D.R. Khanna, J.
(1) This criminal revision has been moved by Laxman Singh against the acquittal of five respondents by the court of Additional Sessions Judge, Delhi in the case registered under Section 302/34 Indian Penal Code . resulting from the murder of his brother Ram Chander. According to him, the trial court entirely misdirected itself, laid emphasis of irrelevancies while material circumstances were ignored, and the conclusions arrived at were also perverse. It is pointed out that although the respondents admitted that they were involved in the incident leading to the .death of Ram Chander, and pleaded that they acted in the right of self-defense, still the court did not give a finding of guilt when five persons assaulting a single person could not by any stretch be treated as exercising their right of self-defense.
(2) The state was earlier moved to file an appeal, but it declined to do so.
(3) Briefly stated the prosecution case was that on the mid-night of 3rd and 4th June, 1980, Laxman Singh, petitioner (P.W.1) was sleeping on the roof of his house No. E-365, Rajghat Power House, Desu Colony, Delhi, along with his cousin Moti Lal (P.W. 7). They then heard noise of quarrel and shouts of 'bacbao-bachao,' and as such came down in the lane. There they found that Baladin accused and Jai Prakash accused had caught hold of Ram Chander and were abusing and beating him. Babu Lal of the adjoining quarter also came there, and when they three tried to intervene and separate Baladin, Jai Prakash and Ram Chander, Baladin shouted towards Bhagwat accused who was looking down from his .quarter, saying that Bhagwat was just watching him being beaten, and what was the use of his relationship with him. Bhagwat, Bansi and Swayamvar then came there, the former two having lathis in their hands. Bhagwat then gave a call that Ram Chander be finished thereby putting an end to daily quarrels. Jai Prakash, Baladin and Swayamvar then caught hold of Ram Chander, while Bhagwat gave a lathi blow on his head. 164 Ram Chander, got himself released and picked up an iron handle of a hand- pump lying nearby, and gave a blow with the same on the head of Baladin and another on the left shoulder of Bhagwat. At this Ram Chander was given lathi blows on his head by Bhagwat and Bansi. Ram Chander fell down bleeding. All the five accused then fled away with their lathis.
(4) The police reached the spot about 15/20 minutes father as it appeared that some unknown person had telephoned the Darya Ganj police station at 2.00 A.M. that a severe quarrel was going on in E-block of Desu Colony. Another report was lodged by Baladin accused at 2.20 A.M. on telephone with the same police station that a quarrel was going on at Naiwali line by a person who was drunk, and the police be sent there. Balbir Singh S.I. who headed the police party which had reached there, recorded the statement of Laxman Singh, and sent that at 2.45 A.M. to the police station for registration of a case. That statement Ex. Public Witness . I/A constitutes the F.I.R. in the case. It was then also found that Ram Chander had expired at the spot. There was considerable blood around him, photographs of which were taken by the crime branch team. Two pieces of hand-pump handle, some bricks, a pair of chappal and one hunter were also lying there.
(5) Baladin accused had in the meanwhile got himself admitted in J.P.N. Hospital from where he was arrested by Roshan Lal S.I. (P.W. 15) after his discharge there from at about 12 noon on 4.6.1980. His blood stained clothes were taken into possession. Bhagwat, Bansi and Jai Prakash accused were arrested by the police at about 12.30 P.M. the same day near the Pushta of a nullah near Jamuna river. Earlier Swayamvar accused had been taken into custody at about 9.30 A.M. from Jamuna Pushta.
(6) Bhagwat and Bansi then made separate statements before the police on the afternoon of the same day in the presence of Hari Lal (P.W. 4) and before Balbir Singh, S.I. (P.W. 16) to the effect that they could got recovered the lathis. Those were get recovered by them from near Jamuna Pushta near Power House. The lathis had human blood on them, and one of them was of Ab group which corresponded with that of Ram Chander deceased, and the other's analysis gave inclusive result.
(7) The Post-mortem of the body of Ram Chander revealed 26 injuries on his body including three lacerated wounds on his head. The others were abrasions and contusions, all anti-mortem. Two death was the result of the injuries inflicted on the head by blunt force, and were opined to be sufficient to cause death in the ordinary course of nature.
