Full Judgment Text
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PETITIONER:
RAJANIKANT
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT:
30/09/1970
BENCH:
[S. M. SIKRI, K. S. HEGDE AND I. D. DUA, JJ.]
ACT:
Appeal--Conviction under Ss. 326 and 324 I.P.C.-High Court
dismissing appeal summarily without giving any reason-If
desirable course- Necessity for giving reasons to enable
Supreme Court property to exercise its power under Article
136 of the Constitution.
HEADNOTE:
The appellant was convicted. by the Trial Court for offences
under Sections 326 and 324 I.P.C. for having voluntarily
caused grievous hurt with a dangerous weapon to one person,
and for causing hurt to three other persons. He was
sentenced to imprisonment for four years for his conviction
under Section 326 and for 11/2 years for each of the three
offences under Section 324, all sentences to run
concurrently. The appellant filed an appeal against his
conviction to the High Court at Bombay but his appeal was
dismissed by the Court with one word "dismissed".
In appeal to this Court by special leave under Article 136,
it was contended on behalf of the appellant that the
injuries complained of were inflicted by him in the exercise
of his lawful and legitimate right of self-defence. It was
also contended that the statements of three of the eye
witnesses made in the committing Court from which they had:
resiled at the trial should not have been acted upon by the
Trial Court in support of the prosecution version; and that
the only witness who did not resile from the statement in
the committing Court was a highly interested witness in that
he was the person on whom injuries were stated to,. have
been inflicted by the appellant; therefore his evidence
should not have been implicitly accepted.
HELD : dismissing the appeal,
(i) On the evidence, the plea of self defence taken by the
appellant could not be sustained. Furthermore the
statements of the three witnesses in the committing court
from which they resiled at the trial and which were duly
brought on the record of the trial court under Section 288
Cr. P.C. constituted substantive evidence and if the court
was satisfied that those statements were true whereas those
made in the trial court were untrue, then the earlier
statements could safely be relied upon to sustain the
conviction. In this case a mere reading of the statements
at the trial demonstrated their unconvincing nature and it
was clear that there was some ulterior motive for the
witnesses to resile from the earlier statements which
appeared to have a ring of truth about them. The trial
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court was therefore right in convicting the appellant for
offences under Ss. 326 and 324 I.P.C. [536 B-D]
(ii) On reading the judgment of the learned Additional
Sessions Judge and the memorandum of the grounds of appeal
in the High Court it was clear that the summary dismissal of
the appeal by the High Court with one word "dismissed"
without indicating its views on the points raised in the
appeal which appeared to be arguable was not right. This
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Court has repeatedly pointed out that when an appeal to the
High Court under the Code of Criminal Procedure raises some
arguable points, the High Court would be well-advised to
give some indication of the reasons for its view while
repelling those points. Without having the benefit of the
opinion of the High Court, this Court is likely to feel
embarrassed in dealing with those points on appeal by
special leave. [530 H-531 C]
Mustak Hussein, v. The State of Bombay, [1953] S.C.R. 809 at
820 and Challappa Ramaswami v. State of Maharashtra [1970]
(2) S.C.R. 426; referred to.
Section 410 Cr.P.C. confers a right of appeal to the High
Court on a person convicted on a trial held by a Sessions
Judge or an Additional Sessions Judge. This right entitles
the aggrieved party to challenge conclusions of facts and to
claim reappraisal of evidence. It would, therefore, be
conducive to the ends of justice if the High Courts were as
a general rule to let this Court have the benefit of their
valuable opinion in cases which raise arguable points
whether on facts or on law so as to enable this Court
satisfactorily to exercise its power under Art. 136 and
dispose of the appeal finally. [in order to avoid further
delay in the disposal of the present case the Court decided
to go into the evidence-a course this Court is normally
reluctant to adopt in appeals under Art. 136-because this
case prima facie raised arguable points]. [531 D-F]
(iii) Although this Court would not normally interfere
with the quantum of sentences on appeal under Art. 136, in
the present case as the High Court had erroneously dismissed
the appeal summarily without giving the reasons, this was a
fit case where this Court on a consideration of the relevant
circumstances could go into the question of sentences itself
(the Court field that the sentence of two years imprisonment
would meet the ends of justice). [536 E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 99 of
1968.
