U. Gopal Reddy vs State of Orissa and Another

P.K. Tripathy, J.—Opposite party No.2 Bingi Adinarayan Reddy was the accused in Sessions Case No. 24 of the 1992 of the Court of Addl. Chief Judicial Magistrate-cum-Assistant Sessions Judge, Berhampur, facing a trial for the offence punishable u/s 307, I.P.C. and Sections 25/27 of the Arms Act. The allegation against him in substance was that on 3.7.1992 at about 6.40 P.M. he by use of country-made unlicensed pistol fired two rounds of bullet aiming at the informant/petitioner U.G. Reddy, a local medical practitioner at Mendrajpur under Golanthra Police Station. As a result of that firing petitioner sustained bullet injuries on his cheek affecting the ramus of the right mandible near pharyngial pouch. In order to bring the accusation for the aforesaid charges, prosecution relied on the evidence of the solitary eye-witness i.e., the informant-injured (petitioner) and the circumstantial evidence of P.Ws.2 to 9, all of whom heard the sound of two shots of firing from the clinic of the petitioner. Some to them saw the accused running away whereas Ors. saw the petitioner coming out from the clinic with bleeding injury and making a statement instantaneously about opposite party No. 2 having caused the injury. It be noted that according to petitioner the first round of bullet missed the target whereas the second shot hit on his cheek. It is also the prosecution case that at the time of firing the distance between the accused and the injured was about 2 to 3 cubits. Prosecution also relied on the evidence of P.W.10, who is the Investigating Officer, and P.W.11, who is the Associate Professor of Berhampur Medical College, P.W. No. 11 along with other doctors treated the petitioner and granted Injury Certificate. Prosecution also relied on various documentary evidence such as F.I.R. Ext.1, Seizure List of the pistol, blood-stained wearing apparels, fire-cartridges both recovered from the clinic as well as from the mandible of the injured etc. under different seizure lists marked as Ext. 2 to 6, sanction order of the Collector Ext. 8, document relating to treatment of petitioner Exts.10 and 12, and the report from the Director, S.F.S.L. relating to possibility of the pistol seized being the weapon of offence. It is noted in that report Ext.9 that the fired cartridge seized from the clinic of the petitioner as well as the bullet from his mouth were fired from the pistol (M.O.IV). Other articles seized included the fired and the live catridges, wearing apparels etc. which have been marked as M.Os. I to XIV. On assessment of such direct and the circumstantial evidence, the trial Court believed the prosecution case and rejected the theory advanced by the accused about a false case having been initiated due to party faction and group rivalry. The trial Court thus convicted the accused for all the aforesaid offences and imposed the sentence in accordance with law.

That order of conviction was challenged by the accused/opposite party No. 2 in the Court of Sessions Judge, Ganjam-Gajapati at Berhampur. Learned Sessions Judge on December 17, 1984 allowed that appeal by setting aside the order of conviction on the ground that there is discrepancy in the version relating to the occurrence as depicted in the F.I.R. and as stated by P.W.1 in course of his evidence. Appellate Court cast doubt on the genuineness of the prosecution for non-examination of the nearby hotel owner, one Jairam Sahu. Similarly, the appellate Court did not pout confidence in the truthfulness and veracity of the other witnesses on the ground that when the accused after firing the shots was running away. P.Ws.2. 5 and 7 who had seen him running did not stop or chase him and therefore, that is against the probable human conduct and for that, evidence of such witnesses is not reliable. Appellate Court also took note of the defence plea of party faction as aground to disbelieve genuineness and credibility of the prosecution witnesses. That Court also found delay in lodging the F.I.R. and disbelieved the seizure made in accordance with Section 27 of the Evidence Act relating to discovery of the bullet by the investigating Officer not at his first visit but on the next day. Appellate Court also found the order of sanction Ext.8 for prosecuting the appellant u/s 25/27 of the Arms Act to be not in conformity with the law, and for all such reasons learned Sessions Judge granted benefit of doubt and acquitted the accused/opposite party No. 2

Since the State did not challenge that order of acquittal granted by the appellant Court, therefore, the informant/injured has preferred this revision challenging the order of acquittal recorded by the Sessions Judge. Berhampur as per the impugned judgment dated 17.12.1994 in Criminal Appeal No. 34 of 1993.

While exercising revisional jurisdiction against an order of acquittal, this Court is to see if there is any illegality in the impugned judgment, in which order of conviction has been reversed. In view of the provision in Sub-section (3) of Section 401, Code of Criminal Procedure. while in seisin against an order of acquittal, it should be dealt with carefully and cautiously and to interfere with in illegality which goes to the root of the case or if non-interference will end in failure of justice. In the case of K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, , while dealing with an order of acquittal granted by the appellate Court by way of reversing the order of conviction of the trial Court for the offence u/s 411, Code of Criminal Procedure. the Apex Court has propounded that:

(7) 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 Section 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 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 not 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. 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 Section 439(4). We have therefore to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles.