(8) The injury on the person of Baladin was simple in nature in the form of 2 cms. lacerated wound on the skull, vide Ex. Public Witness . 17/A. There was a mention in his getting involved in a fight.
(9) The prosecution examined there eye-witnesses of the occurrence. They were Public Witness . I Laxman Singh, Public Witness . 2 Babu Lal and Public Witness . 7 Moti Lal. Laxman Singh and Moti Lal fully supported the prosecution case, while Babu Lal was declared hostile as according to him, he was sleeping on the road in that night, and heard noise of quarrel. He then found one Jogender who lived in the quarter of Ram Kishore, quarrelling with Ram Chander and giving lathi blows to him. He was confronted with his statement before the police under section 161 Cr. P.C. in which he had supported the prosecution case, but denied having stated so. He also added in cross-examination by the defense counsel that at about 12.30 A.M. that night Jogender and Mohan had Vol. xxvii Laxman Singh v. Jai Parkash & Ors. 165 a quarrel with Ram Chander when the latter was drunk, and he separated them.
(10) Bhagwat accused in his statement under Section 313 Cr.P.C. admitted his presence at the spot at the time of incident, and stated that on hearing commotion he came down from his house, and saw Ram Chander giving blows to Baladin with the handle of hand-pump, and also abusing him. He then told Ram Chander not to do so, but instead was given blows with the handle by Ram Chander. At that time Jogender and Mohan tried to intervene, but Ram Chander attacked them as well with the handle which struck the ground and broke into two-three pieces. Ram Chander with a part of the handle again attacked Jogender and Mohan who returned lathi blows in self-defense. Jogender and Mohan then ran away from there. According to him, he and other co-accused were at the spot when the police came there. He was got examined medically in the police hospital vide reports Ex. Public Witness . 18/A and Ex. Public Witness . 18/B. The injuries found were just abrasion, bruise and swelling.
(11) Baladin on his part stated that Ram Chander deceased was a desperado and he had earlier quarrelled with Joginder and Mohan. At 12.30 that night Ram Chander came there after being drunk and started abusing and disturbing people. He then told Ram Chander that why he disturbing the people at night. Ram Chander then started abusing and grappling with him and took out a handle of hand-pump and hit him with that on his head. He started bleeding. Ram Chander continued abusing people. On hearing commotion Bhagwat came there, but Ram Chander gave blows to him as well with the handle. Many neighbours then assembled. Ram Chander tried to give blows with the handle to Jogender and Mohan, but that struck the ground and was broken. They then brought lathis and hunter in self-defense and gave blows to him, and he fell down. Baladin states that he then proceeded to the police station to lodge a report, but on the way Control Room police van met him and took him to the hospital and got him admitted there. He added that be was taken by the police at 9.00 A.M.. on 4.6.1980 from the hospital to the police station which took him blood stained clothes into possession.
(12) Jai Prakash accused also stated that Ram Chander gave blows to Baladin and Bhagwat. He also stated that he was present at the spot when the police came there and was taken to the police station from there. According to him, few days before the occurrence there was a quarrel between him and the deceased over children, and as such he was falsely implicated.
(13) Bansi accused stated that he was related to Bhagwat and thereforee, was falsely implicated. According to him, he was present at the spot when the incident took place, but denied that Laxman Singh and Moti Lal were there.
(14) Swayamvar accused on his part also admitted his presence at the spot, but added that he was falsely implicated as he was cousin of Baladin.
(15) Three witnesses have been examined defense. Of them Ram Samer(SD.W1) stated that it was the deceased who was creating row after taking liqour, and that when Baladin told him to desist from the same, he started grappling with him. The witness and Mandhai separated them but Ram Chander removed the handle of hand-pump and hit Baladin with the same, resulting in the latter bleeding profousely. Mohan and Jogender then came 166 there. Bhagwat also told the deceased not to quarrel at which he was attacked by the deceased. Ram Chander tried .to hit Mohan with the handle, but the same bit the ground and broke into two pieces. Jogender then brought a lathi and a hunter, and he and Mohan gave a number of lathi blows to Ram Chander who fell down. Both of them then ran away from there. Similar was the deposition of Mandhai (DW 2). Both of them, however, were not able to give any description of Jogender and Mohan and what they were wearing. They admitted that they did not complain to anybody that the accused had been falsely implicated, and that the real culprits were Mohan and Jogender who had fled away from the colony and never returned there thereafter.
