GANESHA V. SHARANAPPA AND ANOTHER

IN THE HON’BLE SUPREME COURT OF INDIA

GANESHA V. SHARANAPPA AND ANOTHER

CITATION: 2014 ALLMR 392 (Cri), I (2014) CCR 121 (SC), 2013 (4) MLJ 757 (Cri), 2013 (14) SCALE 59, (2014) 1 SCC 87

BENCH: CHANDRAMAULI KR. PRASAD, KURIAN JOSEPH, JJ.

DATE OF JUDGMENT: NOVEMBER 19, 2013

APPELLANT: GANESHA

Vs.

RESPONDANTS: SHARANAPPA & ANR.

LAWS CONCERNED: Indian Penal Code (IPC) – Sections 34, 323, 324, 341, 504; Code of Criminal Procedure (CrPC) – Sections 2, 154, 154(2), 200, 307, 377, 378, 386, 389, 390, 391, 392, 401, 401(1), 401(3)

BACKGROUND OF THE CASE

The Petitioner and three other accused, was put on trial for offence under Section 341, 323, 324 and 504 read with Section 34 of the Indian Penal Code, trial court under its judgement acquitted them of all the charges. After being aggrieved with the decision of the trial court, the informant filed a criminal revision petition and the High Court, by the impugned judgment and order, maintained the order of acquittal of all accused persons, excepting accused no. 3, Ganesha who has been held guilty for the offence punishable under Section 324 of the Indian Penal Code. Accordingly, the High Court set aside the order of acquittal of Ganesha and convicted him. It is against this order that Ganesha has preferred this special leave petition and Leave was granted.

FACTS OF THE CASE

1. In this case, Petitioner, besides three other accused, was put on trial for offence under Section 341, 323, 324 and 504 read with Section 34 of the Indian Penal Code. Judicial Magistrate, First Class, Yadgiri Taluk, Gulbarga District, Karnataka, by its judgment and order dated 14th of September, 2006 passed in CC No. 355 of 2006, acquitted them of all the charges.
2. Being aggrieved by the aforesaid, the informant preferred Criminal Revision Petition No. 147 of 2007 and the High Court, by the impugned judgment and order dated 5th of August, 2008 maintained the order of acquittal of all accused persons, excepting accused no. 3, Ganesha who has been held guilty for the offence punishable under Section 324 of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of six months and also to pay a fine of Rs.5,000/-, and in default of payment of fine, to undergo further simple imprisonment for a period of three months. It is against this order that Ganesha has preferred this special leave petition and Leave was granted.
3. The prosecution was set in motion on the basis of a report given by the informant, Sharanappa, inter alia, alleging that he made a protest when he saw the accused persons grazing their cattle in his land and thereby damaging the mulberry crop. It was alleged that Ganesha, the appellant herein assaulted the informant with a Badige (stick) which caused injury near his left eye. The rest of the prosecution story is not being narrated as the accused who have allegedly participated in that have been acquitted and we are not concerned with that in the present appeal. The trial court, on appraisal of the evidence, came to the conclusion that the prosecution has not been able to prove its case beyond all reasonable doubt and, accordingly, acquitted all the accused.
4. However, in revision, the High Court re-appraised the evidence and found the reasoning assigned by the trial court to be totally perverse and contrary to the evidence on record. The High Court relied on the evidence of Sharanappa, the informant (PW-2), Maremma (PW-4), Sujatha (PW-5), and Hussainappa (PW-6), who claimed to be the eye-witnesses of the occurrence. The High Court found Maremma (PW-4) and Hussainappa (PW-6) to be independent eyewitnesses and reliable. The High Court further observed that the evidence of Dr. Surekha (PW-1), who examined the injured and gave the wound certificate (Exhibit 2) corroborated the case of the prosecution. Accordingly, the High Court set aside the order of acquittal of the present appellant and convicted him as above.
5. While doing so, the High Court observed as follows: “The aforesaid reasoning of the trial court is totally perverse and contrary to the evidence on record. We have seen from the evidence of P.Ws. 2, 4, 5, and 6 that all of them have come out successfully in their cross-examination and all of them have spoken to the fact of A-3 assaulting P.W. 2 with a stick near his left eye and the other accused persons catching hold of P.W.2. Furthermore, it is also clear from the evidence of P.Ws. 2 and 5 that the incident happened in the land of the complainant when the cattle belonging to the accused went to the land of the complainant for grazing the crop. Therefore, no doubt arises as to the place of incident.”

