Johar
and Others Vs. Mangal Prasad and Another [2008] Insc 110 (30 January 2008)
S.B.
Sinha & V.S. Sirpurkar
(Arising
out of SLP (CRL) NO. 2014 OF 2007) S.B. SINHA, J.
1.
Leave granted.
2.
Appellants were charged for commission of offences under Sections 148 and 302
of the Indian Penal Code and in the alternative under Section 302/149 and
Section 120-B of the Indian Penal Code. They were, however, convicted for
commission of an offence under Section 323 read with Section 34 of the Indian
Penal Code only, recording that as accused Nos. 1 to 4 had only caused simple
injuries to the deceased Umashankar, the provisions of Section 148 and 149 of
the Indian Penal Code were not attracted.
3. The
State did not prefer any appeal thereagainst. The complainant/respondent,
however, filed a revision application before the High Court. The High Court
went into the evidence adduced on behalf of the prosecution. In regard to the
deposition of the official witnesses including Autopsy Surgeon it was commented
:- 10. If a public servant is corruptly (sic) makes a report in a judicial
proceeding it will be offences under section 193 IPC and section 196 IPC and
preparation of document with an intention to save person from punishment, it
will be an offence falling under section 196 IPC. Thus, willful act of the
Doctor in not referring to other injuries in the post mortem report discloses
his intention to protect the respondents who are guilty of commission of
murder. Witnesses were firm on the point of beating of deceased by lathi and
number of injuries received by the deceased. It is held that post mortem report
is incomplete report prepared by the doctor to give undue advantage to the
accused. Appropriate steps for prosecution of PW9 Dr.Y.K. Malaiya be initiated
for intentionally preparing false evidence. It was opined that having
regard to the nature of deposition of the Autopsy Surgeon, the trial Court
committed a grave error in ignoring the other relevant materials brought on
records to pronounce a judgment of acquittal in favour of the respondents
(appellants herein). It was furthermore held that the doctor had willfully
suppressed the head injury and was thus guilty of dereliction of duty.
Re-appreciating the evidence of the prosecution witnesses, it was held :-
It is natural that when a person is surrounded by number of accused it is
difficult for eyewitness to describe the author of each and every injury. In para
16 of cross- examination, this witness has clarified that he has seen the body
of injured and he found that Umashankar was having lathi injuries on his entire
body and no place on his body was left where he had not received injuries by lathi.
4. On
the premise that the learned trial judge has mis-appreciated the evidence, the
revision application was allowed, directing :- 22. In the result, judgment
of acquittal passed by the trial court is set aside and the case is remanded to
the trial court to pass the judgment on the basis of evidence on record for
each offence keeping in mind evidence of eyewitnesses wherein it is stated that
deceased had suffered injuries on the whole body. The fact is also referred in Dehati
Naleshi and Panchnama of dead body Ex.P/3. Evidence of doctor will not prevail
over the eyewitness account in this case. This is a case under section 302 IPC
and the intention of all the respondents was to cause death of deceased. Trial
court shall also examine and pass necessary orders against the concerned doctor
for preparing document in order to give undue benefit to the accused.
5. We
may, however, before embarking upon the contentions raised before us by the
learned counsel for the parties place on record that one of the accused
persons, namely Roshan, had preferred an appeal before the High Court of Madhya
Pradesh at Jabalpur and by a judgment and order dated 18th November, 2003, it
while upholding his conviction under Section 323 read with Section 34 of the
Indian Penal Code set him free on probation on his furnishing a personal bond
for Rs.3,000/- (Rupees there thousand only) with one surety of the like amount.
The said judgment and order has attained finality.
6. Mr.
Fakhruddin, the learned Senior counsel appearing for the appellant, submitted
that the High Court committed a manifest illegality in passing the impugned
judgment which is in the teeth of Sub-section (3) of Section 401 of the Code of
Criminal Procedure, 1973.
