Rajasthan High Court - Jaipur
Mohd.Noor vs Bhanwar Lal on 19 July, 2022
Bench: S. S. Shinde, Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Revision Petition No. 132/1984
Mohammed Noor son of Suleman, Resident of Hindoli, Distt.
Bundi
----Complainant/Petitioner
Versus
1. Bhanwar Lal son of Hazari Gujar, Resident of Hindoli, Distt.
Bundi
2. Surajmal son of Bhanwar Lal Khatik, Resident of Hindoli, Distt.
Bundi
3. Sheoji son of Kanwra Mali, Resident of Hindoli, Distt. Bundi
----Convicted accused/Non-Petitioners
4. Mohan son of Ganga Ram Gujar, Resident of Hindoli, Distt.
Bundi
5. Hari Prasad son of Ganesh Brahman,Resident of Hindoli, Distt.
Bundi
6. Heera Lal son of Nathu Khatik, Resident of Hindoli, Distt.
Bundi
7. Devi Lal son of Madho Kalal, Resident of Hindoli, Distt. Bundi
8. Prabhu son of Madho Gujar, Resident of Hindoli, Distt. Bundi
9. Raju alias Rajendra son of Nathu Khatik,Resident of Hindoli,
Distt. Bundi
10. Pokhar son of Kanhaiya Lal Mali, Resident of Hindoli, Distt.
Bundi
11. Suraj Mal son of Deva Mali, Resident of Hindoli, Distt. Bundi
12. Brij Mohan son of Mohari Lal Brahman, Resident of Hindoli,
Distt. Bundi
----Acquitted accused/Non-Petitioners
13. The State of Rajasthan.
----Non-Petitioner
Connected with
S.B. Criminal Appeal No. 20/1984
1. Bhanwar Lal son of Shri Hazari,
2. Suraj Mal son of Shri Bhanwar Lal
3. Soji alias Shivji son of Shri Kanwara,
all Residents of Village Hindoli, Distt. Bundi
(At present undergoing sentences of imprisonment)
----Accused-Appellants
Versus
(Downloaded on 22/07/2022 at 09:41:04 PM)
(2 of 23) [CRLR-132/1984]
The State of Rajasthan
----Respondent
For petitioner : Mr. Santosh Kumar Jain, Mr. Dinesh Yadav & Ms. Dipti Jain for accused appellant No.1 in Criminal Appeal No. 20/1984 Mr. Javed Chaudhary, PP Mr. Syed Saadat Ali for complainant petitioner in Criminal Revision Petition No. 132/1984 Mr. Santosh Kumar Jain, Mr. Dinesh Yadav & Ms. Dipti Jain for accused respondent No.1. in Criminal Revision Petition No. 132/1984 Mr. Javed Chaudhary, PP HON'BLE THE CHIEF JUSTICE MR. S. S. SHINDE HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Judgment Reserved on :: 12.07.2022 Pronounced on :: July 19th, 2022 Reportable (Per: Anoop Kumar Dhand, J) Since both - criminal revision petition and appeal arise out of the common judgment dated 20.01.1984 passed by the Court of learned District and Sessions Judge, Bundi (Raj.) [for short 'the trial Court'] in Sessions Case No. 74/1983, hence same are being heard and decided by this common judgment together. S.B. Criminal Appeal No. 20/1984:
In all twelve accused persons namely; Bhanwar Lal, Surajmal, Mohan, Hari Prasad, Heera Lal, Devi Lal, Prabhu, Raju @ Rajendra, Pokhar, Suraj Mal, Brij Mohan and Soji alias Shivji faced trial for the charges under sections 302/34, 307/34, 147, (Downloaded on 22/07/2022 at 09:41:04 PM) (3 of 23) [CRLR-132/1984] 148, 149 and 452 IPC. After trial, the trial Court convicted the accused appellants Bhanwar Lal, Suraj Mal and Soji @ Shivji Lal as under:-
Offence under Sentence Fine In default of
Section Payment of
Fine
304 Part-II Three Years 500/- Two Months
read with Rigorous Simple
section 149 IPC Imprisonment Imprisonment
147 IPC Six months 100/- Two Months
Simple Simple
Imprisonment Imprisonment
452 IPC Eighteen 200/- Two Months
Months Simple
Rigorous Imprisonment
Imprisonment
323 read with Three Months 100/- Two Months
section 149 IPC Simple Simple
Imprisonment Imprisonment
Sentences were ordered to run concurrently.
