State of Maharashtra Vs.
Jagmohan Singh Kuldip Singh Anand & Ors  Insc 504 (27 August 2004)
Y.K. Sabharwal & D.M.
Dharmadhikari [Arising out of Special Leave Petition (Crl.) No. 1390-91 of 2004]
With Criminal Appeal No. 954-955 of 2004 [Arising out of Special Leave Petition
(Crl.) No. 2320-2321 of 2004] Satish Kaur Sahani .....Appellant - Versus -
Jagmohan Singh Kuldip Singh Anand & Ors......Respondent Dharmadhikari J.
Leave granted in all the above cases.
Heard counsel for the parties.
The State and the complainant seek setting aside of the order dated 7.8.2003
of the High Court of Bombay reversing the judgment of conviction of the trial
court and the appellate court passed against the respondent- accused for
alleged offence under Section 324 and 452 read with Section 34, Indian Penal
Code and sentencing them to one month simple imprisonment and fine of Rs.500/-,
in default simple imprisonment for seven days.
The facts leading to prosecution of the accused and their conviction and
eventual acquittal by the High Court are as follows :- Complainant Smt. Satish
Kaur Sahni and the convicted accused reside in different flats in the same
building in Bombay.
It is alleged that on 3.5.1990 there was a quarrel between complainant and
the accused on cleaning of drainage. On the same day, i.e., 3.5.1990 at about
8.30 in the night when the complainant was in her house with her son Manpreet
Sahni (PW-3), all five accused are alleged to have entered the house of the
complainant with stick, aluminum rod and tape-recorder cassettes. They started
beating the complainant with fists and rods, tape- recorder and cassettes.
Jyoti Ahuja (PW-2) who stays in the neighbour-hood tried to intervene but one
of the accused (Bhupinder) gave a blow to her on the nose and she fell down. It
is also alleged that the accused dragged the complainant out of her house and
repeatedly beat her.
On the same night, at 9.30, a complaint was lodged in Khar Police Station
which was registered as FIR. The complainant was referred for medical treatment
to Bhabha Hospital where Dr. Kamble medically examined her. Dr. Mahesh Kumar
Advani (PW-4) was examined to prove the medical report in which it is recorded
that four simple injuries were found on the body of complainant including on
her hands, forehead and chest.
The occupants of the building, where the incident had taken place, sent on
6.5.1990 a written complaint jointly signed by them to the Deputy Commissioner
of Police requesting for a stern action against the accused for their
high-handed acts of trespassing into the house of the complainant and brutally
assaulting her. In all, five persons of the family of the accused were alleged
to have participated in the incident which included parents, Kuldeep Anand,
Bhagwant Kaur Anand and their three sons, Jagmohan Anand, Harminder Anand and
Bhupinder Anand. The prosecution examined the complainant (PW-1), Jyoti Ahuja
(PW-2), the neighbour who was present at the time of incident, son of the
complainant Manpreet Sahni (PW-3) and Dr. Mahesh Kumar Advani (PW-4) who proved
the medical report. The Investigating Officer was examined as PW-5. The accused
abjured the guilt and took the defence by examining DW-1 Abraham Samson
Medhekar of their false involvement in the crime because of the past enmity
between the families on a dispute over chit-fund scheme. The accused also
attributed motive to the complaint of falsely implicating them with the alleged
incident because they were able to purchase a property at a competitive price
which the complainant wanted to purchase.
The Trial Court, being the Court of Additional Chief Metropolitan
Magistrate, by its judgment 23.1.2001 acquitted the parents i.e. father accused
No.1 and mother, accused No.5. On the basis of the evidence before him, the
trial magistrate convicted the three accused 2, 3 and 4 and sentenced each one
of them to one month of simple imprisonment and a fine of Rs. 500/- with seven
days simple imprisonment in default of payment of fine. The magistrate came to
the conclusion that the oral evidence of Manpreet Sahani is duly corroborated
by prompt FIR and the medical report.
