Holding

The High Court exceeded its jurisdiction; its order setting aside the acquittal is void.

Summary

The appellants were convicted only under IPC s.323 r/w s.34 for causing simple injuries, while the State did not appeal. The complainant filed a criminal revision before the High Court, which re‑examined the entire evidence, criticised the autopsy surgeon, held that the case was actually IPC s.302 with intent to cause death, and remanded the matter for fresh trial. The Supreme Court held that the High Court had exceeded its limited revisional jurisdiction under CrPC s.397 and s.401(3), as it re‑appraised evidence and effectively converted an acquittal into a conviction without a manifest error of law or gross miscarriage of justice. Consequently, the High Court's order was set aside and the appeal was allowed.

Issues considered

The scope of the High Court's revisional jurisdiction under CrPC s.397 and s.401(3) in a private revision against an acquittal.
Whether the High Court can re‑appraise evidence and convert an acquittal into a conviction.
Whether there was a manifest illegality or gross miscarriage of justice justifying interference.
Whether the trial court's finding of acquittal was perverse and liable to be reversed.

Legislation cited

Code of Criminal Procedure, 1973s. 397, s. 401, s. 421
Indian Penal Code, 1860s. 148, s. 149, s. 193, s. 196, s. 302, s. 323, s. 34

Subjects

revision jurisdictionCrPC s.401acquittalhigh court powermanifest illegalitymiscarriage of justiceevidence reappraisalIPC 323IPC 302autopsy surgeonperverse judgment

Judgment

[2008] 2 S.C.R. 185

~
JOHAR AND OTHERS A
v.
-{ MANGAL PRASAD & ANR.
(Criminal Appeal No. 215 of 2008)
JANUARY 30, 2008
B
"t (S.S. SINHA AND V.S. SIRPURKAR, JJ.)
"
Code of Criminal Procedure, 1973:
ss.397 and 401(3)-High Court's power of revision-Jn a
trial for offences u/s 302 rlw 34 /PC trial court convicting c
accused u/s 323 - No appeal by State - On revision petition
by complainant, High Court ref3ppreciating whole evidence,
commenting upon credentiality of Autopsy Surgeon and
remanding the case to trial court observing that intention of all
the accused was to cause death of the victim and it was a case D I

uls 302 /PC - Held: In effect and substance finding of trial
) -
.. court has been _reversed - One possible view was sought to
be substituted by another possible view - High Court did not
point out any error of Jaw on the part of trial court - Since the
view of trial court could not. be termed to be a perverse one, E
High Court exceeded its jurisdiction - Judgment of High Court
set aside - Penal Code, 1860 - ss. 323134.
The appellants along with another accused were
prosecuted for causing death of a person. But the trial
> . court convicted all of them uJs 323 rlw s.34 IPC. The State F
did not file any appeal. One of the accused filed an appeal
•· · and his conviction u/s 323 IPC was confirmed by the High
Court. The complainant also did ·not challenge the order
of the trial court in his case. However, the complainant
filed a revision petition against order of the trial court as G
~
regards the appellants. The High Court opined that it was
a case u/s 302 IPC and intention of all the accused was to
cause the death of the victim, and that having regard to
the nature of deposition of the Au.topsy Surgeon, the ·trial
185 H
186 SUPREME COURT REPORTS [2008] 2 S.C.R.
-+-
A court committed a grave error in ignoring the other
relevant materials brought on record to pronounce a
judgment of acquittal. It further held that the doctor willfully
suppressed the head injury of the deceased and was thus
guilty of dereliction of duty. With these findings the High
8 Court remanded the case to the trial court.
In the instant appeal filed by the accused, it was -t·
~
contended for the appellants that the High Court
committed a manifest illegality in passing the impugned
judgment aga,inst the mandate of sub-section (3) of s.401
c Cr.P.C.
Allowing the appeal, the Court
HELD: 1.1 Revisional jurisdiction of the High Court
in terms of Section 397 read with Section 401 of the Code
D of Criminal Procedure, 1973 is limited. The jurisdiction of ~
the High Court to entertain a revision application, although '
\-
is not barred, but severely restricted, particularly, when
it arises from a judgment of acquittal. [Para 9 and 17)
.[191-E; 195-A]
~-<

