KANT Vs. STATE OF U P

JUDGEMENT

(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.

(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.