IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.961 of 2004 Date of decision: 17th February, 2010 Satish Kumar … Petitioner Versus Pala and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: None for the petitioner. None for respondents No.1 to 6. Ms. Hemlata Balhara, Assistant Advocate General, Haryana for respondent No.7. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition is directed against the judgment dated 3rd December, 2003 passed by the Court of Judicial Magistrate (1st Class), Gohana, whereby accused respondents Pala, Chaman, Ram Niwash, Sarojo, Bhateri and Sheela were acquitted. The accused respondents were tried in case FIR No.57 dated 19.04.2000 registered at Police Station Baroda under Sections 323/342/377/506/34 IPC. Complainant Satish Kumar in written complaint Ex.PW1/A submitted that on 5th April, 2000, he had gone to village Banwasa for bringing back his wife Bateri to the matrimonial home. At that time, he was accompanied by Ramesh son of Beeru, Ishwar son of Pirthi and Satbir son of Saurav. Ramesh and Satbir returned in the evening. The complainant Satish Kumar stayed in the house of his in-laws along with Ishwar. In the night, when the complainant was sleeping in a room outside the house, all Criminal Revision No.961 of 2004 the accused respondents came there armed with Lathis and iron rods. They gave beating to the complainant petitioner. He received many injuries. Ishwar ran away from the spot. Thereafter, Pala, Chaman and Ram Niwas in order to teach lesson, lifted the complainant and took him to the fields. There they committed sodomy by removing the clothes of the complainant. Both legs of the complainant were tied with a string and he was hanged upside-down on a tree. When the complainant was hanging, Pala had introduced a Danda into buttocks of the complainant, which caused serious injuries to him. Still he was given beating. At that time, two persons from the village arrived. They requested the accused Pala to leave the complainant as it may defame the whole village and complainant may die. Thereafter, accused ran away from the spot. Those two persons removed the complainant from the tree and made him lay on the ground. The complainant became unconscious. On the next day, when complainant regained his consciousness, he found himself in a room with hands and feet tied. Ishwar went to village Nijampur to inform and some persons from village Nijampur came and they got the complainant freed from the illegal confinement. The complainant was taken to General Hospital, Gohana, where the doctors refused to examine him. The complainant came back to Panipat on 8th April, 2000 and got himself medically examined. The complainant had prayed that action be taken against the accused. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted. The Court of Judicial Magistrate (1st Class), Gohana on 10th July, 2000 charged the accused respondents for offence under Section 323/149, 342/149 and 506/149 IPC. The accused respondents pleaded not guilty and claimed trial. Satish Kumar complainant petitioner appeared as PW-1 and reiterated what was stated in the FIR. Ishwar Singh ASI, In Charge Police 2 Criminal Revision No.961 of 2004 Post Butana appeared as PW-2. Rajinder Singh SI PW-3 submitted report under Section 173 Cr.P.C. Dr.K.L. Chopra PW-4 had medico legally examined Satish Kumar on 8th April, 2000 at 1.00 p.m. and found 19 injuries on his person. Most of the injuries were bruise on various parts of the body. All the injuries were declared simple in nature. Ishwar Singh appeared as PW-5. He stated that in his presence, Satish was given injuries and was taken to the fields. He corroborated the version given by Satish Kumar PW-1. Thereafter, statements of the accused were recorded under Section 313 Cr.P.C. and all incriminating circumstances were put to them. They denied the same and claimed innocence. In defence Jai Bhagwan, Criminal Ahlmad appeared as DW-1, Jagdish Chander, Record Keeper as DW-2 and HC Raj Singh as DW-3. Jai Bhagwan DW-1 proved documents Ex.D1 to D6. Jagdish Chander DW-2 proved pendency of security proceedings between the parties. HC Raj Singh DW-3 also proved Kalandra regarding security proceedings (section 107/151 Cr.P.C.) as Ex.D7. In the present case, no charge was framed against the accused respondents under Section 377 IPC. The trial Court came to the conclusion that wife of the complainant had left the matrimonial home and the husband on the day of occurrence had gone to bring back his wife from her parent’s house to her matrimonial home. His two friends Ramesh and Satbir returned, but another friend Ishwar stayed with him. The Court took into consideration long standing enmity pending between the two parties. Before the occurrence, complainant had filed a petition under Section 13 of the Hindu Marriage Act in the Court of Sh.S.K. Goel, Additional District Judge, Panipat. Security proceedings were also initiated under Section 107/151 Cr.P.C. A criminal complaint was pending against the complainant 3 Criminal Revision No.961 of 2004 for offence under Section 498-A and 406 IPC. The Court came to the conclusion that even though it is urged that Ishwar was assaulted by the accused persons, but no injury was found on his person. Furthermore, Ishwar was held to be hearsay witness. Regarding injuries, the trial Court said as under: “9. Now, coming to the medical evidence on record, no doubt, the doctor has found 19 (nineteen) injuries on the person of the complainant. As per the medical evidence, the accused is shown to have suffered only bruises and swelling. Had