Sheetala Prasad & Ors vs Sri Kant & Anr

CRIMINAL APPEAL NO. 2420 OF 2009 (Arising out of S.L.P. (Criminal) No. 3662 of 2007)

Sheetala Prasad and others ... Appellants

Versus

Sri Kant and another ...Respondents

JUDGMENT

J.M. PANCHAL, J.

Leave granted.

2. This appeal is directed against judgment dated

May 25, 2007, rendered by the learned single

Judge of High Court of Judicature at Allahabad

in Criminal Revision No. 5819 of 2006, by which

the finding recorded by the learned Additional 2 Sessions Judge, Jaunpur in Sessions Trial Case

No.271 of 2000, decided on September 7, 2006

that the appellants are not guilty under Section

308 IPC but are guilty under Section 324/149

IPC and are entitled to be released on probation

of good conduct, is set aside and the case is

remanded to the Court of learned Additional

Sessions Judge with a direction to pass fresh

order of conviction of the appellants in the light of

observations made in the judgment and impose

sentence on them in accordance with law.

3. The facts emerging from the record of the case are

as under: -

The respondent No. 1, i.e., Kant Pandey,

resides at village Tikara, District Jaunpur. On May 16,

1999, the appellants formed an unlawful assembly,

common object of which was to cause injuries to Varun

and Manoj, who are sons of Kant Pandey. At about

11.30 a.m., the appellants, in furtherance of their

common object, assaulted Varun and Manoj who were

ploughing their field with a tractor and caused injuries 3 to them and when Kant Pandey tried to save his sons,

he was also assaulted and his licensed gun was broken.

The First Information Report was lodged by

Kant Pandey, on the basis of which investigation was

conducted. At the conclusion of investigation, the

appellants were charge-sheeted in the court of learned

Magistrate for commission of offences punishable under

Sections 147, 148, 308, 323, 325, 427, 504, 506 read

with Section 149 IPC. As offence punishable under

Section 308 IPC is exclusively triable by a Court of

Sessions, the case was committed to the Court of

Sessions, Jaunpur, for trial.

4. Since the appellants did not plead guilty, the

prosecution examined seven witnesses to prove

its case against the appellants. After evidence of

the prosecution witnesses was over, the learned

Additional Sessions Judge explained to the

appellants the circumstances appearing against

them in the evidence of prosecution witnesses

and recorded their further statements under 4 Section 313 of the Code of Criminal Procedure,

1973. In their further statements, the case of the

appellants was that of total denial. They also

examined three witnesses in support of their

defence.

5. On appreciation of evidence adduced by the

parties, the learned Additional Sessions Judge

held that no case for commission of offence

punishable under Section 308 IPC was made out

against the appellants, but it was proved by the

prosecution that the appellants had committed

offences punishable under Sections 148, 324

read with Section 149 IPC and Section 429 read

with Section 149 IPC. Having regard to the age,

character, antecedents of the appellants and to

the circumstances in which the offences were

committed, the learned Judge was of the opinion

that it was expedient that the appellants should

be released on probation of good conduct.

Therefore, instead of sentencing them at once to

any punishment, the learned Judge by judgment 5 dated September 7, 2006 directed release of the

appellants on each of them entering into a bond

for a sum of Rs.10,000/- with two sureties for the

like amount to appear and receive sentence when

called upon during the period of two years and in

the meantime to keep the peace and be of good

behaviour.

6. It is relevant to notice that neither the acquittal of

the appellants under Section 308 IPC nor their

release on probation after finding them guilty

under Section 324 read with Section 149 IPC was

challenged by the State of UP before the higher

forum. However, acquittal of the appellants

under Section 308 IPC and their release on

probation after their conviction under Section

324 read with Section 149 IPC was made subject-

matter of challenge before the High Court by the

original informant by filing Criminal Revision No.

5819 of 2006.

6

7. The learned Single Judge, who heard the revision

application, appreciated the evidence on record

and prima facie came to the conclusion that

offence punishable under Section 308 read with

Section 149 IPC, was made out against the

appellants. The learned Single Judge arrived at a

firm finding that in view of the injuries sustained

by Varun and the first informant, the appellants

could not have been convicted under Section 324

IPC with the aid of Section 149 and, therefore,

the conviction of the appellants under Section

324 read with Section 149 IPC and direction to

release them on probation, were liable to be set

aside. In view of these findings, the learned

Single Judge, by the impugned judgment, has

confirmed the finding recorded by the learned

Additional Sessions Judge that the appellants are

guilty but thereafter has set aside the acquittal of

the appellants under Section 308 IPC as well as

their conviction under Section 324 read with

Section 149 IPC and also the direction to release 7 them on probation. The learned Judge has

further remitted the matter to the Court of

learned Additional Sessions Judge, Jaunpur to

pass fresh order of conviction and sentence on

the appellants, keeping in view the observations

made in the body of the judgment. Having regard

to the facts of the case, this Court feels that the

finding recorded and directions given by the High

Court should be reproduced verbatim, which read

as under: -

"Consequently, this revision is hereby allowed. Those findings of impugned judgment, whereby the accused-

respondents have been found guilty, are upheld, but the finding recorded in para 32 thereof with regard to the offence under Section 308 IPC as well as the conviction of the accused-respondents under Section 324/149 IPC and order of releasing them on probation of good conduct are hereby set aside.

