Bombay High Court
Krishna K. Puthran And Ors. vs Shrikrishna B. Jadhav And Ors. on 17 March, 1986
Equivalent citations: 1986(2)BOMCR705
JUDGMENT A.D. Tated, J.
1. This revision application is directed against the order of acquittal passed by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No. 491 of 1979 decided on 5th October, 1981 whereby the learned Additional Sessions Judge acquitted the respondents-accused Nos. 1 to 4 of offences punishable under sections 307,324 and 323 read with section 34 I.P.C.
2. The prosecution case may be summarised as follows. The petitioner No. 1 Krishna K. Puthran with his wife Chandravati (petitioner No. 2), their three sons, namely, Janardan, aged 26 years, Narayan aged 22 years and Chandrashekhar (petitioner No. 3) aged 18 years, and two daughters, namely, Premlata aged 20 years and Rupa, occupied Room No. 7. in Municipal Chawl No. 10/D, Barve Nagar, Ghatkopar (west), Bombay, for the last more than ten years. About a month before the date of the incident the respondents-accused Nos. 1,3 and 4 who are brothers, accused No. 3. Vasant being the eldest occupied the adjoining Room No. 6. The respondent-accused No. 1 Shrikrishna is the brother-in-law of the respondent-accused No. 3. The relations of petitioners and the respondents were cordial, but there used to be petty quarrels between the complainant's wife Chandravati and members of the family of the respondents-accused Nos. 1 to 4. On the date of the incident in the evening the wife of the accused No. 3 threw some dirty water outside the house which fell on Chandravati and the two ladies quarrelled over the same. The accused No. 1 intervened and slapped Chandravati and threatened her that he would see to all the members of her family in the evening. In the evening at about 7 p.m. while the complainant Krishnan and his sons Janardan, Narayan and Chandrashekhar and daughter Premlata were sitting on the otla outside Room No. 7. and were talking among themselves, the accused No. 3. was sitting on the otla in front of Room No. 6. The accused No. 1 Shrikrishna and the accused No. 2 Laxman came in a rickshaw and went running towards the place where the complainant and his family members were sitting. The accused No. 1 had the knife (Article 12) in his hand. He assaulted the complainant with the knife on the top of the hand and caused the bleeding injury. The accused Nos. 3 and 4 also joined the accused No. 1 and 2 in the assault on the members of the Puthran family. Chandravati, who was trying to help her husband, was stabbed by the accused No. 1 on the chest and buttocks, with the same knife. After stabbing, while the accused were running away, the complainant caught hold of accused No. 2 Janardan and Narayan took the accused No. 2 to the Police-Station and reported orally to the police above the incident. The police took the accused No. 2 in custody. In the meanwhile, the injured Krishna and his wife Chandravati were taken to Rajawadi Hospital. P.S.I. Patil contacted the complainant Krishna at the Hospital and recorded his first information report. He also recorded the statements of other injured persons. Those injured persons were treated at the Hospital. Chandravati was also admitted to the Hospital and she was operated upon. On the same night the panchnama of the scene of offence was made. The blood-stained clothes of the injured were collected. The accused No. 1 also arrived at the Hospital at about 7.45 p.m. for the treatment of the injuries he had sustained on the arm. He was taken in custody by the police. He was examined by the Medical Officer. On the report of the complainant Krishna, the police investigated the crime and the respondents Nos. 1 to 4 were prosecuted for the offences punishable under sections 307, 324 and 323 read with section 34 I.P.C. The case was committed to the Court of Sessions.
3. The learned Additional Sessions Judge framed charge against the respondent Nos. 1 to 4 accused for the offences mentioned above. The accused denied the charge. Their defence was of total denial. The accused No. 1, who was handed over by Narayan and Janardan to the police stated that he was at the tenement No. 5 with one Joshi and after hearing the commotion outside he came out and saw some persons running away. According to him, Narayan and Janardan caught him and took him to the police-station on the suspicion that he was one of the assailants. The accused No. 1, who was having incised wounds on the left forearm, explained the same by saying that he had quarrelled with some rickshaw driver and in that quarrel he got the injuries and he had been to the hospital for medical treatment and at that time the police arrested him.
