Calcutta High Court
Akkas Ali Alias Akkas Ali Middya vs State And Ors. on 29 March, 1990
Equivalent citations: (1990)2CALLT298(HC)
JUDGMENT Amulya Kumar Nandi, J.
1. The Sessions case ended in an acquittal of 21 accused persons charged under Sections 309, 207, 323 read with Sections 149 and 148 I.P.C. The son of one of the victims in the occurrence Mannan Sekh, who eventually succumbed to his injury, has preferred this revisional application.
2. The opposite party contends that while State has not preferred any appeal against the order of acquittal, the petitioner cannot challenge the court's finding. It cannot be laid down as a blanket proposition that a private complainant in a case initiated on a police report can in no circumstances prefer a revision. Ordinarily the court is very reluctant to interfere with the finding of acquittal in a revision preferred by a private complainant. In Satyendra v. Ram Narain it was held that where the judgment of the Sessions Judge did not suffer from any manifest illegality and the interests of justice did not require the High Court to interfere with the order of acquittal passed by the Sessions Court, the setting aside of the acquittal and ordering a retrial is a transgression of the narrow limits of the revisional jurisdiction. In K. Chinna Swamy Reddy.v. State of Andhra Pradesh Supreme Court opined that the High Court can set aside an order of acquittal in revision at the instance of a private party where there is some glaring defect in the procedure or there is a manifest error on a point of law resulting in flagrant miscarriage of justice. Several such instances have been cited by the Supreme Court. Supreme Court further held in Paklapati v. Bonapalli Veda that revisional jurisdiction, when invoked by a private complainant against an order of acquittal, ought not to be exercised lightly and that it can be exercised only in exceptional cases where interests of public justice require interference for the correction of manifest illegality or the prevention of a gross miscarriage of justice. It cannot be invoked merely because the lower court has not appreciated the evidence properly. My learned brother Bhattacharya, J in Rinzing Choda v. State (1978 Cr.L.J. 1270) opined that the revisional court will not correct mere errors of law or procedure, however, grave or substantial. Even manifest or on a point of law or glaring defect in procedure will not by itself attract revisional jurisdiction unless there is consequential flagrant miscarriage of justice and requirement of public justice demands prevention of such miscarriage. It is not necessary to review various other judgments of the Supreme Court since Bhattacharya, J. has taken notice of the various judgments of the Supreme Court in course of his judgment.
3. We do not overlook that the strict view taken by the Supreme Court earlier that a private complainant cannot wreck vengeance has been mellowed down and modified in course of later Supreme Court judgments. It has been so, as it must be. A straight jacket formula cannot be laid down as to the right or locua standi of a private complainant to prefer a revision in a case instituted on a police report. State may not prefer an appeal for some oblique motive or ulterior purpose despite the fact that the judgment is patently perverse. A perverse rinding is that which is not sustainable on the' evidence on record and to which no reasonable man would arrive. This fact cannot weigh very heavily against a private complainant to question the propriety or legality of the judgment. We are inclined to think that, having regard to the changing political and social conditions, a private complainant should be allowed in a prayer case to question the propriety and legality of the judgment where it is found to be absolutely unsupportable and having consequentially occasioned a miscarriage of justice. The petitioner before us is the son of the deceased victim and he being aggrieved on the death of his father has preferred this revision. He should be entitled to prefer the revision, but can not obviously succeed unless he can satisfy the tests laid down above.
4. The petitioner does not invite us to order conviction even if the materials on record warrant it. And as a matter of fact, we cannot do so in view of clear pronouncements of the Supreme Court in Chinnaswamy v. State of Andhra Pradesh and in Ramekbal v. Madan Mohan . We have to order retrial only if we set aside the order of acquittal.
5. The petitioner invites us to examine the evidence of the witnesses. We are afraid the revisional court has very limited power to reapprise the evidence. In S.P.S. Jayam v. Nehrusadan and Pathumma v. Muhammad it has been laid down that only in special and exceptional circumstances High Court is entitled to go into the question of fact and do justice though the power should be sparingly exercised. In Bansilal v. Laxman (1986-3 S.C.C. 445) the Supreme Court opined that in revision, High Court usually accepts the findings on question of facts recorded by the subordinate court unless the findings is manifestly perverse or patently erroneous. High Court will 'not interfere merely because any other view was possible. That the High Court cannot assess the value of evidence is also opined by the Supreme Court in Narayan Tewari v. State of West Bengal and Kshetra Basi v. State of Orissa . In Takur Das v. State of M.P. Supreme Court further holds that the revisional jurisdiction cannot be invoked merely because the lower court has taken a wrong view of law or misappreciated the evidence on record. These are the constraints of revisional court despite the wide amplitude of language of the provision relating to the exercise of revisional jurisdiction. High Court is not expected to act as if it is hearing an appeal. (State of Orissa v. Nakula Sahu, ).
6. In Satyendra v. Ram Narain , P.N.O. Raju v. B.P. Appadu, 1975 Cri.J. 1646 (SC) and Akula Ahir v. Ramdeo , Supreme Court has held that where order of acquittal is based on the appreciation of evidence, the revisional jurisdiction cannot be invoked merely because the lower court has not appreciated the evidence properly.
7. Keeping the aforesaid legal proposition in view, we have to go through the judgment to decide as to whether on the revisional application of a private complainant we shall order retrial in this case.
8. On a careful perusal of the judgment it will be found that the court has acquitted the accused persons on several considerations. The Court has found that in a counter-case over the same incident all the prosecution witnesses in this case figured as accused. There is serious contradiction in the evidence of the prosecution witnesses as to the role played by each of the accused, namely, Nabiat Ekram, Liakat and Omar. We are quite in agreement with the submission of the learned counsel for the petitioner that in a melee it is difficult to fix as to what parts were played by different accused persons with reference to different victims. Therefore, the attempt to fix the accused persons by the prosecution witnesses in this behalf proved futile and they cannot be said to be truthful witnesses. The court has further found that disinterested witnesses like Narayan Mondal, Basanta Barui have not been examined in this case. The prosecution has not furnished any explanation for their non-examination. Here only the accused in the counter-case have been examined. Serious injuries were found on the persons of accused Isha Siddique, Ektar Abdul Gaffar, Kazi Mokram Ali and Ekram. The accused Jabbar was found in a semi-conscious state by the Doctor. The injury was grevious and several in number. In Onkarnath v. State of Uttar Pradesh . Supreme Court said that no explanation for the injury on the body of the accused is a factor which is to be taken into account in judging the varacity of the prosecution witnesses. In some cases, failure of prosecution to account for the injuries of the accused may undermine its evidence to the core and go to falsify the sub-stratum of its story. Here the trial court has disbelieved the prosecution story mainly because the prosecution did not furnish any explanation as to the serious injuries found on the persons of the accused. He believed the defence version that the complainant party was the aggressor. The learned Judge has very carefully scrutinised the evidence of the prosecution and the circumstances to give a verdict of acquittal. We have not over-looked certain infirmities in the judgment. At places the learned Judge has used the statement before police almost as substantive evidence. But such an user has not really affected the conclusion in the judgment. Even if we overlook such user or rather the inferences drawn therefrom, the final conclusion would require no variation. So, we must leave it at that in view of the mandate of Section 167 of the Evidence Act.
9. The trial Judge has disbelieved the prosecution story. We are in agreement with his that the occurrance did not take place in the manner sought to be proved by the prosecution witnesses. We are unable to find that the learned Judge was not justified in giving his verdict of acquittal. We therefore reject this revisional application.
A.M. Bhattacharjee, J.
10. I agree.