JUDGMENT
D.K. Sinha, J.
Page 0374
1. The petitioner, Baijnath Thakur, has preferred this Cr. Revision application under Sections 397 and 401 of the Code of Criminal Procedure for setting aside the judgment dated 30.1.2004 passed by Sri. Abhay Shankar Mishra, 3rd Addl. Sessions Judge, Dumka in S.C. case No. 247 of 1999 whereby and whereunder the opposite parties No. 2, 3 and 4 namely, Goutam Raut, Fuldhar Raut and Gopal Raut respectively have been acquitted from the charge under Sections 323/325/307/34 of the Indian Penal Code.
2. The brief fact of the case is that discourse on ” Bhagwat” was going on at the door of Fuldhar Raut (Opp. Party No. 3) since 23.4.1999. The informant in his statement narrated that in the night of 29.4.1999 he along with his son, Bablu Thakur had been there to hear the discourse. At about 11.30 p.m. Bablu Thakur asked the organizer of “Bhagwat” to set the “Public Address System”(Mike) at right whereupon, it is alleged, that opposite party No. 2 Gautam Raut came to Bablu Thakur image put a towel around his neck and began to pull. When it was protested, Gautam Raut (Opp. Party No. 2) started abusing. Just thereafter, accused Fuldhar Raut, Gopal Raul and Shashi Mahto came mere armed with Lathi. It is alleged that the opposite party No. 3 Fuldhar Raut dealt lathi blow on the head of the informant/petitioner as a result of which he sustained injuries on his head and there started bleeding. It is further alleged that Shashi Mahto and Gopal Raut also assaulted him with lathi and Gautam Raut assaulted his son with fist. The informant as well as his son fell down after sustaining injuries and they were rescued by audience. Disclosing the genesis of the occurrence, the informant/petitioner narrated that, his agnate Arun Thakur had solemnized his marriage with the widow of late Baldev Raut who happend to be the Agnate of the opposite party No. 3, Fuldhar Raut some six months ago and for such reason there was anguish amongst the accused persons Page 0375 as to why a barber had married with woman of their caste and for such reason the informant/petitioner and his son were assaulted. On the basis of statement of the informant/petitioner, Saraiyahat P.S. case No. 63 of 1999 was registered for the offence under Sections 307/34, 325/34 and 323 of the Indian Penal Code against the opposite parties No. 2 to 4 including one Sashi Mahato.
3. After investigation charge sheet was submitted in the aforesaid sections against the opposite parties herein above. The informant/petitioner had sustained injuries as per the medical examination report on 30.4.1999 which are as follows:-
(a) Lacerated would over right parietal region of skull 4″ x ” into bone deep.
(b) Complaint of chest pain, low back pain right arm and pain in abdomen Vomitings and Haematemesis.
The above injuries were found within six hours by hard and blunt object. The patient was referred to Patna Medical College Hospital, Patna and in C.T. Scan report fracture of frontal and parietal bones of right side of skull and bilateral extra haemorrhage was found. In the opinion of the Doctor the injury No. 1 was found grievous and dangerous in nature.
4. The learned Counsel submitted that the charge against the members of the opposite party was framed under Sections 307/325/323 read with Section 34 of the Indian Penal Code and the prosecution had produced and adduced seven witnesses in support of the case. Out of them P.W. 3 Bablu Thakur and P.W. 5 Baijnath Thakur were victims where as P.W. 1, Godadhar Mandal, P.W. 2 Logan Thakur and P.W. 4 Om Prakash Thakur were the eye witnesses who consistently proved the prosecution case leading to the complicity of the opposite parties No. 2 to 4 for the alleged charge. P.W. 6 Doctor Prabhat Kumar proved the injury reports related to both the victims and also supported that Baijnath Thakur was forwarded to J.L.C.H. Bhagalpur and from thereto P.M.C.H, Patna where C.T. scan was done and C.T. Scan report from P.M.C.H indicated fracture of frontal and parietal bone of right side of skull and bilateral extradural haemorrhage, so the nature of injury No. 1 was grievous and dangerous. He proved the injury report of Baijnath Thakur (Ext.2) and Bablu Thakur (Ext.2/1).
