REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1492  OF 2008 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL) NO. 7251 OF 2007

STATE OF MAHARASHTRA … APPELLANT

VERSUS

SUJAY MANGESH POYAREKAR … RESPONDENT

J U D G M E N T C.K. THAKKER, J.

1. Leave granted.

2. The  present  appeal  is  filed  against

the  order  passed  by  the  High  Court  of

Judicature  at  Bombay  on  June  12,  2007  in

Criminal Application No. 1390 of 2007. By the

said order, the High Court refused to grant

leave to appeal to the State against an order

of  acquittal  recorded  by  III  Ad  hoc  Addl.

Sessions Judge, Palghar on January 16, 2007 in

Sessions Case No. 148 of 2003.

3. Short  facts  of  the  case  are  that

complainant-Rajan Mukund Patil is the resident

of  Chinchani,  Bhandar  Ali,  Taluka  Dahanu,

District  Palghar,  Maharashtra.  He  is  a

practising advocate at Dahanu Court. According

to  the  prosecution,  on  June  07,  2003,

complainant had gone to Dahanu Court.  In the

evening,  he  went  to  Vangaon  by  train  and

therefrom  he  was  to  go  to  his  residence  at

Chinchani. For that purpose, he went to Dahanu

Railway Station at about 6.00 p.m. and boarded

Firozpur  Janta  Train.  He  reached  Vangaon  at

6.15  p.m.  On  platform  No.2,  he  saw  Deepa

Gajanan  Patil  who  was  going  to  Mumbai.  The

complainant was knowing her.  He, therefore,

asked her as to where she was going.  She told

the complainant that she had come to receive

her father.  Meanwhile, accused Sujay Mangesh

Poyarekar-respondent  herein  alighted  from

Virar-Surat shuttle.  The accused came near the

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complainant and asked him why he was standing

there and started abusing him. The accused also

alleged that the complainant was flirting with

his wife. So saying, the accused assaulted the

complainant with knife in his stomach, on right

shoulder, below left armpit and on back-side.

The  complainant  received  injuries.   He

immediately went to Station Master’s cabin. In

the meanwhile, his sister Charushila and one

Hitendra came there and took complainant to the

Vangaon Government Hospital. Later on, police

went to the hospital and recorded statement of

the complainant.

4. On  the  basis  of  the  statement,

initially C.R. No. 00 of 2003 was registered in

Vangaon Police Station. The said complaint was

then  forwarded  to  Palghar  Railway  Police

Station  where  C.R.  No.  I-9  of  2003  was

registered at 23.00 hours vide Station Diary

No. 42 of 2003 for offences punishable under

Sections 307 and 504 of the Indian Penal Code

(IPC). The accused was arrested at about 23.45

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hours  and  was  released  on  bail  on  June  12,

2003. After usual investigation and recording

of  statement  of  witnesses,  charge-sheet  was

filed  in  the  Court  of  Judicial  Magistrate,

First Class, Railway, Virar.

5. Since the offence under Section 307,

IPC  was  exclusively  triable  by  a  Court  of

Session, the Judicial Magistrate, by an order

dated November 27, 2003 committed the case to

Sessions Court, Palghar. It was registered as

Sessions Case No. 148 of 2003. Necessary charge

was framed against the accused who pleaded not

guilty to the charge and claimed to be tried.

6. The prosecution in order to establish

the  case  against  the  accused,  examined  15

witnesses. It mainly relied upon testimony of

PW1-Rajan  (complainant  and  victim)  and  PW2-

Charushila  (real  sister  of  complainant).

Deposition of PW12-Dr. D’Souza was recorded to

prove injuries sustained by the victim. After

the  prosecution  evidence,  statement  of  the

accused was recorded under Section 313 of the

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Code of Criminal Procedure, 1973 (hereinafter

referred to as ‘the Code’) wherein he admitted

his presence on the Railway platform on the

date of occurrence. He, however, denied to have

committed any offence.

