HIGM ©OURTOFCHHATTISGARH.BILASPUR CORAM: Hon'ble Shri Raieev GuDta.C.J. & Hon'ble Shri Sunil KumarSinha, J. Criminal Revision No. 14 of 2003 Bibi Vakila Vs. Firoz ?nd3others <?. JUDGMENT For Consideration Sd/- "\ Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA _5 ^L^yc^J2- Sd/- ChiefJustice .11.2009 Postfqi^ ^.11.2009 SdA SunUKumarSJuha ^'---^Judse itew'y '.tatBaiAiaNBai^tei ^ HIGH COURTOF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri RaieevGupta, C.J.& "Hon'ble^ShriSujiilJSumarSmha, J, PETITIONER Criminal Revision No. 14 of 2003 Bibi Vakila, Wife of Mohammed Islam, aged about 50 years, R/o Tajnagai- Pandari, P.S. Civil Lines, Distt. Raipur, Chhattisgarh <?. Versus •i t. RESPONDENTS 1. Firoz, s/0 Ahmed Hasan, aged about 24 years 2. Mohammed Yasin, s/o Shekh Yakub, aged about 34 years 3, Hasnain @ Aslam, s/o Shekh Kausar, aged about 38 years Respondents I to 3 are residents ofvUlage Kalinagar, Raipur, Distt. Raipur (C.G). 4. State of Chhattisgarh, Through : Incharge of Police Station Civil Line, Raipur (C.G). (Criminal Revision under Section 397/401 ofThe Code of Criniinal Proceduret Appearance: Mr.Manoj Paranjpe & Mr. Vikram.Dbdt counsel for the petitioner. Mr. Abhishek Saraf, counsel for respondents 1 to 3. Mr. Sudhir Bajpai, Dy. Govt. ''Advocate, for the State/respondent No.4. . JUDGMENT ( <} .11.2009) 1 Following judgment of the Court was delivered by Sunil KumarSinha, J. t>-^ lri!Et KIM ^ ill'l IN.1 '^5 Cr.Revn.No. 14 of2003 -'\. (1) Being aggrieved with the judgment of acquittal dated 22.10.2002, passed in Sessions Trial. No. 188/2001 by the K Additional Sessions Judge, Raipur (C.G.), Bibi Vakila, widow of deceased Mohd. Islam, has filed this Criminal Revision. (2) Respondent Firoz was charged u/s 302 IPC and section 25/27 of the Arms Act and respondents Mohd. Yasin and tl. Hasnain @ Aslam were charged u/s 302 altematively 302/34 IPC for commission of murder ofdeceased Mohd. Islam. (3) The facts briefly stated are as under: On 29.12.2000 at about 1 p.m., the deceased had gone to the barber shop of Santu (P.W.8). The allegations are that accused Firoz fired by Desi Katta on the deceased, due to which, the deceased received injuries and died in the hospital during the course of treatanent. The c'ase of the prosecution was based on evidence of Santu (P.W.8) as also on the evidehce ofMohd. Ajeem (P.W.6) & Noor Hasan (P.W.7). Santu (P.W.8) was examined as an eye- witness, whereas the two other witnesses namely Ajeem (P.W.6) &, Noor Hasan (P.W.7) were examined as witnesses who had seen the respondents/accused persons running away from the .place of occurrence with a pistol in the hand of respondent Firoz. . The sole eye-witness, Santu (P.W.8) turned hostile and he did not support the casa of prosecution whereas other two witnesses naihely Mohd. Ajeem (P.W.6) 8s Noor Hasan (P.W.7) were disbelieved by. the Sessions Judge on the ground that they did not disclose the story for a long time as their 161 1!|: : 1 i--. -f: Cr.Revn.No.l4of2003 statements were recorded after two months and the respondents/accused persons were acquitted. \, . . . . . . . (4) Mr. Manoj Paranjpe SE Vikram Dixit, learned counsel appearing on behalf of the petitioner, argued that the judgment of acquittal passed by the leamed Sessions Judge is erroneous. Even if the eye-witness Santu (P.W.8) had tumed hostile the <. Sessions Judge ought to Have believed the testimonies of Mohd. Ajeem (P.W.6) 8s Noor Hasan (P.W.7) and have recorded the conviction ofthe respondents/accused persons. (5) On the other hand, Mr. Abhishek Saraf, learned counsel appearing on behalf of respondents 1 to 3 opposed these arguments and supported the judgment of acquittal passed by the Sessions Judge. (6) Mr. Sudhir Bajpai, learned " Deputy Advocate General appearing on~ behalf of the State supported the arguments advanced by leamed counsel for the petitioner. (7) We have heard learned counsel for the parties at length and have also perused the records ofthe Sessions Case. (8) Santu (P.W.8) deposed that on the relevant date, at ahout 12.00 -1.00 p.m. he was in his barber shop. The deceased came to his shop for his shaving. When he was sharping the knife, he heard the sound of a blast. He turned back inimediately and saw that blood was coming out from the head ;\: ^'" -. ' ' • ' : . > of.the deceased. He ran away immediately and told this matter 1Mi SK3(\ .! i.' Cr. Revn.No. 14 of 2003 t6 other persons. He was declared hostile by the proseeution. Though he was put to ^ lengthy cross examination by the public prosecutor but nothing material could be brought on record