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2006 DIGILAW 1171 (BOM)

Maruti s/o. Kisan Raut v. State of Maharashtra

2006-07-31

ANOOP V.MOHTA

body2006
JUDGMENT :- The petitioners - original accused have preferred the present revision application against the order dated 6.8.1999 passed by 2nd Add!. District Judge, Shrirampur (District Judge) whereby the judgment dated 8.6.1989 passed by the learned Judicial Magistrate, First Class, Sangamner (J.M.F.C.) was set aside and the matter was remanded back to the J.M.F.C. for fresh enquiry. 2. By the impugned order, the District Judge has directed the parties to appear the learned trial Court on 16.8.1999. The petitioners have preferred this revision on 13.8.1999. ByorderdatedI9.8.1999, the Court has admitted the present revision but, without any interim relief. It appears that as liberty was granted to apply for early hearing. The parties did not appear before the J.M.F.C. on 16.8.1999. Thereafter, the record was sent to the High Court. 3. The learned Counsel appearing for the petitioners submitted that in the facts and circumstances of the case, the order of remand is contrary to the law, specially when the J.M.F.C. had acquitted accused nos. 1 to 4 for the offences punishable under Sections 324, 504, I.P.C. but, convicted them only for the offence punishable under Section 323 r.w. 34 of I.P.C. This means, the learned District Judge has remanded the matter even against the order of acquittal. The appeal before the learned District Judge was preferred by the accused only against the order of conviction under Section 323 r.w. 34 of I.P.C. There was no counter appeal by any other patties. The order of fresh enquiry, therefore, is contrary to law. He further submitted that even otherwise, on merits there is no case made out for the remand. The learned J.M.F.C. in fact, had considered the merits of the matter by answering all the relevant points and acquitted the accused for the offence punishable under Section 324 of I.P.C. and convicted them for the offence punishable under Section 323 of I.P.C. He further contended that the impugned order amounts to retrial of the incident dated 16.7.1986 and, therefore, it was uncalled for, after lapse of more than 13 years of the incident, at the time of the impugned order and now 20 years from the date of the incident. 4. The learned Advocate appearing for the original complainant resisted the same and submitted to maintain the impugned order and on merits, the order passed by the J.M.F.C. The learned A.P.P. also supported the impugned order and the reasoning given. 5. 4. The learned Advocate appearing for the original complainant resisted the same and submitted to maintain the impugned order and on merits, the order passed by the J.M.F.C. The learned A.P.P. also supported the impugned order and the reasoning given. 5. After perusal of the record with the assistance of the learned Advocates appearing for the parties, I am convinced that the learned J.M.F.C. has, after considering the material on record, given findings point by point and answered the same by giving reasoning on the basis of material available on record. I see that there is no reason, in the facts and circumstances of the case, to remand the matter back for fresh enquiry, on the foundation of Section 354(b) of Cr.P.C. The said provisions have been duly complied with in the present matter. 6. The learned J.M.F.C. has observed and applied his mind while recording his findings. The reasoning given by the J.M.F.C., based on the material available on the record, reflects the application of mind. The decision in such circumstances, cannot be said to be against the provisions of Section 354(b) of Cr.P.C. The merit of the same need to be tested by the appellate or revisional Court, in accordance with the law. The order of acquittal under Section 324 of I.P.C., as remained unchallenged, just cannot be interfered with, in the appeal filed by the accused against the order of conviction under Section 323 of I.P.C., though based on the same material available on record. 7. The Apex Court in the case of State of Andhra Pradesh Vs. T. Narayana [ AIR 1962 SC 240 ] while dealing with the old provisions of Section 423(1)(b)(1) and (2) of Cr.P.C., i.e. Section 386(b) of Cr.P.C., has held that the appellate Court cannot order retrial when the accused are acquitted, in the appeal against the order of conviction. The Apex Court in the case of State of Andhra Pradesh Vs. T. Narayana [ AIR 1962 SC 240 ] while dealing with the old provisions of Section 423(1)(b)(1) and (2) of Cr.P.C., i.e. Section 386(b) of Cr.P.C., has held that the appellate Court cannot order retrial when the accused are acquitted, in the appeal against the order of conviction. In the present case, the appeal was preferred by the accused against the order of conviction under Section 323 of I.P.C. There was no challenge made by any party against the order of acquittal under