JUDGMENT This criminal revision is at the instance of the person referred to by the Courts below as ‘the de facto complainant’. M. Krishnan, examined in the case as P.W. 1. Sessions Case No.58 of 1978, registered against seven accused on the basis of the complaint of P.W.I and for offences punishable under Ss. 143, 147, 148, 326, 324, 427 and 307 read with 149 of the Indian Penal Code, ended in a conviction as against four of them, accused 1, 2, 4 and 5. 2. The prosecution case was nearly analysed and considered in a commendably lucid judgment of the Assistant Sessions Judge. 3. Those who were so convicted and sentenced, took up the matter in appeal. The Sessions Judge allowed the appeal on the ground of defect in the charges framed. What is more, he even foreclosed a retrial. 4. The agencies of the State were perfectly satisfied to leave the matter there. P.W.1, understandably enough, took up the matter in revision before this Court. The facts may now be briefly referred to. 5. Krishnan, P.W. 1 is a process server in the Court. He belongs to what is considered as an ‘inferior caste’, the caste of washerman. He lives in a humble hut. The side covering made of coconut leaves or cadjans, offer no resistance to an offending hand. It is easily removable or even destroyable. Krishnan's family consisted of his wife P.W.7, his son P.W.2 and his daughter P.W.3. He had another daughter too, P.W.8. She was a maid-servant in the house of the 1st accused, who going by the evidence in the case, is placed highly socially and financially. A love and intimacy developed between P.W.8 and the son of the 1st accused, apparently did not take note of this oppressive difference; not did it reckon the repressive frame of mind of the 1st accused and those near to him. P.W.8 and the son of the 1st accused got married on 10-10-1977. That evidenced by Ex.P-7 certificate. P.W.I is a witness therein. The marriage stirred the feelings of the 1st accused. He and others accordingly conspired to teach P.W.1 and other a ‘lesson’ for ‘aiding and abetting’ a matrimonial connection between a man and a woman separated by a wide gulf, socially and economically. That evidenced by Ex.P-7 certificate. P.W.I is a witness therein. The marriage stirred the feelings of the 1st accused. He and others accordingly conspired to teach P.W.1 and other a ‘lesson’ for ‘aiding and abetting’ a matrimonial connection between a man and a woman separated by a wide gulf, socially and economically. And they selected a fairly moonlit night for carrying that mission, the 25th October, 1977, a day (or night) just previous to the full moon day. At about 1-30, according to the prosecution, all the accused went to the house of P.W.1. P.W.1 was sleeping in the verandah of the house. The dog barked. P.W.1 got up and then he found the accused in the courtyard. They entered the house. The first to be beat was P.W.1; and he was beat blue and black with areca splinters all over the body, on head, hands, chest and legs. He made an entreaty to the 1st accused, calling, by his name ‘Kunhambu Nair’ not to kill him; he explained that he was innocent in the matrimonial affair between the son of the 1st accused and his own daughter. That was of no avail. Other act used joined in beating him. They beat P.W.1's wife and son, P.Ws.7 and 2. Destruction of household articles was also resorted to. 6. P.Ws. 1, 2 and 7 were examined by a Civil Surgeon P.W.5, in the morning of 26-10-1977, within about eight ‘lours of occurrence. Twenty injuries were noticed on the person of P.W.I of which three were grievous. They included: “Fracture of both bones of forearm at- lower end with contusion extending all over the postero lateral aspect of right forearm and brake of hand with multiple abrasions 2 cm. x 1 cm. over it”. Ext. P3 is the medical certificate. P.W.2 had 8 injuries of which two were grievous. Ext.P.4 is the medical certificate. P.W.7 had two injuries simple in nature, as disclosed by Ext. P.5 medical certificate. 7. The first information statement was given under Ext.P-1. The enmity arising out of the marriage between the 1st accused's son and P.W.1's daughter had been referred to in Ext.P.1 itself. 8. The Assistant Sessions Judge found that the evidence of P.Ws. 1 to 4 and 7 was not liable to be discarded for the mere reason that they were partisan witnesses. The enmity arising out of the marriage between the 1st accused's son and P.W.1's daughter had been referred to in Ext.P.1 itself. 8. The Assistant Sessions Judge found that the evidence of P.Ws. 1 to 4 and 7 was not liable to be discarded for the mere reason that they were partisan witnesses. He correctly took into consideration the necessity to examine “with care and caution”. The evidence rendered by P.Ws. 1, 2, 4 and 7; and ultimately, on a consideration of all material aspects, came to the conclusion that their evidence could be accepted and acted upon. That P.Ws. 1, 2 and 7 had sustained injuries could not be disputed in the light of the evidence of P.W.5, and the certificates Exts.P.3 to P.5. The possibility of identifying the assailants having regard to the time and place of occurrence was also carefully considered by that Court. Regard being had to the fact that the night was a moonlit one, and that P.W.I was having a torch in hand, the court held that “it would not have been difficult for him to identify the 1st accused”. The fact that he had called the 1st accused by his name ‘Kunhambu Nair’ and pleaded with him for sparing his life, maintaining his innocence in the matrimonial affair, lent assurance to that Court for believing his testimony. That evidence had been corroborated by the evidence of P.Ws.2, 3 and 7. The Court observed : “The testimony of P.Ws.2, 3 and 7 can be believed regarding the hearing of the words spoken to by P.W.1, calling the name of Kunhambu Nair and requesting him not to kill him and also mentioning that he was innocent”. 