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Judgment
The present revision is against the judgment of learned Addi(cid:33)onal Sessions Judge, Wardha dated 14.06.2018 in Criminal Appeal No. 47 of
2015. Both the applicants/accused were charge sheeted for the offence punishable under Sec(cid:33)on 326 read with Sec(cid:33)on 34 of the Indian Penal
Code. Both were acqui(cid:55)ed by Judicial Magistrate, First Class, Wardha in Regular Criminal Case No. 389 of 2012 vide judgment dated 11.02.2015.
The prosecu(cid:33)on has challenged the said judgment before the Sessions Court, Wardha. Learned Sessions Judge has set aside the judgment of
JMFC and convicted both the applicants/accused for the offence punishable under Section 326 of the Indian Penal Code and sentenced them to
suffer rigorous imprisonment for seven years. Being aggrieved by the same, present revision is filed.
The case of the prosecution against both the applicants in short is as under :Â
Complainant Ranjana Naresh Thote lodged an oral report at Police Sta(cid:33)on, Deoli alleging that on 11.06.2012 at about 09:00 p.m., her husband
Naresh went outside. Accused persons abused to her husband. Accused Yogesh caught her husband and accused Dhanraj had beaten him on
his head and back by means of wooden rod (ubhari). Her husband fell down. He had sustained head injury. He was taken to the hospital.
Medical Officer gave him medical treatment. On the report of Ranjana, Crime No. 66 of 2012 was registered against both the applicants for the
offence punishable under Sec(cid:33)on 326 read with Sec(cid:33)on 34 of the Indian Penal Code. A(cid:71)er comple(cid:33)ng inves(cid:33)ga(cid:33)on, charge sheet came to be
filed. Charge was framed by JMFC. In all, nine witnesses were examined by the prosecu(cid:33)on. Learned JMFC acqui(cid:55)ed both the accused. But,
learned Addi(cid:33)onal Sessions Judge, Wardha allowed the appeal and convicted both the applicants/accused for the offence punishable under
Section 326 of the Indian Penal Code and sentenced them to suffer RI for seven years.
Heard Shri R.M. Daga, learned Counsel appearing on behalf of the applicants and Shri S.D. Sirpurkar, learned Addi(cid:33)onal Public Prosecutor
appearing on behalf of the respondent/State.
Shri Daga, learned Counsel for the applicants submi(cid:55)ed that the power of appellate Court under Sec(cid:33)on 278 is very limited. He has relied
upon the judgment of the Hon'ble Supreme Court in the case of Mahendra Pratap Singh .v. State of U(cid:55)ar Pradesh (reported in 2009(11) SCC,
334) and submi(cid:55)ed that learned first appellate Court exceeded its power and wrongly convicted both the applicants. He has also pointed out
the judgment of Hon'ble Supreme Court in the case of Awadhesh and another .v. State of Madhya Pradesh (reported in 1988(2) SCC, 557).
Shri Daga, learned Counsel has submi(cid:55)ed that in fact prosecu(cid:33)on has failed to prove the guilt of accused for the offence punishable under
Sec(cid:33)on 326 of the Indian Penal Code beyond reasonable doubt, material omissions and contradic(cid:33)ons brought on record create doubts about
the incident. He has pointed out the evidence of PW Nos.2 and 3 and submi(cid:55)ed that there is material contradic(cid:33)on between the evidence of
both husband and wife. Learned JMFC has rightly considered the material omissions and contradic(cid:33)ons and acqui(cid:55)ed both the applicants. But,
learned Additional Sessions Judge exceeded his power and wrongly convicted the applicants.
Though the punishment under Sec(cid:33)on 326 of the Indian Penal Code is up to the life imprisonment, it is triable by the JMFC and power of
JMFC to convict the accused is not more than three years. But learned Addi(cid:33)onal Sessions Judge has convicted the accused/applicants in the
case which is triable by JMFC and sentenced up to seven years.
Learned Addi(cid:33)onal Sessions Judge has not taken into considera(cid:33)on material omissions and contradic(cid:33)ons brought on record in the evidence
of PWÂ2. Evidence of PW Nos.2 and 3 clearly show that PWÂ2 was not present at the (cid:33)me of incident. She has stated before the Court that she
saw the incident personally. Omission brought on record in her evidence that she has not stated before the police that her husband was
demanding money to accused Dhanraj and there was some quarrel between them. She has admi(cid:55)ed that her husband had gone out of the
house at about 09:00 p.m., that (cid:33)me she was at her house. She has further admi(cid:55)ed that the place of incident is not visible from her house.
She was also not in a posi(cid:33)on to hear the quarrel from the spot of incident from her house. Material omission is also brought on record in
respect of incident itself. She has stated in her crossÂexamina(cid:33)on that, she has stated before the police that her husband was demanding
money to accused Dhanraj. That (cid:33)me accused Dhanraj caught hold her husband and accused Yogesh came with wooden stump and beat her
husband on his head. These are the material omissions brought on record in her evidence by the defence. Those omissions are rightly
considered by the JMFC, but learned Additional Sessions Judge wrongly not considered the same.
