# Surendre Kumar Chaturvedi Revisionist v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 25
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-30
- **Case number:** Criminal Revision No. 359 of 2008
- **Bench:** Mohd. Aslam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendre-kumar-chaturvedi-revisionist-v-state-of-u-p-ors-49139
- **Pages:** 11

## Headnote

A. Criminal Law - Criminal Procedure
Code, 1973-Section 397/401 - Indian
Penal Code, 1860 - Sections 147, 148, &
302/149-Challenge to-acquittal- delay in
FIR-PW-1/ informant has only named four
accused and two unknown persons while
the two unknown persons were known to
the informant-PW-2 stated that her house
is away from the place of occurrence and
she is more than 100 years old lady she
hardly move 2 -3 steps and her house is
not shown in the site plan-Both PW-1 and
PW-2 has not witnessed the incident, their
presence on the place of occurrence is
doubtful-Hence, no conviction can be
recorded on the basis of ocular testimonyIn the present case revision preferred
against the acquittal-revision court cannot
convert acquittal to conviction in view of
Section 401(3) Cr.P.C.-The judgment of
the
court
below
is
based
on
right
appreciation of evidence.(Para 1 to 27)

B. It is settled principles of law that if two
views of possible, one favoring to the
prosecution and other favoring to the
accused, the view favoring to the accused
should
be
adopted.
The
paramount
consideration of the court is to ensure that
miscarriage of justice is prevented. A
miscarriage of justice which may arise from
acquittal of the guilty is no less than from
the conviction of an innocent. (Para 19,20)

The revision is dismissed. (E-6)
List of Cases cited:

## Text

1 All. Surendre Kumar Chaturvedi Vs. State of U.P. & Ors.
25
circumstances during said two consecutive
years.

6. In the counter affidavit filed on
behalf of the State the averments made in
the writ petition have not been denied. In
para 7 of the counter affidavit it is stated
that since the petitioner is a criminal
minded man, he may again indulge in
criminal activity, therefore, history-sheet
has not been reviewed. Relevant part of
para 7 of the counter affidavit is extracted
below:

" .......... It is further submitted
that the petitioner is man of criminal mind
and he may again indulge in criminal
activities. All the averments to the contrary
made in paragraphs under reply are wrong
and denied. Photocopies of the D. C. R. C.
and C. C. T. N. S. reports of the petitioner
is being filed herewith and marked as
Annexure No. CA 1 to this affidavit."

7. Further the case of the petitioner is
that the record relating to the petitioner for
review of the continuance of the historysheet was not placed before the competent
authority.

8. In view of the decisions rendered
by the Division Bench of this Court in
Sanjay Karnwal Vs. State of U.P. and
others, [2010 (70) ACC 507] and Guru Bux
Singh Bakshi Vs. State of Uttar Pradesh,
LAWS(ALL) 1994 1 85, we hold that
continuing
the
history-sheet
of
the
petitioner of Class-A in view of Regulation
231 of the Police Regulations, has not been
justified by the State as the petitioner
thereafter has not indulged in any repetitive
criminal activity. No other case has been
lodged or reported against the petitioner
after 2007.

9. The approach in not reviewing the
history-sheet of the petitioner by stating
that petitioner is 'of criminal mind' clearly
shows the highhandedness of the State
respondents. They have given go by to the
statutory Regulations.

10. Having regard to the facts and
circumstances of the case, the writ petition
is allowed and history-sheet No. 31A, dated
20.8.2007
opened
at
Police
StationModinagar, district-Ghaziabad is quashed.

11. The approach of the State has
been casual. Further, there is dereliction of
the duty on the part of the Superintendent
of Police, Ghaizabad, for not reviewing the
history-sheet even when no criminal case is
pending against the petitioner since the
year, 2007 and not following the mandate
of the U. P. Police Regulations. Second
respondent is saddled with a cost at Rs.
20,000/- to be deposited with the High
Court
Legal
Services
Committee,
Allahabad, within eight weeks from the
date of order.

12. Learned A. G. A. to communicate
the order and ensure compliance.
----------
(2023) 1 ILRA 25
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.11.2022

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Criminal Revision No. 359 of 2008

Surendre Kumar Chaturvedi ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
26 INDIAN LAW REPORTS ALLAHABAD SERIES
Ram Kushal Tiwari, Indra Mani Pande,
Ravindra Shukla

