sangeeta kumari v state of jharkhand.pdf

MANU/JH/1131/2003

Equivalent Citation: 2004CriLJ1734

IN THE HIGH COURT OF JHARKHAND

Cr. Revision No. 147 of 2001

Decided On: 08.07.2003

Appellants: Sangeeta Kumari Vs.

Respondent: State of Jharkhand and Anr.

Hon'ble Judges/Coram: Hari Shankar Prasad, J.

Counsels: For Appellant/Petitioner/Plaintiff: B.M. Lal, Adv.

For Respondents/Defendant: P. Mahapatra, Adv.

Subject: Criminal

Subject: Law of Evidence

Acts/Rules/Orders: Indian Penal Code 1860, (IPC) - Section 307, Indian Penal Code 1860, (IPC) - Section 320, Indian Penal Code 1860, (IPC) - Section 324, Indian Penal Code 1860, (IPC) - Section 326; Code of Criminal Procedure, 1974 (CrPC) - Section 401

Disposition: Application allowed

Case Note: Criminal - Acquittal - Sections 307, 324 326 of Indian Penal Code, 1860 (IPC) -Application against judgment passed by Session Judge whereby Sessions Judge acquitted Opposite Party No. 2 and convicted Opposite Party No. 2 under Section 324 of IPC - Whether there was material on record warranting conviction under Sections 307 or 326 of IPC - Whether in facts and circumstances of case, injury, which had been found to be simple in nature would be in fact grievous - Whether High Court had jurisdiction to interfere in a revision against acquittal - Held, High Court normally should not interfere in revision against acquittal unless there is perversity, illegality and miscarriage of justice - Only in exceptional circumstances High Court could interfere in revision against acquittal by re-appraising evidence on record - No case was made out under Section 307 IPC and acquittal under Section 307 was justified -Even though doctor had come to a finding that injuries were simple but in fact as per provision as laid down in Section 320 IPC this injury would be grievous in nature -Court below committed an illegality in interpreting nature of injury - Exceptional case where High Court should interfere because there would be miscarriage of justice if it was not held that case was made out under Section 326 IPC - Ground No. 6 of Section 320 IPC provided that permanent disfiguration of head or face would be treated as grievous injury - Acquittal of Opposite Party No. 2 under Section 326 IPC by Court below was not correct - Impugned judgment so far as it related to acquittal under Section 326 IPC, was set aside - Case under Section 326 IPC against opposite party No. 2 accused was made out - Application allowed

2015-04-13 (Page 1 of 5 ) www.manupatra.com Indian Institute of Technology Kharagpur

JUDGMENT

Hari Shankar Prasad, J.

1. The revision application is directed against the judgment dated 27-11-2000 passed in Session Trial No. 102/98, whereby learned 2nd Additional Sessions Judge, Dhanbad acquitted Opposite Party No. 2 under Sections 307 and 326 of the Indian Penal Code (hereinafter referred to as "the Code") and convicted the Opposite Party No. 2 under Section 324 of the Code.

2. Prosecution case in short is that the petitioner as informant gave her Fardbayen on 11-11-97 in Central Hospital, Saraidhela in an injured condition to the fact that at about 9.30 a.m. this petitioner informant was standing near the bus stand and at that time Opposite Party No. 2 accused came there by a scooter and after parking the same he took out a small box from the dickey of the scooter and poured the same on her head and face, as a result of which her face and eyes started burning and she started crying and fell down and opposite party accused uttered that since you did not obey my order. I am, therefore, burning you." On the basis of the said fardbayen the police registered a case under Sections 324, 326 and 307 of the Code. After investigation I.O. submitted chargesheet under Sections 324, 326 and 307 of the Code. Charges under the aforesaid sections were framed against the opposite party No. 2 accused. Trial proceeded and in course of trial witnesses were examined and after considering oral and documentary evidence of the parties learned 2nd Additional Sessions Judge acquitted the opposite parry No. 2 accused under Sections 307 and 326 of the Code and considered him under Section 324 of the Code and sentenced him to undergo RI for three years. At the trial stage opposite party No. 2 accused had taken a plea of false implication by the petitioner informant. The opposite party No. 2 accused has appeared in this case.

3. The learned counsel appearing for the petitioner-informant assailed the judgment on the ground that the learned Court below ought to have appreciated the materials on record and should have convicted the accused O.P. No. 2 under Sections 326 and 307 of the Code. The learned counsel further pointed out that the material witnesses have supported the case and acquittal of the accused under Sections 326 and 307 of the Code on the ground that police did not produce the seized articles. The learned counsel further pointed out that application of Section 6 of the Indian Evidence Act was there but learned Court below overlooked this provision under Section 6 of the Indian Evidence Act and came to an erroneous finding. The learned counsel further assailed the judgment on the ground that Section 320 of the Code has not been taken into consideration.

