Delhi High Court

State vs Bakshish Singh & Anr on 21 November, 2012

Author: S. P. Garg

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 10th September, 2012
                               DECIDED ON : 21st November, 2012

+      CRL.A. 89/2012

       STATE                                        ..... Appellant
                          Through: Mr.Sanjay Lao, APP for the State.

                    Versus

       BAKSHISH SINGH & ANR.                 ..... Respondents
                    Through: Mr.Mukesh Kalia with Mr.Varun
                             Jamwal, Advocates.

        CORAM:
        MR. JUSTICE SANJIV KHANNA
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. State has preferred the present appeal against the judgment

dated 15.12.2010 of learned Additional Sessions Judge in Sessions Case

No.22/3/09 by which the respondents Bakshish Singh @ Manny and

Sandeep Singh @ Sunny were acquitted of the charge under Section 302

IPC and convicted for the offence punishable under Section 304 Part II

read with Section 34 of the IPC. In brief, the prosecution case is as

under:-

2. On 11.06.2009 a meeting took place at the shop of

Bhupinder Singh (PW-4) at Mangolpuri in which deceased, PW-24A

(Deepak Marwah), the respondents and 3 or 4 other persons participated

to resolve money dispute between the deceased and his brother Deepak

Marwah, on one side and the respondents on the other side. The dispute

could not be resolved in the said meeting. On the same day

i.e.11.06.2009, Daily Diary (DD) No.3A was recorded at 12:30 night at

Police Station Vikas Puri on getting information from PCR that a person

injured in an accident at J Block, Vikas Puri, Paschim Vihar was admitted

at Balaji hospital. The investigation was assigned to ASI Prem Singh who

with Constable Surender reached the hospital and collected the MLC of

Rahul Marwah (since deceased). He was unfit to make statement. No eye

witness was available at the hospital. ASI Prem Singh reached the spot at

J-86, Vikas Puri and was informed by the neighbours that the family

members of the injured had taken him to the hospital. He made

endorsement over DD No.3A and sent the rukka for lodging First

Information Report under Section 279/337 IPC at 10:25 A.M. on

12.06.2009. At the spot, the Investigating Officer met PW-3 (Smt.Manju

Puri) and made inquiries from her. No eye witness was available at the

spot also. On 25.06.2009 Rahul Marwah succumbed to the injuries in the

hospital. Inquest proceedings were conducted. Body was sent for post-

mortem examination to DDU hospital. The Investigating Officer recorded

statements of Deepak Marwah and his mother-Joginder Kaur . It revealed

that Rahul Marwah was intentionally hit with vehicle No. HR51U7925

made Hundai Accent, by the respondents. Section 304 IPC was added and

the investigation was taken over by Inspector Arunender Singh on

30.06.2009. During investigation PW-24B (Mohan Singh Utpal) and PW-

14 (Surjit Singh) claimed that they had witnessed the incident. Their

statements under Section 161 Cr.P.C. were recorded. They informed the

police that both the respondents had deliberately hit Rahul Marwah with

their car at about 05:00 P.M. when he was coming from park while talking

on mobile. The respondents reversed the car and struck against Rahul

Marwah with an intention to kill him.

3. On 06.07.2009 the respondents were arrested at about 07:00

P.M. The car No.HR51U7925 was seized by seizure memo (Ex.PW-1/A).

The respondents were interrogated and their disclosure statements were

recorded. During further investigation, the exhibits were sent to Forensic

Science Laboratory and the reports were collected. The Investigating

Officer recorded statements of the witnesses conversant with facts and

after completion of the investigation, a charge-sheet was submitted against

the respondents for committing offences punishable under Section 120B

IPC, 302 read with Section 120B/34 IPC. The respondents were duly

charged and brought to trial. The prosecution examined 25 witnesses to

prove the charge. The respondents in their statements under Section 313

Cr.P.C. denied the allegations and pleaded false implication. After

appreciating the evidence and documents on record and considering the

rival contentions of the parties, the Trial Court by the impugned judgment

convicted the respondents under Section 304 Part II/34 IPC and sentenced

them to undergo imprisonment for the period already undergone by them

since 6th July, 2009 and to pay a fine of `3,00,000/- each. The total fine

amount of `6,00,000/- was payable as compensation to the mother of the

deceased Rahul Marwah.

