1. This revision has been preferred against the Judgment and order dated 14.12.2010 passed by the Additional Sessions Judge, Court no. 4, Agra in Criminal Appeal No. 119 of 2005 dismissing the appeal arising out of order dated 30.8.2005 passed by the Additional Chief Judicial Magistrate, Court No. 46, Agra in Criminal Case No. 1662 of 2005 under Sections 223, 406, 411 I.P.C. Police Station New Agra, District Agra whereby the revisionist has been convicted under Section 223 I.P.C. and sentenced six months imprisonment and fine of Rs.2,000/- with default stipulation.
2. Brief facts of the prosecution case are that on 16.2.2000, 109 accused from District Jail Agra were brought before the Sessions Judge in the civil court. Accused Bihari was also to be produced before the 15th A.D.J.,who was handed over to 2012 C.P. Lal Chandra Gola, Police Line, Agra and he was sent to produce the accused in the concerned court at 12.45 in the day time. As per report no. 6, when the aforesaid constable did not return along with the accused, Constable 834 Radheshyam was sent to the house of the accused and Constable 1009 Ramesh Chand was sent in the civil court premises. But, neither the accused could be traced nor Constable Lal Chandra Gola could be traced. At 18 hours Constable Radheshyam told the complainant that Constable Lal Chandra Gola had taken the accused Bihari to his house at Kamala Nagar, F Block and Bihari took the scooter of Kapil Goyal, who lived in his neighbourhood, on the pretext that he would return it after sometime. The scooter was bearing no number and it was of grey colour. It is alleged that Constable Lal Chandra Gola had knowingly permitted the accused Bihari to flee away as he was having handcuff and rope of the accused. The Investigating Officer, after lodging of the report, started investigation and prepared the site plan. Meanwhile the scooter was recovered. Later on the Investigating officer submitted charge sheet against accused Bihari and Lal Chandra Gola.
3. Charges were framed against the accused who pleaded not guilty and claimed trial.
4. The prosecution examined P.W.1 Om Prakash, P.W.2 Hakim Singh, P.W.3 Krishna Nandan, P.W.4 Kapil Goyal, P.W.5 Radheshyam, P.W.6 R.D. Shukla and P.W. 7 I.O. Hemraj Singh.
5. The accused was examined under the provisions of Section 313 Cr.P.C. who said that he was falsely implicated and he would give defence.
6. The learned Magistrate, after perusal of the evidence on record, found the accused Lal Chandra Gola guilty under Section 223 I.P.C. and sentenced him to six months' rigorous imprisonment and directed him to pay fine of Rs.2,000/- with defaulting clause. Feeling aggrieved, Lal Chandra Gola filed Criminal Appeal No. 119 of 2005, which was dismissed on 14.12.2010 against which the present revision has been preferred.
7. I have heard learned counsel for the revisionist and learned A.G.A.
8. It is settled principle of law that the revisional jurisdiction is not as wide as the appellate jurisdiction and under the revisional jurisdiction, the High Court is required to exercise its powers where there is material irregularity or manifest error of law or procedure, or there is misconception or misreading of evidence or where the court below has failed to exercise jurisdiction vested in it or has exercised the jurisdiction wrongly and perversely or where the facts admitted or proved do not discloses any offence.
As a broad proposition, the interference of revisional court may be justified in cases (i) where the decision is grossly erroneous (ii) where there is no compliance with the provision of law (iii) where the finding of fact affecting the decision is not based on evidence on record (iv) where the material evidence of parties has not been considered (v) where the court below has misread or mis-appreciated the evidence on record (vi) where the judicial discretion has been exercised arbitrarily or perversely.
9. In exercise of revisional jurisdiction the court may not exercise jurisdiction to reassess the evidence and reappraisal of evidence is not permissible within the revisional jurisdiction. Hon'ble the Apex Court in A.I.R. 1999 Supreme Court 981 in the case of State of Kerela Vs. Putthumana Illath Jathavedan Namboodiri has held that "the High Court while hearing revision does not work as an appellate court and will not re-appreciate the evidence, unless some glaring mistake is pointed out to show that injustice has been done".
10. In A.I.R. 2002 Supreme Court 2229 in the case of Jagannath Chaudhary Vs. Ramayan Singh, Hon'ble Apex Court has held that "revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error on point of law resulting in miscarriage of justice". Similarly in A.I.R. 2002 Supreme Court 107 in the case of Munni Devi Vs. State of Rajasthan and others it was held by Hon'ble Apex Court that "while exercising the revisional power the High Court has no authority to re-appreciate the evidence in the manner as the trial court and appellate courts are required to do".
