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I A B 529· RAJMKANT v. STATE OF MAHARASHTRA September 30, 1970 [S. M. SlKRI, K. S. HEGDE AND I. D. DuA, JJ,] Appeal-Convictionunder Ss. 326 a11d 324 I.P.C.-High Court' dis mjssing appeal .su111marily withoutgiving any reason-_//desirable cours¢ Necessity for givingreasons to enable Supren1e Court properly to· exercise its powerunder Article 136 of the Cqnstitution, CThe appellant was convicted by the Trial court foroffencesunder Sections326 and324 I.P.C. for havingvoluntarilycaused grievoushurt - with a dangerousweapon to oneperson,and for 'causing hurtto three otherpersons. He was sentencedto imprisonmentfor fouryearsfor his convictionunder Sectiun 326 and for 1! yearsfor eachof the three offences 11r,Jt:r Section 324, all sentences to run concurrently. The ap pellant filed an appealagainst his conviction to the HighCourtat Bombay 0 but his appeal was dismissed by theCourtwith one word "dismissed". In appealto thisCourt by specialleave underArticle136, it· was contendedon behalfof theappellant that theinjuriescomplainedof wereinflicted by him in the exerciseof his lawful and legitimateright of self-defence. It ~1.as also contendedthat the statements of three of the eyewitnessesmade in thecommittingCourt from which they-had resiledat thetrialshouldnot havebeenactedupon by the TrialCourt E in supportof theprosecutionversion; and thatthe onlywitnesswho did notresilefrom the. statementin the committingCourt was._ a highlyin terestedwitness in thathe was the person'on whom injurieswere stated h> havebeen inflicted by the appellant:therefore his evidence should not· have been implicitlyaccepted. F G .H HELD : dismissingthe appeal, (i) Oi:t theevidence,the pleaof selfdefencetaken by the appellant couldnot be sustained.Furthermorethe statementsof the three witnesses inthecommittingcourt from whichthey resiledat thetrialand which wereduly broughton therecordof thetrialcourtunder.Section 288 Cr. P.C. constitutedsubstantiveevidence and if thecourt was satisfied thatthosestatementswere true whereasthose made in the trialcourtwere untrue,then the earlierstatementscould safely be reliedupon to sustain theconviction.In thiscasea merereadingof thestatementsat thetrial demonstrated their unconvincing natureand it was clearthat therewas some u1terior motivefor the witnesses to resitefrom the earlier state mentswhichappearedto havea ringof truthaboutthem.The trial court was thereforeright in convictingthe appellantfor offencesunder Ss. 326 and324 I.P.C. J;536 B-D] (ii) On readingthe judgmentof thelearnedAdditional Sessions Judge and the memorandum of the groundsof appealin theHighCourtit was clear that the· summarydismissal of theappeal by theHighCourt · with -one word "dismissed" without indicating its views on the points raised in the appealwhich appearedto be arguable was not right.This 530 SUPREME COURT REPORTS [1971) 2 S.C.R. •Court has repeatedlypointed out thatwhen an appealto theHighCourtA u!lder the Code of Criminal Procedure raisessome arguablepoints. the High Courtwould be well-advisedto give some indication of the reasons forits viewwhilerepellingthose points.Withouthaving the benefitof theopinionof theHigh Court, thisCourt is likelyto feel embarrassedin dealingwith thosepointson appeal by specialleave, [530 H-531 CJ Mustak Hussein v, The State of Bombay, [1953] S.C.R. 809 at 820 and ChallappaRamaswami v. State of Maharashtra [1970] (2) S.C.R. 426; B referred to. Section 4!0 Cr.P.C.confers a rightof appealto theHighCourton apersonconvictedon a trialheldby a Sessions Judgeor an Additional SessionsJudge. This rightentitlesthe aggrievedparty to challenge con clusionsof factsand to claimreappraisalof evidence.It would, there- fore,be conduciveto theendsof justiceif theHighCourts were as a generalrule to letthisCourthave the benefitof theirvaluableopinion C in caseswhichraise arguablepoints whetheron factsor onlaw so as to enablethis Courtsatisfactorilyto exerciseits powerunder Art. 136 anddisposeof theappealfinally.[In orderto avoidfurtherdelay in thedisposalof thepresentcase the Courtdecidedto go into the evi dence-a coursethis Court is normallyreluctant to adopt in appeals underArt. 