IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER S.B. Criminal Revision Petition No. 165/2001 Kesarilal Vs. Hari Shankar & Others. DATE OF ORDER: 12.07.2011 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Santosh Kumar Jain, for the petitioner. Ms. Rekha Madnani, Public Prosecutor, for the Respondent No. 4-State. Mr. Surendra Sharma, for the Respondent No. 1. BY THE COURT:
Heard learned counsel for the parties.
2. Complainant-petitioner has preferred this revision petition against impugned judgment and order dated 16.01.2001 passed by Additional Sessions Judge No. 2, Bundi in Sessions Case No. 55/2000, whereby learned trial court acquitted accused-Respondents No. 1 to 3 from the offence under Section 307 I.P.C. and granted benefit of Section 4 of the Probation of Offenders Act to accused persons under Sections 323 and 325 I.P.C.
3. Brief facts of the case are that a written report, Exhibit P-1 was lodged by informant Kesri Lal, P.W. 1, at Police Station Keshorai Patan on 28.08.1995 that his brother, Damodar, P.W. 2, was cutting grass in their agricultural field and at that time accused-persons came in their field and inflicted number of injuries on the person of his brother, due to previous enmity. On the basis of above report, F.I.R. was registered and after completion of investigation, a challan was filed against accused persons in the Court of Judicial Magistrate, First Class, No. 1, Bundi, who committed the case for trial to the Court of Sessions Judge, Bundi. Thereafter, the case was transferred to the Court of Additional Sessions Judge, No. 2, Bundi. The trial court framed charge against the accused-persons for the offences under Sections 307 and 323 I.P.C. Accused persons denied charge and claimed trial. In support of its case, the prosecution examined P.W. 1 to P.W. 8 and also produced documentary evidence. Thereafter, statements of the accused persons were recorded under Section 313 Cr.P.C. Learned trial court after hearing submissions of parties and examining the record, acquitted the accused persons from offence under Section 307 I.P.C., but convicted them under Sections 323 and 325 I.P.C.
4. Submission of learned counsel for the petitioner is that as per medical report and statement of doctor, it is clear that injured Damodar, P.W. 2 sustained 23 injuries including fractures, therefore, trial court committed an illegality in acquitting the accused persons from the offence under Section 307 I.P.C. It was further contended that looking to number of injuries, it was not proper on the part of learned trial court to grant benefit of probation to accused persons under Section 325 I.P.C. It was further contended that accused-Respondent No. 1, Hari Shankar was previously convicted, therefore, he was not entitled for any benefit under the provisions of Probation of Offenders Act. It was also argued that looking to number and nature of injuries, the amount of compensation awarded by learned trial court is not adequate and the same may be enhanced.
5. Learned counsel for the Respondent No. 1 submitted that although number of injuries were 23, but none of them was found to be sufficient to cause death in the ordinary course of nature, therefore, learned trial court was absolutely justified in acquitting the respondents from the offence under Section 307 I.P.C. He further submitted that accused Hari Shankar was not previously convicted before the date of impugned judgment i.e. 16.01.2001. He further submitted that there is no material available on record to show that accused Hari Shankar was previously convicted. He also submitted that the incident, in the present case, took place in the year 1995, therefore, amount of compensation awarded by learned trial court is justified and reasonable and no interference in the judgment and order passed by learned trial court is called for.
6. I have considered submissions of learned counsel for the parties and minutely scanned the impugned judgment and record of the trial court.
7. From the medical report and statement of P.W. 7, Dr. K.C. Dagal, it is clear that P.W. 2, Damodar sustained 23 injuries, which have been reproduced in Para No. 15 of the impugned judgment. From the medical report and statement of doctor, it is also clear that out of 23 injuries, no injury was found to be sufficient to cause death in the ordinary course of nature. This fact has not been disputed by learned counsel for the petitioner also. His only submission is that looking to number of injuries, including fractures, the accused respondents should have been convicted under Section 307 I.P.C. Submission of learned counsel for the petitioner cannot be accepted, for the simple reason that number of injuries is not relevant, but the nature of injuries is relevant for the purpose of constituting a particular offence. Unless, the injuries sustained by the injured are found to be sufficient to cause death in the ordinary course of nature, accused persons cannot be convicted under Section 307 I.P.C. In these circumstances, I do not find any merit in the submission of learned counsel for the petitioner in this regard.