7. Ms Vibha
Datta Makhija, the learned counsel appearing on behalf of the respondent-State,
on the other hand, urged that it is not a case where the High Court converted a
judgment of acquittal to a judgment of conviction in exercise of its revisional
jurisdiction but merely remitted the matter to the trial court for
consideration afresh, this Court should not interfere therewith.
8. The
State did not prefer any appeal from the judgment of the learned Trial Judge.
From the proceedings of the High Court, it appears that the State was not even
made a party in the criminal revision application. Public Prosecutor, however,
represented the State before the High Court. Nobody interestingly appeared on
behalf of the complaint-revisionist.
9. Revisional
jurisdiction of the High Court in terms of Section 397 read with Section 401 of
the Code of Criminal Procedure is limited. The High Court did not point out any
error of law on the part of the learned Trial Judge. It was not opined that any
relevant evidence has been left out of its consideration by the court below or
irrelevant material has been taken into consideration. The High Court entered
into the merit of the matter. It commented upon the credentiality of the
Autopsy Surgeon. It sought to re- appreciate the whole evidence. One possible
view was sought to be substituted by another possible view.
10.
Sub-section (3) of Section 401 reads as under :- 401(3). Nothing in this
section shall be deemed to authorize a High Court to convert a finding of
acquittal into one of conviction. Technically, although Ms. Makhija may be
correct that the High Court has not converted the judgment of acquittal passed
by the learned Trial Court to a judgment of conviction, but for arriving at a
finding as to whether the High Court has exceeded its jurisdiction or not, the
approach of the High Court must be borne in mind. For the said purpose, we may
notice a few precedents.
11. In
D. Stephens vs. Nosibolla : [1951] 1 SCR 284 this Court opined :- 10. The revisional
jurisdiction conferred on the High Court under section 439 of the Code of
Criminal Procedure is not to be lightly exercised when it is invoked by a
private complainant against an order of acquittal, against which the Government
has a right of appeal under section 417. It could be exercised only in
exceptional cases where the interests of public justice require interference
for the correction of a manifest illegality, or the prevention of a gross
miscarriage of justice. This jurisdiction is not ordinarily invoked or used
merely because the lower court has taken a wrong view of the law or misappreciated
the evidence on record.
12.
The same principle was reiterated in Logendra Nath Jha and others vs. Polailal Biswas
[1951 SCR 676] stating:
Though
sub-section (1) of section 439 authorises the High Court to exercise, in its
discretion, any of the powers conferred on a court of appeal by section 423,
sub-section (4) specifically excludes the power to convert a finding of
acquittal into one of conviction. This does not mean that in dealing with
a revision petition by a private party against an order of acquittal the High
Court could in the absence of any error on a point of law re-appraise the evidence
and reverse the findings of facts on which the acquittal was based, provided
only it stopped short of finding the accused guilty and passing sentence on
him. By merely characterizing the judgment of the trial court as
perverse and lacking in perspective, the High Court cannot
reverse pure findings of fact based on the trial Courts appreciation of
the evidence in the case.
That
is what the learned Judge in the court below has done, but could not, in our
opinion, properly do on an application in revision filed by a private party
against acquittal
13. In
the instant case the High Court not only entered into the merit of the matter
but also analysed the depositions of all the witnesses examined on behalf of
the prosecution. It, in particular, went to the extent of criticizing the
testimony of Autopsy Surgeon. It relied upon the evidence of the so called eye
witnesses to hold that although appellants herein had inflicted injuries on the
head of the deceased, Dr. Y.K. Malaiya, PW-9, deliberately suppressed the same.
He was, for all intent and purport, found guilty of the offence under Section
193 and 196 of the Indian Penal Code. The Autopsy Surgeon was not
cross-examined by the State. He was not declared hostile.
The
State did not even prefer any appeal against the judgment.
14. In
the absence of any such injury on the vital part of the body, the learned trial
Judge, upon analyzing the evidence brought on record by the prosecution, held
that only four accused had committed the offence under Section 323 read with
Section 34 alone. We see no reason as to how the findings of the trial judge
can be said to be perverse. The learned trial judge in arriving at his
conclusion noticed:-
(i)
Names of some of the appellants were not stated in the first information
report.