5. Advancing his argument, learned Counsel submitted that the impugned judgment of acquittal of the members of the opposite party Nos. 2 to 4 resulted in gross miscarriage of justice and in as much as material evidence has been over looked or ignored by the trial court. The consistent evidence of all the material prosecution witnesses was that the opposite party No. 3, Fuldhar Raut assaulted the informant by rod on his head causing bleeding injuries whereas the other accused persons including the opposite parties No. 2 to 4 assaulted him on the various part of his body. They were further consistent that Bablu Thakur was assaulted by the opposite party No. 2, Gautam Thakur, but curiously enough, their evidences coupled with the evidence of the Doctor (P.W.6) corroborating the grievous injury i.e. fracture of frontal parietal bone of the right side of his skull and by lateral extradural haemorrhage caused to the informant/petitioner was completely ignored by the trial court. The informant (P.W.5) explained his evidence before the court below that his version in the fardbayen with regard to assault by lathi was not read over to him but as a matter of fact rod was dealt on his head causing grievous injury with the intention to commit his murder. The trial court below without any basis whatsoever found Page 0376 discrepancy, glaring contradiction and disbelieved the entire prosecution case though other witnesses were consistent in their evidence that it was opposite party No. 3, Fuldhar Raut who had dealt blow with rod on the head of the informant causing injuries and such injuries were proved by Doctor (Ext.2/1). The informant as well as his son Bablu Thakur had received injuries in the manner, the occurrence was narrated by the petitioner/informant at the first point in time except the use of stick as recorded by the police officer that the opposite party No. 3 had dealt lathi blow in place of iron rod which was actually dealt on his head which was later on explained by the informant/petitioner in his substantive evidence before the court that his statement was not read over to him so far it related to use of lathi or rod but it was affirmed that the accused had dealt iron blow on his head.
6. Finally, learned Counsel submitted that the trial court below disbelieved the prosecution case on the ground that there were large number of audience during discourse of “Bhagwat” but only interested witnesses were produced and examined on behalf of the prosecution which did not inspire his confidence and in the instant case the Investigating Officer was not examined. The acquittal of the accused persons on the face of the consistent evidence in respect of the prosecution case in the alleged charge is flagrant miscarriage of justice which calls for interference of this court in revision and therefore, the impugned Judgment passed by Abhay Shankar Mishra, 3rd Additional Sessions Judge, Dumka in S.C. case No. 247 of 1999 on 30.1.2004 be set aside and appropriate direction may be made to the court below.
7. On the other hand, learned Counsel appearing on behalf of the opposite parties No. 2 to 4 submitted that the judgment impugned passed by the 3rd Addl. Sessions Judge, Dumka in S.C. Case No. 247 of 1999 is well discussed and after appreciation of facts and relevant law the members of the Opposite party were acquitted which does not call for interference of this Court in revision. The learned Counsel pointed out that the learned trial court below found vital contradictions in relation to the weapon allegedly used by the assailants in the statement of informant before police. The informant/petitioner, Baijnath Thakur narrated before the police that the opposite party No. 3, Fuldhar Raut inflicted stick blow on his head which caused fracture and there started bleeding but in his statement before the court he stated that rod was dealt on his head by Fuldhar Raut causing injuries. Similarly other witnesses, who were produced and examined on behalf of the prosecution, also changed their version and deposed that iron rod was dealt on the head of the informant/petitioner, Baijnath Thakur. The learned trial court below appreciated that though there was gathering of hundreds of people but no independent witness was produced on behalf of the prosecution and that there was material contradiction in the statement before the court. The learned trial court below observed that no substantive motive of such alleged occurrence was given by the prosecution and finally it was observed that when the informant/petitioner became