Counsel for the Opposite Parties:
G.A., A.P. Mishra

A. Criminal Law - Criminal Procedure
Code, 1973-Section 397/401 - Indian
Penal Code, 1860 - Sections 147, 148, &
302/149-Challenge to-acquittal- delay in
FIR-PW-1/ informant has only named four
accused and two unknown persons while
the two unknown persons were known to
the informant-PW-2 stated that her house
is away from the place of occurrence and
she is more than 100 years old lady she
hardly move 2 -3 steps and her house is
not shown in the site plan-Both PW-1 and
PW-2 has not witnessed the incident, their
presence on the place of occurrence is
doubtful-Hence, no conviction can be
recorded on the basis of ocular testimonyIn the present case revision preferred
against the acquittal-revision court cannot
convert acquittal to conviction in view of
Section 401(3) Cr.P.C.-The judgment of
the
court
below
is
based
on
right
appreciation of evidence.(Para 1 to 27)

B. It is settled principles of law that if two
views of possible, one favoring to the
prosecution and other favoring to the
accused, the view favoring to the accused
should
be
adopted.
The
paramount
consideration of the court is to ensure that
miscarriage of justice is prevented. A
miscarriage of justice which may arise from
acquittal of the guilty is no less than from
the conviction of an innocent. (Para 19,20)

The revision is dismissed. (E-6)
List of Cases cited:

1. Shyam Deo Pandey Vs St. of Bih. (1971) AIR
SC 1606

2. Mool Chand Vs Jagdish Singh & ors. (1993)
Supp(2) SCC 714

(Delivered by Hon'ble Mohd. Aslam, J.)

1. Heard Sri Sanjay Srivastava,
learned A.G.A. for the State-opposite party
no.1, Sri A.P. Misra, learned counsel for the
accused-opposite party nos.2 to 6 and
perused the record. None present for the
informant-revisionist.

2. The instant revision has been
preferred by informant-revisionist Surendra
Kumar Chaturvedi under Section 397 read
with Section 401 Cr.P.C. against the
impugned judgement and order dated
26.5.2008 passed by learned Sessions
Judge, Sultanpur in Sessions Trial No.218
off 1996 (State Vs. Triveni Singh and
others), arising out of Crime No.63 of
1994, under Sections 147, 148, 302/149
I.P.C., P.S. Jamo, District Sultanpur, by
which the accused-opposite party nos.3 to 6
were acquitted from the charges of offence
punishable under Sections 147, 302/149
I.P.C. as well as accused-opposite party
no.2 was acquitted from the charges of
offence punishable under Sections 148,
302/149 I.P.C.

3. The brief facts necessary for disposal
of this revision is that the informantrevisionist Surendra Kumar Chaturvedi son
of Prayag Prasad, resident of village Pure
Ganesh Chaube lodged a first information
report at Police Station Jamo, District
Sultanpur on 18.8.1994 at 14:30 p.m. on the
basis
of
application
addressed
to
Superintendent of Police, Sultanpur dated
18.3.1994, which is Ex.Ka-1 alleging therein
that his brother Shashi Bhal Chaturvedi
(deceased) and Vidya Shankar Shukl (not
examined) had gone to see his maternal
grandmother on 17.3.1994 at around 07:00
p.m. They were coming back to their home
from there in the night at about 10:00 p.m.
and on the way at about 20 paces from the
house of his maternal grandmother, the
accused Triveni Singh armed with lathi and
1 All. Surendre Kumar Chaturvedi Vs. State of U.P. & Ors.
27
ballam, Ram Sahay, Virender Singh and two
other unknown persons, to whom he can
recognise on seeing them, armed with lathi
were sitting in ambush. They have enmity
with him because of election of co-operative.
They attacked on his brother with deadly
weapon and assaulted upon him with lathi
and spade. His brother's condition became
very critical. In order to save the life of his
brother, he sent the information to the police
station regarding the incident and got him
admitted
directly
to
the
hospital
at
Musafirkhana. The condition of his brother
was still very bad and he was referred to
Sadar Hospital, Sultanpur. He was fighting
for life and not yet regained consciousness.
The informant-revisionist raised alarm at the
place of occurrence, thereupon, Vidya
Shankar Shukl and other villagers arrived
there and seen the occurrence. The accused
persons ran away thinking that his brother
was dead.

4. The chik report Ex.Ka-9 was
scribed by Head Constable Bhanu Pratap
Singh (PW-6) on 18.3.1994. Constable
Virendra Bahadur by making entry in GD
Report No.24 (Ex.Ka-11) on 18.3.1994 at
14:30 p.m. registered the Case Crime
No.Nil/1994, under Sections 147, 148, 323,
324, 308 I.P.C. at Police Station Jamo,
District Sultanpur. Injured Shashi Bhal was
medically examined by Dr. R.P. Pandey
(PW-4) at Musafirkhana on 18.3.1994 at
02:30 a.m. (night). At the time of medical
examination of injured Shashi Bhal, his age
was found 49 years and the following
injuries were found on his body:-