4. Learned Additional Public Prosecutor while assailing the

impugned judgment urged that the Trial Court did not appreciate the

evidence in its proper and true perspective and fell into grave error in

concluding that the respondents had no intention to kill Rahul Marwah

and acted with the knowledge that the injury would likely to cause death.

The Trial Court, contended the counsel, did not appreciate that the

respondent-Bakshish had reversed the car and hit Rahul Marwah on the

exhortation of respondent-Sandeep when he (Rahul Marwah) attempted to

get up after being hit with the car, The respondents fled the spot after

causing vital injuries. They had motive to cause injuries as in the meeting

the money dispute could not be resolved.

5. Learned counsel for the respondents controverted the

arguments and contended that there was no reliable, cogent and consistent

evidence before the Trial Court even to convict the respondents under

Section 304 Part II IPC. The Trial Court did not consider the vital

discrepancies, contradictions and improvements emerging in the

testimonies of prosecution witnesses. The respondents were falsely

implicated by the family members of the deceased as they were insisting

to return the money borrowed by the deceased. The respondents were not

named at the first instance. PW-24B (Mohan Singh Utpal) and PW-14

(Surjit Singh) were not present at the spot at the time of occurrence. Their

statements were recorded under Section 161 Cr.P.C after a considerable

delay. He urged to acquit the respondents for their conviction under

Section 304 Part-II IPC.

6. We have considered the submissions of the parties and have

examined the Trial Court record. At the outset, it may be mentioned that

the respondents did not prefer appeal challenging their conviction under

Section 304 Part II IPC. State has preferred the appeal against the

impugned judgment for acquitting them of the charge under Section 302

IPC. We have heard the parties on merits including the question whether

the respondents could challenge their conviction under Section 304 Part II

IPC in an appeal preferred by the State for their acquittal under Section

302 IPC. Learned Additional Public Prosecutor vehemently argued that

since the respondents did not challenge their conviction and it was an

appeal preferred by the State against acquittal under Section 302 IPC, the

conviction under Section 304 IPC recorded by the Trial Court on merits

cannot be challenged.

7. Admittedly, the deceased and the respondents were first

cousins. There were money transactions between them. PW-24A

(Deepak Marwah), the deceased's brother, admitted that he had borrowed

`1,50,000/- from the respondents. The respondents claimed that a sum of

`3,00,000/- was lent to Deepak and Rahul in December, 2008. Deepak

had issued a post dated cheque No.095472 dated 12.05.2009 drawn on

UTI Bank Limited for `3,00,000/-. PW-24A (Deepak Marwah) and his

mother Joginder Kaur (PW-15) claimed that they had returned the

borrowed amount to the respondents which was denied by them. It is not

in controversy that on 11.06.2009 between 3:00 to 4:00 P.M. a meeting

was organised at Bhupinder Singh (PW-4)'s shop at Mayapuri in which

deceased, PW-24A (Deepak Marwah), the respondents, three/four other

persons participated. Nothing material emerged in the meeting and it

ended in fiasco within few minutes.

8. The police machinery came into motion when Daily Diary

(DD) No.3A dated 12.06.2009 was recorded at 12.30 A.M. (night) at

Police Station Vikas Puri on getting information that an accident had

taken place near J-Block, Vikas Puri, and the injured was admitted at

Balaji Hospital, Paschim Vihar. In the rukka, (Ex.PW-21/A) it was

mentioned that no eye-witness was available in the hospital. There was

no indication with which vehicle the accident had taken place. When the

Investigating Officer reached the place of accident and made inquires, no

eye-witness came forward to report the incident. Another DD No.4/A

(Ex.13/A) dated 12.06.2009 was recorded at Police Station Vikas Puri at

02.50 A.M. night on getting information from PCR that a boy injured in a

quarrel was admitted in ICU in Balaji Hospital. From the contents of

both the DD entries, it transpires that the police was not aware as to who

had caused the accident and what was the number of the offending

vehicle. No eye-witness was available to narrate the occurrence. No

family member of the victim reported the incident to the police. PW-3

(Smt.Manju Puri) R/o J-80, Vikaspuri, Delhi informed the mother and

brother of the victim about the accident. She deposed that on 11.06.2009

from some children she came to know that Rahul had fallen on the road in

an accident with a car. She accompanied Rahul's mother to the spot.