Section 324 of I.P.C. The Apex Court has observed as follows: "9 ……In a case where several offences are charged against an accused person the trial is no doubt one; but where the accused person is acquitted of some offences and convicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the Appellate Court. If an appeal is preferred against an order of acquittal by the State and no appeal is filed by the convicted person against his conviction it is only the order of acquittal which falls to be considered by the Appellate Court and not the order of conviction. Similarly, if an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction that falls to be considered by the Appellate Court and not the order of acquittal. Therefore, the assumption that the whole case is before the High Court when it entertains an appeal against conviction is not well-founded and as such it cannot be pressed into service in construing the expression "alter the finding"." 8. The same view has been restated in the case of Gurunath s/o Madhavan Vs. State of Kerala [1990 (Supp) SCC 148] whereby the Apex Court further observed that as there was no appeal against acquittal preferred by the State, the High Court has no jurisdiction and power to direct the conviction of the appellant. 9. The Apex Court in the case of State of West Bengal V s. Laisal Haque and another and Mohd. Abu Bakar Siddique Morna Vs. 9. The Apex Court in the case of State of West Bengal V s. Laisal Haque and another and Mohd. Abu Bakar Siddique Morna Vs. Laisal Haque and others [ AIR 1989 SC 129 ], after dealing with the provisions of Sections 374(4) and 386 of Cr.P.C. has further re-stated that in absence of any appeal by the State against the order of acquittal, the order of retrial is not sustainable, as it would amount to a trial denovo against all the accused. In the present case, the learned Sessions Court remanded the matter back, which means fresh enquiry against the same accused but, for the offence punishable under Section 324 of I.P.C., though acquitted and remained unchallenged. 10. In the case of Sely Vs. State of Kerala [2002 CRI.L.J.1207], the Kerala High Court, after considering the decisions of State of West Bengal and State of Andhra Pradesh, observed that Section 386(b)(ii) of Cr.P.C. in terms deals with an appeal from a conviction and is clearly confined to the cases of appeals preferred against orders of conviction and sentence. The powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged while dealing with an appeal preferred by him against order of conviction in respect of another offence charged and found proved. 11. The same view has been re-stated in Kelaka Ramana Vs. State [2003 Cri.L.J. 3227], by the Andhra Pradesh High Court by observing that the accused acquitted of one offence and convicted of another, in the appeal against conviction, the order of acquittal of the accused cannot be converted into conviction in terms of powers granted to Appellate Court under Section 386(b)(i) of Cr.P.C. The Appellate Court, under provisions of Section 386(b)(i), may reverse the finding and sentence, acquit or discharge the accused or it may order re-trial. Under Section 386(b)(ii), the Appellate Court may alter the finding, but maintain the sentence and under Section 386(b)(iii) it mayor may not alter the finding, but it may alter the sentence, but not so as to enhance the same. It has been further observed that without an appeal by the State, there is no mechanism for the Appellate Court whereby the acquittal could be converted into conviction. 12. It has been further observed that without an appeal by the State, there is no mechanism for the Appellate Court whereby the acquittal could be converted into conviction. 12. In view of this, I am inclined to accept the submissions, as raised by the learned Advocate appearing for the petitioners, that the order of remand for fresh enquiry and re-trial, in the facts and circumstances of the case, is not correct. Even otherwise, there is no case made out and/or even an exceptional case for remanding the matter for fresh enquiry, specially against the order of acquittal under Section 324 of I.P.C. 13. The Apex Court while dealing with the powers of remand for re-trial in the case of Zahira Habibullah Sheikh Vs. State of Gujarat [2004 Cri.L.J. 2855: [2004 ALL MR (Cri) 2502 (S.C.)]], observed that it must be an exceptional case wherein the material placed on record justifies the re-trial, then only the Court can order the same on the ground of faulty investigation, distorted trials and tainted evidence etc. As observed above, this is not one of those exceptional cases. There is no such material on record to justify fresh enquiry and/or remand of the matter, as directed. As recorded above, it is not a just and proper case for the retrial. It cannot be said that the conclusion, as arrived at by the J.M.F.C., was in a casual manner. The learned Sessions Judge, according to me, was not right in remanding the matter by invoking the provisions of Section 386(b), Cr.P.C., in the facts of the cases as well as in view of the settled provisions of law as narrated above. 