Madhav Vithal Magar vs State Of Maha & Ors
2017 Latest Caselaw 3608 Bom

                                                                  152.04crrvn
                                      1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                     
                     BENCH AT AURANGABAD.

                       CRIMINAL REVISION APPLICATION 
                              NO.152 OF 2004.

                Madhav s/o Vithal Magar,
                Age 40 Years, Occu. Agriculture,
                r/o Baur, Taluka Kalamnuri,
                District Hingoli.                ... APPLICANT.
                                              ( Ori. Complainant )  

                         VERSUS

        1)      The State of Maharashtra,
                through Assistant Police Inspector,
                Akhada Balapur Police Station,
                Taluka Kalamnuri,
                District Hingoli.

        2)      Ashok s/o Vithalrao Kokare,
                age 35 years, occu. Agril.,
                r/o Baur, Taluka Kalamnuri,
                District Hingoli.

        3)      Dattarao s/o Vithalrao Kokare,
                age 51 years, occu. Agril.,
                r/o Baur, Taluka Kalamnuri,
                District Hingoli.

        4)      Madhavrao s/o Paroji Kokare,
                age 57 years, occu. Agril.,
                r/o Baur, Taluka Kalamnuri,
                District Hingoli.

        5)      Arvind s/o Madhavrao Kokare,
                age 24 years, occu. Agril.,
                r/o Baur, Taluka Kalamnuri,
                District Hingoli.




::: Uploaded on - 29/06/2017                ::: Downloaded on - 30/06/2017 00:43:28 :::
                                                                          152.04crrvn
                                           2

        6)      Ramakant s/o Vithalrao Kokare,
                age 40 years, occu. Agril.,
                r/o Baur, Taluka Kalamnuri,
                District Hingoli.

        7)      Vikas s/o Madhavrao Kokare,
                age 27 years, occu. Agril.,
                r/o Baur, Taluka Kalamnuri,
                District Hingoli.

        8)      Panjab s/o Vithalrao Kokare,
                age 31 years, occu. Agril.,
                r/o Baur, Taluka Kalamnuri,
                District Hingoli.           ... RESPONDENTS.
                                        ( Nos.2 to 8 - Orig. Accused 
                                                         Nos.1 to 7). 

                                    ...
        Mr.G.A. Kulkarni, Advocate h/f Mr.R.S. Deshmukh, 
        Advocate for petitioner.
        Mr.B.A. Shinde, Addl. P.P. For the respondent - State.
        Mr.N.B. Patekar, Advocate h/f Mr.P.R. Katneshwarkar, 
        Advocate for R.Nos.2 to 8.
                                    ...


                                               CORAM : V.L. ACHLIYA, J.

                                     Reserved on: 20th February, 2017.
                                      Pronounced on: 27th June, 2017.


        JUDGMENT: 

Being aggrieved by the judgment and order of acquittal

of accused passed by Additional Sessions Judge, Hingoli in

Special Case No.20 of 1998, the applicant - original

complainant preferred this revision application.

152.04crrvn

2. Madhav Vithal Magar - the complainant visited Police

Station Balapur, District Parbhani and lodged complaint to

the effect that on 8.1.1998 at about 8 p.m., Ashok Kokare

(accused No.1) was passing in-front of his house. At that

time, his brother Damodhar told his nephew Vikas that in

order to avoid theft of the bullocks, tie them on Ota. The

accused No.1 Ashok, who was passing in front of the house,

felt that Damodhar deliberately told Vikas to tie bullocks on

Ota to avoid theft. Accused No.1 Ashok asked the

complainant as to whether he is a thief and then abused them

in the name of their caste and also called his brothers

namely, Dattarao, Panjab and Ramakant. They came on the

spot with stick and axe and assaulted the complainant, his

brother and other persons with the help of sticks and axe.

The complainant received blow of axe on his forehead as well

as shoulder. After sustaining injury, complainant fell down.

The other accused assaulted Damodhar and other persons,

who too, sustained injuries by stick and axe. On the basis of

complaint lodged, offences punishable under Sections 147,

148, 149, 307, 504 of IPC and section 3(1)(x) of the

Scheduled Castes, Scheduled Tribes (Prevention of Atrocities)

Act, 1989 and section 7(1)(d) of the Protection of Civil Rights

152.04crrvn

Act, 1955 came to be registered vide CR No.0003/1998. On

conclusion of the investigation, charge-sheet was prepared

and filed in the Court of Additional Sessions Judge, Hingoli.

