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2003 DIGILAW 644 (AP)

A. Ramanamma v. Nakka Neelamma

2003-04-28

S.R.K.PRASAD

body2003
S. R. K. PRASAD, J. ( 1 ) THIS revision is directed against the acquittal order passed by the Judicial magistrate of 1st Class Pakala, in C. C. No. 11 of 1999 dated 31-1-2000. ( 2 ) THE facts that arise for consideration can be briefly stated as follows: respondents 1 to 3 are the accused. The incident alleged to have taken place on 14-12-1998 at about 7. 00 p. m. when A Ramanamma, was proceeding infront of the house of A Narasimhulu, the 1st respondent herein picked up a row and caught hold of her tuft and beat her and assaulted her with hands on her back and caused pains. A-2 also rushed there and assaulted her with a stout stick and caused bleeding injuries on her head, and A-3 assaulted her with hands on her back and caused pains. The respondents 1 to 3 were chargesheeted for the offence under S. 324 r/w 34 IPC and 323 r/w 34 IPC. After trial, the learned Magistrate acquitted the accused on the ground that there are civil disputes pending against the parties and also non-examination of other witnesses is fatal to the prosecution case. Aggrieved by the judgment of the learned Magistrate, the defacto-complainant being P. W. 1 has preferred this revision. ( 3 ) IT is mainly contended by the learned counsel for the petitioner that the findings arrived at by the Court below are perverse and the evidence of P. W. 2 has not been properly appreciated by the lower Court. It is further contended that the evidence of P. W. 2 is corroborated by the evidence of P. W. 1 and therefore, the evidence of P. W. 2 cannot be discarded. The learned Public Prosecutor contends that there is no need to interfere with the judgment of the lower Court as it has rightly appreciated the evidence and come to correct conclusion. ( 4 ) BEFORE adverting to the said contentions, it is necessary to have a look at Sections 395, 397 and 401 of Cr. P. C. They read as follows: 397. ( 4 ) BEFORE adverting to the said contentions, it is necessary to have a look at Sections 395, 397 and 401 of Cr. P. C. They read as follows: 397. Reference to High Court.- (1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court. Explanation.- In this section, regulation means any Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State. (2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case. (3) Any Court making a reference to the High Court under sub-section (1) or sub-section (2) may, pending the decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon. 398. Calling for records to exercise powers of revision.- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. Sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of the sub-section and of Section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. 401. High Court s powers of revision.- (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. It is stated in Sec. 401 (3) of Cr. P. C. that the High Court cannot convert the finding of acquittal into one of conviction. It is also stated in Sec. 401 (1) of Cr. P. C. that the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Secs. 386, 390 and 391. It is also clear that no order shall be passed without giving an opportunity to the other person either personally or by his pleader in his own defence. It is clearly laid down by the Supreme Court in a decision reported in Vimal Singh v. Khuman Singh, AIR 1998 SC 3380 : (1999 Cri LJ 16) at paras 7 and 8 as follows:coming to the ambit of power of High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial Court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial Court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial Court has no jurisdiction to try the case or where the trial Court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue have been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. In fact, sub-section (3) of Section 401 of the Code forbids the High Court in converting the order of acquittal into one of conviction. In view of the limitation on the revisional power of the High Court, the High Court in the present case committed manifest illegality in convicting the appellant under Section 304, Part 1 and sentencing him to seven years rigorous imprisonment after setting aside the order of acquittal. 8. Coming to the next question as to whether this case fell within the parameters which could enable the High Court to interfere with the order of acquittal passed by the trial Court, a perusal of the judgment of the High Court shows that it was of the view that the trial Court has discarded the evidence of Sumer Singh (PW-2), who was an independent witness, as well as the evidence of Khuman Singh (PW-3), Narayan Singh (PW-4), Shafi Mohammad (PW-10) and Nathuram (PW-13 ). After being of that view the High Court reassessed the evidence and came to the conclusion that the appellant is guilty of offence under Section 304, Part 1, IPC. This view of the High Court is palpably wrong. We have carefully gone through the judgment of the trial Court and do not find that the trial Court has discarded any evidence referred to in the judgment of the High Court. On the contrary, the trial Court assessed the statements of witnesses and thereafter came to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. On the contrary, the trial Court assessed the statements of witnesses and thereafter came to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. So far as the evidence of Sumer Singh (PW-2) is concerned, the trial Court found that he only mentioned that some quarrel had taken place inside