Cri. Rev. Appln. No. 18 of 1998

5th August, 1999

Petitioner Counsel: Mr. M. V. MEHRE
Respondent Counsel: Mr. V. Z. KANKARIA, Mr. I. S. THAKUR, APP

Cases Cited:
Logendranath Jha Vs. Shri Polai Lal Biswas, AIR (38) 1951 SC 316 [Para 3]
D. Stephens Vs. Nosibolla, AIR (38) 1951 SC 196 [Para 3]
K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 [Para 3]

JUDGMENT

JUDGMENT :- Heard Advocates for the petitioners, respondent No. 1 and the learned APP for the State.

2. This Revision is filed by the petitioners against the order of the acquittal of the respondents. The learned APP supported the petitioner, even though no appeal against acquittal was filed by the State.

3. Mr. Kankaria appearing for the respondents - accused relying upon three judgments of the Supreme Court reported in AIR (38) 1951 S.C. 316 Logendranath Jha and Others Vs. Shri. Polai Lal Biswas, AIR (38) 1951 S.C. 196 D, Stephens Vs. Nosibolla, AIR 1962 S.C. 1788 K. Channaswamy Reddy Vs. State of Andhra Pradesh and another, contended that in exercise of the revision jurisdiction this court has no power to convert the acquittal into conviction or to order retrial even if the judgment of the trial Court was found to be perverse. This was the alternative submissions made by Mr. Kankaria because firstly according to him there is no perversity in the impugned judgment. However, since this objection goes to the root of the matter, it is necessary to take into consideration the ratio laid down by the Supreme Court by the three judgments, referred to above.

4. In Logendranath Jha's case an order of acquittal of the accused and their retrial was challenged before the Supreme Court. The High court had ordered retrial after coming to the conclusion that the judgment of acquittal was perverse and the opinion of the Ses. J of the High Court, as " The entire judgment displays a lack of true perspective in a case of this kind. The Sessions J. had completely misdirected himself in looking to the minor discrepancies in the case and ignoring the essential matters so far as the case is concerned" and there was no justifiable ground for rejecting the prosecution evidence ...... While dealing with this judgment Supreme Court observed that "The learned Judge in the High Court did not properly appreciate the scope of inquiry in revision against an order of acquittal. Though sub-s. (1) of S. 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a Court of appeal by S. 423, Sub-s. (4) specifically excludes the power to "convert a finding of acquittal into one of conviction." 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, reappraise 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." However, the Supreme Court appears to have set aside the judgment of the High Court because the Supreme Court found and observed "But there can be little doubt that he loaded the dice against the appellants, & it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general.

5. In the second judgment of the Supreme Court in D. Stephens' case, referred to above, the Supreme Court was dealing with an appeal on special leave against the order of High Court of Calcutta directing retrial of the appellant who was acquitted by the Chief Presidency Magistrate of contravening the provisions of section 26 of the Merchant Shipping Act. In the Revision which was entertained by the Calcutta High Court, the learned Judge of the High Court differed from the Chief Presidency Magistrate on all the material points and sent the case back again for a fresh trial. That judgment contained findings almost amounting to a direction to the Chief Presidency Magistrate to convict the accused, it is in this background the Supreme Court considered the relevant provisions of the Merchants Shipping Act and cames to the conclusion that the prosecution had failed to establish the case. So far as the revisional Jurisdiction of the High Court under section 439 is concerned, the Supreme Court observed that the same should not be lightly exercised, when it is invoked by a private complainant against an order of acquittal. The same could be exercised only in exceptional cases where the interest of public Justice requires 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 wrong view of the law or misappreciated the evidence on record.

6. In the third Judgment in K. Chinnaswamy Reddy's case, as referred to above, the accused were prosecuted for offence under section 457 and 380 of the I.P.C. However, the accused was acquitted. Ramayya the complainant - the first informant filed revision before the High Court and the same was allowed by the High Court. It is in this background that the Supreme Court after referring to the above two cases of Logendranath Jha and D. Stephens case observed and held as under :

"(7) 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 finding of acquittal into 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 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 to 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 Curt was doing indirectly what it could not go directly in view of the provisions of S.439 (4). We have therefore to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles."

7. From the aforesaid three judgments of the Supreme Court and after reading section 401 of the Cr.P.C. it is clear that, the powers of revision conferred upon the High Court do not empower the High Court to convert the finding of acquittal into one of conviction. However, retrial can be ordered. But while doing that, the High Court should try to find out whether the case is exceptional case where the power of retrial should be exercised, what are those exceptional cases and what are exceptional circumstances brought on record in that regard for ordering retrial. It is also clear from the aforesaid three judgments of the apex court that findings of the High Court on the judgment of the trial court should not be such as to influence the mind of the Judge conducting retrial. Precaution should be taken that judicial powers of appreciation of evidence and discretion granted in that regard should not be influenced by the observations made by the High Court. It is necessary to mention here that even in K. Chinnaswamy Reddy's case the Supreme Court observed "It is not possible to lay down the criteria for determining such exceptional case which would cover all the contingencies. However, one of the contingency is that where material has been owned either by the trial Court or by the appellate Court." It has further observed that these cases and other cases of similar nature can properly be held to be as case of exceptional nature where the High Court can justifiably interfere with an order of acquittal.

