- (1.) VIJAY Kumar Verma, J. Challenge in this revision is to the judgment and order dated 7-9-2006 passed by Sri Chandra Bhushan Singh, the then Additional Sessions Judge/special Judge (E. C. Act), Jaunpur in S. T. No. 271 of 2000, State v. Sheetla Prasad and Ors. , under Sections 147, 148, 323, 325, 308, 504, 506 I. P. C. , whereby the accused- respondents have been released on probation of good conduct after convicting them under Sections 148, 324/149 and 427/149 of Indian Penal Code (I. P. C. for short ).
(2.) THE facts leading to the filing of this revision in brief are that a case under Sections 147, 148, 149, 307, 308, 325, 323, 504, 506, 427 I. P. C. at crime No. 53-A/99 was registered at P. S. Panwara (Jaunpur) against the accused-respondents Sheetla Prasad, Diwakar Prasad, Janardhan Prasad, Gulab Shankar sons of Chavi Narayan Shukla, Shyam Bihari son of Sheetla Prasad and Rama Shankar son of Chavi Narayan Shukla on the basis of the First Information Report lodged by revisionist-complainant Sri Kant Pandey son of late Sri Ram Manoj Pandey, presently residing at Tikara, District Jaunpur. Shorn of unnecessary details, the allegations made in the F. I. R. , in brief, are that the accused persons forming an unlawful assembly on 16-5-1999 at about 11. 30 a. m. in prosecution of the common object of that assembly caused marpit with Varun and Manoj, both sons of the complainant at the time when they were ploughing their field by tractor. It is also alleged that when the complainant tried to save his sons, he was also beaten by the accused-persons and his licensed gun was broken. After investigation, charge- sheet against all the six accused was submitted and on the case being committed to the Court of Session for trial, charges under Sections 148, 308/149 and 427/149 I. P. C. were framed. Since the accused persons pleaded not guilty, the prosecution in order to prove its case, examined seven witnesses in all. THE accused persons also examined three witnesses in their defence. Both the parties filed a number of documents also. On conclusion of the trial, the learned Trial Judge vide impugned judgment dated 7-9- 2006 accepted the contention of the learned Counsel for the accused that offence under Section 308 I. P. C. is not made out. Consequently, the accused-respondents were convicted under Sections 148, 324/149 and 427/149 I. P. C. , but instead of sending them to jail, they were released on probation of good conduct for a period of two years on their executing a personal bond for Rs. 10,000/- and furnishing two sureties each in the like amount. THE State of U. P. did not prefer any appeal against the impugned judgment, but feeling himself aggrieved, the complainant Sri Kant Pandey has preferred this revision. I have heard Sri Alok Kumar Srivastava, learned Counsel for the revisionist, learned A. G. A. for the State-respondent and Sri T. P. Tiwari, learned Counsel for the respondent No. 6. In spite of the service of notice, neither the accused-respondents No. 2 to 5, nor their Counsel appeared at the time of hearing of revision on 18-5-2007. Firstly, it was contended by learned Counsel for the complainant-revisionist that offence under Section 308 I. P. C. is made out in this case, because there was severe depressed fracture with contusion on a portion of brain in the left parietal bone of the injured Varun, which was likely to cause his death, but the learned Trial Judge with ulterior motive and for extraneous consideration, with a view to grant the benefit of probation of good conduct to the accused-respondents did not convict them under Section 308 I. P. C. and hence the finding recorded by learned Trial Judge in para 32 of the impugned judgment being perverse is liable to be set-aside. In this regard, it was submitted by learned Counsel for the accused- respondent No. 6 that State of U. P. has not preferred any appeal against the implied acquittal of the accused-respondents under Section 308 I. P. C. and hence, their acquittal under Section 308 I. P. C. cannot be converted into conviction by this Court. It was also submitted by learned Counsel for the accused-respondent that offence under Section 308 I. P. C. is not made out and any interference in the finding recorded by learned Trial Judge in para 32 of the impugned judgment will not be justified.
(3.) ALTHOUGH having regard to the grievous head injury of injured Varun, prima facie offence under Section 308 I. P. C. appears to have been made out, because this injury was likely to cause death, as opined by P. W. 5, Dr. B. P. Srivastava also, but without expressing any final opinion, this matter is being left for reconsideration by learned Trial Judge, because for some other reason, the case is being sent back to the trial Court for passing fresh order of conviction and sentence. I find force in the aforesaid submission made by learned Counsel for the accused- respondent No. 6 that implied acquittal of the accused- respondents under Section 308 I. P. C. cannot be converted into conviction by this Court in revisional jurisdiction. In this regard, I may refer sub-section (3) of Section 401 of the Code of Criminal Procedure (Cr. P. C. for short), which lays down that nothing in this Section shall be deemed to authorise the High Court to convert a finding of acquittal into one of conviction. In view of the specific provision contained in Section 401 (3) Cr. P. C. , this Court cannot convert the implied acquittal of the accused- respondents under Section 308 I. P. C. into conviction. On this point, reference may be made to the case of Shingara Singh and Anr. v. State of Haryana, 2004 (3) JIC 310 (SC) : AIR 2004 SC 124, in which the Hon'ble Apex Court has held that Criminal Revision preferred by private party against an order of acquittal cannot result in the conviction of the accused. Next submission made by learned Counsel for the revisionist was that the order of conviction of the accused-respondents under Section 324/149 I. P. C. is wholly illegal, because no injury attracting Section 324 I. P. C. was caused to any injured. This submission made by Shri A. K. Srivastava, learned Counsel for the revisionist has got force. According to the C. T. Scan report (Ext. Ka-11) of injured Varun, severe depressed fracture in his left parietal bone and as per X-ray report (Ext. Ka-14) of injured Sri Kant Pandey, fracture in lower end of Radius and Ulna were found. The revisionist-complainant Sri Kant Pandey and his son Varun Kumar were medically examined on 16-5-1999 in SRN Hospital, Allahabad by Dr. B. P. Srivastava vide injury reports Ext. Ka-12 and Ext. Ka-13. No injury of the nature described in Section 324 I. P. C. was found on their person and all the injuries noted in above mentioned injury reports are likely to be caused by some hard and blunt object. According to the statements of these injured witnesses, their injuries were caused by lathies. Therefore, the accused-respondents could not be convicted under Section 324/149 I. P. C. , but it is very surprising that the learned Trial Judge has convicted the accused-respondents under Section 324/149 I. P. C. also. This indicate non-application of mind and carelessness on the part of learned Trial Judge, which is really very unfortunate. Since the conviction of the accused-respondents under Section 324/149 I. P. C. is wholly illegal, hence their conviction under this Section has to be set aside.;