11. In another case A.I.R. 1993 Supreme Court 1126 in the case of State of Karnataka Vs. Appa Balu Ingale and others, it has been held by the Hon'ble Apex Court that " generally speaking, concurrent findings of fact arrived at by two courts below are not to be interfered with by the High Court in absence of any special circumstances or unless there is any perversity."
12. Considering the limited scope of revisional jurisdiction it is apparent that the evidence recorded by trial court and reappreciated by the appellate court is not required to be reappreciated again on the point raised by the learned counsel for the revisionist. The appellate court has given findings after detailed discussions and has found no substance in the arguments of accused-appellant. The findings of facts recorded by two courts below may not be interfered with in this revision.
13. In 2008 (11) SCC 76, Raj Kumar Vs. State of Himanchal Pradesh, wherein the Hon'ble Apex Court has held as under:-
"8.In State of Orissa Vs. Nakula Sahu and others (AIR 1979 SC 663) it was held that the High Court should not have interfered with the concurrent findings recorded by the Trial Court and the Sessions Judge in exercise of revisional jurisdiction when there was no error of fact or law arrived at by the Trial Court or the Sessions Judge. In State of Kerala v. Puttamana Illath Jathavedan Namboodiri (1999 (2) SCC 452) it was held that the revisional jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate Court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
14. Thus, keeping in view the above proposition of law, the lower court record was perused.
15. The counsel for the revisionist argued that the case of the accused was not proved and the return G.D. was not filed, hence, the revisionist was liable to be acquitted. This aspect of the matter has also been dealt with by the appellate court.
16. A perusal of the record shows that the accused constable was arrested on 16.2.2000. From the accused constable, his uniform, name plate on which the name of the accused was written, a leather cap, rope, handcuff no. 89 with key bearing number 237T was recovered. Recovery memo was prepared and this recovery memo bears the signature of the accused revisionist also. Thus, it is clear that the handcuff of the accused Bihari along with rope and key was recovered from the possession of the accused, which goes to prove that under trial Bihari was handed over to the accused Lal Chandra Gora.
17. As far as the evidence of P.W.1 Om Prakash, P.W.2 Hakim Singh and P.W.3 Krishna Nandan are concerned, they have turned hostile to the prosecution case. Evidence of P.W. 4 Kapil Goyal is related to Bihari.
18. As I have said earlier, repraisal of evidence at the revisional stage would not be appropriate but P.W. 5 Constable Radheshyam has specifically stated that the under trial Bihari was handed over to the accused constable and this witness made entry to this effect in the G.D. The accused and under trial did not return till 5 p.m.
19. P.W. 6 Sri R.D. Shukla has stated that he was In-charge of the lock up on 16.2.2000 and under trial was handed over to the accused to be produced before the A.D.J.15th at 12.45 in the day hours and all the under trial came back from the courts except Bihari. He has further proved that uniform, handcuff etc. were recovered from the possession of the accused.
20. P.W.7 Hem Raj has also proved the recovery of uniform, handcuff, keys and rope from the possession of the accused. This witness was cross examined that the uniform was torn at the time of evidence to which this witness had replied that since the uniform was sealed for five years, there was every possibility of stitching being damaged. He has further proved that the under trial was taken by the accused and he had not returned.
21. The accused has filed certain documents in his defence but except public documents the remaining documents have not been proved by the accused .
22. Counsel for the revisionist has vehemently argued that the return G.D. has not been filed and thus it is a good ground to acquit the accused.
23. The prosecution cannot be compelled to file any document or to produce a particular witness unless this Court thinks it fit to do so under Section 311 Cr.P.C. Although this matter has been dealt with by the appellate court but still I think that the return G.D. would only have come into existence when the accused constable Lal Chandra Goral would have brought back the under trial Bihari and had placed him in the hawalat. When the under trial Bihari was not at all brought back and sent back to the hawalat, there was no question of preparing of any return G.D. The copy of the G.D. by which the under trial was handed over to Lal Chandra Gola and Lal Chandra Gola being present on duty on that day have been brought on record by the prosecution. Although the prosecution has to prove its case independently but the accused failed to state as to from where he got the handcuff, rope, keys etc. It is not the case of the accused that he was not on duty on that date. Even in the statement under Section 313 Cr.P.C., the accused has vaguely denied the question put to him.
24. Thus, in view of what has been said and discussed above, I do not think that the Judgment needs any interference and the revision is likely to be dismissed.
25. The Revision is, accordingly, dismissed.
26. Let certified copy of the Judgment be sent forthwith to the learned lower court, who shall ensure that the sentence is complied with.
Order Date :- 10.9.2014 Ram Murti