136-because this case primafacie raised arguablepoints]. (531 D-Fl D (iii) Althoughthis Courtwouldnot normatlyinterfere with the quantum of sent.enceson appealunder Art. 136, in the presentcase as the HighCourthad erroneouslydismissed the appealsummarilywithout giving the reasons,this wasa fit case wherethis Court on a cono;;ideration of the relevantcircumstancescould go intothe question of !'entences itself (th<: Court held thatthe sentenceof twoyearsimprisonmentwould ·meet the endsof justice).(536 E] E CRIMINAL APPELLATE JURISDICTION : CriminalAppeal No . . 99 of 1968. Appealby specialleave from the order dated March28, 1968 oftheBombayHigh Courtin CriminalAppeal No. 380 of 1968. V.M.Tarkunde, N. H. Hingorani and K. Hingorani, forthe .appellant. M. C. Bhandare 3ll1d S. P. Nayar, forthe respondent. The Judgmentof theCourtwas deliveredby Dua, J. This is .an appealby specialleave from the judgment of theHighCourtof Judicatureat Bombaydated March28, 1968 si;mmarily dismissingthe appellant'sappeal againsthis convictionby theAdditionalSessions Judge, GreaterBombayfor uffences under ss. 326 and 324,I.P.C.The HighCourtdisposed ·of his appealwith one word "dismissed". At the outsetwe mustpointout that on readingthe judgment 'Of thelearnedAdditionalSessions Judge and thememorandum of the grounds of appealin theHighCourtwe feltthatthe summary F G H I A B c D E F G RAJNJKANT v. MAHARASHTRA (Dua, J.) 531 dismissalof theappealby theHighCourtwith one word "dis missed" withoutindicatingits views on the, points rai~ed in .the' appealwhich clearlyappearsto us to bearguablewas not right. This Courthas repeatedlypointed out. thatwhenan appeal to the HighCourtunder the Code· of CriminalProcedure raises some arguablepoints the HighCourtwouldbe welladvisedto give someindicationof thereasonsfor its view whilerepellingthose points.Without having the benefitof theopinionof theHigh Courtthis Courtis likelyto feelembarrassedin dealingwith thosepointson appeal by specialleave. [see Mushtak Hussain v. The State of Bombay(') and Chalklppa Rama,swami v. State of Maharashtra(')]. We wouldlike onceagainto emphasisethat Art.136 of theConstitutiondoes not confera rightof appealon apartyaggrievedby thedecisionof a HighCourt: it mere!} conferson this Court a discretionarypower to interferein suit ablecases.For judiciousexercise of thispowerthis Courtex pectsthe HighCourtsto recordspeakingorders; howeversketchy, evenwhilesummarilydismissing appeals which raise arguable points.Section 410, Cr. P.C., it is worth noting,confersa right ofappealto theHighCourt ori a person convicted· ona trial heldby a Sessions Judgeor anAdditional Sessions Judge. This rightentitlesthe aggrievedparty to challenge conclusionsof facts and (o claimreappraisalof evidence. It would,therefore,be conduciveto theendsof justiceif theHighCourtswere as a generalrule to letthisCourthave the benefitof theirvaluable opinionin caseswhichraise arguablepoints whetheron facts or on Jaw so as toenablethis Court s:itisfactorily to exerciseits powerunder Art. 136 and disposeof theappealfinally.In the absenceof a speakingorder of theHighCourtthis Courtmay haveto remandthe casesto theHighCourtsfor re-hearingand recordingreasons for theirconclusions,to theavoidableharass ment of theaccusedpersons concernedand delayin thefinaldis posalof criminalcases. In thepresentappeal to avoidfurther delayin thedisposalof thecase we chose to go intothe evidence ourselves--a coursewhich normallythis Court is reluctantto adoptin appealsunder Art. 136-because we felt that it did prima facie raisearguablepqints. TheappellantRajni alias Bal GhanshyamGadkar was charg~ ed withan offenceof attemptedmurder under s. 307, 1.P.C. for havingstabbedNamdeoKeshav Padte (P.W. 2) With a knife onJune21, 1966. In the alternativehe waschargedunder s. 326, I.P.C. with the offenceof having voluntal(ly causedthe said Padte grevioushurt witha dangerousweapon "(knife). He was furtherchargedwith threeoffencesunder s. 324, I.P.C. for having (I) [19S3J S. C.R. 809 at ~20. (2) [1970) 2 S. C.R. 426. 532 SUPREME COURT REPORTS (1971] 2·S.C.R, voluntarily ca11-sed in thesametransactionhurts to Vasant Nara yan Shi.