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Equivalent Citation: AIR2004SC4412, 2004(2)ALD(Cri)683, 2005(107(1))BOMLR135,

2004CriLJ4254, 2004(116)ECR614(SC), 2004(172)ELT19(S.C.), JT2004(7)SC495,

2004(7)SCALE201, (2004)7SCC659, 2004(2)UJ1499
Criminal Appeal Nos. 952-953 of 2004 [Arising out of Special Leave Petition (Crl.) Nos.
1390-91 of 2004]
Decided On: 27.08.2004
Appellants: State of Maharashtra
Respondent: Jagmohan Singh Kuldip Singh Anand and Ors.
[Alongwith Criminal Appeal Nos. 954-955 of 2004 [Arising out of Special Leave Petition
(Crl.) Nos. 2320-2321 of 2004]]
Hon'ble Judges/Coram:
Y.K. Sabharwal and D.M. Dharmadhikari, JJ.
For Appellant/Petitioner/Plaintiff: Ravindra K. Adsure, Sushil Karanjkar and Venkateswara
Rao Anumolu, Advs
For Respondents/Defendant: K.T.S. Tulsi and Arun Jaitley, Sr. Advs., Rishi Malhotra, Prem
Malhotra, R.N. Karanjaawala, Hrishkesh Baruah,Arunabh Choudhary, Reetu
Sharma, Sandeep Kapur, Gaurav Vatts and Manik Karanjawala, Advs.
Subject: Criminal
Catch Words
Mentioned IN
Indian Penal Code (IPC) - Section 34, Indian Penal Code (IPC) - Section 324, Indian Penal
Code (IPC) - Section 452; Code of Criminal Procedure (CrPC) - Section 395, Code of
Criminal Procedure (CrPC) - Section 396, Code of Criminal Procedure (CrPC) - Section 397,
Code of Criminal Procedure (CrPC) - Section 398, Code of Criminal Procedure (CrPC) Section 399, Code of Criminal Procedure (CrPC) - Section 400, Code of Criminal Procedure
(CrPC) - Section 401, Code of Criminal Procedure (CrPC) - Section 410; Probation of
Offenders Act, 1958
Cases Referred:
Ram Briksh v. Ambika Yadav, Criminal Appeal No. 523 of 1997; Dulichand v. Delhi
Administration MANU/SC/0113/1975; Rain Briksh v. Ambika Yadav [Criminal Appeal No.
523 of 1997 decided on 9.3.2004];Dulichand v. Delhi Administration [AIR 1975 SC 1960]

Prior History:
From the Judgement and Order Dated 7.8.2003 of the Bombay High Court in Crl. R.A. Nos.
266 and 267 of 2002
Citing Reference:
Relied On

Appeal allowed
Case Note:
Held: Revision - Trespassing into the house of the complainant and beating her by the
accused--Conviction and sentence by Trial Court and confirmation by the Court of
Sessions--Acquitted by the High Court on minute re-examination and re-appreciation of
the evidence--The High Court has exceeded its revisional jurisdiction by carrying out in
depth re-examination of the evidence and upsetting the judgments of the two lower
Courts--Two glaring facts show the gross error committed by the High Court in
acquittal--One the Medical Certificate proves the happening of the alleged incident-Two, the deposition of DW-I who was one of the twelve signatories to complaint of the
incident which was forwarded to DCP and who had admitted its content and his own
signature--The act alleged against the accused makes out a case of 'common intention'
against them in committing offence of the house trespass and causing hurt to the
complainant--Sections 395 to 401 Cr.P.C. read together indicate that revisional power of
High Court cannot be exercised as a second appellate power--Acquittal order of the
High Court set aside and appeals allowed--Conviction and sentence maintained-However, since the incident is quite old and trivial and on the respect of the accused
under probation of Offenders Act, 1958 they are request on probation on their executing
bond for good behaviour for one year to the satisfaction of the trial judge. However
accused released on probation.
D.M. Dharmadhikari, J.
1. Leave granted in all the above cases.
2. Heard counsel for the parties.
3. The State and the complainant seek setting aside of the order dated 7.8.2003 of the High
Court of Bombay reversing the judgment of conviction of the trial court and the appellate
court passed against the respondent-accused for alleged offence under Section 324 and 452