Rest of the accused persons namely; Mohan, Hari Prasad, Heera Lal, Devi Lal, Prabhu, Raju @ Rajendra, Pokhar, Suraj Mal and Brij Mohan, have been acquitted by the trial Court by giving them the benefit of doubt.
Accused appellants No. 1 to 3 have submitted the instant criminal appeal against the aforesaid judgment before this Court.
Their sentence was suspended by this Court and the appeal was admitted for hearing and the same was kept in due course. When the matter was taken up for hearing, the learned Additional Govt.
Advocate informed this Court that the accused appellants No. 2 and 3 namely; Suraj Mal and Soji alias Shivji have expired, hence the appeal stood abated to their extent.
Brief facts of the case are that on 29.03.1983, a Parcha Bayan (Ex.P10) of the injured Mohammed Noor s/o Suleman (PW6) was recorded in which he alleged that today at about 1- (Downloaded on 22/07/2022 at 09:41:04 PM)
(4 of 23) [CRLR-132/1984] 1:30 PM he, his father Suleman and his mother Afizan were inside their house and the doors were closed from inside by latches. All of a sudden Bhanwar Lal Mali, Udairaj @ Katal Singh, Bhanwar Lal Gurjar, Kailash Luhar, Suraj Mal, Shivji Lal Mali, Mangilal Gurjar after pelting stones on the doors, entered inside the house.
Thereafter all these persons took them out and started beating them by sticks and gandasi. Udairaj inflicted injuries on the right hand, Bhanwar Lal Babaji inflicted injury on his head by stick. He fell down due to the injuries sustained on the head. Thereafter he did not know who caused injury. He sustained injuries at two places of his left hand and on the chest. His father and mother also sustained injuries. Since he became unconscious, so he did not know who caused which injury. The Police came on the spot at the time of the occurrence. After seeing the Police, they ran away. Thereafter the Police took them to Bundi Hospital in their vehicle.
Upon this Parcha Bayan (Ex.P10), Crime No. 30/1983 was registered at Police Station Hindauli, District Bundi for the offences under section 147, 148, 149, 323, 307, 336 and 440 IPC. During the course of investigation injured Hafizan expired on 30.03.1983 and on 04.04.1983 injured Suleman died. Hence offence under section 302 IPC was added. After completion of investigation, the charge-sheet was submitted against twelve accused persons for the offences under section 302/149, 307/149, 147, 148 and 452 IPC and charges were framed for the above offences. Accused persons pleaded not guilty and claimed trial.
Thereafter the statements of 16 witnesses were recorded and 39 documents were exhibited by the prosecution. And the accused were questioned under section 313 Cr.P.C. and were confronted with the circumstances appearing against them in the (Downloaded on 22/07/2022 at 09:41:04 PM) (5 of 23) [CRLR-132/1984] prosecution evidence, which they denied and stated that they have been falsely implicated. And in defence 5 witnesses were examined and 16 documents were exhibited by the accused persons. After trial, the accused appellants No. 1 to 3 were convicted and sentenced by the trial court as stated above and rest of the accused persons were acquitted by the trial Court by giving them benefit of doubt vide judgment dated 20.01.1984.