Rahul was taken to the hospital by them. She did not see who else

accompanied the injured. In the cross-examination she revealed that her

statement was recorded after two-three days. Admittedly, PW-3 ( Manju

Puri) was not a witness to the occurrence. She had informed the family

members of the victim about the incident. She did not indicate the vehicle

with which the incident had taken place. She did not claim if any other

person/family member of the victim was present at the spot when Rahul

was shifted to hospital by his brother and mother.

9. The prosecution did not examine any witness from U.K.

Nursing home and Chanan Devi hospital where the injured Rahul was first

taken to ascertain as to who had brought the victim there and at what time.

It was also not ascertained if any alleged history was recorded there. As

per MLC (Ex.PW-10A) at Balaji hospital prepared by PW-10 (Dr.Pareejet

Saurabh), Rahul Marwah was brought at 06:45 P.M. by his brother

Deepak Marwah on 11.06.2009. In the alleged history it was described a

road traffic accident 'RTA'. The patient was unfit to make statement.

There is no mention if mother of the patient had accompanied Deepak to

the hospital or any other family member or relation of the victim was with

them at that time. PW-21(SI Prem Singh), initial IO proved endorsement

(Ex.PW-21/A) and deposed that he met Mrs.Manju Puri near the house of

the injured and prepared site plan (Ex.PW-21/B) at her instance. He did

not find any eye witness. On 25.06.2009, an information was received

about Rahul Marwah's death. The investigation was transferred on

30.06.2009 to Insp. Arunender Singh (PW-25). PW-21 admitted that

nobody had told him about the manner of the incident and he did not find

any eye-witness at the spot till 25.06.2009. He further admitted that he

did not visit the hospital from 12.06.2009 to 23.06.2009 and did not

interrogate the mother and brother of the victim. He recorded Deepak

Marwah's statement on 25.06.2009.

10. The prosecution placed reliance on PW-24B (Mohan Singh

Utpal)'s testimony, an alleged eye witness. He deposed that on

11.06.2009 at about 5:30 P.M. while going to the house of his uncle

Pawan at Vikas Puri when he was at a distance of about 50 yards from the

spot, he saw an Accent Car of golden metallic colour there. It suddenly

picked up speed and struck against Rahul who was coming out from the

car while talking on mobile. Rahul fell down on his right side. The driver

of the vehicle looked behind, reversed the car and again dashed against

Rahul, who was dragged to some distance. Thereafter, the vehicle sped

away at a fast speed. He further testified there were two Sikh gentlemen

in the car. He then went to Rahul's house to inform his family members.

From a servant, he came to know that they had already left for the spot.

When he returned to the spot, the family members had already taken

Rahul to hospital in a vehicle. In the cross-examination by APP after

court's permission, he admitted that the vehicle had run over Rahul on his

thighs. In the cross-examination, he was confronted with his statement

(Ex.PW-24/DA) where some facts deposed in the court did not find

mention. He denied the suggestion that he did not visit Delhi till

17.07.2009 and was not a witness to the occurrence.

11. Testimony of PW-24B does not inspire confidence at all. His

conduct is quite unreasonable and unnatural. He is an alleged chance

witness who had seen the occurrence in which Rahul was deliberately and

repeatedly hit by the driver with a co-passenger in the car. As per PW-24B

Rahul had suffered extensive and serious injuries. He did not produce any

documentary evidence to show his visit or stay in Delhi on 09/10.06.2009.

There was no specific purpose to visit Rahul's house on 11.06.2009.

Neither did he report the incident to the police nor did he accompany with

the injured to the hospital. He did not raise alarm to apprehend the

culprits. He did not visit the injured in the hospital. He conveniently

went to Amritsar and from there to Mumbai. He did not inquire about the

well-being of the injured from his family members. He allegedly visited

Delhi again on 18.06.2009 but did not lodge any complaint with the police

and retuned Mumbai on 20.06.2009. On 25.06.2009 he was informed

about Rahul's death. Again he did not visit the family to console them.