"1. Incised wound 6 cm x 0.5 cm
x bone deep on left side of the skull, 7 cm
above left ear. Advised x-ray of skull A/P

2. Incised wound 6 cm x 1 cm x
bone deep on front of forehead left side
above left eyebrow. Advised x-ray of skull.

3. Lacerated wound 4 cm x 0.5
cm x bone deep on forehead, 3 cm above
right eye.

4. Lacerated wound 1 cm x 0.5
cm x bone deep on forehead above
eyebrow.

5. Lacerated wound 3 cm x 0.5
cm x bone deep, 2 cm above right eye.

6. Lacerated wound 1 cm x 0.5
cm x muscle deep on right lip.

7. Contusion 7 cm x 2 cm on
posterior side of hand.

8. Traumatic swelling 7 cm x 5
cm on the posterior side of the left hand.

9. Lacerated wound 1 cm x 0.5
cm x bone deep on right side of chest.

10. Lacerated wound 1.5 cm x 0.5
cm x bone deep on left foot.

11. Abraded contusion 2 cm x 1
cm on front of right foot.

12. Lacerated wound 1 cm x 0.3
cm skin deep on right ear.

Dr. R.P. Pandey (PW-4) advised
x-ray for injury nos.1 to 5 and 8. He opined
that injury nos.1 and 2 were caused by
sharp edged weapon and rest by blunt
object. The injuries were found fresh at the
time of medical examination. The injured
was semiconscious stage and was vomiting.
He referred the injured to the district
hospital. He prepared injury report Ex.Ka4 in his own handwriting."

5. The investigation of the case was
entrusted to SI R.N. Mishra. On 20.3.1994, a
memo was received from KGMC at 07:20
p.m. at Police Station Jamo regarding death
of Shashi Bhal Chaturvedi, which was
entered in G.D. Report No.4 at 07:20 p.m.
SI Naamwar Singh (PW-5) at that time was
posted at Outpost Yahiaganj, Police Station
Chowk, Lucknow. On obtaining copy of GD
Report No.4 and memo of death of the
deceased, he proceeded to mortuary KGMC,
Lucknow. Constable Kunwar Naresh Singh
28 INDIAN LAW REPORTS ALLAHABAD SERIES
of outpost KGMC, who was assigned for
post-mortem duty, met him at mortuary.
Shravan Kumar Pathak, Surendra Kumar
Chaturvedi,
Gaya
Prasad
Chaturvedi,
Hanuman
Dutta
and
Bhagwan
Dutta
Tripathi were appointed as witness of the
inquest. The witnesses of the inquest opined
that the deceased died during treatment as a
result of ante-mortem injuries, which he
sustained at the place of occurrence. They
have also opined that for ascertaining the
actual cause of death, post-mortem is
needed. He prepared inquest report Ex.Ka-5,
letter to CMO Ex.Ka-6, Photo Lash Ka-7,
sealed the dead body and prepared challan
lash Ex.Ka-8 and handed over the dead body
to the Constable Kunwar Naresh Singh for
carrying out the post-mortem. The postmortem of the dead body of the deceased
Shashi Bhal Chaturvedi was conducted by
Dr L.S. Sanyal (PW-3) on 20.3.1994. At the
time of post-mortem, the age of the deceased
was found 26 years. He died on 19.3.1994 at
03:10 hours at KGMC during treatment. The
deceased was man of average height and
body built. The rigor mortis was not present
on the upper part of the body while the same
was found on the lower part of the body. At
the time of post-mortem, the following antemortem injuries were found on the body of
the deceased:-

"1. Stitched wound with 5 stitches
on the left side of skull.

2. Stitched wound 5 cm in length
with 3 stitches on the mid of skull.

3. Stitched wound with 2 stitches
on the right part of the skull.

4. Stitched wound 4 cm long with
3 stitches on left side of the skull 8 cm
above left ear.

5. Abraded contusion 8 cm x 4.5
cm on right side of the face and skull.

6. Abraded contusion 7 cm x 1.5
cm on the back of right hand.

7. Abraded contusion in area 16
cm x 6 cm on the lower side of the stomach.

8. Abraded contusion in area 6
cm x 3 cm on front part of left foot.

9. Abraded contusion in area 8
cm x 4 cm on the front part of right foot.

On internal examination, fracture
was found in skull. The membrane of the
brain was found torn. 90 ml liquid
substance was found in stomach. The gas
and fecal matters were found in the small
intestine. Doctor has opined that the
deceased died due to ante-mortem head
injury. He has further opined that the antemortem head injuries were sufficient to
cause death in ordinary course of nature.
He prepared the post-mortem report Ex.Ka3 in his own handwriting."

