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2006 DIGILAW 61 (MP)

Mangleshwar Singh v. Vijay

2006-01-09

RAKESH SAKSENA

body2006
ORDER 1. Petitioner-complainant has filed this revision challenging the judgment of acquittal dated 28.9.1995 passed by the Judicial Magistrate First Class Hoshangabad in Criminal Case No. 163/92 whereby respondents No.1 and 2 have been acquitted of the charge for the offences under section 326 and 506(B) of the Indian Penal Code. 2. According to prosecution on 22.10.1981 complainant Mangleshwar Singh, Forest Guard, was going in the bullock cart of Ramdayal Mukaddam and his wife and daughter, when the bullock cart reached near the temple of Peepaldhana, accused Vijay, Dashru and Rambharose stopped the bullock cart and Vijay assaulted him by the wooden side of a spear on his head. Rambharose, who was armed with an iron rod, assaulted him by it on his head and Dashru assaulted him on his back. When he fell down, Vijay assaulted him by a spear on his legs whereby he became unconscious. When he regained slight consciousness, he saw the accused persons moving around there. Nanhe Pasi of Sonthiya picked him up and took him to Sonthiya. Accused persons had threatened him that if he lodged the report, they would kill him. He lodged the report (Dehati Nalishi) (Ex.P-22) at Police Station Itarsi. On such report a case under section 341, 353, 332, 294 and 506 of the Indian Penal Code was registered. Mangleshwar Singh was sent for medical examination and treatment of Jan Sewa Rugnalaya, Itarsi(hospital) where Dr.S.S. Dedi, Assistant Surgeon (PW5) examined his injuries. In the medical examination he found 22 injuries on his body, of which injuries No.9, 10, 16 and 18 were incised injuries caused by hard and sharp weapon and other injuries were caused by hard and blunt object. Injury report is Ex.P-9. The X-ray examination of the injured was also performed by Technician Jagdish Rajput (PW7) whereupon Dr. Bedi opined that his radius bones of right and left hands and tibia bones of right and left legs were fractured. After further requisite investigation, the charge-sheet was filed before the Magistrate under Sections 341, 353, 333, 307, 506 and 294 of the Indian Penal Code. However, the learned Sessions Judge did not find the offence under Section 307 and 333 of the Indian Penal Code to be made out and remanded the case back to the Court of Magistrate for trial. The learned Magistrate framed the charges under Section 326 and 506 of the Indian Penal Code. However, the learned Sessions Judge did not find the offence under Section 307 and 333 of the Indian Penal Code to be made out and remanded the case back to the Court of Magistrate for trial. The learned Magistrate framed the charges under Section 326 and 506 of the Indian Penal Code. Accused persons abjured the guilt and pleaded false implication. 3. During trial, the prosecution examined 14 witnesses in support of the case out of whom PW1 Ramdayal, PW2 Sumanbai, PW8 Bhagwandas PW 12 Kalabai, PW13 Nathuram and PW14 Narayandas, besides PW11 Mangleshwar Singh himself were examined as eye witnesses. PW5 Dr. S.S. Bedi and PW7 Jagdish Rajput were examined as medical witnesses PW3 Imrat, PW4 Nanhelal, PW6 Preetamchand, PW9 O.P. Chourey and PW 10. Bhikha were examined as the witnesses of investigation. The Investigating Officer of the case was not examined. 4. The important feature of the case is that except the injured Mangleshwar Singh himself, no other alleged eye witness supported the prosecution case before the trial Court. Even the witnesses of seizure and arrest memos did not support the prosecution. 5. PWI Ramdayal, PW2 Sumanbai and PW12 Kalabai, who are alleged to have been traveling in the bullock cart, turned hostile. PW 1 Radayal deposed that accused Dashru (absconding) had assaulted Mangleshwar Singh by lathi. He had given only two blows. By the assault, the bullocks of his cart had got frightened and had started running. He had not seen any other person. Accused Vijay and Rambharose were not present at the scene of occurrence. PW2 Sumanbai and PW12 Kalabai did not say anything about the incident. Thus, there remained the solitary testimony of injured Mangleshwar Singh on record. Mangaleshwardeposed that while he was going back to Sonthiya Naka from the market of Itarsi, Vijay, Rambharose and Dashrath had stopped the bullock cart armed with rod, spear and lathi and had assaulted him. He had fallen down from the bullock cart and thereafter he had gone to Naka by boarding another bullock cart. O.P. Chourey, Dy. Ranger, had come, to whom he had narrated the incident and he had taken him to hospital, Itarsi. He deposed that Rambharose had assaulted by the rod on his head whereas Vijay inflicted injuries by lathi on legs and hands besides other parts of the body. He deposed that he had lodged the report (Ex.P-22). PW5 Dr. O.P. Chourey, Dy. Ranger, had come, to whom he had narrated the incident and he had taken him to hospital, Itarsi. He deposed that Rambharose had assaulted by the rod on his head whereas Vijay inflicted injuries by lathi on legs and hands besides other parts of the body. He deposed that he had lodged the report (Ex.P-22). PW5 Dr. S.S. Bedi, who examined injured Mangleshwar Singh at Jan Sewa Rugnalaya, found 22 injuries on his body which comprised of contusions, lacerations and also incised wounds. 