Shanker Lal Sharma vs Lachhman and Others

R.K. Shukla, J.—Shanker Lal a private complainant filed this revision against the judgment and order of acquittal dated 15-1-1979 passed by III Add. Sessions Judge, Mathura whereby he has acquitted Lachhman, Chandrapal and Rishi Kumar accused Respondents, of all the charges levelled against them in a double murder case.

All the three accused persons were charged for the offence punishable u/s 302 IPC read with Section 34 IPC for committing the murders of Sheo Charan and Makhan of their own village Iroli Junardar, P.S. Surir, district Mathura on 9-1-1978 at 3 P.M. on the chabutra of one Manohar Lal of the same village. Rishi Kumar accused was further charged for the offence punishable u/s 302 IPC for committing murders of the two aforesaid persons. Lachhman accused was charged for the offence punishable u/s 302 IPC read with Section 109 IPC for bringing his gun on the roof from which it is alleged that the deceased were shot dead. A written report (Ex. Ka-1) is said to have been lodged at 5.30 P.M. on the same day i.e. 9-1-1978. The matter was investigated by Sultan Singh S.O. PW 10. Post-mortem examinations on the bodies of both the deceased were conducted by Dr. M.K. Rawat, PW 5 on 10-1-78 at 4.30 and 5 P.M. The doctor found 7 gun shot wounds on the body of Sheo Charan, 2 multiple and 3 gun shout wounds on the body of Makhan Lal, deceased. Ten witnesses were produced on behalf of the prosecution in support of its case out of whom Shankar Lal PW 1, Babu Lal PW 2, Vidhya Ram PW 3 and Dhan Pal PW 4 are the eye witnesses of the occurrence. The remaining witnesses arc Chhotey Lal PW 6, Damodar-Lekhpal PW 7, Ninnoni Singh constable clerk PW 8 and Om Prakash Saraswat PW 9. Rest of the witnesses are aforesaid investigating officer and doctor. Mr. Om Prakash Saraswat, CW 1 was summoned as Court witness.

The accused persons denied the prosecution story and stated that the daughter of Babu Lal (PW 2) Km. Surmai was close to the accused Chandra Pal and thus Babu Lal had grudge with the accused, who are real brothers. According to them, their late father Bhoodar Mal carried money lending business and Shankar Lal PW 1 was on had terms with their father. There was litigation between the parties. According to accused Rishi Kumar, he had moved an application (Ex. Kha-5) against Dhanpal son of Sheo Charan, Sheo Charan, Ram Swaroop and others under Rule 115 U.P. Zamindari Abolition and Land Reforms Act for cancellation of their pettas, which was unlawfully obtained by them from the Pradhan Gram Samaj. They aiso filed a copy of application (Ex. Kha-6) moved by Charan Lal. They did not examine any witness in defence. Rishi Kumar took the plea of alibi but he did not examine any witness. The suggestion of the accused persons is that the deceased were murdered at some different place in the dark hours of the evening by some unknown persons but the accused persons have been implicated falsely in this case as they are the rich families of the village and some villagers bear grudge with them. They further stated that the FIR of this case was prepared with the help of Police Officer next day in the morning.

After considering the evidence on the record the learned Sessions Judge acquitted all the three accused of the charges levelled against them on the following grounds:

In normal course, none of the alleged motive were so serious or heavy to the mind of the accused persons as to commit murder.

The deposition of Damodar Lehkpal PW 7 contradicts the prosecution case substantially and makes it doubtful if these murders took place at 3 p.m.

The medical evidence falsifies the prosecution case regarding the manner in which Sheo Charan deceased was hit.

The Inquiry Officer did not find any Tikli or pellets on the walls and pillars of the verandah and on the chabutra of Shankar Lal or on the Chabutra and chhappar of the house of Manohar Lal. He also did not find any physical marks of the hit of pellets on the pillars of the walls of the houses. Therefore, place of occurrence is very doubtful.

There is variation from the case disclosed in the FIR where Shankar Lal stated that Lachhman brought his double barrel licensed gun and gave it in the hands of Chandra Pal. Later on he stated that he mentioned the above fact in the FIR simply on assumption. He made this assumption as the licence of the gun was in the name of Lachhman and that is why he involved Lachhman in the murder in FIR. This false assertion in the FIR lends enough strength to the suggestion of the accused that complainant Shanker Lal against whom their father made certain complaints in writing and who bore grudge with family of the accused persons happened to implicate all the 3 brothers falsely on the charge of murder.