6. The Investigating Officer SI
Ravindra Nath Mishra (PW-9) copied the
check report and GD registering the case
and recorded the statements of scriber of
GD and of informant-revisionist and
inspected the place of occurrence on
20.3.1994. He has taken in possession the
plain soil and blood-stained soil, blood
stained bed-sheet, scarf, a pair of leather
sleeper of the deceased from the place of
occurrence and prepared memo of it Ex.Ka13 & 14 and sealed it separately. He also
prepared site plan Ex.Ka-15. On 22.3.1994,
he arrested the accused Ram Sahai,
Virendra Bahadur and recorded their
statements and amended the Section 304
I.P.C. vide GD report no.12 Ex.Ka-16.
Thereafter,
the
investigation
was
transferred to SI Vijayanand (PW-7) on
23.3.1994, who has recorded the statement
of witness Vidya Shankar Shukl. On
31.3.1994, he recorded the statements of
witnesses and copied the post-mortem
report in case diary. On the same day, he
has also recorded the statements of
witnesses Shiv Prasad and Ishrat. On
1 All. Surendre Kumar Chaturvedi Vs. State of U.P. & Ors.
29
30.4.1994, he has recorded the statement of
accused Triveni Singh and sent the chargesheet on 30.4.1994 Ex.Ka-10. Thereafter,
on the application of informant, the
investigation was transferred to CBCID.
The charge-sheet Ex.Ka-10 was cancelled
by Station Officer and the investigation was
handed over to CBCID for re-investigation.
Inspector Shamsher Singh CBCID was
entrusted the investigation on 25.8.1994,
who copied the application of Gurudev
Kumar Dwivedi and tehrir of informantrevisionist Surendra Kumar Chaturvedi in
the case diary. On 2.3.1995, he recorded the
statement of ASI Ravindra Nath Mishra.
On 13.3.1995, he recorded the statements
of informant-revisionist Surendra Kumar
Chaturvedi, Dr. R.P. Pandey and other
witnesses. He has also recorded the
statements of Smt. Lakhpati Devi and other
witnesses and the statements of accused
Vishambhar Prasad Mishra, Ram Abhilash
Singh, Triveni Singh, Ram Sahai and
Virender Singh and also recorded the
statements of witnesses of inquest. On
15.3.1995, he has recorded the statement of
scriber of the chik report. On 26.4.1995, he
has recorded the statement of witness Vidya
Shankar Shukl and has submitted the
charge-sheet
Ex.Ka-12
by
amending
Section 302 I.P.C.

7. The cognizance of offence was
taken after complying the provision of
Section 207 of Cr.P.C. and the case was
committed to the court of session. The
charges for offence punishable under
Sections 147, 148, 302/149 I.P.C. were
framed against accused-opposite party no.2
Triveni Singh, opposite party no.3 Ram
Sahai, opposite party no.4 Virendra Singh,
opposite party no.5 Ram Abhilash and
opposite party no.6 Vishambhar Prasad to
which they have not pleaded guilty and
claimed to be tried.

8. In order to prove its case, the
prosecution
has
examined
informantrevisionist Surendra Kumar Chaturvedi as
PW-1,
Smt.
Lakhpati
as
PW-2
as
eyewitnesses. PW-1 has proved the written
complaint Ex.Ka-1. Prosecution has also
examined Dr. L.S. Sanyal as PW-3 to prove
the post-mortem report of the deceased
Ex.Ka-3, Dr. R.P. Pandey as PW-4 to prove
injury report of the deceased Ex.Ka-4, SI
Namwar
Singh
as
PW-5
to
prove
panchayatnama Ex.Ka-5, letter to CMO
Ex.Ka-6, photo lash Ex.Ka-7, challan lash
Ex.Ka-8 and handed over the dead body to
Constable Kunwar Naresh Singh for
carrying out the post-mortem. Constable
Bhanu Pratap Singh as PW-6 was also
examined to prove chik report Ex.Ka-9 and
GD
registering
the
case
Ex.Ka-11.
Prosecution
has
also
examined
Investigating
Officer/Sub
Inspector
Vijayanand Singh as PW-7 to prove the
steps taken in investigation and has filed
charge-sheet Ex.Ka-10 against the accused.
Later on, the investigation was conducted
by CBCID on the application of informantrevisionist after cancelling the charge-sheet
Ex.Ka-10. Prosecution has also examined
Inspector Shamsher Singh (CBCID) to
prove the steps taken in investigation and
after investigation he has submitted the
charge-sheet Ex.Ka-12 and Sub Inspector
Ravindra Nath Mishra to prove site plan
Ex.Ka-15 as well as plain soil and bloodstained soil collected from the place of
occurrence
and
sealed
in
separate
containers and prepared the memo in this
regard Ex.Ka-13 and Ex.Ka-14. He has also
amended the section of the investigation
into 304 I.P.C.

