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CASE NO.: Appeal (crl.)  215 of 2008

PETITIONER: Johar and others

RESPONDENT: Mangal Prasad and another

DATE OF JUDGMENT: 30/01/2008

BENCH: S.B. SINHA &  V.S. SIRPURKAR

JUDGMENT: J U D G M E N T

(Arising out of SLP (CRL.) NO. 2014 OF 2007)

S.B. SINHA, J.  

1.      Leave granted.

2.      Appellants were charged for commission of offences under Sections  148 and 302 of the Indian Penal Code and in the alternative under Section  302/149 and Section 120-B of the Indian Penal Code.   They were, however,  convicted for commission of an offence under Section 323 read with Section  34 of the Indian Penal Code only, recording that as accused Nos. 1 to 4 had  only caused simple injuries to the deceased Umashankar, the provisions of  Section 148 and 149 of the Indian Penal Code were not attracted.

3.      The State did not prefer any appeal thereagainst. The  complainant/respondent, however, filed a revision application before the  High Court.  The High Court went into the evidence adduced on behalf of  the prosecution.  In regard to the deposition of the official witnesses  including Autopsy Surgeon it was commented :-

\02310.  If a public servant is corruptly (sic) makes a report  in a judicial proceeding it will be offences under section  193 IPC and section 196 IPC and preparation of  document with an intention to save person from  punishment, it will be an offence falling under section  196 IPC. Thus, willful act of the Doctor in not referring  to other injuries in the post mortem report discloses his  intention to protect the respondents who are guilty of  commission of murder. Witnesses were firm on the point  of beating of deceased by lathi and number of injuries  received by the deceased. It is held that post mortem  report is incomplete report prepared by the doctor to give  undue advantage to the accused. Appropriate steps for  prosecution of PW9 Dr.Y.K. Malaiya be initiated for  intentionally preparing false evidence.\024

       It was opined that having regard to the nature of deposition of the  Autopsy Surgeon, the trial Court committed a grave error in ignoring the  other relevant materials brought on records to pronounce a judgment of  acquittal in favour of the respondents (appellants herein).  It was furthermore  held that the doctor had willfully suppressed the head injury and was thus  guilty of dereliction of duty.  Re-appreciating the evidence of the  prosecution witnesses, it was held :-

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\023It is natural that when a person is surrounded by number  of accused it is difficult for eyewitness to describe the  author of each and every injury. In para 16 of cross- examination, this witness has clarified that he has seen  the body of injured and he found that Umashankar was  having lathi injuries on his entire body and no place on  his body was left where he had not received injuries by  lathi.\022

4.      On the premise that the learned trial judge has mis-appreciated the  evidence, the revision application was allowed, directing :-

\02322. In the result, judgment of acquittal passed by the  trial court is set aside and the case is remanded to the trial  court to pass the judgment on the basis of evidence on  record for each offence keeping in mind evidence of  eyewitnesses wherein it is stated that deceased had  suffered injuries on the whole body. The fact is also  referred in Dehati Naleshi and Panchnama of dead body  Ex.P/3. Evidence of doctor will not prevail over the  eyewitness account in this case. This is a case under  section 302 IPC and the intention of all the respondents  was to cause death of deceased. Trial court shall also  examine and pass necessary orders against the concerned  doctor for preparing document in order to give undue  benefit to the accused.\024  5.      We may, however, before embarking upon the contentions raised  before us by the learned counsel for the parties place on record that one of  the accused persons, namely Roshan, had preferred an appeal before the  High Court of Madhya Pradesh at Jabalpur and by a judgment and order  dated 18th November, 2003,  it while upholding his conviction under Section  323 read with Section 34 of the Indian Penal Code  set him free on probation  on his furnishing a personal bond for Rs.3,000/- (Rupees there thousand  only) with one surety of the like amount.  The said judgment and order has  attained finality.

6.      Mr. Fakhruddin, the learned Senior counsel appearing for the  appellant, submitted that the High Court committed a manifest illegality in  passing the impugned judgment which is in the teeth of Sub-section (3) of  Section 401 of the Code of Criminal Procedure, 1973.   