Gulshan, his friend, purportedly asked him to come to Delhi as he had

seen the incident. It took him more than twenty days to visit Delhi on

17.07.2009 to record statement under Section 161 Cr.P.C. The inordinate

delay in recording the statement of this crucial witness makes his presence

at the spot highly suspicious and doubtful. There was no reason for him

to remain mum for so long and not to report the incident to the police or

the family members of the victim. He made improvements and testified

facts which were not mentioned in the statement under Section 161

Cr.P.C. (Ex.PW-24/DA). There was no occasion to suddenly visit Delhi

on 17.07.2009 and to go directly to the police station alone to record

statement. His testimony is in conflict with medical evidence. In the

cross-examination, he elaborated that the vehicle ran over the thigh and

private parts of Rahul and he was dragged upto a distance of two meters.

However, in the post-mortem report, only head injury was depicted. The

autopsy doctor categorically ruled out run over injury. Presence of this

witness at the spot was not spoken to by any other witness. PW-3 (Manju

Puri) who was the first person to inform the family, did not depose his

presence. PW-14 (Surjit Singh) who claimed herself to be an eye-witness

did not corroborate him. The respondents were not known to the witness

prior to the incident. He was not asked to participate in the Test

Identification Proceedings. Identification of this respondent in the Court

for the first time makes his presence doubtful. PW-24A (Deepak Marwah)

and PW15 (Joginder Kaur) did not claim that they had seen PW-24B at

the spot. The prosecution did not examine Anoop to corroborate PW21's

version to have gone to inform the family members about the incident.

12. PW-14 (Surjit Singh) is the deceased's brother-in-law (Jeeja).

He claimed that on 11.06.2009, he saw a golden coloured Accent vehicle

hitting Rahul Marwah when he was returning to his house from the park.

After hitting Rahul Marwah, the vehicle went ahead. When Rahul

attempted to get up, Sandeep's exhortation, respondent-Bakshish hit

Rahul again and sped away. In the cross-examination by APP with court's

permission, he admitted that respondent No.1 started the car all of a

sudden and struck Rahul at a very fast speed. In the cross-examination,

he disclosed that he was facing trial in a case vide FIR No.809/1999 under

Sections 365/323/341/34 IPC Police Station Vikas Puri. On 11.06.2009

he went to his in-laws' house to collect money from his mother-in-law.

The injured was taken in Wagon R to the hospital along with Deepak, his

mother and one more person besides him. He denied the suggestion that

he was not present at the spot on 11.06.2009 at 5:30 P.M. He explained

that on 12.06.2009 he left Delhi for business purpose to Madhya Pradesh

and remained out of Delhi till 24.06.2009. He was informed on phone

about Rahul's death by his brother-in-law.

13. On critical analysis of the statement, we find PW-14's

presence at the spot highly doubtful. Post-event conduct of the witness is

abnormal, unnatural and contrary to accepted human behaviour.

Admittedly, he did not report the incident and the vehicle number with

which the victim was hit to the police. He did not name the culprits soon

after the incident. His name does not find mention in the MLC (Ex.PW-

10A) to infer that he had accompanied the victim to the hospital. He did

not visit the respondents to make inquiries about the incident.

Conveniently, he allegedly left to Madya Pradesh on 12.06.2009 for some

business purpose and remained out of Delhi till 24.06.2009. Even during

his presence in Madhya Pradesh, he did not report the incident to the

police or family members of Rahul on phone. No evidence was produced

to substantiate his visit and stay in Madya Pradesh for about twelve days.

He did not divulge the place where he stayed during this period. His

presence was not spoken to by PW-24B (Mohan Singh Utpal) known to

him. The telephone call record (Ex.PW-20/A&B) falsifies his presence at

that location that day. His statement was recorded for the first time on

07.05/2010, after a considerable unexplained delay. His claim is

contradictory to the version of PW-21 (Prem Singh) who recorded that no

eye-witness was available at the hospital or the spot till the sending of

rukka on 12.06.2009 at 10:25 A.M. In fact, the police was not aware

about the identity of the culprits and was groping in dark considering it a

case of Road Traffic Accident (RTA) till the death of the victim. The case

registered was only under Section 279/337 IPC. Neither PW-14 (Surjit

Singh) nor PW-24B (Mohan Singh Utpal) came forward to claim

themselves eye-witnesses prior to the victim's death. There is nothing on

record to infer or suggest that the police visited the house of the

respondents to apprehend them prior to the victim's death.

