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CASE NO.:

Appeal (crl.) 808 of 2002

PETITIONER:

BINDESHWARI PRASAD SINGH @ B.P. SINGH AND OTHERS

Vs.

RESPONDENT:

STATE OF BIHAR (NOW JHARKHAND)

DATE OF JUDGMENT: 13/08/2002

BENCH:

M.B. SHAH & BISHESHWAR PRASAD SINGH.

JUDGMENT:

Bisheshwar Prasad Singh, J.

Special leave granted.

The appellants herein were tried by the learned Sessions

Judge, Dhanbad in Sessions Trial No. 193 of 1992 charged of the

offence under Sections 302 and 302/114 of the Indian Penal Code.

The learned Sessions Judge by judgment and order dated 21st

January, 1994 acquitted the appellants of the charges levelled

against them, finding that the prosecution had not proved its case

beyond reasonable doubt.

The appeal preferred by the State against the acquittal of the

appellants was dismissed by the High Court by its order dated

22nd November, 1994. No doubt the appeal was dismissed on the

ground of limitation.

A revision was preferred by the informant to the High Court

under Section 401 of the Code of Criminal Procedure which has

been allowed by the impugned judgment and order dated 6th June,

2001 in Criminal Revision No. 48 of 1994. The judgment of

acquittal was set aside and the case was remitted to the Sessions

Judge for re-trial in accordance with law.

From the evidence on record it appears that an occurrence

took place on 20th July, 1989 at about 4.00 p.m. The informant and

appellant No.1 entered into an altercation in connection with

removal of creepers which had climbed up to the balcony of the

informant. The informant as well as appellant 2 to 5 herein reside

in the same building. The altercation took an ugly turn and abuses

were exchanged between appellant No.1 and the informant. In the

meantime son of the informant, namely Kumud came down and

asked the appellants as to why they had not removed the creepers.

The case of the prosecution is that appellant No. 1 and other

appellants shouted and ordered assault on Kumud. In the assault

that followed, deceased Kumud was hit on the head with an iron

rod, as a result of which he sustained a serious injury. He was

taken to the Bokaro General Hospital, where he was declared dead.

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The matter was reported to the police. Thereafter the case

was investigated and the appellants were put up for trial before the

Sessions Judge, Dhanbad.

The prosecution relied upon the testimony of three eye

witnesses, namely PWs. 1, 3 and 4, who were the mother, sister

and father respectively of the deceased. The First Information

Report was lodged by PW.4, the father of the deceased. The

prosecution also relied upon the medical evidence on record, which

according to the prosecution, corroborated the evidence of the

witnesses. The learned Sessions Judge after a consideration of the

evidence on record, acquitted the appellants of the charges levelled

against them.

The State's appeal having been dismissed, a criminal

revision was filed by the informant, PW.4 under Section 401 of the

Code of Criminal Procedure before the High Court.

In the revision before the High Court it was sought to be

urged on behalf of the informant that there was no reason to

discard the testimony of PWs. 1, 3 & 4. The medical evidence on

record corroborated their testimony. Therefore, on the basis of the

evidence on record, it should have been held that the prosecution

had proved its case beyond reasonable doubt.

On the other hand it was high-lighted by the appellants that

the trial court had recorded its reasons for their acquittal. In the

First Information Report a clear allegation was made against

appellant No.1 of having assaulted Kumud (deceased) on his head

with an iron rod. However, other witnesses in the course of their

deposition attributed the assault on Kumud to appellant No.2,

Anuj. The informant also, in his deposition before the Court,

changed his version and in line with other witnesses deposed that it

was Anuj, appellant No.2 who gave the blow with an iron rod on

the head of the deceased resulting in his death. The medical

evidence on record discloses that there were two external injuries

only, the first being a lacerated wound over the middle part of the

left parietal area and the other being an abrasion on the back of the

right elbow.

A mere perusal of the judgment of the High Court would

disclose that the High Court re-appreciated the evidence on record

and came to the conclusion that the learned Sessions Judge was not

justified in recording the order of acquittal. The evidence of eye

witnesses was consistent and so far as the informant is concerned,

no doubt in the First Information Report he had attributed the fatal

injury to appellant No.1 but he later changed his version and

deposed that the injury was caused by appellant No. 2. The High

Court was impressed by the argument that the First Information

Report not being a substantive piece of evidence, at best the

evidence of the informant was not corroborated by the First

Information Report. The High Court further found that the

presence of eye witnesses was natural and the mere fact that they

were related was no ground to discard their testimony. Rejecting

the argument urged on behalf of the appellants that there was no

mention in the First Information Report about the presence of the

wife and the daughter of the informant as eye witnesses who

witnessed the occurrence from the balcony, the learned Judge

observed that it was not expected that every detail would be

mentioned in the First Information Report. On such reasoning, the

High Court set aside the order of acquittal and ordered re-trial of

the appellants.