(ide, Promod DattaramChavan and to Sudam Mahadeo Khanvilkar.The trialcourtconvictedthe appellantunder s. 326, l.P.C. inStead of s, 307, I.P.C. for stabbing Padte andsentenced himto rigorousimprisonmentfor fouryears. It also convicted him under s. 324, l.P .. C. for causinghurt to theotherthree per· sons and . sentenced him torigorousimprisonmentfor one and' a halfyearsfor eachof thethree offences. Allthe sentenc~s were directedto runconcurrently. Shri Tarkunde,learned counsel: for the appellant,took us thr:iugh the relevantrecord. for the purposeof showingthat the assessmentof theevidence liy thetrialcourt was .erroneousand, therefore,unsustainable. We were constrainedto permithim to refer to theevidenceas we did not have the benfit of knowingthe reasonswhich had prevailedwith the High Court in agreeingwith theultimateconclusionsof thetrialcourt.The occurrencetook placeat 9 p.m.on June21, 1966in the 10th Laneof Kerwadi, Bombayand the F.l.R.. was lodgedby Namdeo KrshavPadte {P.W. 2 )at 10-30 p.m.the samenightat thepolicestation, l,amington Road.Accordingto thisreport Padte's cousin DattatrayaGajanan More (P.W. 8) who wanted to purchasea scooterhad for thatpurposeapproachedone VinodNimbelkar (P.W. 3) knownto Padte. More had told Padte thatthe former hadpaida sumof Rs. 5 or,6 thousandto theaccusedRajni throughNimbelkar.The accusedneither gave the scooternor returnedthe money. On being approachedby Morefor the remrn of themoneyhe wasput off on variouspretexts.More hadabouttwo days earlierinstructed Padte to go to Rajnikatit withNimbelkar to• get l)ack .the money. Accordinglyon June20, intheevening Padte contactedRajinikantat his residence but he wastoldthat Rajnikanthad returnedthe money to Nimbelkar atabout3 p.m. On thedate of the occurrence Padte returned homeat about6 p.m. He went to Nimbalkarand aftertaking himalong;they both wer:t to theaccused.The accused was not presentat his ·residence buttheylearntfrom his motherthat he wouldreturn at about9 p.m. Padte andNimbalkarthen went back to thelatter'sresidencein Sikka Nagar. At about8-45 p.m. -when they agrun wentto thehouseof theaccusedChavan (P.W. 5) another resident of Sikka Nagar, also accompanied them. Shinde(P.W. 4) who was known to Chavan also jointed themon the· way Theyall wentto theresidenceof theaccused atabout9 p.m. !Jut againdid not find-himthere. While coming downfrom the fifst floor of the buildingthey foundthe accused withthreeor four boys. Nimbalkarasked him as to when he would return the money.The accusedreplied that he did not recogniseNimbalkarbut wouldsettle the matterwith More. On Padte's interventionthe accusedtold ·him also that he did not A B c D E F G A 8 c D • G H RAJNIKANT v. MAHARASHTRA (Dua, J.) 533 recognise him. When Padte insistedthat he hadbeenintroduced to him by Mori: theaccusedwhippedout a knifefrom the ppcket of hispantsand stabbedhim causinginjury on the left sideof his stomachand on his left hand.Thereafterthe accusedstabbed Shindeand thenran away. Thisreport was actuallyrecorded inthe J. J. Hospitalwhere R. M. Naik, S. I. LamingtonRoad Police Station (P.W. 10) and B. N. Patil, G.S.I. attached to the samepolicestation(P.W. 12) hadgone,on learningon tele- phone about an assaultcase in the10thLane,Kerwadiand admis sion of two personsin thathospital.This information was con veyedon telephonefrom V. P. RoadPolice Station wherePadte and Shindehad beentaken by their friendsand from where the injuredpersonswere takento the J.J. Hospitalin a jeep by constableBabu Parab(P.W. 9). After registeringthe crimeat thepolicestationboth P.W. 10 and P.W. 12 went to the appel lant'sresidencebut foundhim absent.A watch was keptat his house.The appellant was, however,arrested ·at Goregaonon thefollowingday (June 22, 1966)and was not medically examined.He had some injurieson his person. Anabnormalfeature in thiscase is thatthreeeye-witnesses Shinde (P.W. 4), Chavan(P.W. 5) andKhanvilkar(P.W. 6) who supportedthe prosecutioncase in the committingcourt changed the~r statementsat thetrial in the courtof theAdditional Sessions Judge.They were declaredhostile and cross-examined bytheprosecutorand confronted with theirearlierstatements fromwhich they had resiled.Nimbalkar '(P.W. 3) who had not beenexamined in the committingcourt also declinedto support theprosecutionstory whenproduced as a witnessat thetrialin thecourtof theAdditional. Sessions Judge. The !tfOund statea by him _was thatapprehending use of violenceand of assaults he hadleft the placeof occurrence as soon as thequarrel started . Hetoo was declaredhostile and