7. The  learned  trial  Judge,  vide  his

judgment  and  order  dated  January  16,  2007,

acquitted  the  accused  for  the  offences  with

which he was charged. According to the learned

Judge, the prosecution failed to establish the

case  against  the  accused  beyond  reasonable

doubt.

8. The  State,  being  aggrieved  by  the

order of acquittal, filed an application, being

Criminal Application No. 1390 of 2007 for leave

to appeal in the High Court. The High Court,

vide the impugned order dated June 12, 2007,

rejected  the  application  observing  that  the

judgment of the trial Court could not be said

to be ‘perverse’ and no interference was called

for. The State has challenged the said order in

this Court.

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9. On November 23, 2007 when the Special

Leave  Petition  was  placed  for  admission

hearing, notice was issued. It was indicated in

the order that the notice will state as to why

Special Leave Petition should not be disposed

of by setting aside the order passed by the

High Court and by remitting the matter to the

High Court to be decided in accordance with

law. Service of notice had been effected on the

accused  who  appeared  through  counsel.   An

affidavit in reply is also filed justifying the

order passed by the High Court refusing leave.

10. We have heard learned counsel for the

parties.

11. The  learned  counsel  for  the  State

contended that the High Court has committed an

error of law in not granting leave to the State

to  file  an  appeal  against  the  order  of

acquittal recorded by the Sessions Court. The

counsel submitted that from the material placed

before  the  Court,  it  is  clearly  established

that  PW1-Rajan sustained  injuries which  were

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proved from the evidence of Dr. D’Souza-PW12.

According  to  PW1-Rajan,  injuries  had  been

caused  by  the  accused.  PW2-Charushila  real

sister  of  complainant  had  corroborated  the

version of PW1-Rajan. The High Court ought to

have  appreciated  the  prosecution  evidence,

ought to have granted leave and decided the

appeal on merits.

12. It  was also submitted that from the

record, it was clearly proved that there was

enmity  between  the  parties.  It  was  the

allegation of the accused that PW1-Rajan was

harassing Deepa.  It has also come in evidence

that on the date of incident  i.e. on June 7,

2003, the complainant was assaulted. Initially,

he went to cabin of the Station Master, Dahanu

Railway Station where a report was lodged which

was subsequently sent to Palghar Railway Police

Station  where  a  case  was  registered  for

offences punishable under Sections 307 and 504,

IPC. The accused was admittedly present at the

Railway  Station.  The  High  Court  has  not

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considered all these facts.  It has also not

discussed  evidence  of  PW1-Rajan  nor  of  PW2-

Charushila. A sweeping statement was made in

the order that the trial Court had appreciated

the  evidence  properly  by  taking  into

consideration several complaints filed against

the complainant who had tendered apology to the

President, Bar Association, Dahanu. An action

was also taken by the Bar Council. According to

the High Court, the judgment of the trial Court

could  not  be  said  to  be  ‘perverse’.   It

accordingly dismissed the application. It was

submitted that keeping in view all these facts,

the present appeal deserves to be allowed by

remitting  the  matter  to  the  High  Court  for

fresh disposal in accordance with law.

13. The learned counsel for the accused,

on the other hand, supported the order passed

by the High Court. In the counter-affidavit, it

was said that there was suppression of fact by

the State.  It was stated that being aggrieved

by  the  order  passed  by  the  trial  Court

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acquitting the accused, the complainant filed a

revision  which  was  registered  as  Criminal

Revision  Application  No.  166  of  2007  and  a

Single  Judge  of  the  High  Court,  vide  order

dated July 18, 2006, dismissed it. The State

was  joined  as  party.  The  Assistant  Public

Prosecutor also appeared for the State and the

High Court refused to interfere with the order.

The fact of filing revision by the complainant

and dismissal thereof has not been mentioned in

the present proceedings. On this ground alone,

the appeal deserves to be dismissed.