to get support to the prosecution story. (9) Mohd. Ajeem (P.W.6) deposed that when he heard the sound of blast and turned tgwards it, he saw that Firoz, Yasin <f. and Hasnain (all the three) weEe running away from that place of occurrence. He deposed that Yasin and Hasnain were running after Firoz, who was holding a pistol in his hand. They went to the barber shop of Santu and saw that Islam was lying on the barbers chair in pooF of blood. There were external injuries on his head and neck. He admitted in the cross examination that he did not meet the police in the hospital. He further adinitted that h.e did not tell these facts particularly the fact regarding Firoz haying a pistol in his hand, to the family members of the deceased Islaffl. He further admitted that he did not tell this fact even to the son of the deceased namely Mohd. Jani (P.W.3) who lodged Dehati Nalishi based on which the First Information Report (Ex.P.15) was registered. This withess appears to be closely associated with the family of the deceased as he admitted that after the death of the deceased at about 3-4 p.m., a message was sent to his house. We note from the evidence of investigating officer Rajesh Tiwari (P.W.18) that the police case digry statement of this witness was recorded on 25.02.2001 that is almost after about two months of the ^incideht. If this witness had seen the respondents/accused i'ik.l l' 1 lll' persons running away from the place of occurrence and had also seen respondent/accused Firoz with pistol, he should have disclosed this fact earlier to fhe police or atleast to the family members of the deceased. (10) Noor Hasan-(P.W.7) also deposed like Mohd. Ajeem (P.W.6). He deposed that h^ saw the respondent/accused Firoz and his associates namely Yasin and Hasnain running away from the place o.f occi.u-rence. Firoz was having pistol in his hand. His case diary statement was also recorded on 25.2.2001. He also did not disclose the fact for a very long time either before the Police or before any family member of the deceased. He also appears to be associated with the family of fhe deceased. It is in these circumstances, the evidence ofthese two witnesses have been disbelieved by the learned Sessions Judge on account of their conduct of non-disclosure for about two months without any explanation. (11) The prosecution has also examined two other witnesses namely Rohit (P.W.4) and Sheik Babbu (P.W.5). They were the witnesses to whom Santu (P.W.8) had allegedly disclosed the stoiy. These witnesses have completely tumed hostile and they have not suppprted the case of prosecution. It is in this state of evidence the leamed Sessions Judge held that the prosecution coiUd not establish that the respondents/accused persons had participated in commission of murder of the deceased. -/' •. Cr.Revn.No. 14 of 2003 ''^ (12) The revisional power of the High Court under section 397 read with Section 404 does not create any right in the litigant, but only conserves the power to see that justice is done and the subordinate Courts do not exceed jurisdiction or abuse their powers. The order of'lower Court ought not to be lightly set aside unless it has entailed miscarriage ofjustice or where two views are possible merely l^fecause the revisional Court takes fhe other view. It is only in gtaring cases ofjustice, resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of acquittal and direct a retrial of the acquitted accused. The mere circi-unstances that a fmding of fact recorded by the trial Court may, in the opinion of the High Court, be wrong, will not justify setting aside the aequittal and directing re-trial. The revisional Court is entitled to reverse the finding only when it reaches to the conclusion that finding of the trial Court is perverse and the jurisdiction cannot be uivoked lightiy. Even in the cases where it is possible to take two views on the same matter then in the ordinary course the view taken by the Court below should not be interfered in the revisional jurisdiction. (13) In the opinion of this Court, the Sessions Court has taken a view and has recorded a finding, which appears to be one of the possible views which could have been taken by a Court in the facts and crrcumstances of the case. Therefore, we do not fitld any reasons to interfere with such finding recorded by the Sessions Court. x^: Cr. Revn. No. 14 of2003 ^/o (14) For the foregoirtg reasons, we do not Bnd any substance in this criminal revision. The revision deserves to be and is accordingly dismissed. Sd/- -V CHIEFJUSTICE Sd/- Sunil Kumar Sinha Judge Rao •^i^^ssmi