Counsel for the accused appellant Bhanwar Lal submits that the accused appellant has been convicted in a case of no evidence. Counsel submits that the learned trial Court itself found that the alleged prosecution witnesses namely; PW7 Abdul Latif, PW8 Bashi Mohammad, PW9 Abdul Hameed and PW10 Abdul Salaam, were not the eye-witnesses of the occurrence and their presence on the place of occurrence was doubtful. Counsel submits that in this regard the trial Court has discussed the evidence elaborately while passing the impugned judgment. Counsel submits that several infirmities were found in their testimony and they were not relied. Counsel submits that on the basis of above finding of the trial Court, it is apparent that the prosecution has failed to prove its case beyond doubt against the accused appellant. Counsel submits that when the benefit of doubt was given to accused persons namely; Mohan, Hari Prasad, Heera Lal, Devi Lal, Prabhu, Raju @ Rajendra, Pokhar, Suraj Mal and Brij Mohan, then the same benefit should have been given to the present accused appellant also. Counsel submits that the trial Court has convicted the accused appellant relying upon the testimony of PW6 Mohammad Noor. Even the trial Court has recorded a finding in the impugned judgment itself that number of infirmities were found in his evidence, even then the trial Court (Downloaded on 22/07/2022 at 09:41:04 PM) (6 of 23) [CRLR-132/1984] has relied upon the statement of this witness and passed the impugned judgment. The trial Court has recorded a finding that PW6 Mohammad Noor has implicated innocent persons and improved his statement from time to time. Counsel submits that the conduct of this witness during the course of investigation itself was improper and even his statement under section 161 Cr.P.C. was recorded after getting legal advice. Counsel submits that under these circumstances this witness cannot be said to be of sterling worth.
Counsel further submits that the prosecution has not examined independent witnesses while the independent eye- witnesses were available who might have seen the occurrence. Counsel submits that non-production of the eye-witnesses has badly affected the case of the prosecution and adverse inference should have been drawn against the prosecution. Counsel submits that even the accused persons have also sustained injuries but the injuries sustained by them have not been explained by the prosecution, which seriously create doubt on the veracity of the prosecution story. Lastly, the counsel argued that the prosecution has failed to prove its case beyond doubt against the appellant and the appellant is liable to be acquitted by this Court. In the alternative, the counsel for the accused appellant argued that at the time of occurrence, the age of the appellant was below 21 years but the trial court has not given the benefit of probation to him.
In support of his submissions, counsel has placed reliance upon the following judgments of the Hon'ble Apex Court:-
1. Jarnail Singh v. State of Punjab, reported in (2009) 3 SCC 391;
2. Badri v. State of Rajasthan (1976) 1 SCC 442; and (Downloaded on 22/07/2022 at 09:41:04 PM) (7 of 23) [CRLR-132/1984]
3. Jivan Lal & Others v. State of M.P., reported in (1997) 9 SCC
119.
Learned Government Advocate appearing for the State as well as learned counsel appearing for the informant/complainant vehemently opposed the submissions advanced by the counsel for the appellant and urged that the prosecution has proved its case against the accused appellant by clinching and cogent evidence and no interference is called for by this Court in the impugned judgment, which deserves to be affirmed.
We have given our thoughtful consideration to the submissions advanced by the contesting counsel at Bar and have gone through the material available on record.
At the outset, we may note here that the prosecution case against the appellant Bhanwar Lal is based on ocular testimony of PW6- Mohammed Noor and the testimony of the rest of the witnesses namely; PW7- Abdul Latif, PW8- Bashir Mohammed, PW9- Abdul Hameed and PW10- Abdul Salaam has not been relied by the trial Court.
The incident occurred on 29.03.1983 while the police statement of PW7- Abdul Latif was recorded on 06.04.1983, likewise delayed police statement of PW8- Bashir Mohammed was recorded on 06.04.1983 and the statement of PW9- Abdul Hameed was recorded on 24.04.1983. Neither any explanation about this inordinate delay in recording their statements under section 161 Cr.P.C. has been given by these witnesses nor by the Investigating Officers namely; PW14- Mukhpal Singh and PW15- Hari Singh.
