# Hariraj Revisionist v. State of U.P

- **Citation:** (2020) 6 ILRA 11
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-05
- **Case number:** Criminal Revision No. 2220 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hariraj-revisionist-v-state-of-u-p-45752
- **Pages:** 4

## Headnote

A.G.A.

A.
Facts
said
in-Examination
-in-chief-not
controverted or cross-examined by other sideunrebutted examination in chief be taken in
toto.

Criminal Revision dismissed. (E-9)

Held, The factum of death, owing to above
accident, was said by PW-1 and PW-2, but it
was not crossexamined by learned counsel for
the defence. Hence, it was unrebutted and
uncontroverted sentence of both and the same
is to be taken with intact evidence. On the basis
of those witnesses as well as formal exhibits,
proved by Investigating Officer as well as
informant, the judgment of conviction and
sentence was passed. It was well in accordance
with law and facts on record. There was neither
any illegality or irregularity or any perversity in
the impugned judgment. (Para 6)

List of cases cited:-

## Text

6 All. Hariraj Vs. State of U.P.
11

38. In the cases, where sanction
order has been passed but there exists some
error or irregularity therein, then if such an
objection raised for the first time in appeal
or revision that would not vitiate conviction
of an accused and Court will not interfere
with such conviction and sentence on this
account."

15. In this backdrop, when no
illegality or irregularity could be pointed
out in trial and further that sanction was
granted by Competent Authority, I do not
find that any case has been made out to
show failure of justice so as to warrant
interference in the Revision, only on the
ground of alleged irregularity in the order
of sanction. However, I have also rejected
contention that there was any irregularity in
the order of sanction.

16. No other point has been argued.

17. Revision lacks merit and is
accordingly dismissed.

18. Certify the judgment to the Court
below immediately.
----------
(2020)06ILR A11
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.02.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Revision No. 2220 of 2019

Hariraj ...Revisionist
Versus
State of U.P. ...Respondent

Counsel for the Revisionist:
Sri Sri Sunil Kumar Chaudhary, Sri Avinash
Mani Tripathi

Counsel for the Respondent:
A.G.A.

A.
Facts
said
in-Examination
-in-chief-not
controverted or cross-examined by other sideunrebutted examination in chief be taken in
toto.

Criminal Revision dismissed. (E-9)

Held, The factum of death, owing to above
accident, was said by PW-1 and PW-2, but it
was not crossexamined by learned counsel for
the defence. Hence, it was unrebutted and
uncontroverted sentence of both and the same
is to be taken with intact evidence. On the basis
of those witnesses as well as formal exhibits,
proved by Investigating Officer as well as
informant, the judgment of conviction and
sentence was passed. It was well in accordance
with law and facts on record. There was neither
any illegality or irregularity or any perversity in
the impugned judgment. (Para 6)

List of cases cited:-

1. State of Rajasthan vs Fatehkaran Mehdu, AIR
2017 SC 796

2. Amit Kapoor vs Ramesh Chander & Anr,
(2012) 9 SCC 460

3.Kunwar Singh Vs. State of U.P. 1993 (3) AWC
1305 Alld.

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This revision under Section 397
read with Section 401 of Code of Criminal
Procedure, has been filed by convictrevisionist Hariraj, against State of U.P.,
with a prayer for setting aside impugned
judgment of conviction and sentence made,
therein, by trial Court of Additional Chief
Judicial
Magistrate,
Court
No.
3,
Moradabad, passed in criminal Case No.
2806 of 2014, related with Case Crime No.
202 of 2012, under Sections 279 and 304-A
12 INDIAN LAW REPORTS ALLAHABAD SERIES
I.P.C., P.S. Majhola, District Moradabad,
along with judgment of Appellate Court of
Sessions Judge, Moradabad, passed in
Criminal Appeal No. 76 of 2018 (Hariraj
Vs. State of U.P.).

