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Chandgi Ram Vs. Shri Ram Phal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 364 of 1972
Judge
Reported in9(1973)DLT297; 1973RLR242
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439(1)(4) and 439(4)
AppellantChandgi Ram
RespondentShri Ram Phal and ors.
Advocates: D.R. Kalia,; B.R. Khurona,; D.C. Mathur and;
Cases ReferredMahendra Pratap Singh v. Sarju Singh
Excerpt:
.....the evidence of the case - it was held that the high court could not initiate re-appraisal of the evidence before the trial court, in exercise of its revisional jurisdiction - - apart from that the prosecution is under an obligation to bring home 'the guilt to the accused by adducing independent credible testimony (10) the trial court after discussing the evidence in detail did not find it reliable. (14) i sm of the view that alihough sub-section (4) of section 439 of the code does provide the jurisdiction to direct a retrial the power has to be exercised in exceptional cases where it is found that the acquittal inffers from an illegality incurable within the scope of section 537 of the code. there also may be cases but again exceptional in which for extraordinary reasons concerned..........the accused between spite of all caution, which the high court may observe while reweighing the evidence the trial court would be unable ' to ignore the opinion expressed by the high court that the appraisal of evidence rtsuiting into acquittal hsd been erroneous. (14) i sm of the view that alihough sub-section (4) of section 439 of the code does provide the jurisdiction to direct a retrial the power has to be exercised in exceptional cases where it is found that the acquittal inffers from an illegality incurable within the scope of section 537 of the code. there also may be cases but again exceptional in which for extraordinary reasons concerned with the breach of a subs tantive pro- vision it may be found that a retrial would be necessary. (15) this is not a case in which any.....
Judgment:

P.S. Safeer, J.

(1) This petition is directed against the acquittal of the respondents by the Judicial Magistrate, First cases. New Delhi recorded in terms of his Judgment, dated the 8 1972. February,

(2) Chandgi Ram who along with Jagdish suffered the injuries allegedly on the 15th of Septemper, 1968 has invoked the jurisdiction provided by section 439 of the Criminal Procedure Code, hers after called 'the Code,' sub-section (4), where in is :-

'S. 439(4) Nothing in this section applies to an entry made under section 273, or shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. '

(3) The State can make the choice of filing an appeal against an acquttal. Where such an appeal is preferred it would be the apellate jurisdiction which will be called in. Sub-section 4 is intended to impose the limitation which arises out of the precise distinction between the appellate and revisional jurisdiction. Howsoever, sup-section (1) of section 439 of the Code may be wide the limitation imposed by sub-section (4) regulates the exercise of revisional jutisdiction and the High Court cannot turn an acquittal into a conviciion.

(4) Before the learned counsel appearing for the petitioner could start his arguments Mr. D.C Mathur appearing for the State raised the preliminary objection that the petition against acquittal has been preferred without filing along with it the copy of the requisite order passed by the District Magistrate indicating that the State was not to be moved for filing an appeal against acquittal.

(5) The Order of acqittal was passed on the 8th of Februiry, 1972 and after obtaining the certified copy thereof a petition under sections 435/438 of the Code was filed in the Court of Sessions Judge, Delhi. The petition was with drawn on the 19th of May, 1972and filed on the same date in this Court. It is not controverter that if the petition had been filed in this Court on the 18th of May, 1972 accompanied by the copy of the order of he District Magisirate staling that tils State was not to be moved for filing the appeal against the acquittal then the petition would have been in time. As noticed the petition was withdrawn from the Court of the Sessions Judge and filed in this Court on the 19th of May, 1972. Adays delay arising out of mistaken legal advice is hereby excused in exercise of the power given by section 5 of the Limitation Act. It is, however, to be noticed that the petition was not accompanied by the copy of the District Magistrates order. In that behalf it is siguificant that in application had been made by Chandgi Ram under the date 6th May, 1972 to the District Magistrate that the State Government may be moved for filing an appeal against acquittal. If the District Magistrate had passed the order before the 18th of May, 1972 and remitted a copy thereof to Chandgi Ram before the expiry of period of limitation then alone Chandgi Ram would have been in a posilion to file the copy of the order of the District Magistrate. The District Magistrate however, passed the order on the 27ih ofMiy,1972 after the petition had been filed in this Court. In such a situation a delayed production of the copy of the order passed by the District Magistrate which was remitted to the counsel who appears for the petitioner when he made the request for it does not persuade me that the petition should be dismissed as being.out of time.