Session Trial No.271 of 2000 is sent back to the Court of Additional Sessions Judge/Special Judge (E.C. Act), Jaunpur, who is directed to pass fresh order of conviction and sentence of the accused- respondents in accordance with law, keeping in view the observations made in the body of this judgment."

8 The above finding and directions have given rise to the

instant appeal.

8. This Court has heard the learned counsel for the

parties at length and considered the evidence

forming part of the record.

9. The High Court was exercising the revisional

jurisdiction at the instance of a private

complainant and, therefore, it is necessary to

notice the principles on which such revisional

jurisdiction can be exercised. Sub-Section (3) of

Section 401 of Code of Criminal Procedure

prohibits conversion of a finding of acquittal into

one of conviction. Without making the categories

exhaustive, revisional jurisdiction can be

exercised by the High Court at the instance of

private complainant (1) where the trial court has

wrongly shut out evidence which the prosecution

wished to produce, (2) where the admissible

evidence is wrongly brushed aside as

inadmissible, (3) where the trial court has no 9 jurisdiction to try the case and has still acquitted

the accused, (4) where the material evidence has

been overlooked either by the trial court or the

appellate court or the order is passed by

considering irrelevant evidence and (5) where the

acquittal is based on the compounding of the

offence which is invalid under the law. By now, it

is well settled that the revisional jurisdiction,

when invoked by a private complainant against

an order of acquittal, cannot be exercised lightly

and that it can be exercised only in exceptional

cases where the interest of public justice require

interference for correction of manifest illegality or

the prevention of gross miscarriage of justice. In

these cases, or cases of similar nature, retrial or

rehearing of the appeal may be ordered.

10. Applying the above stated principles to the facts

of the case on hand, this Court finds that after

discussing medical evidence and evidence of

injured witness in great detail the High Court has

prima facie come to the conclusion that case 10 under Section 308 IPC is made out against the

appellants. Such a conclusion could have been

recorded only in a properly constituted appeal,

filed by the State Government. The High Court

has further concluded that no offence punishable

under Section 324 IPC is committed by the

appellants. This finding could have been

recorded only in an appeal filed by the appellants.

In the face of prohibition contained in Section

401(3) of the Code of Criminal Procedure, it was

all the more incumbent upon the High Court to

see that it does not convert the finding of

acquittal into one of conviction by the indirect

method. Further, the matter is remitted to the

learned Additional Sessions Judge for the

purpose of passing fresh order of conviction and

imposition of sentence on the appellants in the

light of what is observed in the impugned

judgment. In the impugned judgment, the High

Court has concluded that the appellants are

guilty under Section 308 read with Section 149 11 IPC and not under Section 324 read with Section

149 IPC. Therefore, on remand the Trial Court is

left with no judicial discretion but to convict the

appellants under Section 308 read with Section

149 IPC and impose punishment on them.

Normally, when High Court decides to interfere

with the judgment of the Trial Court in exercise of

revisional jurisdiction, the retrial of the case is

ordered based on certain well settled principles.

However, after recording guilt of an accused

under particular provision of Indian Penal Code,

the matter could not have been remitted to the

Sessions Court for passing appropriate order of

conviction and punishment.

11. On the facts and in the circumstances of the

case, this Court is of the view that the High Court

has exercised revisional jurisdiction with material

illegality and irregularity resulting into

miscarriage of justice to the appellants and,

therefore, the appeal deserves to be allowed. 12

12. For the reasons stated in the judgment, the

appeal succeeds. The judgment dated May 25,

2007, rendered by the learned Single Judge of the

High Court of Judicature at Allahabad in

Criminal Revision No. 5819 of 2006 remanding

the case to the Court of learned Sessions Judge

for passing proper order of conviction of the

appellants and imposing punishment on them is

hereby set aside.

13. The judgment dated September 7, 2006, delivered

by the learned Additional Sessions Judge,

Jaunpur in Sessions Trial Case No. 271 of 2000

convicting the appellants under Sections 148,

342 read with Section 149 and Section 427 read

with Section 149 IPC and directing their release

on probation for a period of two years is restored.

..............................J. [R.V. Raveendran]

..............................J. [J.M. Panchal] 13

New Delhi;

December 17, 2009.