unconscious after sustaining injuries then how his fardbayen (statement) was recorded by the police and therefore, it was held that the prosecution failed to prove the charge against the accused/opposite party No. 2 to 4. The Investigating Officer of the case was also not produced in the witness box so as to attract his attention towards contradiction in the statement of the witnesses with regard to use of stick or iron rod and in this manner the accused/ opposite parties were highly prejudiced and therefore, the prosecution failed to prove the charge against the accused beyond shadow of all reasonable doubts and under Page 0377 such circumstances the order of acquittal was passed. Finally it has been submitted that P.W.6, Doctor Prabat Kumar though had proved the injury report but he is silent as to whether the injuries sustained by the informant/petitioner, Baijnath Thakur were dangerous to live. In his cross examination, P.W.6 Doctor, Prabat Kumar admitted that injury No. (i) (lacerated wound on his skull, bone deep) found on the person of the informant/petitioner was possible by falling on stone where as injury No. (ii) and (iii) were possible by fall in the “Rolling condition” which caused reasonable doubt in the mind of the learned trial judge which culminated in the acquittal of the members of the opposite party aforesaid. The present Cr. Revision application therefore is not maintainable and judgment passed by the learned 3rd Addl. Sessions Judge, therefore, does not call for interference of this court and this Cr. Revision may be dismissed.
8. It is relevant to mention a few facts that the Cr. Revision has been preferred against the acquittal of the opposite party No. 2, Goutam Raut, opposite party No. 3, Fuldhar Raut and opposite party No. 4, Gopal Raut on the charge under Sections 323/325/307/34 of the Indian Penal Code.
9. From the arguments advanced on behalf of the parties the facts emerged that the occurrence, as alleged, took place on trifling matter of asking by the witness Bablu Thakur to put the Mike in order which was used during the discourse of “Bhagwat”. It is alleged that opposite party No. 2 enraged and put a towel around the neck of Bablu Thakur and started pulling. When the informant, Baijnath Thakur came to rescue his son, it is alleged, that the petitioners Goutam Raut, Fuldhar Raut and Gopal Raut arrived there having sticks in their hands. It is specifically alleged, against the opposite party No. 3 Fuldhar Raut that he dealt lathi blow on his head causing fracture and there started bleeding. He was further assaulted by Goutam Raut and Gopal Raut. Bablu Thakur again was assaulted by opposite party No. 2 Gautam Raut with fists. Both fell down after sustaining injuries and on alarm the witness who had assembled to attend the discourse of “Bhagwat” pacified the matter and rescued the victims. Genesis of the occurrence was inter caste marriage between the Agnate of petitioner/informant and widow of the Agnate of opposite party No. 3, Fuldhar Raut.
10. It is settled law that there is difference between appeal against acquittal and criminal revision against acquittal of an accused. The present revision has been preferred by the informant/petitioner against the acquittal of the opposite party Nos. 2 to 4 on the grounds that evidence adduced and produced on behalf of the prosecution could not be appreciated by the trial court and therefore, the order of acquittal is unsustainable. The injury report of Bablu Thakur, one of the victims, has been proved and marked Ext. 2 wherein abrasion, bright red in colour, left side of neck 2″ X 1″ was found by P.W.6, Doctor Prabat Kumar within six hours of the injury, simple in nature. The informant/petitioner was examined on 30.4.1999 and following injuries were found:-
(i) Lacerated wound over left parietal region on of scalp 4″x 1/4″ bone deep.
(ii) Complain of pain chest, low back, right arm and abdomen.
(iii) vomiting and Haematemesis.
The injuries were found to be caused by hard and blunt substance within six hours of the occurrence. The opinion of the Doctor was reserved till the report of X’ Ray of the Page 0378 fracture. The injury report (Ext.2) has got bearing that the patient (Baijnath Thakur) was referred to P.M.C.H from J.L.C.H Bhagalpur on confirmation of head injury. The C.T. Scan report from P.M.C.H. disclosed fracture of frontal and parietal bone of right side of scalp and bilateral extradural haemorrhage. Such injuries were found grievous and dangerous whereas other injuries No. (ii) and (iii) were found simple in nature.