r
E
D. Stephens vs. Nosibolla (1951) 1 SCR 284; Logendra
Nath Jha and others vs. Polaifal Biswas (1951) SCR 676; K.
Chinnaswamy Reddy vs. State of Andhra Pradesh (1963) 3
SCR 412; Mahendra Pratap Singh vs. Sarju Singh and Anr.
(1968) 2 SCR 287; Janata Dal vs. HS Chowdhary (1992) 4
F $CC 305; State of Maharashtra vs. Jagmohan Singh Ku/dip .A
~ingh- Anand (2004) 7 SCC 659 and Satyajit Banerjee vs. ~
State of WB. (2005) 1 sec 115 - relied on. ~

Ram Briksh Singh vs. Ambika Yadav (2004) 7 SCC 665 1
G
'...:. distinguished. f
r
)-
1;2 In the instant case, the approach of the High Court
to the entire case cannot be appreciated. Technically, it
may be said that the High Court has not converted the
judgment of acquittal passed by the trial court to a
H judgment of conviction, but for arriving at a finding as to
JOHAR AND OTHERS v. MANGAL PRASAD & ANR. 187

whether the High Court has exceeded its jurisdiction or A
not, the approach of the High Court must be borne in
mind. The High Court not only entered into the merits of
the matter but also sought to re-appreciate the whole
evidence. It, in particular, went to the extent of commenting
upon the credentiality of the Autopsy Surgeon. It relied B ,
upon the evidence of the so-called eye-witnesses to hold
that although appellants had inflicted injuries on the head
of the deceased, PW-9, the doctor, deliberately
suppressed the same. Evidently the High Court raised a
presumption that Autopsy Surgeon deliberateldy didhnot c ,
disclose the ante mortem head injury purporte to ave
been suffered by the deceased. The Autopsy Surgeon was
not cross-examined by the State nor was he declared
hostile. He was, for all intent and purport, found guilty of
the offence under Sections 193 and 196 of the Indian Penal
Code. [Para 10,13,16-17] [192-A, B; 193-B, C, D; 194-G, H; D
195-A]
1.3 The trial court might be wrong as regards
analyzing the prosecution evidence but then it had not
relied upon the evidence of the eye witnesses only having E
regard to the opinion of medical expert. It considered the
plea of alibi on the part of some of the accused and
accepted the same. The High Court did not bestow any
consideration in this behalf. It also failed to take into
consideration that even by-standers have been implicated
in the matter. Unfortunately, the High Court did not meet F
the reasonings of the trial judge which was its bounden
duty. Even the effect of the order passed by the High Court
in the appeal preferred by another accused was not taken
into consideration. The said order attained finality. If the
said accused was guilty of commission of an offence G
under Section 323 IPC, others could not be held guilty for
commission of the offence under Section 302. In any
event, the judgment passed in favour of the said accused
could not have been set aside indirectly which could not
be done directly. [Para 23-25) [198-F, G; 199-A, BJ H
-..jy I
~
188 SUPREME COURT REPORTS [2008] 2 S.C.R. \:

A 1.4 It is evident that the State did not even prefer any
appeal against the judgment. The High Court did not point
out any error of law on the part of the trial judge. It was
not opined.that any relevant evidence has been left out of
its consideration by the court below or irrelevant material
s has been take·n irito consideration. One possible view was
sought to be substituted by another possible view. There
is no reason to hold the findings of the trial judge to be
perverse. It may be that sub-section (4) of Section 378 of
the Code was not available to the first informant but the
C ,same . by it~elf would no_t mean that in absence of any
appeal preferred by the State, the limited jurisdiction of
the court should be expanded. [Para 8, 9,13,14 and 18]
;{191-D, E, F; 193-D; 195-8] I
)
1.5 Prohibition contained in sub-section (3) of Section - p