3. In order to bring home the guilt of the accused,

prosecution examined twelve witnesses. The accused have

not entered into defence. In nutshell, the accused have taken

defence of false implication at the instance of complainant

due to enmity between them. On conclusion of the trial,

learned Additional Sessions Judge has acquitted the accused

mainly for the reason that the evidence as adduced by the

prosecution, found to be not sufficient to prove guilt of the

accused beyond reasonable doubt. It is observed that there is

no cogent, convincing and reliable evidence to prove the guilt

of the accused beyond reasonable doubt. The witness

examined by prosecution found to be interested witness and

in absence of independent witnesses, unsafe to convict the

accused. The testimony of the injured witnesses also found to

be not consistent with the medical evidence. On due

appreciation of overall evidence, acquitted the accused. Being

aggrieved, the applicant - original complainant has preferred

this revision application seeking setting aside the impugned

152.04crrvn

judgment and order and to remand the case for fresh

decision.

5. I have heard the submissions advanced by the learned

Counsel for the applicant, the respondents - accused and the

learned APP for the State and further perused record and

proceedings of the trial Court.

6. In nutshell, it is contention of the learned Counsel for

the applicant that the impugned judgment and order passed

by the trial Court is perverse. Prosecution has adduced

cogent and convincing evidence to prove the guilt against the

accused, and the reasons and findings recorded by the trial

Court are perverse and unsustainable in law and resulted into

miscarriage of justice. It is the contention of the learned

Counsel for the applicant that there is total non application of

mind and misreading of the evidence on the part of the

learned Judge of the trial Court. By referring the evidence

adduced by the prosecution, the learned Counsel submitted

that the evidence, as adduced by the prosecution, has proved

the guilt of the accused beyond reasonable doubt.

152.04crrvn

7. On the other hand, learned Counsel for the respondents

- accused supported the judgment and order passed by the

trial Court and contended that there is no scope to interfere

with the judgment and order passed by trial Court in exercise

of revisional jurisdiction by this Court. The learned Counsel

submitted that the reasons and findings recorded by the trial

Court are based upon due appreciation of the evidence and

the view adopted by the trial Court is a possible view in the

matter. In exercise of revisional jurisdiction, the Court is not

expected to act as a Court of appeal to appreciate and re-

appreciate the entire evidence. In nutshell, he contended

that the judgment and order passed by the trial Court calls

for no interference in exercise of revisional jurisdiction. In

support of the submissions advanced, learned Counsel has

referred and relied upon the decision of the Apex Court in the

case of Bansi Lal and others vs. Laxman Singh 1 and

Jagannath Choudhary and others vs. Ramayan Sisngh

and another2.

8. In counter to the submissions advanced by the learned

Counsel for the respondents - accused, learned Counsel for

1 1986 CRI.L.J.1603;

2 (2002) 5 SCC 659;

152.04crrvn

the applicant placed reliance on the decision of the Apex

Court in case of Jodhan vs State of Madhya Pradesh3, K.

Chinnaswamy Reddy vs. State of A.P. and another 4,

Ayodhya Dube and others vs. Ram Sumer Singh5, and

Ram Briksh Singh and others vs. Ambika Yadav and

another6, with contention that the High Court, in exercise of

revisional jurisdiction, can examine the matter in depth if the

judgment and order passed by the trial Court is perverse and

resulted into miscarriage of justice.

9. I have thoroughly considered the rival submissions in

the light of decisions referred and relied upon by the learned

Counsel for the parties. In the case of Jagannath

Choudhary and others (supra), the Apex Court, after taking

survey of precedents of law laid down as to scope of exercise

of revisional jurisdiction by High Court against an order of

acquittal, observed in paras 9 and 10, as under:

"9. Incidentally the object of the revisional jurisdiction as envisaged under Section 401 was to confer upon superior criminal court a kind of paternal

3 (2015) 11 SCC 52;

        4    AIR 1962 SC 1788;
        5    AIR 1981 SC 1415;
        6    (2004) 7 SCC 665;





                                                                              152.04crrvn

or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some underserved hardship to individuals. (See in this context the decision of this Court Janata Dal v. H.S. Choudhary and Ors., [1992] 4 SCC 305). The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same has been an appeal, the applicant would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction.

