ORDER U.S. Tripathi, J.
1. This revision has been directed against the judgment and order dated 12-4-1984 passed by 4th Additional District and Sessions Judge, Basti in Criminal Revision No.298 of 1981 allowing the revision filed by the opposite party No. 1. setting aside the judgment and order of acquittal dated 14-10-1981 passed by Judicial Magistrate and pending back the case to the learned Magistrate for retrial of the applicants after framing proper charge.
2. The opposite party No.1 Imam Ali lodged a report on 7-3-1974 at 5.45 P.M. at P.S. Rudhauli, district Basti with the allegations that wife of applicant Asgar Ali was carrying illicit pregnancy and the above pregnancy was being attributed to him. In order to prove his innocence he had collected a Panchayat on 7-3-1974 at 2.00 P.M. at village Painda. Persons of the village had assembled. The applicant Yasin father of Asgar Ali was also informed about the said Panchayat. After some time Yasin came to the place of panchayat and told that he would collect panches of his own choice and would be coming after some time. After some time Yasin came there along with other applicants who were armed with Lathis and Pharsa. The applicants started causing injuries to Safi Mohammad, Mohammad Ali, Siddiq and Tahedil. Mustafa and Imam All sustained grievous injuries and the other injured sustained simple injuries.
3. On the above report of the opposite party No. 1 chik F.I.R. was prepared at the police station. Injured persons were medically examined on the same night between 10.30 P.M. and 11.10 P.M. X-ray examination of Imal Ali was also done on 10-3-1974. After investigation the police submitted charge sheet against the applicants under Section 147, 148, 149, 323, 324 and 325 I.P.C.
4. During trial the applicants were charged with the offences punishable under Section 147, 323/149 and 325/149 I.P.C. They pleaded not guilty and contended that on the date of occurrence they were preparing public Rasta in the village. Annoyed with it Imam Ali along with 17 other persons armed with Lathis, Danda came there and caused injuries to applicants Siraj Lal Ram Ratan Sohbat Ali, Yunus and Hafeezullah. A cross report was lodged, on the basis of which a cross case under Section 147, 323/149 and 325/149 I.P.C. was also initiated.
5. In order to prove its case the prosecution examined Mohd. Ali (P.W.I), Siddiq (P.W.2), Imam Ali (P.W.3), Hari Ram (P.W.4), Munsey (P.W.5), Dr. U.R. Gupta (P.W.6), Tahedil (P.W.7, - S.I. Laxmi Shankar (P.W.8), S.I. Ishwar Dayal Ram (P.W.9) and Dr.R.U. Pandey (P.W.10).
6. The Learned Magistrate on considering the evidence of the prosecution held that the accused side sustained as many as 29 injuries which have been proved by Dr. K.K. Kaul (D.W.I), but the prosecution had not explained above injuries of the accused side which shows that the prosecution has suppressed the origin and genesis of the marpeet and its version appeared doubtful. He further held that the prosecution witnesses were interested and partisan and no independent witness was examined. That the I.O. had found earth lying on the Rasta which supported the version of the accused. That prosecution witnesses shifted the place of occurrence and the time of occurrence. With these findings he acquitted the applicants vide order dated 14-10-1981.
7. Aggrieved with above 2 order of acquittal of the applicants, Imam Ali opposite party No. 1 filed Criminal Revision No. 298 of 1981 before the Sessions Judge, Basti. The learned 4th Additional Sessions Judge, who heard the above revision came to conclusion that there was allegation that Pharsa was used, but no charge was framed under Section 324 read with Section 149 I.P.C. That injuries of Mohd. Yunus and Hafeezullah were examined by Dr. S.C. Chaturvedi, but he was not examined and above injury report were wrongly exhibited hence the same should not have been considered by the learned Magistrate. Again he held that Dr. R.U. Pandey (P.W.10) appeared before the Court and proved X-ray report of Imam Ali, but in his judgment the learned Magistrate had not recited the name of Dr. R.U. Pandey (P.W. 10). It showed that the evidence of Dr. Pandey escaped from the notice of the learned Magistrate at the time of judgment and it amounted to grave illegality. On the above grounds the learned Additonal Sessions Judge allowed the revision, set aside the order of acquittal and remanded the case for retrial after framing proper charge.
8. The above order of the Sessions Judge has been challenged in this revision.
9. Heard Sri V.P. Mathur, learned counsel for the applicants and learned A.G.A.
10. It may be noted at the very outset that during pendency of the revision the applicant No.9 Shyam Ram and applicant No. 13 Navrang died as per report on the notice issued to them.
11. It is settled law that the Revisional jurisdiction, when invoked against the order of acquittal can be exercised only in exceptional cases where the interest of public justice require interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The revisional jurisdiction cannot be invoked merely because the lower Court has not appreciated the evidence properly (vide Pakalapati Narayana Gajapathi Raju and Ors. v. Bonapalli Peda Appadu and Anr. AIR 1975, Supreme Court, 1854.)
12. Perusal of the order of the Magistrate show that it had taken into consideration the evidence of the prosecution witnesses and after discussing the evidence held that the accused side also sustained injuries which were 29 in number and admittedly there was a cross case. But the prosecution had not explained injuries of the accused side. It also found that the injuries of the accused side were neither superficial nor self suffered or manufactured. It is settled law that if the accused side sustained visible injuries in the same transaction it becomes the duty of the prosecution to explain the above injuries and if prosecution fails to explain the injuries of the accused side it shall be inferred that the prosecution had suppressed the origin and genesis of Marpeet had not come to the Court with clean hand and the defence case may be more probable. The Trial Court also found that the defence version also gets support from the evidence of the I.O. who found earth collected on the Rasta. It also found that none of the independent witness were examined and the witnesses examined were interested and partisan. It also found that according to evidence of Musey (P.W.5) Panchayat was convened at 8.00 A.M. in the morning while the prosecution case was that the Panchayat was convened at 2.00 P.M. In this way the learned Magistrate has recorded tinding of fact based on evidence on record and assuming that some other view was possible on above evidence, it was beyond the scope of Revisional Court to take another view.
13. The learned Additional Sessions Judge has found following infirmities in the Judgment of the Trial Court which according to him amount to grave illegality:-
1. Despite of allegation regarding use of Pharsa no charge under Section 324/149 I.P.C., was framed.
2. Dr. S.C. Chaturvedi who examined the injuries of Yunus and Hafeezullah was not examined and injury report was wrongly exhibited.
3. That there was no mention of name of Dr. R.U. Pandey (P.W.10) in the judgment and his evidence escaped notice of the Magistrate.
As mentioned above the learned Magistrate found that prosecution witnesses were not reliable and prosecution had suppressed the origin and genesis of Marpeet. The evidence on record supported the defence version that occurrence took place on the Rasta. If the witnesses were disbelieved on above glaring discrepancies, the absence of charge under Section 324 read with Section 149 was not material. The wrong exhibition of injury report of Yunus and Hafeezullah and non discussion of evidence Dr. R.U. Pandey were also not material and it cannot be said that on account of it there was manifest error or gross miscarriage of justice. It appears that the learned Sessions Judge shorted out some ground to justify the order of remand. Thus, it is clear that learned Additional Sessions Judge acted beyond the scope of revisional jurisdiction and wrongly set aside the order of acquittal which was based on the evidence on record and there was no illegality or irregularity in the order of Trial Court. The revision, thus, succeeds.
14. The revision, is accordingly, allowed and the order under revision is quashed.