14. PW-24A (Deepak Marwah) suspected the respondents to be

the persons who killed his brother. He did not depose that his brother-in-

law Surjit had witnessed the incident and had identified the respondents to

be the culprits.

15. PW-24A (Deepak Marwah) after getting information from

PW-3 (Manju Puri) reached the spot with his mother and took Rahul to

hospital. Police officials reached Balaji hospital after they made call at

number 100 after 10:00 P.M. They did not disclose that PW-14 (Surjit

Singh) had witnessed the occurrence and had accompanied them to the

hospital. He did not claim that PW-24 B (Mohan Singh Utpal) was a

witness to the occurrence. In the cross-examination, he admitted that

Mohan Singh Utpal was known to him personally and used to visit them

regularly. He expressed inability to tell if he had met him in between

11.06.2009 to 25.06.2009. He did not remember that his brother-in-law

Surjit was in Delhi in between 12.06.2009 to 25.06.2009. Apparently, the

witness is concealing material facts. It is not expected that he would not

be aware about the whereabouts of his brother-in-law Surjit Singh for

about 12 days when his close relation was on death bed.

16. PW-15 (Joginder Kaur) deceased's mother was not a witness

to the incident. She made improvements in her deposition. She did not

reveal that PW-14 (Surjit Singh) had given graphic detail of the incident

to her or that she had told the names of the culprits and the number of the

vehicle with which Rahul was hit. She is not categorical that in her

statement recorded on 11.06.2009 she had given the number of the

offending vehicle to ASI Prem Singh. She stated that she did not know till

date as to why her son was killed. She was not certain that PW-14 (Surjit

Singh) was in Delhi after 11.06.2009. She was also not aware if PW-24B

(Mohan Singh Utpal) met her after the incident.

17. From the testimonies of PW-24 A (Deepak Marwah) and

PW-15 (Joginder Kaur), it is crystal clear that PW-14 (Surjit Singh) and

PW-24 B (Mohan Singh Utpal) did not disclose them that the incident

was witnessed by them. Had they seen the incident and recognized the

culprits and the offending vehicle on the day of occurrence, they would

have set the police machinery in motion that day itself. Their silence

without any plausible reason for long, casts serious doubts about their

presence at the spot. Their belated statements recorded under Section 161

Cr.P.C. without plausible explanation rule out their presence. Both PW-14

and PW-24 B did not contact the family members and the police after

11.06.2009 and allegedly left for their respective jobs/business. No efforts

were made to intercept the offending vehicle or the culprits.

18. No independent public witness was joined/associated. The

police was not aware about the vehicle number with which the accident

took place. The police did not examine any witness present in the park

from where the victim was coming on foot while talking on his mobile.

No such mobile or its call details were brought on record to find out the

location of the victim to ascertain with whom he was conversing. There is

inconsistent version whether the victim was coming from the park or from

the car. PW-3 (Manju Puri) had testified that some children were saying

that the accident was caused by some car. However, none noted down the

number of the car.

19. Admittedly, there was money dispute between the parties

and to resolve it, a meeting took place at the shop of PW-4 (Bhupinder

Singh). PW-4 turned hostile and denied the contents of statement mark

'X'. He has no ulterior motive to resile from his statement under Section

161 Cr.P.C. as he was equally related to the deceased, his real nephew

(bhanja). He did not depose that threat was extended by the accused after

the meeting at about 03.00 P.M. The money dispute was pending since

long. At no stage prior to 11.06.2009 the accused ever threatened. They

did not cause any harm to PW-24 A (Deepak Marwah) or the deceased.