the story of the complainant to be believed, medical evidence would have narrated more gory and horrifying tale. The manner, in which complainant is alleged to have been assaulted by the accused with sticks and an iron rods, he would not have left with minor bruises. Moreover, the alleged occurrence took place on 5.4.2000, but the complainant offered himself for medical examination on 8.4.2000 after an in-ordinate delay of four days. There is nothing forthcoming from the side of the prosecution to explain this in-ordinate delay. It is also strange that the alleged occurrence took place in village Rindhana, but the complainant got himself medico- legally examined in Panipat. He alleges that the doctor in CHS, Gohana refused to examine him but there is nothing to suggest that why he did not prefer a complaint against the doctors, either in the police station or before the Area Magistrate. He could have directly appeared before the Area Magistrate and offered himself for medical examination, which would have been readily directed by any Magistrate. From all the discussion above, the story of the complainant does not inspire confidence.” Taking into consideration the above circumstances, the trial Court had pronounced the acquittal of the accused respondents. In the present case, no State appeal has been filed. The view formulated by the trial Court is the one which is possible on the evidence led by the prosecution. No patent illegality or irregularity is discernible. 4 Criminal Revision No.961 of 2004 This Court has taken recourse to section 403 Cr.P.C. and has proceeded to decide the revision petition. It was held in AIR 1968 Supreme Court 707 Mahendra Partap Singh vs. Sarju Singh and another, relying upon D.Stephens vs. Nosibolla, AIR 1951 SC 196, as under: “only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist 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 two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is mis-appreciation of evidence. Again, in Logendranath Jha v. Polajlal Biswas, 1951 SCR 676 (AIR 1951 SC 316), 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 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 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, 1963 (3) SCR 412 = (AIR 1962 SC 1788), it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect 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 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 5 Criminal Revision No.961 of 2004 judgment under revision must be analogous to those actually indicated by this Court. As stated not one of these points which have been laid down by this Court, was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned judge has re- weighed the evidence from his own point of view and reached inferences contrary to those of the Sessions judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.” In Akalu Ahir v. Ramdeo Ram, AIR 1973 Supreme Court 2145 (V 60 C 352), Hon'ble apex Court observed as under: “This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but it was emphasized that this jurisdiction should be exercised only in exceptional cases when “there is 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.” In face of prohibition in Section 439(4), Cr.P.C., for the High Court to convert a finding of acquittal into one of conviction, it makes all the more 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 re-trial. No doubt, in the opinion of this Court, no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court’s power of ordering re-trial can be laid down. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision: (i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused; 6 Criminal Revision No.961 of 2004 (ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce; (iii) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible; (iv) Where the material evidence has been over-looked only (either?) by the trial Court or by the appellate Court; and (v) Where the acquittal is based on the compounding of the offence which is invalid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal. In Mahendra Pratap Singh, (1968) 2 SCR 287 = (AIR 1968 SC 707) (supra) the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court made it plain that it had re- weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal on revision, when the Government had not chosen to file an appeal against it. “In other words” said this Court, “the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.” Similar view was reiterated by Hon'ble apex Court in Bansi Lal and others vs. Laxman Singh, (1986) 3 Supreme Court Cases 444. Again, Hon'ble apex Court, in Ramu alias Ram Kumar and others v. Jagannath, 1995 Supreme Court Cases (Cri) 181, held that it is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it has been invoked by a private complainant. In Vimal Singh vs. Khuman Singh and another, (1998) Supreme Court Cases (Cri) 1574 and in Bindeshwari Prasad Singh vs. State of Bihar, 2002 AIR (SC) 2907, the High Court has been reminded of its very limited jurisdiction in revision against acquittal. 7 Criminal Revision No.961 of 2004 It is well settled that unless any legal infirmity in the procedure or in the conduct of trial or patent illegality is pointed out, the revisional Court will not interfere. I find no merit in the instant revision petition to interfere while exercising revisional jurisdiction as there is no illegality or irregularity in the order passed by the trial Court. There is no merit. Present revision petition is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE February 17, 2010 rps 8