cross-examined.The evidence 'of Padte(P.W. 2) completelysupported the prosecution case and remainedunshaken.The statements ef P.Ws. 4, 5 and6 made in thecommitting court wereduly broueht on therecordunder s. 288, Cr. P.C.,When confrontedwith the portionsof their statementsmade in the committingcourt, the truthof whichthey haddenied at the trial, they merelysaid that theydid not know how thoseportionscame to berecorded.The trialcourtafter goingthroughthe materialon therecordcame to the conclusion thatthe version given by Padteregardingthe actualoccurrence was fully established.The discr~pancies on minorpointswere heldnot to affectthe trustworthinessof the witness on thesalient featuresof theoccurrencewhich fully broughthome to the aunel lant his guilt.On aopraisalof theentireevidencethe appellant was found euiltv of of.'ences under s. 326and s. 324, I.P.C. Und 0r s. ';26, I.P.C.he wassentencedto fouryears riQorous 7-436S10 ~,/71 5.34 SUPREME COURT REPORTS [1971 I 2 S.C.R. imprisonmentand under s. 324to oneandhalfyearsrigorous imprisonmentfor injuriescaused to each one of thethree P.Ws. Shinde,Chavanand Khanvilkar.All the foursentencesof impri sonment were to run concurrently In thisCourton behalfof theappellant his learnedcounsel Shri Tarkundevery stronglyargued that the evidenceon the recordand the probabilitiesof thecase show that Padte(P.W. ·2) and his companionswere the aggressorsand the appellant was merelytrying to defendhimself when he attemptedto catchhold oftheknifewith which Padte had threatened to attackhim. Padte, accordingto the. submission,got wounded as a resultof thepush.givento him by theappellantwho, duringthis struggle. · successfullysnatched his knife. Emphasis was in thisconnection laid on thefactthat Padte and his companionswere admittedly six: in numberand the appellant ,who was single-handedcould nothavedaredto runthe riskof a clashwith them by starting theassault.In thealternativeit was suggested that assuming theappellanthad in his possessiona knifeof his own, as a matter offacthe was first hit by Padte(P. W. 2) with his umbrellaand it was thereafterthat the appellant,in orderto defend himself gavethe knifeblow.Now this was not the pleatakenby the appellantin hisstatementunder s. 342, Cr. P.C., but his counsel contendedthat it was opento himto relyon theprosecution evidenceitself for substantiatingthis defence.For this purpose hereliedon theevidenceof Padte where he admittedthat he had tried to pushback the appellantwith his umbrella· afterreceiving from him the stabwound. Padte, it was argued,had rightly admitteduse of umbrellaby him,but hadsuppressedthe truth. Insteadof admittingthe initialassaultby himhe hadshiftedthe useof umbrellato a timeafter· the receiptof injuryby him sug .gesting therebythat it wasusedin self-defence Stress was in thisconnectionlaid on thefactthata broken.umbrella was found by the investigatingofficers at theplaceof occurrence.From thiscircumstancesupport was soughtfor thesuggestionthat Padtc must have hit theappellantwith the umbrellawith consider able forceand thatcouldonly be donebeforehe wasinjured. Facedwith six hostilemen, use of knifeby theappellantafter havingbeen severelyhit was,accordingto thecounsel,a lawful andlegitimate exercise of hisrightof self-defence. It is true that anaccusedperson can, without calling defence evidence in supportof the plea: of self-defence,rely on theevidence led by theprosecutionand the materialon therecordfor showing thathe hadactedin self-defence. In such casesthe realquestion whichthe court is calledupon to decideis whetheron proper appraisalof theevidenceand the relevantmaterialon therecord itcanbe saidthat the accusedhas beenprovedto .be guilty beyond reasonabledoubt. For the court cannot justifiablyignore the A B c D E F G H A B c E RAJNIKANT v. MAHARASHTRA (Dua, J.) 535 material which establishesthe rightof self-defencemerely because theaccusedhas for somereasonor theotheromitted to take sw;h plea. On goingthroughthe evidenceand the materialon the record we are,however,unable to holdthat the injuriesin ques tion had beeninflictedon theprosecutionwitnesses by the appellantwhile actingin self;defence.The injurieson the appel lant'spersonwere found,on examination by Dr.V. B. Nair, Casualty Medical Officer in CharitableNair Hospitalon June 22,. 