2. Learned counsel for the revisionist
argued that both the courts below failed to
appreciate facts and law placed before it.
Thereby,
passed
impugned
judgment,
wherein, conviction was awarded and
sentence was passed. It was on the basis of
statements recorded under Section 313 of
Cr.P.C., before trial Court. But, no such
statement was made by revisionist, whereas
it was written under mistaken facts. The
witnesses examined as eye witnesses i.e.
PW-1 and PW-2, were of same department
of Homegaurd, of which deceased was.
They
were
interested
witnesses.
Investigating Officer did investigation
under influence of department concerned.
He did not recorded statements of nearby
persons. The arrest was said to be made
from his home that too, after 21 days of
occurrence.
Whereas,
the
statements
recorded thereafter it, and PW-1 has
specifically said that driver of the truck
concerned ran from spot, after leaving truck
there. It was all a concoction and on the
basis of this, conviction and sentence was
awarded. It was appealed before learned
Sessions Judge, Moradabad, where specific
arguments of these facts were made, but
above Court also failed to appreciate facts
and law and thereby, dismissed the appeal.
Hence, this revision with above prayer.

3. Learned AGA has vehemently
opposed with this contention that trial
Court recorded statements of prosecution
witnesses, wherein, PW-1 and PW-2, were
two eye witnesses of spot. They have
categorically said about the occurrence and
rash and negligent act of revisionist,
whereby, this accident occurred, resulting,
injury to deceased, who subsequently
succumbed to above injuries. The judgment
of conviction and sentences therein, was
not on the mere basis of statement recorded
under Section 313 of Cr.P.C. Rather, it was
upon the appreciation of entire evidence,
laid before trial Court and it was well in
accordance with law and evidence, on
record. Appellate Court has appreciated the
arguments raised by learned counsel for
appellant and has passed impugned order,
whereby,
criminal
appeal
has
been
dismissed. In this revision, the course open
to this revisional Court is limited one. It
can never be second appellate court for
appreciation
of
facts,
which
were
confirmed by two subordinate courts.
Hence, there is no illegality or irregularity
in impugned judgments. This revision be
dismissed.

4. Having heard learned counsels for
both sides and gone through material
placed on record, it is apparent that Section
397 of Code of Criminal Procedure,
provided a limited jurisdiction to Court of
Session Judge as well as High Court, for
summoning and examining any record of
any proceeding pending before inferior
criminal court, situated within its legal
jurisdiction, 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.
Record may be summoned, for perusal of
same i.e. scope of the provision is to set
right of patent defect or an error of
jurisdiction, or law or the perversity, which
crept in the proceeding, under this exercise
of Revisional jurisdiction, as has been
propounded by Apex Court in State Of
Rajasthan vs Fatehkaran Mehdu, AIR
2017 SC 796. It has further been held by
6 All. Hariraj Vs. State of U.P.
13
Apex Court in Amit Kapoor vs Ramesh
Chander & Anr, (2012) 9 SCC 460, that
the revisional court is empowered to call
for and examine the records of any inferior
Court, for the purpose of satisfying itself,
as to the illegality and irregularity of any
proceeding or order, made in a case. Object
of this provision is to set right of patent
defect or error of jurisdiction or of law.
Meaning thereby, under jurisdiction of this
jurisdiction, this Court is not to set as a
second appellate Court for analyzing the
facts involved therein. Rather, jurisdictional
error or legal error or patent error,
regarding jurisdiction or law, which has
resulted perversity, is to be seen and the
same is to set right. Under above pretext of
law, the fact of case in hand is to be
scrutinized.

