30 September 1970
Supreme Court







DATE OF JUDGMENT: 30/09/1970


ACT: Appeal--Conviction  under Ss. 326 and 324 I.P.C.-High  Court dismissing  appeal  summarily without giving  any  reason-If desirable  course-  Necessity for giving reasons  to  enable Supreme  Court property to exercise its power under  Article 136 of the Constitution.

HEADNOTE: The appellant was convicted. by the Trial Court for offences under  Sections  326 and 324 I.P.C. for  having  voluntarily caused grievous hurt with a dangerous weapon to one  person, and  for  causing  hurt  to three  other  persons.   He  was sentenced to imprisonment for four years for his  conviction under  Section 326 and for 11/2 years for each of the  three offences   under   Section  324,  all   sentences   to   run concurrently.   The  appellant filed an appeal  against  his conviction  to the High Court at Bombay but his  appeal  was dismissed by the Court with one word "dismissed". In appeal to this Court by special leave under Article  136, it  was  contended  on  behalf of  the  appellant  that  the injuries complained of were inflicted by him in the exercise of his lawful and legitimate right of self-defence.  It  was also  contended  that  the statements of three  of  the  eye witnesses made in the committing Court from which they  had: resiled at the trial should not have been acted upon by  the Trial Court in support of the prosecution version; and  that the  only witness who did not resile from the  statement  in the committing Court was a highly interested witness in that he  was  the person on whom injuries were stated  to,.  have been  inflicted  by the appellant;  therefore  his  evidence should not have been implicitly accepted. HELD : dismissing the appeal, (i)  On the evidence, the plea of self defence taken by  the appellant   could   not  be  sustained.    Furthermore   the statements  of the three witnesses in the  committing  court from  which  they resiled at the trial and which  were  duly brought  on the record of the trial court under Section  288 Cr.  P.C. constituted substantive evidence and if the  court was satisfied that those statements were true whereas  those made  in  the  trial court were  untrue,  then  the  earlier statements  could  safely  be relied  upon  to  sustain  the conviction.  In this case a mere reading of the  statements at  the trial demonstrated their unconvincing nature and  it was  clear  that  there was some  ulterior  motive  for  the witnesses  to  resile  from  the  earlier  statements  which appeared  to  have a ring of truth about  them.   The  trial



court  was therefore right in convicting the  appellant  for offences under Ss. 326 and 324 I.P.C. [536 B-D] (ii) On  reading  the  judgment of  the  learned  Additional Sessions  Judge and the memorandum of the grounds of  appeal in the High Court it was clear that the summary dismissal of the  appeal  by  the High Court with  one  word  "dismissed" without  indicating  its views on the points raised  in  the appeal which appeared to be arguable was not right.  This 5 3 0 Court has repeatedly pointed out that when an appeal to  the High Court under the Code of Criminal Procedure raises  some arguable  points,  the High Court would be  well-advised  to give  some  indication  of the reasons for  its  view  while repelling  those points.  Without having the benefit of  the opinion  of  the High Court, this Court is  likely  to  feel embarrassed  in  dealing  with those  points  on  appeal  by special leave. [530 H-531 C] Mustak Hussein, v. The State of Bombay, [1953] S.C.R. 809 at 820  and Challappa Ramaswami v. State of Maharashtra  [1970] (2) S.C.R. 426; referred to. Section  410 Cr.P.C. confers a right of appeal to  the  High Court  on a person convicted on a trial held by  a  Sessions Judge or an Additional Sessions Judge.  This right  entitles the aggrieved party to challenge conclusions of facts and to claim  reappraisal  of evidence.  It  would,  therefore,  be conducive to the ends of justice if the High Courts were  as a  general rule to let this Court have the benefit of  their valuable  opinion  in  cases  which  raise  arguable  points whether  on  facts  or on law so as  to  enable  this  Court satisfactorily  to  exercise its power under  Art.  136  and dispose  of the appeal finally. [in order to  avoid  further delay in the disposal of the present case the Court  decided to  go  into the evidence-a course this  Court  is  normally reluctant  to adopt in appeals under Art.  136-because  this case prima facie raised arguable points]. [531 D-F] (iii)     Although  this Court would not normally  interfere with  the quantum of sentences on appeal under Art. 136,  in the present case as the High Court had erroneously dismissed the appeal summarily without giving the reasons, this was  a fit case where this Court on a consideration of the relevant circumstances could go into the question of sentences itself (the Court field that the sentence of two years imprisonment would meet the ends of justice). [536 E]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 99  of 1968. Appeal by special leave from the order dated March 28,  1968 of the Bombay High Court in Criminal Appeal No. 380 of 1968. V.   M. Tarkunde, N. H. Hingorani and K. Hingorani, for  the appellant. M. C. Bhandare and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by Dua, J. This is an appeal by special leave from the judgment of  the High Court of Judicature at Bombay dated  March  28, 1968 summarily dismissing the appellant’s appeal against his conviction by the Additional Sessions Judge, Greater  Bombay for  offences under ss. 326 and 324, I.P.C. The  High  Court disposed of his appeal with one word "dismissed". At the outset we must point out that on reading the judgment of the learned Additional Sessions Judge and the  memorandum of ,the grounds of appeal in the High Court we  felt  that the summary