1966 at about5 p.m. to bea contusedlaceratedwound over the rightscapularregion i" x 1-" skin . deepand two abrasions, (a skin abrasioo on the right ring finger anda linearabrasionover theleftelbow).The injuryover the rightscapularregion indi cates that it was causedto theappellant by S0'7leone hitting him t'rdm behindand if that be so, then as suggested by the trialcourt it seems moreprobablethat in the melee followingthe free u1e of knife by theappellant, someonehit him withthe umbrella. whenhe was tryingto escapeafter givingthe knifeinjuriesto the P.Ws. It couldnot be theresultof a push as statedby Padte. Therebeing no clearevidenceon thepointthe Coun has to g0> by probabilities. On this view we are unableto sustainthe appel lant'ssuggestionthat he was first assaulted withumbrella. The· othersubmissionthat the appellant,when threatened by Padte with knife, tried to snatchit andduringthe courseof thisstruggle Padte may haveaccidentallybeen woundedin his.abdomenwhen pushed by theappellant,has merelyto bestatedto berejected_ Thestorynot onlysoundsunrealisticbut we are alsounable te> find on therecordany rationalbasis for itsacceptance. The nature of the stab wo11nd in theabdomen as describedby Dr .. Yijendra J. Shankar (P.W. 11) also seems to negativethis sug gestion.The woundhas penetratedinto the abdominalcavity andintestinalloops were visible and werecomingout. Keeping F - in view thenatureof the scuffie it couldnot be accidental. The· abrasionson theappellant'sfinger relied upon by the appellant's counsel in supportof thistheory is equallyunhelpful.In a 'trugglcfor snatchingan openknifefrom anotherperson'shostile handsone wouldexpectmore seriousinjuriesthan mereabra- 'ions. The pica on therightof private defencemust, therefore, he repelled. G H It was then contendedthat the statementsof thethreewitnesses 1 P.Ws. 4. 5 and6) madein thecommittingcourt from which they had resiledat thetrial,shouldnot havebeen actedupon by the trialcourtin supportof theprosecutionversion and P.W. 8 theonlywitness who did notresilefrom the statementin ·the com- mitting court is a highlyinterestedwitness and, therefore,his evidenceshould not be implicitlyaccepted, said the · counsel. Nimba!kar(P.W. 3) who was producedat thetrialwithouthaving beenexaminedin thecommittingcourt was also declaredhostile 536 SUPREME COURT REPORTS [1971] 2 S.C.R. and waspermitted to be cross-examinedby theprosecutor.His. evidence,according to the appellant'scounsel, is no better and, therefore,does not addstrengthto theprosecutioncase. This Court must, therefote,hold that the evidenceon therecord is not trustworthyand it does not establishthe appellant'sguilt beyondreasonabledoubt. We are not impressedby thissubmis ~ion. Thestatementsof the three witnesses jn the committing ·courtfrom· whichthey resiledat thetrialand whichwere duly broughton therecordof thetrialcourtunder s. 288, Cr. P.C. ·constitute substantiveevidence and if thecourtis satisfiedthat thosestatementswere true whereasthose madein thetrialcourt were-untruethen the earlierstatementscan safelybe reliedupon to sustainthe conviction. In thiscasea merereadingof the statements at thetrialdemonstratestheir unconvincingnature and it seems clear that there was someulteriormotive for thewitnesses to resilefrom the earlierstatementswhich appear to have a ring of truthaboutthem.We are,therefore,satisfied that the trial courtwas rightin convictingtheappellantfor offencesunder ss. 326 and 324, I.P.C. On the questionof sentence,however, we. feel thatin view of thesomewhatdubious nature of thetransactionwhich led to theoccurrenceand the factthattheappellanthad felt somewhat annoyedat the.. repeated visits of P.Ws. to hishousewhereun pleasant scenes werecreatedin thepresenceof hismotherthe .sentenceimposed is somewhatsevere. In our opinion ~ sentence of two years'rigorousimprisonmentwould meet the ends of justice.This Courtnormallydoes not interferewith the quantum ofsentenceon appealunder Article136, but in thepresentcase, as the HighCourthad, in our opinion,erroneouslydismissed the appealsummarilywithout giving reasons,we havechosenon a ·consideration of alltherelevantcircumstancesto gointothe ques ·tion ourselves. The appellantwill surrenderto hisbailbondto serveout the remainingsentence. R.K.P.S. Appealdismissed. A B c D E F |