9. The statements of the accused were
recorded under Section 313 Cr.P.C. to
which they have denied their participation
in occurrence and have stated that they
30 INDIAN LAW REPORTS ALLAHABAD SERIES
have been falsely implicated in the case. In
defence, the accused-opposite parties have
examined Ram Lakhan Shukla as DW-1,
Ram Pyarey Pandey as DW-2 and Chhotey
Lal as DW-3 and has closed the evidence.

10. Learned court below after hearing
the learned counsel for the parties and
appreciating the evidence of informant
Surendra Kumar Chaturvedi (PW-1) held
that the informant-revisionist has taken the
name of only four accused persons in his
written complaint and two unknown
persons to whom he can recognize when
they come before him. After four months of
the
occurrence,
on
25.7.1994,
an
application has been moved from the side
of informant for investigation of case by
CBCID and later on the investigation was
transferred to CBCID. He has not named
the accused Vishambhar Prasad Mishra and
Ram Abhilash Singh in his written
complaint. Even in application moved for
investigation by CBCID, he has not named
the accused Vishambhar Prasad Mishra and
Ram Abhilash Singh. Witness PW-2 has
deposed that the accused Vishambhar
Prasad Mishra and Ram Abhilash Singh
were known to her since their childhood
because they are resident of her village.
The informant Surendra Kumar Chaturvedi
(PW-1) has not disclosed the name of
accused Vishambhar Prasad Mishra and
Ram Abhilash Singh in his statement under
Section
161
Cr.P.C.
recorded
by
Investigating Officer. On appreciation of
evidence, learned court below has held that
the first information report was lodged after
due deliberation and during investigation
the name of the accused Vishambhar Prasad
Mishra and Ram Abhilash Singh was
deliberately added to falsely implicate
them. Learned court below has also held
that the alleged independent eyewitness
Vidya Shankar has not been produced by
the prosecution. In this case, PW-1
Surendra Kumar Chaturvedi and PW-2
Smt. Lakhpati are the alleged eyewitnesses.
The eyewitness Vidya Shankar, whose
name is mentioned in the first information
report,
has
not
been
produced
by
prosecution before lower court during trial.
It has also held that PW-1 Surendra Kumar
Chaturvedi has admitted in his crossexamination that the accused Vishambhar
Prasad Mishra and Ram Abhilash Singh are
brothers of accused Triveni Singh and were
known to him before lodging of the F.I.R. It
has further held that PW-1 has admitted
that the occurrence has taken place at the
door of Fulesara and the house of the
maternal grandmother of informant is not
shown in the site plan. PW-2 Smt. Lakhpati
in her statement has stated that her age was
about hundred years at the time of
examination in the court. She has also
admitted that on the day of occurrence she
was ill and was suffering from high fever.
She has further admitted that she could not
see beyond 2-3 paces. The occurrence was
taken place at 10:00 p.m. in the night and
her house was away from place of
occurrence and she can hardly move 2 or 3
steps. Learned lower court has also held
that the deposition of alleged eyewitnesses
PW-1 Surendra Kumar Chaturvedi and PW2 Smt. Lakhpati do not inspire confidence
and no conviction can be recorded on the
basis of their ocular testimony and has
acquitted the accused-opposite party nos.2
to 6 from the charges. Feeling aggrieved by
it, the informant-revisionist has preferred
this revision.

11.

Learned
counsel
for
the
informant-revisionist in memo of revision
has stated that the impugned judgement of
acquittal recorded by learned lower court is
against fact and law. It is further stated that
learned
lower
court
has
wrongly
1 All. Surendre Kumar Chaturvedi Vs. State of U.P. & Ors.
31
disbelieved the statement of informantrevisionist
PW-1
and
his
maternal
grandmother
PW-2
in
the
impugned
judgement and has illegally acquitted the
accused-opposite party nos.2 to 6. It is
further stated that the four accused persons
were named in the first information report
and two accused were not named. It is
further stated that during investigation the
name of the accused not named also came
into light. It is further stated that the
informant-revisionist
PW-1
Surendra
Kumar
Chaturvedi
and
his
maternal
grandmother PW-2 Smt. Lakhpati were the
eyewitnesses of the occurrence and are
corroborated by the first information report
and the post-mortem report. It is further
stated that the learned court below has not
appreciated the evidence available on
record in right prospective and the
judgement of acquittal recorded by learned
court below is perverse and illegal and is
liable to be set aside. It is further stated that
the charges against accused-opposite party
nos.2 to 6 is proved beyond reasonable
doubt and judgement of acquittal recorded
by learned lower court is liable to be
reversed and accused-opposite party nos.2
to 6 are liable to be convicted for offence
punishable under Sections 147, 148,
302/149 I.P.C. and sentenced to undergo
rigorous imprisonment for life and fine
also.