5 3 1 dismissal  of  the appeal by the High Court  with  one  word "dismissed"  without  indicating  its views  on  the  points raised  in  the  appeal which clearly appears to  us  to  be arguable  was not right.  This Court has repeatedly  pointed out that when an appeal to the High Court under the Code  of Criminal  Procedure  raises some arguable  points  the  High Court  would be well advised to give some indication of  the reasons for its view while repelling those Points.   Without having  the  benefit of the opinion of the High  Court  this Court  is likely to feel embarrassed in dealing  with  those points  on appeal by special leave’ [see Mushtak Hussain  v. The  State of Bombay() and Challappa Ramaswami v.  State  of Maharashtra(2)].  We would like once again to emphasise that Art.  136  of the Constitution does not confer  a  right  of appeal on a party aggrieved by the, decision of a High Court :  it merely confers on this Court a discretionary power  to interfere in suitable cases.  For judicious exercise of this power this Court expects the High Courts to record  speaking orders,  however  sketchy, even while  summarily  dismissing appeals  which  raise  arguable points.   Section  410,  Cr. P.C.,  it is worth noting, confers a right of appeal to  the High  Court  on  a person convicted on a  trial  held  by  a Sessions Judge or an Additional Sessions Judge.  This  right entitles  the  aggrieved party to challenge  conclusions  of facts  and  to  claim reappraisal of  evidence.   It  would, therefore,  be conducive to the ends of justice if the  High Courts  were  as a general rule to let this Court  have  the benefit  of  their  valuable opinion in  cases  which  raise arguable  points whether on facts or on law so as to  enable this  Court satisfactorily to exercise its power under  Art. 136 and dispose of the appeal finally.  In the absence of  a speaking  order  of the High Court this Court  may  have  to remand  the  cases  to the High Courts  for  re-hearing  and recording  reasons for their conclusions, to  the  avoidable harassment of the accused persons concerned and delay in the final disposal of criminal cases.  In the present appeal  to avoid further delay in the disposal of the case we chose  to go into the evidence ourselves-a course which normally  this Court  is  reluctant  to adopt in appeals  under  Art.  136- because  we  felt  that it did prima  facie  raise  arguable points. The  appellant Rajni alias Bal Ghanshyam Gadkar was  charged with an offence of attempted murder under s. 307, I.P.C. for having stabbed Namdeo Keshav Padte (P.W. 2) with a knife  on June  21, 1966.  In the alternative he was charged under  S. 326,  I.P.C. with the offence of having  voluntarily  caused the  said  Padte  grevious  hurt  with  a  dangerous  weapon (knife).   He was further charged with three offences  under S. 324, I.P.C. for having (1)  [1953] S. C. R. 809 at 820. [1970] 2 S. C. R. 426. 5 32 voluntarily  caused in the same transaction hurts to  Vasant Narayan Shinde, Promod Dattaram Chavan and to Sudam  Mahadeo Khanvilkar.   The trial court convicted the appellant  under S. 326, I.P.C. instead of s. 307, I.P.C. for stabbing  Padte and  sentenced him to rigorous imprisonment for four  years. It also convicted him under S. 324, I.P.C. for causing  hurt to  the other three persons and, sentenced him  to  rigorous imprisonment  for  one and:, a half years for  each  of  the three  offences.   All the sentences were  directed  to  run concurrently. Shri  Tarkunde, learned counsel for the appellant,  took  us through the relevant record for the purpose of showing  that the,  assessment  of  the evidence by the  trial  court  was