14. The trial Court, based on material, acquitted the accused for the offence punishable under Section 324 of I.P.C. but, convicted them under Section 323 r.w. 34 of I.P.C. The Sessions Court however, on this ground itself, remanded the matter back by holding that as the prosecution failed to lead sufficient evidence including the injuries remained uncorroborated by Medical Officer was not examined and the medical certificates were not proved by the prosecution. Even though Medical Officer was not examined, the learned trial Court observed that testimony of complainant P.W.1 is corroborated by Medical Officer. Even though Medical Officer was not examined, the learned trial Court observed that testimony of complainant P.W.1 is corroborated by Medical Officer. The material placed on record, as observed by the Sessions Judge, does not support the case under Section 324 of I.P.C. The accused like petitioner could not have been convicted under Section 323 of I.P.C. The leaned J.M.F.C., based on the same material on record, instead of convicting the accused under Section 324 of I.P.C., had convicted them under Section 323 of I.P.C., though not recorded separate reasons. 15. After going through the same reasoning and the evidence placed on record, I see there is a case made out by the prosecution to convict the accused under Section 323 r.w. 34 of I.P.C. There is no grave illegality committed by the J.M.F.C. by convicting the accused under Section 323 of I.P.C., based on the same evidence. The ingredients as contemplated under Section 323 of I.P.C., if made out while recording the reasoning of Section 324 of I.P.C., I see, that itself cannot be a reason to remand the matter back for re-trial or fresh enquiry as ordered in the present case. The learned Judge, according to me, ought to have passed an appropriate order based on the material available on record either confirming the conviction or acquitting the accused under Section 323 of I.P.C. 16. The other contention on merits that the incident was dated 16.7.1986 and now after lapse of 20 years, the remand order for the fresh enquiry would not be of any assistance to the prosecution, has also some substance. However, considering the material placed on record and the evidence available, after going through the same, I am inclined to accept the view and the reasoning given by the J.M.F.C., Sangamner dated 8.6.1989 for convicting the accused under Section 323 r.w. 34 of I.P.C. Admittedly, the matter is pending since 1991. Though ordered, the trial did not commence. Therefore, on this sole ground it is difficult to accept the contention of the petitioners that leniency should be shown and that accused be acquitted for the offence as convicted, because the J.M.F.C. himself has acquitted the accused of the offence punishable under Section 324 of I.P.C. 17. In this background, instead of remanding the matter back for re-trial, I am inclined to hear this revision on merits and as contended also. 18. In this background, instead of remanding the matter back for re-trial, I am inclined to hear this revision on merits and as contended also. 18. The prosecution, in order to prove the guilt of the accused persons, examined in al1 seven witnesses. 19. P.W.1 Madhav-the complainant, Two panch witnesses to prove recovery of sticks, who were declared hostile, P.W.6 Gangadhar Bodkhe - another panch witness to prove seizure of clothes of the complainant, was also declared hostile. The Investigating Officer P.W.7 Nadarkhan, Police Head Constable was examined by the prosecution. The Medical Officer was also not examined though sufficient time was given. The prosecution has not examined the injured witnesses including brother Sayaji and his wife. The question is whether the order of J.M.F.C. convicting the accused is sustainable on this ground. 20. Merely because some panch witnesses were declared hostile, that itself cannot be a reason in all the cases to acquit the accused, specially when the Investigating Officer was examined in that matter. His evidence is corroborated by the evidence of the complainant P.W.l Madhav. P.W.2 Kashinath is an eye witness to the incident, who has corroborated the evidence of the complainant. This oral evidence of some of the eye witnesses about beating by the accused to the complainant by sticks on his head and shoulder and because of that assault on the head, the complainant became unconscious and fell down, is sufficient to convict the accused under Section 323 of I.P.C. The learned J.M.F.C. was right in acquitting the accused under Section 324 of I.P.C. The facets of seizure of two sticks, clothes and various spot panchanamas just cannot be overlooked only because some of the witnesses have been declared hostile, specially, when the evidence of the complainant is corroborated and supported by the eye witnesses. 