the bus but he could not identify the actual assailant and the persons who were quarrelling. Subsequently, this witness was declared hostile in the cross-examination. After appreciating the evidence, the trial Court came to the conclusion that the statement of Sumer Singh (PW-2) is of no help to the prosecution case. Thus, it is quite evident that the High Court was not right in its view that evidence of Sumer Singh was discarded by the trial Court. So far as the evidence of Khuman Singh (PW-3) and Narayan Singh (PW-4) are concerned the trial Court on assessment of the evidence found that there were contradictions in their statements on material points. The trial Court further found that the medical evidence did not support the version of Khuman Singh (PW-3) that he received injury by knife inside the bus. The trial Court also found that Narayan Singh (PW-4) did not support Khuman Singh (PW-3) with regard to his injury and both the witnesses (PWs-3 and 4) were interested witnesses and made reservations in their statements. The trial Court, in view of the medical evidence found that no injury was caused to Vijay Singh on the previous day s incident which is alleged to be the cause for going to the police station for lodging the FIR, next day or was motive to inflict injury that day to the deceased inside the bus by the appellant. From the above facts it is apparently clear that the trial Court did not shut out or discard the evidence led by the prosecution. On the contrary, the trial Court assessed the entire evidence on record and came to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt and as such acquitted the accused-appellant. In fact, the High Court has entered into the domain of reappraisal of evidence which it was not authorized to do in exercise of its revisional power. Under such circumstances, the order under appeal is not sustainable in law and deserves to be quashed. In fact, the High Court has entered into the domain of reappraisal of evidence which it was not authorized to do in exercise of its revisional power. Under such circumstances, the order under appeal is not sustainable in law and deserves to be quashed. We accordingly set aside the judgment and order of the High Court dated 5-11-1996 and restore that of the trial Court. While issuing notice on the petition for special leave to appeal, this Court suspended the operation of the judgment under appeal and the appellant was exempted from surrendering. Consequently, the appellant was not sent to jail in view of that order no further order is required. The appeal is allowed. " ( 5 ) IT is clear from the aforesaid decision that unless the trial Court order suffers from any glaring illegality or has caused miscarriage of justice, this Court cannot interfere with the order of acquittal passed by the lower Court. The Apex Court has also indicated certain class or category of exceptional cases, where this Court can interfere with the findings of acquittal under revision in a decision reported in Chinnaswamy v. State of Andhra Pradesh, AIR 1962 SC 1788 : (1963 (1) Cri LJ 8 ). They read as follows: (I) the trial Court had no jurisdiction to try the case, but still acquitted the accused; (ii) the trial Court wrongly shut out evidence which the prosecution wanted to produce; (iii) where the evidence was wrongly held to be inadmissible; (vi) where material evidence was overlooked; (v) where acquittal is based on a compound of the offence which is invalid under the law. ( 6 ) IT can be seen from the above class or category of exceptional cases where material evidence was overlooked, leading to flagrant miscarriage of justice, then the Court can interfere. Now, this Court has to see any such flagrant miscarriage of justice has occurred in this case, which necessitated, interference by this Court under revision. The injuries on P. W. 1 at the hands of A-1 to A-3 are spoken to by P. W. 2 as can be seen from his evidence. The relevant portion of his evidence reads as follows:"on seeing him, A-1 restrained A. Venkatardri (L. W. 3) and directed him to pay due amount to A-1 and abused him in filthy language. The injuries on P. W. 1 at the hands of A-1 to A-3 are spoken to by P. W. 2 as can be seen from his evidence. The relevant portion of his evidence reads as follows:"on seeing him, A-1 restrained A. Venkatardri (L. W. 3) and directed him to pay due amount to A-1 and abused him in filthy language. On hearing the galata sound, P. W. 1 came to us, then A-1 and A-3 beat P. W. 1 with their hands. While A-2 beat with a stick on her right side of the head P. W. 1 sustained bleeding injuries. "the lower Court has misinterpreted the evidence and stated that the evidence of P. W. 2 did not support the evidence of P. W. 1. In all criminal cases, the Court must make an attempt to separate the chaff from grain and try to arrive at the truth. It is for the Court to judge whether the injured has come to the Court with a true version or not. If it finds that the injured person has come with a true version, the Court has to give weight to his evidence, since the injured is the best person to speak about the incident and the persons who caused the injuries. The lower Court cannot ignore the evidence of P. W. 1 on the ground that there are ill-feelings and civil litigation is pending. It is the normal slogan or defence taken up by the accused to say that false case is foisted against them. The Court should not be swayed by emotion of such pleas taken by accused. It is the duty of the Court to look at the truth, and verify whether the complainant has come with true version or not. If the complainant