State Of Maharashtra vs Sujay Mangesh Poyarelar

of acquittal recorded by III Ad hoc Addl. 2

Sessions Judge, Palghar on January 16, 2007 in

Sessions Case No. 148 of 2003.

3. Short facts of the case are that

complainant-Rajan Mukund Patil is the resident

of Chinchani, Bhandar Ali, Taluka Dahanu,

District Palghar, Maharashtra. He is a

practising advocate at Dahanu Court. According

to the prosecution, on June 07, 2003,

complainant had gone to Dahanu Court. In the

evening, he went to Vangaon by train and

therefrom he was to go to his residence at

Chinchani. For that purpose, he went to Dahanu

Railway Station at about 6.00 p.m. and boarded

Firozpur Janta Train. He reached Vangaon at

6.15 p.m. On platform No.2, he saw Deepa

Gajanan Patil who was going to Mumbai. The

complainant was knowing her. He, therefore,

asked her as to where she was going. She told

the complainant that she had come to receive

her father. Meanwhile, accused Sujay Mangesh

Poyarekar-respondent herein alighted from

Virar-Surat shuttle. The accused came near the 3

complainant and asked him why he was standing

there and started abusing him. The accused also

alleged that the complainant was flirting with

his wife. So saying, the accused assaulted the

complainant with knife in his stomach, on right

shoulder, below left armpit and on back-side.

The complainant received injuries. He

immediately went to Station Master's cabin. In

the meanwhile, his sister Charushila and one

Hitendra came there and took complainant to the

Vangaon Government Hospital. Later on, police

went to the hospital and recorded statement of

the complainant.

4. On the basis of the statement,

initially C.R. No. 00 of 2003 was registered in

Vangaon Police Station. The said complaint was

then forwarded to Palghar Railway Police

Station where C.R. No. I-9 of 2003 was

registered at 23.00 hours vide Station Diary

No. 42 of 2003 for offences punishable under

Sections 307 and 504 of the Indian Penal Code

(IPC). The accused was arrested at about 23.45 4

hours and was released on bail on June 12,

2003. After usual investigation and recording

of statement of witnesses, charge-sheet was

filed in the Court of Judicial Magistrate,

First Class, Railway, Virar.

5. Since the offence under Section 307,

IPC was exclusively triable by a Court of

Session, the Judicial Magistrate, by an order

dated November 27, 2003 committed the case to

Sessions Court, Palghar. It was registered as

Sessions Case No. 148 of 2003. Necessary charge

was framed against the accused who pleaded not

guilty to the charge and claimed to be tried.

6. The prosecution in order to establish

the case against the accused, examined 15

witnesses. It mainly relied upon testimony of

PW1-Rajan (complainant and victim) and PW2-

Charushila (real sister of complainant).

Deposition of PW12-Dr. D'Souza was recorded to

prove injuries sustained by the victim. After

the prosecution evidence, statement of the

accused was recorded under Section 313 of the 5 Code of Criminal Procedure, 1973 (hereinafter

referred to as `the Code') wherein he admitted

his presence on the Railway platform on the

date of occurrence. He, however, denied to have

committed any offence.

7. The learned trial Judge, vide his

judgment and order dated January 16, 2007,

acquitted the accused for the offences with

which he was charged. According to the learned

Judge, the prosecution failed to establish the

case against the accused beyond reasonable

doubt.

8. The State, being aggrieved by the

order of acquittal, filed an application, being

Criminal Application No. 1390 of 2007 for leave

to appeal in the High Court. The High Court,

vide the impugned order dated June 12, 2007,

rejected the application observing that the

judgment of the trial Court could not be said

to be `perverse' and no interference was called

for. The State has challenged the said order in

this Court.

6

9. On November 23, 2007 when the Special

Leave Petition was placed for admission

hearing, notice was issued. It was indicated in

the order that the notice will state as to why

Special Leave Petition should not be disposed

of by setting aside the order passed by the

High Court and by remitting the matter to the

High Court to be decided in accordance with

law. Service of notice had been effected on the

accused who appeared through counsel. An

affidavit in reply is also filed justifying the

order passed by the High Court refusing leave.

10. We have heard learned counsel for the

parties.

11. The learned counsel for the State

contended that the High Court has committed an

error of law in not granting leave to the State

to file an appeal against the order of

acquittal recorded by the Sessions Court. The

counsel submitted that from the material placed

before the Court, it is clearly established

that PW1-Rajan sustained injuries which were 7

proved from the evidence of Dr. D'Souza-PW12.

According to PW1-Rajan, injuries had been

caused by the accused. PW2-Charushila real

sister of complainant had corroborated the

version of PW1-Rajan. The High Court ought to

have appreciated the prosecution evidence,

ought to have granted leave and decided the

appeal on merits.