21. Non-examination of the injured witnesses, the Medical Officer, though opportunities were available, that itself, in the present facts and circumstances of the case, cannot be the reason to disturb the finding of conviction under Section 323 of I.P.C. 22. Therefore, in all cases, merely because the prosecution failed to bring the evidence on record and/or was unable to lead evidence of material witnesses, that by itself could not be the reason to acquit the accused. The requirement is that the Courts need to scrutinize the evidence carefully while passing appropriate order and/or giving reasoning in such matter. 23. Therefore, in all cases, merely because the prosecution failed to bring the evidence on record and/or was unable to lead evidence of material witnesses, that by itself could not be the reason to acquit the accused. The requirement is that the Courts need to scrutinize the evidence carefully while passing appropriate order and/or giving reasoning in such matter. 23. If the solitary testimony corroborates the evidence of the complainant in various material aspects including an independent eye witness, there is no wrong committed by the J.M.F.C. in passing the order of conviction under Section 323 of I.P.C. The common intention as recorded by the J.M.F.C. remained undisturbed even by the Sessions Judge while remanding the matter for fresh enquiry. The learned Sessions Judge, in fact, remanded the matter against all the accused by not setting aside the order of conviction under Section 323 r.w. 34 of I.P.C. but, remanded the matter back for re-trial for larger offence under Section 324 of I.P.C. 24. The evidence of P.W.1 Madhav the injured/complainant has remained undisturbed even in the cross-examination and further corroborated by witness P.W.2 Kashinath, who had witnessed the incident and in fact, separated the quarrel and whose testimony also remained undisturbed even in the Cross-examination, also supports the case of the prosecution, which includes the individual role played by accused, assault, injuries and hospitalization for about one month. 25. P.W.3 Dhondiba has proved the spot panchanama. P.W.4 Dagadubhai has further corroborated that sticks were seized and panchanama was drawn, accordingly, though P.W.5 Jayram Bodkhe and P.W.6 Gangadhar Bodkhe were declared hostile. 26. Nadarkhan (P.W.7), Police Head Constable has proved all the material documents relating to investigation which further supports the case of the complainant including the complaint, various panchanamas, injury certificates, registration of crime, seizure of sticks, clothes with blood stains. In the cross-examination, defence could not extract anything in their favour except some discrepancies and/ or some statements. 27. D.W.1 Shantaram has not witnessed the actual assault but, this witness proved that there was enmity between the complainant and the accused and, they tried to settle the dispute for more than 15-20 times. The important aspect of this witness is that he admitted in cross-examination that he had strained relations with the complainant. 27. D.W.1 Shantaram has not witnessed the actual assault but, this witness proved that there was enmity between the complainant and the accused and, they tried to settle the dispute for more than 15-20 times. The important aspect of this witness is that he admitted in cross-examination that he had strained relations with the complainant. Having examined as defence witness and when the defence is unable to destroy the case of the complainant and the prosecution, such evidence further supports the case of the prosecution. 28. Taking all this into account and considering the facts and circumstances of the case, I am inclined to quash and set aside the order of remand of the matter dated 6.8.1999 passed by the learned District Judge and order, accordingly. However, on the basis of the same, instead of remanding the matter, I am of the view that the order passed by the J.M.F.C., Sangamner dated 8.6.1989 is correct and it is restored, accordingly. 29. Taking all this into account, the revision application is allowed partly. The impugned judgment and order dated 6.8.1999 passed by the IInd Additional District Judge, Shrirampur in Criminal Appeal No.75/1989 is quashed and set aside. The judgment and order dated 8.6.1989 passed by the J.M.F.C., Sangamner in Criminal A. No.168/86, convicting the petitioners accused for the offence punishable under Section 323 r.w. 34 of I.P.C. and sentencing them to suffer R.I. for 15 days and to pay a fine of Rs.300/= each, in default of payment of fine, to suffer further R.I. for 15 days, is maintained. The petitioners - accused shall appear before the J.M.F.C., Sangamner on 1st September, 2006. The trial Court and/or the prosecution to take steps, in accordance with law. Rule made absolute partly. Application partly allowed.