9. The further question whether accused Nos. 2 to 7 had entered the house during the night was thereafter considered. It is not necessary to deal at length with the detailed analysis of their evidence undertaken by the trial Court. It is sufficient now to note that, according to that Court, there was “satisfactory evidence to show that accused Nos.2 and 4 had beat P.W.2” and that the 5th accused had beat P.W.7. The Court noted that the second accused was the son of a niece, that the 4th accused was the son and the 5th accused was a nephew of the 1st accused. There was evidence that the accused were having torch lights with them. The Court noted that the second accused was the son of a niece, that the 4th accused was the son and the 5th accused was a nephew of the 1st accused. There was evidence that the accused were having torch lights with them. The 5th accused was reading nearby. There was distinct possibility of the witnesses identifying accused Nos.1, 2, 4 and 5. 10. As regards accused 3, 6 and 7 the Court felt that it could not safely be said that the witnesses were in a position to identify them. It observed : “True they are near relations of the 1st accused and it is probable that they also might have accompanied the others in order to assist them in the attack”. But that was found to be not sufficient to be sure of their involvement. It is in that view that they were acquitted. Their acquittal had not been complained against. It is unnecessary, therefore, to pursue the case as regards these accused. 11. The various defences put forward on behalf of the accused who had been punished had been subjected to detailed and minute examination by the trial Court. These contentions did not appeal to the Court as affording sufficient justification for acquitting them. Thus for example, the defence argument regarding the weapons used in mounting the attack was rejected by that Court holding; “An arecanut splinter is the easiest thing which the accused persons could get at in the village parts and there it every reason to believe that the injuries were sustained by beating with arecanut splinters”. This inference had support from medical evidence; and it was so indicated in the judgment. The plea about the absence of explanation for two incised wounds, was dealt with by that Court in the following words : “Merely because two of the injuries are incised wounds it cannot be said that a sharp weapon had been used by the assailants. This inference had support from medical evidence; and it was so indicated in the judgment. The plea about the absence of explanation for two incised wounds, was dealt with by that Court in the following words : “Merely because two of the injuries are incised wounds it cannot be said that a sharp weapon had been used by the assailants. In an attack by several person; and that too at dead of night it may not be possible for the accused to mention all the details regarding weapons used.” Other arguments, such as the non-production of the bloodstained cloths, of the possibility of other persons having spite against P.W.1, and of the failure to examine the brother and the brother's wife of P.W.1 and the alleged contradiction in the evidence of the prosecution witnesses were also subjected to detailed discussion. As noted earlier, they were found to be not such as to induce the court to detract from the finding of guilt as against accused Nos.1, 2 4 and 5 on the basis of the clear and positive evidence available in the case. 12. The 1st accused was found guilty under 5s.324 and 448 of the Indian Penal Code and was sentenced to rigorous imprisonment for a period of two years for the offence under S.307, I.P.C., rigorous imprisonment for a period of one year under S.448, and rigorous imprisonment for one year under S.324; the sentences were to run concurrently. The other accused were sentenced to undergo rigorous imprisonment for a period of one year for offences under Ss.324 and 448, I.P.C., the sentences to run concurrently. 13. The appellant Court, as observed earlier, set aside the conviction and sentence on the ground of a defective framing of the charges and acquitted them even without a retrial. It must, however, be noted that on the merits of the case that court too agreed with the trial Court : “I can agree with the lower Court that it was possible to identify the assailants because they came at close range and there was moon light. It must, however, be noted that on the merits of the case that court too agreed with the trial Court : “I can agree with the lower Court that it was possible to identify the assailants because they came at close range and there was moon light. The accused are not strangers and in fact the evidences is that P.W.1 called the name of the 1st accused.” As regards the incised wounds, the defence arguments of some sharp object having been used in connection with the same, the appellate Court observed : “1 can say that in such an incident, it may not be possible to locate all the weapons used by so many persons. So agree with the finding of the lower Court”. 