erroneous   and,   therefore,   unsustainable.    We    were constrained to permit him to refer to the evidence as we did not  have  the  benefit of knowing  the  reasons  which  had prevailed with the High Court in agreeing with the  ultimate conclusions  of the trial court.  The occurrence took  place at  9  p.m. on June 21, 1966 in the 10th  Lane  of  Kerwadi, Bombay  and  the F.I.R. was lodged ’by Namdeo  Keshav  Padte (P.W. 2 )at 10-30 p.m. the same night at the police station, Lamington  Road.   According to this report  Padte’s  cousin Dattatraya  Gajanan More (P.W. 8) who wanted to  purchase  a scooter had for that purpose approached one Vinod  Nimbelkar (P.W.  3)  known  to Padte.  More had told  Padte  that  the former had paid a sum of Rs. 5 or 6 thousand to the  accused Rajni  through  Nimbelkar.   The accused  neither  gave  the scooter nor returned the money.  On being approached by More for  the  return  of the money he was  put  off  on  various pretexts.  More had about two days earlier instructed  Padte to  go  to Rajnikant with Nimbelkar to get back  the  money. Accordingly  on  June  20, in the  evening  Padte  contacted Rajinikant  at his residence but he was told that  Rajnikant had  returned the money to Nimbelkar at about 3 p.m. On  the date  of the occurrence Padte returned home at about 6  p.m. He  went to Nimbalkar and after taking him along, they  both went  to  the accused.  The accused was not present  at  his residence  but  they learnt from his mother  that  he  would return at about 9 p.m. Padte and Nimbalkar then went back to the  latter’s residence in Sikka Nagar.  At about 8-45  p.m. when  they  again went to the house of the  accused  Chavan (P.W.  5) another resident of Sikka Nagar, also  accompanied them.  Shinde (P.W. 4) who was known to Chavan also  jointed them  on  the way.  They all went to the  residence  of  the accused  at about 9 p.m. but again did not find  him  there. While coming down from the first floor of the building  they found the accused with three or four boys.  Nimbalkar  asked him  as  to  when he would return the  money.   The  accused replied that he did not recognise Nimbalkar but would settle the  matter with More.  On Padte’s intervention the  accused told him also that he did not 5 3 3 recognise  him.   When  Padte  insisted  that  he  had  been introduced  to him by More the accused whipped out  a  knife from the pocket of his pants and stabbed him causing  injury on  the  left  side ’of his stomach and on  his  left  hand. Thereafter  the  accused stabbed Shinde and then  ran  away. This  report  was actually recorded in the  J.  J.  Hospital where R. M. Naik, S. 1. Lamington Road Police Station  (P.W. 10)  and  B. N. Patil, G.S.I. attached to  the  same  police station  (P.W. 12) had gone, on learning on telephone  about an  assault case in the 10th Lane, Kerwadi and admission  of two persons in that hospital.  This information was conveyed on telephone from V. P. Road Police Station where Padte  and Shinde  had been taken by their friends and from  where  the injured  persons were taken to the J. J. Hospital in a  jeep by  constable  Babu Parab (P.W. 9).  After  registering  the crime at the police station both P.W. 10 and P.W. 12 went to the appellant’s residence but found him absent.  A watch was kept at his house.  The appellant was, however, arrested  at Goregaon  on the following day (June 22, 1966) and  was  not medically examined.  He had some injuries on his person. An  abnormal  feature  in  this, case  is  that  three  eye- witnesses  Shinde (P.W. 4), Chavan (P.W. 5)  and  Khanvilkar (P.W.   6)  who  supported  the  prosecution  case  in   the committing  court changed their statements at the  trial  in the  court  of  the Additional Sessions  Judge.   They  were declared  hostile and cross-examined by the  prosecutor  and



