Jalandhar Uraon, Shambhu gave spade blow over his head which was averted by him however, striked over temporal region and gave a cut injury thereupon. It has further been disclosed that the land exclusively belongs to him which he had purchased from Rudradeo Jha.

¶7

3. On the basis thereof, Jadia P.S. Case No.28 of 2002 was registered under Sections 341, 323, 447, 379, 307/34 of the IPC and investigation commenced. After completion of investigation, charge sheet was submitted only against Jalandhar Uraon (Opposite Party No.2) while investigation has been kept pending against remaining accused persons and so, only Opposite Party No.2 stood during trial, met with ultimate result against which appeal was preferred and having been allowed, is the subject matter of instant revision at the behest of informant / injured.

¶8

4. It has been submitted on behalf of petitioner that the judgment of the appellate court suffers from conjectures and surmises. It has further been submitted that the learned appellate court failed to appreciate the evidence of the PWs in its right perspective at the other hand rejected the same on wrong perception, although from the evidence on record, it is apparent

¶9

¶10

that all the material witnesses happen to be consistent so far genesis as well as manner of occurrence are concerned. It has also been submitted that ocular evidence happens to be consistent with the medical evidence but the learned lower court doubted the genuineness of the medical evidence on the basis of a certificate granted by the treating doctor subsequently which has got no relevance with the injury report. Apart from this, the learned lower court also failed to construe that section 307 IPC is bifurcated in two parts. The first part takes care of where no injury is caused while the second part happens to be dealing with the case where hurt is caused. Hurt is synonym to injury however is guided by the nature of injury. Hurt is defined under Section 319 of the Cr.P.C. which also includes the injury. Therefore, discrediting the evidence of the material witnesses by the appellate court as well as allowing the appeal is found contrary to the materials available on the record hence the judgment of the appellate court is fit to be set aside by way of restoring the judgment of trial court.

¶11

5. On the other hand, the learned counsel for the Opposite Party No.2 submitted that once finding of acquittal has been recorded by the appellate court then in such circumstance, even if considering evidence probablising the contrary view could

¶12

¶13

not be considered because of the fact that the basis principle of criminal jurisprudence with regard to innocence of accused is further found approved by a judgment pronounced by a competent court. It has further been submitted that the ocular evidence happens to be inconsistent with the finding recorded by the medical evidence. Not only this, the exclusive possession of prosecution over the land under dispute is also not found conclusively proved in the background of the fact that uncle of a vendor of informant had already executed sale deed in favour of Opposite Party No.2 and on account thereof, the Opposite Party No.2 had legal right to possess the land wherein the prosecution party intervened and even if considering the case of the prosecution proved, for an argument sake which never been exceeded though not admitted, it happens to be a case of exercise of right of private defence. Therefore, the learned appellate court though not expressly but had taken into consideration the sale deed executed by Krishnanand Jha in favour of Opposite Party No.2 much prior to the sale deed by Rudradeo Jha in favour of informant. Although, some of the witnesses including Rudradeo Jha had admitted the aforesaid event but the informant and his family members unsuccessful tried to suppress the same. The process of suppression is indicative of the fact that prosecution

¶14

¶15

has not come with clean hand and by such action, has suppressed the real cause of occurrence which is bound to adversely affect upon the prospect of prosecution case. Therefore, it has been submitted that prosecution has got no leg to stand by and this revision, in the aforesaid background, is fit to be rejected.

¶16

6. The learned Additional Public Prosecutor endorse the view.

¶17

7. Because of the fact that instant revision has been preferred against the judgment of acquittal at the instance of private party therefore it has to be dealt with certain prohibition and for that it looks better to incorporate the principle decided by the Hon’ble Apex Court. In Venkatesan v. Rani and others reported in AIR 2013 SC 3320, the Hon’ble Apex Court has laid down guidelines for adjudicating upon revision against acquittal. The relevant para is quoted below para-6 and 7:-

¶18

“6. 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 this Court. Illustratively, as also chronologically, the decisions rendered in Pakalapati Narayana Gajapathi Raju vs. Bonapalli Peda Appadu[1], Akalu Ahir v. Ramdeo Ram[2], Mahendra Pratap Singh v. Sarju Singh[3], K. Chinnaswamy Reddy v. State of A.P.[4] and Logendranath Jha v. Polai Lal Biswas[5] may be referred to. Specifically and for the purpose of a detailed illumination on the subject the contents of paras 8 and 10 of the judgment

¶19

¶20

in the case of Akalu Ahir v. Ramdeo Ram (supra) may be usefully extracted below.

