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CASE NO.: Appeal (crl.)  523 of 1997

PETITIONER: Ram Briksh Singh & Ors.                                  

RESPONDENT: Ambika Yadav & Anr.                                              

DATE OF JUDGMENT: 09/03/2004

BENCH: Y.K. Sabharwal & Arijit Pasayat  

JUDGMENT: J U D G M E N T

Y.K. Sabharwal, J.

       The appellants were tried for an offence under Section 302/34 of Indian  Penal Code for commission of murder of one Rameshwar Yadav.  The court of  sessions held that the prosecution has failed to prove charge levelled against them  beyond reasonable doubt and thus acquitted all of them.  The judgment and order  of acquittal was challenged by the informant in a revision petition.  The High  Court by the impugned judgment, setting aside the judgment and order of acquittal  in favour of the appellants, has remitted the case for its retrial by court of sessions  in accordance with law directing the court to decide the matter on the basis of  evidence and material already on record and not allow parties to adduce further  evidence.         Mr. P.S.Mishra, learned counsel for the appellants submits that the trial  court had given cogent reasons and on due appreciation of evidence directed the  acquittal of the accused and the impugned judgment of the High Court clearly  amounts to reappreciation of evidence which is not permissible in the exercise of  revisional jurisdiction.  Learned counsel has taken us through the judgment and  order of the trial court to buttress his submission that the evidence and material on  record was duly considered by the court of sessions as a result whereof the  conclusion was reached that prosecution has failed to establish its case beyond  reasonable doubt.  On the other hand Mr.B.B. Singh and Mr.A.P. Sahay, learned  counsel appearing  for the State and the informant have taken us also through the  depositions of some of the witnesses to buttress their submission that the court of  sessions has overlooked material evidence which has resulted in manifest illegality  and gross miscarriage of justice.         The principles on which revisional court can set aside a judgment and order  of acquittal passed in favour of the accused are well settled by catena of  judgments.  The difficulty, however, arises at times about the application of the  said principles.  It is true that there is a statutory prohibition contained in sub- section (3) of Section 401 of Criminal Procedure Code from converting a finding  of acquittal into one of conviction and what is prohibited cannot be done indirectly  as well.  The question, however, is has High Court indirectly done what is  prohibited.         Sections 397 to 401 of the Code are group of sections conferring higher and  superior courts a sort of supervisory jurisdiction.  These powers are required to be  exercised sparingly.  Though the jurisdiction under Section 401 cannot be invoked  to only correct wrong appreciation of evidence  and the High Court is not required  to act as a court of appeal but at the same time, it is the duty of the court to correct  manifest illegality resulting in gross miscarriage of justice.         More than half a century ago, in D.Stephens v. Nosibolla (1951 SCR 284 =  AIR 1951 SC 196), this Court held that revisional jurisdiction when it is invoked  against an order of acquittal by a private complainant is not to be lightly exercised,  it could be exercised only in exceptional cases to correct a manifest illegality or to  prevent a gross miscarriage of justice and not to be ordinarily used merely for the  reason that the trial court has misappreciated the evidence on record.   