10. While it is true and now well-settled in a long catena of cases that exercise of power under Section 401 cannot but be ascribed to be discretionary - this discretion, however, as is popularly informed has to be a judicious exercise of discretion and not an arbitrary one. Judicial discretion cannot but be a discretion which stands "informed by tradition, methodised by analogy and disciplined by system" - resultantly only in the event of a glaring defect in the procedural aspect or there being a manifest error on a point of law and thus a flagrant miscarriage of justice, exercise of revisional jurisdiction under this statute ought not to be called for. It is not to be lightly exercised but only in exceptional situations where the justice delivery system requires interference for correction of manifest illegality or prevention of a gross miscarriage of justice. In Nosibolla : Logendranath Jha and Chinnaswamy Reddy (supra) as also in Thakur Das (Thakur Das (Dead) by

152.04crrvn

Lrs. v. State of Madhya Pradesh and Anr., [1978] 1 SCC 27 this Court with utmost clarity and in no uncertain terms recorded the same. It is not an appellate forum wherein scrutiny of evidence is possible neither the revisional jurisdiction is open for being exercised simply by reason of the factum of another view being other wise possible. It is restrictive in its application though in the event of there being a failure of justice there can said to be no limitation as regards the applicability of the revisional power."

10. In the case of Bansi Lal and others (supra) the Apex

Court has observed that while dealing with an order of

acquittal passed by the trial Court, in exercise of revisional

jurisdiction, there is very little scope. Only in the case of

failure to follow fundamental principles of law by the trial

Court resulting into injustice, the High Court is expected to

set aside order of acquittal and direct retrial of acquitted

accused. It is further observed that such power should be

exercised sparingly and with great care and caution.

11. In the case of K.Chinnaswamy Reddy vs. State of

A.P. and another (supra), the Apex Court has considered the

scope of exercise of revisional powers by High Court as

against order of acquittal of accused in a proceeding filed at

the instance of private parties. In para 7 of the said

judgment, the Apex Court observed, thus:

152.04crrvn

"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, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion 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 a. 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 limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of a. 439 (4). We have therefore to see whether the order 'of the High Court setting aside the order of acquittal in this case can be upheld on these principles."

152.04crrvn

12. Similarly, in the case of Ram Briksh Singh and

others vs. Ambika Yadav and another (supra), on due

consideration of all the previous decisions of the Apex Court

on the issue, it has been observed in paras 3, 4, 5, 6 and 7,

as under:

"3. The principles on which revisional court can set aside a judgment and order of acquittal passed in favour of the accused are well settled by catena of judgments. The difficulty, however, arises at times about the application of the said principles. It is true that there is a statutory prohibition contained in sub- section (3) of Section 401 of Criminal Procedure Code from converting a finding of acquittal into one of conviction and what is prohibited cannot be done indirectly as well. The question, however, is has High Court indirectly done what is prohibited.

4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice.

5. More than half a century ago, in D.Stephens v. Nosibolla (1951 SCR 284 = AIR 1951 SC 196), this Court held that revisional jurisdiction when it is invoked against an order of acquittal by a private complainant is not to be lightly exercised, it could be exercised only in exceptional cases to correct a manifest illegality or to prevent a gross miscarriage of justice and not to be ordinarily used merely for the reason that the trial court has misappreciated the evidence on record.

152.04crrvn

6. In K.Chinnaswamy Reddy v. State of Andhra Pradesh & Anr. (1963 (3) SCR 412 = AIR 1962 SC 1788) a note of caution was appended so that the High Court does not convert a finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot directly convert a finding of acquittal into a finding of conviction in view of specific statutory prohibition. While noticing that it is not possible to lay down the criteria for determining exceptional cases which would cover all contingencies for exercise of revisional power, some cases by way illustration were mentioned wherein the High Court would be justified in interfering with the finding of acquittal in revision. The High Court would be justified to interfere where material evidence is overlooked by the trial court.

7. In a recent decision in Bindeshwari Prasad Singh v. State of Bihar [now Jharkhand] & Anr. ([2002] 6 SCC

650) noticing principles laid in Stephen's and Chinnaswamy Reddy it was held that the High Court was not justified in reappreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code since it was well settled that the order of acquittal cannot be interfered with in revision merely on the ground of errors in appreciation of evidence. Relying upon these decisions, Mr. Misra contends that the High Court while interfering with the judgment and order of the Court of Sessions has not kept in view the parameters of exercise of revisional jurisdiction."