It is brought on record in the evidence of PWÂ3 (injured Naresh) that when he was going, he was beaten from backside. He has not stated
that how he had seen both the accused while bea(cid:33)ng him. He has made much more improvement in his evidence. He has stated that accused
persons beat him on head and on hand etc. But, medical evidence proved by Dr. Ni(cid:33)nkumar Nimodiya (PWÂ8) shows that he found only one
injury. Therefore, it is clear that PWÂ3 has improved much more in his evidence. His evidence is not corroborated by medical evidence.
PWÂ2 has stated that she saw the incident personally that accused No.2 Dhanraj caught hold her husband and accused No.1 Yogesh beat her
husband. But, her evidence in crossÂexamina(cid:33)on shows that she was at home. She was not in a posi(cid:33)on to see the spot of incident from her
house and hear the quarrel. Therefore, her evidence is not reliable. Learned JMFC has rightly observed that injured Naresh was servant of
accused. He was demanding money and there was quarrel. It is also admi(cid:55)ed by Naresh and his wife. PWÂ2 (wife of injured) namely
Ranjana has stated in her evidence that accused No.2 Dhanraj caught hold her husband and accused No.1 Yogesh gave blow of wooden stump
on the head of her husband. But, in her report (Exh.22), she has stated that accused Yogesh caught hold her husband and accused Dhanraj gave
blow of wooden stump on the head of her husband. This material contradic(cid:33)on is rightly appreciated by the JMFC but wrongly not considered
by the first appellate Court.
Hon'ble Apex Court has observed about the powers of appellate Court in the case of Mahendra Pratap Singh .v. State of U(cid:55)ar Pradesh (cited
supra), as under :Â
“It is well se(cid:55)led that, if on appraisal of the evidence and on considering the relevant a(cid:55)ending circumstances it is found that two views
are possible, one as held by the trial Court for acqui(cid:78)ng the accused and the other for convic(cid:33)ng the accused, in such a situa(cid:33)on the rule of
prudence should guide the High Court not to disturb the order of acqui(cid:55)al made by the trial Court. Unless the conclusions of the trial Court
drawn on the evidence on record are found to be unreasonable and perverse or unsustainable, the High Court should not interfere with the
order of acquittal.â€
In the case of Awadhesh and another .v. State of Madhya Pradesh (cited supra), Their Lordships of the Hon'ble Supreme Court have
observed thus Â
“Where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a ma(cid:55)er of judicial cau(cid:33)on, refrain
from interfering with the order of acqui(cid:55)al recorded by the court below. In other words, if the main grounds on which the court below has
based its order acqui(cid:78)ng the accused, are reasonable and plausible, and cannot be en(cid:33)rely and effec(cid:33)vely dislodged or demolished, the High
Court should not disturb the acquittal.
While considering an appeal against acqui(cid:55)al the High Court must keep in mind these principles in apprecia(cid:33)ng the evidence of witnesses. If
on appraisal of the evidence and on considering relevant a(cid:55)ending circumstances it is found that two views are possible, one as held by the
trial court for acqui(cid:78)ng the accused, and the other for convic(cid:33)ng the accused in such a situa(cid:33)on the rule of prudence should guide the High
Court not to disturb the order of acqui(cid:55)al made by the trial court. Unless the conclusions of the trial court drawn on the evidence on record are
found to be unreasonable, perverse or unsustainable, the High Court should not interfere with the order of acqui(cid:55)al. The High Court has in the
instant case made an a(cid:55)empt to explain away the infirmi(cid:33)es in the tes(cid:33)mony of eyeÂwitnesses in se(cid:78)ng aside the order of acqui(cid:55)al. The
High Court has in our opinion disregarded the rule of judicial prudence in converting the order of acquittal to conviction.â€
The first appellate Court ought to have seen the evidence on record. Though two view taken is possible, there is no necessity to take
another view which is not taken by the trial Court. On the other hand, it appears that the first appellate Court i.e. Addi(cid:33)onal Sessions Judge,
Wardha wrongly appreciated the evidence. The evidence of PWÂ2 shows that her husband was beaten by accused Yogesh and accused Dhanraj
caught hold him, but by lodging report, she has stated that Yogesh caught hold her husband and accused Dhanraj beat her husband. The
material contradic(cid:33)ons are also brought on record in her evidence. Those are rightly considered by the JMFC. Learned appellate Court has
wrongly not considered the same and convicted the accused. Appreciation of learned Additional Sessions Judge is nothing but wrong.
In that view of the ma(cid:55)er, following order is passed. Criminal Revision Applica(cid:33)on is allowed. Impugned judgment dated 14.06.2018 in
Criminal Appeal No. 47 of 2015 passed by the learned Addi(cid:33)onal Sessions Judge, Wardha is hereby quashed and set aside. Judgment of trial
Court is restored. Both the applicants/accused are hereby acqui(cid:55)ed of the offence punishable under Sec(cid:33)on 326 read with Sec(cid:33)on 34 of the
Indian Penal Code. They are on bail. Their bail bonds stand cancelled. Fine amount, if any paid, be refunded to the applicants. R and P be sent
back.