Appeal by special leave from the order dated March 28, 1968
of the Bombay High Court in Criminal Appeal No. 380 of 1968.
V. M. Tarkunde, N. H. Hingorani and K. Hingorani, for the
appellant.
M. C. Bhandare and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Dua, J. This is an appeal by special leave from the judgment
of the High Court of Judicature at Bombay dated March 28,
1968 summarily dismissing the appellant’s appeal against his
conviction by the Additional Sessions Judge, Greater Bombay
for offences under ss. 326 and 324, I.P.C. The High Court
disposed of his appeal with one word "dismissed".
At the outset we must point out that on reading the judgment
of the learned Additional Sessions Judge and the memorandum
of ,the grounds of appeal in the High Court we felt that
the summary
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dismissal of the appeal by the High Court with one word
"dismissed" without indicating its views on the points
raised in the appeal which clearly appears to us to be
arguable was not right. This Court has repeatedly pointed
out that when an appeal to the High Court under the Code of
Criminal Procedure raises some arguable points the High
Court would be well advised to give some indication of the
reasons for its view while repelling those Points. Without
having the benefit of the opinion of the High Court this
Court is likely to feel embarrassed in dealing with those
points on appeal by special leave’ [see Mushtak Hussain v.
The State of Bombay() and Challappa Ramaswami v. State of
Maharashtra(2)]. We would like once again to emphasise that
Art. 136 of the Constitution does not confer a right of
appeal on a party aggrieved by the, decision of a High Court
: it merely confers on this Court a discretionary power to
interfere in suitable cases. For judicious exercise of this
power this Court expects the High Courts to record speaking
orders, however sketchy, even while summarily dismissing
appeals which raise arguable points. Section 410, Cr.
P.C., it is worth noting, confers a right of appeal to the
High Court on a person convicted on a trial held by a
Sessions Judge or an Additional Sessions Judge. This right
entitles the aggrieved party to challenge conclusions of
facts and to claim reappraisal of evidence. It would,
therefore, be conducive to the ends of justice if the High
Courts were as a general rule to let this Court have the
benefit of their valuable opinion in cases which raise
arguable points whether on facts or on law so as to enable
this Court satisfactorily to exercise its power under Art.
136 and dispose of the appeal finally. In the absence of a
speaking order of the High Court this Court may have to
remand the cases to the High Courts for re-hearing and
recording reasons for their conclusions, to the avoidable
harassment of the accused persons concerned and delay in the
final disposal of criminal cases. In the present appeal to
avoid further delay in the disposal of the case we chose to
go into the evidence ourselves-a course which normally this
Court is reluctant to adopt in appeals under Art. 136-
because we felt that it did prima facie raise arguable
points.
The appellant Rajni alias Bal Ghanshyam Gadkar was charged
with an offence of attempted murder under s. 307, I.P.C. for
having stabbed Namdeo Keshav Padte (P.W. 2) with a knife on
June 21, 1966. In the alternative he was charged under S.
326, I.P.C. with the offence of having voluntarily caused
the said Padte grevious hurt with a dangerous weapon
(knife). He was further charged with three offences under
S. 324, I.P.C. for having
(1) [1953] S. C. R. 809 at 820. [1970] 2 S. C. R. 426.
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voluntarily caused in the same transaction hurts to Vasant
Narayan Shinde, Promod Dattaram Chavan and to Sudam Mahadeo
Khanvilkar. The trial court convicted the appellant under
S. 326, I.P.C. instead of s. 307, I.P.C. for stabbing Padte
and sentenced him to rigorous imprisonment for four years.