14. Even on merits, the counsel submitted

that  no  error  can  be  said  to  have  been

committed by the High Court in refusing leave

and  in  dismissing  application  filed  by  the

State.  The  Trial  Court  considered  the

prosecution evidence in detail and came to the

conclusion that the prosecution was unable to

prove  case  against  the  accused  beyond

reasonable doubt and was, therefore, entitled

to acquittal. It was not necessary for the High

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Court  when  it  agreed  with  the  order  of

acquittal recorded by the trial Court to record

reasons  again  for  such  acquittal.  It  was,

therefore, submitted that no case has been made

out  for  interference  by  this  Court  and  the

appeal deserves to be dismissed.

15. Having heard learned counsel for the

parties, in our opinion, the appeal deserves to

be allowed.

16. So  far  as  the  preliminary  objection

raised by the learned counsel for the accused

is concerned, we find no substance therein. The

case in hand was instituted on the basis of

First Information Report. It was thus a Police

case.  De facto complainant, therefore, has no

right  to  file  an  appeal.  He,  therefore,

preferred a revision. Now it is well settled

that revisional jurisdiction can be exercised

sparingly  and  only  in  exceptional  cases.  A

revisional Court cannot convert itself into a

regular Court of Appeal.

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17. Interpreting the provisions of Section

439 of the Code of Criminal Procedure, 1898

(similar to Section 401 of the present Code of

1973),  in  the  leading  case  of  Chinnaswamy

Reddy v. State of A.P., (1963) 3 SCR 412, this

Court stated;  

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;  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. It is not possible to lay

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down the criteria for determining such exceptional  cases  which  would  cover all  contingencies.  We  may  however indicate  some  cases  of  this  kind, which would in our opinion justify the High  Court  in  interfering  with  a finding  of  acquittal  in  revision. These cases may be : where the trial court has no jurisdiction to try the case  but  has  still  acquitted  the accused, or where the trial court has wrongly  shut  out  evidence  which  the prosecution  wished  of  produce,  or where  the  appeal  court  has  wrongly held  evidence  which  was  admitted  by the trial court to be inadmissible, or where  material  evidence  has  been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the  offence,  which  is  invalid  under the  law.  These  and  other  cases  of similar nature can properly be held to be cases of exceptional nature, where the  High  Court  can  justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of s. 439(4).

18. Powers  of  revisional  Court  are  thus

limited. Rejection of a revision application,

therefore, cannot affect the power of the State

in  invoking statutory  remedy available  under

Section  378  of  the  Code.  The  preliminary

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objection  has,  therefore,  no  force  and  is

hereby rejected.

19. So far as an application for leave to

appeal  by  the  State  is  concerned,  the  High

Court  rejected  it  without  considering  the

evidence of the prosecution. In the impugned

order, the High Court noted that it had heard

the  learned  Assistant  Public  Prosecutor.  It

went  on  to  state  that  none  of  the  injuries

sustained by the victim was ‘fatal’. According

to the High Court, the cause behind the assault

was that the complainant-advocate was teasing

the wife of the accused, who was also working

in the Court.

20. It then proceeded to observe;

“The trial Court has appreciated the  evidence  properly  and  has  also taken into consideration the number of complaints  filed  against  the  said advocate  complainant  including  the apology tendered by the complainant to the President, Bar Association, Dahanu and  the  action  taken  by  the  Bar Council.  The  trial  Court  found inherent  improbabilities  in  the  case of  the  complainant  and  therefore acquitted the accused. The judgment of

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the trial Court cannot be said to be perverse.  No  interference  is  called for. Application rejected”.

21. Now, Section 378 of the Code provides

for filing of appeal by the State in case of

acquittal.  Sub-section  (3)  declares  that  no

appeal “shall be entertained except with the

leave of the High Court”. It is, therefore,

necessary for the State where it is aggrieved

by an order of acquittal recorded by a Court of

Session to file an application for leave to

appeal  as  required  by  sub-section  (3)  of

Section 378 of the Code. It is also true that

an appeal can be registered and heard on merits

by the High Court only after the High Court

grants leave by allowing the application filed

under sub-section (3) of Section 378 of the

Code.