No complaint was ever lodged against them about their hostile conduct or

behavior. Rather a meeting was convened to resolve the dispute in the

presence of family members and close relatives. After the meeting the

victim went to park from his residence. When he was returning from the

park at about 05.30 P.M. the occurrence took place. It is not on record that

the accused persons had chased the victim. It was not in their anticipation

that the victim would go to park and return at 05.30 P.M. to intentionally

cause accident with their vehicle. It was improbable for PW-14 (Surjit

Singh) to hear the alleged conversation between the accused to reverse the

vehicle to hit the deceased. Possibility of the victim to have met with an

accident (hit and run case) with a vehicle while talking on mobile phone

cannot be ruled out.

20. Medical evidence is inconsistent with ocular version. As per

the post-mortem report examination (Ex.PW-17/A), there were multiple

graced abrasions over the left leg, left knee, left elbow and left ankle.

There was massive sub scalpular contusions; linear fracture on the frontal

bone extending towards the parietal bone and fracture on the supraorbital

ridge. The cause of death was coma due to head injury subsequent to the

road traffic accident. It ruled out that the victim was run over by the

vehicle. It did not offer any comment that the victim was hit by the

offending vehicle intentionally.

21. Mechanical inspection of Vehicle HR51U7925 recovered

from the possession of the respondents was conducted on 22.07.2009 by

PW-23 (ASI Devender Kumar) at the request of PW-25 (Insp.Aruender

Singh). In the report (Ex.PW23/A), no fresh damage or mechanical/paint

work was detected on the vehicle. There was no damage/dent on the front

and rear bumper/body. The vehicle was fit for road test. PW-23 AI

Devander Kumar's testimony remained unchallenged.

22. CFSL report dated 20.01.2010 was placed on record by the

Investigating Officer Insp. Arunender Singh on 10.02.2010. It appears

that the said report has not been proved. It reveals that Ex.1 (a) (black

coloured pant in cut/torn condition with marks/indentation on the front

portion); Ex.1(b) (blue coloured full sleeved check shirt make 'JACK &

JONES' in cut/torn condition) and Ex.1( c) (white coloured underwear

make 'SUKHAD') were sent for examination. On microscopic

examination of the Ex.1(a) it was opined that the marks/indentation stated

to be imprints were not clearly visible. Hence, it could not be compared

with the specimen tyre impression taken at the time of inspection of the

car on 10.08.2009. No impression/marks could be detected on the

exhibits marked 1(b) and 1(c ). Apparently, the report did not favour the

prosecution.

23. On 14th July, 2009 an Investigating Officer Arunender Singh

sought opinion from PW-17 (Dr.Komal Singh) autopsy doctor. The car

No.HR51U7925 was shown to him in the mortuary on 08.07.2009. The

doctor in the report (Ex.PW-17/A) opined that injury No.1 could be

caused by impact of front bumper of the car. Injury No.2 could be caused

by the rear/ back bumper in standing position of the victim. The expert,

however, was unable to comment by observing the tyre marks of the car

that car No.HR51U7925, Hundai Accent, had hit the victim on

11.06.2009. The expert ruled out run over injury by the vehicle. He was

also of the view it was not possible to comment whether injuries sustained

on the body of the victim were caused by hitting the vehicle intentionally.

In his opinion, the imprint found on the pant did not exactly resemble with

the imprint/impression of the tyre.

24. Since the meeting had ended in fiasco and the parties could

not resolve their dispute, it appears that the respondents were suspected as

perpetrators as Rahul suffered injuries soon thereafter, at 05.30 P.M.

There was no eye witness to establish beyond reasonable doubt that the

accident was caused by the accused with their vehicle. Circumstantial

evidence is completely incomplete and no inference can be drawn from

the evidence on record that the respondents and none else were the authors

of the injuries.

25. The respondents have been convicted under Section 304 Part-

II IPC, and sentenced to imprisonment for the period already undergone,

with fine of `3,00,000/- each (total of `6,00,000/-) which is to be paid, as

compensation, to the mother of the deceased Rahul. It is brought to our

notice that the period of incarceration, undergone by the appellants, is

about 18 months. The sentence of imprisonment awarded seems to be

incongruous and not acceptable, in view of the factual findings recorded

by the Trial Court, on the involvement and the acts attributed to the

respondents. This compels us, therefore, to examine the merits of the

conviction under Section 304 Part-II IPC.