But the Apex Court did not appreciate the manner of disposal by the High Court and stated that:

(8) A perusal of the judgment of the High court shows that the High Court has gone into the evidence in great detail'' so far as the case against the appellant was concerned. In our opinion, the High Court should not have dealt with evidence in such detail when it was going to order a retrial, for such detailed consideration of evidence, as pointed out in Logendra Nath Jha and Others Vs. Shri Polailal Biswas, amounts to lodging the dice against the appellant, when the case goes back for retrial.

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If the High Court had confined itself only to the admissibility of this part of the statement, it would have been justified in interfering with the order of acquittal. Unfortunately, the High Court went further and appraised the evidence also which it should not have done, as held by this Court in Logendra Nath Jha and Others Vs. Shri Polailal Biswas, . However, if admissible evidence was ruled out and was not taken into consideration that would in our opinion be a ground for interfering with the order of acquittal in revision.

In the case of Chaganti Kotaiah and Others Vs. Gogineni Venkateshwara Rao and Another, , the Apex Court propounded that on a revision by a private party against the order of acquittal, High Court should not interfere unless it is pointed out that the impugned judgment suffers from defect of procedure or manifest error on point of law. Same view has been expressed by the Apex Court in the case of Akalu Ahir and Others Vs. Ramdeo Ram, ; Satyendra Nath Dutta and Another Vs. Ram Narain, ; Pakalapati Narayana Gajapathi Raju and Others Vs. Bonapalli Peda Appadu and Another, and Bansi Lal and Others Vs. Laxman Singh, .

In view of the above settled position of law and guidance from the Apex Court, after careful perusal of the evidence on record and the relevant findings recorded by the trial Court for conviction and by the appellate Court for acquittal, this Court has no hesitation to come to a finding that the order of conviction recorded by the trial Court and the reasonings thereof has not at all been considered by the appellate Court while interfering with the order of conviction. The appellate Court should bear in mind that his Court is the final Court on fact and therefore such jurisdiction should not be exercised whimsically, carelessly and casually. When the. appellate Court finds that for some reasons the order of conviction is liable to be interfered with, then the appellate Court has to give reasons, any good reasons, for interfering with the finding on fact recorded by the trial Court and thereafter the Appellate Court is to give his opinion about credibility or non-credibility of any item of evidence in support of his finding in favour of an order of acquittal. When the finding recorded by the trial Court is based on sound appreciation of evidence on record and totality of the circumstances, it is not permissible for the appellate Court to pick and choose one point or other and to record an order of acquittal without duly considering the whole scenario an the evidence. The present case is an example of such manifest illegality committed by the appellate Court by picking and choosing stray instances of some contradictions or omissions. Learned Sessions Judge did not at all considered the correctness or incorrectness of the reasonings given by the trial Court in support of the order of conviction. For that reason, the impugned order of acquittal is vulnerable and liable to be interfered with in as much as maintaining such an order of acquittal is not only against the interest of justice but also against the sound principle of law. This Court expresses no opinion, keeping in view the guidelines provided by the Apex Court, on the merit of the case. It is left open to be reconsidered by the appellate Court in its totality and due introspection of both fact and law vis-a-vis finding recorded by the trial Court on relevant issues and dispose of the appeal afresh strictly in accordance with law. It will be proper for learned Sessions Judge to hear the parties afresh. For that reason and with that observation. the impugned order of acquittal recorded by the learned Sessions Judge Derhampur. In Criminal Appeal No. 34 of 1993 stands set aside. Since the occurrence took place as back as in 1992, therefore, it will be proper and prudent for learned Sessions Judge to hear the appeal and dispose of the same within a period of two months from the date of receipt of the records. To avoid delay in the matter, parties are directed appear in the Court below on 25th November, 2002. Of course, the informant has no right of argument in the appellate Court save and except assisting the Public Prosecutor, and in that respect if the informant shall find that the prosecution for any reason is against him, then it is upto the appellate Court to permit the informant to submit a note of submission with opportunity to the accused to reply to the same. If the opposite party No.2/appellant shall appear in the appellate court on 25th November. 2002 and shall apply u/s 389, Code of Criminal Procedure for bail during pendency Of the appeal, then he shall be permitted to remain on bail under same terms and conditions which were imposed in the earlier occasion. However, if he shall not appear and apply in that manner, then the trial Court be directed to issue warrant for his arrest and detention in custody on the basis of the order of conviction.

The Criminal Revision is allowed accordingly. Send back the L.C.R. along with a copy of his judgment to the Court of Sessions Judge at Berhampur, and Registry shall see to it that L.C Rs. are received In that Court at least by 22nd November, 2002.