Ramesh Narayanrao Dewar vs State Of Maharashtra, Through ...
2003 Latest Caselaw 376 Bom

JUDGMENT

R.K. Batta, J.

1. The applicant had filed a complaint against the respondent No. 2 under Section 435 of the Indian Penal Code for having set fire to the thorny compound wall of the applicant. Respondent No. 2 was convicted by the learned Chief Judicial Magistrate, Akola for offence under Section 435 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three months and to pay fine of Rs. 5,000/-, in default, to suffer further rigorous imprisonment for six months. Respondent No. 2 had filed appeal before the Court of Sessions and the learned 2nd Additional Sessions Judge, Akola vide judgment dated 6th December, 1997, allowed the appeal and set aside the conviction and sentence imposed on respondent No. 2. This is how the applicant who was original complaint, has come to this Court in revision against the said order of the Additional Sessions Judge, Akola.

2. Learned Advocate for the applicant urged before me that a well considered judgment of the Trial Court in which various aspects involved had been examined and finding given thereon has been set at naught by the learned Additional Sessions Judge on the basis of surmises and assumptions. He pointed out that the Trial Court had rejected the plea of alibi put up by respondent No. 2 since not only the plea of alibi was not established by any cogent evidence, but the said plea of alibi was not put up to the eye witnesses. According to him, the Trial Court had carefully scrutinised the defence evidence on alibi and for valid and sound reasons, found that the said plea of alibi did not inspire any confidence, but. the learned Additional Sessions Judge has not only not given finding on the plea of alibi, but has even dealt, with the plea of alibi on the basis of surmises and assumptions. He, therefore, submits that the order of the Additional Sessions Judge is required to be set aside and the matter be remanded for appreciation afresh in the light of the settled principles of assessment of evidence.

3. Learned A.P.P., appearing on behalf of the respondent No. 1-State fully supports the view of the learned Advocate for the applicant.

4. Learned Advocate for the respondent No. 2 urged before me that the learned Additional Sessions Judge found that there was delay of four hours in lodging the report; that the evidence of eye witnesses (P.Ws. 1 and 2) suffered from material discrepancy and that their evidence was not intrinsically believable. Learned Advocate for respondent No. 2 urged that the revision is liable to be dismissed.

5. Learned Advocate for respondent No. 2 has placed reliance on M. Mahendra Pratap Singh v. Sarju Singh and Anr. . Akalu Ahir and Ors. v. Ramdeo Ram . Pakalapati Narayana Gajapath Raju and Ors. v. Bonipalli Peda Appadu and Anr. . T.N. Dhakkal v. James Basnett and Anr. . Thankappan Nadar and Ors. v. Gopala Krishnan and Anr. , and Bindeshwari Prasad Singh @ B.P. Singh and Ors. v. State of Bihar and Anr. .

6. The principles on which revisional jurisdiction has to be exercised, in a case of acquittal, at the instance of private complainant are now well settled. In Akalu Ahir and Ors. v. Ramdeo Ram (supra), following earlier judgment principles were reiterated and by way of illustration, the Apex Court has indicated categories of cases in which the High Court would be justified in interfering in finding of acquittal in revision, which read as under :-

(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.

It is further pointed therein that the above categories are merely illustrative and it was clarified that other cases of similar nature can be also be property held to be of exceptional nature where the High Court can Justifiably interfere with the order of acquittal.

7. The Apex Court in Pakalpati Narayana and Ors. v. Bonipalli Peda Appadu and Anr. (supra) has also pointed that the revisional Jurisdiction, when invoked by a private complainant against an order of acquittal, ought not to be exercised lightly and that it can be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice. In T. N. Dhakkal v. James Basnett and Anr. (supra) it has been pointed out by the Apex Court that exercise of revisional jurisdiction would depend upon facts and circumstances of each particular case. In Thankappan Nadar and Ors. v. Gopala Krishnan and Anr. (supra), the Apex Court has reiterated law laid down in Akalu Ahir and Ors. v. Ramdeo Ram (supra).

8. One of the important grounds on which revisional jurisdiction in such matters can be exercised is, where the material evidence has been overlooked either by the Trial Court or by the Appellate Court.

9. The prosecution case was that the incident of setting fire was seen by P.W. 1 Shankar and P.W. 2 Kisan who arc independent eye witnesses and the plea taken by the respondent No. 2 was alibi. His case was that at the relevant time, he was on duty at Umri Naka, Akola till 8.00 p.m. The said incident is reported to have taken place at 8.00 p.m. and village Sukoda where the incident is alleged to have taken place, is 7-8 kms. away from Umri Naka. The defence evidence of D.Ws. 1 to 4 was closely scrutinised in details by the Trial Court and the plea of alibi was rejected.

10. The Appellate Court, however, contrary to detailed discussion by the learned Magistrate on plea of alibi, has wrongly concluded that the Magistrate has not undertaken the exercise of considering the defence plea of alibi. The Appellate Court proceeded to appreciate the evidence on the premise that a Police Officer on duty from 14 to 20 hours cannot be expected to leave his duty so early before 7 p.m. nor can it appear probable that the appellant, viz. respondent No. 2 in revision was at the spot of incident.

11. There has been no proper discussion by the Appellate Court on the plea of alibi put forward by the respondent No. 2. Besides this, the judgment of the Appellate Court proceeds on the basis of surmises and assumptions inasmuch as it is stated that it is inherently improbable that, the accused would commit such mischief in the presence of two witnesses particularly when he was knowing about the consequences which will follow due to disclosure of his identity. Learned Additional Sessions Judge further proceeds on the ground that it is also highly improbable that the accused would commit such mischief only for a small reason of insignificant nature i.e. picking of thorn near his knee. The appreciation of evidence by the learned Additional Sessions Judge is not in accordance with well-settled principle of assessment of evidence.

12. In view of the above, I am of the opinion that the judgment and order passed by the 2nd Additional Sessions Judge, Akola has to be set aside and the matter is required to be remanded to the learned Additional Sessions Judge, Akola for assessing the evidence on the basis of well-settled principles of assessment of evidence.

13. The revision is accordingly allowed and the matter is remanded to the learned Additional Sessions Judge for fresh disposal in accordance with law, after hearing learned A.P.P., as also the respondent No. 2. Any observations made in this order shall not in any manner influence the learned Additional Sessions Judge who shall take independent decision on merits of the matter. Revision is allowed in aforesaid terms. Respondent No. 2 shall appear before the learned Additional Sessions Judge, Akola on 21.4.2003 at 11.00 a.m.