Aggrieved by their conviction and sentence, the accused preferred criminal
appeal in the Court of Sessions for Greater Bombay. The Appeal Judge
re-examined the evidence and by order dated 25.6.2002 upheld conviction and
sentence of the three accused.
The accused thereafter approached the High Court by way of criminal revision
under Section 397 CrPC. The High Court by the impugned judgment dated 7.8.2003
minutely re-examined and re-appreciated the whole evidence. It came to contrary
conclusion and acquitted the three accused.
Aggrieved by the judgment of acquittal passed by the High Court, State of Maharashtra
and the complainant have preferred these appeals by seeking leave. We have heard
learned counsel appearing for the State of Maharashtra and learned Senior
Counsel Mr. K.T.S. Tulsi for the accused.
On behalf of the State, learned counsel points out from the relevant
evidence on record that the High Court has overlooked vital evidence showing
full implication of the accused and wrongly acquitted them by entering into
re-appreciation of evidence. It is argued that the High Court exceeded its
powers of revision under Section 397 of the CrPC.
On behalf of the accused, learned Senior Counsel Shri Tulsi made strenuous
effort to support the judgment of acquittal passed by the High Court.
We have heard the learned counsel for the parties at length and looked into
the relevant evidence on record. In our considered opinion the learned Single
Judge of the High Court of Bombay exceeded his revisional jurisdiction by
embarking upon in-depth re-examination of the oral and medical evidence. Most
surprisingly, the High Court has come to a conclusion, contrary to the
consistent one reached by the two courts, that the happening of the incident,
as alleged, appears to be doubtful.
We need not go into all the reasonings and logic adopted by the learned
Single Judge in acquitting the accused. In our opinion, mention of only two
glaring facts would be sufficient to show that the High Court was apparently in
gross error in upsetting the judgment of conviction passed by the Trial Court
and confirmed by the Appellate Court who were the courts essentially required
to assess the worth of evidence.
There is a copy of the medical certificate on record issued by the doctor in
the hospital who examined the complainant. It gives details of the injuries
sustained by her. The medical certificate is dated 3.5.1990 recorded at 8.45
PM. There is clear mention in the certificate of the patient having been
referred by Police Constable No. 12219 of Khar Police Station. This medical
certificate, as proved by Dr. Mahesh Kumar Advani, is ample proof of happening
of alleged incident of mar-peet with the complainant on 3.5.1990.
The learned Single Judge of the High Court, in acquitting the accused, gave
great importance to the fact that joint complaint submitted on 6.5.1990 by the
occupants of the building under their signatures to the Deputy Commissioner of
Police does not stand proved as none of the signatories was examined as a
witness in the trial.
The learned counsel for the State points out that the defence witness
Abraham Samson Medhekar (DW-1) examined by the accused themselves was one of
the twelve signatories to the said complaint made to the DCP.
When confronted with copy of the complaint the witness (DW-1) had admitted
its contents and his own signature. He, however, denied that the said complaint
was forwarded to DCP. The statement of DW-1 in cross- examination itself
therefore proves the fact of such incident to have taken place on the date
Similarly, it is not possible for us to approve the reasoning of learned
Single Judge on the aspect of common intention under Section 34 IPC. For
establishing 'common intention' in every case it is not required for the
prosecution to prove a pre-arranged plot or prior concert. As has been proved
by the prosecution witnesses, on the dispute on cleaning of drain which took
place in the early hours on the date of alleged incident, the accused party
which constitute members of one family barged into the house of the
complainant, man-handled her inside and dragged her out where she was beaten
repeatedly. The act alleged against the accused clearly makes out a case of
'common intention' against them in committing offence of house trespass and
causing hurt to the complainant. Similarly, the High Court after minutely
scrutinizing the evidence gave undue importance to minor discrepancies such as
use of tape-recorder and cassettes in assaulting and no corresponding injuries
from those articles to have been caused to the complainant. There may be some
exaggeration of the version of the incident by the complainant as she said that
she was given hundred blows. Such exaggeration does not falsify the happening
of the alleged incident. Similarly, the neighbour (PW-2) who had intervened and
was hit on the nose was not medically examined is also not such a lapse of
prosecution to doubt credibility of the whole prosecution case.