(16) Kailash Chand (D.W. 3) stated that about five days prior to the date of occurrence, the children of Prakash accused and Ram Chander were fighting with each other, and an altercation took place between Ram Chander and Prakash.
(17) The learned trial court after considering the evidence held that the charge against the accused was not established, and acquitted them. Since the present revision is by a private individual who happens to be the brother of the deceased. I must, before referring to the impugned judgment and the contentions raised, point out the position of law while deciding such appeals. In K.ChinnaswamyReddy v. State of Andhra Pradesh and another, : 3SCR412 , it was observed 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 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. Even in such such cases the High Court cannot convert the finding of acquittal into that of conviction but must order retrial. Similar was the view in Logendranath Jha and others v. Shri Polai Lal Biswas, : 2SCR676 . In Mahendra Pratap Singh v. Sarju Singh and another, : 1968CriLJ665 it was observed that the High Court is in error in re-weighing the evidence as if in appeal and ordering retrial. Similar view was taken in Akalu Ahir and others v. Ramdeo Ram : 1973CriLJ1404 and in Satyendra Nath Dutta and another v. Ram Narain, : 2SCR743 .
(18) In Caetano Piaedade Fernandes and another v. Union Territory of Goa, Daman & Din, Paitaji, Goa, : AIR1977SC135 , the Supreme Court, however, has observed that it is now well settled that the Appellate Court has the same powers as the trial Court of appreciating evidence and coming to its own conclusion on questions of fact, it should not interfere with an acquittal, unless it is found that the view taken by the trial court is unreasonable or perverse. If the view taken by the trial Court is a reasonably possible view, the appellate Court should not disturb and acquittal merely because it thinks that another view is better or more preferable. That was, of course, a case of State appeal.
(19) With this background of the law and the limited powers available with this Court, I now proceed to discuss the contentions raised and the judgment delivered by the learned trial court. I will restrain myself from going deep into the merits of the evidence or fetter, in any manner, the discretion of the trial court in this regard. It must, however, unfortunately be said that the approach adopted by the learned trial court has been entirely 167 negative. While rejecting the prosecution version, the court also did not give any credence to the defense version of the injuries caused to the deceased by Mohan and aJogender. The plea of self-defense was also negatived on the part of the accused.
(20) As already noted above, there has been the evidence of two eyewitnesses directly implicating the accused with the crime of murdering Ram Chander. It was one against five, and on the face of it the plea of self- defense set up by the accused does not sound credible. The injuries received by the two accused were superficial except that Baladin had a small and simple lacerated wound on his forehead. The handle of the hand pump was not initially with the deceased when the incident started, but was taken from the hand-pump during the course of the same when he was finding himself being assaulted. It more appeared to be an act of self-defense attack on him. The defense version that the deceased himself created nuisance and picked up fight with Baladin and Bhagwat as be was drunk and was creating nuisance again on the face of it stands negatived from the post-mortem report when no liquor was found in the stomach of the deceased.
(21) The learned trial court has laid emphasis on the absence of the motive on the part of the accused to have attacked the deceased. The fact that the accused were embroiled with the deceased in that incident itself is brought out by the statements of the accused themselves recorded under Section 313 Cr. P.C. It is now well settled that where ocular witnesses are there and depose about the accused having caused fatal injuries, absence of motive need not be attached undue importance. Rather the motive may be known to the accused themselves. Moreover, in the present case material has come on record that in the year 1980 the deceased had as.ked Baladin and his relations who were quarrelling in the street after the cremation of a girl who had died in the neighborhood, to not make noise. Baladin had then given beating to the deceased who then as well returned that to him. Rather he was said to have nursed a grudge against the deceased. Then there is also the evidence that some days before the incident the children of the deceased and Jai Prakash accused had fight, and an altercation later took place between the two.