14. The finding of the appellant Court that there was a defective framing of the charges, is substantially rested upon the observations of the Supreme Court contained in two judgments reported in the year 1955 and the judgments are Nanakchand v. The State of Punjab Nanakchand v. The State of Punjab 1955 S.C.J. 241: (1955)1 MLJ. (S.C.) 141: 1955 M.W.N. (Crl.) 98: 56 Cri.L.J. 721: A.I.R. 1955 S.C. 274 and Surajpal v. State of U.P. Surajpal v. State of U.P. 1955 S.C.J. 351: (1955)1 MLJ. (S.C.) 203: 1955 M.W.N. (Crl.)103: 56 Crl.L.J. 1004: A.I.R. 1955 S.C. 419. For some understandable reason, the Court below refused to make the reference to the easily available reports. 15. Whether the above assumption of the appellant Court is justified, has to be considered in the first instance. 16. The decisions relied on by the appellant Court have to be understood in the light of a later judgment of a larger Bench of the Supreme Court, where both the cases referred to by the appellant Judge has been considered at length. It is strange how such an important decision happened to be missed by the Public Prosecutor. The decision is too important to have been overlooked by an experienced appellate Judge. 17. The opening sentence in the judgment of the Supreme Court in W. Slaney v. State of M.P. W. Slaney v. State of M.P. 1956 S.C.J. 182 : (1958)1 MLJ. It is strange how such an important decision happened to be missed by the Public Prosecutor. The decision is too important to have been overlooked by an experienced appellate Judge. 17. The opening sentence in the judgment of the Supreme Court in W. Slaney v. State of M.P. W. Slaney v. State of M.P. 1956 S.C.J. 182 : (1958)1 MLJ. (S.C.)100 : (1956)57 Crl.L.J. 291 : (1955)2 S.C.R. 1140 : A.I.R. 1956 S.C. 116 @ 120 explains the necessity for a consideration of the question by a Bench of five Judges and it reads : “This appeal was referred to a Bench of five Judges in order to determine whether there was a conflict of view between - Nanakchand v. State of Punjab Nanakchand v. State of Punjab 1955 S.C.J. 241: A.I.R. 1955 S.C. 274 and Surajpal v. State of U.P. Surajpal v. State of U.P. 1955 S.C.J. 351: A.I.R. 1955 S.C. 419 and if so to determine it”. It is unnecessary in the year 1984, to extract profusely from that well-known Judgment. The majority judgment was rendered by Bose, J., in his characteristic lucid style, in paragraph 40 their Lordships observed : “We agree that a man must know what offence he is being tried for and that he must be told in clear and unambiguous terms and the it must all be ‘explained to him’ so that he really understands….but to say that a technical jargon of words whose significance no man not trained to the law can grasp or follow affords him greater protection or assistance than the informing and the explaining that are the substance of the matter, is to base on fanciful theory wholly divorced from practical reality. The essence of the matter is not a technical formula of words but the reality. Was he told? Was it explained to him? Did he understand? Was it lone in a fair way”. In paragraph 44, the necessity of looking at the substance, a necessity which has to be emphasised in recent times, was emphasised, Observed the Court: “It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilty just as much as the protection of innocence. Neither can be rone if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial techanicalities. Courts have to administer justice and justice includes the punishment of guilty just as much as the protection of innocence. Neither can be rone if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial techanicalities. Broad vision is required a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction.” (emphasis supplied). 18. The Court is to find out whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance. If all these elements are there and no prejudice is shown the conviction must stand whatever be the irregularities whether traceable to the charge or to a want of one. 19. As to how the possibility of prejudice has to ascertain, was discussed thereafter. 20. If only the above decision of the Supreme Court had been adverted to, the appellate Court would not have got into the sad error, in which it was ultimately landed itself. 21. It is unnecessary for the purpose of this case to refer to other and subsequent decisions of the Supreme Court. (See the decisions in Amar Chand v. Shanti Bose Amar Chand v. Shanti Bose (1973) 4 S.C.C. 10 : (1973) S.C.C. (Crl.) 651 : 1973 Crl.L.J. 577 : A.I.R. 1973 S.C. 799 at p.804 and Satyendra Nath v. Ram Narain Satyendra Nath v. Ram Narain (1975)3 S.C.C. 398 : 1975 Crl.L.J. 577: 1975 S.C.C. (Crl.) 24: A.I.R. 1975 S.C. 580 at 583.) 