o 421 refers to a finding and not the conclusion. A bare
perusal of the judgment of the High Court clearly
demonstrates that in effect and substance the finding of
the trial judge has been reversed. While hearing the matter
afresh in terms of the direction of the High Court, the trial
E ~judge would be bound by the observations made therein
and thus, would have no option but to convict the
-appellants. The High Court has, therefore, exceeded its
jurisdiction in view of the fact that the judgment of the
trial judge could not be termed to be a perverse one. The
impugned judgment, therefore, cannot be sustained, and
F ·is set aside. [Para 20, 22 and 26] [198-8, C, D, E; 199-C]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No._ 215 of 2008. ·
From the final Judgment and Order dated 9.3.2007 of the
G High Court of Madhya Pradesh at Jabalpur in C.R. No. 955/ >- ,
1999.
Fakhruddin, Abdul Karim Ansari, Abdul Qadri and Aftab
Ali Khan for the Appellants.
H Vibha Datta Makhija for the Respondents.
-+-. JOHAR AND OTHERS v. MANGAL PRASAD & ANR. 189
[S.B. SINHA, J.]
): The Judgment of the Court was delivered by A
S.B. SINHA, J. 1. Leave granted.
2. Appellants were charged for commission of offences
under Sections 148 and 302 of the Indian Penal Code and in
.,r
the alternative under Section 302/149 and Section 120-B of B
the Indian Penal Code. They were, however, convicted for
-t commission of an offence under Section 323 read with Section
' 34 of the Indian Penal Code only, recording that as accused
Nos. 1 to 4 had only caused simpl.e injuries to the deceased
Umashankar, the provisions of Section 148 and 149 of the Indian
Penal Code were not attracted.
c
3. The State did not prefer any appeal thereagainst.. The
a
complainant/respondent, however, filed revision· application
before the High Court. The High Court went into the evidence
adduced on behalf of the prosecution. In regard to the deposition D
of the official witnesses including Autopsy Surgeon· it was
commented:-
)- ' (
"10. If a public servant is corruptly (sic) makes a report in
a judicial proceeding it will be offences under section 193
IPC and section 196 IPC and preparation· of document E
with an intention to save person from punishment, it will be
an offence falling under sectio"n 196 IPC. Thus, willful act
of the Doctor in not referring to other injuries in the post
mortem report discloses his intention to protect the
respondents who are .guilty of commission of murder. F
-'\ Witnesses were firm on the point of beating of deceased by
lathi. and number of injuries received by the deceased. It is
held that post mortem report is incomplete report prepared
by the doctor to give undue advantage to the accused.
Appropriate steps ·for prosecution of PW9 Dr.Y.K. Malaiya
G
be initiated for intentionally preparing false evidence."
_.._
It was opined that having regard to the nature of deposition
of the Autopsy Surgeon, the trial Court c;:ommitted a grave error
. in ignoring the other relevant materials brought on records to
pronounce a judgment of acquittal in favour of the respondents H
190 SUPREME COURT REPORTS (2008] 2 S.C.R.
~

~
A (appellants herein). It was furthermore held that the doctor had
willfully suppressed the head injury and was thus guilty of
dereliction of duty. Re-appreciating the evidence of the
prosecution witnesses, it was held :-
"It is natural that when a person is surrounded by number
B of accused it is difficult for eyewitness to describe the
'-...

