NARENDERA NATH KHAWAREversusPARASNATH KHAWARE AND ORS.

                    NARENDERA NA TH KHA WARE                                      A .1.
                                      v.
                  PARASNATH KHAWARE AND ORS.

                             APRIL I 7, 2003

                 [M.B. SHAH AND ARUN KUMAR, JJ.]
                                                                                  B


      Penal Code, 1860-Sections I 48, 302 read with I 49-Acquittal by trial
Court-High Court dismissing appeal-Justification of-Held: High Court
without appreciating evidence and finding fault with investigation disposed of C
the appeal in ve1y casual and cavalier manner-Thus, order of High Court set
aside-Matter remanded-Evidence Act, 1872.

       Constitution of India, 1950-Article I 36-Special Leave Petition by
private person against acquittal of accused-Maintainability of-Held: Such
petition maintainable as Article 136 confers wide discretionary power on          D
Supreme Court to interfere in suitable cases.

      Practice and procedure-Criminal appeals-Involving vexed question
of law and fact-Disposal of by High Court in cursory manner-Held: High
Court where it is the first court of appeal should not dispose of appeals in
such manner since it results in denial of right of appeal of parties and also     E
the court will be failing in its duty.

      Accused-respondents were charged under Sections 148 and 302 read
with Section 149 IPC for the murder of complainant's son. Trial Court
acquitted the accused. State filed an appeal. High Court on finding fault         F
with the investigation dismissed the appeal. Hence the present appeal.

      Respondents contended that only the State had the right to file Special
Leave Petition or an appeal in this Court, the State having failed to do so,
an appeal at the instance of the complainant is not maintainable; and tha!
the complainant could have filed a criminal revision which he did not do          G
and for this reason also the complainant had lost the right to file any appeal.

      Appellant-complainant contended that the power of this Court under
Article 136 of the Constitution are very wide and once this Court has
granted leave to appeal in exercise of that power such an objection, as is
                                                                                  H
                                     683
    684                     SUPREME COURT REPORTS                   [2003] 3 S.C.R.

A   being raised on behalf of the respondents, is not available.

          Disposing of the appeal, the Court

          HELD: 1. I. The High Court disposed of the appeal in a very casual
    and cavalier manner. Being the court of first appeal, it was required to
B   consider and re-appreciate the evidence on record. It did not refer evidence
    of the complainant, who is also the father of the deceased. The complainant
    was an injured eyewitness. Therefore, there could not be any doubt about
    his presence on the spot. It was the grievance of the complainant that the
    accused party were innuential people and they had managed to ensure that
C   the prosecuting agency adopts a lackadaisical approach in investigation.
    This has lead the complainant to file a protest petition before the Additional
    Chief Judicial Magistrate complaining the manner in which investigation
    in the case was being carried out. In fact this explains the non-examination
    of the investigating officer as a witness in the case. (688-G, H; 689-A-C)

D         1.2. Regarding the observation of the High Court that other witnesses
    were not examined, the counsel submitted that at the time of actual
    occurrence only the complainant and his son were present. The others came
    on the spot after the injuries had already been caused on the victim party.
    Victim having died at the spot, complainant was the only eyewitness of the
E   murder. The statement of the complainant is to the same effect. The
    evidence of the complainant is corroborated by the medical evidence as well
    as by the prosecution witnesses. (689-C, DJ

           1.3. With regard to non-examination of the Investigating Officer it
    is settled law that the same is not fatal to the prosecution case. It has been
F   often found that in order to help the accused party, especially in case where
    Investigating Officers absent themselves and do not appear as witness in
    court. Another factor which had weighed with the courts below is the
    absence of blood on the spot. This was explained as wholly of no
    consequence in the facts of the instant case where there is no doubt about
G   the actual occurrence having taken place and about the spot where it took
    place. It is also emerging from the record that the courtyard where the
    incident took place was open to sky and it was a rainy day. Therefore, the
    blood stains might have been washed away. Therefore, none of the grounds
    mentioned by the High Court in its impugned judgment are really
    determinative of the fate of the appeal. The High Court has failed to
H   discharge its function. Thus it is a fit case for remand so that the High Court
  NARENDERA NATH KHA WARE v. PARASN/,TH KHAWARE[ARUN KUMAR, JJ            685
can go into the evidence on record in detail and come to definite finding        A
on the facts in issue in the instant case. Therefore, order of the High Court
is set aside and High Court is directed to hear the appeal on merits and
decide the same in accordance with law. 1689-F-H; 690-B, q