8. Keeping in mind the aforesaid directions of the apex court and the limitation placed on carving out an exceptional case for ordering retrial, impugned judgment of the Additional Sessions Judge, Nasik, is required to be considered at this juncture. The prosecution case in brief is as under and those facts are reproduced from the judgment of the trial Court :

"2. In short, the prosecution case is that:

The accused Nos. 1 to 4 are serving in Rotomatic Containers Pvt. Ltd. Co. Ambad are the permanent employees. Complainant Gorakh and witness Balu are also serving in the same company as temporary employees. There are in all 17 workers in the company. Accused No. 2 Suresh Kakde is the leader of the union of the employees of the same factory. This union belonged to CITU, Dr. L. D. Karhad is the leader of CITU. Lokesh Shevde P.W. 23 is director of Rotomatic Containers Pvt. Ltd. Co. Nashik. He is also the secretary of small scale industries union. In the year 1995 there was lock out in the same Rotomatic Company for the demands of the employees. On 15.9.1995 at about 8 or 8.30 p.m. complainant Gorakh and witness Balu ware returning to their house by the road passing near ABB Co. MIDC Satpur. When they reached near ABB Co., the accused Nos. 1 to 4 restrained them and asked them as to why they are working in the company when there is lock out. They both told the accused that they were not going to the company for their job during lock out period. They had gone to Ganjalwadi to attend the tenth day death ceremony of the son-in-law of complainant Gorakh, but accused did not listen them and started assaulting them with iron bars and sticks causing bleeding injuries on their head. Due to injuries witness Balu P.W. 2 became unconscious and collapsed there. After the assault all the accused ran away. On hearing the shouts of complainant Gorakh a person from the vicinity arrived there. Complainant Gorakh asked that person to inform the incident to his factory owner Lokesh Shevade. In the meanwhile on receiving information police reached to the scene of offence with a police van. Immediately thereafter Lokesh Shevade P.W. 3 and his friend Vikas Bagul went there. They carried both the injured to Civil Hospital Nashik in the Police van. While going to the Civil Hospital complainant Gorakh disclosed the names of accused Nos. 1 to 4 to Lokesh Shevade. Dr. Shah P.W. 8 got admitted both the injured and gave them treatment. He also referred them for X-ray. As both the injured were serious, they were shifted to Life Line Hospital, Nashik, where they were admitted. Before shifting them to Life Line Hospital, PHC Rajguru PW 6 visited Civil Hospital, Nashik and got reduced complaint Exh. 25 of Complainant Gorakh. On its basis she registered crime as Crime No. 86/1995 u.s. 307 and 504 r.w. sec. 34 of I.P.C. and u.s. 37(1)/135 BP Act and handed over the case papers to PSI Suryawanshi for investigation. On 16-9-1995 API Lahare P.W. 10 received case papers from PSI Suryawanshi and on completion of investigation submitted chargesheet.

3. Charge Exh. 9 is framed and explained to the accused Nos. 1 to 4 by my ld. predecessor Shri S. S. Deshmukh. All the accused pleaded not guilty and claimed to be tried. Their defence is of total denial. They have stated in their statement u.s. 313 Cr.P.C. that the factory owner Shri Lokesh Shevade P.W. 3 was demanding their resignation. As they refused to act as per his say, he managed to lodge false complaint against them in collusion with temporary employees, Complainant Gorakh and witness Balu P.W. 2."

9. During the course of arguments, both the advocates took me through the evidence recorded by the trial court and the statement of the accused under section 313 of the Cr.P.C. in addition, the judgment of the trial court was also read and relied upon by the counsel for the petitioner and the respondent.

10. The accused were charged for offences under section 307 of the I.P.C. There was direct medical evidence on record in the form of testimony of doctor who examined the victim and also in the form of medical case papers. However, this entire medical evidence was rejected by the trial court only on one minor and insignificant ground i.e. "that witness Dr. Shah did not agree with the proposition of Shri Ghumare Adv. that abrassions cannot be seen if there is laceration over it, even contused laceration over the abrassions. But Dr. Shah could not support this fact by any authority." This is no reason at all to reject the testimony of doctor regarding the injuries caused, the number of injuries, the extent and gravity of injuries, their duration and their probable cause. An important piece of evidence like the medical evidence cannot be rejected on such surmises and conjectures and flimsy grounds.