26. We are of the considered view that this Court has ample

jurisdiction in its revisional powers under Section 401 Cr.P.C. to examine

the correctness of the findings of the Trial Court while assessing the guilt

of the respondents. In 'State of Orissa vs. Mathuri Mallik and Anr.' 1979

Crl.L.J.508, the Division Bench of the Orissa High Court was confronted

with similar problem where the respondents jointly tried for offences

under Sections 302/34 and 454 IPC, were convicted under Section 304

Part-II read with 34 IPC. The State preferred appeal against the order of

acquittal on the ground that the Trial Court erred in not convicting the

respondents under Section 302/34 IPC. There was no appeal by the

respondents/ accused against their conviction under Section 304 Part-II

read with Section 34 IPC. It observed :

"6. We are of the opinion that the respondents are not entitled to challenge their conviction under Section 304/34 I. P. C. inasmuch as they have not preferred any appeal against the same. This is an appeal under Clause (a) of Section 386 Cr.P.C. (new) which provides for cases of appeal from orders of acquittal and therein the appellate court may reverse such order of acquittal and direct any one of the following: (1) a further enquiry, (2) a re-trial, (3) a committal for trial, or (4) finding him guilty and passing a sentence on him. It is only the order of acquittal which is the subject-matter of this appeal and not the order of conviction. In the case of State of Andhra Pradesh v. Thadi Narayana the accused was charged under Sections 302 and 392, I. P. C. The Court of Session acquitted him of those charges and convicted him only of an offence under Section 411, I. P. Code. The accused appealed to the High Court against the conviction and sentence, but the State Government did not appeal against the acquittal of the accused under Sections 302 and 392, I. P. Code. The High Court set aside the conviction and sentence under Section 411, I. P, C. and remanded the case to the Court of Session for re-trial of the accused on the charges under Sections 302 and 392, I. P. C. Their Lordships while construing the provisions of Section 423 of the old Cr.P.C. (corresponding to Section 386 of the new Cr.P.C.) observed as follows (at p. 211 of Cri LJ):

In a case where several offences are charged against an accused person the trial is no doubt one; but where the accused person is acquitted of some offences and convicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the Appellate Court. If an appeal is preferred against an order of acquittal by the State and no appeal is filed by the convicted person against his conviction it is only the order of acquittal which fails to be considered by the Appellate Court and not the order of conviction. Similarly, if an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction that falls to be considered by the Appellate Court and not the order of acquittal.

The decision referred to above was followed in the case of Lakhan Mahto v. State of Bihar : 1966CriLJ1349 . In view of the aforesaid observations of the Supreme Court it cannot now

be urged that in an appeal against acquittal preferred by the State, respondents are entitled to challenge their conviction when they have not preferred any appeal against the same. Since they have not availed themselves of the right of appeal, a revision at their instance would be barred, as provided by Sub- section (4) of Section 401, Cr.P.C. It is, however, open to the High Court to act suo motu to prevent a miscarriage of justice. Omission of a convict to prefer an appeal does not debar the High Court from interfering with the conviction suo motu in exercise of its revisional powers. The High Court while assessing the guilt or otherwise of the accused can examine the correctness or otherwise of all the findings of the trial Court. As a Court of Revision the High Court may exercise all the powers vested in an appellate Court under Section 386, Cr.P.C. subject to the restrictions imposed by Sub-sections (2) and (3) of Section 401. That means that the accused should have been given an opportunity of being heard and that the High Court may not convert a finding oi acquittal into one of conviction. The re-visional powers of the High Court vested in it by Section 401, Cr.P.C. do not, however, create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence, and that the subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code, in this connection the decisions reported in : 1959CriLJ256 (Pranab Kumar Mitra v. State of West Bengal) and (Shailabala Devi v. Emperor) may be seen."