¶21

“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:

¶22

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

¶23

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

¶24

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

¶25

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

¶26

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

¶27

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.”

¶28

“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. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village Mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court.

¶29

The observations in para 9 in the case of Vimal Singh v. Khuman Singh[6] would also be apt for recapitulation and, therefore, are being extracted below.

¶30

“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

¶31

¶32

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.”

¶33

8. 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. Reappreciation 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

¶34

¶35

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.

¶36

9. The Hon’ble Apex Court had also perceived and put emphasis whenever confronted with the judgment of acquittal by laying down that once there happens to be judgment of acquittal and after going through the evidences two view are probable leaning in favour of accused while the other in favour of prosecution then in that event, the judgment of acquittal should not be interfered with in generality unless and until the judgment happens to be absolutely perverse as well as having being appreciated in wrong and illegal manner. In a case Bihari Nath Goswami vs. Shiv Kumar Singh reported in (2004) 3 PLJR 202 para-8 it has been held:-

¶37

“The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra (AIR 1973 SC 2622), Ramesh Babulal Doshi v. State of Gujarat (1996 (4) Supreme 167), Jaswant Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab v. Karnail Singh (2003 (5) Supreme

¶38

¶39

508 and State of Punjab v. Pohla Singh and Anr. (2003 (7) Supreme 17) and Suchand Pal v. Phani Pal and Anr. (JT 2003 (9) SC 17)”

¶40

10. As stated above from the written report itself, it is evident that informant had not disclosed in the written report that the land under dispute was ever purchased by him. During course of evidence, the prosecution had examined PW-3, Rudradeo Jha who deposed during his examination-in-chief on the factual aspect and stated that at the instigation of Opposite Party No.2 Jalandhar Uraon Shambhu gave spade blow over the informant Mahanand Mandal causing injury over his temporal region. However during cross-examination at para-7 he had admitted that his uncle had sold away this land in favour of Jalandhar whereupon he is residing after constructing his house. He had further stated that he had sold away the P.O. land in favour of Mahanand Mandal. The land was in his possession before execution of sale deed. He had further disclosed that the accused persons have not indulged in dispute with him. After sale he had handed over possession to Mahanand and at that very moment also there was no dispute.

¶41

11. So from evidence of this PW, it is apparent that land under dispute formally belonged to his family. His uncle had sold it away in favour of accused while this PW had transferred the land in favour of informant but very cunningly, he kept mum with

¶42

10.

¶43

regard to location as well as the total area of the land, share of the party.

¶44

12. It is apparent from the evidence of other PWs also that none of them were authentic on that score. PW-2 in para-7 of his cross-examination had disclosed that informant had purchased the land under dispute from Munna Jha and Rudradeo Jha . Krishnadeo Jha had sold away 3 kattha of land to Jalandhar Uraon from this survey plot number which happens to be 50-60 meter south to the land of Mahanand. However, again this witness did not disclose the total area, the location of the land under dispute.

¶45

13. PW-4 is the mother of informant who too did not divulge the same. Even during course of cross-examination, she had refuted the suggestion that Krishnadeo Jha had executed sale deed in favour of Jalandhar with respect to the land under dispute although she had admitted to have purchased the land from Rudradeo Jha (Para-4, 5 of her cross-examination).

