2003 Supreme(SC) 964

2003(7) Supreme 326
SUPREME COURT OF INDIA
(From Allahabad High Court)
Doraiswamy Raju and Arijit Pasayat, JJ.
Ramakant Rai -Appellant
versus
Madan Rai and Ors. -Respondents
Criminal Appeal Nos. 2032-33 of 1996
With
Criminal Appeal Nos. 611-612 of 1997
Decided on 25-9-2003
Counsel for the Parties :
For the Appellant : Ajai Bhalla, Rahul Agarwal, Ms. Abha R. Sharma, C.D. Singh, Pramod Swarup and A.S. Pundir (N.P.), Advocates.
For the Respondents : S.B. Sanyal, Ashok Kumar Singh, Ms. Punam Kumari and S. Biswajit, Advocates.

IMPORTANT POINT
The Supreme Court can entertain appeals against judgments of acquittal by the High Court at the instance of interested private parties also.

Headnote:(i) Indian Penal Code, 1860-Sections 302, 302/34-Death by gunshot injury-Dispute between two parties-Trial Court found accused M guilty-Other accused were acquitted of charges u/s 302/34 IPC-They were held guilty u/s 440 IPC-Appeal against conviction-Unsatisfactory disposal of appeal by High Court-Inherent improbabilities and incongruities in conclusions-Unreasoned judgment of acquittal passed by High Court held not sustainable-Conviction of accused M , respondent as recorded by trial Court restored-Acquittal of other accused for offence u/s 302/34 not to be interfered with-However, their conviction u/s 440 IPC sustained.

       Held : When the appellate Court concurs with the views of the trial Court the necessity for elaborately dealing with various aspects may not always be necessary. But when a view contrary to that of the lower court is expressed, it is imperative that reasons therefor should be clearly indicated. There is no scope for any departure from this basic requirement. Therefore, the plea of the accused-respondents that even though the judgment of the High Court is not very elaborately reasoned, yet it can be supplemented by arguments is a fallacious one. It is also noticed that the High Court did not correctly appreciate the facts. First and foremost it proceeded on the basis as if there was only one gunshot. In fact the evidence on record clearly shows that there were two gunshots and only one of them was a fatal one. The evidence of PWs 2 and 5 have been lightly brushed aside with presumptuous conclusion that they could not probably have come from their houses and since there was only one gunshot. On that score alone the High Court s conclusions suffer from vulnerability. The High Court also proceeded as if the change in timing indicated in the FIR was subsequently done. There is no material to support this conclusion. Here again, High Court acted without any material to support its conclusions. The Investigating officer (PW-6) was also not even asked as to when the change was made. On the contrary, reading of PW-1 s evidence shows that it was done before the report was handed over to the police. The High Court also came to erroneous conclusion that there was variance between the evidence of PWs 3 and 4. It clearly overlooked the explanation offered by PW-3 as to why he had mentioned about blackening. He has stated that examination at the first instance was done in inadequate light with the help of lantern. Therefore, he accepted that there was a possibility of mistake in what he recorded about the blackening. When one compares his evidence with that of PW-4 the position is clear. PW-4 has not really noticed any blackening or tattooing. Without considering the evidence of PW-3 in its proper perspective the High Court should not have abruptly concluded that there was a difference in the evidence of PWs 3 and 4 and accused is to get the benefit therefor. In fact a combined reading of the evidence of PWs 3 and 4 shows that PW-4 s version was more authentic and acceptable. Much emphasis has been laid about the nature of injury. The hypothetical answers given by the doctors cannot corrode credibility of eyewitnesses. Significantly, no question was put to PWs 3 and 4 as to the position from where the accused could have made the gunshot. (Paras 17 to 21)

       In view of the unsatisfactory nature of disposal of the appeal and the inherent improbabilities and incongruities in the conclusions, the unreasoned impugned judgment of the High Court warrants reversal. So far as accused-Madan Lal is concerned, his conviction under Section 302 IPC as done by the Trial Court is restored. So far as acquittal of other accused persons under Section 302 read with Section 34 is concerned, the Trial Court had elaborately dealt with the evidence to extend benefit of doubt to them. The High Court did not interfere in the State s appeal so far as their acquittal is concerned. Nothing could be shown to us as to why the conclusions are to be reversed and in what way they are fallacious. (Para 27)

       (ii) Constitution of India-Article 136-Appeal against acquittal-Competence of private party file-State has not challenged acquittal-Whether this Court can entertain appeals against judgment of acquittal by the High Court at the instance of interested private parties also-(Yes).

       Held : Appellate power vested in this Court under Article 136 of the Constitution is not to be confused with ordinary appellate power exercised by appellate courts and appellate tribunals under specific statutes. It is a plenary power, exercisable outside the purview of ordinary law to meet the pressing demands of justice [See Durga Shankar Mehta v. Thakur Raghuraj Singh (AIR 1954 SC 520)]. Article 136 of the Constitution neither confers on anyone the right to invoke the jurisdiction of this Court nor inhibits anyone from invoking the Court s jurisdiction. The power is vested in this Court but the right to invoke the Court s jurisdiction is vested in no one. The exercise of the power of this Court is not circumscribed by any limitation as to who may invoke it. Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice this Court cannot refrain from doing its duty and abstain from interfering on the ground that a private party and not the State has invoked the Court s jurisdiction. We do not have slightest doubt that we can entertain appeals against judgments of acquittal by the High Court at the instance of interested private parties also. The circumstance that the Criminal Procedure Code, 1973 (in short the "Code") does not provide for an appeal to the High Court against an order of acquittal by a subordinate Court, at the instance of a private party, has no relevance to the question of the power of this Court under Article 136. (Para 12)

       Further held : In express terms, Article 136 does not confer a right of appeal on a party as such but it confers a wide discretionary power on this Court to interfere in suitable cases. The discretionary dimension is considerable but that relates to the power of the Court. Article 136 is a special jurisdiction. It is residuary power; it is extraordinary in its amplitude, its limits, when it chases injustice, is the sky itself. This Court functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the common run of cases from Article 136. Is it merely a power in the court to be exercised in any manner it fancies? Is there no procedural limitation in the manner of exercise and the occasion for exercise? Is there no duty to act fairly while hearing a case under Article 136, either in the matter of grant of leave or, after such grant, in the final disposal of the appeal? There cannot be even a shadow of doubt that there is a procedure necessarily implicit in the power vested in this Court. The founding fathers unarguably intended in the very terms of Article 136 that it shall be exercised by the judges of the highest Court of the land with scrupulous adherence to settled judicial principles, well established by precedents in our jurisprudence. Judicial discretion is canalized authority not arbitrary eccentricity. (Para 14)

       It is manifest that Article 136 is of composite structure, is power-cum-procedure- power in that in vests jurisdiction in this Court and procedure in that it spells a mode of hearing. It obligates the exercise of judicial discretion and the mode of hearing so characteristic of the court process. (Para 15)