12. It was also submitted that from the

record, it was clearly proved that there was

enmity between the parties. It was the

allegation of the accused that PW1-Rajan was

harassing Deepa. It has also come in evidence

that on the date of incident i.e. on June 7,

2003, the complainant was assaulted. Initially,

he went to cabin of the Station Master, Dahanu

Railway Station where a report was lodged which

was subsequently sent to Palghar Railway Police

Station where a case was registered for

offences punishable under Sections 307 and 504,

IPC. The accused was admittedly present at the

Railway Station. The High Court has not 8

considered all these facts. It has also not

discussed evidence of PW1-Rajan nor of PW2-

Charushila. A sweeping statement was made in

the order that the trial Court had appreciated

the evidence properly by taking into

consideration several complaints filed against

the complainant who had tendered apology to the

President, Bar Association, Dahanu. An action

was also taken by the Bar Council. According to

the High Court, the judgment of the trial Court

could not be said to be `perverse'. It

accordingly dismissed the application. It was

submitted that keeping in view all these facts,

the present appeal deserves to be allowed by

remitting the matter to the High Court for

fresh disposal in accordance with law.

13. The learned counsel for the accused,

on the other hand, supported the order passed

by the High Court. In the counter-affidavit, it

was said that there was suppression of fact by

the State. It was stated that being aggrieved

by the order passed by the trial Court 9

acquitting the accused, the complainant filed a

revision which was registered as Criminal

Revision Application No. 166 of 2007 and a

Single Judge of the High Court, vide order

dated July 18, 2006, dismissed it. The State

was joined as party. The Assistant Public

Prosecutor also appeared for the State and the

High Court refused to interfere with the order.

The fact of filing revision by the complainant

and dismissal thereof has not been mentioned in

the present proceedings. On this ground alone,

the appeal deserves to be dismissed.

14. Even on merits, the counsel submitted

that no error can be said to have been

committed by the High Court in refusing leave

and in dismissing application filed by the

State. The Trial Court considered the

prosecution evidence in detail and came to the

conclusion that the prosecution was unable to

prove case against the accused beyond

reasonable doubt and was, therefore, entitled

to acquittal. It was not necessary for the High 1

Court when it agreed with the order of

acquittal recorded by the trial Court to record

reasons again for such acquittal. It was,

therefore, submitted that no case has been made

out for interference by this Court and the

appeal deserves to be dismissed.

15. Having heard learned counsel for the

parties, in our opinion, the appeal deserves to

be allowed.

16. So far as the preliminary objection

raised by the learned counsel for the accused

is concerned, we find no substance therein. The

case in hand was instituted on the basis of

First Information Report. It was thus a Police

case. De facto complainant, therefore, has no

right to file an appeal. He, therefore,

preferred a revision. Now it is well settled

that revisional jurisdiction can be exercised

sparingly and only in exceptional cases. A

revisional Court cannot convert itself into a

regular Court of Appeal.

1

17. Interpreting the provisions of Section

439 of the Code of Criminal Procedure, 1898

(similar to Section 401 of the present Code of

1973), in the leading case of Chinnaswamy

Reddy v. State of A.P., (1963) 3 SCR 412, this

Court stated;

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 s. 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 revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay 1

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 of 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 overlooked 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 s. 439(4).

18. Powers of revisional Court are thus

limited. Rejection of a revision application,

therefore, cannot affect the power of the State

in invoking statutory remedy available under

Section 378 of the Code. The preliminary 1

objection has, therefore, no force and is

hereby rejected.

19. So far as an application for leave to

appeal by the State is concerned, the High

Court rejected it without considering the

evidence of the prosecution. In the impugned

order, the High Court noted that it had heard

the learned Assistant Public Prosecutor. It

went on to state that none of the injuries

sustained by the victim was `fatal'. According

to the High Court, the cause behind the assault

was that the complainant-advocate was teasing

the wife of the accused, who was also working

in the Court.

20. It then proceeded to observe;

"The trial Court has appreciated the evidence properly and has also taken into consideration the number of complaints filed against the said advocate complainant including the apology tendered by the complainant to the President, Bar Association, Dahanu and the action taken by the Bar Council. The trial Court found inherent improbabilities in the case of the complainant and therefore acquitted the accused. The judgment of 1

the trial Court cannot be said to be perverse. No interference is called for. Application rejected".

21. Now, Section 378 of the Code provides

for filing of appeal by the State in case of

acquittal. Sub-section (3) declares that no

appeal "shall be entertained except with the

leave of the High Court". It is, therefore,

necessary for the State where it is aggrieved

by an order of acquittal recorded by a Court of

Session to file an application for leave to

appeal as required by sub-section (3) of

Section 378 of the Code. It is also true that

an appeal can be registered and heard on merits

by the High Court only after the High Court

grants leave by allowing the application filed

under sub-section (3) of Section 378 of the

Code.