(6) Where an aggrieved. person moves the District Magistrate within the period of limitation that the State Government may be appro ached for filing an appeal agsinst acquittal and it is intended that no such appeal should be filed, an intimation of the decision should be given with all speed to such an aggrieved person. He has to invoke the revisional jurisdiction within the period prescribed by law The delay caused in the District Migistration's office should not contribute in any manaer to any negligence which may later on be urged as hiving occurred in respect of the filing of a revision pstition against acquittal.

(7) The prosecution allegations were that at about 9 30 a.m. on the 15th September, 1968 the present petitioner accomapmed by Jagdish who appeared as Public Witness . 5 was proceeding towards the village Tughlaqabad and that when both of them were entering 'Tehkhand Darwaja' respondents 1 to 7 attacked them and several lathi blows were given to the petitioner. The occurrence was stated to have been witnessed by P.Ws Ratl Ram and Chandan Singh. The report with the police was alleged to have been lodged by Chandan Singh. Chandgi Ram was later on medically examined. After investigating the case the respondents were challaned under sections 147/148/325 of the Indian Penal Code. The principal witnesses against the respondents apart from the petitioner and his companion were Jagdish, Chandan Singh and Rati Ram It was admitted by them that they were the cousins of Public Witness . 5 Jagdish. On appreciating evidence, the trial court found that there were two factions One of the factions comprised Chandgi Ram, lagdish, Rati Ram and Chandan Singh while the other was eonstituted by the respondents to this petition. In paragraph 13 of its judgment, the trial court recorded:

Pw Chandgi Ram has admitted is this cross examination thathe Along with Chandan Singh, Rati Ram and Jagdish wers together involved in a case under section 107 Cr. P.C. in which they were all bound down under seclifin 107 Cr P.C. to keep peace '

(8) Chandgi Ram also admitted that he and 3 other prosecution witnsses had been arrested some 2 3 months earlier to the occurrence regarding which he wag deposing. When examined Rati Ram admitted that there had been a long drawn litigalien between the respondents and Chandgi Ram, Jagdish, Chandan Singh and himself.

(9) 'TEHKHAND Darwuja' through which Chandgi Ram allegedly was entering Along with Jagdish was a place where at 9 30 a.m. many villagers would have collected. The selection of Cbandan Singh and Rati Ram real cousins of Jagdish and prior participants in many a litigation against the respondents as principal witnesses in itself placed the prosecution version under a shadow of doubt. As observed in Lieutenant Hector Thamas Huntley v. Emperor, before convicting a person accused of any offence every reasonable possibility of innocence has to be excluded. Apart from that the prosecution is under an obligation to bring home 'the guilt to the accused by adducing independent credible testimony

(10) The trial court after discussing the evidence in detail did not find it reliable. The medical evidence did persuade the trial court that the Injuries on Chandgi Ram could have remained confined to what they were if he had suffered 30-35 lathi blows as deposed by him,

(11) I have noticed sub-section (4) of section 439 of the Cade in an earlier part of the judgment. The Supreme Court became concerned with the scope of the jurisdiction provid'd by sectior 439 of the Code in lespect of the orders of acquittal in D. Stephens v, Nossibolla, and observed that it was not to be lightly exrcised.

(12) Interpreting the scope of subsections (1) and (i) of section 439 of the Code in Logendranath Jha and others v Skri Polai Lal Biswas' in paragraph 7 of the Supreme Court observed :-

'THOUGHsub-section (1) of Section 439 authorises the High Court io excrete, in its discretion any of the powers coafeircd on a Court of appeal by section 423, Sub section (4) specific-illy excludes the power to convert a finding of acquittal into one ofcoaviction.'