The defence of false implication due to alleged incident of the complainant
having not been able to purchase some property in competition with the accused
party had not taken place in the immediate past. It could not be a ground to
falsely implicate the accused after such a long period. Such defence plea based
on alleged motive of the complainant is also unacceptable when the specific
defence taken through deposition of DW-1 was involvement of complainant in the
chit-fund business and alleged grudge over it with the accused party.
In embarking upon the minutest re-examination of the whole evidence at the
revisional stage, the learned Judge of the High Court was totally oblivious of
the self-restraint that he was required to exercise in a revision under Section
397 CrPC. On behalf of the accused, reliance is placed on the decision of this
Court to which one of us (Justice Sabharwal) is a party, i.e. Criminal Appeal
No. 523 of 1997 decided on 9.3.2004 [Ram Briksh v. Ambika Yadav]. That was the
case in which the High Court interfered in revision because material evidence
was overlooked by the courts below.
The Revisional Court is empowered to exercise all the powers conferred on
the Appellate Court by virtue of the provisions contained in Section 410 CrPC.
Section 401 CrPC is a provision enabling the High Court to exercise all powers
of Appellate Court, if necessary, in aid of power of superintendence or
supervision as a part of power of revision conferred on the High Court or the
Sessions Court. Section 397 CrPC confers power on the High Court or Sessions
Court, as the case may be, "for the purpose of satisfying itself or
himself 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." It is for the above purpose, if necessary, the High Court
or Sessions Court can exercise all appellate powers. Section 401 CrPC
conferring powers of Appellate Court on the Revisional Court is with the above
limited purpose. The provisions contained in Section 395 to Section 401 CrPC,
read together, do not indicate that the revisional power of the High Court can
be exercised as a second appellate power.
On this aspect, it is sufficient to refer to and rely on the decision of
this court in Dulichand vs. Delhi Administration [AIR 1975 SC 1960] in which it
is observed thus :- "The High Court in revision was exercising supervisory
jurisdiction of a restricted nature and, therefore, it would have been
justified in refusing to re-appreciate the evidence for the purposes of
determining whether the concurrent finding of fact reached by the learned
Magistrate and the learned additional Sessions Judge was correct. But even so
the High Court reviewed the evidence presumably for the purpose of satisfying
itself that there was evidence in support of the finding of fact reached by the
two subordinate courts and that the finding of fact was not unreasonable or
perverse. " It is necessary to note that in the case of Dulichand (supra)
the High Court had re-appreciated the whole evidence and confirmed the findings
of the two courts below. This Court, therefore, did not interfere with them.
We, therefore, find that there were no grounds available with the High Court
to upset the verdict of conviction and sentence passed by the two courts and
direct acquittal of the accused.
In the result, these appeals are allowed, the judgment of acquittal passed
by the High Court by order dated 7.8.2003 is set aside and conviction and
sentence passed by the Magistrate as confirmed by the Additional Sessions Judge
The learned counsel appearing for the accused submitted that the incident is
of the year 1990. The parties are educated and neighbours. The learned counsel,
therefore, prayed that benefit of Probation of
1958 may be granted to the accused. The prayer made on behalf of the
accused seems to be reasonable. The incident is more than 10 years old.
The dispute was between the neighbours over a trivial issue of cleaning of
drainage. The incident took place in a fit of anger. All the parties are
educated and also distantly related. The incident is not such as to direct the
accused to undergo sentence of imprisonment. In our opinion, it is a fit case
in which the accused should be released on Probation by directing them to
execute a bond of one year for good behaviour.
In the result, the acquittal passed by the High Court is set aside and
conviction and sentence passed by the Magistrate, as confirmed by the Sessions
Judge, is maintained by directing that the accused be released on Probation on
their executing bond for good behaviour for a period of one year, to the
satisfaction of the trial judge.