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1978 Supreme(Bom) 153
BOMBAY HIGH COURT (AT NAGPUR)
MASODKAR, J.
State of Maharashtra, Complainant-Appellant
Versus
Shriram and others, Accused-Respondents
Criminal Appeals Nos. 168 and 235 of 1973 and Criminal Revn. Appln. No. 187 of 1973,
Decided on : 31-7-1978
M.P. Badar, Asst. Govt. Pleader, for the State; R.S. Padhye and R.G. Deshpande, for Respondents.
A judgment of implied acquittal is a judgment in which the Court does not expressly acquit the accused of a particular charge, but the judgment is one of conviction on the other counts and the Court does not record any finding on that charge. Such a judgment is equivalent to a judgment of acquittal and cannot be appealed against by the State.
Headnote:
CRIMINAL LAW - UNLAWFUL ASSEMBLY - RIOTING - IMPLICATION - ACQUITTAL - IMPLIED ACQUITTAL - DOCTRINE OF IMPLIED ACQUITTAL - CONSTRUCTION OF JUDGMENT - OFFENCES CHARGED - OFFENCES CONVICTED - OFFENCES ACQUITTED - JUDGMENT OF CONVICTION - JUDGMENT OF ACQUITTAL - RIGHT OF PRIVATE DEFENCE - EVIDENCE - APPRECIATION - SENTENCE - LENIENCY.
Fact of the Case:
Six accused were charged with unlawful assembly and causing grievous hurt with dangerous weapons to two persons. The Magistrate convicted them under Sections 326 and 324 read with Section 34 of the Indian Penal Code (IPC) but did not record any finding on the charge under Section 148 IPC. The State did not appeal against the judgment. The accused appealed, and the Appellate Court allowed the appeal, holding that the trial was illegal due to the omission of the name of one of the injured persons in the charge. The case was remanded for a de novo trial. In the de novo trial, the Magistrate framed charges under Sections 148 and 326 read with Section 34 IPC. The accused were acquitted of the charge under Section 148 IPC and all but one of the accused were acquitted of the charge under Section 326 read with Section 34 IPC. The State appealed against the acquittal of the accused under Section 148 IPC and the acquittal of the five accused under Section 326 read with Section 34 IPC. One of the accused, who had been convicted under Section 326 IPC, also appealed against his conviction.
Finding of the Court:
The High Court held that the Magistrate's judgment in the first trial was a judgment of implied acquittal with regard to the charge under Section 148 IPC. The Court held that the State could not appeal against the implied acquittal and that the Appellate Court could not direct a de novo trial on that charge. The Court also held that the evidence showed that the accused Shriram and Trimbak had caused injuries to Ramdas and Jagannath, respectively, and convicted them under Sections 324 and 325 IPC, respectively. The Court sentenced Shriram to pay a fine of Rs. 250/- or to suffer rigorous imprisonment for four months in default and sentenced Trimbak to simple imprisonment till the rising of the Court and to pay a fine of Rs. 500/- or to suffer rigorous imprisonment for six months in default.
Issues: 1. Whether the Magistrate's judgment in the first trial was a judgment of implied acquittal with regard to the charge under Section 148 IPC? 2. Whether the State could appeal against the implied acquittal? 3. Whether the Appellate Court could direct a de novo trial on that charge? 4. Whether the evidence showed that the accused Shriram and Trimbak had caused injuries to Ramdas and Jagannath, respectively?
Ratio Decidendi: 1. The Court held that the Magistrate's judgment in the first trial was a judgment of implied acquittal with regard to the charge under Section 148 IPC because the Magistrate did not record any finding on that charge and the judgment was one of conviction on the other counts. 2. The Court held that the State could not appeal against the implied acquittal because the only remedy available to the State was to file an appeal under Section 378 of the Code of Criminal Procedure (CrPC) and the State had not done so. 3. The Court held that the Appellate Court could not direct a de novo trial on the charge under Section 148 IPC because the judgment of implied acquittal was not amenable to revisional jurisdiction. 4. The Court held that the evidence showed that the accused Shriram and Trimbak had caused injuries to Ramdas and Jagannath, respectively, because the evidence of the witnesses was corroborated by the medical evidence.