We have carefully considered the material on record and we

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are satisfied that the High Court was not justified in re-appreciating

the evidence on record and coming to a different conclusion in a

revision preferred by the informant under Section 401 of the Code

of Criminal Procedure. Sub-section (3) of Section 401 in terms

provides that nothing in Section 401 shall be deemed to authorize a

High Court to convert a finding of acquittal into one of conviction.

The aforesaid sub-section, which places a limitation on the powers

of the revisional court, prohibiting it from converting a finding of

acquittal into one of conviction, is itself indicative of the nature

and extent of the revisional power conferred by Section 401 of the

Code of Criminal Procedure. If the High Court could not convert a

finding of acquittal into one of conviction directly, it could not do

so indirectly by the method of ordering a re-trial. It is well settled

by a catena of decisions of this Court that the High Court will

ordinarily not interfere in revision with an order of acquittal except

in exceptional cases where the interest of public justice requires

interference for the correction of a manifest illegality or the

prevention of gross miscarriage of justice. The High Court will

not be justified in interfering with an order of acquittal merely

because the trial court has taken a wrong view of the law or has

erred in appreciation of evidence. It is neither possible nor

advisable to make an exhaustive list of circumstances in which

exercise of revisional jurisdiction may be justified, but decisions of

this Court have laid down the parameters of exercise of revisional

jurisdiction by the High Court under Section 401 of the Code of

Criminal Procedure in an appeal against acquittal by a private

party. (See AIR 1951 SC 196 : D. Stephens vs. Nosibolla; AIR

1962 SC 1788 : K.C. Reddy vs. State of Andhra Pradesh; (1973) 2

SCC 583 : Akalu Ahir and others vs. Ramdeo Ram; AIR 1975 SC

1854 : Pakalapati Narayana Gajapathi Raju and others vs.

Bonapalli Peda Appadu and another and AIR 1968 SC 707 :

Mahendra Pratap Singh vs. Sarju Singh).

The instant case is not one where any such illegality was

committed by the trial court. In the absence of any legal infirmity

either in the procedure or in the conduct of the trial, there was no

justification for the High Court to interfere in exercise of its

revisional jurisdiction. It has repeatedly been held that the High

Court should not re-appreciate the evidence to reach a finding

different from the trial court. In the absence of manifest illegality

resulting in grave miscarriage of justice, exercise of revisional

jurisdiction in such cases is not warranted.

We are, therefore, satisfied that the High Court was not

justified in interfering with the order of acquittal in exercise of its

revisional jurisdiction at the instance of the informant. It may be

that the High Court on appreciation of the evidence on record may

reach a conclusion different from that of the trial court. But that by

itself is no justification for exercise of revisional jurisdiction under

Section 401 of the Code of Criminal Procedure against a judgment

of acquittal. We cannot say that the judgment of the trial Court in

the instant case was perverse. No defect of procedure has been

pointed out. There was also no improper acceptance or rejection of

evidence nor was there any defect of procedure or illegality in the

conduct of the trial vitiating the trial itself. At best the High Court

thought that the prosecution witnesses were reliable while the trial

court took the opposite view. This Court has repeatedly observed

that in exercise of revisional jurisdictional against an order of

acquittal at the instance of a private party, the Court exercises only

limited jurisdiction and should not constitute itself into an

appellate court which has a much wider jurisdiction to go into

questions of facts and law, and to convert an order of acquittal into

one of conviction. It cannot be lost sight of that when a re-trial is

ordered, the dice is heavily loaded against the accused, and that

itself must caution the Court exercising revisional jurisdiction.

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We, therefore, find no justification for the impugned order of the

High Court ordering re-trial of the appellants.

The High Court has noticed the fact that the State had

preferred an appeal against the acquittal of the appellants. That

appeal was dismissed by the High Court on the ground of

limitation. In principle that makes no difference, because the

dismissal of the appeal even on the ground of limitation is a

dismissal for all purposes. As observed earlier, the jurisdiction of

the High Court in dealing with an appeal against acquittal preferred

under Section 374 of the Code of Criminal Procedure is much

wider than the jurisdiction of revisional court exercising

jurisdiction under Section 401 of the Code of Criminal Procedure

against an order of acquittal at the instance of a private party. All

grounds that may be urged in support of the revision petition may

be urged in the appeal, but not vice versa. The dismissal of an

appeal preferred by the State against the order of acquittal puts a

seal of finality on the judgment of the trial court. In such a case it

may not be proper exercise of discretion to exercise revisional

jurisdiction under Section 401 of the Code of Criminal Procedure

against the order of acquittal at the instance of a private party.

Exercise of revisional jurisdiction in such a case may give rise to

an incongruous situation where an accused tried and acquitted of

an offence, and the order of acquittal upheld in appeal by its

dismissal, may have to face a second trial for the same offence of

which he was acquitted.

For these reasons we allow this appeal and set aside the

impugned judgment and order of the High Court.