22. In our opinion, however, in deciding

the question whether requisite leave should or

should not be granted, the High Court must

apply its mind, consider whether prima facie 1

case has been made out or arguable points have

been raised and not whether the order of

acquittal would or would not be set aside.

23. It cannot be laid down as an abstract

proposition of law of universal application

that each and every petition seeking leave to

prefer an appeal against an order of acquittal

recorded by a trial Court must be allowed by

the appellate Court and every appeal must be

admitted and decided on merits. But it also

cannot be overlooked that at that stage, the

Court would not enter into minute details of

the prosecution evidence and refuse leave

observing that the judgment of acquittal

recorded by the trial Court could not be said

to be `perverse' and, hence, no leave should be

granted.

24. In Sita Ram & Ors. v. State of Uttar

Pradesh, (1979) 2 SCC 656, this Court held that

a single right of appeal is more or less a

universal requirement of the guarantee of life

and liberty rooted in the concept that men are 1

fallible, judges are men and making assurance

doubly sure, before irrevocable deprivation of

life or liberty comes to pass, a full-scale re-

examination of the facts and the law is made an

integral part of fundamental fairness or

procedure.

25. We are aware and mindful that the

above observations were made in connection with

an appeal at the instance of the accused. But

the principle underlying the above rule lies in

the doctrine of human fallibility that `Men are

fallible' and `Judges are also men'. It is

keeping in view the said object that the

principle has to be understood and applied.

26. Now, every crime is considered as an

offence against the Society as a whole and not

only against an individual even though it is an

individual who is the ultimate sufferer. It is,

therefore, the duty of the State to take

appropriate steps when an offence has been

committed.

1

27. We may hasten to clarify that we may

not be understood to have laid down an

inviolable rule that no leave should be refused

by the appellate Court against an order of

acquittal recorded by the trial Court. We only

state that in such cases, the appellate Court

must consider the relevant material, sworn

testimonies of prosecution witnesses and record

reasons why leave sought by the State should

not be granted and the order of acquittal

recorded by the trial Court should not be

disturbed. Where there is application of mind

by the appellate Court and reasons (may be in

brief) in support of such view are recorded,

the order of the Court may not be said to be

illegal or objectionable. At the same time,

however, if arguable points have been raised,

if the material on record discloses deeper

scrutiny and re-appreciation, review or

reconsideration of evidence, the appellate

Court must grant leave as sought and decide the

appeal on merits.

1

28. In the case on hand, the High Court,

with respect, did neither. In the opinion of

the High Court, the case did not require grant

of leave. But it also failed to record reasons

for refusal of such leave.

29. We have gone through the judgment and

order of acquittal recorded by the trial Court

which runs into more than 30 typed pages. It

records that 15 witnesses were examined by the

prosecution including injured victim PW1-Rajan

and PW2-Charushila, real sister of the victim.

The trial Court observed that the testimony of

PW1-Rajan revealed that the incident occurred

on June 7, 2003 at about 6.15 p.m. The injuries

sustained by PW1 Rajan were proved from the

evidence of Dr. D'Souza, PW12.

30. The trial Court also recorded the

following finding in para 15 of the judgment.

"15. Anyway, the oral testimony of PW1-Rajan, his sister, PW2- Charusheela, PW9-Nareshkumar of Vangaon Railway Station as well as the testimony of Dr. Ravidas Purshottam Patil-PW-15 show that Rajan Mukund Patil sustained bleeding injuries".

1 31. PW12-Dr. D'souza, Medical Officer of

KEM Hospital, Mumbai stated that he had

examined victim PW1-Rajan on June 8, 2003 at

4.00 a.m. in the early morning and found

following four injuries.

1. C.L.W. right shoulder 3 x 1 x 1 cm anterior aspect, caused by sharp object, age within 24 hrs, nature simple.

2. C.L.W. on 1 x 3 x 6 cms in epigastria (upper part of abdomen) caused by sharp object, grievous injury.

3. C.L.W. 1 x 0.5 x 0.5 cm, left axilla i.e. left arm pit caused by sharp object, injury is simple.

4. C.L.W. 5 x 1 x 1 cm left flank (left side of abdomen) caused by sharp object, grievous.

32. He issued necessary certificate which

is at Ext. 34. According to him, injuries could

be caused by sharp cutting instrument like

knife. Though initially he stated that injuries

2 and 4 were grievous and fatal in nature,

thereafter he stated that they were not fatal 2

but could become fatal. The Court also noted

that the circumstantial evidence supported the

contention of the complainant that he sustained

bleeding injuries. Bloodstains were found on

the shirt and pant of accused which was of

Group `A' i.e. blood group of the complainant.