22. It must be noted that the accused had not raised any objection at the earliest stage about any defective charges or any prejudice caused thereby. There is no contention about there having been a failure of justice on account of any such defect. The evidence of ail the witnesses had been referred to in the 313 statement. The part played by each of the accused had been indicated therein. No possible aspect of prejudice could be made good on behalf of the accused in this Court. 23. The evidence of ail the witnesses had been referred to in the 313 statement. The part played by each of the accused had been indicated therein. No possible aspect of prejudice could be made good on behalf of the accused in this Court. 23. Judged on the basis of the considerations and guidelines gatherable from the aforesaid decisions, I have no doubt that the Court below had committed a serious error in assuming that there was a defect in the charge. If that assumption be found to be wholly untenable, as I do find here, the judgment of the appellate Court has to be vacated. I do so. 24. It is undesirable in that event to express any view on the merits, lest there should be a feeling about there being loaded dice against the accused. 25. In that view of the matter it is unnecessary to comment upon the further observations of the Court below about a retrial being unjustified on the assumptions and suppositions recorded by it, and alluded to briefly earlier. 26. The decision in Prem Singh v. State of Punjab Prem Singh v. State of Punjab (1976) MLJ.(Crl.) 193 has hardly any application to the facts of the present case. The case was relied on for the proposition that if the prosecution witnesses could not be believed in respect of some of the accused, they could not be believed as regards the others too. The Supreme Court found there that the evidence before them was false evidence. That is not the situation here. It has to be noted that in the present case the trial Court had not disbelieved the prosecution witnesses as regards accused Nos.3, 6 and 7. It was only overcautious, in relation to the appreciation of the evidence of the prosecution witnesses, as regards those accused. It is unnecessary to further comment on whether the trial Court had erred in not finding those accused guilty, for the reason that their acquittal had teen acquiesced in by all parties. The reason of the appellate Court for for closing a retrial was its impression about the harassment that may be caused to the accused by the retrial and the feeling of the appellate Court that such a retrial may be ‘an exercise in futility’. Two instances of what according to the Court below, constituted weakness in the evidence of the prosecution were also referred 10. Two instances of what according to the Court below, constituted weakness in the evidence of the prosecution were also referred 10. In view of my setting aside the judgment of the appellate Court and directing a rehearing of the appeal, it is not necessary to examine in detail, or pronounce upon the correctness of the views of the appellate Judge. Counsel on either side referred to the entire evidence in the case. It is sufficient to say that the observations of the appellate Judge are not based on a balanced consideration of the entirety of the evidence in the case. The anxiety of the Court should not be to avoid the harassment to an accused, if interests of Justice demand a retrial. As a matter of fact, in the present case, the trial Court had convicted the accused and on the merits, the appellate Court was inclined to agree with the appreciation of evidence of the trial Judge. It may not be possible open to the accused in such circumstances to complain about harassment if a retrial is ordered. Merely because the process of law has taken some time, it will not be just or proper to acquit the accused, if the evidence otherwise justifies a conviction. The approach to the omission of the details relating to the incident in the FIR is not in conformity with the well-settled principles governing the same. Suffice it to say, the correct principles of law and the evidence available in the case had not been duly considered by the appellate Court, when it came to the conclusion that the accused should be straightaway acquitted, even without a retrial. 27. In the light of the aforesaid discussion, the judgment of the appellate Court has to be set aside. Counsel for the respondent, however, submitted that the revisional power of this Court is an attenuated one and relied on the decisions of the Supreme Court in D.Stephens v. Hoxibella D.Stephens v. Hoxibella (1951) S.C.J. 269: (1951) S.C.R. 284: 64 L.W. 541: A.I.R. 1951 S.C. 196, Chinnaswamy and Mahendra Pratap v. Sarju Singh Mahendra Pratap v. Sarju Singh (1968)2 S.C.J. 193: (1968) MLJ. (Crl.) 399: (1968)2 S.C.R. 287 : A.I.R. 1968 S.C. 707. The power of this Court in revision, no doubt is limited. But it is not non-existent. This Court cannot abdicate its revisional jurisdiction when a case for interference is made out. (Crl.) 399: (1968)2 S.C.R. 287 : A.I.R. 1968 S.C. 707. The power of this Court in revision, no doubt is limited. But it is not non-existent. This Court cannot abdicate its revisional jurisdiction when a case for interference is made out. A failure of justice as has been occasioned in the present case by the unjust and grossly illegal disposal