author of each and every injury. In para 16 of cross-
-+
examination, this witness has clarified that he has seen I
r-
the body of injured and he found that Umashankar was
having lathi injuries on his entire body and no place on his ';-
c body was left where he had not received injuries by lathi.'
4. On· the premise that the learned trial judge has mis-
appreciated the evidence, the revision application was allowed,
directing :-
D "22. In the result, judgment of acquittal passed by the trial
court is set aside and the case is remanded to the trial
court to pass the judgment on the basis of evidence on
record for each offence keeping in mind evidence of
,,..--<
eyewitnesses wherein it is stated that deceased had
E suffered injuries on the whole body. The fact is also referred
in Dehati Naleshi and Panchnama of dead body Ex.P/3.
Evidence of doctor will not prevail over the eyewitness
account in this case. This is a case under section 302 IPC
and the intention of all the respondents was to cause death
F of deceased. Trial court shall also examine and pass
necessary orders against the concerned doctor for /·
preparing document in order to give undue benefit to the
accused."
5. We may, however, before embarking upon the
G contentions raised before us by the learned counsel for the
parties place on record that one ofthe accused persons, namely
Roshan, had preferred an appeal before the High Court of
Madhya Pradesh at Jabalpur and by a judgment and order dated
181h November, 2003, it while upholding his conviction under
H Section 323 read with Section 34 of the Indian Penal Code set
---+ JOHAR AND OTHERS v. MANGAL PRASAD & ANR. 191
[S.B. SINHA, J.]

-- ). him free on probation on his furnishing a personal bond for A
Rs.3,000/- (Rupees there thousand only) with one surety of the
like amount. The said judgment and order has attained finality.
6. Mr. Fakhruddin, the learned Senior counsel appearing
for the appellant, submitted that the High Court committed a
manifest illegality in passing the impugned judgment which is in B
...''I
the teeth of Sub-section (3) of Section 401 of the Code of
Criminal Procedure, 1973.
7. Ms Vibha Datta Makhija, the learned counsel appearing
on behalf of the respondent-State, on the other hand, urged that c
it is not a case where the High Court converted a judgment of
acquittal to a judgment of conviction in exercise of its revisional
jurisdiction but merely remitted the matter to the trial court for
consideration afresh, this Court should not interfere therewith.
8. The State did not prefer any appeal from the judgment D
of the learned Trial Judge. From the proceedings of the High
<
Court, it appears that the State was not even made a party in
)-
.,,, the criminal revision application. Public Prosecutor, however,
represented the State before the High Court. Nobody
interestingly appeared on behalf of the complaint-revisionist. E
9. Revisional jurisdiction of the High Court in terms of
Section 397 read with Section 401 of the Code of Criminal
Procedure is limited. The High Court did not point out any error
of law on the part of the learned Trial Judge. It was not opined
,-'. that any relevant evidence has been left out of its consideration F
' by the court below or irrelevant material has been taken into
consideration. The High Court entered into the merit of the
matter. It commented upon the credentiality of the Autopsy
Surgeon. It sought to re-appreciate the whole evidence. One
poss.ible view was sought to be substituted by another possible G
view.
10. Sub-section (3) of Section 401 reads as under:-
"401 (3). Nothing in this section shall be deemed to
authorize a High Court to convert a finding of acquittal into H
'
~~
192 SUPREME COURT REPORTS [2008] 2 S.C.R.

A one of conviction." ~

Technically, although Ms. Makhija may be correct that the
High Court has not converted the judgment of acquittal passed
by the learned Trial Court to a judgment of conviction, but for
arriving at a finding as to whether the High Court has exceeded
B its jurisdiction or not, the approach of the High .Court must be
borne in mind. For the said purpose, we may notice a few
precedents. ,,-+
11. In 0. Stephens vs. Nosibolla : [1951] 1 SCR 284 this
c Court opined :-
"10. The revisional jurisdiction conferred on the High Court
under section 439 of the Code of Criminal Procedure is
not to be lightly exercised when it is invoked by a private
complainant against an order of acquittal, against which
D the Government has a right of appeal under section 417.
It could be exercised only in exceptional cases where the
interests of public justice require interference for the
~
'y '1'
correction of a manifest illegality, or the prevention of a
gross miscarriage of justice. This jurisdiction is not
E ordinarily invoked or used merely because the lower court
has taken a wrong view of the law or misappreciated the
evidence on record."
12. The same principle was reiterated in Logendra Nath
Jha and others vs. Polailal Biswas [1951 SCR 676] stating:
F
)...
" ... Though sub-section (1) of section 439 authorises the :I
High Court to exercise, in its discretion, any of t~e powers
conferred on a court of appeal by section 423, sub-section
(4) specifically excludes the power to "convert a finding of_
acquittal into one of conviction". This does not mean that
G
_ in dealing with a revision petition by a private party against
an order of acquittal the High Court could in the absence .....
of any error on a point of law re-appraise the evidence
and reverse the findings of facts on which the acquittal
was based, provided only it stopped short of finding the
H '.1
-1-- JOHAR AND OTHERS v. MANGAL PRASAD & ANR. 193
[S.B. SINHA, J.]