7.      Ms Vibha Datta Makhija, the learned counsel appearing on behalf of  the respondent-State, on the other hand, urged that it is not a case where the  High Court converted a judgment of acquittal to a judgment of conviction in  exercise of its revisional jurisdiction but merely remitted the matter to the  trial court for consideration afresh, this Court should not interfere therewith.  8.      The State did not prefer any appeal from the judgment of the learned  Trial Judge.  From the proceedings of the High Court, it appears that the  State was not even made a party in the criminal revision application.  Public  Prosecutor, however, represented the State before the High Court.  Nobody  interestingly appeared on behalf of the complaint-revisionist.         9.      Revisional jurisdiction of the High Court in terms of Section 397 read  with Section 401 of the Code of Criminal Procedure is limited.  The High  Court did not point out any error of law on the part of the learned Trial  Judge.  It was not opined that any relevant evidence has been left out of its  consideration by the court below or irrelevant material has been taken into  consideration.  The High Court entered into the merit of the matter.  It  commented upon the credentiality of the Autopsy Surgeon.  It sought to re- appreciate the whole evidence.  One possible view was sought to be  substituted by another possible view.   

10.     Sub-section (3) of Section 401 reads as under :-      

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\023401(3).     Nothing in this section shall be  deemed to authorize a High Court to convert a  finding of acquittal into one of conviction.\024

       Technically, although Ms. Makhija may be correct that the High Court  has not converted the judgment of acquittal passed by the learned Trial  Court to a  judgment of conviction, but for arriving at a finding as to whether  the High Court has exceeded its jurisdiction or not, the approach of the High  Court must be borne in mind.  For the said purpose, we may notice a few  precedents.

11.     In D. Stephens  vs.  Nosibolla : [1951] 1 SCR 284 this Court opined :- \02310. The revisional jurisdiction conferred on the High  Court under section 439 of the Code of Criminal  Procedure is not to be lightly exercised when it is  invoked by a private complainant against an order of  acquittal, against which the Government has a right of  appeal under section 417. It could be exercised only in  exceptional cases where the interests of public justice  require interference for the correction of a manifest  illegality, or the prevention of a gross miscarriage of  justice. This jurisdiction is not ordinarily invoked or used  merely because the lower court has taken a wrong view  of the law or misappreciated the evidence on record.\024  

12.     The same principle was reiterated in Logendra Nath Jha and others   vs.  Polailal Biswas [1951 SCR 676] stating:  \023\005Though sub-section (1) of section 439  authorises the High Court to exercise, in its  discretion, any of the powers conferred on a court  of appeal by section 423, sub-section (4)  specifically excludes the power to \023convert a  finding of acquittal into one of conviction\024.  This  does not mean that in dealing with a revision  petition by a private party against an order of  acquittal the High Court could in the absence of  any error on a point of law re-appraise the  evidence and reverse the findings of facts on which  the acquittal was based, provided only it stopped  short of finding the accused guilty and passing  sentence on him.  By merely characterizing the  judgment of the trial court as \023perverse\024 and  \023lacking in perspective\024, the High Court cannot  reverse pure findings of fact based on the trial  Court\022s appreciation of the evidence in the case.   That is what the learned Judge in the court below  has done, but could not, in our opinion, properly  do on an application in revision filed by a private  party against acquittal\005\024             13.     In the instant case the High Court not only entered into the merit of  the matter but also analysed the depositions of all the witnesses examined on  behalf of the prosecution.  It, in particular, went to the extent of criticizing  the testimony of Autopsy Surgeon.   It relied upon the evidence of the so  called eye witnesses to hold that although appellants herein had inflicted  injuries on the head of the deceased, Dr. Y.K. Malaiya, PW-9, deliberately  suppressed the same.  He was, for all intent and purport, found guilty of the  offence under Section 193 and 196 of the Indian Penal Code.  The Autopsy  Surgeon was not cross-examined by the State.  He was not declared hostile.   The State did not even prefer any appeal against the judgment.   14.     In the absence of any such injury on the vital part of the body, the  learned trial Judge, upon analyzing the evidence brought on record by the  prosecution, held that only four accused had committed the offence under  Section 323 read with Section 34 alone.  We see no reason as to how the