(22) The learned trial court has also referred to the non-mention by the eye-witnesses of how the fight initially started. The eye-witnesses could have naturally deposed of what they saw. If they were aroused from sleep by the noise at a particular stage, they had to depose what was witnessed by them then. In fact, the substantive part of the incident which resulted in the death of Ram Chander, took place before them. Much has been sought to be made out that Baladin had shouted at the time of quarrel towards Bhagwat who was looking down from his quarter, saying that Bhagwat was just watching him being beaten, and what was the use of his relationship with him. From this it has been sought to be brought out that Baladin was being attacked by the deceased, and he invited help from Bhagwat and his relations. However, a perusal of the evidence in this regard shows that this happened when the two eye-witnesses and Babu Lal (the alleged eye-witness who was declared hostile) had come down from the quarter and had tried to intervene and separate Baladin and the deceased. Baladin in the circumstances could have as well taken the interception by these three persons as he being reduced to single handed and being attacked. It more appears in this context that he invited others lest he was out numbered, or they intervened to separate the deceased from him. The significant fact in the present case is that none of 168 the accused received any injury which could be said even serious. They were of very minor nature. Instead the deceased had three lacerated wounds on his head resulting in his death. There were apart a large number of abrasions, bruises, contusions etc. They show to what extent the assault had been inflicted on him. The learned trial court has observed that these injuries were not explained. It is difficult to grasp in what other manner the prosecution could establish when it brought out that five persons had grappled and attacked the deceased. Several of the injuries, according to the doctor who conducted post-mortem, could be by fall on hard surface. Naturally the deceased in injured condition must have writhed in acute pain and convulsions on the ground when he had fallen down.
(23) Again there is the observation by the learned trial court that it was not established how the hunter and the 'chappals' were found there. In that melee all this could not be treated as unnatural. The bringing in of hunter has been brought out in the evidence.
(24) The police had reached the spot shortly after the incident, and the first information report by Public Witness . 1 Laxman Singh was recorded immediately thereafter and was sent for registration of the case at 2.45 A.M. There was hardly any time gap for Laxman Singh to manipulate facts. It is also difficult to grasp that he would have been keen to not implicate the real culprits and instead rope in innocent persons. The identity of Mohan and Jogender has not been established. They are not persons of that locality, and in fact this is more a diversionary futile attempt made by the accused. They rather admit in their statements of the scuffle with the deceased. Baladin's medical also shown that there was a mention in that that he was involved in a fight.
(25) Another significant aspect in the present case has been that the two lathis recovered at the instance of two accused, namely, Bhagwat and Bansi brought out that there was human blood on them. One of them had the same blood group which the deceased had, while the analysis of the other was inconclusive.
(26) The learned trial court has also rejected the evidence of Moti Lal (P.W. 7) on the ground that he did not have any ration card of the locality. The statement of this witness was recorded by the police on that very night, and it has been stated by Laxman Singh that he was staying with him there for some time. There should be quite a number of people living in Delhi like this without ration-cards. This circumstance alone need not call for rejection of the testimony of this witness. Much emphasis was laid by the learned trial court that in the F.I.R. Laxman Singh had mentioned him as his cousin. This Laxman Singh has stated so in the court as well, and so also the witness, but it was clarified by them that the same was in loose term prevalent generally in the villages of near one being called a cousin.
(27) Jai Prakash and Bhagwat accused did not attend their duty with D.E.S.U. on the next morning. Had they nothing to do with the crime, they would have in the natural course joined their contention, thereforee that they were not absconding and had not been arrested at about 12 noon, does not sound credible.
(28) The evidence of some of the witnesses that there were some charpoys lying in the lane when they had gone to sleep, and, thereforee, those witnesses should have also been examined, does not essentially lead to the inference that they were there at the time of the incident and witnesses the same. The 169 investigating agency recorded statements of three eye-witnesses, and in case the evidence of any of them inspires confidence beyond reasonable doubt to hold the accused guilty, the absence of multiplication of witnesses is besides the mark. A relation with whom the deceased was staying, and who saw the occurrence cannot be disbelieved on the ground of relationship only. The tendency amongst the members of the public to keep from being involved as witnesses in serious criminal matters, cannot be ignored, The significant consideration to be kept in view is, are there any special reasons for the eye witnesses even if they are relations to shield the real culprits and maliciously involve the innocent ones.
(29) The first information report is of the person at whose instance the case gets formally registered. It is as per his own version of the occurrence as he has witnessed or what has come to his knowledge. It is not essential that in such first information report the names of all the eye witnesses should be mentioned. That is required of the investigation to unfold.