It also convicted him under S. 324, I.P.C. for causing hurt
to the other three persons and, sentenced him to rigorous
imprisonment for one and:, a half years for each of the
three offences. All the sentences were directed to run
concurrently.
Shri Tarkunde, learned counsel for the appellant, took us
through the relevant record for the purpose of showing that
the, assessment of the evidence by the trial court was
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erroneous and, therefore, unsustainable. We were
constrained to permit him to refer to the evidence as we did
not have the benefit of knowing the reasons which had
prevailed with the High Court in agreeing with the ultimate
conclusions of the trial court. The occurrence took place
at 9 p.m. on June 21, 1966 in the 10th Lane of Kerwadi,
Bombay and the F.I.R. was lodged ’by Namdeo Keshav Padte
(P.W. 2 )at 10-30 p.m. the same night at the police station,
Lamington Road. According to this report Padte’s cousin
Dattatraya Gajanan More (P.W. 8) who wanted to purchase a
scooter had for that purpose approached one Vinod Nimbelkar
(P.W. 3) known to Padte. More had told Padte that the
former had paid a sum of Rs. 5 or 6 thousand to the accused
Rajni through Nimbelkar. The accused neither gave the
scooter nor returned the money. On being approached by More
for the return of the money he was put off on various
pretexts. More had about two days earlier instructed Padte
to go to Rajnikant with Nimbelkar to get back the money.
Accordingly on June 20, in the evening Padte contacted
Rajinikant at his residence but he was told that Rajnikant
had returned the money to Nimbelkar at about 3 p.m. On the
date of the occurrence Padte returned home at about 6 p.m.
He went to Nimbalkar and after taking him along, they both
went to the accused. The accused was not present at his
residence but they learnt from his mother that he would
return at about 9 p.m. Padte and Nimbalkar then went back to
the latter’s residence in Sikka Nagar. At about 8-45 p.m. when
they again went to the house of the accused Chavan
(P.W. 5) another resident of Sikka Nagar, also accompanied
them. Shinde (P.W. 4) who was known to Chavan also jointed
them on the way. They all went to the residence of the
accused at about 9 p.m. but again did not find him there.
While coming down from the first floor of the building they
found the accused with three or four boys. Nimbalkar asked
him as to when he would return the money. The accused
replied that he did not recognise Nimbalkar but would settle
the matter with More. On Padte’s intervention the accused
told him also that he did not
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recognise him. When Padte insisted that he had been
introduced to him by More the accused whipped out a knife
from the pocket of his pants and stabbed him causing injury
on the left side ’of his stomach and on his left hand.
Thereafter the accused stabbed Shinde and then ran away.
This report was actually recorded in the J. J. Hospital
where R. M. Naik, S. 1. Lamington Road Police Station (P.W.
10) and B. N. Patil, G.S.I. attached to the same police
station (P.W. 12) had gone, on learning on telephone about
an assault case in the 10th Lane, Kerwadi and admission of
two persons in that hospital. This information was conveyed
on telephone from V. P. Road Police Station where Padte and
Shinde had been taken by their friends and from where the
injured persons were taken to the J. J. Hospital in a jeep
by constable Babu Parab (P.W. 9). After registering the
crime at the police station both P.W. 10 and P.W. 12 went to
the appellant’s residence but found him absent. A watch was
kept at his house. The appellant was, however, arrested at
Goregaon on the following day (June 22, 1966) and was not
medically examined. He had some injuries on his person.