12. Learned A.G.A. has supported the
judgement of the court below and has
submitted that all the accused-opposite
party nos.2 to 6 were known to the
informant-revisionist, but he has only
named four accused and two unknown
persons. He has further submitted that the
above fact establishes that the informantrevisionist has not witnessed the incident
and his presence on the place of occurrence
is doubtful. He has further submitted that
PW-2
Smt.
Lakhpati
is
maternal
grandmother of informant-revisionist and
her house has not been shown in the site
plan. She in her statement has stated that
her age was about hundred years at the time
of examination before the court. She has
also admitted that on the day of occurrence
she was ill and was suffering from high
fever. She has further admitted that she
could not see anything beyond 2-3 paces.
The occurrences has taken place at 10:00
p.m. in the night and her house is away
from the place of occurrence and she can
hardly move 2-3 steps. Therefore, learned
lower court has rightly held that she has not
witnessed the occurrence and has rightly
acquitted the accused-opposite party nos.2
to 6 from the charges.

13.

I
have
given
thoughtful
consideration to the contentions raised by
learned
counsel
for
the
informantrevisionist in the memo of revision as well
as contention raised by learned A.G.A. for
the State and have gone through the record.
Now the question arises whether the
revision can be heard and decided in
absence of the revisionist. The procedure
for hearing of the revision is analogous to
hearing of the appeal with the exception as
mentioned in Section 401 Cr.P.C. Section
401 Cr.P.C. speaks as follows:-

"Section 401. (1) In the case of
any proceeding the record of which has
been called for by itself or which otherwise
comes to its knowledge, the High Court
may, in its discretion, exercise any of the
powers conferred on a Court of Appeal by
sections 386, 389, 390 and 391 or on a
Court of Session by section 307 and, when
the Judges composing the Court of revision
are equally divided in opinion, the case
shall be disposed of in the manner provided
by section 392.
32 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) No order under this section
shall be made to the prejudice of the
accused or other person unless he has had
an opportunity of being heard either
personally or by pleader in his own
defence.

(3) Nothing in this section shall
be deemed to authorize a High Court to
convert a finding of acquittal into one of
conviction.

(4) Where under this Code an
appeal lies and no appeal is brought, no
proceeding by way of revision shall be
entertained at the instance of the party who
could have appealed.

(5) Where under this Code tan
appeal lies but an application for revision
has been made to the High Court by any
person and the High Court Is satisfied that
such application was made under the
erroneous belief that no appeal lies thereto
and that it is necessary in the interests of
justice so to do, the High Court may treat
the application for revision as a petition of
appeal
and
deal
with
the
same
accordingly."

14. From perusal of Section 401
Cr.P.C., it is abundantly clear that High
Court may exercise any of the power
conferred on a Court of Appeal by sections
386, 389, 390 and 391 or on a Court of
Session by section 307. It is further
provided in sub-section (2) that no order
under this section shall be made to the
prejudice of the accused or other person
unless he has had an opportunity of being
heard either personally or by pleader in his
own defence.

15. Sub-section (2) of section 401
Cr.P.C. cast duty upon the revision court to
hear opposite party if order is made in
revision prejudiced to the accused or other
person. Meaning thereby, where impugned
order is liable to be set aside and
prejudicial to the opposite party, the
opposite party must be heard.

16. Section 386 of the Code of
Criminal Procedure provides the procedure
to be followed in hearing of the appeal and
also provides the power of appellate court.
That is also applicable in revision also in
view of the Section 401 Cr.P.C. with
exception that if the order to be made in
revision is prejudicial to the accused or
other person (opposing party), opportunity
of hearing must be given to opposite party.
The proviso appended with Section 386(e)
provides that the sentence shall not be
enhanced unless the accused has been
given an opportunity of showing cause
against the such enhancement. Therefore,
from the perusal of provision of Section
386 Cr.P.C., it is mandatory that the
accused should be heard if order is made in
revision prejudicial to the accused.

17. The Hon'ble Apex Court in the
case of "Shyam Deo Pandey Vs. State of
Bihar, AIR 1971 SC 1606" has held that if
the court decided not to dismiss the appeal
summarily, it must take the step mentioned
in Section 385 and proceed to hear the
parties on merit. At this stage also it has the
power to dismiss the appeal, if it
considered that there is no sufficient ground
for interfering, but such consideration must
be based on the merit of the appeal. After
the records are before the court and the
appeal is listed for hearing [s.385 (2)],
whether the appellants appear or not in
response to the notice, the appellate court
dispose of the appeal only after reasoning
and finding of the trial court as recorded in
its judgement on tested in the light of
record of the case for this purpose the
appellate court must- (a) peruse such
record: (b) hear the appellants or his
1 All. Surendre Kumar Chaturvedi Vs. State of U.P. & Ors.
33
pleader, if he appears and (c) hear the
public prosecutor, if he appears. It is
abundantly
clear
that
the
procedure
followed in hearing of the appeal will be
followed in hearing the revision with
certain exceptions. Therefore, the revision
can be heard in absence of the revisionist
also on merit.