22. In our opinion, however, in deciding

the question whether requisite leave should or

should  not  be  granted,  the  High  Court  must

apply its mind, consider whether  prima facie

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case has been made out or arguable points have

been  raised  and  not  whether  the  order  of

acquittal would or would not be set aside.

23. It cannot be laid down as an abstract

proposition  of  law  of  universal  application

that each and every petition seeking leave to

prefer an appeal against an order of acquittal

recorded by a trial Court must be allowed by

the appellate Court and every appeal must be

admitted and decided on merits.  But it also

cannot be overlooked that at that stage, the

Court would not enter into minute details of

the  prosecution  evidence  and  refuse  leave

observing  that  the  judgment  of  acquittal

recorded by the trial Court could not be said

to be ‘perverse’ and, hence, no leave should be

granted.

24. In  Sita Ram & Ors. v. State of Uttar

Pradesh, (1979) 2 SCC 656, this Court held that

a single right of appeal is more or less a

universal requirement of the guarantee of life

and liberty rooted in the concept that men are

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fallible, judges are men and making assurance

doubly sure, before irrevocable deprivation of

life or liberty comes to pass, a full-scale re-

examination of the facts and the law is made an

integral  part  of  fundamental  fairness  or

procedure.

25. We  are  aware  and  mindful  that  the

above observations were made in connection with

an appeal at the instance of the accused. But

the principle underlying the above rule lies in

the doctrine of human fallibility that ‘Men are

fallible’ and ‘Judges are also men’.  It is

keeping  in  view  the  said  object  that  the

principle has to be understood and applied.

26. Now, every crime is considered as an

offence against the Society as a whole and not

only against an individual even though it is an

individual who is the ultimate sufferer. It is,

therefore,  the  duty  of  the  State  to  take

appropriate  steps  when  an  offence  has  been

committed.

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27. We may hasten to clarify that we may

not  be  understood  to  have  laid  down  an

inviolable rule that no leave should be refused

by  the  appellate  Court  against  an  order  of

acquittal recorded by the trial Court.  We only

state that in such cases, the appellate Court

must  consider  the  relevant  material,  sworn

testimonies of prosecution witnesses and record

reasons why leave sought by the State should

not  be  granted  and  the  order  of  acquittal

recorded  by  the  trial  Court  should  not  be

disturbed.  Where there is application of mind

by the appellate Court and reasons (may be in

brief) in support of such view are recorded,

the order of the Court may not be said to be

illegal or objectionable.  At the same time,

however, if arguable points have been raised,

if  the  material  on  record  discloses  deeper

scrutiny  and  re-appreciation,  review  or

reconsideration  of  evidence,  the  appellate

Court must grant leave as sought and decide the

appeal on merits.

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28. In the case on hand, the High Court,

with respect, did neither. In the opinion of

the High Court, the case did not require grant

of leave. But it also failed to record reasons

for refusal of such leave.

29. We have gone through the judgment and

order of acquittal recorded by the trial Court

which runs into more than 30 typed pages. It

records that 15 witnesses were examined by the

prosecution including injured victim PW1-Rajan

and PW2-Charushila, real sister of the victim.

The trial Court observed that the testimony of

PW1-Rajan revealed that the incident occurred

on June 7, 2003 at about 6.15 p.m. The injuries

sustained by PW1 Rajan were proved from the

evidence of Dr. D’Souza, PW12.

30. The  trial  Court  also  recorded  the

following finding in para 15 of the judgment.

“15.  Anyway,  the  oral  testimony  of PW1-Rajan,  his  sister,  PW2- Charusheela,  PW9-Nareshkumar  of Vangaon Railway Station as well as the testimony  of  Dr.  Ravidas  Purshottam Patil-PW-15  show  that  Rajan  Mukund Patil sustained bleeding injuries”.