In cross-examination PW7- Abdul Latif has stated that before recording of his statement he narrated the occurrence to (Downloaded on 22/07/2022 at 09:41:04 PM) (8 of 23) [CRLR-132/1984] everyone. At the first instance, he told about the occurrence in the hospital but he says that he is not aware that to whom he told about the incident. He further says that he does not know how he could get his statement recorded when his parents died. On the contrary, the case of the defence is that this witness was not present on the spot and on the day of occurrence he was at Lakheri. Deceased Hafizan died on the next day of the occurrence and the dead body was not handed over to him. It means that he was not present in Bundi Hospital, otherwise, the dead body could have been handed over to him and not to any other person. The 'phard supurdagi' (Ex. P3) indicates that the dead body was handed over to Bashir Mohammed S/o Mahmood. As per the statement of this witness, he remained in Hindoli after death of his mother but even then he did not lodge the FIR. When the Police came on the spot, even then he kept mum and did not come forward to record his statement. Even his name is not there in the FIR as a witness of the occurrence. Hence, his presence on the place of occurrence appears to be doubtful.
PW8- Bashir Mohammed is the nephew of the deceased Suleman and he admits in his statement that the Police came on the spot but even he had not come forward to record his statement and had not told the Police that he had witnessed the occurrence. He did not go to the hospital for the treatment of Suleman and Hafizan. Hence, his testimony has rightly been discarded by the trial Court.
PW9- Abdul Hameed stated that he after having seen the Police, ran away. He has stated that he absconded on the day of occurrence. But he has also not bothered to get his statement recorded.
(Downloaded on 22/07/2022 at 09:41:04 PM)
(9 of 23) [CRLR-132/1984] Similarly, PW10- Abdul Salaam was arrested on the next day of occurrence and he was sent to judicial custody but he did not tell to the Police about the occurrence.
Hence, looking to the unnatural conduct of these witnesses and looking to the fact that they kept mum for a long lapse of time and they did not come forward to record their police statements, the trial Court has rightly discarded the testimony of these witnesses who claimed themselves to be as eye-witnesses of the occurrence.
The trial Court has rightly came to the conclusion that these four witnesses had not seen the occurrence and their presence on the spot at the time of incident was doubtful. The trial Court has made elaborate discussion of their evidence and found several infirmities in their statements.
The trial Court has convicted the accused appellant on the solitary testimony of PW6- Mohammed Noor. Parcha Bayan (Ex.P10) of this witness was recorded on 29.03.1983 in which he has categorically stated that Bhanwar Lal Mali, Udairaj, Bhanwar Lal Gurjar, Kailash Luhar, Suraj Mal Khatik, Shivji Lal Mali and Mangi Lal Gurjar came and broke the doors of his house and brought him and his parents outside the house and inflicted injuries on their person by 'sticks' and 'gandasi'. It is relevant to note here that in this Parcha Bayan he has named seven persons as assailants. When his statement was recorded during the course of trial before the trial Court, he has named (1) Mangi Lal Gurjar, (2) Bhanwar Lal Gurjar, (3) Kailash Luhar, (4) Suraj Mal Khatik, (5) Shivji Lal Mali, (6) Katal Singh, (7) Hira Lal Khatik, (8) Dadu Khatik, (9) Pokhar Mali, (10) Suraj Mal Mali, (11) Hari Prasad Master, (12) Devi Lal Kalal, (13) Prabhu Gurjar and (14) Mohan. (Downloaded on 22/07/2022 at 09:41:04 PM)
(10 of 23) [CRLR-132/1984] He has over implicated several persons during the course of trial when his statement was recorded. It is clear that none of the deceased and the injured have sustained 14 injuries.
Perusal of the statement of PW4- Dr. Basanti Lal Chobisa, Medical Jurist, General Hospital, Bundi indicates that he examined deceased Suleman and he found following injuries on his person:-
"1. Abrasion ½" x ½" on front side of left knee joint. Examination re-started at 6 p.m. in operation theater. The examination was postponed due to poor condition of the patient. His general condition was poor; pulse 100 p.m. very feeble; respiration 30 p.m. B.P. 60 mm of h g systolic. Pupils were equal and reacting on both sides. He was omitting.
