Prasad Singh @ B.P. Singh & Ors Vs. State of Bihar (Now Jharkhand)  Insc 344 (13 August 2002)
Shah & Bisheshwar Prasad Singh. Bisheshwar Prasad Singh, J.
appellants herein were tried by the learned Sessions Judge, Dhanbad in Sessions
Trial No. 193 of 1992 charged of the offence under Sections 302 and 302/114 of
the Indian Penal Code.
learned Sessions Judge by judgment and order dated 21st January, 1994 acquitted the appellants of the charges levelled against
them, finding that the prosecution had not proved its case beyond reasonable
appeal preferred by the State against the acquittal of the appellants was
dismissed by the High Court by its order dated 22nd November, 1994. No doubt the appeal was dismissed on the ground of
revision was preferred by the informant to the High Court under Section 401 of
the Code of Criminal Procedure which has been allowed by the impugned judgment
and order dated 6th
June, 2001 in Criminal
Revision No. 48 of 1994. The judgment of acquittal was set aside and the case
was remitted to the Sessions Judge for re-trial in accordance with law.
the evidence on record it appears that an occurrence took place on 20th July, 1989 at about 4.00 p.m. The informant and appellant No.1 entered into an
altercation in connection with removal of creepers which had climbed up to the
balcony of the informant. The informant as well as appellant 2 to 5 herein reside in the same building. The altercation took an
ugly turn and abuses were exchanged between appellant No.1 and the informant.
In the meantime son of the informant, namely Kumud came down and asked the
appellants as to why they had not removed the creepers.
case of the prosecution is that appellant No. 1 and other appellants shouted
and ordered assault on Kumud. In the assault that followed, deceased Kumud was
hit on the head with an iron rod, as a result of which he sustained a serious
injury. He was taken to the Bokaro General
Hospital, where he was declared dead.
matter was reported to the police. Thereafter the case was investigated and the
appellants were put up for trial before the Sessions Judge, Dhanbad.
prosecution relied upon the testimony of three eye witnesses, namely PWs. 1, 3
and 4, who were the mother, sister and father respectively of the deceased. The
First Information Report was lodged by PW.4, the father of the deceased. The
prosecution also relied upon the medical evidence on record, which according to
the prosecution, corroborated the evidence of the witnesses. The learned
Sessions Judge after a consideration of the evidence on record, acquitted the
appellants of the charges levelled against them.
State's appeal having been dismissed, a criminal revision was filed by the
informant, PW.4 under Section 401 of the Code of Criminal Procedure before the
revision before the High Court it was sought to be urged on behalf of the
informant that there was no reason to discard the testimony of PWs. 1, 3 &
4. The medical evidence on record corroborated their testimony. Therefore, on
the basis of the evidence on record, it should have been held that the
prosecution had proved its case beyond reasonable doubt.
other hand it was high-lighted by the appellants that the trial court had
recorded its reasons for their acquittal. In the First Information Report a
clear allegation was made against appellant No.1 of having assaulted Kumud
(deceased) on his head with an iron rod. However, other witnesses in the course
of their deposition attributed the assault on Kumud to appellant No.2, Anuj.
The informant also, in his deposition before the Court, changed his version and
in line with other witnesses deposed that it was Anuj, appellant No.2 who gave
the blow with an iron rod on the head of the deceased resulting in his death.
The medical evidence on record discloses that there were two external injuries
only, the first being a lacerated wound over the middle part of the left
parietal area and the other being an abrasion on the back of the right elbow.
perusal of the judgment of the High Court would disclose that the High Court
re-appreciated the evidence on record and came to the conclusion that the
learned Sessions Judge was not justified in recording the order of acquittal. The
evidence of eye witnesses was consistent and so far as the informant is
concerned, no doubt in the First Information Report he had attributed the fatal
injury to appellant No.1 but he later changed his version and deposed that the
injury was caused by appellant No. 2. The High Court was impressed by the
argument that the First Information Report not being a substantive piece of
evidence, at best the evidence of the informant was not corroborated by the
First Information Report. The High Court further found that the presence of eye
witnesses was natural and the mere fact that they were related was no ground to
discard their testimony. Rejecting the argument urged on behalf of the
appellants that there was no mention in the First Information Report about the
presence of the wife and the daughter of the informant as eye witnesses who
witnessed the occurrence from the balcony, the learned Judge observed that it
was not expected that every detail would be mentioned in the First Information
Report. On such reasoning, the High Court set aside the order of acquittal and
ordered re-trial of the appellants.
