Sheetala Prasad & Ors vs Sri Kant & Anr

3. The facts emerging from the record of the case are as under: -

The First Information Report was lodged by Kant Pandey, on the basis of which investigation was conducted. At the conclusion of investigation, the appellants were charge-sheeted in the court of learned Magistrate for commission of offences punishable under Sections 147, 148, 308, 323, 325, 427, 504, 506 read with Section 149 IPC. As offence punishable under Section 308 IPC is exclusively triable by a Court of Sessions, the case was committed to the Court of Sessions, Jaunpur, for trial.

7. The learned Single Judge, who heard the revision application, appreciated the evidence on record and prima facie came to the conclusion that offence punishable under Section 308 read with Section 149 IPC, was made out against the appellants. The learned Single Judge arrived at a firm finding that in view of the injuries sustained by Varun and the first informant, the appellants could not have been convicted under Section 324 IPC with the aid of Section 149 and, therefore, the conviction of the appellants under Section 324 read with Section 149 IPC and direction to release them on probation, were liable to be set aside. In view of these findings, the learned Single Judge, by the impugned judgment, has confirmed the finding recorded by the learned Additional Sessions Judge that the appellants are guilty but thereafter has set aside the acquittal of the appellants under Section 308 IPC as well as their conviction under Section 324 read with Section 149 IPC and also the direction to release 7 them on probation. The learned Judge has further remitted the matter to the Court of learned Additional Sessions Judge, Jaunpur to pass fresh order of conviction and sentence on the appellants, keeping in view the observations made in the body of the judgment. Having regard to the facts of the case, this Court feels that the finding recorded and directions given by the High Court should be reproduced verbatim, which read as under: -

The above finding and directions have given rise to the instant appeal.

10. Applying the above stated principles to the facts of the case on hand, this Court finds that after discussing medical evidence and evidence of injured witness in great detail the High Court has prima facie come to the conclusion that case 10 under Section 308 IPC is made out against the appellants. Such a conclusion could have been recorded only in a properly constituted appeal, filed by the State Government. The High Court has further concluded that no offence punishable under Section 324 IPC is committed by the appellants. This finding could have been recorded only in an appeal filed by the appellants. In the face of prohibition contained in Section 401(3) of the Code of Criminal Procedure, it was all the more incumbent upon the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method. Further, the matter is remitted to the learned Additional Sessions Judge for the purpose of passing fresh order of conviction and imposition of sentence on the appellants in the light of what is observed in the impugned judgment. In the impugned judgment, the High Court has concluded that the appellants are guilty under Section 308 read with Section 149 11 IPC and not under Section 324 read with Section 149 IPC. Therefore, on remand the Trial Court is left with no judicial discretion but to convict the appellants under Section 308 read with Section 149 IPC and impose punishment on them. Normally, when High Court decides to interfere with the judgment of the Trial Court in exercise of revisional jurisdiction, the retrial of the case is ordered based on certain well settled principles. However, after recording guilt of an accused under particular provision of Indian Penal Code, the matter could not have been remitted to the Sessions Court for passing appropriate order of conviction and punishment.

11. On the facts and in the circumstances of the case, this Court is of the view that the High Court has exercised revisional jurisdiction with material illegality and irregularity resulting into miscarriage of justice to the appellants and, therefore, the appeal deserves to be allowed. 12

12. For the reasons stated in the judgment, the appeal succeeds. The judgment dated May 25, 2007, rendered by the learned Single Judge of the High Court of Judicature at Allahabad in Criminal Revision No. 5819 of 2006 remanding the case to the Court of learned Sessions Judge for passing proper order of conviction of the appellants and imposing punishment on them is hereby set aside.

13. The judgment dated September 7, 2006, delivered by the learned Additional Sessions Judge, Jaunpur in Sessions Trial Case No. 271 of 2000 convicting the appellants under Sections 148, 342 read with Section 149 and Section 427 read with Section 149 IPC and directing their release on probation for a period of two years is restored.

December 17, 2009.