Sumer Vs. State of U.P  Insc 451 (29 August 2005)
Y.K.Sabharwal, Ruma Pal & Arun Kumar
O R D
E R CURATIVE PETITION(CRL.) NO.3 OF 2005 IN REVIEW PETITION (CRL.) NOS.864-865
OF 2003 IN CRIMINAL APPEAL NOS.577-578 OF 1995 Y.K. Sabharwal, J.
and seven others were charged for offence under Section 302 read with Section
149 of Indian Penal Code (for short, 'IPC') besides other lesser offences,
detail whereof are not relevant for considering the present petition. The
accused were convicted for the offences charged and sentence of rigorous
imprisonment for life for offence under Section 302/149 IPC was imposed by
Court of Sessions. The appeal of the accused was, however, allowed by the High
Court and the judgment and order of Court of Sessions was set aside. This
Court, by judgment dated 10th
allowed the appeal of the State, reversed the judgment of the High Court and
restored that of the Sessions Court.
review petitions filed by six accused including the petitioner were dismissed
by order dated October
16, 2003 except that
the order makes a note of the fact of the death of one of the accused in the
year 1995 and another in the year 1997. In this view, the record was directed
to be corrected to show the appeal having abated against said two persons.
main charge against the accused was of murder of Ram Lakhan father of PW1 and
one Rajendra son of PW4. PW4 was an injured witness having sustained gun shot
injuries. Besides PW1 and PW4, the Court of Sessions had also relied upon the
testimony of PW2, another eye-witness produced by the prosecution and who was
said to be a neighbour of the parties. The family of the accused and that of
the deceased were neighbours living in the same village.
curative petition has been filed by one out of the six accused and the main
thrust of the petitioner is that the evidence and the factors taken into
account by the High Court for disbelieving the testimony of the eye-witnesses
have not been properly appreciated by this Court while allowing the appeal of
the State against judgment of acquittal. The grounds urged in the curative
petition show as if another regular appeal has been filed to challenge the
judgment. Such a petition is an abuse of remedy provided in Rupa Ashok Hurra v.
Ashok Hurra & Anr. [(2002) 4 SCC 388].
Ashok Hurra, while providing for the remedy of curative petition, but at the
same time to prevent abuse of such remedy and filing in that garb a second
review petition as a matter of course, the Constitution Bench said that except
when very strong reasons exist, the Court should not entertain an application
seeking reconsideration of an order of this Court which has become final on
dismissal of review petition. In this view, strict conditions including filing
of certificate by a senior advocate were provided in Rupa Ashok Hurra. Despite
it, the apprehension of the Constitution Bench that the remedy provided may not
open the flood gates for filing a second review petition has come true as is
evident from filing of large number of curative petitions. It was expected that
the curative petitions will be filed in exceptional and in rarest of rare case
but, in practice, it has just been opposite. This Court, observing that neither
it is advisable nor possible to enumerate all the grounds on which curative
petition may be entertained, said that nevertheless the petitioner is entitled
to relief ex debito justitiae if he establishes
violation of principles of natural justice in that he was not a party to the lis
but the judgment adversely affected his interests or, if he was a party to the lis,
he was not served with notice of the proceedings and the matter proceeded as if
he had notice, and
in the proceedings a learned Judge failed to disclose his connection with the
subject-matter or the parties giving scope for an apprehension of bias and the
judgment adversely affects the petitioner. To restrict the filing of the
curative petitions only in genuine cases, Rupa Ashok Hurra provided that the
curative petition shall contain a certification by a senior advocate with
regard to the fulfillment of all the requirements provided in the judgment.
Unfortunately, in most of the cases, the certification is casual without
fulfilling the requirements of the judgment.
in the present case, reads as under :
OF THE SENIOR ADVOCATE Certified that I have carefully examined the above
Curative Petition. It appears to me that non- consideration of
discrepancies in recording the FIR and several interpolations in the FIR and
the inquest report and
absence of findings that the judgment of High Court is perverse and is such
that no prudent person would arrive to the conclusion as reached by the High
Court constitute sufficient reasons to entertain the petition seeking
reconsideration of judgment/order of this Hon'ble Court dated 16.10.2003. The
Curative petition also fulfils the requirements as laid down in the judgment of
this Hon'ble Court in Rupa Ashok Hurra Versus Ashok Hurra
(2002) 4 SCC 388." The certificate itself shows that the object is to seek
fresh examination of facts after the decision of the appeal and dismissal of
the review petition. The certificate does not fulfill the requirements of Rupa Ashok
judgment dated 10th December, 2002, this Court, on appreciation of evidence,
came to the conclusion that the High Court in a highly cursory and cavalier
fashion, totally ignoring the evidence of eye- witnesses, had set aside the
convictions merely on the ground that the investigation was faulty pointing out
some minor discrepancies in the evidence and deprecated the manner of decision
of a serious case where at least eight accused persons formed an unlawful
assembly and armed with lethal weapons committed the murder of two persons
belonging to same family and seriously injured a third person, the motive of
the crime being land dispute between the family of the victim and the accused
persons. The Bench held that unfortunately the High Court remained on the
periphery and never attempted to grapple with the substance of the evidence on
record. This peripheral approach of the High Court led to the impugned judgment
of acquittal being passed. The Court came to the conclusion that the evidence
of the eye-witnesses completely proves the prosecution case and the doubt
thrown by the High Court on the presence of the eye-witnesses at the time of
occurrence is wholly unacceptable.
Court held that on the evidence on record, the High Court committed grave
illegality in reversing a well-considered judgment of the Sessions Court.
curative petition has been filed, inter alia, contending that the petitioner
was allegedly armed with a lathi, none of injury found on the dead-body was
attributable to a lathi and that the petitioner is not said to have given any
exhortation and, therefore, his false implication was apparent. The conviction
of the petitioner was for offence under Section 302 read with 149 IPC being a
member of an unlawful assembly and not conviction simpliciter under Section 302
IPC. Section 149 provides that if an offence is committed by any member of an
unlawful assembly in prosecution of the common object of that assembly, or such
as the members of that assembly knew to be likely to be committed in
prosecution of that object, every person who, at the time of the committing of
that offence, is a member of the same assembly, is guilty of that offence.
members of unlawful assembly were carrying lethal weapons and committed murder
of two persons of the same family and seriously injured the third person, all
with gun-shots. The finding is that the petitioner was a member of such
unlawful assembly and, therefore, the question of attributing any role to him
was wholly inconsequential. Another ground taken is that there are major
contradictions in regard to the time of registration of FIR and that
inadvertently it was not brought to the notice of this Court that there was
enmity between accused family and the complainant family. The Bench has noticed
in detail the enmity between the two families but has come to the conclusion
that that by itself, is not a ground to disbelieve eye-witnesses including an
injured eye-witness. The curative petition seeks to highlight following factors
for disbelieving the testimony of the eye-witnesses :
They were partisan, hostile and inimical.
PW1 could not have written the FIR in the manner alleged.
Interpolation of the FIR.
Nature of injuries on PW4.
Their attempt to improve the prosecution case.
the aforesaid aspects have been considered by this Court in the judgment dated 10th December, 2002. A perusal of the grounds taken in
the curative petition makes it clear that the attempt is to have another
opportunity for reappreciation of evidence. Such a course is impermissible.
a curative petition of this nature deserves dismissal by imposing exemplary
cost on the petitioner but, in the present case, we refrain from imposing cost
considering that the petition arises out of a criminal appeal.
the aforesaid reasons, the petition is dismissed.