Deposition of Babu Lal PW 2 shows that there was no gun firing at Shankar Lal and Dinesh. Thus substantial preliminary part of the prosecution case that the accused persons fired the gun at Shankar Lal and Dinesh seems untrue.

The prosecution witnesses cannot be safely relied upon to warrant the conviction of the accused Rishi Kumar.

The Inquiry Officer reached the place of occurrence promptly but did not find any trail of blood between the distance where Makhan was shot at and where he fell dead. This also makes it doubtful if Makhan was shot at on the Chabutra of Manohar Lal.

Truthfulness of the FIR is much doubted. FIR cannot be safely accepted as a piece of corrborative evidence. Special report of this case was sent from Police Station next day at 6.30 p.m. the copy of the FIR was sent to the Area Magistrate next day on 10-1-78. Further the next report was lodged at the Police Station next day at 4.35 p.m. Thus there is no check in the police records to dray a positive inference that the FIR of this case was necessarily taken down at 5.30 p.m. at the Police Station.

Witnesses of facts examined by the prosecution and medical evidence in themselves make the prosecution case doubtful as regards time, place and number of accused persons involved and the manner the gun was brought by particular accused and was handed over to the other accused to shot at.

Ex. Ka-10 coupled with the deposition of Om Prakash Saraswat, CW 1 shows that licenced gun of the family of the accused persons was already deposited a day earlier on 8-1-78 at the gun house Agra. Thus the mention in written FIR that the accused Lachhman brought the licenced gun and gave it to Chandra Pal to put fire is also incorrect.

No Government appeal has been filed on behalf of the State. Complainant Shankar Lal filed this revision against all the above 3 accused persons in the High Court but the same has been admitted only against Rishi Kumar opposite party No. 3. The revision has been dismissed against Lachhman and Chandrapal at the admission stage itself.

Mr. D.N. Wali, learned Counsel for the complainant revisionist urged that the learned Sessions Judge has treated Babulal PW 2 as an independent witness and has relied on his testimony to this extent that there was no gun firing at Shankar Lal and Dinesh but he has overlooked and ignored the testimony of same Babu Lal regarding two gun firings by Rishi Kumar which caused deaths of Sheo Charan and Makhan Lal Mr. Wali further contended that the case should be remanded for rehearing after setting aside the judgment and acquittal order passed in favour of Rishi Kumar.

On the other hand Mr. Keshav Sahai, learned Counsel for the accused Respondents vehemently urged that neither the testimony of Babu Lal PW 2 has been ignored nor overlooked by the trial court. According to Mr. Sahai, after disbelieving the time, place and manners of marpeet on cogent reasons, the learned Sessions Judge has rejected the evidence of all the eye witnesses including that of Babu Lal PW 2. He also argued that Babu Lal is not an independent witness and accused Rishi Kumar cannot be convicted on his testimony. On the question of retrial or rehearing relying on Ayodhya Dube and Others Vs. Ram Sumer Singh, he vehemently contended that in a case like this where acquittal order has already been passed by the Sessions Jadge, if the case is remanded then only retrial can be ordered. But that will create several difficulties because two accused who were charged with Rishi Kumar u/s 302/34, have already been acquitted and revision against them has also been dismissed.

8 The narrow question for consideration in this revision filed by a private party is whether in exercise of its revisional powers u/s 401 Code of Criminal Procedure, the High Court should order retrial of Rishi Kumar accused Respondent? The extent of jurisdiction of the High Court in the matter of interfering in revision filed by a private party against an order of acquittal against which the Government has right of appeal u/s 417 (old) corresponding to Section 378 (new) Code of Criminal Procedure has been now very well settled by various decisions of the Supreme Court and High Courts. Relying on its two previous decisions viz. D. Stephens Vs. Nosibolla, and Logdendra Nath Jha v. Sri Polai Lal Biwas AIR 1951 SC 318 in the case of K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, the Supreme Court has laid down as under:

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 Section 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 a 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 over looked 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 Section 439(4).

