IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 161 of 1989 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- ABEDINBHAI TURABBHAI Versus CHHAGANBHAI DEVABHAI BHARWAD -------------------------------------------------------------- Appearance: MR KJ PANCHAL for Mr JM PANCHAL for Petitioner MR H.K. PARMAR FOR for Respondents Nos. 1 to 8, 10-14 and 16 & 17. ABATED for Respondent No. 9, 15 & 18 Ms KATHABEN GAJJAR, ADDL. PUBLIC PROSECUTOR for Respondent No. 19 -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 23/06/2000 CAV JUDGEMENT 1 This is a Criminal Revision Application filed under Section 401 read with Section 397 of the Criminal Procedure Code, 1973, (for short, Cr.PC) filed by original complainant of Sessions Case No.112 of 1987 challenging the order of partly conviction and partly acquittal passed by the learned Additional Sessions Judge (Mr F.R. Makwana), Ahmedabad (Rural) at Mirzapur (who will be referred to hereinafter as "the learned trial Judge") by rendering his judgement exh.88 dated 30th January 1989 in Sessions Case No.112 of 1987 which was pending on his file. 2 During the pendency of this Criminal Revision Application, on 10.3.2000 it was submitted by Mr H.K. Parmar that Revision-Opponents Nos.9, 15 and 18 have died and therefore vide order dated 10.3.2000 this Criminal Revision Application is abated against Revision Opponents Nos.9, 15 and 18. 3 Here in this present matter the Revision Petitioner was original complainant who lodged a complaint in Dholka Police Station and on the basis of that complaint the investigation was conducted and ultimately charge sheet was filed against Revision Opponents Nos.1 to 18 in the Court of the learned Judicial Magistrate, Dholka, and therefore the Revision Opponents Nos.1 to 18 were accused before the Court of the learned JMFC, Dholka, who ultimately committed the case to the Sessions Court, Ahmedabad (Rural) at Mirzapur and therefore for the sake of convenience the parties will be referred to hereinafter as the complainant and the accused. 4 The facts leading to this Criminal Revision Application in a nutshell are as follows:- 5. The case of the complainant as per the complaint at Exh.65 dated 5.3.1987 lodged by original complainant i.e. Revision-Petitioner Abedinbhai Turabhai Vahora, resident of village Virdi, Taluka Dholka, District Ahmedabad, is as follows: The complainant is having his agricultural land admeasuring about 60 vighas in village Virdi and he is doing agricultural work in that land. Since about 15 years before the date of the complaint Kasambhai Yusubbhai (deceased who was the uncle of the complainat) was the Sarpanch of that village. One another field of Ibrahimbhai Hasanbhai is also situated on the outskirts of village Virdi. Sarpanch Kasambhai had taken that land of Ibrahimbhai Hasambhai for cultivating the crop of wheat on share basis. 6 On or about 5th March 1987 at about 9 AM Mohsinbhai Kasambhai (accused no.7) along with 7-8 labourers had gone to that field of Ibrahim Hasanbhai. The complainant had also gone to his field which is known as "Khijadiyawala field" for agricultural work at about 9.15 AM and at that time the labourers were cutting the crop of wheat. At that time one Kalu Mohan, (accused no.7) had come with his two cows and other cattle were following said Kalu Mohan. It is the case of prosecution that said Kalu Mohan, accused no.7, had allowed his cattle to graze in the field in which there was a crop of wheat of Sarpanch. Therefore, Mohsinbhai (PW No.11) asked Kalu Mohan to take out his cows from the field. Thereupon Kalu Mohan was enraged and he spoke filthy language, by giving abuses and gave a stick blow on the back of said Mohsin. At that time the complainant was watching that incident from his field known as Khijadiyawala field. Mohsinbhai under fear ran away from his place and he went to village and he returned with his father to that place. After arrival of Sarpanch Kasambhai, he also asked that Kalu Mohan to take out cattle from the field. In the meanwhile other shepherds, Chhagan Deva, accused no.1, Dhara Kachra, accused no.4, Maman Bhara, accused no.3, Naku Bhikha, accused no.2, Mera Bhikha, accused no.16, Jeevan Kachra, accused no.6, Kala Kachra, accused no.11, Bapu Bhura, Hari Bhara, accused no.8, and other 15-20 shepherds of village had come with their cattle to that place. Deceased Kasambhai and his son Mohsin asked all those shepherds to take out their cattle from the field. The complainant also went to that place. Kalu Mohan, accused no.7 gave abuses to Sarpanch and inflicted a stick blow on the head of said Sarpanch. Immediately thereafter other shepherds who had come with cattle also made an assault on Sarpanch. They started to inflict blows of sticks on Mohsin, son of Sarpanch. On hearing this hub-bub, Sajauddin Nooruddin, PW No.10, Hathimbhai Nooruddin, Ibrahim Mohammed Mukhi, P.W. No.15, Jabir Nooruddin, Dawood Abbas and Hathi Mohammed Mukhi and others had come from the village. They did not come in group but they came there one after the another. Those persons who had come from village were also assaulted by shepherds. Bharwad Kalu Mohan, accused no.7, Chhagan Deva, accused no.1, Dhara Kachra, accused no.4, and Maman Bhara, accused no.3, started to inflict blows of sticks indiscriminately on said Sarpanch Kasambhai Yusufali and as a result of this, Sarpanch fell down on the ground and thereafter other shepherds started to beat Sarpanch Kasambhai by sticks. It is the case of the prosecution, as stated in the complaint, that persons of the complainant party who had come from the village were also injured by the shepherds as the shepherds had inflicted blows of sticks and other weapons on those persons. 