Rajanikant Vs. State of Maharashtra
 INSC 207 (30 September 1970)
30/09/1970 [S. M. SIKRI, K. S. HEGDE AND I.
D. DUA, JJ.]
Appeal--Conviction under Ss. 326 and 324
I.P.C.-High Court dismissing appeal summarily without giving any reason-If
desirable course- Necessity for giving reasons to enable Supreme Court property
to exercise its power under Article 136 of the Constitution.
The appellant was convicted. by the Trial
Court for offences under Sections 326 and 324 I.P.C. for having voluntarily
caused grievous hurt with a dangerous weapon to one person, and for causing
hurt to three other persons. He was sentenced to imprisonment for four years
for his conviction under Section 326 and for 11/2 years for each of the three
offences under Section 324, all sentences to run concurrently. The appellant
filed an appeal against his conviction to the High Court at Bombay but his
appeal was dismissed by the Court with one word "dismissed".
In appeal to this Court by special leave
under Article 136, it was contended on behalf of the appellant that the
injuries complained of were inflicted by him in the exercise of his lawful and
legitimate right of self-defence. It was also contended that the statements of
three of the eye witnesses made in the committing Court from which they had:
resiled at the trial should not have been
acted upon by the Trial Court in support of the prosecution version; and that
the only witness who did not resile from the statement in the committing Court
was a highly interested witness in that he was the person on whom injuries were
stated to,. have been inflicted by the appellant; therefore his evidence should
not have been implicitly accepted.
HELD : dismissing the appeal, (i) On the
evidence, the plea of self defence taken by the appellant could not be
sustained. Furthermore the statements of the three witnesses in the committing
court from which they resiled at the trial and which were duly brought on the
record of the trial court under Section 288 Cr. P.C. constituted substantive
evidence and if the court was satisfied that those statements were true whereas
those made in the trial court were untrue, then the earlier statements could
safely be relied upon to sustain the conviction. In this case a mere reading of
the statements at the trial demonstrated their unconvincing nature and it was
clear that there was some ulterior motive for the witnesses to resile from the
earlier statements which appeared to have a ring of truth about them. The trial
court was therefore right in convicting the appellant for offences under Ss.
326 and 324 I.P.C. [536 B-D] (ii) On reading the judgment of the learned
Additional Sessions Judge and the memorandum of the grounds of appeal in the
High Court it was clear that the summary dismissal of the appeal by the High
Court with one word "dismissed" without indicating its views on the
points raised in the appeal which appeared to be arguable was not right. This 5
3 0 Court has repeatedly pointed out that when an appeal to the High Court
under the Code of Criminal Procedure raises some arguable points, the High
Court would be well-advised to give some indication of the reasons for its view
while repelling those points. Without having the benefit of the opinion of the
High Court, this Court is likely to feel embarrassed in dealing with those
points on appeal by special leave. [530 H-531 C] Mustak Hussein, v. The State
of Bombay,  S.C.R. 809 at 820 and Challappa Ramaswami v. State of
Maharashtra  (2) S.C.R. 426; referred to.
Section 410 Cr.P.C. confers a right of appeal
to the High Court on a person convicted on a trial held by a Sessions Judge or
an Additional Sessions Judge. This right entitles the aggrieved party to
challenge conclusions of facts and to claim reappraisal of evidence. It would,
therefore, be conducive to the ends of justice if the High Courts were as a
general rule to let this Court have the benefit of their valuable opinion in
cases which raise arguable points whether on facts or on law so as to enable
this Court satisfactorily to exercise its power under Art. 136 and dispose of
the appeal finally. [in order to avoid further delay in the disposal of the
present case the Court decided to go into the evidence-a course this Court is
normally reluctant to adopt in appeals under Art. 136-because this case prima
facie raised arguable points]. [531 D-F] (iii) Although this Court would not
normally interfere with the quantum of sentences on appeal under Art. 136, in
the present case as the High Court had erroneously dismissed the appeal summarily
without giving the reasons, this was a fit case where this Court on a
consideration of the relevant circumstances could go into the question of
sentences itself (the Court field that the sentence of two years imprisonment
would meet the ends of justice). [536 E]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 99 of 1968.
Appeal by special leave from the order dated
March 28, 1968 of the Bombay High Court in Criminal Appeal No. 380 of 1968.
V. M. Tarkunde, N. H. Hingorani and K.
Hingorani, for the appellant.
M. C. Bhandare and S. P. Nayar, for the
The Judgment of the Court was delivered by
Dua, J. This is an appeal by special leave from the judgment of the High Court
of Judicature at Bombay dated March 28, 1968 summarily dismissing the
appellant's appeal against his conviction by the Additional Sessions Judge,
Greater Bombay for offences under ss. 326 and 324, I.P.C. The High Court
disposed of his appeal with one word "dismissed".