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31. PW12-Dr.  D’souza,  Medical  Officer  of

KEM  Hospital,  Mumbai  stated  that  he  had

examined victim PW1-Rajan on June 8, 2003 at

4.00  a.m.  in  the  early  morning  and  found

following four injuries.

1. C.L.W. right shoulder 3 x 1 x 1 cm anterior aspect, caused by sharp object, age within 24 hrs, nature simple.

2. C.L.W.  on  1  x  3  x  6  cms  in epigastria (upper part of abdomen) caused by sharp object, grievous injury.

3. C.L.W.  1  x  0.5  x  0.5  cm,  left axilla i.e. left arm pit caused by sharp object, injury is simple.

4. C.L.W. 5 x 1 x 1 cm left flank (left side of abdomen) caused by sharp object, grievous.

32. He issued necessary certificate which

is at Ext. 34. According to him, injuries could

be  caused  by  sharp  cutting  instrument  like

knife. Though initially he stated that injuries

2  and  4  were  grievous  and  fatal  in  nature,

thereafter he stated that they were not fatal

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but could become fatal. The Court also noted

that the circumstantial evidence supported the

contention of the complainant that he sustained

bleeding  injuries. Bloodstains  were found  on

the  shirt  and  pant  of  accused  which  was  of

Group ‘A’ i.e. blood group of the complainant.

33. The  accused  in  his  statement  under

Section 313 of the Code admitted that he was

present at Vangoan Railway Station on June 07,

2003; that he complained to PW9 Naresh Kumar

that one person was flirting with his wife;

that he was arrested by PW 13 Dattatraya and

was sent for medical examination, that PW11 Dr.

Padmaja  examined  him  and  issued  Medical

Certificate (Ex. 32).  He stated that his wife

and  passengers  at  the  Railway  Station  had

severely beaten the complainant.  It has also

come on record that complaints were made to the

Dahanu Bar Association. Certain documents were

also  produced  relating  to  objectionable

behaviour  by  the  complainant,  lodging  of

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complaints by the accused and resolution passed

by the Dahanu Bar Association.

34. The  trial  Court  also  recorded  a

finding  that  the  defence  counsel  had

successfully  established  enmity  between  the

complainant and the accused.  According to the

Court, on the date of incident i.e. on June 7,

2003, around 6.15 p.m., there was a scuffle

between the complainant on one hand and the

accused  on  the  other  hand  on  account  of

misbehaviour  by  the  complainant  towards  the

wife of the accused. The trial Court came to

the conclusion that from the testimony of PW10-

Dr. Padmaja who examined the accused on June 8,

2003, found three injuries on the person of the

accused as mentioned in Ext.32. They were on

the left shoulder and the right upper limp of

the accused. According to the Court, injuries

on  the  person  of  the  accused  supported  his

defence that he was beaten by the complainant

and prosecution failed to explain the injuries

on the person of the accused.

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35. In  view  of  the  all  these  facts,

circumstances and findings, in our opinion, the

High  Court  should  not  have  rejected  the

application for grant of leave by passing a

‘brief’  order.  Moreover,  the  High  Court

observed  in  the  impugned  order  that  the

judgment of the trial Court cannot be said to

be ‘perverse’.

36. Now, so far as powers of the appellate

Court  in  an  appeal  against  acquittal  are

concerned, no restrictions have been imposed by

the Code on such powers while dealing with an

order against acquittal. In an appeal against

acquittal, the High Court has full power to re-

appreciate,  review  and  reweigh  at  large  the

evidence on which the order of acquittal is

founded and to reach its own conclusion on such

evidence. Both questions of fact and of law are

open to determination by the appellate Court.

37. It is no doubt true that in a case of

acquittal,  there  is  a  double  presumption  in

favour of the respondent-accused. Firstly, the

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presumption of innocence available to him under

the  fundamental  principle  of  criminal

jurisprudence  that  every  person  should  be

presumed innocent unless he is proved guilty by

a competent court of law. Secondly, the accused

having secured his acquittal, the presumption

of his innocence is further reinforced by the

trial  Court  (and  certainly  not  weakened).