(30) So far as the finding of particular blood group on the clothes of Laxman Singh, there was nothing unusual in the same, as he being the brother the deceased would naturally have attempted to separate the assailants. In the desperate melee on his part to rescue his brother he naturally would have come in contact with the accused as well, and so must have the deceased with the accused. Minor discrepancy about time factor of the sending of the dead body to the mortuary because of passage of time also need not be given undue significance. One of the witnesses of the recovery of the lathis, namely. Tulsi Dass, has, of course, not been examined. The question to be considered is whether the testimony of the other two witnesses is worth reliance. Most significant aspect in this regard is that both the lathis had human blood, one of which tallied with that of the deceased.
(31) Section 397 Cr. P.C. creates revisional jurisdiction and empowers the court to call for and examine the record of any proceeding before any inferior criminal court. There is no fetter enjoined that is can be exercised at the instance of the one or the other party. The Court can act suo moto. Rather when a party moves the Court for exercise of such right, it is only invoking the Court to do so itself, and call for the record and examine the same. He need not even be heard. Section 401 of the Code next elaborates that the High Court while deciding a matter under its revisional jurisdiction can exercise any powers conferred on Court of Appeal by Sections 386, 389, 390 and 391 or in a Court of Session by section 307. The Sections enable the Court to pursue through the evidence and reverse or alter the finding, maintaine, reduce or enhance the sentence etc. The only limitation prescribed under Section 101 is that in the exercise of power of revision the High Court cannot convert a finding of acquittal into one of conviction. It can also not proceed by way of revision where under this Code an appeal lies, and none such has been brought. It has been under these circumstances that the position of law as has been discussed above, has come to be that while exercising revisional jurisdiction against an acquittal the Court can only order retrial and not convert the acquittal into conviction. Thus in an appeal case Podda Narayana and others v. State of Andhra Pradesh, : AIR1975SC1252 , it was observed that where acquittal is based on untenable reasons, and the approach of the Court was perverse and legally erroneous, and the view taken was not possible, the High Court has ample powers to reverse the order of acquittal under Section 417. 170
(32) The basic error of law which the learned trial court has in the present case committed, is when it cast doubt on the prosecution case for want of motive. It is now well settled in a catena of judicial pronouncements that where ocular and direct evidence is available, the absence of motive looses its significance. Similarly a person's evidence cannot be rejected simply because he happens to be a relation when his presence at the place of incident was natural. In the present case, the deceased was residing with Laxman Singh, and the incident took place in front of that house. Testimony of Laxman Singh and Moti, thereforee, did not deserve to be rejected on the ground of relationship only. No attempt was made by the learned trial court to weigh their evidence on their merit, and instead a negative approach was throughout adopted. This was deprecated by the Supreme Court in the case Molu and others v. State of Haryana, : 1976CriLJ1895 , when it was observed that the Court should make every effort to disengage the truth from the falsehood and to sift the grain from the chaff rather than take the easy course of rejecting the entire prosecution case merely because there are some embellishments, It is also well settled that falsus in uno is falsus in ominous approach is not applicable to Indian conditions (see 1950 Supreme Court 460).
(33) In the case of Rajinder Kumar and another v. State of Punjab. Air 1966 SC 132, it was observed that motive behind a crime is relevant fact of which evidence can be given. The absence of a motive is also a circumstance which is relevant for assessing the crime. The circumstances which is relevant for assessing the crime. The circumstances which prove the guilt of the accused are, however, not weakened at all by this fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to a certain course of action. In the case Bahal Singh v .State of Haryana, : 1976CriLJ1568 , it was noted that even if the genesis of the motive of the occurrence was not proved the ocular testimony of the witnesses as to the occurrence could not be discarded only on that account, if otherwise it was reliable. (See.also Narayan Nathu Naik v. The state of Maharashtra, : 1SCR133 ).
(34) It must unfortunately be said in the present case that a basic error was committed by the learned trial court in not pruning the evidence at its own value. Instead a negative approach was adopted, insignificant matters high lighted, while substantive evidence over-looked.
(35) I am in the circumstances, constrained to set aside the acquittals of the respondents, and send back the case for retrial. The evidence already on record will be taken into account. To appear before the trial court on 28.11.1984.
(36) Before concluding the trial court is cautioned that nothing in this order will be, in any manner, considered as an expression of opinion on the merits of the case or the evidence produced. The trial court will be free to core to its own independent findings.