(ii)
Some of the accused persons were not present at the time of commission of
offence, as their plea of alibi was acceptable.
(iii)
The story of recovery of lathis from some of the accused is doubtful.
(iv)
Purported recovery of lathi by the investigating officer without any disclosure
statement having been made by the concerned accused, was not relevant.
(v)
Some of the accused did not have any dispute whatsoever with the complainant side,
as such they had no motive to commit the crime.
(vi)
Only because some of the accused were present at the time of commission of the
offence, having regard to the fact that the incident took place in a very small
village, their presence at the time of occurrence by itself cannot lead to an
inference that they participated therein, particularly when prosecution
witnesses did not name them.
(vii)
No independent witness had been examined by the prosecution despite the fact
that a large number of persons witnessed the incident.
15.
Upon analyzing the entire evidence on record, the learned trial judge held :-
58. In view of the discussion and analyses made hereinabove prosecution
has proved that accused persons No. 1 to 4 i.e. Johar, Ruplal, Roshan and Santosh
inflicted simple injuries to deceased Umashankar.
Against
accused persons offence under Section 148, 302 r/w 149 IPC have been leveled
but in the incident only accused No. 1 to 4 have committed and thus
participation of the number of accused is proved to be four only and under
section 148 & 149 IPC the accused persons minimum remained to be five. As
such against accused No.1 to 4 offence under Section 148 & 149 are not
proved.
16.
Evidently the High Court raised a presumption that Autopsy Surgeon deliberately
did not disclose the ante mortem head injury purported to have been suffered by
the deceased.
17.
The approach of the High Court to the entire case cannot be appreciated. The
High Court should have kept in mind that while exercising its revisional
jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure, it
exercises a limited power. Its jurisdiction to entertain a revision
application, although is not barred, but severally restricted, particularly
when it arises from a judgment of acquittal.
18.
Ms. Makhija is correct that sub-section (4) of Section 378 of the Code of
Criminal Procedure was not available to the first informant but the same by
itself would not mean that in absence of any appeal preferred by the State, the
limited jurisdiction of the court should be expanded.
19. We
may notice a few of the decisions of this Court which are binding on us.
In K. Chinnaswamy
Reddy vs. State of Andhra Pradesh : [1963] 3 SCR 412, this Court observed :-
It is true that it is open to a High Court in revision to set aside an
order of acquittal even at the instance of private parties, though the State
may not have though fit to appeal; but this jurisdiction should in our opinion
be exercised by the High Court only in exceptional cases, when there is some
glaring defect in the procedure or there is a manifest error on a point of law
and consequently there has been a flagrant miscarriage of justice. Sub-section
(4) of s. 439 forbids a High Court from converting a finding of acquittal into
one of conviction and that makes it all the more incumbent on the High Court to
see that it does not convert the finding of acquittal into one of conviction by
the indirect method of ordering retrial, when it cannot itself directly convert
a finding of acquittal into a finding of conviction. This places limitations on
the power of the High Court to set aside a finding of acquittal in revision and
it is only in exceptional cases that this power should be exercised. In Mahendra
Pratap Singh vs. Sarju Singh and Anr. [1968] 2 SCR 287 this Court stated the
law thus :-
8. The
practice on the subject has been stated by this Court on more than one
occasion. In D. Stephens v. Nosibolla [[1951] S.C.R. 284], only two grounds
were mentioned by this Court as entitling the High Court to set aside an
acquittal in a revision and to order a retrial. They are that there must exist
a manifest illegality in the judgment of the Court of Session ordering the
acquittal or there must be a gross miscarriage of justice. In explaining these
two propositions, this Court further states that the High Court is not entitled
to interfere even if a wrong view of law is taken by the Court of Session or if
even there is misappreciation of evidence. Again, in Logendranath Jha and
others v. Shri Polailal Biswas [[1951] S.C.R. 676], this Court points out that
the High Court is entitled in revision to set aside an acquittal if there is an
error on a point of law or no appraisal of the evidence at all. This Court