Section 401 of the New Code of Criminal Procedure corresponds to Section 439 of the old Code. Section 401 is enacted to incorporate recommendations made by 41st Law Commission Report. In Sub-section (1), the words ''or which has been reported for orders'' as well as ''and may enhance the sentence'' are omitted. And the words ''of session'' are inserted after ''court''. In Sub-section (2), the words ''or other persons'' have been inserted after ''the accused''. Old Sub-section (3) and (6) of Section 397 are omitted. Sub-section (4) of the old Section 439 is renumbered as Sub-section (3) with the omission of the words ''applies to an entry made u/s 273''. Sub-section (5) of the old Section 439 becomes new Sub-section (4) and Sub-section (5) is newly added to the present Section 401.

Even after the aforesaid changes, position of law regarding the extent of jurisdiction of the High Court in the matter of interfering in revision filed by private party against the order of acquittal remains the same.

In Ayodhya Dubey''s case (supra), the Supreme Court has pleased to explain its above observations as under:

We may add that the High Court also expressed the view that the instances mentioned by this Court in Chinnaswamy v. State of Andhra Pradesh as justifying interference with orders of acquittal in the exercise of revisional powers were illustrative and not exhaustive. We agree with the view expressed by the High Court and we only wish to say that the Criminal Justice System does not admit ''Pigeon holding''. Life and law do not fall neatly into slots. When a Court starts laying down rules enumberated (1), (2), (3), (4) or (a), (b), (c), (d), it is arranging for itself traps and pitfalls. Categories, classifications and compartments, which statute does not mention, ail tend to make law less flexible, less sensible and less just.

Section 401(1) of the new Code which corresponds to Section 439(1) of the old Code of Criminal Procedure provides that in exercise of revisional jurisdiction, the High Court may exercise any of powers conferred on a Court of appeal. This provision is made expressly subject to Sub-section (3) of Section 401 under which nothing contained in the Section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. Section 439 of the old Code corresponding to Section 401 of the new Code has been interpreted in several decisions of the Supreme Court which has taken the view 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 interest of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice-See Satyendra Nath Dutta and Another Vs. Ram Narain, ; Akalu Ahir and Others Vs. Ramdeo Ram, and Chaganti Kotaiah and Others Vs. Gogineni Venkateshwara Rao and Another, It is clear from these decisions that the revisional jurisdiction cannot be invokved merely because the lower Court has not appreciated the evidence properly.

The only ground vehemently urged by the learned Counsel for the complainant-revisionist for ordering retrial of Rishi Kumar-accused is that the Sessions Judge has wholly ignored and overlooked the evidence of Babu Lal PW 2. This is factually incorrect. After setting out the salient features of the evidence of all the eye witnesses including that of Babu Lal in paragraph 59 of his judgment, the Sessions Judge has again exclusively given the gist of evidence of Babu Lal and utilized his evidence in paragraph 80 to this effect that there was no gun firing at Shanker Lal and Dinesh. In paragraph 82, he has analysed and discussed the evidence of eye witnesses Shanker Lal PW 1, Vidhya Ram PW 3 and Dhan Pal PW 4 and has disbelieved the very genesis of the prosecution story and part of the basic structure of story in paragraph 84. Thereafter, disbelieving the correctness of time, place and manner of marpeet in various paragraphs, he has discarded the rest of the evidence of Babu Lal in paragraph 95 as under:

As discussed earlier I find that the witnesses of facts examined by the prosecution and medical evidence in themselves make the prosecution case doubtfult as regards time, place and number of accused persons involved and the manner the gun was brought by particular accused and was handed over to the other accused to shot at.

In paragraph 97, on the basis of Ex. Ka-10 coupled with the deposition of Om Prakash Saraswat CW 1, he has held as under:

...licensed gun of the family of the accused persons was already deposited a day earlier on 8-1-78 at the gun house Agra. Thus the mention in written FIR that the accused Lachhman brought the licensed gun, and gave it to Chandra Pal to put fire is also not correct.

There is no doubt that the Sessions Judge has not individually rejected the evidence of Babu Lal PW 2 but he has rejected the evidence of all the eye witnesses including that of Babu Lal in paragraph 95 as mentioned above. After disbelieving time, place and mannar of marpeet as well as time of lodging FIR as mentioned above, he has disbelieved the prosecution version. So far as the time of occurrence is concerned, he appears to be influenced by the evidence of Damodar Lekhpal PW 7 who has clearly stated in his cross examination that:

...Karib 4 1/2 baje sham ko main lroli Junardar se karwara vapas chal diya. Main jab paimise ke hai us samai Sheo charan putra Khubi Ram, Makhan putra Chetpal wahin mauke per chorkar chala gaya. Jabtak main gaon se gaya hon tabtak mujhe koi banduk ki awaj sunai nahin di thee.