13. In the light of the scope of exercise of revisional

jurisdiction by High Court against the order of acquittal in a

revision filed by a private party as laid down by the Apex

Court, I have considered the submissions advanced by

learned Counsel for parties as to merit of the case. As

152.04crrvn

discussed, the respondent Nos.2 to 8 were prosecuted for

offences punishable under Sections 147, 148, 149, 307, 504

of IPC and section 3(1)(x) of the Scheduled Castes, Scheduled

Tribes (Prevention of Atrocities) Act, 1989. In order to prove

its case, prosecution has examined twelve witnesses. The

learned Additional Sessions Judge, Hingoli has acquitted the

accused on due consideration of evidence adduced in the

case. The acquittal has been recorded mainly on the ground

that the prosecution has failed to prove its case beyond

reasonable doubt. While recording the findings, the trial

Court has observed that the witnesses examined by the

prosecution to bring home guilt of the accused are related to

each other and interested witnesses. On due appreciation of

the evidence and broad principles to be taken into account

while appreciating the evidence of such witnesses, the trial

Court has observed that it is unsafe to rely upon the

testimonies of interested witnesses without seeking

corroboration from independent witness. Upon considering

the testimonies of the witnesses examined by the prosecution,

the trial Court has found their evidence as not cogent,

consistent and reliable to base the conviction. It is further

noted that oral testimonies of the witnesses to the incident

152.04crrvn

and particularly, injured witnesses find no corroboration from

the medical evidence. Thus, the acquittal recorded by the

trial Court is based upon due appreciation of the evidence of

the witnesses examined by the prosecution.

14. The learned Counsel for the appellant strenuously

contended that the prosecution witness Madhav (P.W.1),

Kailas (P.W.3), Damodhar (P.W.5) and Vikas (P.W.6) had

sustained injuries in the incident and they were injured

witnesses. There was no reason for the trial Court to have

discarded their testimonies, only for the reason that they are

related to each other. He submits that it is quite settled

position in law that the evidence of related witness is very

much admissible in law and cannot be brushed aside merely

for the reason that they are interested persons. The only

precaution which needs to be taken while dealing with the

testimonies of such witnesses is that the Court should adopt

cautious approach and in an appropriate case, insist for

corroboration. He, therefore, submits that the reasons and

findings recorded by the trial Court are per se perverse,

unsustainable in law and resulted into serious miscarriage of

justice to the applicant and it is a fit case wherein the

152.04crrvn

revisional powers of this Court be exercised to prevent

miscarriage of justice being resulted to applicant. In this

context, learned Counsel has placed reliance on the decision

of the Apex Court in the case of Jodhan vs State of Madhya

Pradesh (supra) and invited attention to paras 15 and 29 of

the judgment which reads, thus:

"15. In Kallu v. State of M.P. (2006) 10 SCC 313:(2006) 3 SCC (Cri)546), it has been held that if the view taken by the trial court is a plausible view, the High Court will not be justified in reversing it merely because a different view is possible. Elaborating further It has been ruled that while deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt.

29. From the aforesaid summarization of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him is an inbuilt- guarantee of his presence at the place of occurrence. Thus perceived, we really do not find any substance in the submission of the learned counsel for the appellant

152.04crrvn

that the evidence of the injured witnesses have been appositely discarded being treated as untrustworthy by the learned trial Judge."

15. In my view, the decision referred and relied upon by

the learned Counsel for the applicant, has no bearing on the

facts of the case as the broad principles to be kept in mind

while exercising the revisional jurisdiction in such matter,

clearly spell out that the revisional court is not expected to

exercise its powers against the order of acquittal unless the

case of exceptional nature is made out. High Court in exercise

of revisional jurisdiction is not expected to sit in appeal as

that of appellate court to evaluate the evidence in minute

details and correct the findings of fact recorded by the court

below. In the instant case, the finding of acquittal has been

recorded on the basis of due appreciation of evidence on

record. The view taken by the trial Court is a possible view in

the matter. The reasons and findings recorded by trial Court

cannot be termed as perverse.

16. While dealing with the testimonies of material

witnesses, examined by the prosecution, which include the

injured witnesses, the trial Court has observed that though

they are interested witnesses, still their testimonies cannot be

152.04crrvn

outrightly rejected on that count. It is observed that evidence

of such witnesses requires close and cautious scrutiny. After

reiterating the broad principles to be borne in mind in

appreciating the testimonies of interested witnesses, the trial

Court has analyzed the evidence in depth and arrived to a

finding that it is unsafe to base the conviction on their

testimonies in absence of corroboration from independent

evidence. Thus, the view taken by the trial Court cannot be

termed as contrary to law. If two views are possible and the

trial Court has taken the possible view, then in exercise of

appellate jurisdiction, the appellate cosurt is not expected to

interfere with such findings of acquittal recorded by the trial

Court. By and large, it is quite settled position of law that the

order of acquittal cannot be interfered in revision unless there

are compelling and substantial reasons for doing so. It is no

where the case of the applicant that the trial Court has

ignored the evidence or misread the material evidence. In my

view, no case of exceptional nature has been made out to call

for exercise of revisional jurisdiction against the impugned

order of acquittal recorded by the trial Court, that too, in a

revision petition filed by the private party.

152.04crrvn

17. In view of above, revision application filed by the

applicant deserves to be rejected. Accordingly, revision

application is rejected. Rule discharged.

[ V.L. ACHLIYA, J ]

Kadam.