Ramesh S/O Fattuji Dongardive vs Sahebrao S/O Govindrao Sonekar @ ...
2003 Latest Caselaw 554 Bom

JUDGMENT

S.T. Kharche, J.

1. This criminal revision takes an exception to the judgment and order of acquittal dated 17.7.2002 passed by the learned 3rd Adhoc Additional Sessions Judge in S.T. No. 169 of 2002, whereby he acquitted the respondent No. 1/accused of the offence punishable under Section 302 of the Indian Penal Code.

2. Heard Mr. Sonwane, learned Counsel, for the applicant, Mr. Bhalchandra, learned Counsel, for respondent No. 1 /accused and Mr. Mandpe, learned A.P.P., for respondent No. 2/State. Admit. Heard finally with the consent of the parties.

3. Facts, in brief, are as under :

The incident occurred on 3.12.2001 at about 8.00 p.m. Complainant Ramesh and deceased Sanjay are real brothers and their houses are situated opposite each other. Accused Sahebrao is their neighbour. It is contended that on 3.12.2002 at about 8.00 p.m. the complainant Ramesh was sleeping inside his house and at about 9.00 p.m. he heard bustle from the house of Sanjay. Therefore, he rushed towards the house of Sanjay and found that Sanjay had fallen down in his court-yard and respondent No. 1 /accused was assaulting him with knife. The scene was visible in the street light. The applicant tried to save Sanjay and at that time the accused assaulted the applicant by knife on his back above waist. The witnesses gathered on the spot. Sanjay was shifted to the hospital at Katol in an injured condition at about 10.45 p.m. where he succumbed to his injuries. Then an offence was registered at police station Katol. After completion of investigation charge-sheet was filed in the Court of J.M.F.C., who committed the case to the Court of Session being S.T. No. 169 of 2002. The learned Sessions Judge on appreciation of the evidence of eleven prosecution witnesses and after examining the direct as well as circumstantial evidence, acquitted the accused/respondent No. 1 of the offence punishable under Section 302 of the Indian Penal Code. This order is under challenge in this revision.

4. The learned Counsel for the applicant contended that the prosecution had examined as many as ten witnesses. Ramesh (P.W. 1) and Raju (P.W. 6) were the eye witnesses to the incident. He contended that the evidence of these witnesses is corroborated in material particulars by the medical evidence. He contended that even the report of chemical analyser indicate that human blood was detected on the clothes of respondent No. 1/accused. He further contended that the learned Sessions Judge has committed an error in recording the finding of acquittal against the accused and, therefore, he has invoked the jurisdiction of this Court under Section 401 of the Code of Criminal Procedure for quashing and setting aside the impugned judgment and order of acquittal with a prayer to convict the respondent No. 1/accused for the offence punishable under Section 302 of the Indian Penal Code.

5. The learned Counsel for respondent No. 1/accused supports the judgment of the learned Trial Court and contends that the evidence of Ramesh (P.W. 1) and Raju (P.W. 6) has been appreciated in proper perspective and there is no reliable evidence to come to the conclusion that the accused has committed an offence punishable under Section 302 of the Indian Penal Code. He contended that the defence put forth was also probable and, in the circumstances, the Criminal Revision Application may kindly be rejected.

6. I have carefully considered the contentions canvassed by the learned Counsel for both the parties. The learned Trial Judge observed that the evidence adduced by the prosecution was full of inconsistency and no reliance could be placed on it. The evidence of Ramesh (P.W. 1) was found to be uncorroborated and the evidence of Raju (P.W. 6) was found to be unreliable. It was disclosed in the cross-examination of both these witnesses that in the afternoon, a quarrel between the deceased and other five to six persons took place and that they had assaulted the deceased Sanjay which appears to be probable. The learned Trial Judge, under the circumstances, had come to the conclusion that the entire prosecution evidence was improbable and unnatural and, therefore, could not be accepted and hence acquitted the respondent No. 1/accused of the charge levelled against him by giving him benefit of doubt.

7. No doubt, it would further reveal from the medical evidence that deceased Sanjay died as a result of homicidal death, but the complicity of the accused in the commission of murder of Sanjay has not been established beyond all reasonable doubt and the defence put forth appears to be probable.

8. Mr. Mandpe, learned A.P.P., submitted that the State is not intending to file any Appeal against the acquittal of the accused for the offence punishable under Section 302 of the Indian Penal Code.

9. In exercise of revisional jurisdiction under Section 401 of the Code I of Criminal Procedure against an order of acquittal at the instance of an informant, the Court exercises only a limited jurisdiction and it should not constitute itself into an Appellate Court which has a much wider jurisdiction to go into the question of facts and Jaw and to convert an order of acquittal into one of conviction. It is settled law that in exercise of revisional jurisdiction against an order of acquittal at the instance of a private party, the Court exercises only a limited jurisdiction and the instant case is not the one where any 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 is no justification for this Court to interfere in exercise of its revisional jurisdiction. This Court cannot reappreciate 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 the case like the one in hand, Is not warranted.

10. However, as per Sub-section (3) of Section 401 of the Code of Criminal Procedure, the High Court is not empowered to reverse the finding of acquittal into conviction and, therefore, the contention of the learned Counsel for the applicant/complainant for setting aside the order of acquittal and convicting the respondent No. 1/accused for the offence punishable under Section 302 of the Indian Penal Code is devoid of any merit. In the circumstances, this revision is dismissed.