Abdul Moin ORDER
Abdul Moin, J.
1. Case called out in the revised list.
2. Heard Sri Manoj Kumar Dwivedi, learned counsel for the revisionist and Sri Dharmendra Singh, learned Additional Government Advocate. None responds for the respondents No. 3 to 10. The learned A.G.A. has indicated that no State appeal has been preferred against the judgment dated 30.7.2004. The same is also apparent as per the office report dated 30.5.2015. There are already two stop orders passed by this Court on 10.2.2017 and 12.7.2017. The matter being 14 years old, the Court is proceeding to hear the same on merits keeping in view the law laid down by the Hon'ble Supreme Court in the case of Madan Lal Kapoor v. Rajeev Thapar and others reported in MANU/SC/7884/2007 : 2007(7) SCC 623.
3. By means of the present revision, the revisionist has challenged the judgment and order dated 30th July, 2004 passed by the learned Additional District and Sessions Judge, Fast Track Court No. 2, Sultanpur in Sessions Trial No. 96 of 1995 In re: State v. Ram Adhar and others, whereby the learned Trial Court acquitted the accused/opposite parties No. 3 to 10 for the offences punishable under Sections 147, 148, 149, 302, 307, 323, 504 and 506 of the I.P.C.
4. The case in brief as per the prosecution, is that on 10.6.1993 at about 7.30 P.M. the accused persons namely Ramadhar, Rambahal, Chhotelal, Ramsamujh, Ramkripal, Ramkumar, Matadin and Deviprasad armed with Lathis and Ballams were taking water through a drain by digging it in front of the house of complainant Sahdev son of Birjusaroj. The brothers of the complainant Sahdev namely Birju and Mahadev objected to the same and consequently all the accused persons with common intention started beating with Lathis and Ballams. On hue and cry of the complainant Sahdev, other persons namely Jagmohan, Rampher and Ramkhelawan arrived at the spot and tried to intervene when again the accused persons started to abuse and beat them. It was contended that the accused Deviprasad and Ramkripal were armed with Ballams. Certain other villagers namely Jangali and Ramnihor also arrived at the spot after hearing the cries and witnessed the occurrence and subsequently the accused persons ran away from the place of occurrence. On the basis of a written complaint an F.I.R. was registered on 10.6.1993 at 11.30 P.M. under Sections 147, 148, 149, 323, 324, 504 and 506 of the I.P.C. at Crime No. 213 of 1993, Police Station Chanda, District Sultanpur and on the basis of the medical report Section 307 of the I.P.C. was also added. One of the injured Mahadev died on 17.6.1993 i.e. after 7 days in the hospital and consequently on 19.6.1993 Section 302 of the I.P.C. was also added.
5. The matter was inquired into and after preparation of the site map and recording of statements etc., investigation was completed and a prima facie case having been made out against the accused persons, charge-sheet was filed under Sections 147, 148, 149, 323, 324, 307, 302, 504 and 506 of the I.P.C. whereafter the learned Magistrate took cognizance and the matter was committed to the Court of Sessions for trial.
6. A perusal of the record indicates that the postmortem of the dead body of Mahadev was performed by Dr. Sudhir Pandey on 17.6.1993 at 7.30 P.M. wherein antemortem injuries were found, namely, (a) a lacerated wound on left frontal area of the skill, (b) stitched wound and lacerated wound on preset on the right side of chest, (c) multiple scab abrasion on the left upper dorsal aspect of the upper limbs including forearm and left wrist joint, (d) scabbed abrasion on the left thigh above the left knee and (e) a contusion on the top of the scalp. It is also recorded that apart from the above injuries the bone of left ankle was found fractured and sub-dural haematoma was present all over the brain whereafter the doctor opined that the death was caused due to antemortem head injuries. Similarly the medical examination of the other injured had also taken place including Ramkhelawan who was found having one lacerated wound on the left side of head and of Jagmohan who was found having contusion, contused swelling, abraded contusion etc. Another injured Rampher was found as having abraded contusion, abrasions and contusions and likewise another injured Birju was found having 4 lacerated wounds and one abrasion. Another injured Sahdev was also found having two lacerated wounds and two contusions.
7. In the trial the accused persons in their statements under Section 313 of the Cr.P.C. denied the allegations and stated that they had falsely been implicated. It was also contended during course of trial that on the date of occurrence the accused Ramadhar and his family members had been irrigating their land with the water of their tubewell when the complainant Sahdev and the injured persons stopped the flow of water by filling up the drain and on protest started beating Ramadhar and upon hearing the cries of Ramadhar, Ramsamujh, Ramkumar, Chhotelal and Ramkripal ran to save the accused Ramadhar and during the said course they were also beaten up by the members of prosecuting party. A specific plea of self defence was taken and it was also contended that even the accused persons had received injuries. It was further contended that as Jagmohan was posted as Chowkidar in the police station, therefore, the report of the accused Ramadhar was not received by the police but they were arrested and sent to jail. The jail doctor asked for money from the accused persons and upon their failure to give money, the doctor only examined Ramkumar and Ramsamujh but did not mention the injuries on their persons.