The prosecution has not cared to re-examine or cross-examine this witness. Under these circumstances, it cannot be said that the conclusion of the trial Court against the time of occurrence as alleged by the prosecution is entirely baseless.

There is no doubt that the Sessions Judge has treated Babu Lal, PW 2 as an independent witness but he has admitted in his cross-examination that the accused Chandrapal brother of Rishi Kumar belongs to another biradari and he was close to his unmarried daughter Km. Surmai. Although Babu Lal has stated that he had no exchange of words or abuses with Chandrapal or his brother yet it cannot be said that Babu Lal is entirely independent witness. Not only this, he has gone back from his statement made u/s 101 Code of Criminal Procedure. Therefore, he cannot be described as wholly reliable witness. Under these circumstances, no useful purpose will be served by remanding the case tor retrial.

There is yet another reason which cannot be ignored that Rishi Kumar was charged u/s 302 read with 34 IPC along with his two brothers namely Lachhman and Chandrapal, who have been acquitted and revision against them has also been rejected by this Court. Acquittal if Lachhman and Chandrapal has become final. In such circumstances, Rishi Kumar alone cannot be convicted u/s 302 read with Section 34 IPC. There is no doubt that Rishi Kumar has been further charged u/s 302 IPC, but in my opinion, no useful purpose will be served by remanding the case for retrial, as already discussed above.

Since I am not inclined to invoke revisional jurisdiction against the order of acquittal of Rishi Kumar therefore, it is not necessary to decide whether retrial or rehearing should be ordered. Mr. Wali, learned Counsel for the revisionist could not cite any case in which rehearing has been ordered in exercise of revisional jurisdiction after the order of acquittal.

18 In the case of Nirpal Singh and Others Vs. State of Haryana, the Supreme Court has only gone to this extent that it ordered for rehearing where after conviction, the accused were not heard on question of sentence u/s 235(2) Code of Criminal Procedure. In the present type of cases, it has been held by the Supreme Court in the case of K. Chinn aswamy Reddy (Supra) as under:

Two contingencies arise in such a case as to the nature of the order to be passed. In the first place there may be an acquittal by the trial Court. In such a case if the High Court is justified, on principles enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial Court for retrial. But there may be another type of case, namely, where the trial court has convicted the accused while the appeal court has acquitted him. In such a case, if the conclusion of the High Court is that the order of the appeal Court must be set aside, the question arises whether the appeal Court should be ordered to rehear the appeal after admitting the statement it had ruled out or whether there should necessarily be a retrial. So far as this is concerned, it is open to the High Court to take either of the two courses. It may order a retrial or it may order the appeal court to re-hear the appeal. It will depend upon the facts of each case whether the High Court would order the appeal court to rehear the appeal or would order a retrial by the trial court.

In a case like present one, if the High Court is justified on principles enunciated above to interfere with the order of acquittal in revision, the only course open to it is to set aside the order of acquittal and send the case back to trial court for retrial. In exercising the revisional power u/s 401 Code of Criminal Procedure the High Court can exercise power of the appellate Court u/s 386 Sub-clause (a) but in a case of acquittal like this one, subject to Sub-section (3) of Section 401 Code of Criminal Procedure. According to Sub-clause (a) of Section 386 Code of Criminal Procedure in an appeal from an order of acquittal, appellate Court can reverse such order and direct that further inquiry be made or that the accused be retried or committed for trial, as the case may be. Restriction imposed by Sub-section (3) of Section 401 Code of Criminal Procedure "nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction" takes away the power of a High Court to find accused guilty and to pass sentence on him according to law. Even after the amendment of the Code of Criminal Procedure and Section 326 Code of Criminal Procedure in Ayodhya Dubey''s case (Supra) in 1981, the Supreme Court has ordered only retrial. Therefore, to my mind, this position of law is not changed and in such cases, not rehearing but only retrial can be ordered.

In the circumstances of the present case as discussed above, interference with the order passed by the trial Court was not called for in exercise of revisional jurisdiction of the High Court. The two reasons argued by Mr. D.N. Wali, learned Counsel for the revisionist in support of his contentions are mis-conceived and, therefore, not acceptable to me.

In the result, the revision fails and is accordingly dismissed.

Revision dismissed.