1 AFR RESERVED [CASE NUMBER] [ENTITY] vs. State of U.P. Hon'ble [ENTITY], J.
(1) [ENTITY] the accused/revisionist, preferred this revision against the judgement and order dated 14.06.1983 passed by Sri [ENTITY] HJS 7th Additional Sessions Judge, Badaun in [CASE NUMBER] ([ENTITY] vs. State) whereby the learned Lower Court dismissed the appeal and upheld the order dated 06.10.1982 passed by learned Judicial Magistrate 2nd, Badaun in [CASE NUMBER] (State vs. [ENTITY] and Others) in which the accused/revisionist was convicted and sentenced to undergo RI for one year for the offence u/[SECTION] [ACT] and RI for 6 months for the offence u/[SECTION] [ACT] with the direction that both the sentence shall run concurrently. (2) I have heard learned counsel for the revisionist and learned AGA on behalf of the State of U.P. The respondent and perused the record. (3) It is submitted on behalf of the revisionist that no case u/[SECTION] and [SECTION] [ACT] was made out against the revisionist and the judgement of the courts below are bad in law. There is no independent witness to support the prosecution case. The witnesses produced by the prosecution are related to the complainant. Even independent witness have not supported the prosecution case. They have only stated that they had seen accused persons from behind of them running from the place of occurrence. The injury on the person of the injured persons speak to falsity of the prosecution case as were found merely five superficial injuries on two persons. There were material contradictions too in the statements of the prosecution witnesses and even then the court below placed reliance on such witnesses thereby committing manifest error in passing the impugned order. It is also submitted that this Revision may be allowed thereby setting aside the judgement and orders of both the courts below thereby acquitting the revisionist for the offences and sentences awarded to him. (4) The learned AGA contended that there is no error either on the facts of the case or on any point of law in the impugned orders which have been passed by both the courts below thereby convicting the accused/revisionist and sentencing them for the offence u/[SECTION], [SECTION] [ACT], well proved on record through the reliable prosecution evidence. It is also contended that there is no force in this revision being no error in concurrent findings of both the courts below. (5) In the light of the contentions of both the parties, I have gone through the facts and circumstances on record. Briefly stated, the facts of the case are that in the night of 13/14.07.1980 accused-revisionist [ENTITY] along with his companion [ENTITY] and two other persons is alleged to have committed lurking house tress pass by entering into the house of [ENTITY] who was sleeping along with his brother [ENTITY] in the courtyard. When complainant [ENTITY] and his brother [ENTITY] raised alarm, the accused-revisionist [ENTITY] and his three companions are alleged to have given beating to them with lathis and thereafter they ran away from there. The occurrence was witnessed besides the injurerd also by PW [ENTITY]. [ENTITY] and [ENTITY]. A report of the incident was lodged at Police Station Kotwali by complainant [ENTITY] next morning. In support of the case of prosecution, seven PWs in all were examined in lower court. [ENTITY] complainant PW 1, his injured brother [ENTITY] PW 2, [ENTITY] PW 6, [ENTITY] PW 3, [ENTITY] PW 4 are eye witnesses. Dr. [ENTITY] PW 5 conducted medical examination of [ENTITY] and his brother [ENTITY] on 14.07.1980 and he proved their injury reports Exts. Ka. 3 and Ka. 4. PW 7 [ENTITY] is the investigating officer of the case.
(6) The law pertaining to the powers of this court at the time of hearing the revision is well known as is summarized below: -
The revisionary court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in [SECTION] [ACT] [SECTION] [ACT] confers power on the High Court or Sessions Court as the case may be, for the purpose of satisfying itself 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 of appellate powers. [SECTION] [ACT] conferring power of Appellate court on the Revision court is with the above limited purpose. [SECTION] [ACT] read together do not indicate that the revisionary power of the High Court can be exercised as the consequent appellate power. The revision powers though very wide are purely discretionary, to be fairly exercised according to the exigencies of each case. It is very well settled that it is normally to be exercised only unexceptional case if there is glaring defect in the procedure or there is manifest error of point of law and consequently there has been a flagrant miscarriage of justice. These powers are extraordinary powers which must be exercised with due regard to the circumstances of each particular case. High Court will not interfere on a technical ground, but may only interfere when substantial question arises or when a material error effects the decision. It may interfere when a jurisdiction vested has been exercised in an improper manner or improper ground. Even if the order is wrong or illegal, the High Court will not always interfere when substantial justice has been done or no prejudice has resulted to the accused. The error of law must lead to a failure of justice. In Revisionary matter the High Court does not take a technical view and interfere in every case when an order has been made irregular or improper. The fact that the High Court as an court of appeal might have taken different view is no ground for interference. The revisionary jurisdiction will not be exercised in such a way as a given right of appeal in cases excluded by the [ACT]."