      2. A growing tendency with the High Court in disposing of criminal
appeals involving vexed questions of law and fact in cursory manner              B
without going into the facts and the questions of law involved in the cases
is observed. May be this approach is gaining ground on account of huge
pendency of cases. But such a summary disposal is no solution to the
problem of arrears of cases in courts. Disposal of appeals where the High
Court is the first court of appeal in such a manner results in denial of right   C
of appeal of the parties. So long as the statute provides a right of appeal
the court will be failing in its duty if the appeal is disposed of in such a
casual and cavalier manner as the High Court has done in the instant case.
                                                                  (690-D, E(

      Arunachalam v. P.S.R. Sadhanantham and Anr., (1979( 2 sec 297,             D
relied on.

      P.S.R. Sadhanantham v. Arunachlam and Anr. (1980) 3 sec 141 -
followed.

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.                       E
499 of 1994.

     From the Judgment and Order dated 6.4.1993 of the Patna High Court
in Govt. A.No. 28 of 1992.

     Jayant Bhushan, Sanjai K. Pathad and C.S.N. Mohan Rao for the               F
Appellant.

     P.S. Mishra, S.B. Upadhyay, Sujit K. Singh, B.B. Singh and Kumar
Rajesh Singh for the Respondents.

     The Judgment of the Court was delivered by                                  G

      ARUN KUMAR, J. The complainant Narendra Nath Khaware filed a
Special Leave Petition in this court under Article 136 of the Constitution of
India seeking leave to appeal against the judgment dated 6th April, 1993 of
the High Court of Judicature at Patna. Leave to appeal was granted, by this      H
    636                    SUPREME COURT REPORTS                 [2003 J 3 S.C.R.

A court vide order dated 4th August, 1994 and the matter was registered as
  Criminal Appeal No.499 of 1994. The said appeal has come up for final
  hearing and disposal before this court. At the time of hearing, the learned
  counsel appearing for the respondents raised a preliminary objection about
  the maintainability of this appeal. In order to appreciate the objection, brief
B facts of the case are required to be stated. The respondents were charged for
  offences under Sections 148 and 302 read with Section 149 IPC. The incident
  for which these accused were charged is the murder of Diwakar Khaware,
  son of the complainant Narendra Nath Khaware (appellant) on 13th June,
  1982. As per the case of the prosecution, the complainant along with his son
  Diwakar Khaware (deceased) was getting his maize field weeded through the
C help of a few labourers on the morning of 13th June, 1982. His real brother
  Parasnath Khaware came on the spot and forbade the complainant from doing
  so. The complainant insisted that he had right to carry on the work in the
  field which belonged to him. On this Parasnath Khaware, who was
  accompanied by his son accused Bishwanath Khaware and Shrinath Khaware
D abused the labourers and drove them away from the field. The complainant
  took strong objection to this but the accused party started abusing the
  complainant and his son and started pelting stones on them. The complainant
  and.his son also threw stones on the opposite party in their defence. In the
  meantime, some villagers came and intervened in the fight. As a result of
  this, the accused persons went away. The complainant and his son Diwakar
E Khaware continued with the work in the field. After a few hours, that is about
   I 0.00 a.m., few villagers informed the complainant that the accused persons
  were coming back armed with weapons. The complainant did not pay heed
  to this warning thinking that the accused persons were his close relations.
  Within a short time, all the seven accused persons reached the spot. Seeing
  them, the complainant and his son Diwakar Khaware ran for their safety and·
F
  entered the nearby house of Ramdhani Jha. They hid themselves in a room
  by bolting the room from inside. However, as the main gate of the house had
  remained open, the accused persons rushed inside the house and broke open
  the door which had been bolted from inside. They entered the room where
  the coiuplainant and his son Diwakar Khaware were hiding. Diwakar Khaware
G was dragged outside the room in the courtyard of the house where &ccused
  Bishwanath ~haware is said to have given a bhala blow on his stomach. As
  a result of the blow, Diwakar Khaware fell down. Accused Parasnath Khaware
  gave a pharsa blow on the head of Diwakar Khaware. The other accused
   persons also assaulted Diwakar with their weapons. The complainant tried to
H save his son but he was also assaulted by accused Saroj Jha and Srinath
  NARENDERA NA TH KHA WARE v. PARASNA TH KHAWARE[ARUN KUMAR,J.]           687