At the outset we must point out that on
reading the judgment of the learned Additional Sessions Judge and the
memorandum of ,the grounds of appeal in the High Court we felt that the summary
5 3 1 dismissal of the appeal by the High Court with one word
"dismissed" without indicating its views on the points raised in the
appeal which clearly appears to us to be arguable was not right. This Court has
repeatedly pointed out that when an appeal to the High Court under the Code of
Criminal Procedure raises some arguable points the High Court would be well
advised to give some indication of the reasons for its view while repelling
those Points. Without having the benefit of the opinion of the High Court this
Court is likely to feel embarrassed in dealing with those points on appeal by
special leave' [see Mushtak Hussain v.
The State of Bombay() and Challappa Ramaswami
v. State of Maharashtra(2)]. We would like once again to emphasise that Art.
136 of the Constitution does not confer a right of appeal on a party aggrieved
by the, decision of a High Court : it merely confers on this Court a
discretionary power to interfere in suitable cases. For judicious exercise of
this power this Court expects the High Courts to record speaking orders,
however sketchy, even while summarily dismissing appeals which raise arguable
points. Section 410, Cr.
P.C., it is worth noting, confers a right of
appeal to the High Court on a person convicted on a trial held by a Sessions
Judge or an Additional Sessions Judge. This right entitles the aggrieved party
to challenge conclusions of facts and to claim reappraisal of evidence. It
would, therefore, be conducive to the ends of justice if the High Courts were
as a general rule to let this Court have the benefit of their valuable opinion
in cases which raise arguable points whether on facts or on law so as to enable
this Court satisfactorily to exercise its power under Art.
136 and dispose of the appeal finally. In the
absence of a speaking order of the High Court this Court may have to remand the
cases to the High Courts for re-hearing and recording reasons for their
conclusions, to the avoidable harassment of the accused persons concerned and
delay in the final disposal of criminal cases. In the present appeal to avoid
further delay in the disposal of the case we chose to go into the evidence ourselves-a
course which normally this Court is reluctant to adopt in appeals under Art.
136- because we felt that it did prima facie raise arguable points.
The appellant Rajni alias Bal Ghanshyam
Gadkar was charged with an offence of attempted murder under s. 307, I.P.C. for
having stabbed Namdeo Keshav Padte (P.W. 2) with a knife on June 21, 1966. In
the alternative he was charged under S.
326, I.P.C. with the offence of having
voluntarily caused the said Padte grevious hurt with a dangerous weapon
(knife). He was further charged with three offences under S. 324, I.P.C. for
having (1)  S. C. R. 809 at 820.  2 S. C. R. 426.
5 32 voluntarily caused in the same
transaction hurts to Vasant Narayan Shinde, Promod Dattaram Chavan and to Sudam
Mahadeo Khanvilkar. The trial court convicted the appellant under S. 326,
I.P.C. instead of s. 307, I.P.C. for stabbing Padte and sentenced him to
rigorous imprisonment for four years.
It also convicted him under S. 324, I.P.C.
for causing hurt to the other three persons and, sentenced him to rigorous
imprisonment for one and:, a half years for each of the three offences. All the
sentences were directed to run concurrently.
Shri Tarkunde, learned counsel for the
appellant, took us through the relevant record for the purpose of showing that
the, assessment of the evidence by the trial court was erroneous and,
therefore, unsustainable. We were constrained to permit him to refer to the
evidence as we did not have the benefit of knowing the reasons which had
prevailed with the High Court in agreeing with the ultimate conclusions of the
trial court. The occurrence took place at 9 p.m. on June 21, 1966 in the 10th
Lane of Kerwadi, Bombay and the F.I.R. was lodged 'by Namdeo Keshav Padte (P.W.
2 )at 10-30 p.m. the same night at the police station, Lamington Road.
According to this report Padte's cousin Dattatraya Gajanan More (P.W. 8) who
wanted to purchase a scooter had for that purpose approached one Vinod
Nimbelkar (P.W. 3) known to Padte. More had told Padte that the former had paid
a sum of Rs. 5 or 6 thousand to the accused Rajni through Nimbelkar. The
accused neither gave the scooter nor returned the money. On being approached by
More for the return of the money he was put off on various pretexts. More had
about two days earlier instructed Padte to go to Rajnikant with Nimbelkar to
get back the money.
Accordingly on June 20, in the evening Padte
contacted Rajinikant at his residence but he was told that Rajnikant had
returned the money to Nimbelkar at about 3 p.m. On the date of the occurrence
Padte returned home at about 6 p.m.
He went to Nimbalkar and after taking him
along, they both went to the accused. The accused was not present at his
residence but they learnt from his mother that he would return at about 9 p.m.