(7) Looking into the law, the facts and circumstances on record, no doubt, the revisional power of the High Court is not restricted to question of law only, but the settled practice is not ordinarily to interfere with a finding of fact. But in suitable cases, it is not only right but it is duty of the court to interfere. Findings of facts or even such concurrent findings may be interfered with where the conscience of the court is satisfied that the conviction is not sustainable and in special or proper cases, the High Court can go into the whole evidence as is the law laid down by Hon'ble Apex Court in the case of [PRECEDENT]. But the High Court cannot embark upon a re-appreciation of evidence as is also the law laid down by Hon'ble Supreme Court in the case of [PRECEDENT]. In the case of [PRECEDENT], the Hon'ble Supreme Court has held in a case of conviction of a Secretary of a Cooperative Society for the offence of criminal breach of trust in respect of three sums of money by disbelieving his story that he had given the sums in question to the Executive Officer for depositing them in District Cooperative Society and they were in fact so deposited, the High Court must be deemed to have misdirected itself in interfering with the concurrent findings of fact and acquitting the accused thereby accepting the version of the Executive Officer that the identical sums credited with the District Cooperative Bank had come from other sources, when the version of the Executive Officer as to sources of receipts was not challenged in his cross examination and no suggestion was made to him. (8) Coming to the facts of this case, I do find no force in this Revision with regard to appreciation of the evidence and the findings of the facts for the occurrence and I am fully agreed with the concurrent findings of both the courts below and therefore I do not find any substance to interfere in this regard, as the learned Sessions Judge rightly held that PW 1 [ENTITY] and PW 2 [ENTITY] are real brothers and since they had been found injured, they cannot be disbelieved being real brothers too. So far as the question of PW 4 [ENTITY] is concerned, he is the uncle of the complainant but since he is the neighbourer of the complainant, his testimony cannot be belied merely on this fact that he is the relative of the complainant and interested in the case of the complainant. PW 6 [ENTITY] has also supported the prosecution case and his testimony cannot be discarded merely on this ground that he had been the neighbourer and of the same religion to whom the complainant belongs and interested in supporting the case of the complainant, while he seems to be a natural witness appearing on the scene of occurrence and witnessing the accused from his back running from the place of occurrence. There is no motive against the witnesses for false implication of the accused. Thus, the arguments advanced on behalf of the accused/revisionist regarding independent witness and the relations of the witnesses have no force.
(9) The argument advanced on behalf of the revisionist in this regard too is not tenable that the witnesses have only stated that they had seen accused persons from the back of the accused because PW 1 and PW 2 are the persons who have not stated that they had witnessed the accused from his back. Rather, they are the injured persons and reliable for this fact that they were beaten by the accused along with his companions. There is no contradiction on which basis the prosecution case should be discarded. Therefore, I do not find any substance on record to interfere with the finding of facts on record and there is no fact on record to lead the conscience of this court to this satisfaction that the conviction is not sustainable so that especially, the findings of the facts should be interfered in this case. (10) So far as the question of conviction of the accused for the offence u/[SECTION] [ACT] is concerned, I am of this view that both the courts below committed error thereby convicting the accused for the offence u/[SECTION] [ACT] because there is no evidence on record for lurking house tresspass or house breaking by the accused. Lurking house tress pass is defined u/[SECTION] [ACT], while house breaking is defined u/[SECTION] [ACT], which are punishable u/[SECTION] [ACT]. In both the aforesaid sections, house tresspass is must, which is defined in [SECTION] [ACT]. For house tresspass, the criminal tresspass is must, which is defined in [SECTION] [ACT] as follows: -
"441. Criminal Tresspass - Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, or having entered into or upon such property, whether before or after the coming into force of the [ACT], with the intention of taking unauthorized possession or making unauthorized use of such property fails to withdraw from such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice, is said to commit criminal tresspass."
(11) Whoever commits criminal tress pass as is defined by entering into or remaining in any building and or vessel used as a human dwelling or any building used as place for worship or as a place for the custody of property, is said to commit house tress pass as is defined in [SECTION] [ACT]. Criminal tress pass is necessary for house tress pass. On the facts of the case, the accused seems to have entered upon the property in possession of the complainant with intent to commit an offence as is evidenced that he committed maar-peet with the complainant and his brother, therefore, he tress passed the house or not is the question of law in this case. It has been the case of the prosecution that the complainant and his brother were sleeping in the courtyard. The occurrence of marpeet is also alleged to have been occurred in the courtyard. Therefore, it is evident that the accused did not enter in the house, i.e. the building, tent or vessel meant of use of the human dwelling. In this case, both the courts below seems to have committed error thereby presuming that the accused entered in the house of the complainant for the purpose of theft which they could not achieve as the complainant and his brother had woke up. Unless any person entered into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place of worship or as a place for the custody of property, the offence of house tress pass may not be deemed to have been committed. Here in this case, no doubt the accused entered in the courtyard after sunset and before sunrise, but for the purpose of lurking house tress pass or house breaking, the house tress pass is must and since the accused had not entered in the building, i.e. the house of the complainant and the occurrence is occurred in the courtyard therefore there is no offence made out against the accused/revisionist punishable u/[SECTION] [ACT]. The entire facts of this case and the circumstances on record merely show a case of criminal tresspass and voluntarily causing hurt to the complainant and his brother by the accused and his companions, therefore, the conviction of the accused is sustainable merely for the offence u/[SECTION] [ACT] and for the offence u/[SECTION] [ACT]. Hence, the conviction and sentence u/[SECTION] [ACT] is liable to be upheld and conviction u/[SECTION] [ACT] is liable to be converted for the offence u/[SECTION] [ACT]. Hence, this revision is liable to be partly allowed.
(12) Therefore, this revision is hereby partly allowed. The conviction and sentence for the offence u/[SECTION] [ACT] passed by both the courts below against accused/revisionist [ENTITY] is hereby converted for the offence u/[SECTION] [ACT] and his sentence is reduced for two months converting the offence u/[SECTION] [ACT] to the offence u/[SECTION] [ACT]. The conviction and sentence against him for the offence u/[SECTION] [ACT] is hereby upheld. Since the accused is in jail, the learned lower court, the Judicial Magistrate concerned is hereby directed to send the conviction warrant of the accused [ENTITY] accordingly. Both the sentences shall run concurrently. The previous jail custody of the accused shall be adjusted in the aforesaid sentence. Office is directed to communicate this order and to send the record of the lower court to the court concerned and immediately for compliance.
Dt: 09.07.2010 Jaideep/-