4. The learned Additional Sessions Judge, after the considering the evidence adduced by the prosecution, found that the prosecution failed to prove the charges levelled against the respondents Nos. 1 to 4 accused beyond reasonable double, and, therefore, he ordered their acquittal.
5. Feeling aggrieved with the order of acquittal, the complainant Krishna, his wife Chandravati and his son Chandrashekhar have filed this revision application. The respondent No. 4 Ramesh B. Jadhav was not served and the petition against him has been dismissed by this Court's order dated 30th April, 1984.
6. The learned Counsel for the petitioners contends that the learned trial Judge wrongly acquitted the respondents Nos. 1 to 4 accused by not properly appreciating the evidence and also by disregarding the F.I.R. lodged by the complainant. He submits that the learned trial Judge, having found that on 9th June, 1979 at about 7.30 p.m. in front of the room of the complainant an incident took place wherein Krishna (P.W. 1), his wife Chandravati (P.W. 5) and his son Chandrashekhar (P.W. 4) were injured, should not have disbelieved their account of the incident wherein they were injured by the accused. He submitted that the gupti (Article 1), which has been referred to by the prosecution witnesses as 'knife', was recovered soon after the incident on the information given by the accused No. 1 from the roof of the his house and the same was found stained with human blood of 'B' Group, to which the blood of the complainant Krishna belonged. He also pointed out that the clothes of the accused were found stained with blood to which the blood of Krishna belonged. According to the learned Counsel, the learned trial Judge was wrong to discarding the evidence of the eye-witnesses on the ground that their evidence was not consistent with the medical evidence and the findings of the Chemical Analyser regarding examination of blood. He submitted that the learned trial Judge found that the explanation given by the accused No. 1 regarding the injuries on the left forearm was false, and, therefore, the learned trial Judge should have accepted the evidence of the injured eye-witnesses and should have held that the injuries found on the person of Krishna and his wife Chandravati were caused by the accused No. 1 with the gupti (Article 1). According to him, as the learned trial Judge failed to consider the evidence in its proper perspective, there has been a serious miscarriage of justice and as such it is necessary to remand the matter for fresh trial.
7. The learned Counsel for the respondents-accused Nos. 1 to 3, on the other hand, contends that the learned trial Judge was right in rejecting the F.I.R., as it was nothing but statement under section 162 Cri.P.C. recorded during investigation. He also submitted that the learned trial Judge considered the whole evidence adduced by the prosecution in its proper perspective and found that the prosecution failed to prove the charges levelled against the respondents beyond reasonable doubt. He submits that this Court in revision, in the circumstances or the present case, cannot order retrial of the respondents.