read with Section 34, Indian Penal Code and sentencing them to one month simple
imprisonment and fine of Rs. 500/-, in default simple imprisonment for seven days.
4. The facts leading to prosecution of the accused and their conviction and eventual acquittal
by the High Court are as follows:Complainant Smt. Satish Kaur Sahni and the convicted accused reside in deferent flats in the
same building in Bombay.
5. It is alleged that on 3.5.1990 there was a quarrel between complainant and the accused on
cleaning of drainage. On the same day, i.e., 3.5.1990 at about 8.30 in the night when the
complainant was in her house with her son Manpreet Sahni (PW-3), all five accused are
alleged to have entered the house of the complainant with stick, aluminum rod and taperecorder cassettes. The started beating the complainant with fists and rods, tape-recorder and
cassettes. Joyti Ahuja (PW-2) who stays in the neighbor-hood tried to intervene but one of the
accused (Bhupinder) gave a below to her on the nose and she fell down. It is also alleged that
the accused dragged the complainant out of her house and repeatedly beat her.
6. On the same night, at 9.30, a complainant was lodged in Khar Police Station which was
registered as FIR. The complainant was referred for medical treatment to Bhabha Hospital
where Dr. Kamble medically examined her. Dr. Mahesh Kumar Advani (PW-4) was
examined to prove the medical report in which it is recorded that four simple injuries were
found on the body of complainant including on her hands, forehead and chest.
7. The occupants of the building, where the incident had taken place, sent on 6.5.1990 a
written complaint jointly signed by them to the Deputy Commissioner of Police requesting
for a stern action against the accused for their high-handed acts of trespassing into the house
of the complainant and brutally assaulting her. In all, five persons of the family of the accused
were alleged to have participated in the incident which included parents, Kuldeep Anand,
Bhagwant Kaur Anand and their three sons, Jagmohan Anand, Harminder Anand and
Bhupinder Anand. The prosecution examined the complainant (PW-1), Jyoti Ahuja (PW-2),
the neighbour who was present at the time of incident, son of the complainant Manpreet
Sahni PW-3) and Dr. Mahesh Kumar Advani (PW-4) who proved the medical report. The
Investigating Officer was examined as PW-5. The accused abjured the guilt and took the
defence by examining DW-1 Abraham Samson Medhekar of their false involvement in the
crime because of the past enmity between the families on a dispute over chit-fund scheme.
The accused also attributed motive to the complaint of falsely implicating them with the
alleged incident because the were able to purchase a property at a competitive price which the
complainant wanted to purchase.
8. The Trial Court, being the Court of Additional Chief Metropolitan Magistrate, by its
judgment 23.1.2001 acquitted the parents i.e. father accused No.1 and mother, accused No. 5
On the basis of the evidence before him, the trial magistrate convicted the three accused 2, 3
and 4 and sentenced each one of them to one month of simple imprisonment and a fine of Rs.
500/- with seven days simple imprisonment in default of payment of fine. The magistrate
came to the conclusion that the oral evidence of Manpreet Sahni is duly corroborated by
prompt FIR and the medical report.