} accused guilty and passing sentence on him. By merely A
characterizing the judgment of the trial court as "perverse"
and "lacking in perspective", the High Court cannot reverse
·: pure findings of fact based on the trial Court's appreciation
of the evidence in·the case. That is what the learned Judge
in the court below has done, but could not, in our opinion, B
properly do on an·application in revision filed by a private
party against acquittal ... "
.,
~

13. In the instant case the High Court oat only entered into
the merit of the matter but also analysed the depositions of all
the witnesses examined on behalf of the prosecution. It, in c
particular, went to the extent of criticizing the testimony of Autopsy
Surgeon. It relied upon the evidence of the so called eye
witnesses to hold that although appellants herein had inflicted
' ·injuries on the head of the deceased, Dr. Y.K. Malaiya, PW-9,
==\
...... deliberately suppressed the same. He was, for all intent and D
purport, found guilty of the offence under Section 193 and 196
of the Indian Penal Code. The Autopsy Surgeon was not cross-
~"I' examined by the State. He was not declared hostile. The State
did not even prefer any appeal against the judgment.
14. In the absence of any such injury on the vital part of the E
body, the learned trial Judge, upon analyzing the evidence
brought on record by the prosecution, held that only four
accused had committed the offence under Section 323 read
with Section 34 alone. We see no reason as to how the findings
of the trial judge can be said to be perverse. The learned trial F
~ judge in arriving at his conclusion noticed:-
(i) Names of some of the appellants were not stated in
the first information report.
(ii) Some of the accused persons were not present at G
the time of commission of offence, as their plea of
-' . alibi was acceptable.
(iii) The story of recovery of lathis from some of the
accused is doubtful.
H
~-
194 SUPREME COURT REPORTS [2008) 2 S.C.R.

A (iv) Purported recovery of lathi by the investigating officer ~

without any disclosure statement having been made
by the concerned accused, was not relevant.
(v) Some of the accused did not have any dispute
whatsoever with the complainant side, as such they
B had no motive to commit the crime.
(vi) Only because some of the accused were present at -+
t'
the time of commission of the offence, having regard
to the fact that the incident took place in a very small
c village, their presence at the time of occurrence by
itself cannot lead to an inference that they participated
therein, particularly when prosecution witnesses did
not name them.
(vii) No independent witness had been examined by the
D prosecution despite the fact that a large number of
persons witnessed the incident.
15. Upon analyzing the entire evidence on record, the ..,,.,-~
....
learned trial judge held :-
E "58. In view of the discussion and analyses made
hereinabove prosecution has proved that accused persons
No. 1 to 4 i.e. Johar, Ruplal, Roshan and Santosh inflicted
simple injuries to deceased Umashankar. Against accused
persons offence under Section 148, 302r/w149 IPC have
F been leveled but in the incident only accused No. 1 to 4
have committed and thus participation of the number of I-
accused is proved to be four only and under section 148
& 149 IPC the accused persons minimum remained to be
five. As such against accused No.1 to 4 offence under
Section 148 & 149 are not proved."
G
16. Evidently the High Court raised a presumption that
-~-
Autopsy Surgeon deliberately did not disclose the ante mortem
head injury purported to have been suffered by the deceased.
17. The approach of the High Court to the entire case
H
-, •
~