4. In this case prosecution has examined altogether 18 witnesses and out of 18 witnesses two witnesses namely PW 1 Sarita Kumari and PW 2 Sakrani Devi have been declared hostile. PW 5 Ramesh Chauhan has also been declared hostile. PW 9 Jagarnath Singh has also been declared hostile and rest of the witnesses have supported the case. The learned Court below on the basis of evidence available on record though acquitted the opposite party No. 2 accused under Sections 307 and 326 of the Code but found him guilty under Section 324 of the Code sentenced him to undergo R. I. for three years and during course of hearing of the revision application it was brought to the notice of the Court that convict, who is opposite party No. 2 in this revision application did not prefer appeal against the judgment and order of sentence, so it will not be proper to discuss the evidence led by the prosecution because convict opposite party No. 2 by not filing any appeal against the judgment and order of the sentence accepted the evidence and sentence and also accepted the fact that he was guilty under Section 324 of the Code.

5. This revision application has been filed on behalf of the petitioner informant for a finding by this Court that acquittal of opposite party No. 2 under Sections 326 and 307 of the Code is bad and malafide and he should be held guilty under aforesaid section i.e. under Sections 307 and 326 of the Code.

6. Now the main point for consideration of this revision application is whether there is material on record warranting conviction under Sections 307 or 326 of the Code or not and whether in the facts and circumstances of the case, injury, which has been found to be simple in nature will


be in fact grievous or not. Connected with this fact is whether High Court has jurisdiction to interfere in a revision against acquittal.

7. Learned counsel appearing for the petitioner submitted that High Court has got jurisdiction to interfere in a case of revision against acquittal if High Court finds that there is perversity, illegality and miscarriage of justice. Learned counsel in this connection placed reliance upon a number of case laws and submitted that in all these cases it has been held that normally High Court should not interfere in revision against acquittal as the jurisdiction of the High Court in revision against acquittal is very restricted but at the same time it has been held that in a case perversity, illegality and miscarriage of justice is found', then in that case, High Court will be justified in interfering in revision against acquittal and may order for re-trial or pass any order as it deems fit.

8. In MANU/SC/0133/1962 it has been held that in exceptional circumstances power of interference in revision against acquittal can be exercised even at the instance of a private party. In MANU/SC/0116/1981, it has been held that High Court would be justified in setting aside acquittal by reappraising the evidence. Besides other case laws have been cited such as MANU/SC/1217/1998 and in all such cases it has been held that powers of the High Court for interference in revision against acquittal are very limited and only in exceptional circumstances the High Court can interfere in revision against acquittal by re-appraising the evidence on record.

9. Learned counsel on the basis of proposition of law decided by the Hon'ble Apex Court submitted that Section 320 IPC is clear that offences of throwing acid on the face or head of the petitioner will come under Section 326 IPC and whether doctor says the injuries are simple or grievous is immaterial because in view of Section 320 IPC according to 6th ground, the offences of throwing acid on the face or head will amount to permanent disfiguration of the head or face and these injuries are grievous in nature and when a point of law is there, according to which injury is to be treated as simple or grievous, then whether doctor says so or not it will not be accepted and point of law will prevail as mentioned in Section 320 IPC.

10. On the other hand, learned counsel appearing for the opposite party No. 2 submitted that High Court has got no jurisdiction to interfere in revision against acquittal by re-appraising the evidence on record and there are a number of decisions which restricted the jurisdiction of the High Court in such matters in this connection he placed reliance upon MANU/SC/0076/1973 and 2003 East Cr Cases (Feb. Part) 2001 (sic).

11. In MANU/SC/0113/1975 which is also a Division Bench decision it has been held that High Courts power in revision is severely restricted and it cannot embark upon re-appreciation of evidence but this is a decision of the Apex Court in appeal preferred against the order of the High Court.

12. Learned counsel further pointed out that in revision against acquittal by a private party the High Court, cannot re-appraise the evidence for itself as it is for the Court of Appeal MANU/SC/0076/1973. Same view has been expressed in MANU/SC/1217/1998 and MANU/SC/0133/1962 in which it has been held that a private party has no right to file a case instituted upon a police report.

13. Learned counsel further pointed out that no case is made out under Sections 326 and 307 IPC and learned Court below has rightly acquitted the opposite party No. 2 accused of that case under the sections. As materials were sufficient for conviction of the opposite party No. 2 accused under Section 324 IPC he was rightly convicted. The learned counsel further pointed out that the doctor in cross-examination stated that injuries, were simple in nature and no offence under Section 326 IPC will be made out. He also submitted that this revision application against acquittal is also not maintainable on another ground that it has been filed by the informant, which will not be maintainable because case has been instituted upon a police report and the judgment of the learned Court below requires no interference in the matter.


