Misreading of evidence by trial and appellate Courts constitutes a manifest illegality, justifying the High Court's intervention in revisional jurisdiction.

JUDGMENT :

(PRANAV TRIVEDI, J.)

1. Present revision application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 is preferred, inter alia, challenging order dated 7.12.2016 passed by learned 3^rd Additional Sessions Judge, Gandhidham – Kachchh (hereinafter referred to as ‘the appellate Court’) in Criminal Appeal No. 01 of 2013 confirming the order dated 4.12.2012 passed by 4th Additional Chief Judicial Magistrate, Gandhidham- Kachchh (hereinafter referred to as ‘the trial Court’) in Criminal Case No. 1406 of 2004.

2. The facts leading to filing of the present revision application is that one Kasam Kherudin Maniyar filed a complaint on 21.4.2004 at 00:45 hours, before the Gandhidham Police Station, which came to be numbered as C.R. No. I-159 of 2004 for the offences punishable under Section 323, 324, 504, 506(2) and 114 of the Indian Penal Code, 1860.

3. It was the case of the prosecution that on 20.4.2004 at around 18:30 hours, applicant and other accused had abused, accused and beaten as well as threatened the complainant which resulted into injuries being inflicted to the complainant. The applicant and other accused persons were arrested on 22.4.2004. On 13.6.2004, charge-sheet was filed. Subsequent to filing of charge- sheet, charges came to be framed and trial in Criminal Case No. 1406 of 2004 came to be conducted.

4. Upon conclusion of the trial, all the accused persons were acquitted from charge of offence under Section 324, 504, 506(2), 114 of the Indian Penal Code, 1860 and Section 135 of the Bombay Police Act. At the same time, all the accused were convicted under Section 325 of the Indian Penal Code and sentenced to undergo rigorous imprisonment of 3 years and fine of Rs.5,000/- each. All the accused were also convicted for offence under Section 323 of the Indian Penal Code, 1860 and were sentenced to undergo rigorous imprisonment of one year and fine of Rs.1,000/- each. Being aggrieved by judgment and order dated 4.12.2012 passed by the trial Court in Criminal Case No. 1406 of 2004, all the accused preferred an appeal under Section 374 (3) of the Code of Criminal Procedure, being Appeal No. 01/2013 before the learned appellate Court. The learned appellate Court, by way of impugned order dated 7.12.2016, rejected the appeal of all the accused. Being aggrieved by the impugned order dated 7.12.2016, present revision is preferred by only one of the three accused being Ramsinh Kalyanji Bihari.

5. Having heard Mr. Darshan Varandani, learned advocate for the revisionist-applicant and Mr. Soaham Joshi, learned Additional Public Prosecutor. The main bone of contention raised by Mr. Darshan Varandani, learned advocate for the applicant is with regard to mis- appreciation of the evidence. It has been submitted that the only ground of conviction of present revisionist- applicant is deposition of two people i.e. injured eye- witnesses Saakirbhai, who is examined below Exh-25 and complainant injured eye-witness Kasambhai, who is examined below Exh-17. Mr. Varandani, after taking the Court minutely through the depositions of PW-1 - complainant Kasambhai and PW No.2 injured Saakirbhai, submitted that the allegations made by Saakirbhai is that the present revisionist -applicant i.e. Ramsinh Kalyanji Bihari had come with an iron pipe and had beaten the complainant Kasambhai. However, in the deposition of Kasambhai the role attributed to present applicant is only to the extent of standing there and caught holding of Sabirbhai. Therefore, according to Mr. Varandani, the only evidence of two eye-witnesses does not implicate present applicant in any way and there are no other evidences against the present revisionist-applicant. Therefore, learned trial Court as well as learned appellate Court has completely mis-read the evidence. In view of the same, he has submitted to allow the present revision application.

6. Per contra, Mr. Soaham Joshi, learned Additional Public Prosecutor has submitted that the learned trial