Nath Khaware Vs. Parasnath Khaware & Ors  Insc 237 (17 April 2003)
Shah & Arun Kumar.
ARUN KUMAR, J
complainant Narendra Nath Khaware filed a Special Leave Petition in this court
under Article 136 of the Constitution of India seeking leave to appeal against
the judgment dated 6th
April, 1993 of the
High Court of Judicature at Patna. Leave
to appeal was granted by this court vide order dated 4th August, 1994 and the matter was registered as
Criminal Appeal No.499 of 1994. The said appeal has come up for final hearing
and disposal before this court. At the time of hearing, the learned counsel
appearing for the respondents raised a preliminary objection about the
maintainability of this appeal. In order to appreciate the objection, brief
facts of the case are required to be stated. The respondents were charged for
offences under Sections 148 and 302 read with Section 149 IPC. The incident for
which these accused were charged is the murder of Diwakar Khaware, son of the
complainant Narendra Nath Khaware (appellant) on 13th June, 1982. As per the case of the prosecution, the complainant along
with his son Diwakar Khaware (deceased) was getting his maize field weeded
through the help of a few labourers on the morning of 13th June, 1982. His real brother Parasnath Khaware
came on the spot and forbade the complainant from doing so. The complainant
insisted that he had right to carry on the work in the field which belonged to
him. On this Parasnath Khaware, who was accompanied by his son accused Bishwanath
Khaware and Shrinath Khaware abused the labourers and drove them away from the
field. The complainant took strong objection to this but the accused party
started abusing the complainant and his son and started pelting stones on them.
The complainant and his son also threw stones on the opposite party in their defence.
In the meantime, some villagers came and intervened in the fight. As a result
of this, the accused persons went away. The complainant and his son Diwakar Khaware
continued with the work in the field. After a few hours, that is about 10.00 a.m., few villagers informed the complainant that the
accused persons were coming back armed with weapons. The complainant did not
pay heed to this warning thinking that the accused persons were his close
relations. Within a short time, all the seven accused persons reached the spot.
Seeing them, the complainant and his son Diwakar Khaware ran for their safety
and entered the nearby house of Ramdhani Jha. They hid themselves in a room by bolting
the room from inside. However, as the main gate of the house had remained open,
the accused persons rushed inside the house and broke open the door which had
been bolted from inside. They entered the room where the complainant and his
son Diwakar Khaware were hiding. Diwakar Khaware was dragged outside the room
in the courtyard of the house where accused Bishwanath Khaware is said to have
given a bhala blow on his stomach. As a result of the blow, Diwakar Khaware
Parasnath Khaware gave a pharsa blow on the head of Diwakar Khaware. The other
accused persons also assaulted Diwakar with their weapons. The complainant
tried to save his son but he was also assaulted by accused Saroj Jha and Srinath
Khaware. While this was going on, the villagers accompanied by Ram Dhani Jha, Basant
Kumar Jha, Surendra Jha and Sachidanand Jha came and intervened and saved the
victims from further assault.
Diwakar Khaware died on the spot. Police came in the village at about 1.00 p.m. when statement of the complainant Narendra Nath Khaware
was recorded. On the basis of the said statement, an FIR was recorded and the
seven accused persons were charge-sheeted and tried for the aforesaid offences.
The sessions court by its judgment dated 19th June, 1992 while giving benefit
of doubt to the accused persons and finding fault with the investigation
acquitted all the accused persons. The State of Bihar filed an appeal against
the said judgment of the Sessions Court. The High Court dismissed the appeal in
limine making the following observations:
regards merits, it is clear from the perusal of the record that the witness
named in the fardbayan have not been examined by the prosecution and also that
the witnesses examined in Court were examined by the police after eight months
from the date of occurrence. It is also clear that the Investigating Office of
the case has not been examined.
there are no merits. Further the appeal is barred by limitation also, which
cannot be considered." Against the said judgment of the High Court, the
complainant filed a Special Leave Petition in this Court. Leave was granted.
the present appeal. The appeal has been registered for final hearing.
counsel for the respondents contends that only the State of Bihar had the right
to file Special Leave Petition or an appeal in this Court. The State having
failed to do so, an appeal at the instance of the complainant is not
maintainable. The complainant had no right of appeal before the High Court.
However, the complainant could have filed a Criminal Revision which he did not
do and for this reason also the complainant had lost the right to file any
have heard the learned counsel for the parties. So far as the objection
regarding maintainability of the appeal is concerned, the learned counsel for
the appellant submitted that the power of this Court under Article 136 of the
Constitution of India are very wide and once this court has granted leave to
appeal in exercise of that power such an objection, as is being raised on
behalf of the respondents, is not available. The consequence of granting leave
to appeal is that this court has considered it fit to hear appeal against the
impugned judgment. Therefore, the appeal has to be heard and decided on merits.
In this connection, our attention has been invited to Arunachalam versus P.S.R.
Sadhanantham and Another [(1979) 2 SCC 297]. It was observed that
"appellate power vested in the Supreme Court under Article 136 of the
Constitution is not to be confused with ordinary appellate power exercised by
the appellate courts and appellate tribunals under specific statutes. It is a
plenary power 'exercisable outside the purview of ordinary law' to meet the
pressing demands of justice. Article 136 of the Constitution neither confers on
anyone the right to invoke the jurisdiction of the Supreme Court nor inhibits
anyone from invoking the Court's jurisdiction. The power is vested in the
Supreme Court but the right to invoke the Court's jurisdiction is vested in no one.