8. Apart from above, it is relevant to mention that present revision petition is directed against an order of acquittal whereas the scope to interfere in the order of acquittal is very limited. Hon’ble Apex Court in State of Madhya Pradesh vs. Bacchudas alias Balaram & Ors. (AIR 2007 SC 1236) observed that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Hon’ble Apex Court further observed that the order of acquittal should not be interferred with unless there are some compelling and substantial reason or circumstances for doing so. Para 9 of the judgment(supra) is reproduced as under:
9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of injustice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused really committed any offences or not.
The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there is 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 Sahabrao Bobade Vs. State of Maharahstra(1973(2)SCC 793); Ramesh Babulal Doshi Vs. State of Gujarat(1996(9)SCC 225); Jaswant Vs. State of Harayana(2000(4)SCC 484); Rajkishore Jha Vs. State of Bihar(2003(11)SCC 519); State of Punjab Vs. Karnail Singh(2003(11)SCC 271); State of Punjab Vs. Phola Singh(2003(11)SCC 58); Suchand Pal Vs. Phani Pal(2003(11)SCC 527) and Sachchey Lal Tiwari Vs. State of U.P.(2004(11)SCC 410.
9. So far as extending benefit of probation to accused persons under Section 325 I.P.C. is concerned, it is relevant to mention that maximum sentence prescribed under Section 325 I.P.C. is seven years and the same is triable by the Court of any Magistrate. Learned trial court has exercised its powers for extending the benefit of Section 4 of the Probation of Offenders Act to accused persons. In the facts and circumstances of the present case, I do not find any error of jurisdiction in the order passed by the trial court, so as to interfere in the same, while sitting in revisional jurisdiction under Section 397 Cr.P.C.
10. So far as submission of learned counsel for the petitioner, that Respondent No. 1 Hari Shankar was previously convicted, is concerned, from the record of the trial court as well as this Court it is not borne out that he was previously convicted. It appears from order dated 13.03.2008 passed by this Court, whereby revision petition was admitted, there is a reference of one order dated 20.07.2001 referred by learned counsel for the petitioner, whereby accused Hari Shankar was convicted under Section 307 I.P.C. Learned counsel for the Respondent No. 1 submitted that it was an ex-parte order and the judgment dated 20.07.2001 was not part of record of trial court. It is relevant to mention that impugned judgment was passed on 16.01.2001 and the order referred by learned counsel for the petitioner at the time of admission of the revision petition is dated 20.07.2001, which was passed much after passing of impugned judgment, therefore, it could not have been made a part of the record. It was not proper on the part of the learned counsel for the petitioner to refer the same at the time of admission of revision petition, particularly when it was not part of record of the trial court. In these circumstances, said judgment cannot be said to be relevant and cannot be read, as it is not part of record of trial court or this Court. Said judgment has not been placed on record even before this Court alongwith an application, as per law, therefore, the petitioner cannot get any benefit of the said judgment also.
11. So far as adequacy of amount of compensation is concerned, I find that learned trial court has awarded Rs. 12,000/- and directed to pay Rs. 11,000/- out of this amount to injured Damodar. Learned counsel for the Respondent No. 1 submitted that said amount has already been deposited by the respondents in the trial court. After considering all the facts and circumstances of the present case, I enhance the amount of compensation and it is directed that accused respondents will pay total amount of Rs. 15,000/- as compensation to injured Damodar. Accused respondents have already deposited Rs. 11,000/- towards compensation in the trial court as stated by learned counsel for Respondent No. 1, therefore, they will now deposit remaining amount of Rs. 4,000/-(Rupees Four Thousands) in the trial court, which will be paid to injured P.W. 2, Damodar.
12. Learned counsel for the Respondent No. 1 prayed for two months’ time to deposit the said amount. Time prayed for is allowed. Remaining amount of Rs. 4,000/-(Rupees Four Thousands) be deposited in the trial court within a period of two months from today and the same will be paid by the trial court to injured Damodar, P.W. 2, soon thereafter.
13. With the modification in the judgment and order dated 16.01.2001 passed by the trial court to the extent mentioned hereinabove, revision petition stands disposed off.
(NARENDRA KUMAR JAIN),J.
Manoj.