Khaware. While this was going on, the villagers accompanied by Ram Dhani          A
Jha, Basant Kumar Jha, Surendra Jh and Sachidanand Jha came and intervened
and saved the victims from further assault. However, Diwakar Khaware died
on the spot. Police came in the village at about 1.00 p.m. when statement of
the complainant Narendra Nath Khaware was recorded. On the basis of the
said statement, an FIR was recorded and the seven accused persons were
charge-sheeted and tried for the aforesaid offences. The sessions court by its    B
judgment dated 19th June, 1992 while giving benefit of doubt to the accused
persons and finding fault with the investigation acquitted all the accused
persons. The State of Bihar filed an appeal against the said judgment of the
Sessions Court. The High Court dismissed the appeal in limine making the
following observations :                                                          C
       "As regards merits, it is clear from the perusal of the record that the
       witness named in the fardbayan have not been examined by the
       prosecution and also that the witnesses examined in Court were
       examined by the police after eight months from the date of occurrence.
       It is also clear that the Investigating Officer of the case has not been   D
       examined. Therefore, there are no merits. Further the appeal is barred
       by limitation also, which cannot be considered."

     Against the said judgment of the High Court, the complainant filed a
Special Leave Petition in this Court. Leave was' granted. Hence the present
appeal. The appeal has been registered for final hearing.                         E
      Learned counsel for the respondents contends that only the State of
Bihar had the right to file Special Leave Petition or an appeal in this Court.
The State having failed to do so, an appeal at the instance of the complainant
is not maintainable. The complainant had no right of appeal before the High       F
Court. However, the complainant could have filed a Criminal Revision which
he did not do and for this reason also the complainant had lost the right to
file any appeal.

      We have heard the learned counsel for the parties. So far as the objection
regarding maintainability of the appeal is concerned, the learned counsel for G
the appeHant submitted that the power of this Court under Article 136 of the
Constitution of India are very wide and once this court has granted leave to
appeal in exercise of that power such an objection, as is being raised on
behalf of the respondents, is not available. The consequence of granting leave
to appeal is that this court has considered it fit to hear appeal against the
impugned judgment. Therefore, the appeal has to be heard and decided on H
    688                     SUPREME COURT REPORTS                  [2003] 3 S.C.R.

A merits. In this connection, our attention has been invited to Arunachalam v.
    P.S.R. Sadhanantham and Anr., [1979] 2 SCC 297. It was observed that
    "appellate power vested in the Supreme Court under Article 136 of the
    Constitution is not to be confused with ordinary appellate power exercised by
    the appellate courts and appellate tribunals under specific statutes. It is a
    plenary power 'exercisable outside the purview of ordinary law' to meet the
B   pressing demands of justice. Article 136 of the Constitution neither confers
    on anyone the right to invoke the jurisdiction of the Supreme Court nor
    inhibits anyone from invoking the Court's jurisdiction. The power is vested
    in the Supreme Court but the right to invoke the Court's jurisdiction is vested
    in no one. The exercise of the power of the Supreme Court is not circumscribed
C   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 the Supreme 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."

          The decision in Aruncha/am (Supra) was challenged through a petition
D under Article 32 of the Constitution of India. It was contended that the
  Supreme Court had no power to grant special leave to the brother of the
  deceased. A Constitution Bench of this Court in P.S.R. Sadhanantham v.
  Arunachalam and Anr., [1980] 3 SCC 141 dismissed the Writ Petition
  upholding the right of a private person to file petition under Article 136 of
E the Constitution of India against an order of acquittal. It was observed "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 the Supreme court to interfere
  in suitable cases. It is residuary power and is extraordinary in its amplitude.
  But the Constitution makers int~nded in the very terms of Article 136 that it
  shall be exercised by the highest judges of the land with scrupulous adherence
F to judicial principles well established by precedents in our jurisprudence."
         In view of the aforesaid decisions of this court, we find no merit in the
    objection raised by the learned counsel for the respondents to the
    maintainability of the present appeal.