Padte and Nimbalkar then went back to the latter's residence in Sikka Nagar. At
about 8-45 p.m. when they again went to the house of the accused Chavan (P.W.
5) another resident of Sikka Nagar, also accompanied them. Shinde (P.W. 4) who
was known to Chavan also jointed them on the way. They all went to the
residence of the accused at about 9 p.m. but again did not find him there.
While coming down from the first floor of the
building they found the accused with three or four boys. Nimbalkar asked him as
to when he would return the money. The accused replied that he did not
recognise Nimbalkar but would settle the matter with More. On Padte's
intervention the accused told him also that he did not 5 3 3 recognise him.
When Padte insisted that he had been introduced to him by More the accused
whipped out a knife from the pocket of his pants and stabbed him causing injury
on the left side 'of his stomach and on his left hand.
Thereafter the accused stabbed Shinde and
then ran away.
This report was actually recorded in the J.
J. Hospital where R. M. Naik, S. 1. Lamington Road Police Station (P.W.
10) and B. N. Patil, G.S.I. attached to the
same police station (P.W. 12) had gone, on learning on telephone about an
assault case in the 10th Lane, Kerwadi and admission of two persons in that
hospital. This information was conveyed on telephone from V. P. Road Police
Station where Padte and Shinde had been taken by their friends and from where
the injured persons were taken to the J. J. Hospital in a jeep by constable
Babu Parab (P.W. 9). After registering the crime at the police station both
P.W. 10 and P.W. 12 went to the appellant's residence but found him absent. A
watch was kept at his house. The appellant was, however, arrested at Goregaon
on the following day (June 22, 1966) and was not medically examined. He had
some injuries on his person.
An abnormal feature in this, case is that
three eye- witnesses Shinde (P.W. 4), Chavan (P.W. 5) and Khanvilkar (P.W. 6)
who supported the prosecution case in the committing court changed their
statements at the trial in the court of the Additional Sessions Judge. They
were declared hostile and cross-examined by the prosecutor and confronted with
their earlier statements from which they had resiled. Nimbalkar (P.W. 3) who
had not been examined in the committing court also declined to Support the
prosecution story when produced as a witness at the trial in the court of the
Additional Sessions Judge. The ground stated by him was that apprehending use
of violence and of assaults lie had left the place of occurrence as soon as the
quarrel started. He too was declared hostile and cross- examined. The evidence
of Padte (P.W. 2) completely supported the prosecution case and remained
unshaken. The statements of P.Ws. 4, 5 and 6 made in the committing court were
duly brought on the record under s. 288, Cr. P.C., When confronted with the
portions of their statements made in the committing court, the truth of which
they had denied at the trial, they merely said that they did not know how those
portions came to be recorded. The trial court after going through the material
on the record came to the conclusion that the version given by Padte regarding
the actual occurrence was fully established. The discrepancies on minor points
were held not to affect the trustworthiness of the witness on the salient
features of the occurrence which fully brought home to the appellant his guilt.
On appraisal of the entire evidence the appellant was found guilty of offences
under S. 326 and s. 324, I.P.C. Under 626, I.P.C. he was sentenced to four
years rigorous 36Sup C.I./71 5 3 4 imprisonment for injuries caused to each one
of the three P.Ws. Shinde, Chavan and Khanvilkar. All the four sentences of
imprisonment were to run concurrently In this Court on behalf of the appellant
his learned counsel Shri Tarkunde very strongly argued that the evidence on the
record and the probabilities of the case show that Padte (P.W. 2) and his
companions were the. aggressors and the appellant was merely trying to defend
himself when he attempted to catch hold of the knife with which Padte had
threatened to attack him. Padte, according to the submission, got wounded as a
result of the push given to him by the appellant who, during this struggle,
Successfully snatched his knife. Emphasis was in this connection laid on the
fact that Padte and his companions were admittedly six in number and the
appellant who was single-banded could not have dared to run the risk of a clash
with them by starting the assault. In the alternative it was suggested that
assuming the appellant had in his possession a knife of his own, as a matter of
fact he was first hit by Padte (P.W. 2) with his umbrella and it was thereafter
that the appellant, in order to defend himself gave the knife blow. Now this
was not the plea taken by the appellant in his statement under s. 342, Cr.
P.C., but his counsel contended that it was open to him to rely on the
prosecution evidence itself for substantiating this defence. For this purpose
lie relied on the evidence of Padte where he admitted that he had tried to push
back the appellant with his umbrella after receiving from him the stab wound.
Padte, it was argued, had rightly admitted use of umbrella by him, but bad
suppressed the truth. Instead of admitting the initial assault by him he had
shifted the use of umbrella to a time after the receipt of injury by him
suggesting thereby that it was used in self-defence Stress was in this
connection laid on the fact that a broken umbrella was found by the
investigating officers at the place of occurrence. From this circumstance
support was sought for the suggestion that Padte must have hit the appellant
with the umbrella with considerable force and that could only be done before he
was injured. Faced with six hostile men, use of knife by the appellant after
having been severely hit was, according to the counsel, a lawful and legitimate
exercise of his right of self-defence.