7 Thereafter shepherds ran away from that place. The complainant rushed to the village and he came back with a tractor of Sajauddin Nooruddin along with Abasbhai Rajabbhai. The complainant noticed that Sarpanch Kasambhai Yusufali was seriously injured and had sustained injuries and he had become unconscious. The complainant and the persons of the complainant party brought Sarpanch Kasambhai and other injured persons by taking them in tractor to the village. When they reached to the house of Sarpanch, they found that Sarpanch Kasambhai was dead. Thereafter the complainant went to Dholka Police Station and lodged his complaint at 13.05 hours on the same day i.e. on 5.3.1987. That complaint came to be registered as C.R.No.I 42 of 1987 of Dholka Police Station. That case was investigated by PSI of Dholka Police Station and he ultimately filed charge sheet against 18 accused persons in the court of the learned Judicial Magistrate First Class, Dholka, on 24.07.1987. That charge sheet came to be registered as Criminal Case No.1133 of 1987. The learned Magistrate passed a committal order in that Criminal Case No.1133 of 1987 on or about 11.9.1987. As that case was committed to the Sessions Court, Ahmedabad (Rural) at Mirzapur, that case was registered as Sessions Case NO.112 of 1987. 8. It appears from the record and from judgement challenged in this Criminal Revision Application that on or about 23.9.1988 the learned trial Judge framed the charge exh.14 for the offences punishable under Sections 143, 147, 148, 302, 325, 323 read with Section 149 of the Indian Penal Code together with offences punishable under Sections 161 and 162 of the Gujarat Panchayats Act. On recording the plea of each accused, all pleaded not guilty to the charge and they stated to the learned trial Judge that they wanted to be tried. Thereafter the prosecution examined about 16 witnesses in the case. The prosecution has also produced documents on which it was relying in the case against the accused. Thereafter further statements of the accused under Sections 313 of Cr.PC were recorded. After hearing the arguments of the learned advocates for both the parties, the learned judge of the trial Court, by rendering his judgement exh.88 dated 30.1.1999 was pleased to come to the conclusion that case against the accused nos.1, 2, 3 and 7 so far as it relates to offences punishable under Sections 161 and 162 of the Gujarat Panchayats Act, was proved beyond reasonable doubt and so far as the case against all the accused for remaining offences, he was pleased to come to a conclusion that the prosecution failed to prove the case beyond the reasonable doubt against all the accused. By that judgement accused nos.1, 2, 3 and 7 were convicted for the offences punishable u/s 161 and 162 of the Gujarat Panchayats Act and each of them was sentenced to pay a fine of Rs.100/- and in default to undergo S.I. for 7 days. He acquitted all the accused including accused nos.1, 2, 3 and 7 for the rest of the offences i.e. for the offence punishable under Sections 143, 147, 148, 302, 325, 323 read with Section 149 of the Indian Penal Code. 9. The State Government has not preferred any acquittal appeal against any of the accused. Being aggrieved against and dissatisfied with the said judgement exh.88 dated 30.1.1989 passed by the learned trial Judge in Sessions Case No.112 of 1987 which was pending on his file, the original complainant Abedin Turabhbhai has preferred this Criminal Revision Appliation challenging the correctness, legality and propriety of the acquittal order passed against all the accused. At this stage, it may be noted that accused nos.1, 2, 3 and 7 who were convicted and sentenced for offences punishable u/s 161 and 162 of the Gujarat Panchayats Act have not preferred any appeal against conviction to this Court, as stated by the learned advocates for both the parties. 10 I have heard Shri K.J. Panchal, the learned advocate for the Criminal Revision-Petitioner and Mr H.K. Parmar, the learned advocate for the Criminal Revision Opponents Nos.1 to 8, 10 to 14, 16 and 17 in detail at length. I have also heard Ms Kathaben Gajjar, learned APP for the State i.e. Revision Opponent No.19. I have perused the R & P of the case which has been called for from the lower court. 