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2008(6) Supreme 657
SUPREME COURT OF INDIA
(From Bombay High Court)
C.K. THAKKER and D.K. JAIN jj.
State of Maharashtra — Appellant
versus
Sujay Mangesh Poyarekar — Respondent
Criminal Appeal No. 1492 of 2008
Arising out of Special Leave Petition (Crl.) No. 7251 of 2007
Decided on : 19-09-2008
(1963) 3 SCR 412 – Relied upon.
(b)Code of Criminal Procedure, 1973 – Sections 401 and 378 – Powers of revisional Court are limited, but rejection of a revision application cannot affect the power of the State in invoking statutory remedy available under Section 378 of the Code. (Para 18)
(c)Code of Criminal Procedure, 1973 – Section 378(3) – Leave to appeal – In deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside. (Para 22)
(1979) 2 SCC 656 – Relied upon.
(d)Code of Criminal Procedure, 1973 – Section 378 – Although the presumed innocence of an accused is reinforced by acquittal, the appellate court on finding the order of acquittal perverse can interfere. (Para 37)
(2007) 4 SCC 415 – Relied upon.
Facts of the case :
1.On June 07, 2003, complainant had gone to Dahanu Court. In the evening, he went to Vangaon by train and therefrom he was to go to his residence at Chinchani. For that purpose, he went to Dahanu Railway Station at about 6.00 p.m. and boarded Firozpur Janta Train. He reached Vangaon at 6.15 p.m. On platform No.2, he saw Deepa Gajanan Patil who was going to Mumbai. The complainant was knowing her. He, therefore, asked her as to where she was going. She told the complainant that she had come to receive her father. Meanwhile, accused Sujay Mangesh Poyarekar-respondent herein alighted from Virar-Surat shuttle. The accused came near the complainant and asked him why he was standing there and started abusing him. The accused also alleged that the complainant was flirting with his wife. So saying, the accused assaulted the complainant with knife in his stomach, on right shoulder, below left armpit and on back-side. The complainant received injuries. He immediately went to Station Master’s cabin. In the meanwhile, his sister Charushila and one Hitendra came there and took complainant to the Vangaon Government Hospital. Later on, police went to the hospital and recorded statement of the complainant.
2.The learned trial Judge, vide his judgment and order dated January 16, 2007, acquitted the accused for the offences with which he was charged.
3.The State, being aggrieved by the order of acquittal, filed an application, being Criminal Application No. 1390 of 2007 for leave to appeal in the High Court. The High Court, vide the impugned order dated June 12, 2007, rejected the application.
Finding of the Court :
High Court erred in rejecting the application for leave to appeal.
Result : Appeal allowed.
Judgment
C.K. Thakker, J. —
1.Leave granted.
2.The present appeal is filed against the Order passed by the High Court of Judicature at Bombay on June 12, 2007 in Criminal Application No. 1390 of 2007. By the said Order, the High Court refused to grant leave to appeal to the State against an Order of acquittal recorded by III Ad hoc Addl. Sessions Judge, Palghar on January 16, 2007 in Sessions Case No. 148 of 2003.
3.Short facts of the case are that complainant-Rajan Mukund Patil is the resident of Chinchani, Bhandar Ali, Taluka Dahanu, District Palghar, Maharashtra. He is a practising advocate at Dahanu Court. According to the prosecution, on June 07, 2003, complainant had gone to Dahanu Court. In the evening, he went to Vangaon by train and therefrom he was to go to his residence at Chinchani. For that purpose, he went to Dahanu Railway Station at about 6.00 p.m. and boarded Firozpur Janta Train. He reached Vangaon at 6.15 p.m. On platform No.2, he saw Deepa Gajanan Patil who was going to Mumbai. The complainant was knowing her. He, therefore, asked her as to where she was going. She told the complainant that she had come to receive her father. Meanwhile, accused Sujay Mangesh Poyarekar-respondent herein alighted from Virar-Surat shuttle. The accused came near the complainant and asked him why he was standing there and started abusing him. The accused also alleged that the complainant was flirting with his wife. So saying, the accused assaulted the complainant with knife in his stomach, on right shoulder, below left armpit and on back-side. The complainant received injuries. He immediately went to Station Master’s cabin. In the meanwhile, his sister Charushila and one Hitendra came there and took complainant to the Vangaon Government Hospital. Later on, police went to the hospital and recorded statement of the complainant.
4.On the basis of the statement, initially C.R. No. 00 of 2003 was registered in Vangaon Police Station. The said complaint was then forwarded to Palghar Railway Police Station where C.R. No. I-9 of 2003 was registered at 23.00 hours vide Station Diary No. 42 of 2003 for offences punishable under Sections 307 and 504 of the Indian Penal Code (IPC). The accused was arrested at about 23.45 hours and was released on bail on June 12, 2003. After usual investigation and recording of statement of witnesses, charge-sheet was filed in the Court of Judicial Magistrate, First Class, Railway, Virar.
5.Since the offence under Section 307, IPC was exclusively triable by a Court of Session, the Judicial Magistrate, by an Order dated November 27, 2003 committed the case to Sessions Court, Palghar. It was registered as Sessions Case No. 148 of 2003. Necessary charge was framed against the accused who pleaded not guilty to the charge and claimed to be tried.
6.The prosecution in Order to establish the case against the accused, examined 15 witnesses. It mainly relied upon testimony of PW1-Rajan (complainant and victim) and PW2-Charushila (real sister of complainant). Deposition of PW12-Dr. D’Souza was recorded to prove injuries sustained by the victim. After the prosecution evidence, statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) wherein he admitted his presence on the Railway platform on the date of occurrence. He, however, denied to have committed any offence.
7.The learned trial Judge, vide his Judgment and Order dated January 16, 2007, acquitted the accused for the offences with which he was charged. According to the learned Judge, the prosecution failed to establish the case against the accused beyond reasonable doubt.
8.The State, being aggrieved by the Order of acquittal, filed an application, being Criminal Application No. 1390 of 2007 for leave to appeal in the High Court. The High Court, vide the impugned Order dated June 12, 2007, rejected the application observing that the Judgment of the trial Court could not be said to be ‘perverse
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