Injury No. 2. Incised wound ½" x ¼" x ½" on outer side of right forearm about in middle.
3. Lacerated punctured wound ¾" x ½" x ¾" on back side of right elbow joint.
4. Lacerated wound 1½" x ¾" x ½" on outer angle of left eye.
5. Lacerated wound ¾" x ½" x ½" on outer side of left forearm about in middle. There was fracture of left forearm bones about in middle third.
6. Abrasion ½" x ½" on medial malleolus of left leg."
Similarly, this witness examined Mohammed Noor and found following injuries on his person:-
"1. Lacerated wound vertical 4½" x ½" x ½" on scalp on fronto parieto bone half inch lateral to mid line on left side.
2. Bruise 2" x 1" on dorsal side of right forearm near wrist on thumb.
3. Lacerated wound ½" x ¼" x ¼" on left forearm in middle on outer side.
4. Abrasion 1" x 1" on left forearm near wrist.(Downloaded on 22/07/2022 at 09:41:04 PM)
(11 of 23) [CRLR-132/1984]
5. Bruise 1" x ¾" on front side of left shoulder region.
6. Abrasion ½" x ¼" on ventral side of left index finger.
7. Bruise 1" x 1" on left hand in thenar eminance."
At the same time, when this witness examined Hafizan, he found only one lacerated wound 4" x 1½" x bone-deep on left side of forehead half inch above the left eyebrow.
Hence, it is clear that the deceased Suleman has received six injuries. The deceased Hafizan has received one injury and the injured Mohammad Noor has received seven injuries. If 14 accused persons assaulted the two deceased and one injured with blows with their respective weapons on their body then each of them would have sustained 14 injuries.
In Lallu Manjhi and another vs. State of Jharkhand, reported in (2003) 2 SCC 401, it was observed by the Hon'ble Apex Court that if ten persons were stated to have dealt with blows with their respective weapons on the body of the deceased, and that if each one of them assaulted then there would have been minimum of ten injuries on the person of the deceased. In the present case, as noticed there are 11 injuries on the person of the deceased. Giving the benefit of doubt granting acquittal, it was observed as follows:-
"13. .....The version of the incident given by the sole eyewitness who is also an interested witness on account of his relationship with the deceased and being inimically disposed against the accused persons is highly exaggerated and not fully corroborated by medical evidence. The version of the incident as given in the Court is substantially in departure from the earlier version as contained and available in the first information report. We cannot, therefore, place reliance on the sole testimony of Mannu (PW9) for the purpose of recording the conviction of all the accused persons."(Downloaded on 22/07/2022 at 09:41:04 PM)
(12 of 23) [CRLR-132/1984] It is not in dispute that the version of the incident given by this sole eyewitness PW6 Mohammad Noor appears to be highly exaggerated. He is son of the deceased persons and he is an interested witness and being inimically disposed against the fourteen accused persons is highly exaggerated and not fully corroborated by medical evidence. The version of the incident as given in the Court is substantially in departure from the earlier version as contained and available in the Parcha Bayan (Ex.P10).
In the case of Badri vs. State of Rajasthan, reported in (1976) 1 SCC 442, the Hon'ble Apex Court has held that if a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony.
In the case of Jarnail Singh vs. State of Punjab, reported in (2009) 3 SCC 391, the Hon'ble Supreme Court has held in para Nos. 26, 27 and 30 as under:-
"26. It is no doubt true that conviction could be based on the sole testimony of a solitary eye witness but in order to be the basis of conviction his presence at the place of occurrence has to be natural and his testimony should be strong and reliable and free from any blemish. In Chuhar Singh v. State of Haryana, [(1976) 1 SCC 879] this Court held that:
"4. ....What is important is not how many witnesses have been examined by the prosecution but what is the nature and quality of evidence on which it relies. The evidence of a single witness may sustain a sentence of death whereas a host of vulnerable witnesses may fail to (Downloaded on 22/07/2022 at 09:41:04 PM) (13 of 23) [CRLR-132/1984] support a simple charge of hurt. Since the case must stand or fall by the evidence of [single witness], it is necessary to examine that evidence critically."