confronted with their earlier statements from which they had resiled.   Nimbalkar (P.W. 3) who had not been  examined  in the   committing   court  also  declined  to   Support   the prosecution story when produced as a witness at the trial in the  court  of the Additional Sessions  Judge.   The  ground stated  by him was that apprehending use of violence and  of assaults lie had left the place of occurrence as soon as the quarrel  started.   He too was declared hostile  and  cross- examined.   The  evidence  of  Padte  (P.W.  2)   completely supported  the prosecution case and remained unshaken.   The statements of P.Ws. 4, 5 and 6 made in the committing  court were  duly  brought on the record under s. 288,  Cr.   P.C., When  confronted with the portions of their statements  made in the committing court, the truth of which they had  denied at  the trial, they merely said that they did not  know  how those  portions came to be recorded.  The trial court  after going  through  the  material  on the  record  came  to  the conclusion  that  the version given by Padte  regarding  the actual occurrence was fully established.  The  discrepancies on minor points were held not to affect the  trustworthiness of  the  witness on the salient features of  the  occurrence which  fully  brought home to the appellant his  guilt.   On appraisal  of  the entire evidence the appellant  was  found guilty  of  offences under S. 326 and s. 324,  I.P.C.  Under 626, I.P.C. he was sentenced to four years rigorous 36Sup C.I./71 5 3 4 imprisonment  for injuries caused to each one of  the  three P.Ws. Shinde, Chavan and Khanvilkar.  All the four sentences of imprisonment were to run concurrently In this Court on behalf of the appellant his learned counsel Shri Tarkunde very strongly argued that the evidence on  the record  and  the probabilities of the case show  that  Padte (P.W.  2)  and his companions were the. aggressors  and  the appellant  was  merely  trying to  defend  himself  when  he attempted  to catch hold of the knife with which  Padte  had threatened   to  attack  him.   Padte,  according   to   the submission, got wounded as a result of the push given to him by  the  appellant who, during this  struggle,  Successfully snatched his knife.  Emphasis was in this connection laid on the  fact that Padte and his companions were admittedly  six in number and the appellant who was single-banded could  not have dared to run the risk of a clash with them by  starting the  assault.   In  the alternative it  was  suggested  that assuming the appellant had in his possession a knife of  his own, as a matter of fact he was first hit by Padte (P.W.  2) with his umbrella and it was thereafter that the  appellant, in  order to defend himself gave the knife blow.   Now  this was  not  the plea taken by the appellant in  his  statement under  s. 342, Cr.  P.C., but his counsel contended that  it was  open to him to rely on the prosecution evidence  itself for  substantiating  this  defence.  For  this  purpose  lie relied  on the evidence of Padte where he admitted  that  he had tried to push back the appellant with his umbrella after receiving  from him the stab wound.  Padte, it  was  argued, had  rightly  admitted  use  of umbrella  by  him,  but  bad suppressed  the  truth.  Instead of  admitting  the  initial assault by him he had shifted the use of umbrella to a  time after  the receipt of injury by him suggesting thereby  that it  was used in self-defence Stress was in  this  connection laid  on  the fact that a broken umbrella was found  by  the investigating  officers  at the place of  occurrence.   From this circumstance support was sought for the suggestion that Padte  must  have hit the appellant with the  umbrella  with considerable force and that could only be done before he was