14. On a consideration of submissions of both sides, the position that emerges is that the High Court normally should not interfere in revision against acquittal unless there is perversity, illegality and miscarriage of justice. Here in the instant case the admitted case of the parties is that the opposite party No. 2 - accused threw acid on the petitioner on her face and head resulting in injuries to the petitioner informant. She lodged a case and after trial the opposite party No. 2 accused was convicted under Section 324 IPC but he was acquitted under Sections 326 and 307 IPC.

15. From the facts and materials on record, it is evident that no case is made out under Section 307 IPC and acquittal under Section 307 is justified, although opposite party No. 2 accused is said to have stated at the time of throwing acid that he will burn the petitioner. However, the evidence, which has come on the record, does not suggest that a case under Section 307 IPC is made out.

16. On the other hand the doctor (PW 18) who examined the victim girl petitioner informant Stated in his examination in chief that technically injuries are grievous in nature but in cross-examination at paragraph 9 he has stated that he is not confirmed whether injuries are simple or grievous. It appears that the witness who is a doctor failed to come to a correct conclusion because in any view of the matter purpose of throwing acid on the body, hair etc, of a person is not hidden from any such person like a doctor and he could not very well think of the purpose of throwing acid on the face or head particularly of a girl because there can be no other purpose than to permanently disfigure head or face so that she may not be in a position to show her face in the society or if she shows that face in the society she may look ugly. It is a different matter altogether that in the present day by getting plastic surgery done, some of the bad effects of acid or like that are removed but that is a different matter. Point No. 6 of Section 320 IPC clearly lays down that injuries caused by way of permanent disfiguration of head or face will be grievous in nature and even though doctor (PW 18) has come to a finding that injuries are simple but in fact as per provision as laid down in Section 320 IPC this injury will definitely be grievous in nature and the learned Court below has come to a wrong conclusion and acquitted the opposite party No. 2 accused of the offences under Section 326 IPC on the wrong finding of the doctor, who overlooked the provision of Section 320 IPC regarding circumstances under which injury can be re-designated as grievous and the learned Court below committed an illegality in interpreting the nature of injury and this is an exceptional case where in my opinion High Court should interfere because there will be miscarriage of justice if it is not held that case is made out under Section 326 IPC. Section 320 IPC is quoted hereinbelow :--

"320 Grievous hurt -- The following kinds of hurt only are designated as "grievous" :

Firstly Emasculation

Secondly Permanent privation of the sight of either eye

Thirdly Permanent privation of the hearing of either ear

Fourthly Privation of any member or joint Fifthly Destruction of permanent impairing of the powers of any members of Joint

Sixthly Permanent disfiguration of the head or face.

Seventhly Fracture or dislocation of a bone or tooth

Eighthly Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pair or unable to follow his ordinary pursuits".

17. Ground No. 6 of Section 320 IPC clearly says that permanent disfiguration of the head or face will be treated as grievous injury.


18. From the discussions made above, it is clear that acquittal of the opposite party No. 2 accused under Section 326 IPC by the learned Court below is not correct and in that view of the matter the impugned judgment dated 27-11-2000, so far as it relates to acquittal under Section 326 IPC, is hereby set aside and it is held that case under Section 326 IPC against opposite party No. 2 accused is also made out and he is held guilty under the aforesaid section and sentenced to undergo RI for 5 years and to pay a fine of Rs. 25,000/- and this sentence will run concurrently with the sentence under Section 324 IPC under which he was sentenced to undergo RI for 3 years and in case of failure to pay the fine of Rs. 25,000/- he will further undergo simple imprisonment for one year. Since he has already undergone imprisonment for three years under Section 324 IPC the sentence under Section 326 IPC will run concurrently with the sentence under Section 324 IPC. In a similar nature of case when the life of a young girl was relined by throwing acid on her face the accused of that case was held guilty under Sections 324 and 326 IPC but Hon'ble Apex Court reduced the sentence passed under Sections 324 and 326 IPC for two years and five years respectively to the period already undergone by the appellant as he had by then undergone imprisonment for 14 months on the ground that appellant was a student but at the same time enhanced the sentence of fine from Rs. 2000/- to Rs. 7,500/- but in the instant case the opposite party No. 2 accused is not a student and, therefore, in any view 5 years of rigorous imprisonment under Section 326 IPC will suffice the purpose and fine of Rs. 25,000 if deposited by the opposite party No. 2 will be paid to the petitioner as compensation under Section 357, Cr.P.C.

19. With the aforesaid observation and direction, this revision application is allowed.

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sangeeta kumari v state of jharkhand.pdf

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