27. However, when we scrutinize the evidence of PW-7, in the present case, we do not find him to be trustworthy and reliable witness for he is changing his version frequently. He had given one version in the F.I.R which is reiterated during the course of investigation before the police whereas he had given a totally different version at the time of his statement before the court. He had stated in the F.I.R that following the altercation between the deceased and the accused the deceased first gave a knife blow. When inquest proceedings took place on the next day at 7.00 a.m. he stuck to the same version and during investigation also he confirmed the aforesaid allegation made by him whereas in the trial he stated that the accused first gave two knife-blows to the deceased and then he tried to commit suicide by giving a knife-blow to himself. He had also stated that on receiving those two blows the deceased came through the window and fell down on the ground. The said version also cannot be believed for the deceased after receiving the injuries could not have gone out of the window unless the door was open.
30. The entire story sought to be put forth by the prosecution and by PW-7 particularly appears to be doubtful and full of contradictions. It will be unsafe to convict a person on the basis of such unreliable and untrustworthy evidence particularly when such statements are full of embellishment and contradictions, without corroboration in material particulars by reliable testimony, direct or circumstantial. Consequently, we set aside the order of conviction and sentence passed against the appellant and give him benefit of doubt. He stands acquitted of the charges. He shall be set free immediately, unless required in any other matter." (Downloaded on 22/07/2022 at 09:41:04 PM)
(14 of 23) [CRLR-132/1984] The deceased Hafizan had sustained one head injury and common general omnibus allegation has been levelled against fourteen accused persons. There is no specific overt-act assigned to the present appellant Bhanwar Lal. The allegation of causing head injury to injured PW6 Mohammad Noor is against one Bhanwarlal Babaji. The prosecution has not implicated that person as an accused. The prosecution has not produced any evidence that the appellant Bhanwar Lal and Bhanwarlal Babaji are one and same person.
Though the trial court has convicted the appellant believing the testimony of this witness PW6 Mohammad Noor, but while discussing his evidence, the trial court has pointed out number of infirmities in his evidence which goes to the very root of his testimony. The trial court has found that this witness has implicated several accused persons by improving his statement from time to time. The conduct of this witness shows that even he gave his statement under section 161 Cr.P.C. after taking legal advice. Thus, the aforesaid finding of the trial court make it clear that this sole eye witness cannot be said to be of sterling worth. The statement of this witness cannot be relied for convicting the appellant.
While passing the impugned judgment, the trial court found that in-spite of availability of independent eye-witnesses, the prosecution has not examined them. Hence, their non- production calls for adverse inference against the prosecution.
Thus, the entire story put forth by the prosecution and PW6 Mohammad Noor appears to be doubtful and full of contradictions. It will be unsafe to convict a person on the basis of (Downloaded on 22/07/2022 at 09:41:04 PM) (15 of 23) [CRLR-132/1984] such unreliable and untrustworthy evidence particularly when such statements are full of embellishments and contradictions, without corroboration in material particulars by reliable testimony, direct or circumstantial. Consequently, we allow the criminal appeal and set aside the judgment of conviction and sentence passed against the appellant and extend him the benefit of doubt. The appellant Bhanwar Lal stands acquitted from all the charges.
The criminal appeal stands allowed accordingly. Since the accused appellant -Bhanwar Lal is on bail as his sentence was suspended by this Court, keeping in view the provisions of section 437A Cr.P.C., the accused appellant Bhanwar Lal is directed to furnish a personal bond in the sum of Rs.50,000/- with a surety of a like amount before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave to Appeal against the present judgment on receipt of notice thereof, the accused appellant Bhanwar Lal shall appear before the Hon'ble Supreme Court.
