2008 Supreme(SC) 149

2008(1) Supreme 637
Supreme Court of india
S.B. Sinha & V.S. Sirpurkar, JJ.
Johar and others — Petitioners
versus
Mangal Prasad and another — Respondents
Appeal (crl.) 215 of 2008
Decided on : 30-01-2008

Important Point
Revisional jurisdiction of the High Court in terms of Section 397 read with Section 401 of the Code of Criminal Procedure is limited.

Headnote:Criminal Procedure Code, 1973 – Section 401 - Prosecution of appellant accused persons for commission of offence u/s 148 and 302 of IPC – However appellants convicted u\s 323 r/w 34 on ground that A1 to A4 had only caused simple injuries to deceased and provisions of S. 148 and 149 of IPC were not attracted - High Court went into evidence adduced on behalf of prosecution and in regard to deposition of official witnesses including Autopsy Surgeon it was commented that willful act of Doctor in not referring to other injuries in post mortem report disclosed his intention to protect accused who were guilty of commission of murder –– High Court opined that having regard to nature of deposition of Autopsy Surgeon, Trial Court committed a grave error in ignoring other relevant materials brought on records to pronounce a judgment of acquittal in favour of appellants - Judgment of acquittal passed by Trial court was set aside and case was remanded to Trial court to pass judgment on basis of evidence on record – Appeal - Revisional jurisdiction of the High Court in terms of Section 397 read with Section 401 of the Code of Criminal Procedure is limited - High Court did not point out any error of law on part of Trial Judge – High Court not opined that any relevant evidence had been left out of its consideration by court below or irrelevant material had been taken into consideration - High Court entered into merit of matter and commented upon creden-tiality of Autopsy Surgeon –- Instantly High Court not only entered into merit of the matter but also analysed depositions of all witnesses examined on behalf of prosecution –– High Court relied upon evidence of so called eye witnesses to hold that although appellants herein had inflicted injuries on head of deceased, Dr. PW-9, deliberately suppressed the same –Evidently High Court raised a presumption that Autopsy Surgeon deliberately did not disclose ante mortem head injury purported to have been suffered by deceased - High Court should have kept in mind that while exercising its revisional jurisdiction under Sections 397 and 401 of Code of Criminal Procedure, it exercises a limited power – A bare perusal of judgment of High Court clearly demonstrated that in effect and substance finding of Trial Judge had been reversed - While hearing matter afresh in terms of direction of High Court Trial Judge would be bound by observations made therein and thus, would have no option but to convict appellants - Not only evidence of prosecution witnesses had been relied upon and that of Autopsy Surgeon had been disbelieved but Trial Judge had also been asked to initiate an appropriate proceeding against him - High Court exceeded its jurisdiction in view of fact that judgment of Trial Judge could not be termed to be a perverse one - Unfortunately, High Court did not meet reasonings of Trial Judge which was its bounden duty - Impugned judgment being unsustainable held liable to be set aside accordingly - Appeal allowed. (Paras 16, 17, 20 to 26)

       Facts of the Case :

       1.Appellant accused persons herein in the instant case were prosecuted for commission of offence u\s 148 and 302 of IPC. However appellants were convicted u\s 323 r\w 34 on ground that A1 to A4 had only caused simple injuries to deceased and provisions of S. 148 and 149 of IPC were not attracted. High Court went into evidence adduced on behalf of prosecution and in regard to deposition of official witnesses including Autopsy Surgeon it was commented that willful act of Doctor in not referring to other injuries in post mortem report disclosed his intention to protect accused who were guilty of commission of murder. High Court held that post mortem report was incomplete report prepared by doctor to give undue advantage to accused. Judgment of acquittal passed by Trial court was set aside and case was remanded to Trial court to pass judgment on basis of evidence on record for each offence.

       2.Present appeal has been filed against said order of High Court.

       Findings of the Court :

       High Court relied upon evidence of so called eye witnesses to hold that although appellants herein had inflicted injuries on head of deceased, Dr. PW-9, deliberately suppressed the same. Evidently High Court raised a presumption that Autopsy Surgeon deliberately did not disclose ante mortem head injury purported to have been suffered by deceased. High Court should have kept in mind that while exercising its revisional jurisdiction under Sections 397 and 401 of Code of Criminal Procedure, it exercises a limited power. A bare perusal of judgment of High Court clearly demonstrated that in effect and substance finding of Trial Judge had been reversed . While hearing matter afresh in terms of direction of High Court Trial Judge would be bound by observations made therein and thus, would have no option but to convict appellants . Not only evidence of prosecution witnesses had been relied upon and that of Autopsy Surgeon had been disbelieved but Trial Judge had also been asked to initiate an appropriate proceeding against him. High Court exceeded its jurisdiction in view of fact that judgment of Trial Judge could not be termed to be a perverse one . Unfortunately, High Court did not meet reasoning of Trial Judge which was its bounden duty . Impugned judgment being unsustainable held liable to be set aside accordingly .Appeal was allowed.

       Result : Appeal allowed.