The exercise of the power of the Supreme Court is not circumscribed by any
limitation as to who may invoke it. Where a judgment of acquittal by the High
Court has led to a serious miscarriage of justice the Supreme Court cannot
refrain from doing its duty and abstain from interfering on the ground that a
private party and not the State has invoked the Court's jurisdiction." The
decision in Arunchalam (Supra) was challenged through a petition under Article
32 of the Constitution of India. It was contended that the Supreme Court had no
power to grant special leave to the brother of the deceased. A Constitution
Bench of this Court in P.S.R. Sadhanantham versus Arunachalam and another [
(1980) 3 SCC 141 ] dismissed the Writ Petition upholding the right of a private
person to file petition under Article 136 of the Constitution of India against
an order of acquittal. It was observed "in express terms Article 136 does
not confer a right of appeal on a party as such but it confers a wide
discretionary power on the Supreme court to interfere in suitable cases. It is
residuary power and is extraordinary in its amplitude. But the Constitution
makers intended in the very terms of Article 136 that it shall be exercised by
the highest judges of the land with scrupulous adherence to judicial principles
well established by precedents in our jurisprudence." In view of the
aforesaid decisions of this court, we find no merit in the objection raised by
the learned counsel for the respondents to the maintainability of the present
to the merits of the appeal, we find that the High Court disposed of the appeal
in a very casual and cavalier manner. Before the High Court, it was an appeal
against acquittal involving seven accused persons and the offence they were
charged with was under Sections 148 and 302 IPC read with Sections 149 IPC. The
High Court being the Court of first appeal, was required to consider and re-
appreciate the evidence on record. We fail to appreciate the manner in which
the High Court disposed of the appeal on basis of some general observations
without making any effort to go into the evidence on record. The learned
counsel appearing for the appellant before us particularly drew our attention
to the evidence of P.W.1, the complainant, who is also the father of the
deceased. The complainant was an injured eye witness. Therefore, there could
not be any doubt about his presence on the spot. It was the grievance of the
complainant that the accused party were influential people and they had managed
to ensure that the prosecuting agency adopts a lackadaisical approach in
investigation. This has lead the complainant to file a protest petition before
the Additional Chief Judicial Magistrate complaining the manner in which
investigation in the case was being carried out. In fact this explains the non-
examination of the Investigating Officer as a witness in the case.
the observation of the High Court that other witnesses were not examined, the
counsel submitted that at the time of actual occurrence only the complainant
and his son Diwakar Khaware were present. The others came on the spot after the
injuries had already been caused on the victim party. Diwakare Khaware having
died at the spot, complainant was the only eye witness of the murder. The evidence
of the complainant is corroborated by the medical evidence as well as by P.Ws.
2,3 and 4. The approach of the courts below on the other hand was of finding
fault with the prosecution case, that is, non-examination of the Investigating
Officer and non-examination of Ram Dhani Jha etc. The prosecution case was
thrown overboard on such grounds. We have been taken through the statement of
the complainant P.W.1. The statement shows that at the time of the actual
occurrence only the complainant and deceased Diwakar Khaware were present. Diwakar
Khaware having died on the spot, complainant was the only actual eye-witness.
Ram Dhani Jha etc. came on the spot, may be immediately after the event, and
were therefore not eye-witnesses of the incident. So far as the non-
examination of the Investigating Officer is concerned, it is settled law that
the same is not fatal to the prosecution case. It has been often found that in
order to help the accused party, specially in case where Investigating Officers
are won over for whatever consideration, the Investigating Officers absent
themselves and do not appear as witness in court. Another factor which had
weighed with the courts below is the absence of blood on the spot. This was
explained as wholly of no consequence in the facts of the present case where
there is no doubt about the actual occurrence having taken place and about the
spot where it took place. It is also emerging from the record that the
courtyard where the incident took place was open to sky and it was a rainy day.
Therefore, as argued by the learned counsel for the appellant, the blood stains
might have been washed away.
High Court was the first court of appeal. It did not even refer to the evidence
of P.W.1. We also find from the judgment of the trial court that the evidence
of P.W. 1 has not been given the attention it deserved. It will be seen from
the order of the High Court.
really feel sad about the manner in which the High Court has disposed of the
appeal. None of the three grounds mentioned by the High Court in its impugned
judgment are really determinative of the fate of the appeal. In our view, the
fact is that the High Court has failed to discharge its function. We feel it is
a fit case for remand so that the High Court can go into the evidence on record
in detail and come to definite finding on the facts in issue in the present
we set aside the decision of the High Court and direct the High Court to hear
the appeal on merits and decide the same in accordance with law.
constrained to observe a growing tendency with the High Courts in disposing of
Criminal Appeals involving vexed questions of law and fact in cursory manner
without going into the facts and the questions of law involved in the cases.
May be this approach is gaining ground on account of huge pendency of cases.
such a summary disposal is no solution to the problem of arrears of cases in
courts. Disposal of appeals where the High Court is the first court of appeal
in such a manner results in denial of right of appeal to the parties. So long
as the statute provides a right of appeal, in our view the court will be
failing in its duty if the appeal is disposed of in such a casual and cavalier
manner as the High Court has done in the present case.
High Court decide the appeal on proper appreciation of facts and evidence on
record in accordance with law after giving due opportunity of hearing to the
parties. Since the matter is quite old, the High Court should endeavor to
decide the case expeditiously on a priority basis. Any observation made in this
judgment will not come in the way of the High Court in deciding the appeal on
appeal stands disposed of.