NARENDERA NATH KHAWARE Vs. PARASNATH KHAWARE

JUDGEMENT

(1.) The complainant Narendra Nath Khaware filed a Special Leave Petition in this Court under Article 136 of the Constitution of India seeking leave to appeal against the judgment dated 6th April, 1993 of the High Court of Judicature at Patna. Leave to appeal was granted by this Court vide order dated 4th August, 1994 and the matter was registered as Criminal Appeal No. 499 of 1994. The said appeal has come up for final hearing and disposal before this Court. At the time of hearing, the learned Counsel appearing for the respondents raised a preliminary objection about the maintainability of this appeal. In order to appreciate the objection, brief facts of the case are required to be stated. The respondents were charged for offences under Sections 148 and 302 read with Section 149, IPC. The incident for which these accused were charged is the murder of Diwakar Khaware, son of the complainant Narendra Nath Khaware (appellant) on 13th June, 1982. As per the case of the prosecution, the complainant along with his son Diwakar Khaware (deceased) was getting his maize field weeded through the help of a few labourers on the morning of 13th June, 1982. His real brother Parasnath Khaware came on the spot and forbade the complainant from doing so. The complainant insisted that he had right to carry on the work in the field which belonged to him. On this Parasnath Khaware, who was accompanied by his son accused Bishwanath Khaware and Shrinath Khaware abused the labourers and drove them away from the field. The complainant took strong objection to this but the accused party started abusing the complainant and his son and started pelting stones on them. The complainant and his son also threw stones on the opposite party in their defence. In the meantime, some villagers came and intervened in the fight. As a result of this, the accused persons went away. The complainant and his son Diwakar Khaware continued with the work in the field. After a few hours, that is about 10.00 a.m. few villagers informed the complainant that the accused persons were coming back armed with weapons. The complainant did not pay heed to this warning thinking that the accused persons were his close relations. Within a short time, all the seven accused persons reached the spot. Seeing them, the complainant and his son Diwakar Khaware ran for their safety and entered the nearby house of Ramdhani Jha. They hid themselves in a room by bolting the room from inside. However, as the main gate of the house had remained open, the accused persons rushed inside the house and broke open the door which had been bolted from inside. They entered the room where the complainant and his son Diwakar Khaware were hiding. Diwakar Khaware was dragged outside the room in the courtyard of the house where accused Bishwanath Khaware is said to have given a bhala blow on his stomach. As a result of the blow, Diwakar Khaware fell down. Accused Parasnath Khaware gave a pharsa blow on the head of Diwakar Khaware. The other accused persons also assaulted Diwakar with their weapons. The complainant tried to save his son but he was also assaulted by accused Saroj Jha and Srinath Khaware. While this was going on, the villagers accompanied by Ram Dhani Jha, Basant Kumar Jha, Surendra Jha and Sachidanand Jha came and intervened and seaved the victims from further assault. However, Diwakar Khaware died on the spot. Police came in the village at about 1.00 p.m. when statement of the complainant Narendra Nath Khaware was recorded. On the basis of the said statement, an FIR was recorded and the seven accused persons were charge-sheeted and tried for the aforesaid offences. The Sessions Court by its judgment dated 19th June, 1992 while giving benefit of doubt to the accused persons and finding fault with the investigation acquitted all the accused persons. The State of Bihar filed an appeal against the said judgment of the Sessions Court. The High Court dismissed the appeal in limine making the following observations :

(2.) Against the said judgment of the High Court, the complainant filed a Special Leave Petition in this Court. Leave was granted. Hence the present appeal. The appeal has been registered for final hearing.

(3.) Learned counsel for the respondents contends that only the State of Bihar had the right to file Special Leave Petition or an appeal in this Court. The State having failed to do so, an appeal at the instance of the complainant is not maintainable. The complainant had no right of appeal before the High Court. However, the complainant could have filed a Criminal Revision which he did not do and for this reason also the complainant had lost the right to file any appeal.