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PETITIONER: VIMAL SINGH

       Vs.

RESPONDENT: KHUMAN SINGH & ANR.

DATE OF JUDGMENT:       08/10/1998

BENCH: M.M.PUNCHHI, V.N.KHARE.

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T V.N. KHARE,J. Leave granted. This  Criminal  Appeal  is  directed   against   the judgment and order dated 5.11.96 passed by the High Court of Madhya  Pradesh  whereby  the High Court, while allowing the Criminal Revision filed by the  complainant,  Khuman  Singh, set  aside  the order of acquittal passed by the trial court and convicted the appellant herein  for  the  offence  under Section  304  Part  I, IPC and sentenced him to seven years’ rigorous imprisonment. In brief the prosecution case was that on 2.4.87  at about  10  A.M.,  the  deceased  Vijay Singh was coming from Khalihan when accused Vimal  Singh,  the  appellant  herein, quarreled  with  him and was said to have given a knife blow to deceased Vijay Singh.  Next  morning  while  Vijay  Singh deceased,  Khuman Singh (PW-3) and Narayan Singh (PW-4) were going to the Police Station Satpada in a bus for lodging the First Information Report in respect of  the  previous  days’ incident  the appellant who was sitting on the bonnet of the bus got the bus stopped and threatened Vijay  Singh  not  to lodge  any report in respect of the previous days’ incident. This led to a quarrel in the bus and in that process  it  is alleged that the appellant gave a knife blow to Vijay Singh, who died later on. The  First  Information  Report  in  respect of that incident was lodged at Vidisha by Khuman Singh.  Post mortem on the dead body  of  the  deceased  was  performed  by  the doctor.   Thereafter, the charge-sheet was submitted against the appellant under Section 302 IPC.  The appellant  pleaded not guilty  and  denied  the charge.  He also stated that he had not given the knife  blow  to  Vijay  Singh  during  the quarrel inside  the  bus.  The prosecution in support of its case examined number of witnesses.  The witnesses  who  were alleged  to be present at the sense of occurrence are, Sumer Singh (PW-2),  Khuman  Singh  (PW-3),  own  brother  of  the deceased,  Naryan  Singh  (PW-4),  own brother-in-law of the deceased, Shafi Mohd.  (PW-10), the conductor  of  the  bus, and Nalhu Ram (PW-13), the driver of the bus. The trial court after assessing all  the evidence on

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record  came  to  the  conclusion  that  the prosecution has failed to prove the charge beyond reasonable  doubt  and  as such acquitted the appellant. The  State did not file any appeal against acquittal of the appellant herein.  However, Khuman Singh (PW-3), sent a letter to the High Court against acquittal of the  accused -  appellant,  which  was  treated  as  a  Revision Petition against the order of acquittal and the same  was  registered as Criminal Revision No.  130 of 1989.  The High Court after being  of  the  view  that  the  finding  of the trial court discarding the prosecution evidence is totally perverse  and has  resulted  in  miscarriage  of justice, entered into the domain of reappraisal of evidence.   The  High  Court  after reappraising  the evidence accepted the prosecution case and set aside the order of acquittal passed by the  trial  court and  held  that the appellant is guilty of the offence under Section 304 Part-I I.P.C.  and sentenced him to seven years’ rigorous imprisonment. Learned counsel for the  appellant  urged  that  the judgment  under  appeal  is  illegal and nullity as the High Court while setting aside the order of acquittal  passed  by the  trial  court, convicted the appellant under Section 304 Part  I  IPC  and  sentenced  him  to  7   years’   rigorous imprisonment   in  total  disregard  to  the  provisions  of sub-section (3) of Section  401  of  the  Code  of  Criminal Procedure (hereinafter  referred  to as the ’Code’).  It was also argued that the High Court has entered into  the  realm of reappraisal of the evidence while setting aside the order of  acquittal  passed  by  the  trial court which it was not authorised to do so in view of the settled principles of law in this regard. 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 inlegra, 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 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

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       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". Coming  to  the  ambit  of power of High Court under Section 401 of the Code, the High Court in  its  reversional power   does  not  ordinarily  interfere  with  judgment  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 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  have 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 403 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  accoused  deserves conviction.  No doubt, the High Court in exercise of its reversional 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.  Infect, Sub-section (3) of Section 401 of the Code forbids the High Court in converting the  order  of acquittal into one of conviction.  In view of the limitation on  the  reversional power of the High Court, the High Court in  the  present  case  under  Section  304  Part  -  I  and sentencing  him  to seven years’ rigorous imprisonment after setting aside the order of acquittal. Coming  to the next question as to whether this case fell within the parameters which could enable the High Court to interfere with the order of acquittal passed by the trial court, a perusal of the judgment of  the  High  Court  shows that  it  was of the view that the trial court has discarded the evidence of Sumer Singh (PW-2), who was  an  independent witnesses,  as  well as the evidence of Khuman Singh (PW-3), Narayan Singh (PW-4), Shafi Mohammad (PW-10),  and  Nathuram (PW-13).  After being of that view the High Court reassessed the  evidence  and came to the conclusion that the appellant is guilty of offence under Section 304 Part  I  IPC.    This view of the High Court is palpably wrong.  We have carefully gone through the judgment of the trial court and do not find that  the  trail  court assessed the statements of witnesses and thereafter came to the conclusion that, the  prosecution has failed  to  prove  its case beyond reasonable doubt.  So far as the evidence of Sumer Singh (PW-2) is concerned,  the trial  court  found that he only mentioned that some quarrel had taken place inside the bus but he could not identify the actual  assailant  and  the  persons  who  were  quarreling. Subsequently,  this  witness  was  declared  hostile  in the cross-examination.  After  appreciating  the  evidence,  the trial  court  came  to  the conclusion that the statement of Sumer Singh (PW-2) is of no help to  the  prosecution  case.

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Thus, it is quite evidence that the High Court was not right in  its  view  that evidence of Sumer Singh was discarded by the trial court.  So far as the  evidence  of  Khuman  Singh (PW-3)  and  Narayan  Singh  (PW-4) are concerned, the trial court on assessment of the evidence found  that  there  were contradictions in  their statements on material points.  The trial court further found that the medical evidence did  not support  the version of Khuman Singh (PW-3) that he received injury by knife inside the bus.  The trial court also  found that  Narayan  Singh  (PW-4)  did  not  support Khuman Singh (PW-3) with regard to his  injury  and  both  the  witnesses (PW-3 & 4) were interested witnesses and made reservation in their statements.    The trial court, in view of the medical evidence found that no injury was cased in  Vijay  Singh  on the previous days’ incident which is alleged to be the cause for  going  to  the police station for lodging the FIR, next day or was motive to inflict injury that day to the deceased inside the bus by the appellant.  From the above facts it is apparently clear that the trial court did not  shut  out  or discard the  evidence  led  by  the  prosecution.    On  the contrary, the trail court assessed the  entire  evidence  on record  and  came to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt and as such acquitted the accused appellant.  In fact,  the  High  Court has entered into the domain of reappraisal of evidence which it  was  not authorized to do in exercise of its reversional power.  Under such circumstances, the order under appeal  is not sustainable  in  law  and  deserves  to  be quashed.  We accordingly set aside the judgment and  order  of  the  High Court  dated  5.11.1996 and restore that of the trial court. While issuing notice on the petition for  special  leave  to appeal,  this  court suspended the operation of the judgment under  appeal  and   the   appellant   was   exempted   from surrendering.   Consequently,  the appellant was not sent to jail.  In view of that order no further order  is  required. The appeal is allowed.