18. Sub-section (3) of section 401
Cr.P.C. speaks as follows:-

"Nothing in this section shall be
deemed to authorize High Court to convert
of finding of acquittal to conviction."

19. Even in case of appeal against
acquittal the Hon'ble Apex Court in the
case of "Mool Chand Vs. Jagdish Singh
and others" reported in 1993 Supp (2)
Supreme Court Case 714 has held in
paragraph 18, which reads as follows:-

"....in appeal against the order of
acquittal by the High Court was to be
considered as whether the approach by the
High Court is wrong or the view taken by
the High Court is unreasonable. If that
evidence is of such nature that two views
are possible and one view in favour of the
accused with the High Court in acquitting
them, the Supreme Court will be slow to
interfere with the order of acquittal. If only
the High Court has committed grave error
in appreciation of evidence and misread
itself by ignoring legal principle and
arrived at the conclusion, the decision can
be characterized as perverse and illegal
requiring interference by the court under
Article 136."

20. Even in appeal against the
acquittal if the judgement of the trial court
is not perverse and is not based on
misreading of the evidence and two views
are possible, one favouring the accused, the
acquittal is not liable to be interfered in
appeal. In present case, the revision has
been preferred against the acquittal and the
revision court cannot convert acquittal to
conviction in view of sub-section (3) of
section 401 Cr.P.C. The judgement of the
court below is based on right appreciation
of evidence and cannot be said to be
perverse, therefore, the case is not liable to
remanded for pre-trial. Keeping in view the
facts and circumstances of the case and
reasons enumerated by court below, the
instant revision is liable to be dismissed.

21. In this case, the appeal has not
been preferred by the State against the
acquittal recorded by trial court under the
circumstances. This revision has been
preferred against the acquittal by informant
Surendra Kumar Chaturvedi.

22. In this case revisionist Surendra
Kumar Chaturvedi as PW-1 deposed that
his brother Shashi Bhal Chaturvedi and
Vidya Shankar Shukl had gone to see his
maternal grandmother on 17.3.1994 at
around 07:00 p.m. and while they were
coming back to their home in the night at
about 10:00 p.m. and reached about 20
paces from the house of his maternal
grandmother, the accused Triveni Singh
armed with lathi and ballam, Ram Sahay,
Virender Singh and two other unknown
persons, to whom he can recognize on
seeing them, armed with lathi were sitting
in ambush. He has further deposed that
they have enmity with him because of
election of co-operative. He has also
deposed that they attacked on his brother
with deadly weapon and assaulted upon
him with lathi and spade. His brother's
condition became very critical. In order to
save the life of his brother, he sent the
information to the police station regarding
34 INDIAN LAW REPORTS ALLAHABAD SERIES
the incident and got him admitted directly
to the hospital at Musafirkhana. He has
next deposed that the condition of his
brother was still very bad and he was
referred to Sadar Hospital, Sultanpur,
where he was fighting for his life and not
yet regained consciousness. He has also
deposed that when he raised alarm, Vidya
Shankar Shukl and other villagers arrived
there at the spot and saw the occurrence,
then the accused persons ran away thinking
that his brother was dead. Later on his
brother Shashi Bhal succumbed to death.

23. In his cross-examination, the
informant-revisionist
Surendra
Kumar
Chaturvedi (PW-1) has admitted that he
has only named four accused in the
written complaint and two unknown
persons to whom he can recognize when
they come before him. He has also
admitted that after four months of the
occurrence, on 25.7.1994, an application
was moved from his side for investigation
of case by CBCID and later on the
investigation was transferred to CBCID.
He has not named in his written
complaint the name of the accused
Vishambhar Prasad Mishra and Ram
Abhilash Singh. Even in application
moved for investigation by CBCID he has
not named the accused Vishambhar
Prasad Mishra and Ram Abhilash Singh.
PW-1
informant
Surendra
Kumar
Chaturvedi has not disclosed the name of
accused Vishambhar Prasad Mishra and
Ram Abhilash Singh in his statement
under Section 161 Cr.P.C. recorded by
Investigating Officer

24. PW-2 Smt. Lakhpati has deposed
that the accused Vishambhar Prasad Mishra
and Ram Abhilash Singh were known to
her since their childhood because they are
resident of her village.