have carefully considered the material on record and we are satisfied that the
High Court was not justified in re-appreciating the evidence on record and coming
to a different conclusion in a revision preferred by the informant under
Section 401 of the Code of Criminal Procedure. Sub-section (3) of Section 401
in terms provides that nothing in Section 401 shall be deemed to authorize a
High Court to convert a finding of acquittal into one of conviction.
aforesaid sub-section, which places a limitation on the powers of the revisional
court, prohibiting it from converting a finding of acquittal into one of
conviction, is itself indicative of the nature and extent of the revisional
power conferred by Section 401 of the Code of Criminal Procedure. If the High
Court could not convert a finding of acquittal into one of conviction directly,
it could not do so indirectly by the method of ordering a re-trial. It is well
settled by a catena of decisions of this Court that the High Court will
ordinarily not interfere in revision with an order of acquittal except in
exceptional cases where the interest of public justice requires interference
for the correction of a manifest illegality or the prevention of gross
miscarriage of justice. The High Court will not be justified in interfering
with an order of acquittal merely because the trial court has taken a wrong
view of the law or has erred in appreciation of evidence. It is neither
possible nor advisable to make an exhaustive list of circumstances in which
exercise of revisional jurisdiction may be justified, but decisions of this
Court have laid down the parameters of exercise of revisional jurisdiction by
the High Court under Section 401 of the Code of Criminal Procedure in an appeal
against acquittal by a private party. (See AIR 1951 SC 196 : D. Stephens vs. Nosibolla;
AIR 1962 SC 1788 : K.C. Reddy vs. State of Andhra Pradesh; (1973) 2 SCC 583 : Akalu Ahir and others vs. Ramdeo Ram;
AIR 1975 SC 1854 : Pakalapati Narayana Gajapathi Raju and others vs. Bonapalli Peda
Appadu and another and AIR 1968 SC 707 : Mahendra Pratap Singh vs. Sarju
instant case is not one where any such illegality was committed by the trial
court. In the absence of any legal infirmity either in the procedure or in the
conduct of the trial, there was no justification for the High Court to
interfere in exercise of its revisional jurisdiction. It has repeatedly been
held that the High Court should not re-appreciate the evidence to reach a
finding different from the trial court. In the absence of manifest illegality
resulting in grave miscarriage of justice, exercise of revisional jurisdiction
in such cases is not warranted.
are, therefore, satisfied that the High Court was not justified in interfering
with the order of acquittal in exercise of its revisional jurisdiction at the
instance of the informant. It may be that the High Court on appreciation of the
evidence on record may reach a conclusion different from that of the trial
court. But that by itself is no justification for exercise of revisional
jurisdiction under Section 401 of the Code of Criminal Procedure against a
judgment of acquittal. We cannot say that the judgment of the trial Court in
the instant case was perverse. No defect of procedure has been pointed out.
There was also no improper acceptance or rejection of evidence nor was there
any defect of procedure or illegality in the conduct of the trial vitiating the
trial itself. At best the High Court thought that the prosecution witnesses
were reliable while the trial court took the opposite view. This Court has
repeatedly observed that in exercise of revisional jurisdictional against an
order of acquittal at the instance of a private party, the Court exercises only
limited jurisdiction and should not constitute itself into an appellate court
which has a much wider jurisdiction to go into questions of facts and law, and
to convert an order of acquittal into one of conviction. It cannot be lost
sight of that when a re-trial is ordered, the dice is heavily loaded against
the accused, and that itself must caution the Court exercising revisional
therefore, find no justification for the impugned order of the High Court ordering
re-trial of the appellants.
High Court has noticed the fact that the State had preferred an appeal against
the acquittal of the appellants. That appeal was dismissed by the High Court on
the ground of limitation. In principle that makes no difference, because the
dismissal of the appeal even on the ground of limitation is a dismissal for all
purposes. As observed earlier, the jurisdiction of the High Court in dealing
with an appeal against acquittal preferred under Section 374 of the Code of Criminal
Procedure is much wider than the jurisdiction of revisional court exercising
jurisdiction under Section 401 of the Code of Criminal Procedure against an
order of acquittal at the instance of a private party. All grounds that may be
urged in support of the revision petition may be urged in the appeal, but not
vice versa. The dismissal of an appeal preferred by the State against the order
of acquittal puts a seal of finality on the judgment of the trial court. In
such a case it may not be proper exercise of discretion to exercise revisional
jurisdiction under Section 401 of the Code of Criminal Procedure against the
order of acquittal at the instance of a private party.
of revisional jurisdiction in such a case may give rise to an incongruous situation
where an accused tried and acquitted of an offence, and the order of acquittal
upheld in appeal by its dismissal, may have to face a second trial for the same
offence of which he was acquitted.
these reasons we allow this appeal and set aside the impugned judgment and
order of the High Court.