KALANDI CHARAN PANI Vs. GANESH DALAL

JUDGEMENT

(1.) This application for revision is by the informant praying for reversal of the acquittal of the present opposite party Nos. 1 to 5, who faced trial under Ss 147, 148, 302/149 of the Indian Penal Code (in short 'IPC) for allegedly committing murder of one Gauribandhu Pani.

(2.) The main plank of argument of the petitioner is that the trial Court erred in its conclusions in several materials aspects, and the conclusions arrived at were by overlooking material evidence, on misappreciation of evidence, and have resulted serious miscarriage of justice. The acquitted accused persons, however, maintain that this is not a case where an interference is warranted, considering the limited jurisdiction of this Court while considering an application for reversal of an order of acquittal. The learned counsel for the State while accepting that the State has not filed appeal against acquittal, supports the contention of the petitioner that the same is not proper.

(3.) The limitation to the exercise of revisional power while dealing with an application for reversal of the order of acquittal is provided in sub-section (3) of S. 401, Code of Criminal Procedure, 1973 (in short 'the Code'). The limitation is that on reversal of acquittal or discharge, further enquiry or retrial can only be directed. As observed by the Supreme Court in AIR 1973 Supreme Court 799 : (1973 Cri LJ 577) Amar Chand Agarwal v. Shanti Bose, the jurisdiction of the revisional powers is to be exercised in exceptional cases. It would be open for the Court to interfere, if it is established that the findings of fact arrived at by the Court are based either no evidence or on inadmissible evidence, or on a legally inadequate evidence, or when the findings are otherwise unjustified or perverse. It is open to the High Court to direct retrial if there is miscarriage of justice. Some of the following illustrative categories were indicated by the Supreme Court. (i) The trial court having no jurisdiction has acquitted the accused; (ii) it has wrongly shut out evidence of the prosecution; (iii) the appellate Court has wrongly held the evidence admitted by the trial Court as inadmissible; (iv) the material evidence has been overlooked either by the trial Court or the Court of appeal; or (v) the acquittal is based on a compounding of the offence invalid under the law. The indications were reiterated in AIR 1962 Supreme Court 1788 : (1963 (1) Cri LJ 8), K. Chinnaswamy Reddy v. State of Andhra Pradesh. It is 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 covert a finding of acquittal into a finding of conviction. The jurisdiction to direct retrial is somewhat similar to those contained in S.386. In AIR 1951 Supreme Court 196 : (1951 (52) Cri LJ 510) D. Stephens v. Nosibolla, it was observed that the revisional jurisdiction is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal. It could 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 K. Chinnaswamy Reddy's case (Supreme Court) (supra) it was observed that a re-trial may be permitted where material evidence has been overlooked either by the trial Court or by the appellate Court. The principle that emerges on conspectus of the consistent view of the apex Court is that the scope for interference is limited and has to be exercised in exceptional circumstances. But the Criminal Justice System does not admit of any "pigeon-holing". Life and the law do not fall neatly into slots. Categories, classifications and compartments, which statute does not mention, all tend to make law less flexible, less sensible and less just. As observed by the Supreme Court in Ayodhya Dube v. Ram Sumer Singh, AIR 1981 Supreme Court 1415 : (1981 Cri LJ 1016), where accepted canons have been thrown to wind, the probative value of the first information report has been ignored, individual testimony of the eye-witnesses has not been discussed, reliable testimony has been overlooked, material evidence has been left out of consideration and overlooked, interference is imperated. Where intrinsic and probative value of evidence has not been dealt with in its proper perspective and has either not been considered or has been brushed aside on surmises and conjectures, interference is called for. Where vital and crucial evidence is ignored there should be no hesitation for interference. Coming to the facts of the present case it is seen that the prosecution termed four witnesses to be eye-witnesses, viz., PWs 1 to 4. The evidence of these witnesses were discarded by the learned trial Judge on the ground that there was lack of necessary corroboration in respect of certain material particulars, like the alleged dying declaration. The evidence of PW 1 has been discarded on the ground that the so-called dying declaration before him is not acceptable as PWs 2 and 3 who were allegedly accompanying the deceased did not speak of the same. The evidence of PW 2 was discarded on the ground that he did not state before the Investigating Officer that he saw the actual assault. The learned counsel for the petitioner strenuously urged that the learned trial Judge overlooked the fact that this witness had categorically stated before the Investigating Officer that he had seen the accused persons running away immediately after the occurrence, when he had looked back on hearing the painful cry of the deceased. According to him, it was too much of a hair-splitting done by the learned trial Judge, and merely because the witness omitted to tell the Investigating Officer that he saw the actual assault, the essence of his statement really meant that and the cryptical disposition of his evidence on the alleged ground of non-mention of the factum of assault should not have weighed with the learned Sessions Judge, who has not bothered even to discuss the evidence of that material witness. Further the evidence of PW3 who was a material witness and who had described in a graphic manner the incident has not at all been discussed by the learned trial Judge thereby vitiating the judgment. On a perusal of the judgment, we find the same to be cryptic, and full of abrupt conclusions without discussion of the evidence in its material particulars. As has been rightly submitted by the learned counsel for the petitioner, the non-consideration of evidence of PW 3 materially affected the sustainability of the judgment. The evidence of PW 3 was not trivial in nature, and prima facie appears to be relevant. To what extent its non-consideration has weighed with the learned trial Judge in arriving at the conclusion cannot be fathomed. It is also relevant to mention here that the learned trial Judge has discarded the plea of dying declaration before the PW 1 additionally on the ground that the physical state of the deceased at the time he allegedly made the dying declaration, rendered any declaration physically impossible. He has referred to the evidence of the doctor PW 7 and the post-mortem report. He has drawn adverse inference because the prosecution has not brought out any material to show that in spite of the injuries sustained the deceased could make a statement. On consideration of the evidence, we find that the doctor has stated that the injuries were such that the death could have been instantaneous, or the deceased could have survived for half an hour. The injuries did not relate to part of the body which could prima facie render speaking improbable. The conclusion, therefore, is based on a surmise. The cumulative effect of all those makes the judgment impeachable and non requitur. In our view, there was miscarriage of justice, warranting our interference. We, therefore, set aside the order of acquittal passed in respect of opposite party Nos. 1 to 5 and direct for re-trial of the case by the learned trial Judge. He shall not record any fresh evidence, but shall decide the case taking into consideration the evidence on record after hearing the parties afresh. Any observation made by us shall not be construed to be expression of any opinion, since we are remitting the matter back for re-trial. The revision is allowed.