9. Aggrieved by their conviction and sentence, the accused preferred criminal appeal in the
Court in the Court of Sessions for Greater Bombay. The Appeal Judge re-examined the
evidence and by order dated 25.6.2002 upheld conviction and sentence of the three accused.
10. The accused thereafter approached the High Court by way of criminal revision under
Section 397 CrPC. The High Court by the impugned judgment dated 7.8.2003 minutely reexamined and re-appreciated the whole evidence. It came to contrary conclusion and
acquitted the three accused.
11. Aggrieved by the judgment of acquitted passed by the High Court, State of Maharashtra
and the complainant have preferred these appeals by seeking leave. We have heard learned
counsel appearing for the State of Maharashtra and learned Senior Counsel Mr. K.T.S. Tulsi
for the accused.
12. On behalf of the State, learned counsel points out from the relevant evidence on record
that the High Court has overlooked vital evidence showing full implication of the accused
and wrongly acquitted them by entering into re-appreciation of evidence. It is argued that the
High Court exceeded its powers of revision under Section 397 of the CrPC.
13. On behalf of the accused, learned Senior Counsel Shri Tulsi made strenuous effort to
support the judgment of acquittal passed by the High Court.
14. We have heard the learned counsel for the parties at length and looked into the relevant
evidence on record. In our considered opinion the learned Single Judge of the High Court of
Bombay exceeded his revisional jurisdiction by embarking upon in-depth re-examination of
the oral and medical evidence. Most surprisingly, the High Court has come to a conclusion,
contrary to the consistent one reached by the two courts, that the happening of the incident, as
alleged, appears to be doubtful.
15. We need not go into all the reasonings and logic adopted by the learned Single Judge in
acquitting the accused. In our opinion, mention of only two glaring facts would be sufficient
to show that the High Court was apparently in gross error in upsetting the judgment of
conviction passed by the Trial Court and confirmed by the Appellate Court who were the
courts essentially required to assess the worth of evidence.
16. There is a copy of the medical certificate on record issued by the doctor in the hospital
who examined the complainant. It gives details of the injuries sustained by her. The medical
certificate is dated 3.5.1990 recorded at 8.45 PM. There is clear mention in the certificate of
the patient having been referred by Police Constable No. 12219 of Khar Police Station. This
medical certificate, as proved by Dr. Mahesh Kumar Advani, is ample proof of happening of
alleged incident of mar-pet with the complainant on 3.5.1990.
17. The learned Single Judge of the High Court, in acquitting the accused, gave great
importance to the fact that joint complainant submitted on 6.5.1990 by the occupants of the
building under their signatures to the Deputy Commissioner of Police does not stand proved
as none of the signatories was examined as a witness in the trial.
18. The learned counsel for the State points out that the defence witness Abraham Samson
Medhekar (DW-1) examined by the accused themselves was one of the twelve signatories to
the said complaint made to the DCP. When confronted with copy of the complaint the witness

(DW-1) had admitted its contents and his own signature. He, however, denied that the said
complaint was forwarded to DCP. The statement of DW-1 in cross-examination itself
therefore proves the fact of such incident to have taken place on the date alleged.
19. Similarly, it is not possible for us to approve the reasoning of learned Single Judge on the
aspect of common intention under Section 34 IPC. For establishing 'common intention' in
every case it is not required for the prosecution to prove a pre-arranged plot or prior concert.
As has been proved by the prosecution witnesses, on the dispute on cleaning of drain which
took place in the early hours on the date of alleged incident, the accused party which
constitute members of one family barged into the house of the complaint, man-handled her
inside and dragged her out where she was beaten repeatedly The act alleged against the
accused clearly makes out a case of 'common intention' against them in committing offence
of house trespass and causing hurt to the complainant Similarly, the High Court after
minutely scrutinizing the evidence gave undue importance to minor discrepancies such as use
of tape-recorder and cassettes in assaulting and no corresponding injuries from those articles
to have been caused to the complainant. There may be some exaggeration of the version of
the incident by the complainant as she said that she was given hundred blows. Such
exaggeration does not falsify the happening of the hundred blows. Such exaggeration does
not falsify the happening of the alleged incident. Similarly, the neighbour (PW-2) who had
intervened and was hit on the nose was not medically examined is also not such a lapse of
prosecution to doubt credibility of the whole prosecution case.
20. The defence of false implication due to alleged incident of the complainant having not
been able to purchase some property in competition with the accused party had not taken
place in the immediate past. It could not be a ground to falsely implicate the accused after
such a long period. Such defence plea based on alleged motive of the complainant is also
unacceptable when the specific defence taken through deposition DW-1 was involvement of
complainant in the chit-fund business and alleged grudge over it with the accused party.
21. In embarking upon the minutest re-examination of the whole evidence at the revisional
stage, the learned Judge of the High Court was totally oblivious of the self-restraint that he
was required to exercise in a revision under Section 397 CrPC. On behalf of the accused,
reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a
party, i.e. Criminal Appeal No. 523 of 1997 decided on 9.3.2004 [Ram Briksh v. Ambika
Yadav]. That was the case in which the High Court interfered in revision because material
evidence was overlooked by the courts below.
The informant Ambika Yadav, PW6 along with his uncle Rameshwar Yadav (deceased) was
going in search of some labourers and no sooner they reached near a well situated in front of
the house of accused Rambriksh Singh, the accused started uttering abuses, caught hold of
Rameshwer Yadav and forcibly took him into their house. On protest, the informant was
threatened and abused. The dragging of Rameshwer Yadav by the appellants into their house
was witnessed by others but they were also abused and chased. While dragging the deceased,
the accused were uttering that he should be taken inside the house and cut into pieces. The
informant went to police station to inform the police. The police party came and after
breaking open the door of the house, the police entered into the courtyard and found the
mutilated dead body of Rameshwar Yadav. The statement of the informant was recorded by
the police officer, formal FIR registered, investigation conducted whereafter the police
submitted charge sheet against the accused who were put on trial for the offence earlier
noticed. The High Court has observed that the evidence of PWs 1, 2, 5, 6, 7 and 8 appears to