It was also irdicated that the High Court would not be ju.tified in the absence of any error on a point of law to re appraise the evidence and reverse the findings of tacts on which the acquittal may be based. Even where the judgment of the trial court could be characierised as per- verse and lacking in perspective the prohibition in sub-section (4) was to ensure to rule out the reversal of pure findings of fact by the High Court.

(13) The Supreme Court again dealt with the same provision in Mahendra Pratap Singh v. Sarju Swgh*, and formed the view that where a retrial is ordered by the High Court the dice is loaded against the accused between Spite of all caution, which the High Court may observe while reweighing the evidence the trial court would be unable ' to ignore the opinion expressed by the High Court that the appraisal of evidence rtsuiting into acquittal hsd been erroneous.

(14) I sm of the view that alihough sub-section (4) of section 439 of the Code does provide the jurisdiction to direct a retrial the power has to be exercised in exceptional cases where it is found that the acquittal inffers from an illegality incurable within the scope of section 537 of the Code. There also may be cases but again exceptional in which for extraordinary reasons concerned with the breach of a subs tantive pro- vision it may be found that a retrial would be necessary.

(15) This is not a case in which any illegality is shown to have been committed in the couise of the trial. It was on its appraisal of evidence that the trial court acquitted the respondents. Sub-section (4) of section 439 of the Code which curtails the jurisdictional power given by sub-section (1) of section 439 contains the concept that the scope of ihe appellate jurisdiction is different from that of the revi- sional jurisdiction and that the hearing of the appeal entitles the Court to re-hear the same for the purpose of weighing the evidence in the same way as the trial court may hav^ done. A coBvic'loB results from a trial which has to beheld in accordance with the provilions contained in the Code. The Court of appeal deals with the facti furnished by evidence. Sub-section (4) in section 439 of the Code enacts a signifi- cant limitation and takes away the jurisdiction from the High Court to turn an acquittal into a conviction. Such a depreviation of juris- diction rules out the re-appraisal of evidence by the High Court. That beitig 80 I do not find that the impugned judgment suffers from any illegality which may call for interference. 300 of the Cede in Logendranath Jha and others v Shri Polai Lal Biswas, in paragraph 7 of the Supreme Court observed :-

'THOUGHsub-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.'

It was also indicated that the High Court would not be justified in the absence of any error on a point of law to re appraise the evidence and reverse the findings of tacts on which the acquittal may be based. Even where the judgment of the trial court could be characterised as perverse and lacking in perspective the prohibition in sub-section (4) was to ensure to rule out the reversal of pure findings of fact by the High Court.

(13) The Supreme Court again dealt with the same provision in Mahendra Pratap Singh v. Sarju Singh, and formed the view that where a retrial is ordered by the High Court the dice is loaded against the accused because insSpite of all caution, which the High Court may observe while reweighing the evidence the trial court would be unable to ignore the opinion expressed by the High Court that the appraisal of evidence resulting into acquittal had been erroneous.

(14) I sm of the view that although sub-section (4) of section 439 of the Code does provide the jurisdiction to direct a retrial the power has lo be exercised in exceptional cases where it is found that the acquittal inffers from an illegality incurable within the scope of section 537 of the Code. There also may be cases but again exceptional in which for extraordinary reasons concerned with the breach of a substantive provision it may be found that a retrial would be necessary.

(15) This is not a case in which any illegality is shown to have been committed in the course of the trial. It was on its appraisal of evidence that the trial court acquitted the respondents. Sub-section (4) of section 439 of the Code which curtails the jurisdictional power given by sub-section (1) of section 439 contains the concept that the scope of the appellate jurisdiction is different from that of the revisional jurisdiction and that the hearing of the appeal entitles the Court to re-hear the same for the purpose of weighing the evidence in the same way as the trial court may have done. A convction results from a trial which has to beheld in accordance with the provisions contained in the Code. The Court of appeal deals with the facts furnished by evidence. Sub-section (4) in section 439 of the Code enacts a significant limitation and takes away the jurisdiction from the High Court to turn an acquittal into a conviction. Such a depreviation of jurisdiction rules out the re-appraisal of evidence by the High Court. That being so I do not find that the impugned judgment suffers from any illegality which may call for interference.

(16) The petition is dismissed.


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