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In K.Chinnaswamy Reddy v. State of Andhra Pradesh & Anr. (1963 (3)  SCR 412 = AIR 1962 SC 1788) a note of caution was appended so that the High  Court does not convert a finding of acquittal into one of conviction by the indirect  method of ordering retrial when it cannot directly convert a finding of acquittal  into a finding of conviction in view of specific statutory prohibition.  While  noticing that it is not possible to lay down the criteria for determining exceptional  cases which would cover all contingencies for exercise of revisional power, some  cases by way illustration were mentioned wherein the High Court would be  justified in interfering with the finding of acquittal in revision.  The High Court  would be justified to interfere where material evidence is overlooked by the trial  court.           In a recent decision in Bindeshwari Prasad Singh alias B.P. Singh & Ors.  v. State of Bihar [now Jharkhand] & Anr. ([2002] 6 SCC 650) noticing  principles laid in Stephen’s and Chinnaswamy Reddy it was held that the High  Court was not justified in reappreciating the evidence on record and coming to a  different conclusion in a revision preferred by the informant under Section 401 of  the Code since it was well settled that the order of acquittal cannot be interfered  with in revision merely on the ground of errors in appreciation of evidence.   Relying upon these decisions, Mr. Misra contends that the High Court while  interfering with the judgment and order of the Court of Sessions has not kept in  view the parameters of exercise of revisional jurisdiction.           Reverting to the facts of the case in hand, the prosecution case in nutshell is  that while the informant Ambika Yadav, PW6 along with his uncle Rameshwar  Yadav (deceased) was going in search of some labourers and no sooner they  reached near a well situated in front of the house of accused Rambriksh Singh, the  accused started uttering abuses, caught hold of Rameshwer Yadav and forcibly  took him into their house.  On protest, the informant was threatened and abused.   The dragging of Rameshwer Yadav by the appellants into their house was  witnessed by others but they were also abused and chased.  While dragging the  deceased, the accused were uttering that he  should be taken inside the house and  cut into pieces.  The informant went to police station to inform the police.  The  police party came and after breaking open the door of the house, the police entered  into the courtyard and found the mutilated dead body of Rameshwar Yadav.  The  statement of the informant was recorded by the police officer, formal FIR  registered, investigation conducted whereafter the police submitted charge sheet  against the accused who were put on trial for the offence earlier noticed.         The High Court has observed that the evidence of PWs 1, 2, 5, 6, 7 and 8  appears to be relevant.  PW8 is the Doctor who held autopsy over the dead body  and also proved the post mortem report.  The injuries on the deceased show the  brutal manner in which he was done away with.         There is no eye witness.  The prosecution case depends upon circumstantial  evidence.  The High Court with reference to evidence of PWs 2, 5 and 6 has  noticed that they had witnessed the dragging of deceased to the house.  PW7, the  investigating officer has, inter alia, deposed about the house of the accused having  found locked on his visit, breaking opening of the door and on entry having found  the body of the deceased lying in the courtyard in a mutilated condition and the  conduct of the investigation.  The High Court has observed that the evidence on  the point of dragging of the deceased and the recovery of his dead body from the  courtyard of the house of accused, Rambriksh Singh, remained unshaken and has  been duly corroborated by the evidence of Doctor PW8.  In this view, the High  Court held that the evidence could not have been dealt with in such a manner as  has been dealt with by the trial court.  Fully alive to the limit of its jurisdiction  under Section 401 of the Code but having regard to the facts and circumstances of  the case, the High Court came to the conclusion that the case appears to be  exceptional warranting interference.  The revisional court can set aside an order of  acquittal and remit the case for retrial where the trial court overlooking material  evidence has passed the order.  In the present case, the material evidence seems to  have been overlooked by the trial court in relation to four circumstances, namely  (1) the dragging of the deceased to the house of accused Rambriksh Singh which  was joint house of the deceased; (2) the house having been found locked by the  police on visit; (3) the breaking open of the door of the house and (4) the recovery  of the dead body in a mutilated condition in the courtyard of the house.  The  overlooking of evidence in relation to these circumstances warrants the remand of  the case to trial court for retrial which has been directed in terms of the impugned  judgment.  

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Mr.B.B. Singh relying upon the case of Ram Gulam Chaudhary & Ors. v.  State of Bihar ([2001] 8 SCC 311), submits that in the present case the accused  have failed to offer any explanation in respect of aspects exclusively within their  knowledge and, therefore, it is an additional link which completes the chain of  circumstances.  It is not necessary for us to examine this aspect.  It is not relevant  for the present purposes and may be addressed before the court of sessions at an  appropriate stage.   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.  The impugned  judgment of the High Court does not call for any interference.  Resultantly, the  appeal is dismissed.