NARENDERA NATH KHAWARE versus PARASNATH KHAWARE AND ORS.

Citation: [2003] 3 S.C.R. 683 · Decided: 17-04-2003 · Supreme Court of India · Bench: M.B. SHAH · Disposal: Disposed off

Judgment (excerpt)

NARENDERA NA TH KHA WARE 
A 
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 
683 
H 
.1. 
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 H

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