High Court of Allahabad

Sahdev Vs. State of U.P. and Ors.

MANU/UP/1191/2018

08.03.2018

Criminal

In a free fight, invocation of right of private defence by one party would be valid where it was not possible to weed out the instigator and the attacker

By means of the present revision, the revisionist has challenged the judgment and order passed by the learned Additional District and Sessions Judge, 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 Indian Penal Code, 1860 (IPC). During the course of trial, learned Trial Court concluded 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.

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.

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 Supreme Court in the case of State of Kerala v. Puttumanaillath Jathavedan has held that "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."

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 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.

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. The revision is dismissed.

Relevant

State of Kerala v. Puttumanaillath Jathavedan reported in MANU/SC/0100/1999
: (1999) 2 SCC 452

Tags : Acquittal Private defence Right

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