injured.   Faced with six hostile men, use of knife  by  the appellant  after having been severely hit was, according  to the  counsel, a lawful and legitimate exercise of his  right of self-defence. It  is  true  that an accused person  can,  without  calling defence  evidence  in support of the plea  of  self-defence, rely on the evidence led by the prosecution and the material on the record for showing that he had acted in self-defence. In  such cases the real question which the court  is  called upon  to  decide  is  whether on  proper  appraisal  of  the evidence  and the relevant material on the record it can  be said  that the accused has been proved to be  guilty  beyond reasonable  doubt.  For the court cannot justifiably  ignore the 535 material which establishes the right of self-defence  merely because the accused has for some reason or the other omitted to  take such plea.  On going through the evidence  and  the material on the record we are, however, unable to hold  that the   injuries  in  question  had  been  inflicted  on   the prosecution witnesses by the appellant while acting in self- defence.   The,  injuries  on the  appellant’s  person  were found,  on examination by Dr. V. B. Nair,  Casualty  Medical Officer  in  Charitable Nair Hospital on June  22,  1966  at about  5  p.in. to be a contused lacerated  wound  over  the right  scapular  region  1/2"  x  1/4"  skin  deep  and  two abrasions,  (a skin abrasion on the right ring finger and  a linear  abrasion over the left elbow).  The injury over  the right  scapular region indicates that it was, caused to  the appellant by someone hitting him from behind and if that  be so,  then  as  suggested by the trial court  it  seems  more probable  that in the melee following the free use of  knife by the appellant, someone bit him with the umbrella when  he was trying to escape after giving the knife injuries to  the P.Ws.  It  could not be the result of a push  as  stated  by Padte.  There being no clear evidence on the point the Court has  to go by probabilities.  On this view we are unable  to sustain  the  appellant’s  suggestion  that  he  was   first assaulted  with  umbrella.  The other  submission  that  the appellant,  when  threatened by Padte with knife,  tried  to snatch  it and during the course of this struggle Padte  may have accidentally been wounded in his abdomen when pushed by the appellant, has merely to be stated to be rejected.  ’The story not only sounds unrealistic but we are also unable  to find  on the record any rational basis for  its  acceptance. The nature of the stab wound in the abdomen as described  by Dr.  Virendra  J. Shankar (P.W. 11) also seems  to  negative this   suggestion.   The  wound  has  penetrated  into   the abdominal cavity and intestinal loops were visible and  were coming  out.  Keeping in view the nature of the  scuffle  it could  not be accidental.  The abrasions on the  appellant’s finger relied upon by the appellant’s counsel in support  of this  theory  is  equally  unhelpful.   In  a  struggle  for snatching an open knife from another person’s hostile  hands one would expect more serious injuries than mere  abrasions. The plea on the right of private defence must, therefore, be repelled. It  was  then  contended that the statements  of  the  three witnesses  (P.Ws. 4, 5 and 6) made in the, committing  court from  which they had resiled at the trial, should  not  have been  acted  upon  by  the trial court  in  support  of  the prosecution version and P.W. 8 the only witness who did  not resile  from  the  statement in the committing  court  is  a highly  interested  witness  and,  therefore,  his  evidence should  not  be  implicitly  accepted,  said  the   counsel.



Nimbalkar  (P.W.  3) who was produced at the  trial  without having  been  examined  in the  committing  court  was  also declared hostile 536 and  was permitted to be, cross-examined by the  prosecutor. His  evidence,  according to the appellants counsel,  is  no better  and,  therefore,  does  not  add  strength  to   the prosecution case.  This Court must, therefore, hold that the evidence  on the record is not trustworthy and it  does  not establish the appellant’s guilt beyond reasonable doubt.  We are not impressed by this submission.  The statements of the three  witnesses  in the committing court  from  which  they resiled  at  the trial and which were duly  brought  on  the record of the trial court under S. 288, Cr.  P.C. constitute substantive  evidence  and if the court  is  satisfied  that those  statements were true whereas those made in the  trial court were untrue then the earlier statements can safely  be relied upon to sustain the conviction.  In this case a  mere reading  of the statements at the trial  demonstrates  their unconvincing  nature and it seems clear that there was  some ulterior motive for the witnesses to resile from the earlier statements which appear to have a ring of truth about  them. We are, therefore, satisfied that the trial court was  right in  convicting the appellant for offences under ss. 326  and 324, I.P.C. On  the question of sentence, however, we feel that in  view of the somewhat dubious nature of the transaction which  led to the occurrence and the fact that the, appellant had  felt somewhat  annoyed  at the repeated visits of  P.Ws.  to  his house  where unpleasant scenes were created in the  presence of  his mother the sentence imposed is somewhat severe.   In our  opinion a sentence of two years’ rigorous  imprisonment would  meet the ends of justice.  This Court  normally  does not  interfere with the quantum of sentence on appeal  under Article  136,  but in the present case, :as the  High  Court bad,  in  our  opinion, erroneously  dismissed  the  :appeal summarily  without  giving  reasons, we  have  chosen  on  a consideration  of all the relevant circumstances to go  into the question ourselves. The  appellant will surrender to his bail bond to serve  out the remaining sentence. R.K.P.S.                                              Appeal dismissed. 5 3 7