D.B. Criminal Revision Petition No. 132/1984:
This criminal revision petition under Section 397 read with Section 401 Cr.P.C. has been submitted by the complainant/petitioner Mohammad Noor against the impugned judgment passed by the trial Court by which he has sought following relief:-
"It is, therefore, humbly requested that the order of acquittal of the accused non-petitioners No.1 to 3 from the offence punishable under sections 302/149, 307/149 and 148 Indian Penal Code and the acquittal of all the accused non-petitioners Nos. 4 to 12 from all the offences (Downloaded on 22/07/2022 at 09:41:04 PM) (16 of 23) [CRLR-132/1984] may kindly be set aside and a proper order according to law may kindly be passed.
Alternatively, the sentence of the accused non- petitioners Nos. 1 to 3 for the offence under section 304 Part (2) may kindly be increased from three years to ten years or any other appropriate and legal order to give relief to the petitioner may kindly be passed in the facts and circumstances of this case."
At the outset, it may be mentioned that it is Revision Petition against the judgment of acquittal and for enhancement of sentence and thus, extent and ambit of revisional jurisdiction of this Court is limited. In Venkatesan Vs. Rani & anr. (Criminal Appeal No. 462 of 2008) decided on 19.8.2013, the Hon'ble Supreme Court has considered the true contours of the jurisdiction vested in the High Court's under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 while examining order of acquittal passed by trial court and held as under:-
"6. To answer the questions that have arisen in the present case, as noticed at the very outset, the extent and ambit of the revisional jurisdiction of the High Court, particularly in the context of exercise thereof in respect of a judgment of acquittal, may be briefly noticed. The law in this regard is well settled by a catena of decisions of this Court. Illustratively, as also chronologically, the decisions rendered in Pakalapati Narayana Gajapathi Raju vs. Bonapalli Peda Appadu, Akalu Ahir v. Ramdeo Ram, Mahendra Pratap Singh v. Sarju Singh, K. Chinnaswamy Reddy v. State of A.P. and Logendranath Jha v. Polai Lal Biswas may be referred to. Specifically and for the purpose of a detailed illumination on the subject the contents of paras 8 and 10 of the judgment in the case (Downloaded on 22/07/2022 at 09:41:04 PM) (17 of 23) [CRLR-132/1984] of Akalu Ahir v. Ramdeo Ram (supra) may be usefully extracted below.
"8. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision:
(i) Where the trial court has no jurisdiction to try the case, but has still acquitted the accused;
(ii) Where the trial court has wrongly shut out evidence which the prosecution wished to produce;
(iii) Where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible;
(iv) Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and
(v) Where the acquittal is based on the compounding of the offence which is invalid under the law.
These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal.
"10. No doubt, the appraisal of evidence by the trial Judge in the case in hand is not perfect or free from flaw and a Court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to re-appraise the evidence for itself as if it is acting as a Court of appeal and then order a re-trial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village Mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court." The observations in para 9 in the case of Vimal Singh v. Khuman Singh would also (Downloaded on 22/07/2022 at 09:41:04 PM) (18 of 23) [CRLR-132/1984] be apt for recapitulation and, therefore, are being extracted below.
"9. Coming to the ambit of power of the High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial."
7. The above consideration would go to show that the revisional jurisdiction of the High Courts while examining an order of acquittal is extremely narrow and ought to be exercised only in cases where the Trial Court had committed a manifest error of law or procedure or had overlooked and ignored relevant and material evidence thereby causing miscarriage of justice. Re-appreciation of evidence is an exercise that the High Court must refrain (Downloaded on 22/07/2022 at 09:41:04 PM) (19 of 23) [CRLR-132/1984] from while examining an order of acquittal in the exercise of its revisional jurisdiction under the Code. Needless to say, if within the limited parameters, interference of the High Court is justified the only course of action that can be adopted is to order a re-trial after setting aside the acquittal. As the language of Section 401 of the Code makes it amply clear there is no power vested in the High Court to convert a finding of acquittal into one of conviction."