be relevant. PW8 is the Doctor who held autopsy over the dead body and also proved the post
mortem report. The injuries on the deceased show the brutal manner in which he was done
away with.
There is no eye witness. The prosecution case depends upon circumstantial evidence. The
High Court with reference to evidence of PWs 2, 5 and 6 has noticed that they had witnessed
the dragging of deceased to the house. PW7, the investigating officer has, inter alia, deposed
about the house of the accused having found locked on his visit, breaking opening of the door
and on entry having found the body of the deceased lying in the courtyard in a mutilated
condition and the conduct of the investigation.
22. The Revisional Court is empowered to exercise all the powers conferred on the Appellate
Court by virtue of the provisions contained in Section 410 CrPC. Section 401 CrPC is
provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in
aid of power of superintendence or supervision as a part of power of revision conferred on the
High Court or the Session Court. Section 397 CrPC confers power on the High Court or
Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the
correctness, legality or propriety of any finding, sentence or order, recorded or passed and as
to regularity of any proceeding of such inferior court." It is for the above purpose, if
necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401
CrPC conferring powers of Appellate Court on the Revisional Court is with the above limited
purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not
indicate that the revisional power of the High Court can be exercised as a second appellate
23. On this aspect, it is sufficient to refer to and rely on the decision of this court
in Dulichand v. Delhi Administration MANU/SC/0113/1975 : 1975CriLJ1732 in which it is
observed thus:"The High Court in revision was exercising, supervisory jurisdiction of a restricted nature
and, therefore, it would have been justified in refusing to re-appreciate the evidence for the
purpose of determining whether the concurrent finding of fact reached by the learned
Magistrate and the learned additional Sessions Judge was correct. But even so the High Court
reviewed the evidence presumably for the purpose of satisfying itself that there was evidence
in support of the finding of fact reached by the two subordinate courts and that the finding of
fact was not unreasonable or perverse."
24. It is necessary to note that in the case of Dulichand (supra) the High Court had reappreciated the whole evidence and confirmed the findings of the two courts below. This
Court, therefore, did not interfere with them.
Case of rash and negligent driving, man died due to accuseds driving a bus in Rohtak. Eye
witnesses on footpath and in the bus. S.304-a
25. We, therefore, find that there were no grounds available with the High Court to upset the
verdict of conviction and sentence passed by the two courts and direct acquittal of the

26. In the result, these appeals are allowed, the judgment of acquittal passed by the High
Court by order dated 7.8.2003 is set aside and conviction and sentence passed by the
Magistrate as confirmed by the Additional Sessions Judge is maintained.
27. The learned counsel appearing for the accused submitted that the incident is of the year
1990. The parties are educated and neighbours. The learned counsel, therefore, prayed that
benefit of Probation of Offenders Act, 1958 may be granted to the accused. The prayer made
on behalf of the accused seems to be reasonable. The incident is more than 10 years old. The
dispute was between the neighbours over a trivial issue of cleaning of drainage. The incident
took place in a fit of anger. All the parties are educated and also distantly related. The incident
is not such as to direct the accused to undergo sentence of imprisonment. In our opinion, it is
a fit case in which the accused should be released on Probation by directing them to execute a
bond of one year for good behavior.
28. In the result, the acquittal passed by the High Court is set aside and conviction and
sentence passed by the Magistrate, as confirmed by the Sessions Judge, is maintained by
directing that the accused be released on Probation on their executing bond for good behavior
for a period of one year, to the satisfaction of the trial judge.