33. The accused in his statement under

Section 313 of the Code admitted that he was

present at Vangoan Railway Station on June 07,

2003; that he complained to PW9 Naresh Kumar

that one person was flirting with his wife;

that he was arrested by PW 13 Dattatraya and

was sent for medical examination, that PW11 Dr.

Padmaja examined him and issued Medical

Certificate (Ex. 32). He stated that his wife

and passengers at the Railway Station had

severely beaten the complainant. It has also

come on record that complaints were made to the

Dahanu Bar Association. Certain documents were

also produced relating to objectionable

behaviour by the complainant, lodging of 2

complaints by the accused and resolution passed

by the Dahanu Bar Association.

34. The trial Court also recorded a

finding that the defence counsel had

successfully established enmity between the

complainant and the accused. According to the

Court, on the date of incident i.e. on June 7,

2003, around 6.15 p.m., there was a scuffle

between the complainant on one hand and the

accused on the other hand on account of

misbehaviour by the complainant towards the

wife of the accused. The trial Court came to

the conclusion that from the testimony of PW10-

Dr. Padmaja who examined the accused on June 8,

2003, found three injuries on the person of the

accused as mentioned in Ext.32. They were on

the left shoulder and the right upper limp of

the accused. According to the Court, injuries

on the person of the accused supported his

defence that he was beaten by the complainant

and prosecution failed to explain the injuries

on the person of the accused.

2

35. In view of the all these facts,

circumstances and findings, in our opinion, the

High Court should not have rejected the

application for grant of leave by passing a

`brief' order. Moreover, the High Court

observed in the impugned order that the

judgment of the trial Court cannot be said to

be `perverse'.

36. Now, so far as powers of the appellate

Court in an appeal against acquittal are

concerned, no restrictions have been imposed by

the Code on such powers while dealing with an

order against acquittal. In an appeal against

acquittal, the High Court has full power to re-

appreciate, review and reweigh at large the

evidence on which the order of acquittal is

founded and to reach its own conclusion on such

evidence. Both questions of fact and of law are

open to determination by the appellate Court.

37. It is no doubt true that in a case of

acquittal, there is a double presumption in

favour of the respondent-accused. Firstly, the 2

presumption of innocence available to him under

the fundamental principle of criminal

jurisprudence that every person should be

presumed innocent unless he is proved guilty by

a competent court of law. Secondly, the accused

having secured his acquittal, the presumption

of his innocence is further reinforced by the

trial Court (and certainly not weakened).

Nonetheless, it is not correct to say that

unless the appellate Court in an appeal against

acquittal under challenge is convinced that the

finding of acquittal recorded by the trial

Court is `perverse', it cannot interfere. If

the appellate Court on re-appreciation of

evidence and keeping in view well established

principles, comes to a contrary conclusion and

records conviction, such conviction cannot be

said to be contrary to law.

38. Recently, in Chandrappa v. State of

Karnataka, (2007) 4 SCC 415, after considering

all leading decisions on the point, one of us

(C.K. Thakker, J.) laid down the following 2

general principles regarding powers of the

appellate Court in dealing with an appeal

against an order of acquittal.

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, 'substantial and compelling

reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

2

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

39. The High Court, in our judgment,

was not right in rejecting the application for

leave on the ground that the judgment of the

trial Court could not be termed as `perverse'.

If, on the basis of the entire evidence on

record, the order of acquittal is illegal,

unwarranted or contrary to law, such an order

can be set aside by an appellate Court. Various 2

expressions, such as, 'substantial and

compelling reasons', 'very strong

circumstances', 'distorted conclusions',

'glaring mistakes', `judgment being perverse',

etc. are more in the nature of 'flourishes of

language' than restricting ambit and scope of

powers of the appellate Court. They do not

curtail the authority of the appellate Court in

interfering with an order of acquittal recorded

by the trial Court. The Judgment of the High

Court, with respect, falls short of the test

laid down by this Court in various cases

referred to in Chandrappa. The order of the

High Court, therefore, cannot stand and must be

set aside.

40. For the foregoing reasons, the appeal

deserves to be allowed and is allowed

accordingly by remitting the matter to the High

Court for fresh disposal in accordance with

law.

2

41. Before parting with the case, we may

state that we may not be understood to have

expressed any opinion one way or the other on

the merits of the matter. As and when the High

Court will hear the matter, the Court will

decide the case without being influenced by any

observations made by us in this judgment.

42. Ordered accordingly.

............................................................J. (C.K. THAKKER)

......................................................J. (D.K. JAIN) NEW DELHI,

September 19, 2008.