6. Learned trial Court, while discussing the evidence of Mangleshwar Singh in. para 13 of its judgment, disbelieved him as solitary witness of the incident, as other eyewitnesses had not corroborated his evidence and had turned hostile. Learned trial Court held that though in the report (Ex.P-22) it has been mentioned that accused Vijay had assaulted the complainant by spear and Rambharose by iron rod but there was neither fracture on the head nor there was any incised injury, therefore, the evidence of complainant was inconsistent with the medical evidence. It was also held that Mangleshwar Singh did not make any statement about causing of injuries on his head, as such his evidence being inconsistent with the medical evidence was not reliable. In view of the above circumstances, the learned trial Judge acquitted the respondents. 7. Learned counsel for the petitioner submitted that though the other, eye witnesses did not support the prosecution case yet the evidence of solitary witness Mangleshwar Singh, who was injured witness, was wholly reliable. He submitted that the evidence of Mangleshwar Singh was fully corroborated by the medical evidence of PW5 Dr. S.S. Bedi, who had found multiple injuries all over his body. He submitted that the assailants were well known to injured and he had suffered about 22 injuries at their hands, there was no reason for falsely implicating the accused persons. Learned counsel submitted that even in the cross-examination of this witness nothing had come which could have rendered his testimony unreliable. The judgment of acquittal passed by the trial Court merely on the ground that the evidence of complainant was not supported by the other witnesses, who had turned hostile is clearly illegal and erroneous and has resulted in the miscarriage of justice and. therefore, deserved to be set aside. The judgment of acquittal passed by the trial Court merely on the ground that the evidence of complainant was not supported by the other witnesses, who had turned hostile is clearly illegal and erroneous and has resulted in the miscarriage of justice and. therefore, deserved to be set aside. Learned counsel submitted that the evidence of Mangleshwar Singh was corroborated by Dehati Nalishi (Ex.P-22) recorded by the Police and also by the evidence of Dr. S.S. Bedi., therefore, the judgment of acquittal passed by the trial Court deserves to be set aside and the case deserved to be remanded for retrial according to law. He placed reliance on the decision of the apex Court in Vimal Singh v. Khuman Singh and another [ AIR 1998 SC 3380 ] wherein it has been laid down: "6. The legal position as to the powers of the High Court in revision in the matter of interference with the order of acquittal is no longer res imegra, as the law in this regard is very well settled. Suffice it to refer in this regard 'a decision of this Court in K.Chinnaswwny Reddy v. State of Andhra Pradesh [ AIR 1962 SC 1788 ], wherein it was held thus (Para 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, thought the State may not have thought fit to appeal; but this jurisdiction should 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 section 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 a finding of acquittal into a finding of conviction. This places limitation on the power of the High Court to set aside the finding of acquittal in revision and it is only in exceptional cases that this power should be exercised...... This places limitation on the power of the High Court to set aside the finding of acquittal in revision and it is only in exceptional cases that this power should be exercised...... Where the appeal Court wrongly ruled out evidence which was admissible, the High Court would not be justified in interfering with the order of acquittal in revision, so that the evidence may be reappraised - after taking into account the evidence which was wrongly ruled out as inadmissible. But the High Court should confine itself only to the admissibility of the evidence and should not go further and appraise the evidence also." 7. 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. Subsection (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 he 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. 