Decided on March 25,1965

SUKHDEO Appellant
Jagdish Narayan Shukla And Others Respondents

Referred Judgements :-



Gyanendra Kumar, J. - (1.)I have heard Mr. Tewari at length on a half of the complainant. He held placed before me the relent extracts from the evidence as well as the details of the injuries sustained by the five members of the complainant party. He has particularly stressed that Hari Lal accused, who is alleged to have been armed with Pharsa, has been wrongly given the benefit of doubt by the Sessions Judge along with 19 other accused and that the evidence on record fully proves that Hari Lal accused had actively participated in the 'marpit' and had inflicted at least one 'pharsa' injury on P.W. Jageshar. The medical evidence also shows that one of the injuries sustained by Jageshar was caused by a sharp edged weapon like 'Pharsa'.
(2.)IT may be noted that the learned Sessions Judge in appeal, had principally relied upon the evidence of P.W. Ram Lakhan while giving the benefit of doubt to 20 of the accused. In his statement this witness had actually named 11 persons who were active assailants on the complainant party; the others being assigned minor role of either instigating, standing or cutting the crop in the field. In that list of 11 persons P.W. Ram Lakhan did not include Hari Lal accused, although a little later he stated that Hari Lal was armed with a 'pharsa' but even then he did not say that Hari Lal had actually wielded his 'pharsa' on P.W. Jageshar. In this view of the matter it could not be said that the finding of the Sessions Judge was wrong or perverse when he gave the benefit of doubt to Hari Lal as well. It is noteworthy that according to the depositions of P.Ws. Ram Lakhan and others, there were 9 or 10 persons belonging to the accused party who were armed with 'Gandasas'. It may be that the cut injury received by P.Ws. Jageshar was caused by the 'Gandasa' of one of those 9 or 10 persons.
It has to be remembered that in the instant case the State did not file any appeal against the order of acquittal recorded by the Sessions Judge. In Fakir Chand and Ors. v. Komal Prasad and Anr. (1) ( : 1964 Cri.L. J. 74) it has been laid down by the Supreme Court that the power of the High Court -under Section 439 to set aside an order of acquittal at the instance of a private party, can he exercised only in exceptional cases as for example, where the trial court has wrongly shut out the evidence which the prosecution wished to produce, or where the appellate court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appellate court. In the present case, the Sessions Judge had for good reasons relied upon the crucial testimony of P.W. Ram Lakhan in order to decide the question as to which of the accused could be given the benefit of doubt. It is true that some of the other witnesses had actually named Hari Lal as being one of the assailants but the prosecution evidence was not of very high order or wholly reliable, inasmuch as they had accused as many as 31 persons or more of having committed the offence. This was found to be highly exaggerated and wrong by the leaned Session Judge.

(3.)IN the circumstances the revision has no force and is dismissed.

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