Similarly, in the case of Vimal Singh Vs. Khuman Singh and Anr., AIR 1998 SC 3380 while examining ambit of power of the High Court under Section 401 Cr.P.C. Hon'ble Apex Court has made following observations:
"The legal position as to the powers of the High Court in revision in the matter of interference with the order of acquittal is no longer res integra, as the law in this regard is very well settled. Suffice it to refer in this regard a decision of this Court in K.Chinnaswamy Reddy vs. State of Andhra Pradesh and anr. (AIR) 1962 Sc 1788) wherein it was held, thus :
"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 thought fit to appeal by the jurisdiction should be exercised by the High Court only in exception 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 Section 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 covert 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 the finding of (Downloaded on 22/07/2022 at 09:41:04 PM) (20 of 23) [CRLR-132/1984] acquittal in revision and it is only in exceptional cases that this power should be exercised.....
Where the appeal Court wrongly ruled out evidence which was admissible, the High Court would not be justified in interfering with the order of acquittal in revision, so that the evidence may be reappraised - after taking into account the evidence which was wrongly ruled out as inadmissible. But the High Court should confine itself only to the admissibility of the evidence and should not go further and appraise the evidence also".
"7. Coming to the ambit of power of High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. In fact, Sub- section (3) of Section 401 of the (Downloaded on 22/07/2022 at 09:41:04 PM) (21 of 23) [CRLR-132/1984] Code forbids the High Court in converting the order of acquittal into one of conviction. In view of the limitation on the revisional power of the High Court, the High Court in the present case committed manifest illegality in convicting the appellant under Section 304, Part - I and sentencing him to seven years' rigorous imprisonment after setting aside the order of acquittal."
The revisional jurisdiction of the High Court as contemplated under Section 401 of Cr.P.C. operates within narrow limits and can be exercised only in exceptional cases where interests of public justice require interference for the correction of gross miscarriage of justice. It cannot be exercised because the lower court has taken a wrong view of the law or mis-appreciated evidence on record. The revisional power of the High Court is to be exercised when there is manifest error of law or glaring defect in the procedure.
In the instant case, close scrutiny of evidence reveals that on the basis of evidence, the trial court has recorded the finding of over implication of the accused respondents No.4 to 12. Only on the basis of statement of PW6 Mohammad Noor, the accused respondents No. 4 to 12 have been acquitted and relying his testimony the accused respondents No.1 to 3 were convicted for offences indicated above. Against the judgment of conviction and sentence, they submitted D.B. Criminal Appeal No.20/1984 before this Court and the respondents No.2 and 3 died during pendency of the appeal and the same stood abated. So far as the accused respondent No.1 Bhanwar Lal is concerned, in the criminal appeal filed by him, he has been acquitted by this Court (Downloaded on 22/07/2022 at 09:41:04 PM) (22 of 23) [CRLR-132/1984] by giving him the benefit of doubt on the basis of unreliable evidence of petitioner (PW6) Mohammad Noor,.
The prosecution has failed to adduce any categorical and cogent evidence regarding the offence committed by the accused respondents. It is the well settled proposition of law that the revisional court generally would not re-appreciate the evidence and would not substitute the findings of facts unless findings of the trial court are not based on evidence or suffer from perversity or illegality. It is also well settled that if on the basis of evidence two views are possible, the view favourable to the accused persons has to be taken.
In the instant case, considering the entire evidence it is clear that the impugned judgment does not suffer from any illegality and perversity or the error of jurisdiction to the extent of acquittal of the accused respondents No.4 to 12 so as to warrant any interference by this Court. So far as the conviction and the sentence of the accused respondent No.1- Bhanwar Lal is concerned, the same has been quashed and set aside by this Court in the criminal appeal filed by him. Hence, no further interference is required.
It is one of the cardinal principle of criminal jurisprudence that the prosecution is required to prove its case beyond reasonable doubt but in the instant case the prosecution has failed to do so.
The present revision petition lacks merit and is accordingly dismissed.
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(23 of 23) [CRLR-132/1984] Registry is directed to place a copy of the judgment in connected case file.
Record of the case be sent back to the trial Court forthwith.
(ANOOP KUMAR DHAND),J (S. S. SHINDE),CJ
Sharma NK/2
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