An abnormal feature in this, case is that three eye-
witnesses Shinde (P.W. 4), Chavan (P.W. 5) and Khanvilkar
(P.W. 6) who supported the prosecution case in the
committing court changed their statements at the trial in
the court of the Additional Sessions Judge. They were
declared hostile and cross-examined by the prosecutor and
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confronted with their earlier statements from which they had
resiled. Nimbalkar (P.W. 3) who had not been examined in
the committing court also declined to Support the
prosecution story when produced as a witness at the trial in
the court of the Additional Sessions Judge. The ground
stated by him was that apprehending use of violence and of
assaults lie had left the place of occurrence as soon as the
quarrel started. He too was declared hostile and cross-
examined. The evidence of Padte (P.W. 2) completely
supported the prosecution case and remained unshaken. The
statements of P.Ws. 4, 5 and 6 made in the committing court
were duly brought on the record under s. 288, Cr. P.C.,
When confronted with the portions of their statements made
in the committing court, the truth of which they had denied
at the trial, they merely said that they did not know how
those portions came to be recorded. The trial court after
going through the material on the record came to the
conclusion that the version given by Padte regarding the
actual occurrence was fully established. The discrepancies
on minor points were held not to affect the trustworthiness
of the witness on the salient features of the occurrence
which fully brought home to the appellant his guilt. On
appraisal of the entire evidence the appellant was found
guilty of offences under S. 326 and s. 324, I.P.C. Under
626, I.P.C. he was sentenced to four years rigorous
36Sup C.I./71
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imprisonment for injuries caused to each one of the three
P.Ws. Shinde, Chavan and Khanvilkar. All the four sentences
of imprisonment were to run concurrently
In this Court on behalf of the appellant his learned counsel
Shri Tarkunde very strongly argued that the evidence on the
record and the probabilities of the case show that Padte
(P.W. 2) and his companions were the. aggressors and the
appellant was merely trying to defend himself when he
attempted to catch hold of the knife with which Padte had
threatened to attack him. Padte, according to the
submission, got wounded as a result of the push given to him
by the appellant who, during this struggle, Successfully
snatched his knife. Emphasis was in this connection laid on
the fact that Padte and his companions were admittedly six
in number and the appellant who was single-banded could not
have dared to run the risk of a clash with them by starting
the assault. In the alternative it was suggested that
assuming the appellant had in his possession a knife of his
own, as a matter of fact he was first hit by Padte (P.W. 2)
with his umbrella and it was thereafter that the appellant,
in order to defend himself gave the knife blow. Now this
was not the plea taken by the appellant in his statement
under s. 342, Cr. P.C., but his counsel contended that it
was open to him to rely on the prosecution evidence itself
for substantiating this defence. For this purpose lie
relied on the evidence of Padte where he admitted that he
had tried to push back the appellant with his umbrella after
receiving from him the stab wound. Padte, it was argued,
had rightly admitted use of umbrella by him, but bad
suppressed the truth. Instead of admitting the initial
assault by him he had shifted the use of umbrella to a time
after the receipt of injury by him suggesting thereby that
it was used in self-defence Stress was in this connection
laid on the fact that a broken umbrella was found by the
investigating officers at the place of occurrence. From
this circumstance support was sought for the suggestion that
Padte must have hit the appellant with the umbrella with
considerable force and that could only be done before he was
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injured. Faced with six hostile men, use of knife by the
appellant after having been severely hit was, according to
the counsel, a lawful and legitimate exercise of his right
of self-defence.
It is true that an accused person can, without calling
defence evidence in support of the plea of self-defence,
rely on the evidence led by the prosecution and the material
on the record for showing that he had acted in self-defence.