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-I and sentencing him to seven years' rigorous imprisonment after setting aside the order of acquittal." 8. In the light of the aforesaid principle of law for appreciating the contentions raised byt he learned counsel for the petitioner, we will have to reappreciate and reappraise the evidence adduced before the trial Court. The apex Court has observed that where the appeal Court wrongly rules out the evidence which was admissible, the High Court would not be justified in interfering with the order of acquittal in revision so that the evidence may be reappraised--after taking into account the evidence, which was wrongly rules out as inadmissible. The High Court should confine itself only to the admissibility of the evidence and should not go further and appraise the evidence also. 9. In Thankappan Nadar and others v. Gopala Krishnana [ (2002) 9 SCC 393 ] the apex Court re-enunciated the law related to the scope of revision by the private party against the judgment of acquittal and held: "6. In a revision application filed by the de facto complainant against the acquittal order, the Court's jurisdiction under section 397 read with section 401 CrPC is limited. The law on the subject is well settled. Instead of referring to various judgments, we would only refer to a few decision rendered by this Court. In a revision application filed by the de facto complainant against the acquittal order, the Court's jurisdiction under section 397 read with section 401 CrPC is limited. The law on the subject is well settled. Instead of referring to various judgments, we would only refer to a few decision rendered by this Court. In Akalu Ahir v. Ramdeo Ram this Court has observed thus: This Court, however, by way of illustration, indicating the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision: (i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused; (ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce; (iii) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible; (iv) Where the material evidence has been overlooked only (either) by the trial Court or by the appellate Court; and (v) Where the acquittal is based on the compounding of the offence which is invalid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal." The Court further observed: (SCC p.588, para 10) "10. No doubt, the appraisal of evidence by the trial Judge in the case in hand is not perfect or free from flaw and a Court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to reappraise the evidence for itself as if it is acting as a Court of appeal and then order a retrial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the manner of election to the office of village mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as' enunciated by this Court." [Emphasis added] , 10. In the present case it cannot be held that the trial Court had shut out the evidence or has wrongly held any evidence to be inadmissible or has overlooked any material evidence. But that can scarcely be a valid ground for ignoring or for not strictly following the law as' enunciated by this Court." [Emphasis added] , 10. In the present case it cannot be held that the trial Court had shut out the evidence or has wrongly held any evidence to be inadmissible or has overlooked any material evidence. On perusal of the judgment of the trial Court it is apparent that the evidence of all the witnesses including complianant Mangleshwar Singh has been appreciated by it. It has been observed by the apex Court that the appraisal of evidence by the trial Judge in the case may not be perfect or free from flaw and a Court of appeal might have felt justified in disagreeing in its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to reappraise the evidence for itself as if it is acting as a Court of appeal and then order of retrial. 11. In view of the aforesaid legal prepositions which are applicable the present case, though it is unfortunate that a serious offence should unpunished, yet it would not be a valid ground for ignoring or for not strictly following the law as enunciated by the apex Court, which does not empower this Court in exercise of revisional jurisdiction to reappreciate the evidence. 12. On due consideration of the facts and the material on record I do not find any procedural illegality or manifest error of law in the order passed by the trial Court, therefore, no interference can be made by reappreciating the prosecution evidence or taking a contrary view for setting aside the order of acquittal, as it is not permissible while exercising the revisional jurisdiction at the instance of de-facto complainant against the order of acquittal. 13. In the result, the revision is dismissed. ..................