comes with false case, the Court can always reject his version. It is the case where there is corroboration in the evidence of witnesses and this has not been considered at all by the lower Court. Apart from it, the bloodstained clothes were produced before the Court. This part of evidence of P. W. 2 has not been taken into consideration by the lower Court before arriving at a finding. Hence, I am of considered view that miscarriage of justice has occurred in this case due to perverse appreciation of evidence made by the lower Court. Apart from it, the bloodstained clothes were produced before the Court. This part of evidence of P. W. 2 has not been taken into consideration by the lower Court before arriving at a finding. Hence, I am of considered view that miscarriage of justice has occurred in this case due to perverse appreciation of evidence made by the lower Court. This case certainly falls within the purview of exceptional cases given by the Supreme Court in the aforesaid decision (2nd supra ). This is a case where the lower Court has not considered the evidence of P. W. 2 except stating that the evidence of P. W. 2 does not support the evidence of P. W. 1. Two things can be culled out from the evidence of P. W. 2 namely, the incident took place involving the accused and P. W. 1 and P. W. 2 has witnessed it. He is the best person who is said to have taken the injured to hospital. If that is so, it cannot be said that there is no corroboration in the evidence of P. Ws. 1 and 2. In any view of the matter, those aspects have to be decided by the lower Court. In view of my finding that this case falls within the purview of exceptional case No. IV, given out by Supreme Court in the aforesaid decision (2nd supra), I am of considered view, that miscarriage of justice occurred in this case. It is also clearly stated by the Supreme Court that the only remedy open for this Court is to set aside the order of acquittal and send back the matter to lower Court for reconsideration. The relevant portion of the decision reported 2nd cited (1963 (1) Cri LJ 8) at para 11 as follows: 11. The next question is what order should be passed in a case like the present. The High Court also considered this aspect of the matter. Two contingencies arise in such a case. In the first place there may be an acquittal by the trial Court. In such a case if the High Court is justified, on principles we have enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial Court for retrial. In such a case if the High Court is justified, on principles we have enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial Court for retrial. But there may be another type of case, namely, where the trial Court has convicted the accused while the appeal Court has acquitted him. In such a case if the conclusion of the High Court is that the order of the appeal Court must be set aside, the question is whether the appeal Court should be ordered to re-hear the appeal after admitting the statement it had ruled out or whether there should necessarily be a retrial. So far as this is concerned, we are of opinion that it is open to the High Court to take either of the two courses. It may order a retrial or it may order the appeal Court to rehear the appeal. It will depend upon the facts of each case whether the High Court would order the appeal Court to rehear the appeal or would order a retrial by the trial Court. Where, as in this case, the entire evidence is there and it was the appeal Court which ruled out the evidence that had been admitted by the trial Court, the proper course in our opinion is to send back the appeal for rehearing to the appeal Court. In such a case the order of the trial Court would stand subject to the decision of the appeal Court on rehearing. In the present case it is not disputed that the entire evidence has been led and the only defect is that the appeal Court wrongly ruled out evidence which was admitted by the trial Court. In the circumstances we are of opinion that the proper course is to direct the appeal Court to rehear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take. In the circumstances we are of opinion that the proper course is to direct the appeal Court to rehear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take. We should like to add that the appeal Court when it rehears the appeal should not be influenced by any observations of the High Court on the appreciation of the evidence and should bring to bear its own mind on the evidence after taking into consideration that part of the evidence which was considered inadmissible previously by it. We therefore allow the appeal subject to the modification indicated above. ( 7 ) FROM the foregoing discussion, I am of considered view that the judgment of the lower Court is perverse and not based on sound principles of appreciation of evidence. Hence, the matter has to be sent back to the lower Court for reconsideration of entire evidence, in the light of the settled principles, as stated supra. The order of acquittal passed by the lower Court is set aside, as it falls within the purview of exceptional cases mentioned by Supreme Court, in the decision 2nd cited. The matter is sent back to lower Court for reconsideration of entire evidence in the light of the observations made by the Supreme Court as well as this Court, mentioned supra. The Magistrate is directed to restore the case to file and rehear the matter and dispose it in the light of directions given by Supreme Court and the observations made by this Court supra. In the result, this Criminal Revision Case is ordered accordingly. Order accordingly.