G       Coming to the merits of the appeal, we find that the High Court disposed
  of the appeal in a very casual and cavalier manner. Before the High Court,
  it was an appeal against acquittal involving seven accused persons and the
  offence they were charged with was under Sections 148 and 302 IPC read
  with Sections 149 IPC. The High Court being the Court of first appeal, was
H required to consider and re-appreciate the evidence on record. We fail to
  NARENDERA NATH KHA WARE v. PARASNATH KHAWARE[ARUN KUMAR, J.)             689

appreciate the manner in which the High Court disposed of the appeal on            A
basis of some general observations without making any effort to go into the
evidence on record. The learned counsel appearing for the appellant before
us particularly drew our attention to the evidence of P.W.l, the complainant,
who is also the father of the deceased. The complainant was an injured eye
witness. Therefore, there could not be any doubt about his presence on the         B
spot. It was the grievance of the complainant that the accused party were
influential people and they had managed to ensure that the prosecuting agency
adopts a lackadaisical approach in investigation. This has lead the complainant
to file a protest petition before the Additional Chief Judicial Magistrate
complaining the manner in which investigation in the case was being carried
out. In fact this explains the non-examination of the Investigating Officer as     C
a witness in the case. Regarding the observation of the High Court that other
witnesses were not examined, the counsel submitted that at the time of actual
occurrence only the complainant and his son Diwakar Khaware were present.
The others came on the spot after the injuries had already been caused on the
victim party. Diwakar Khaware having died at the spot, complainant was the         D
only eye witness of the murder. The evidence of the complainant is
corroborated by the medical evidence as well as by P.Ws. 2,3 and 4. The
approach of the courts below on the other hand was of finding fault with the
prosecution case, that is, non-examination of the Investigating Officer and
non-examination of Ram Dhani Jha etc. The prosecution case was thrown
overboard on such grounds. We have been taken through the statement of the         E
complainant P.W.1. The statement shows that at the time of the actual
occurrence only the complainant and deceased Diwakar Khaware were present.
Diwakar Khaware having died on the spot, complainant was the only actual
eye-witness. Ram Dhani Jha etc. came on the spot, may be immediately after
the event, and were therefore not eye-witnesses of the incident. So far as the     F
non-examination of the Investigating Officer is concerned, it is settled law
that the same is not fatal to the prosecution case. It has been often found that
in order to help the accused party, specially in case where Investigating
Officers are won over for whatever consideration, the Investigating Officers
absent themselves and do not appear as witness in court. Another factor
which had weighed with the courts below is the absence of blood on the spot        G
This was explained as wholly of no consequence in the facts of the present
case where there is no doubt about the actual occurrence having taken place
and about the spot where it took place. It is also emerging from the record
that the courtyard where the incident took place was open to sky and it was
a rainy day. Therefore, as argued by the learned counsel for the appellant, the    H
    690                     SUPREME COURT REPORTS                    [2003) 3 S.C.R.

A blood stains might have been washed away.
          The High Court was the first court of appeal. It did not even refer to
    the evidence of P. W. l. We also find from the judgment of the trial court that
    the evidence of P.W. I has not been given the attention it deserved. It will
    be seen from the order of the Hjgh Court. We really feel sad about the
B   manner in which the High Court has disposed of the appeal. None of the
    three grounds mentioned by the High Court in its impugned judgment are
    really determinative of the fate of the appeal. In our view, the fact is that the
    High Court has failed to discharge its function. We feel it is a fit case for
    remand so that the High Court can go into the evidence on record in detail
C   and come to definite finding on the facts in issue in the present case.
    Accordingly, we set aside the decision of the High Court and direct the High
    Court to hear the appeal on merits and decide the same in accordance with
    law.

        We are constrained to observe a growing tendency with the High Courts
D in disposing of Criminal Appeals involving vexed questions of law and fact
  in cursory manner without going into the facts and the questions of law
  involved in the cases. May be this approach is gaining ground on account of
  huge pendency of cases. But such a summary disposal is no solution to' the
  problem of arrears of cases in courts. Disposal of appeals where the High
  Court is the first court of appeal in such a manner results in denial of right
E of appeal to the parties. So long as the statute provides a right of appeal, in
  our view the court will be failing in its duty if the appeal is disposed of in
  such a casual and cavalier manner as the High Court has done in the present
  case.

F         Let the High Court decide the appeal on proper appreciation of facts
    and evidence on record in accordance with law after giving due opportunity
    of hearing to the parties. Since the matter is quite old, the High Court should
    endeavour to decide the case expeditiously on a priority basis. Any observation
    made in this judgment will not come in the way of the High Court in deciding
    the appeal on merits.
G
           The appeal stands disposed of.

    N.J.                                                       Appeal disposed of.