of the appeal by the Court below would necessarily require the exercise of the revisional jurisdiction of this Court. The decision in A.I.R. 1962 S.C. 1788 (Supra.) has to be understood in the particular factual set up of the case. The Supreme Court itself apparently felt later that the decision in A.I.R. 1962 S.C. 1788 (Supra.) was unnecessarily restrictive. The Court observed in its decision in Ayodhya v. Ram Sumer Singh Ayodhya v. Ram Sumer Singh 1981 Cri.L.J. 1016: A.I.R. 1981 S.C. 1415 : “…..Criminal Justice system does not admit of ‘Pigeon-holding’. Life and the law do not fall neatly into slots. When a Court starts laying down rules enumerated (1), (2), (3), (4) or (a), (b), (c), (d), it is arranging for itself traps and pitfalls. Categories, classifications and compartments which statute does not mention, all tend to make law less flexible, less sensible and less just.” 28. In the light of the above discussion the judgment of the appellate Court is set aside. Having regard to the facts and circumstances, I feel that the proper course is to direct a rehearing of the appeal by the appellate Court. That Court is directed to take the appeal afresh and dispose it of in accordance with law. While so disposing of the appeal, the Court below will, no doubt, do so uninfluenced by the observations that may have been made in this judgment. 29. The facts of the case reveal that there still exist areas even in the enlightened State of Kerala, where people belonging to the lower strate, socially and economically, are being subjected to the oppression of the ‘higherups’. Mrs.Wilcox wrote in ‘India's Dreamy Land”. “In India's land one listens aghast To the people who scream and bawl For each caste yells at a lower caste And the Britisher yells at them all.” That was at a time long before India became independent. Mrs.Wilcox wrote in ‘India's Dreamy Land”. “In India's land one listens aghast To the people who scream and bawl For each caste yells at a lower caste And the Britisher yells at them all.” That was at a time long before India became independent. Sir Harcount Butler (An administrator of India for many decades) in his book “India Insistant”, observed: “Caste within India cannot be either abolished or extinguished within a measureable time. The system grow up of itself in remote antiquity…and will last for untold centuries…The deep waters of Hinduism are not easily stirred. Ripples on the surface leave the depths unmoved.” Those observations were also made many decades before India's independence. One would have thought that these conditions have substantially changed after the advent of independence and after India became a sovereign socialist secular democratic republic. Article 51A makes it a Fundamental Duty of every citizen “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities…” The facts of the case tend to indicate that this is a dream yet to be realised in full measure. The members of a family belonging to what is considered as a lower caste had to suffer untold agony, physical and otherwise, for the only sin that a girl of that family had married from a higher caste. They had to undergo medical treatment for the injuries, for a long periods and to suffer hardship and loss in many ways. 30. Even the conduct of the prosecution case, throws considerable doubt about the honesty of those entrusted with that high responsibility. The trial Court had occasion to note that ugly feature. In paragraph 16 of its judgment it observed : “But even from the very beginning the injured persons had a grievance against the investigating officer and the manner in which he had investigated the case. The prosecution witnesses have got a case that the blood-stained clothes and the demolished articles were available in the house itself but they had not been taken into custody by the Police Officer.” 31. Sad lapses did not stop with the investigating Officer. The Public Prosecutor who appeared before the appellate Court, was prima facie, negligent in the discharge of his duties, in not properly assisting the appellate Court. Sad lapses did not stop with the investigating Officer. The Public Prosecutor who appeared before the appellate Court, was prima facie, negligent in the discharge of his duties, in not properly assisting the appellate Court. Even after the pronouncement of the judgment, the case did not receive adequate attention, of anyone responsible in the conduct of the case. Was it a case of mere negligence? 32. Quite often, suggestions for appropriate enquiry into the conduct of erring investigating officers, do not evoke proper response or meet with effective follow up action at the governmental level. The Director of Public Prosecutions, who at the request of the Court, helpfully extended his assistance in the hearing of the case, assured the Court that the matter would be probed into. I record that assurance with appreciation. It is desirable that the Court is appraised of the further action, if any, taken by the Government as a result of such a probe. I direct the Director of Public Prosecutions to submit a report about the further action taken in the matter on or before 1-6-1984. 33. The Crl.R.P., is disposed of as indicated above. M.C.M. ----- Appellate Judgment set aside and case remanded.