8. During the course of trial, learned Trial Court came to a conclusion that there was a fight between the accused persons and the prosecuting party and that the accused persons had wielded Lathis in the self defence and caused injuries to the members of the prosecuting party and thus the learned Trial Court came to the conclusion that the matter of enquiry was narrowed to the point whether the accused persons had a right of private defence in order to protect themselves.
9. Learned Trial Court, after considering the statements of the prosecution witnesses, considered the defence taken by the accused persons of they having invoked the right to self defence by indicating that the drain for irrigation had been existing since long and that the accused persons were only cleaning the blockage and upon being stopped by the complainant and his relatives and upon being beaten up, they defended themselves and also received injuries which were proved by the medical examination done by the jail doctor and thus as the accused persons had right of interrupted flow of water through the irrigation drainage channel (Nali), as such by stopping the flow of water it was the complainant and others who had indulged in mischief as per the provisions of Section 430 of the I.P.C. and thus the accused had invoked their right of self defence.
10. Here it would be pertinent to indicate the right of private defence as set out in Sections 96 to 106 of the Indian Penal Code. However, so far as the present matter is concerned, Sections 99 and 100 of the I.P.C. would be relevant which are being reproduced below for the sake of convenience:-
"Section 99. Acts against which there is no right of private defence:
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
Extent to which the right may be exercised. - The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1. - A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.
Explanation 2. - A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.
Section 100. When the right of private defence of the body extends to causing death:
The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-
First. - Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly. - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
Thirdly. - An assault with the intention of committing rape;
Fourthly. - An assault with the intention of gratifying unnatural lust;
Fifthly. - An assault with the intention of kidnapping or abducting;
Sixthly. - An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."
11. The Hon'ble Supreme Court in the case of Dwarika Prasad v. State of U.P. reported in MANU/SC/0718/1993 : 1993 Suppl. (3) SCC 141 held as under:-
"The next question is as to whether in the circumstances of the case appellant could have caused the death of Jagdish. While accepting the plea of right of private defence it has been said that if the right is available, while judging the question whether the accused has exceeded such right, should not be weighed in a golden scale."
12. In the present case even if certain disputed facts are omitted, what comes out is that the accused were trying to open an irrigation/drainage channel (Nali) that had allegedly been closed by the complainant and others near the house of the complainant. The injuries caused to the complainant and others including the deceased indicate lacerated wounds which have been indicated to have been caused by Ballam etc. It is not disputed, rather it has come out in the evidence that even the accused had received injuries during the skirmish that had taken place on the said date. It was a free fight in which injuries were bound to occur and accordingly invocation of the right of private defence by one party would be valid where it was not possible to weed out the instigator and the attacker.
13. A very relevant aspect of the matter is that this Court, while sitting in the revisional jurisdiction and exercising the power of revision, should not interfere with the concurrent findings of fact recorded by the Court below unless there is a case of misreading of evidence or of non consideration of material and admissible evidence or of considering of such evidence which is not admissible at all. The Hon'ble Supreme Court in the case of State of Kerala v. Puttumanaillath Jathavedan reported in MANU/SC/0100/1999 : (1999) 2 SCC 452, has held as under:-
"In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the 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 when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
14. Similarly, the Hon'ble Supreme Court in the case of Duli Chand v. Delhi Admn. reported in MANU/SC/0113/1975 : (1975) 4 SCC 649, has held as under:-
"The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned additional Sessions Judge was correct. But even so the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse. "
15. The judgment of the Hon'ble Supreme Court in the case of Duli Chand (Supra) was approved and referred to in a subsequent judgment of the Hon'ble Supreme Court in the case of State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and Others reported in MANU/SC/0674/2004 : (2004) 7 SCC 659, in which the Hon'ble Supreme Court has held as under:-
"The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410 Cr.P.C. Section 401 Cr.P.C. is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 Cr.P.C. conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 Cr.P.C., read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power."
16. The perusal of the grounds taken in the revision by the complainant also do not make out any manifest illegality in the judgment of the learned Court below or in the order of acquittal or any ground which indicates grave miscarriage of justice. It is settled proposition of law, as laid down by the Hon'ble Supreme Court, that the revisional jurisdiction of the High Court, while sitting in appeal over an order of acquittal, should not be exercised lightly or casually unless and until there exists a manifest illegality in the judgment or order of acquittal or there is grave miscarriage of justice. In this regard the judgment of the Hon'ble Supreme Court in the case of Kaptan Singh and others v. State of M.P. and others reported in MANU/SC/0640/1997 : 1997 (6) SCC 185 would be relevant wherein the Hon'ble Supreme Court has held as under:-
"5. From a conspectus of the above decisions it follows that the revisional power of the High Court while sitting in judgment over an order of acquittal should not be exercised unless there exists a manifest illegality in the judgment or order of acquittal or there is grave miscarriage of justice...."
17. As already indicated above, none of the grounds taken in the revision bring out the illegality in the judgment nor any material evidence which may have been ignored by the learned Trial Court while delivering the judgment dated 30.7.2004. The grounds are more of a general nature, rather than pointing out any specific illegality or infirmity in the impugned judgment.
18. Keeping in view the aforesaid facts, circumstances and discussions made above, the revision is dismissed.
19. The lower court record be remitted back along with a copy of this judgment to the learned Trial Court.
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