It is true that an accused person can,
without calling defence evidence in support of the plea of self-defence, rely
on the evidence led by the prosecution and the material on the record for
showing that he had acted in self-defence.
In such cases the real question which the
court is called upon to decide is whether on proper appraisal of the evidence
and the relevant material on the record it can be said that the accused has
been proved to be guilty beyond reasonable doubt. For the court cannot
justifiably ignore the 535 material which establishes the right of self-defence
merely because the accused has for some reason or the other omitted to take
such plea. On going through the evidence and the material on the record we are,
however, unable to hold that the injuries in question had been inflicted on the
prosecution witnesses by the appellant while acting in self- defence. The,
injuries on the appellant's person were found, on examination by Dr. V. B.
Nair, Casualty Medical Officer in Charitable Nair Hospital on June 22, 1966 at
about 5 p.in. to be a contused lacerated wound over the right scapular region
1/2" x 1/4" skin deep and two abrasions, (a skin abrasion on the
right ring finger and a linear abrasion over the left elbow). The injury over
the right scapular region indicates that it was, caused to the appellant by
someone hitting him from behind and if that be so, then as suggested by the
trial court it seems more probable that in the melee following the free use of
knife by the appellant, someone bit him with the umbrella when he was trying to
escape after giving the knife injuries to the P.Ws. It could not be the result of
a push as stated by Padte. There being no clear evidence on the point the Court
has to go by probabilities. On this view we are unable to sustain the
appellant's suggestion that he was first assaulted with umbrella. The other
submission that the appellant, when threatened by Padte with knife, tried to
snatch it and during the course of this struggle Padte may have accidentally
been wounded in his abdomen when pushed by the appellant, has merely to be
stated to be rejected. 'The story not only sounds unrealistic but we are also
unable to find on the record any rational basis for its acceptance.
The nature of the stab wound in the abdomen
as described by Dr. Virendra J. Shankar (P.W. 11) also seems to negative this
suggestion. The wound has penetrated into the abdominal cavity and intestinal
loops were visible and were coming out. Keeping in view the nature of the
scuffle it could not be accidental. The abrasions on the appellant's finger
relied upon by the appellant's counsel in support of this theory is equally
unhelpful. In a struggle for snatching an open knife from another person's
hostile hands one would expect more serious injuries than mere abrasions.
The plea on the right of private defence
must, therefore, be repelled.
It was then contended that the statements of
the three witnesses (P.Ws. 4, 5 and 6) made in the, committing court from which
they had resiled at the trial, should not have been acted upon by the trial
court in support of the prosecution version and P.W. 8 the only witness who did
not resile from the statement in the committing court is a highly interested
witness and, therefore, his evidence should not be implicitly accepted, said
Nimbalkar (P.W. 3) who was produced at the
trial without having been examined in the committing court was also declared
hostile 536 and was permitted to be, cross-examined by the prosecutor.
His evidence, according to the appellants
counsel, is no better and, therefore, does not add strength to the prosecution
case. This Court must, therefore, hold that the evidence on the record is not
trustworthy and it does not establish the appellant's guilt beyond reasonable
doubt. We are not impressed by this submission. The statements of the three
witnesses in the committing court from which they resiled at the trial and
which were duly brought on the record of the trial court under S. 288, Cr. P.C.
constitute substantive evidence and if the court is satisfied that those
statements were true whereas those made in the trial court were untrue then the
earlier statements can safely be relied upon to sustain the conviction. In this
case a mere reading of the statements at the trial demonstrates their
unconvincing nature and it seems clear that there was some ulterior motive for
the witnesses to resile from the earlier statements which appear to have a ring
of truth about them.
We are, therefore, satisfied that the trial
court was right in convicting the appellant for offences under ss. 326 and 324,
On the question of sentence, however, we feel
that in view of the somewhat dubious nature of the transaction which led to the
occurrence and the fact that the, appellant had felt somewhat annoyed at the
repeated visits of P.Ws. to his house where unpleasant scenes were created in
the presence of his mother the sentence imposed is somewhat severe. In our
opinion a sentence of two years' rigorous imprisonment would meet the ends of
justice. This Court normally does not interfere with the quantum of sentence on
appeal under Article 136, but in the present case, :as the High Court bad, in
our opinion, erroneously dismissed the :appeal summarily without giving
reasons, we have chosen on a consideration of all the relevant circumstances to
go into the question ourselves.
The appellant will surrender to his bail bond
to serve out the remaining sentence.
R.K.P.S. Appeal dismissed.