5. Case Crime No. 202 of 2012, was
got lodged at P.S. Majhola, District
Moradabad, for offences punishable under
Sections 279 and 304-A I.P.C., upon the
report
of
Shahane
Alam,
Company
Commander Homegaurd, on 30.11.2012,
with this contention that Mangu Khan, a
homeguard, was on his way upon a
motorcycle and when he reached in front of
Moradabad Development Authority, a truck
Registration No. UP 21 N/9471, being
driven by, its driver rashly and negligently,
did dash with motorcycle No. UP AC/5083,
of Mangu Khan, resulting grievous hurt to
him. This occurrence was witnessed by
witnesses Sanjeev Kumar Sharma and
Irshad Hussain, Homeguard 4005 and
Homegaurd 0197, respectively, who were
on duty at Moradabad Development
Authority Office. This information was
received by informant, who got this case
lodged. Injured was instantly taken by
those witnesses for treatment at District
Hospital,
Moradabad,
where
he
was
declared dead, i.e. he succumbed to this
injury. Meaning thereby, this report was
against the driver, who was driving above
truck Registration No. UP 21 N/9471.
Investigation proceeded, wherein, truck
was detained. Its technical examination etc.
was got conducted. Autopsy examination of
deceased was conducted. Then after, charge
sheet was filed, wherein, cognizance was
taken. Trial proceeded. Statements of those
three witnesses, two of fact and one of
informant along with Investigating Officer
and constable clerk, who got this case
lodged, were got recorded. After closing
the evidence of prosecution, statement of
accused was recorded for an explanation, if
any, regarding incriminating evidence, led
by prosecution witnesses. There was
admission of this accident that too under
accident. Then after, no evidence in defence
was led and court after hearing both sides,
passed impugned judgment of conviction
and sentence of six months simple
imprisonment under Section 279 I.P.C. and
two years simple imprisonment under
Section 304-A of I.P.C., with a direction of
concurrent running of sentences. This
judgment was challenged before Sessions
Judge, Moradabad, in Criminal Appeal No.
76 of 2018. The contention of appellant
was same, as has been written above in this
revision and learned Appellate Judge, after
hearing both sides, dismissed the above
appeal, holding no illegality in appreciation
of law and evidence, by trial Court and this
revision has been filed. The judgment of
both of the Courts contains this fact that
above truck was detained and against it,
compensation case was filed, wherein,
name of revisionst as driver of that truck,
having above registration number, was
there. It was contested and then after,
compensation was awarded. No point of
time it was raised that present revisionist
was not driver of above truck at above
time, date and place of accident and it was
14 INDIAN LAW REPORTS ALLAHABAD SERIES
determined by Motor Accident Claim
Tribunal, wherein, award of compensation
was there. Meaning thereby, this fact that
appellant-revisionist was or was not driver
of above truck on above date, time and
place was adjudicated priorly.

6. PW-1, in his examination-in-Chief,
has categorically said that he was present,
on that date and time on above spot, when
this accident occurred, wherein, driver of
above truck, registration UP 21 N/9471,
driving the same rashly and negligently, did
dash with the motorcycle of Mangu Khan,
resulting him serverly hurt. He was
instantly taken to district hospital, where he
was declared dead. He died owing to above
injuries. This fact is very well there in
examination-in-Chief. Whereas, no cross
questioning is on this fact that it was not a
death owing to above accident. The same is
the situation with P.W.-2. Investigating
Officer has proved his formal investigation.
But no variance is there in crossexamination. This Court in Kunwar Singh
Vs. State of U.P. 1993 (3) AWC 1305
Alld., has held about the effect of non cross
examination of a witness, regarding the
averment made in Examination-in-Chief
and has held that once the fact has been
said in Examination-in-Chief, but has not
been controverted or cross-examined in
cross-examination by other side, then the
unrebutted Examination-in-Chief, will be
taken in toto. The factum of death, owing to
above accident, was said by PW-1 and PW2, but it was not cross-examined by learned
counsel for the defence. Hence, it was
unrebutted and uncontroverted sentence of
both and the same is to be taken with intact
evidence. On the basis of those witnesses
as well as formal exhibits, proved by
Investigating Officer as well as informant,
the judgment of conviction and sentence
was passed. It was well in accordance with
law and facts on record. There was neither
any illegality or irregularity or any
perversity in the impugned judgment.
Accordingly,
this
revision
merits
its
dismissal.

7. Hence, dismissed as such.

8. Record of trial Court with copy of
judgment be sent back.
----------
(2020)06ILR A14
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.02.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Revision No. 3037 of 2019

Jamshed Khan ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Yogesh Kumar

Counsel for the Opposite Parties:
A.G.A., Sri Samarth Sinha, Sri Vijay Sinha

Criminal
Procedure
Code,
1973Application u/s 319 -Dying declarationaccusation on husband and father-in -law-not
against the prospective accused-statements of
PW-1and PW-3 -is no avail-as they were not
present on the spot-and statement of Pw-2 do
not corroborates with autopsy report-Application
u/s 319 Cr.P.C. rightly rejected.

Criminal Revision dismissed. (E-9)

Held, Evidence is to be appreciated at this
stage because on the basis of evidence,
recorded, before the Trial court, this application
has been moved. Hence, at that juncture,
evidence is to be appreciated by the Trial court
and
learned
Trial
court
has
appreciated
evidence led before it. Neither evidence of
informant nor of his wife, PW-1 and PW-3, was