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findings of the trial judge can be said to be perverse.  The learned trial judge  in arriving at his conclusion noticed:-

(i)     Names of some of the appellants were not stated in  the first information report. (ii)    Some of the accused persons were not present at  the time of commission of offence, as their plea of  alibi was acceptable. (iii)   The story of recovery of lathis from some of the  accused is doubtful. (iv)    Purported recovery of lathi by the investigating  officer without any disclosure statement having  been made by the concerned accused, was not  relevant.  (v)     Some of the accused did not have any dispute  whatsoever with the complainant side, as such they  had no motive to commit the crime.  (vi)    Only because some of the accused were present at  the time of commission of the offence, having  regard to the fact that the incident took place in a  very small village, their presence at the time of  occurrence by itself cannot lead to an inference  that they participated therein, particularly when  prosecution witnesses did not name them.    (vii)   No independent witness had been examined by the  prosecution despite the fact that a large number of  persons witnessed the incident.

15.     Upon analyzing the entire evidence on record, the learned trial judge  held :-

\02358. In view of the discussion and analyses made  hereinabove prosecution has proved that accused persons  No. 1 to 4 i.e. Johar, Ruplal, Roshan and Santosh  inflicted simple injuries to deceased Umashankar.   Against accused persons offence under Section 148, 302  r/w 149 IPC have been leveled but in the incident only  accused No. 1 to 4 have committed and thus participation  of the number of accused is proved to be four only and  under section 148 & 149 IPC the accused persons  minimum remained to be five.  As such against accused  No.1 to 4 offence under Section 148 & 149 are not  proved.\024       16.     Evidently the High Court raised a presumption that Autopsy Surgeon  deliberately did not disclose the ante mortem head injury purported to have  been suffered by the deceased.   

17.     The approach of the High Court to the entire case cannot be  appreciated.  The High Court should have kept in mind that while exercising  its revisional jurisdiction under Sections 397 and 401 of the Code of  Criminal Procedure, it exercises a limited power.  Its jurisdiction to entertain  a revision application, although is not barred, but severally restricted,  particularly when it arises from a judgment of acquittal.

18.     Ms. Makhija is correct that sub-section (4) of Section 378 of the Code  of Criminal Procedure  was not available to the first informant but the same  by itself would not mean that in absence of any appeal preferred by the  State, the limited jurisdiction of the court should be expanded.  

19.     We may notice a few of the decisions of this Court which are binding  on us.        In K. Chinnaswamy Reddy  vs. State of Andhra Pradesh : [1963] 3  SCR 412, this Court observed :-

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\023It 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 though 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.\024   

    In Mahendra Pratap Singh vs. Sarju Singh and Anr. [1968] 2 SCR   287 this Court stated the law thus :-   

\0238. The practice on the subject has been stated by this  Court on more than one occasion. In D. Stephens v.  Nosibolla [[1951] S.C.R. 284], only two grounds were  mentioned by this Court as entitling the High Court to set  aside an acquittal in a revision and to order a retrial. They  are that there must exist a manifest illegality in the  judgment of the Court of Session ordering the acquittal or  there must be a gross miscarriage of justice. In explaining  these two propositions, this Court further states that the  High Court is not entitled to interfere even if a wrong  view of law is taken by the Court of Session or if even  there is misappreciation of evidence. Again, in  Logendranath Jha and others v. Shri Polailal Biswas  [[1951] S.C.R. 676], this Court points out that the High  Court is entitled in revision to set aside an acquittal if  there is an error on a point of law or no appraisal of the  evidence at all. This Court observes that it is not  sufficient to say that the judgment under revision is  "perverse" or "lacking in true correct perspective". It is  pointed out further that by ordering a retrial, the dice is  loaded against the accused, because however much the  High Court may caution the Subordinate Court, it is  always difficult to re-weigh the evidence ignoring the  opinion of the High Court. Again in K. Chinnaswamy  Reddy v. State of Andhra Pradesh, it is pointed out that  an interference in revision with an order of acquittal can  only take place if there is a glaring defect of procedure  such as that the Court had no jurisdiction to try the case  or the Court had shut out some material evidence which  was admissible or attempted to take into account  evidence which was not admissible or had overlooked  some evidence. Although the list given by this Court is  not exhaustive of all the circumstances in which the High  Court may interfere with an acquittal in revision it is  obvious that the defect in the judgment under revision  must be analogous to those actually indicated by this  Court.\024            In Janata Dal vs. HS Chowdhary : (1992) 4 SCC 305, this Court stated  that the object of the revisional jurisdiction was to confer power on superior