-J- JOHAR AND OTHERS v. MANGAL PRASAD & ANR. 195
[S.B. SINHA, J.]
~ cannot be appreciated. The High Court should have kept in mind A
that while exercising its revisional jurisdiction under Sections
397 and 401 of the Code of Criminal Procedure, it exercises a
limited power. Its jurisdiction to entertain a revision application,
although is not barred, but severally restricted, particularly when
it arises from a judgment of acquittal. B
18. Ms. Makhija is correct that sub-section (4) of Section
t 378 of the Code of Criminal Procedure was not available to the
' first informant but the same by itself would not mean that in
absence of any appeal preferred by the State, the limited
jurisdiction of the court should be expanded. c
19. We may notice a few of the decisions of this Court
which are binding on us.
'
In K. Chinnaswamy Reddy vs. State of Andhra Pradesh :
[1963] 3 SCR 412, this Court observed:- D
"It is true that it is open to a High Court in revision to set
~-
. "( aside an order of acquittal even at the instance of private
parties, though the State may not have though fit to appeal;
but this jurisdiction should in our opinion be exercised by
the High Court only in exceptional cases, when there is E
some glaring defect in the procedure or there is a manifest
error on a point of law and consequently there has been
a flagrant miscarriage of justice. Sub-section (4) of s. 439
forbids a High Court from converting a finding of acquittal
,).~
into one of conviction and that makes it all the more F
incumbent on the High Court to see that it does not convert
the finding of acquittal into one of conviction by the indirect
method of ordering retrial, when it cannot itself directly
convert a finding of acquittal into a finding of conviction.
This places limitations on the power of the High Court to G
~ set aside a finding of acquittal in revision and it is only in
. exceptional cases that this power should be exercised."
In Mahendra Pratap Singh vs. Sarju Singh and Anr. [19681
2 SCR 287 this Court stated the law thus:-
H
~...l

196 SUPREME COURT REPORTS [2008) 2 S.C.R. ~

A .:.('
"8. The practice on the subject has been stated by this
Court on more than one occasion. In D. Stephens· v.
Nosibolla [[1951] S.C.R. 284], only two grounds were
mentioned by this Court as entitling the.High Court to set
aside an acquittal in a revision and to order a retrial. They
·s are that there must e.xist a manifest illegality in the judgment
of the Court of Session ordering the acquittal or there
must be a gross miscarriage of justice. In explaining these -+
1'
two propositions, this Court further states tha~ the High
Court is not entitled to interfere even if a wrong view of law ·
c is taken by the Court of Session or if even there is
misappreciation of evidence. Again, in Logendranath Jha
and others v. Shri Polailal Biswas [[1951] S.C.R. 676],
this Court points out that the High Court is entitled in
revision to set aside an acquittal if there is an error on a
point of law or no appraisal of the evidence at all. This
D
Court observes that it is not sufficient to say that the .
judgment under revision is "perverse" or "lacking in true
correct perspective". It is pointed out further that by ~-~
ordering a retrial, the dice is loaded against the accused,
because however much the High Court may caution the
E Subordinate Court, it is always difficult to re~weigh the
evidence ignoring the opinion of the High Court. Again in
K. Chinnaswamy Reddy v. State of Andhra Pradesh, it is
pointed out that an interference in revision with an order
of acquittal can only take place if there is a glaring defect
F of procedure such as that the Court had no jurisdiction to
try the case or the Court had shut out some material
evidence which was admissible or attempted to take into
account evidence which' was not admissible or had
overlooked some evidence. Although the list given by this
G Court is not exhaustive of all the circumstances in which
the High Court may interfere with an acquittal in revision ).-.
·. it is obvious that the defect in the judgment under revision
must be analogous to those actually indicated by this '
~