11. The learned trial court below acquitted the accused/opposite parties on the following grounds:
(i) No independent witness was produced.
(ii) Glaring contradictions in the statements of the prosecution witnesses.
(iii) Lack of substantive motive.
(iv) Contradiction in the manner of the occurrence alleged and weapons used in the offence.
(v) None examination of I.O.
(vi) when the informant became unconscious how his Fardbayen(statement) was recorded by the police.
12. In course of the examination under Section 313 of the Code of Criminal Procedure all the three members of the opposite party herein expressed their innocence and no defence evidence was adduced.
13. In Akalu Ahir and Ors. v. Ramdeo Ram . The Hon’ble Supreme Court formulated guidelines and categories of cases which would justify the High Court in interfering with a finding of acquittal in revision.:-
(i) Where the trial court has no jurisdiction to try the case, but has still acquitted the accused;
(ii) Where the trial court has wrongly shut out evidence which the prosecution wished to produce;
(iii) Where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible;
(iv) Where the material evidence has been over looked only (either ?) by the trial court or by the appellate court; and
(v) Where the acquittal is based on the compounding of the offence which is invalid under the law.
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 justifiable interfere with the order of acquittal.
14. The golden rule which has been laid down by the Apex court is that the revisional jurisdiction under Sections 397/401 of the Code of Criminal Procedure is not to be lightly exercised when invoked by a private party against an order of acquittal against which the government has right of appeal. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or mis- appreciated the evidence on record. Similarly, the revisional court has precluded from converting finding of acquittal into one of conviction.
15. In the present case, from careful perusal of the materials on record, I find that the present case comes within the category of Rule No. (iv) as formulated by the Page 0379 Supreme Court in Akalu Ahir and Ors. v. Ramdeo Ram (Supra) which warrants inference of the High Court in revision. I find that the material evidence on record has not been appreciated by the trial court below in its right perspective and therefore, the judgment passed by the 3rd Addl. Sessions Judge, Dumka is unsustainable in S.C. case No. 247 of 1999. I do not find any infirmity in recording the evidence but what I find that the trial court below failed to examine the accused under Section 313 of the Code of Criminal Procedure by putting appropriate questions based upon the substantive evidence on record. The purpose of asking question during the examination of the accused under Section 313 of the Code of Criminal Procedure is to afford the accused personally an opportunity of extending any incriminating circumstance or circumstances so appearing in evidence against him. If the incriminating piece of evidences available in the prosecution evidence are not shown to the accused by putting questions, such evidence cannot be relied upon for the purpose of recording the conviction of the accused persons. The trial court erred by not appreciating the provision of law, the compliance of Section 313 of the Code of Criminal Procedure is a mandatory in nature. Each material circumstance has to be put separately to the accused for his examination which is lacking in the present case. However, such error or omission in compliance of the provision of Section 313 of the Cr.P.C. shall not vitiate the trial under the facts and circumstances of the case.
16. So far as the use of stick or rod is concerned, in my opinion, there would be almost equal impact on the skull subject to force applied proportionate to the nature of intention, whether to cause simple hurt or grievous hurt or to cause death. In the present case injuries have been proved.
17. Under the facts and circumstances of the case, the judgment impugned passed on 30.1.2004 passed by Sri. Abhay Shankar Mishra, 3rd Addl. Sessions Judge, Dumka in S.C. case No. 247 of 1999 is set aside with the direction to record the statement of the opposite party Nos. 2 to 4 herein above afresh in accordance with law under Section 313 of the Code of Criminal Procedure and further to pass a fresh judgment on proper and meticulous appreciation of the evidence on record on according opportunity to the opposite parties herein, as soon as possible, without in any manner prejudice to the parties or the trial court. With the above observation this Cr. Revision application is allowed.