8. Before advertising to the submissions of the learned Counsel for the petitioners regarding wrongful rejection of the F.I.R. and improper appreciation of the evidence by the learned trial Judge, it is proper that the powers of this Court to interfere with the order of acquittal on revision should be considered and examined. The learned Counsel for the petitioners, in support of his contention that in the circumstances of the present case this Court can justifiably order retrial, replied on the decision in Ayodhya Dube and others v. Ram Sumer Singh, . In that case there was murder of two persons and injuries were caused to some others and for that 21 persons were tried before the learned Sessions Judge of the Basti for offences under sections 147 and 149 read with section 309, etc. I.P.C. Nine of the 21 accused persons were convicted on various counts, while the remaining accused including the appellants were acquitted. The nine convicted accused preferred an appeal to the High Court, while one Ram Sumer Singh (First informant in the case) filed an criminal revision case against the acquitted accused. The High Court dismissed the appeal preferred by the convicted accused, though the sentence of death passed on four of them was altered to imprisonment for life. The criminal revision case filed by Ram Sumer Singh was allowed and having regard to the limitations of revisional powers, the acquittal of the appellants was set aside and a retrial was ordered. The accused who were ordered to be retried appealed to the Supreme Court against the judgement of the High Court setting aside their acquittal and ordering a retrial. The Supreme Court while maintaining the order of the High Court reproduced the following passage from the decision of the High Court :--
"In the instant case, we find that this is a case of non-application of mind on the part of the Court below. The probative value of First Information Report (Ex.Ka-19) has been entirely ignored. The individual testimony of the eye-witnesses has not been discussed and their reliable testimony has been ignored, form which it follows that material evidence has not been considered and it has been overlooked. The entire judgement is full of inconsistencies. The Court below has misquoted the evidence at some places, for example, while dealing with the copy of statement (Ex. Ka-18). The judgement consists of faulty reasoning and lack of judicial approach. Accepted canons for appreciating evidence have been thrown to the wind. The conclusions on the question of motive are against the weight of the overwhelming evidence in the case. In our opinion, the view expressed by the Court below has resulted in grave miscarriage of justice so far as the opposite parties Uma Shanker, Grija Shanker, Gauri Shanker, Achhaibar, Jhabbar, Bansu Ram Katal, Ayodhya Dube and Vindhyachal are concerned. The above, in our opinion, and exceptional circumstances which compel us to order retrial of the aforesaid opposite parties."
The above reasoning of the High Court for interfering with the acquittal and ordering a retrial of the appellants was found adequate by the Supreme Court and therefore, the order of the High Court was maintained.
9. The learned Counsel for the respondents-accused Nos. 1 to 3 in support of his contention that this is not a fit case for setting aside acquittal of the respondents and ordering their retrial relied on the decision in Akalu Ahir and others v. Ramdeo Ram, . Their Lordships of the Supreme Court, after considering the earlier decision on the point, at pages 2148-9 of the report, expressed the law thus :---
"This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but it was emphasised that this jurisdiction should be exercised 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.' In face of prohibition in section 439(4), Cri.P.C., for the High Court to convert a finding of acquittal into one of conviction, it makes all the more incumbent on the High Court to see that is does not convert a finding of acquittal into one of conviction by the indirect method of ordering re-trial. No doubt, in the opinion of this Court, no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court's power of ordering re-trial can be laid down. 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. In Mahendra Pratap Singh (supra) the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgement of the High Court made it plain that it had re-weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This Court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal on revision, when the Government had not chosen to file an appeal against it. 'In other words' said this Court, 'the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them."
While dealing with the case in hand, Their Lordships of the Supreme Court at pages 2149-50 of the report observed as follows :-
"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 retrial. 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."
10. It is necessary to consider in the light of the law on the point laid down by the Supreme Court in the two decisions referred to above whether the present case is a case of exceptional nature where this Court can unjustifiably interfere with the order of acquittal passed by the learned Additional Sessions Judge. This case does not fit in any of the illustrative cases referred to by the Supreme Court in the case of Akalu Ahir and others (supra).
11. The learned Counsel for the petitioners took me through the whole evidence on record and also addressed me at great length in support of his contention that there has been a serious miscarriage of justice, which necessitated re-trial of the respondents-accused Nos. 1 to 3, after setting aside their acquittal. After carefully considering the submissions made by the learned Counsel for the petitioners and the evidence on record, I am unable to agree with the learned Counsel for the petitioners that this is an exceptional case in which this Court should exercise its power of revision and set aside the order of acquittal passed by the learned Additional Sessions Judge.