¶46

14. PW-5 is the wife of informant who in para-6 of her cross-examination had disclosed that Krishnadeo Jha happens to be uncle of Rudradeo Jha. She is not aware with regard to partition, if any, effected in their family. In para-7 she had denied that Jalandhar had also purchased the land under dispute. They have not filed any case for possession. She had further disclosed

¶47

11.

¶48

that she will get possession in this case itself. PW-6 had again denied the existence of aforesaid sale deed executed by Krishnadeo Jha in favour of Jalandhar as evident from para-7 of his cross-examination. In likewise manner PW-7 had stated as evident from para-3 of his cross-examination.

¶49

15. PW-9 had admitted in para-3 of his crossexamination that there happens to be dispute amongst both the parties with regard to P.O. land. Both the parties are claiming the land to be their own.

¶50

16. PW-10 is the informant himself. During examinationin-chief at para-2 he had stated that the land under dispute has been purchased by him from Rudradeo Jha and on the basis thereof the land happens to be in his possession. During crossexamination at para-5 he had denied that Krishnadeo, uncle of Rudradeo Jha, had executed sale deed in favour of Jalandhar Uraon.

¶51

17. Thus, from the evidence available on the record, it is apparent that although PW-2 as well as PW-3 had admitted execution of sale deed by Krishnadeo in favour of Phulo Devi with regard to land under dispute but the informant and his family members, tried their best, to disown the same and on account thereof, their exclusive possession over the land has become

¶52

12.

¶53

doubtful one. At this place it looks relevant to incorporate that Exhibit-7 happens to be the sale deed dated 09-03-2002 in favour of prosecution while Ext.-A happens to be the sale deed executed by Krishnadeo Jha in favour of Phulo Devi dated 21.05.1984. That means to say soon after execution of sale deed in favour of informant (09.03.2002) the occurrence as alleged had taken place on 04-04-2002.

¶54

18. At the present moment, the evidence of PW-10, informant is to be taken into consideration. He had stated under para-2 of his examination-in-chief that he is over the land for the last 10 years. His evidence was recorded on 27-09-2007 that means to say he happens to be over the land since 1997, but the aforesaid fact has not been supported by the evidence of PW-3, his vendor Rudradeo Jha. That means to say this part has purposely been introduced by the informant though not supported by any of the PWs to claim plantation of potato as well as to justify their presence over the land under dispute since before and in the aforesaid background presence of prosecution party at the place of occurrence claiming the land to be in their exclusive possession on the basis of sale deed, does not happens to be out of controversy. Therefore, the prosecution party even asserting that the informant had sustained injury at the hands of Sambhu at the

¶55

13.

¶56

instigation of Opposite Party No.2 Jalandhar, is not found above board rather in the facts and circumstances stated above with regard to claim counter claim, possession counter possession over the land under dispute and further taking into account the conduct of the informant as well as his family members during course of their evidence smacks some foul whereunder one could very well perceive that the prosecution has not come with clean hand and by their conduct they have suppressed the real genesis as well as manner of occurrence.

¶57

19. In the aforesaid background, the ultimate beneficiary would be the Opposite Party No.2, whereupon the judgment of the appellate court did not attract interference. Consequent thereupon, petition is rejected.

¶58

(Aditya Kumar Trivedi, J.)

¶59

PATNA HIGH COURT DATED, THE 6^th day of Jan, 2014 PRAKASH NARAYAN /A.F.R.

Mahaanand Mandal v. the State of Bihar and Anr.

Case brief

What is this about?

What did the court decide?

Mahaanand Mandal v. the State of Bihar and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Milan Kumari @ Milan Devi Vs The State Of Bihar and Ors.

Ratish Chandra Jha Vs The State Of Bihar and Ors.

Vijai Rai @ Bijoy Roy Vs State of Bihar

Braj Kishore Upadhyay Vs The State Of Bihar Through The Principal Secretary, Department Of Home, Govt. Of Bihar, Patna and O

Anupama Saha Vs The State Of Bihar Through The Director General Of Police and Ors.

Kanishk Sinha Vs The State Of Bihar Service Through The Secretary, Home Police Department, Vikash Bhavan Govt. Of