11. The trial court found that P.W.1 and 2 had sustained several injuries on their head as well as other parts of the body but while considering whether section 307 of the I.P.C. was attracted or not, the trial court adopted an improper approach and course and observed not only once but twice in the present case "if the Appellants would have assaulted Gorakh P. W. 1 and Balu P.W. 2 with an intention to commit their Murder," they would have committed the murder as there was nobody to prevent them from committing murder. They would, not have left both the injured alive." Consequently it is observed that moreover when admittedly both the injured and the accused were all serving in the same factory there could not be any reasons for accused to commit murder of complainant Gorakh and witness Balu.

12. The entire evidence of the prosecution regarding 307 is discussed by the trial court in para 10 and rejected only on this possibility or probability by observing : "If really they (P.M.1 Gorakh and P.M. 2 Balu) were accompany the accused there could be no reason for the accused to assault them that too with an intention to commit their murder. Thus, on any count charge under section 307 of I.P.C. is not sustainable."

13. So far as medical evidence is concerned, it is clear from the record that prosecution has proved that there were injuries on the head of Balu and he became unconscious on the spot because of the injuries. However, the entire medical evidence is brushed aside by the trial court on account of the so-called inability of Dr. Shah to show any authority as to whether abrassions could be seen over the laceration. There is therefore no appreciation of most important, vital and important evidence at all by the trial court.

14. Second grave error committed by the trial court is rejecting the prosecution case on the ground that there was delay in lodging the report. The incident admittedly took place at 8.50 p.m. on 13.9.1995 and F.I.R. is lodged at about 5 p.m. on 14.9.1995. Sufficient explanation for delay was given by the prosecution witnesses including the doctor and the medical evidence produced by doctors about the physical condition of Balu and Gorakh and the fact of Balu getting unconscious, on account of severe head injury. Therefore, it is clear that undue stress has been led by the trial court on the point of delay wherein the circumstances brought on record were otherwise.

15. Third reason rejecting the evidence of P.W. 3 Lokesh Shevade who was the Manager of the factory is that he was an interested witness because he had provided medical help to the victims and had helped them in removing to the hospital. This conclusion is also wrong because it was a humanitarian gesture on the part of P.W. 3 Shevade in making medical help to the victims since he came to know about assault of P.W. 1 Gorakh and P.W. 2 Balu. That itself should not have been considered a circumstance for rejecting the evidence of Shevade. Further even after observing that complainant P.W. 1 Gorakh had sustained as many as 8 injuries i.e. C.LW, and contusions on his parietal region and arms and P.W. 2 Balu had also sustained several injuries and he was unconscious as shown in exhibit 17, and that they were seriously injured. The trial court rejected the case of the prosecution under section 307 for the aforesaid illogical hypothetical question as to i.e. how the assailants would have left the victims alive.

16. So far as the important evidence of P.W. 1 and 2 is concerned, the same is rejected by the trial court on account of some minor discrepancies, omissions and contradictions.

17. These are the only reasons given by the trial court in rejecting the entire prosecution case and acquitting the accused. A thorough scrutiny of the evidence of the prosecution and the conclusions arrived at by the trial court reveal total non application of mind by the trial court and rejection of the evidence on totally unsustainable grounds. However, in view of the three judgments of the Supreme Court, this court has not to reverse the judgment of the acquittal into conviction, but for the purpose of retrial in such a manner so as to deprive the trial court holding retrial to consider the evidence afresh and this exercise has to be avoided so that the trial court is not influenced by the observations made by this court. For all these reasons the judgment of acquittal is required to be set aside. Since the matter is required to be sent back to the trial court for retrial, certain direction regarding the stage from which the retrial should be started is required to be fixed. Admittedly, the evidence of the prosecution is over, so also the statement of the accused under section 313 of the Cr.P.C. Therefore, only thing that remains is to rehear the prosecution and the accused about the evidence of the prosecution and the defence of the accused at length by giving full opportunity in that regard, and after hearing both the sides, the case of the prosecution has to be reconsidered by the trial court and then decided and whatever be the result thereof. In view of this, I pass the following order :

ORDER

Revision Application allowed. Rule made absolute.

Judgment of acquittal of IIIrd Additional Sessions Judge, Nasik (S.M. Shembole) dated 7-11-1997 is set aside. Case is remanded back to the Sessions Judge, Nasik, who will assign the same to some other Additional Sessions Judge, (and not to S.M. Shembole who has decided the same, earlier) or may decide it himself. The same is to be decided from the stage of arguments. Needless to say that there will be reappreciation of facts and circumstances on the basis of the submissions made and arguments advanced by both the sides, and the court deciding the same will not be influenced by the earlier judgment of acquittal or the observations made by this Court.

Accused - respondent Nos. 1 to 4 to appear before the Sessions Judge, Nasik on 1-9-1999.

Writ in this regard be sent to the Sessions Judge, Nasik, immediately along with the record and proceedings if any.

Revision Application disposed of accordingly.

Certified copy expedited.

23rd August, 1999

Mr. Mehere for the petitioner informed that writ and record and proceedings in this matter are not yet sent to the trial court. The accused respondent Nos. 1 to 4 are therefore directed to appear before the trial court on 19-5-1999.

Petition allowed