In such cases the real question which the court is called
upon to decide is whether on proper appraisal of the
evidence and the relevant material on the record it can be
said that the accused has been proved to be guilty beyond
reasonable doubt. For the court cannot justifiably ignore
the
535
material which establishes the right of self-defence merely
because the accused has for some reason or the other omitted
to take such plea. On going through the evidence and the
material on the record we are, however, unable to hold that
the injuries in question had been inflicted on the
prosecution witnesses by the appellant while acting in self-
defence. The, injuries on the appellant’s person were
found, on examination by Dr. V. B. Nair, Casualty Medical
Officer in Charitable Nair Hospital on June 22, 1966 at
about 5 p.in. to be a contused lacerated wound over the
right scapular region 1/2" x 1/4" skin deep and two
abrasions, (a skin abrasion on the right ring finger and a
linear abrasion over the left elbow). The injury over the
right scapular region indicates that it was, caused to the
appellant by someone hitting him from behind and if that be
so, then as suggested by the trial court it seems more
probable that in the melee following the free use of knife
by the appellant, someone bit him with the umbrella when he
was trying to escape after giving the knife injuries to the
P.Ws. It could not be the result of a push as stated by
Padte. There being no clear evidence on the point the Court
has to go by probabilities. On this view we are unable to
sustain the appellant’s suggestion that he was first
assaulted with umbrella. The other submission that the
appellant, when threatened by Padte with knife, tried to
snatch it and during the course of this struggle Padte may
have accidentally been wounded in his abdomen when pushed by
the appellant, has merely to be stated to be rejected. ’The
story not only sounds unrealistic but we are also unable to
find on the record any rational basis for its acceptance.
The nature of the stab wound in the abdomen as described by
Dr. Virendra J. Shankar (P.W. 11) also seems to negative
this suggestion. The wound has penetrated into the
abdominal cavity and intestinal loops were visible and were
coming out. Keeping in view the nature of the scuffle it
could not be accidental. The abrasions on the appellant’s
finger relied upon by the appellant’s counsel in support of
this theory is equally unhelpful. In a struggle for
snatching an open knife from another person’s hostile hands
one would expect more serious injuries than mere abrasions.
The plea on the right of private defence must, therefore, be
repelled.
It was then contended that the statements of the three
witnesses (P.Ws. 4, 5 and 6) made in the, committing court
from which they had resiled at the trial, should not have
been acted upon by the trial court in support of the
prosecution version and P.W. 8 the only witness who did not
resile from the statement in the committing court is a
highly interested witness and, therefore, his evidence
should not be implicitly accepted, said the counsel.
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Nimbalkar (P.W. 3) who was produced at the trial without
having been examined in the committing court was also
declared hostile
536
and was permitted to be, cross-examined by the prosecutor.
His evidence, according to the appellants counsel, is no
better and, therefore, does not add strength to the
prosecution case. This Court must, therefore, hold that the
evidence on the record is not trustworthy and it does not
establish the appellant’s guilt beyond reasonable doubt. We
are not impressed by this submission. The statements of the
three witnesses in the committing court from which they
resiled at the trial and which were duly brought on the
record of the trial court under S. 288, Cr. P.C. constitute
substantive evidence and if the court is satisfied that
those statements were true whereas those made in the trial
court were untrue then the earlier statements can safely be
relied upon to sustain the conviction. In this case a mere
reading of the statements at the trial demonstrates their
unconvincing nature and it seems clear that there was some
ulterior motive for the witnesses to resile from the earlier
statements which appear to have a ring of truth about them.
We are, therefore, satisfied that the trial court was right
in convicting the appellant for offences under ss. 326 and
324, I.P.C.
On the question of sentence, however, we feel that in view
of the somewhat dubious nature of the transaction which led
to the occurrence and the fact that the, appellant had felt
somewhat annoyed at the repeated visits of P.Ws. to his
house where unpleasant scenes were created in the presence
of his mother the sentence imposed is somewhat severe. In
our opinion a sentence of two years’ rigorous imprisonment
would meet the ends of justice. This Court normally does
not interfere with the quantum of sentence on appeal under
Article 136, but in the present case, :as the High Court
bad, in our opinion, erroneously dismissed the :appeal
summarily without giving reasons, we have chosen on a
consideration of all the relevant circumstances to go into
the question ourselves.
The appellant will surrender to his bail bond to serve out
the remaining sentence.
R.K.P.S. Appeal
dismissed.
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