27. In 'State of Gujarat vs. Rohit and Anr.' 1985 Crl.L.J.556, in

similar circumstance, it was held that while hearing an appeal filed by the

State against acquittal, High Court can exercise its revisional powers and

acquitt the accused convicted under Section 304 (part-I) IPC despite not

challenging his conviction and sentence. Discussing the law, the Court

was of the view that the revisional power under Section 401 (1) of the

Code of Criminal Procedure can be exercised by a Court of appeal and

there was no difficulty to set aside the conviction, if ultimately the Court

came to the conclusion that the conviction even for offence of culpable

homicide was not justifiable and the accused had not filed any appeal

before it against his conviction.

"5. So far as the decision of the Madras High Court, Emperor v. Panchaksharam 1938 (39) Cri LJ 871 (supra) is concerned, it appears that the accused-appellant in that case was acquitted of the offence punishable Under Section 304 I.P.C. but was convicted Under Section 335 I.P.C. and the State filed an appeal against the said acquittal. The Madras High Court in that case held that in an appeal against the acquittal, the accused is entitled to ask the court to consider all the evidence before it and all the possible grounds which may be raised against the conviction. The Madras High Court held that where an accused is acquitted Under Section 304 but convicted Under Section 335 and the crown appeals against the acquittal Under Section 304, the accused is entitled to argue on the facts of the case to show that he has not committed an offence Under Section 304 I.P.C. and although the acceptance of those arguments may not automatically set aside the conviction Under Section 335 I.P.C. yet if the Court were satisfied that no offence was committed, it would undoubtedly exercise suo motu its powers Under Section 439(1) Criminal P.C. and set aside the conviction.

6. The Nagpur High Court in State Govt., Madhya Pradesh v. Sheodayal Gurudayal 1956 Cri LJ 83 (supra) also took the same view following the decision of the Madras High Court, which we have discussed above. The Nagpur High Court held that if there was an appeal by the Crown against acquittal of a major offence, the conviction for the minor offence can he set aside by the High Court even though no appeal may have been filed by the accused against the conviction for the said minor offence. The Nagpur High Court held that in an appeal by the Crown against his major offence, the High Court has power Under Section 439(1) to acquit the accused where the facts found are incompatible with his guilt even for the minor

offence. The Nagpur High Court held that the powers of the High Court under Sub-section (1) of Section 439 are not trammelled by Sub-section (5) which only negatives the right of the accused to come up in revision when he could have preferred an appeal.

7. So far as the decision of the Rajasthan High Court in the case of The State v. Babulal and Bherumal (supra) is concerned, the same view has been taken. The Rajasthan High Court observed at para 11 as follows:

"Though therefore we must satisfy ourselves that on the facts the conviction is correct, the accused have no right to address us on the correctness of the conviction on the facts for one of them did not take the opportunity to appeal, and the other, though he did appeal, later did not press that appeal and allowed it to be dismissed. This aspect of the matter has to be borne in mind in view of the peculiar circumstances of this appeal by the State."

28. We have examined the evidence to ascertain if the

respondents were authors of the injuries sustained by the deceased and

were liable for conviction under Section 302 or 304 IPC. We do not find

cogent, reliable and clinching evidence against the respondents to

pronounce them guilty for the injuries sustained by the deceased. The

Trial Court did not appreciate the evidence in its true and proper

perspective. As discussed above, the conviction under Section 304 part-II

IPC was not justifiable. Section 397 of the Code of Criminal Procedure

empowers High Court to call for and examine the record of any

proceedings before any inferior criminal Court situated within its

jurisdiction for the purpose of satisfying itself as to the correctness,

legality or propriety of any finding, sentence or order, recorded or passed

and as to the regularity of any proceedings of such inferior Court. Section

401 (1) of the Court says that, in the case of any proceedings, the record

of which has been called for by itself or which otherwise comes to its

knowledge, the High Court may, in its discretion, exercise any of the

powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391

of the Code of Criminal Procedure. We are aware/ conscious that suo

moto revision jurisdiction is to be exercised with extreme care and

caution. In the present case, we are of the view that interest of justice

demands such an interference. The record and proceedings of Sessions

Case No.22/3/09 are before us in this appeal preferred by the State against

acquittal. Hence we exercise our revisional power under Section 401 (1)

of the Code of Criminal Procedure and set aside conviction of the

respondents under Section 304 part-II IPC. The appeal preferred by the

State against acquittal under Section 302 IPC has no merits and is

dismissed.