11 Shri K.J. Panchal, the learned advocate for the Criminal Revision-Petitioner has by citing an authority of K. CHINNASWAMYREDDY V. STATE OF ANDHRA PRADESH reported in AIR 1962 SC 1788 argued that it is open to the High Court to set aside an order of acquittal even at the instance of the private parties though the State may not have thought it fit to prefer an appeal but this jurisdiction should be exercised by the High Court in exceptional cases when there is some glaring defect in the procedure or there is a manifest error on the point of law and consequently there has been flagrant miscarriage of justice. In this cited case the Honourable Supreme Court has given some instances in which the High Court can interfere with finding of acquittal in revision. The list of these instances is not exhaustive but illustrative. As stated in para 7 of that judgement following some instances are given by the Hon'ble Supreme Court in which the High Court can interfere with the finding of the acquittal:- (i) Where the trial court has no jurisdiction to try the case but has still acquitted the accused. (ii) Where the trial court has wrongly shut out the evidence which the prosecution wished to produce. (iii) Whether the appellate Court has wrongly held evidence which was admitted by the trial Court to be inadmissible. (iv) Where the material evidence has been overlooked either by the trial court or by the appellate Court. (v) Where the acquittal is based on compounding of the offences which is invalid under the law. 12 It has been observed in para 7 of the said judgement that these and other similar questions can be properly held to be cases of exceptional nature where the High Court can justifiably interfere with an order of acquittal. 13 Shri K.J. Panchal, the learned advocate for the petitioner has argued that in this case the learned Judge of the trial Court has given much importance to the minor contradictions and omissions which were found in the evidence of the witnesses examined by the prosecution and evidence of prosecution witnesses is not correctly appreciated in the manner in which it ought to have been appreciated. He has further argued that looking to the evidence led by the prosecution the learned Judge of the trial Court ought to have held that the case against the accused is proved beyond reasonable doubt and the learned judge of the trial Court ought to have convicted and sentenced all the accused. According to Mr K.J. Panchal, the case of the petitioner falls within the category of instance which is referred to in para 7 of the authority cited by him. 14 As against the aforesaid arguments, Shri H.K. Parmar, the learned advocate for the respondents has by reading the judgement argued that the learned judge of the trial Court has appreciated the evidence of the witnesses examined by the prosecution in correct perspective and the learned Judge of the trial Court has come to the conclusion that the case against the accused is not proved beyond reasonable doubt. During the course of arguments, he further argued that from the very incident a cross case was also lodged against the present complainant and the prosecution-witnesses and other persons of the party of the complainant and that case was registered as Sessions Case No.109 of 1987. As that case was a cross case of this present case, the same learned judge of the trial Court tried both the cases simultaneously but he delivered the judgements in both the cases on the same day i.e. on 30.1.1989. He has produced a certified copy of the judgement rendered in Sessions Case No.109 of 1987 and the same has been taken up on record of this appeal and that judgement would be part and parcel of this Criminal Revision Application. 15 In short, it is the case of the petitioner that the evidence of prosecution witnesses is not properly appreciated by the trial Court whereas on the other hand it is the case of the respondents that the learned Judge has appreciated the evidence properly and in correct perspective and no other finding could be reached on the basis of the the evidence led by the prosecution except that of acquittal. 16. Before I discuss the contentions of rival parties, it would be in the fitness of things to place on record the ambit and scope of Section 401 of Cr.PC and the scope of powers of the High Court which can be exercised in this type of Criminal Revision Applications. 17 In the case of Khatra Basi Samal and another v. The State of Orissa etc. AIR 1970 SC 272 the Hon'ble Supreme Court has held in paragraph 10 and 11 as follows:- "10. This Court has had to examine the jurisdiction of the High Court under this section on several occasions. In D. Stephens v. Nosibulla (1) it was pointed out (see at p. 291) that :- "The revisional jurisdiction conferred on the High Court under section 439 of the Code of Criminal Procedure 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 under section 417. 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. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciation of the evidence, on record". Again in Logendranath Jha & Others v. Polailal Biswas 1951 SCR 576 = (AIR 1951 SC 316) where the High Court had set aside an order of acquittal of the appellants by the Sessions Judge and directed their retrial, this Court (see at p. 681) said :- "Though sub-section (1) of section 439 authorises the High Court to exercise, in its, discretion, any of the powers conferred on a court of appeal by section 423, sub-section (4) specifically excludes the power to 'convert a finding of acquittal into one. of conviction'. This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court could in the absence of any error on a point of law reappraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterising the judgment of the trial court as 'perverse' and 'lacking in perspective', the High Court cannot reverse pure findings of fact based on the trial court's appreciation of the evidence in the case". In K. Chinnaswamy Reddy v. State of Andhra Pradesh, 1963-3 SCR 412 at p. 418 = (AIR 1962 SC 1788 at p.1791) the court proceeded to define the limits of the jurisdiction of the High Court under s. 439 of the Criminal Procedure Code while setting aside an order of acquittal. It was said: ": ..... 