Court." )1
H
--+ JOHAR AND OTHERS v. MANGAL PRASAD & ANR. 197
[S.S. SINHA, J.]
")-

In Janata Dal vs. HS Chowdhary: (1992) 4 SCC 305, this A
Court stated that the object of the revisional jurisdiction was to
.
~
confer power on superior criminal courts to correct miscarriage
of justice arising from misconception of law, irregularity of
procedure, neglect of proper precaution or apparent harshness
oftreatment. B
1
' 't, In State of Maharashtra vs. Jagmohan Singh Ku/dip Singh
Anand: (2004) 7 SCC 659 this Court observed :-:
"21. In embarking upon the minutest re-examination of the
whole evidence at the revisional stage, the learned Judge c
of the High Court was totally obliviou~ of the self-restraint
that he was required to exercise in a revision under Section
397 Cr. PC. 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. Ram Briksh Singh v. Ambika ·
D
Yadav. That was the case in which the High Court interfered
~
in revision because material evidence was overlooked by
'-.:
the courts below."
The judgment of Ram Briksh mentioned above, has since
been reported as Ram Briksh Singh vs. Ambika Yadav: (2004) E
7 sec 665 wherein it has been observed :-
"12. For the aforesaid reasons, we are unable to accept
the contention that the High Court has reappreciated the
evidence. The High Court has only demonstrated as to
A. how the material evidence has been overlooked leading F
to manifest illegality resulting in gross miscarriage of
justice."
It was, therefore, relevant in the fact situation obtaining
therein.
G
Yet again in Satyajit Banerjee vs. State of WB. : (2005) 1
SCC 115 this Court has, while exercising its jurisdiction under
Section 142 of the Constitution of India, expressed a note of
caution stating :-
H
~
198 SUPREME COURT REPORTS [2008] 2 S.C.R.

~
A "22. The cases cited by the learned counsel show the
settled legal position that the revisional jurisdiction, at the
instance of the complainant, has to be exercised by the
High Court only in very exceptional cases where the High
Court finds defect of procedure or manifest error of law
B resulting in flagrant miscarriage of justice.
20. We may notice that prohibition contained in sub-
section (3tof Section 421 refers to a finding and not the
t
conclusion.

c A bare perusal of the judgment of the High Court clearly
demonstrates that in effect and substance the finding of the
learned trial judge has be.en reversed. While hearing the matter
afresh in terms of the direction of the High Court, the learned
Trial Judge would be bound by the observations made therein
and thus, would have no option but to convict the appellants.
D
21 . Not only the evidence of the prosecution witnesses 'J
has been relied upon and that of the Autopsy Surgeon has been ..,,;-f
disbelieved but the Trial Judge has also been asked to initiate
an appropriate proceeding against him.
E 22. We have, therefore, no hesitation to hold that the High
Court exceeded its jurisdiction in view of the fact that the
judgment of the learned Trial Judge could not be termed to be a
perverse one.

F 23. The Trial Court might be wrong as regards analyzing ;. '
the prosecution evidence but then it had not relied upon the
evidence of the eye witnesses only having regard to the opinion
of medical expert. The learned Trial Judge considered the plea
of alibi on the part of some of the accused and accepted the
same. The High Court did not bestow any consideration in this
G
behalf. It also failed to take into consideration that even by-
standers have been implicated in the matter.
24. Unfortunately, the High Court did not meet the
reasonings of the learned trial judge which was its bounden duty.
H
JOHAR AND OTHERS v. MANGAL PRASAD & ANR. 199
[S.B. SINHA, J.]

25. Even the effect of the order dated 18.11.2003 passed A
by the High Court in the appeal preferred by Roshan was not
taken into consideration.
The said order attained finality. If Roshan was guilty of
commission of an offence under Section 323 of the Indian Penal
Code, we fail to see any reason as to how others could be held 8
1', guilty for commission of the offence under Section 302 thereof.

In any event, the judgment passed in favour of Roshan could
not have been set aside indirectly which could not be done
directly. c
26. For the reasons abovementioned, the impugned
judgment cannot be sustained, which is set aside accordingly.
The appeal is allowed.
R.P. Appeal allowed ..
0

....L_