Nonetheless,  it  is  not  correct  to  say  that

unless the appellate Court in an appeal against

acquittal under challenge is convinced that the

finding  of  acquittal  recorded  by  the  trial

Court is  ‘perverse’, it cannot interfere. If

the  appellate  Court  on  re-appreciation  of

evidence and keeping in view well established

principles, comes to a contrary conclusion and

records conviction, such conviction cannot be

said to be contrary to law. 38. Recently,  in  Chandrappa  v.  State  of

Karnataka, (2007) 4 SCC 415, after considering

all leading decisions on the point, one of us

(C.K.  Thakker,  J.)  laid  down  the  following

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general  principles  regarding  powers  of  the

appellate  Court  in  dealing  with  an  appeal

against an order of acquittal.

(1) An appellate Court has full power to  review,  reappreciate  and reconsider the evidence upon which the order of acquittal is founded;

(2)  The  Code  of  Criminal  Procedure, 1973  puts  no  limitation, restriction  or  condition  on exercise  of  such  power  and  an appellate  Court  on  the  evidence before  it  may  reach  its  own conclusion, both on questions of fact and of law;

(3)  Various  expressions,  such  as, 'substantial  and  compelling reasons',  'good  and  sufficient grounds',  'very  strong circumstances',  'distorted conclusions',  'glaring  mistakes', etc. are not intended to curtail extensive powers of an appellate Court  in  an  appeal  against acquittal. Such phraseologies are more in the nature of 'flourishes of  language'  to  emphasize  the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

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(4) An appellate Court, however, must bear  in  mind  that  in  case  of acquittal,  there  is  double presumption  in  favour  of  the accused. Firstly, the presumption of  innocence  available  to  him under the fundamental principle of criminal jurisprudence that every person  shall  be  presumed  to  be innocent  unless  he  is  proved guilty  by  a  competent  court  of law.  Secondly, the accused having secured  his  acquittal,  the presumption  of  his  innocence  is further reinforced, reaffirmed and strengthened by the trial court.  

(5) If two reasonable conclusions are possible  on  the  basis  of  the evidence on record, the appellate court  should  not  disturb  the finding of acquittal recorded by the trial court.

39.  The High Court, in our judgment,

was not right in rejecting the application for

leave on the ground that the judgment of the

trial Court could not be termed as ‘perverse’.

If,  on  the  basis  of  the  entire  evidence  on

record,  the  order  of  acquittal  is  illegal,

unwarranted or contrary to law, such an order

can be set aside by an appellate Court. Various

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expressions,  such  as,  'substantial  and

compelling  reasons',  'very  strong

circumstances',  'distorted  conclusions',

'glaring mistakes', ‘judgment being perverse’,

etc. are more in the nature of 'flourishes of

language' than restricting ambit and scope of

powers  of  the  appellate  Court.  They  do  not

curtail the authority of the appellate Court in

interfering with an order of acquittal recorded

by the trial Court. The Judgment of the High

Court, with respect, falls short of the test

laid  down  by  this  Court  in  various  cases

referred to in  Chandrappa.  The order of the

High Court, therefore, cannot stand and must be

set aside.

40. For the foregoing reasons, the appeal

deserves  to  be  allowed  and  is  allowed

accordingly by remitting the matter to the High

Court  for  fresh  disposal  in  accordance  with

law.

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41. Before parting with the case, we may

state that we may not be understood to have

expressed any opinion one way or the other on

the merits of the matter.  As and when the High

Court  will  hear  the  matter,  the  Court  will

decide the case without being influenced by any

observations made by us in this judgment.

42. Ordered accordingly.

……………………………………………………J. (C.K. THAKKER)

………………………………………………J.      (D.K. JAIN)

NEW DELHI, September 19, 2008.

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