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 and there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. 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 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." 18. In case of NARAIN PRASAD V. STATE OF RAJASTHAN reported in AIR 1978 Raj. 162 the Full Bench of the Rajasthan High Court has observed in para 25 as follows:- "The revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice." 19 In case of RAMU ALIAS RAM KUMAR & oRS. V. JAGANNATH reported in AIR 1994 SC 26 it has been observed in para 2 as follows:- "It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complainant. This Court in number of cases has reiterated this view." Keeping in mind the aforesaid legal position i.e. ambit and scope of Section 401 of Cr.PC and the powers to be exercised by the High Court in such type of Criminal Revision Applications, the submissions are dealt with hereinbelow. 20. It would be better to know certain admitted facts which cannot be denied by either of the parties. (i) The present Revision-Petition Abedin Turabhai Vahora was the complainant and he lodged the complaint at exh.65 dated 5.3.1987 being C.R. I No.42 of 1987 of Dholka Police Station and that complaint was lodged for an incident which took place at 10 hours on 5.3.1987 on the outskirts of village Virdi which is 18 km away on the southern side of the police outpost. That complaint was lodged against 18 accused persons who are Revision-Opponents in this matter. (ii) At 14.15 hours on the same day for the same incident which took place at 10 hours on 5.3.1987 on the outskirts of village Virdi the present Revision Opponent No.1 i.e. accused no.1 had lodged a complaint against the present complainant, deceased Kasambhai Yusubbhai and other prosecution witnesses who were examined by the prosecution in the case on hand. (iii) The criminal case based on FIR registered at CR No.42 of 1987 was investigated and ultimately a charge sheet was filed and the learned JMFC, Dholka, had passed a committal order on 11.08.1987 and that case came to be registered as Sessions Case No.112 of 1987 in which the learned trial Judge, after hearing the arguments of the learned advocates for both the parties by rendering his judgement exh.88 dated 30.1.1999 was pleased to come to the conclusion that case against the accused nos.1, 2, 3 and 7 so far as it relates to offences punishable under Sections 161 and 162 of the Gujarat Panchayats Act was proved beyond reasonable doubt and so far as the case against all the accused for remaining offences, he was pleased to come to a conclusion that the prosecution failed to prove the case beyond the reasonable doubt against all the accused. By that judgement accused nos.1, 2, 3 and 7 were convicted for the offence punishable u/s 161 and 162 of the Gujarat Panchayats Act and each of them was sentenced to pay a fine of Rs.100/- and in default to undergo S.I. for 7 days. He acquitted all the accused including accused nos.1, 2, 3 and 7 for the rest of the offences i.e. for the offence punishable under Sections 143, 147, 148, 302, 325, 323 read with Section 149 of the Indian Penal Code. In this case accused produced medical evidence to show that in the incident accused no.1 - Chhagan Deva, accused no.4 - Dhara Kachra, accused no.3 - Maman Bhara, accused no.15 - Hindubhai Khengarbhai, accused no.16 - Merabhai Bhikhabhai, accused no.17 - Kanubhai Motibhai and accused no.18 Jakshibhai Ramubhai were injured and for their injuries Medical Officer had examined them and had issued medical certificate and therefore in the present case on hand the prosecution has no other option except to accept the case of the accused that about 9 persons were injured and one of them Karman Jaising succumbed to the injuries later on. In the like manner, in Criminal Case on the basis of the complaint at exh.88 lodged by the present Revision-Opponent No.1 after investigation a charge sheet was filed against the present complainant (Revision-Petitioner) and other prosecution witnesses examined in this case on hand. In that Criminal Case i.e. Sessions Case No.109 of 1987 a trial was conducted against 14 accused persons for the offences punishable under Sections 302, 307, 147, 148, 149, 323, 324, 325, 504 read with Section 25(1)(c) and 27 of the Arms Act. (iv) In Sessions Case No.109 of 1987 based on complaint exh.86 lodged by Bharwad Chhagan Deva, the present complainant i.e. Abedin Turabhai Vahora was shown as accused no.1 and prosecution witnesses i.e. Sajauddin Nooruddin, PW No.10, Mohsinbhai Kasambhai, PW No.13, Tayabbhai Gulamali, PW No.15, Ibrahim were cited as accused nos.12, 7, 14 and 13 respectively. 21 From the above facts one thing is clearly established that the incident took place in which witnesses of both the sides had sustained injuries. It may be noted that in the present case i.e. Sessions Case No.112 of 1987 Kasambhai Yusubbhai, uncle of the complainant, who was Sarpanch of village Virdi, sustained injuries and succumbed to the same. Likewise, in Sessions Case No.109 of 1987 Karmanbhai Jesingbhai died during the