Final Decision: The High Court allowed the State's appeal against the acquittal of the accused Shriram and Trimbak and convicted them under Sections 324 and 325 IPC, respectively. The Court dismissed the State's appeal against the acquittal of the other accused.
JUDGMENT :- All these three matters have been filed by the State and they arise out of a trial of six respondents-accused upon the allegation that at village Kanfodi on September 2, 1969 these accused were the members of the unlawful assembly and in prosecution of the common object voluntarily caused grievous hurts with dangerous weapons to P. W. 1 Ramdas and his brother P. W. 2 Jagannath, both sons of P. W. 8 Tukaram.
2. That case which was registered as Criminal Case No. 442 of 1970 had a very chequered course. The Magistrate concerned framed a charge against all these respondents mentioning therein that they caused hurt to one Tukaram Bokade and omitting to mention the names of Ramdas and Jagannath. The offences with which these respondents were charged were under Section 148 and Section 326 read with Section 34 of the Indian Penal Code. After hearing the prosecution evidence, by the judgment of December 22, 1970 the learned Magistrate recorded conviction under Sec. 326 read with Section 34 and Sec. 324 read with Section 34, Indian P. C. and passed different sentences against the different accused. No finding as to the offences under Sec. 148 was in terms recorded. Even the judgment rendered by the learned Magistrate appreciates the evidence on the basis of the charge having reference to Section 34 and observes that it was shown that accused Nos. 1 to 6 had the common intention of assaulting Jagannath and Ramdas. That judgment, therefore, did not reflect specifically any point of determination with regard to the offence under Sec. 148, Indian Penal Code. The State did not question that judgment. The convicted accused filed an appeal being Criminal Appeal No. 366 of 1970 before the Sessions Judge, Amravati. By the judgment of April 28, 1971 the said appeal was allowed, the appellate Court taking the view that the mention of the name of Tukaram in the charge instead of Ramdas and Jagannath has rendered the trial illegal and this was a case for de novo trial. In view of that, the case, was remanded back to the Magistrate for retrial, with a direction that the trial Court would frame proper charges and giving opportunity to both sides to lead their evidence proceed to decide the same. This de novo trial was registered as Criminal Case No. 1115 of 1971. The learned Magistrate proceeded to re-frame the charge as is available at Exhibit-2 containing allegations of unlawful assembly against the accused and their committing the offences as the members thereof within the meaning of section 148 as well S. 326 read with S. 34 of the I. P. C.
3. Prosecution examined afresh as many as 8 witnesses and after examination of the accused by agreement of parties, that is both the Prosecution, and the defence, the accused tendered the earlier record of the defence evidence as a part of this trial. Thus the accused examined four witnesses in support of the defence. By its judgment of April 30, 1973 the trial Court founds accused No. 1 Shriram guilty of the offence under Section 326, Indian Penal Code and convicted him accordingly. Shriram and all other accused were acquitted of the charges under Section 148 and as far as other accused are concerned they too were acquitted under Section 326 read with Section 34 of the Indian Penal Code. The sentence imposed against Shriram was of rigorous imprisonment for one month and fine of Rs. 300/- or rigorous imprisonment for one month in default. Against that sentence the State preferred Criminal Revision Application. No. 187 of 1973, while against the acquittal of all the six accused under Section 148 and of all the five accused under Section 326 read with Section 34, Indian Penal Code the State has preferred Criminal Appeal No. 168 of 1973. Both these matters were admitted by this Court. Meanwhile the convicted accused Shriram filed an appeal being Criminal Appeal No. 72 of 1973 before the Sessions Judge, Amravati and by order dated 17-8-1973 that Court allowed that appeal and acquitted Shriram. S