observes that it is not sufficient to say that the judgment under revision is
"perverse" or "lacking in true correct perspective". It is
pointed out further that by ordering a retrial, the dice is loaded against the
accused, because however much the High Court may caution the Subordinate Court, it is always difficult to re-weigh
the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy
Reddy v. State of Andhra Pradesh, it is pointed out that an interference in
revision with an order of acquittal can only take place if there is a glaring
defect of procedure such as that the Court had no jurisdiction to try the case
or the Court had shut out some material evidence which was admissible or
attempted to take into account evidence which was not admissible or had
overlooked some evidence. Although the list given by this Court is not exhaustive
of all the circumstances in which the High Court may interfere with an
acquittal in revision it is obvious that the defect in the judgment under
revision must be analogous to those actually indicated by this Court. In Janata
Dal vs. HS Chowdhary : (1992) 4 SCC 305, this Court stated that the object of
the revisional jurisdiction was to confer power on superior criminal courts to
correct miscarriage of justice arising from misconception of law, irregularity
of procedure, neglect of proper precaution or apparent harshness of treatment.
In
State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand : (2004) 7 SCC 659
this Court observed :-:
21.
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 Cr.
PC. 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. Ram Briksh Singh 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 judgment of Ram Briksh
mentioned above, has since been reported as Ram Briksh Singh vs. Ambika Yadav :
(2004) 7 SCC 665 wherein it has been observed :- 12. For 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. It was, therefore, relevant in the fact situation
obtaining therein.
Yet
again in Satyajit Banerjee vs. State of W.B. : (2005) 1 SCC 115 this Court has,
while exercising its jurisdiction under Section 142 of the Constitution of
India, expressed a note of caution stating :- 22. The cases cited by the
learned counsel show the settled legal position that the revisional
jurisdiction, at the instance of the complainant, has to be exercised by the
High Court only in very exceptional cases where the High Court finds defect of
procedure or manifest error of law resulting in flagrant miscarriage of
justice.
20. We
may notice that prohibition contained in sub-section (3) of Section 421 refers
to a finding and not the conclusion.
A bare
perusal of the judgment of the High Court clearly demonstrates that in effect
and substance the finding of the learned trial judge has been reversed. While
hearing the matter afresh in terms of the direction of the High Court, the
learned Trial Judge would be bound by the observations made therein and thus,
would have no option but to convict the appellants.
21.
Not only the evidence of the prosecution witnesses has been relied upon and
that of the Autopsy Surgeon has been disbelieved but the Trial Judge has also
been asked to initiate an appropriate proceeding against him.
22. We
have, therefore, no hesitation to hold that the High Court exceeded its
jurisdiction in view of the fact that the judgment of the learned Trial Judge
could not be termed to be a perverse one.
23.
The Trial Court might be wrong as regards analyzing the prosecution evidence
but then it had not relied upon the evidence of the eye witnesses only having regard
to the opinion of medical expert. The learned Trial Judge considered the plea
of alibi on the part of some of the accused and accepted the same. The High
Court did not bestow any consideration in this behalf. It also failed to take
into consideration that even by-standers have been implicated in the matter.
24.
Unfortunately, the High Court did not meet the reasonings of the learned trial
judge which was its bounden duty.
25.
Even the effect of the order dated 18.11.2003 passed by the High Court in the
appeal preferred by Roshan was not taken into consideration.
The
said order attained finality. If Roshan was guilty of commission of an offence
under Section 323 of the Indian Penal Code, we fail to see any reason as to how
others could be held guilty for commission of the offence under Section 302
thereof.
In any
event, the judgment passed in favour of Roshan could not have been set aside
indirectly which could not be done directly.
26.
For the reasons abovementioned, the impugned judgment cannot be sustained,
which is set aside accordingly. The appeal is allowed.
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