Singh & Ors Vs. Ambika Yadav & Anr  Insc 146 (9 March 2004)
Sabharwal & Arijit Pasayat Y.K. Sabharwal, J.
appellants were tried for an offence under Section 302/34 of Indian Penal Code
for commission of murder of one Rameshwar Yadav. The court of sessions held
that the prosecution has failed to prove charge levelled against them beyond
reasonable doubt and thus acquitted all of them. The judgment and order of
acquittal was challenged by the informant in a revision petition. The High
Court by the impugned judgment, setting aside the judgment and order of
acquittal in favour of the appellants, has remitted the case for its retrial by
court of sessions in accordance with law directing the court to decide the
matter on the basis of evidence and material already on record and not allow
parties to adduce further evidence.
learned counsel for the appellants submits that the trial court had given
cogent reasons and on due appreciation of evidence directed the acquittal of the
accused and the impugned judgment of the High Court clearly amounts to reappreciation
of evidence which is not permissible in the exercise of revisional
jurisdiction. Learned counsel has taken us through the judgment and order of
the trial court to buttress his submission that the evidence and material on
record was duly considered by the court of sessions as a result whereof the
conclusion was reached that prosecution has failed to establish its case beyond
reasonable doubt. On the other hand Mr.B.B.Singh and Mr.A.P. Sahay, learned
counsel appearing for the State and the informant have taken us also through
the depositions of some of the witnesses to buttress their submission that the
court of sessions has overlooked material evidence which has resulted in
manifest illegality and gross miscarriage of justice.
principles on which revisional court can set aside a judgment and order of
acquittal passed in favour of the accused are well settled by catena of
judgments. The difficulty, however, arises at times about the application of
the said principles. It is true that there is a statutory prohibition contained
in sub- section (3) of Section 401 of Criminal Procedure Code from converting a
finding of acquittal into one of conviction and what is prohibited cannot be
done indirectly as well. The question, however, is has High Court indirectly
done what is prohibited.
397 to 401 of the Code are group of sections conferring higher and superior
courts a sort of supervisory jurisdiction. These powers are required to be
exercised sparingly. Though the jurisdiction under Section 401 cannot be
invoked to only correct wrong appreciation of evidence and the High Court is
not required to act as a court of appeal but at the same time, it is the duty
of the court to correct manifest illegality resulting in gross miscarriage of
than half a century ago, in D.Stephens v. Nosibolla (1951 SCR 284 = AIR 1951 SC
196), this Court held that revisional jurisdiction when it is invoked against
an order of acquittal by a private complainant is not to be lightly exercised,
it could be exercised only in exceptional cases to correct a manifest
illegality or to prevent a gross miscarriage of justice and not to be
ordinarily used merely for the reason that the trial court has misappreciated
the evidence on record.
Reddy v. State of Andhra
Pradesh & Anr.
(1963 (3) SCR 412 = AIR 1962 SC 1788) a note of caution was appended so that
the High Court does not convert a finding of acquittal into one of conviction
by the indirect method of ordering retrial when it cannot directly convert a
finding of acquittal into a finding of conviction in view of specific statutory
prohibition. While noticing that it is not possible to lay down the criteria
for determining exceptional cases which would cover all contingencies for
exercise of revisional power, some cases by way illustration were mentioned
wherein the High Court would be justified in interfering with the finding of
acquittal in revision. The High Court would be justified to interfere where
material evidence is overlooked by the trial court.
recent decision in Bindeshwari Prasad Singh alias B.P. Singh & Ors. v.
State of Bihar [now Jharkhand] & Anr. (
6 SCC 650) noticing principles laid in Stephen's and Chinnaswamy Reddy it was
held that the High Court was not justified in reappreciating the evidence on
record and coming to a different conclusion in a revision preferred by the
informant under Section 401 of the Code since it was well settled that the
order of acquittal cannot be interfered with in revision merely on the ground
of errors in appreciation of evidence.
upon these decisions, Mr. Misra contends that the High Court while interfering
with the judgment and order of the Court of Sessions has not kept in view the
parameters of exercise of revisional jurisdiction.
to the facts of the case in hand, the prosecution case in nutshell is that
while the informant Ambika Yadav, PW6 along with his uncle Rameshwar Yadav
(deceased) was going in search of some labourers and no sooner they reached
near a well situated in front of the house of accused Rambriksh Singh, the
accused started uttering abuses, caught hold of Rameshwer Yadav and forcibly
took him into their house. On protest, the informant was threatened and abused.
dragging of Rameshwer Yadav by the appellants into their house was witnessed by
others but they were also abused and chased. While dragging the deceased, the
accused were uttering that he should be taken inside the house and cut into
pieces. The informant went to police station to inform the police. The police
party came and after breaking open the door of the house, the police entered
into the courtyard and found the mutilated dead body of Rameshwar Yadav. The
statement of the informant was recorded by the police officer, formal FIR
registered, investigation conducted whereafter the police submitted charge
sheet against the accused who were put on trial for the offence earlier
High Court has observed that the evidence of PWs 1, 2, 5, 6, 7 and 8 appears to
be relevant. PW8 is the Doctor who held autopsy over the dead body and also
proved the post mortem report. The injuries on the deceased show the brutal
manner in which he was done away with.
is no eye witness. The prosecution case depends upon circumstantial evidence.
The High Court with reference to evidence of PWs 2, 5 and 6 has noticed that
they had witnessed the dragging of deceased to the house. PW7, the
investigating officer has, inter alia, deposed about the house of the accused
having found locked on his visit, breaking opening of the door and on entry
having found the body of the deceased lying in the courtyard in a mutilated
condition and the conduct of the investigation. The High Court has observed
that the evidence on the point of dragging of the deceased and the recovery of
his dead body from the courtyard of the house of accused, Rambriksh Singh,
remained unshaken and has been duly corroborated by the evidence of Doctor PW8.
In this view, the High Court held that the evidence could not have been dealt
with in such a manner as has been dealt with by the trial court. Fully alive to
the limit of its jurisdiction under Section 401 of the Code but having regard
to the facts and circumstances of the case, the High Court came to the
conclusion that the case appears to be exceptional warranting interference. The
revisional court can set aside an order of acquittal and remit the case for
retrial where the trial court overlooking material evidence has passed the
order. In the present case, the material evidence seems to have been overlooked
by the trial court in relation to four circumstances, namely
dragging of the deceased to the house of accused Rambriksh Singh which was
joint house of the deceased;
house having been found locked by the police on visit;
breaking open of the door of the house and
recovery of the dead body in a mutilated condition in the courtyard of the
overlooking of evidence in relation to these circumstances warrants the remand
of the case to trial court for retrial which has been directed in terms of the
Singh relying upon the case of Ram Gulam Chaudhary & Ors. v. State of Bihar
( 8 SCC 311), submits that in the present case the accused have failed to
offer any explanation in respect of aspects exclusively within their knowledge
and, therefore, it is an additional link which completes the chain of
circumstances. It is not necessary for us to examine this aspect. It is not
relevant for the present purposes and may be addressed before the court of
sessions at an appropriate stage.
the aforesaid reasons, we are unable to accept the contention that the High
Court has reappreciated the evidence. The High Court has only demonstrated as
to how the material evidence has been overlooked leading to manifest illegality
resulting in gross miscarriage of justice. The impugned judgment of the High
Court does not call for any interference. Resultantly, the appeal is dismissed.