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criminal courts to correct miscarriage of justice arising from misconception  of law, irregularity of procedure, neglect of proper precaution or apparent  harshness of treatment.            In State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand  :  (2004) 7 SCC 659 this Court observed :-:  \02321. In embarking upon the minutest re-examination of  the whole evidence at the revisional stage, the learned  Judge of the High Court was totally oblivious of the self- restraint that he was required to exercise in a revision  under Section 397 Cr. PC. On behalf of the accused,  reliance is placed on the decision of this Court to which  one of us (Justice Sabharwal) is a party i.e. Ram Briksh  Singh v. Ambika Yadav. That was the case in which the  High Court interfered in revision because material  evidence was overlooked by the courts below.\024  

       The judgment of Ram Briksh mentioned above, has since been  reported as Ram Briksh Singh  vs.  Ambika Yadav : (2004) 7 SCC 665  wherein it has been observed :-  \02312.   For the aforesaid reasons, we are unable to  accept the contention that the High Court has  reappreciated the evidence. The High Court has  only demonstrated as to how the material evidence  has been overlooked leading to manifest illegality  resulting in gross miscarriage of justice.\024            It was, therefore, relevant in the fact situation obtaining therein.             Yet again in Satyajit Banerjee vs. State of W.B. : (2005) 1 SCC 115  this Court has, while exercising its jurisdiction under Section 142 of the  Constitution of India, expressed a note of caution stating :-  \02322. The cases cited by the learned counsel show the  settled legal position that the revisional jurisdiction, at  the instance of the complainant, has to be exercised by  the High Court only in very exceptional cases where the  High Court finds defect of procedure or manifest error of  law resulting in flagrant miscarriage of justice.   

20.     We may notice that prohibition contained in sub-section (3) of Section  421 refers to a finding and not the conclusion.         A bare perusal of the judgment of the High Court clearly demonstrates  that in effect and substance the finding of the learned trial judge has been  reversed.  While hearing the matter afresh in terms of the direction of the  High Court, the learned Trial Judge would be bound by the observations  made therein and thus, would have no option but to convict the appellants.  21.     Not only the evidence of the prosecution witnesses has been relied  upon and that of the Autopsy Surgeon has been disbelieved but the Trial  Judge has also been asked to initiate an appropriate proceeding against him.   22.     We have, therefore, no hesitation to hold that the High Court  exceeded its jurisdiction in view of the fact that the judgment of the learned  Trial Judge could not be termed to be a perverse one.   23.     The Trial Court might be wrong as regards analyzing the prosecution  evidence but then it had not relied upon the evidence of the eye witnesses  only having regard to the opinion of medical expert.  The learned Trial  Judge considered the plea of alibi on the part of some of the accused and  accepted the same.  The High Court did not bestow any consideration in this  behalf.  It also failed to take into consideration that even by-standers have  been implicated in the matter. 24.     Unfortunately, the High Court did not meet the reasonings of the  learned trial judge which was its bounden duty. 25.     Even the effect of the order dated 18.11.2003 passed by the High  Court in the appeal preferred by Roshan was not taken into consideration.          The said order attained finality.  If Roshan was guilty of commission

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of an offence under Section 323 of the Indian Penal Code, we fail to see any  reason as to how others could be held guilty for commission of the offence  under Section 302 thereof.         In any event, the judgment passed in favour of Roshan could not have  been set aside indirectly which could not be done directly. 26.     For the reasons abovementioned, the impugned judgment cannot be  sustained, which is set aside accordingly.   The appeal is allowed.