ISSUE AROUSED-

1. Can the High Court in revision convert a finding of acquittal into one of conviction, while exercising the revisional jurisdiction or could direct for re-trial?
2. Was the reasoning assigned by the trial court was totally perverse and contrary to the evidence on record was precluded from setting aside the order of acquittal and convicting the accused for the offence charged?

CONTENTION OF APPELLANT:

Mr. Akshat Shrivastav, learned counsel appearing on behalf of the appellant raises a very short point. He submits that the High Court in revision could not convert a finding of acquittal into one of conviction and at most, while exercising the revisional jurisdiction, could direct for re-trial.

ARGUMENTS OF RESPONDENTS:

Mr. V.N. Raghupathy, learned counsel appearing on behalf of the respondents, however, submits that the High Court having found the reasoning assigned by the trial court to be totally perverse and contrary to the evidence on record is not precluded from setting aside the order of acquittal and convicting the accused for the offence charged.

COURT OBSERVED:

1. The Court in the case of Ganesha V. Sharanappa and Anr. held that interference with the order of acquittal in revision is called for only in cases where there is manifest error of law or procedure and in those exceptional cases in which it is found that the order of acquittal suffers from glaring illegality, resulting into miscarriage of justice. The High Court may also interfere in those cases of acquittal caused by shutting out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. In such an exceptional case, the High Court in revision can set aside an order of acquittal but it cannot convert an order of acquittal into that order of conviction. The only course left to the High Court in such exceptional cases is to order re-trial.
2. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a retrial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party.”
3. In the present case, the High Court as per Supreme Court opinion, rightly came to the conclusion that it is one of the exceptional cases as the finding of acquittal is on a total misreading and perverse appreciation of evidence. On the face of it, the High Court rightly set aside the order of acquittal but it gravely erred in converting the order of acquittal into that of conviction, instead of directing re-hearing by the trial court. Ordinarily one would have set aside the order of the revisional court to the extent aforesaid and directed for re-hearing by the trial court, but taking into account the nature of offence, at such a distance of time one would not like to charter that course.
4. It was observed that a common error creeping in many of the judgments including the present one. No distinction is made while using the words ‘informant’ and ‘complainant’. In many of the judgments, the person giving the report under Section 154 of the Code is described as the ‘complainant’ or the ‘de facto complainant’ instead of ‘informant’, assuming that the State is the complainant. These are not words of literature. In a case registered under Section 154 of the Code, the State is the prosecutor and the person whose information is the cause for lodging the report is the informant. This is obvious from sub-section (2) of Section 154 of the Code which, inter alia, provides for giving a copy of the information to the ‘informant’ and not to the ‘complainant’. Therefore, these words carry different meanings and are not interchangeable. In short, the person giving information, which leads to lodging of the report under Section 154 of the Code is the informant and the person who files the complaint is the complainant.

HELD BY COURT:

Hence, the Supreme Court upheld that this appeal is allowed, setting aside the order of the High Court and declined to direct re-hearing by the trial court.

CONCLUSION:

The High Court came to the conclusion that it is one of the exceptional cases as the finding of acquittal is on a total misreading and perverse appreciation of evidence. The High Court rightly set aside the order of acquittal but it gravely erred in converting the order of acquittal into that of conviction, instead of directing re-hearing by the trial court.

This article is written by Divyanshi Aggarwal of Institute of Management Education (IME), Chaudhary Charan Singh University, Meerut of 10^th Semester