25. On appreciation of evidence,
learned court below has held that the first
information report was lodged after due
deliberation and during investigation the
name of the accused Vishambhar Prasad
Mishra and Ram Abhilash Singh was
deliberately added to falsely implicate
them. In this case, the independent
eyewitness Vidya Shankar mentioned in
first information report, not produced by
prosecution,
which
cast
doubt
on
prosecution case. In this case PW-1
Surendra Kumar Chaturvedi and PW-2
Smt. Lakhpati are the alleged eyewitnesses.
PW-1
has
admitted
in
his
crossexamination that the accused Vishambhar
Prasad Mishra and Ram Abhilash Singh are
brothers of accused Triveni Singh and were
known to him before lodging of the F.I.R.
PW-1 has admitted that the occurrence has
taken place at the door of Fulesara. The
house of the maternal grandmother of
informant-revisionist has not been shown in
the site plan. PW-2 Smt. Lakhpati in her
statement has stated that her age was about
hundred years at the time of examination
before the court. She has also admitted that
on the day of occurrence she was ill as she
was suffering from high fever. She has
further admitted that she could not see
beyond 2-3 paces. The occurrences has
taken place at 10:00 p.m. in the night and
her house is away from the place of
occurrence and she can hardly move 2-3
steps.
Therefore,
the
deposition
of
eyewitness
PW-1
Surendra
Kumar
Chaturvedi does not inspire confidence and
is not of such quality that can be acted
upon.

26. From the appreciation of evidence
of PW-2 Smt. Lakhpati, it is proved that
she can only see anything at the distance of
2-3 paces and her presence at the place of
occurrence
is
not
established.
Her
1 All. Melvin Saldanha & Anr. Vs. State of U.P. & Anr.
35
deposition does not inspire confidence and
no conviction can be recorded on the basis
of ocular testimony of PW-1 and PW-2 and
learned court below has rightly acquitted
the accused-opposite party nos.2 to 6 from
the charges of offence punishable under
Sections 147, 148, 302 read with 149 I.P.C.

27. In such circumstances, the instant
revision lacks merit and is, accordingly,
hereby dismissed.
----------
(2023) 1 ILRA 35
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.01.2023

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Revision No. 604 of 2019

Melvin Saldanha & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Anurag Shukla

Counsel for the Opposite Parties:
Govt. Advocate, Devika Singh, Harish
Pandey,
Rajendra
Kumar
Dwivedi,
Sarvajeet Dubey, Suyash Bajpai

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 397/401 - Indian
Penal Code, 1860-Sections 305 & 306-In
the
present
case,
the
Investigating
Agency failed to establish mens rea on the
part
of
the
revisionists
leading
to
commission of suicide by the deceasedthe deceased was only scolded by the
revisionists for getting into road accidentIn fact the deceased was not hit or
slapped by the revisionists-no eye witness
that
the
deceased
was
beaten
by
revisionists-FIR has been lodged with a
motion of vengeance-The Court below has
not discussed the material and no finding
has been recorded, the operative portion
of the Court is non-speaking and no
reason has been assigned-The decision is
taken in mechanical manner-Thus, the
matter is remanded back to the Court
below with a direction to take a fresh
decision.(Para 1 to 89)

B. To prove the offence of abetment, as
specified under section 107 IPC, the state
of mind to commit a particular crime must
be visible, to determine the culpability. In
order to prove mens rea, there has to be
something on record to establish or show
that the appellant herein had a guilty
mind and in furtherance of that state of
mind, abetted the suicide of the deceased.
(Para 51)

The revision is allowed. (E-6)
List of Cases cited:

1. Geo Varghese Vs St. of Raj. (2021) SCC
Online SC 873

2. St. of Karnataka Lokayukta Vs M.R Hiremath
(2019) 7 SCC 515

3. Sunil Kumar Sen Vs St. of M.P. in Petition No.
11763/2018 (MP HC)

4. P.Rajmohan Vs St.,(2018) 0 Supreme (Mad)
3697

5. Raj Shekhar Paliwal Vs St. of Chhattisgarh &
anr. (2020) SCC Online Chh 37,

6. Gurcharan Singh Vs St. of Punj.(2020) 10
SCC 200

7. Sanju @ Sanjay Singh Sengar Vs St. of M.P.
(2002) 5 SCC 371, Pg 13

8. Roop Kishore Madan Vs St. (2001) Cri LJ 1219

9. Dr.J.P. Bhargava & anr. Vs St. of U.P. (Appl.
u/s 482 No. 6195 of 2016)

10. Kanchan Kumar Vs St. of Bih. (2022)
LiveLaw SC 763