12. Now I proceed to record my reasons briefly for rejecting the submissions of the learned Counsel for the petitioners. In this case the F.I.R. of the complainant Krishna was recorded by P.S.I. Patil (P.W. 11). P.S.I. Patil states that Janardan and Chandrashekhar brought the accused No. 2 at the Police-Station and Janardan told him that the accused No. 2 was one of the assailants of his parents. He also told him that one Gotya and his brothers Vasant and Ramesh together with friends assaulted his parents with a knife and fist blows. This information given by Janardan was not recorded by P.S.I. Patil. He went to Rajawadi Hospital where the injured complainant Krishna and his wife Chandravati were taken. At the hospital he recorded the statements of the complainant Krishna, Janardan, Chandrashekhar, Narayan, Bangera and Chandravati. He states that he has not recorded timing of the statements of those witnesses recorded by him and, therefore, he could not say in what sequence he recorded their statements. As P.S.I. Patil got the full information about the incident from Janardan, he commenced the investigation, and during investigation he arrested the accused No. 2 and recorded the statement of the witnesses. The complainant Krishna is one of those witnesses. As P.S.I. Patil had already commenced investigation and the statement of Krishna came to be recorded during investigation, the learned trial Judge was right in holding that it could not be treated as first information report. It may be mentioned that the learned trial Judge admitted the F.I.R. on record subject to the objection raised to its admissibility and permitted the parties to put questions with reference to the F.I.R. and he decided the question of the admissibility at time of judgment. The finding of the learned trial Judge that the statement of Krishna could not be treated as F.I.R. is correct in the circumstances of the present case, it having been recorded after the commencement of the investigation. Even assuming that the view of the learned trial Judge on the point is not correct, no miscarriage of justice has been caused on that account, as the decision on the point of its inadmissibility was given only at time of recording judgement.
13. In this case the complainant Krishna sustained injuries on the head. The doctor who examined Krishna on the date of the incident opined that the injury could not be caused with the gupti (Article 1). Gupti is a sharp edged weapon and had the complainant been struck on the head with that gupti, the injury would have been an incised wound. Dr. Jain who examined the complainant stated during the cross-examination that the injury found on the head of Krishna could be caused by a fall. The injury sustained by Krishna was not serious and even after he sustained the injury according to him, he was in position to catch hold of the accused No. 2. Therefore, the possibility of the injury being caused by a mere fall in the scuffle cannot be ruled out. From the mere fact that human blood of 'B' Group was found on the gupti (Article 1) and also on the clothes of the accused, it cannot be held that the injury was caused by the accused No. 1 with the knife (Article 1). The accused No. 1 had also sustained bleeding injury on the forearm and the blood of the accused No. 1 is of 'B' Group and, therefore, the possibility of the stains of 'B' Group found on his clothes being of his own blood cannot be ruled out. Therefore, the learned trial Judge rejected the evidence of the eye-witnesses that the injury on the head of Krishna was caused by the accused No. 1 with the gupti (Article 1). He also rejected the evidence of the eye-witnesses that the accused No. I caused injuries found on the person of Chandravati with the gupti. The Blood of Chandravati is of 'A' Group. The blood found on the gupti was of 'B' Group. According to the eye-witnesses , the accused No. 1 first inflicted injuries with the gupti on the head of Krishna and thereafter with the same gupti caused the injuries found on the person of Chandravati. No blood of 'A' Group was found on the gupti. On the contrary, the Blood of 'B' Group was found on the gupti. Therefore, there was nothing wrong in the learned trial Judge entertaining a serious doubt as to whether the injury found on the person of Chandravati was caused with the gupti (Article 1). There are many other improbabilities in the evidence of the complainant and other eye-witnesses which led the learned trial Judge to reject their evidence. As the matter is before this Court in revision and not in appeal, it is futile to try to reappreciate the evidence, as this Court cannot reappreciate the evidence and reach the findings different from the trial Judge, in revision. No other legal infirmities either in the procedure or the conduct of the trial vitiating the trial of the respondents accused Nos. 1 to 3 were brought to my notice.
14. Consequently, I find that there is no substance in the revision application and it is hereby dismissed.