Crl. Revision No. 561 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 561 of 2001 (O&M) Date of decision: December 11, 2009 Savitri Devi ...Petitioner Versus Narender son of Chander Bhan and another ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. N.C. Kinra, Advocate, for the petitioner. Mr. Kulvir Narwal, Advocate, for respondent No.1 Mr. Raja Sharma, AAG, Haryana. GURDEV SINGH, J. This revision petition by private complainant Savitri Devi-petitioner has been preferred against the judgment dated 22.7.2000 passed by Shri Shiva Sharma, Additional Sessions Judge, Rohtak, vide which he acquitted respondent No.1/accused of the offences under Sections 364,302 and 201 IPC. The facts, constituting the prosecution case, are that Bijender deceased son of Savitri Devi-complainant (PW-3) was employed with Narender accused as truck driver on truck No. HR- 12-7082. Initially, he was getting Rs. 2,000/- per month as salary, Crl. Revision No. 561 of 2001 2 which was subsequently increased to Rs. 3,000/-. He had been depositing his entire salary with the accused. He had disclosed to the complainant that salary so deposited with the accused has accumulated to such an extent that he could purchase his own truck with the same. Even the accused had admitted before the complainant that the salary was being deposited with him by the deceased. However, when the deceased demanded the accumulated amount from the accused, he showed his inability to pay the same in lumpsum. On the next day of Sakrant, the accused took the deceased with him from his house on the plea of settling the accounts. The deceased while leaving the house disclosed to the complainant that he would come back to the village with his own truck. Thereafter, he never came back. When the accused came to the house of the complainant, she inquired from him about the deceased but he disclosed that the deceased had been left behind. Whenever the accused came to the village, the complainant inquired from him about her son/deceased but every time he had been making one excuse or the other. Ultimately, he asked the complainant to treat him as her son and that he would meet the household and other expenses. On 12.7.1998, she gave a written application Exhibit PB before the Sarpanch of the village in which she narrated that when the accused was inquired about the whereabouts of the deceased, he undertook to find him out within Crl. Revision No. 561 of 2001 3 10 days and that inspite of expiry of 20 days, he had not been able to trace him out. On 24.7.1998, the complainant approached Neki Ram, ASI (PW-9) and made her statement exhibit PA about all these facts. She also narrated therein that she had firm belief that the accused and his father Chander Bhan had committed some illegal acts in respect of her son. The ASI, after recording the police proceedings, Ex. PA/2, on that statement, sent the same to the Police Station on the basis of which a formal FIR Ex. PA/1 was registered under Section 364 IPC. During investigation, statements of witnesses were recorded. After the accused was arrested, he suffered a disclosure statement and took the Investigating Officer to the spot where the dead body of the deceased was thrown by him but no such dead body was recovered from that place. The Investigating Officer prepared the rough site plan with correct marginal notes. The accused also got recovered one vehicle make Sawaraj Mazada bearing registration No. HR-12-7082 and the same was taken into possession, vide recovery memo exhibit PD. After completion of the investigation, challan was put in before the Court of Chief Judicial Magistrate, who committed the same to the Court of Session on the ground that offences under Sections 302 and 364 IPC were exclusively triable by the Court of Session. Crl. Revision No. 561 of 2001 4 The accused was charged for the offences under Sections 302, 364 and 201 IPC, to which he pleaded not guilty and claimed trial. To bring home the guilt of the accused, the prosecution examined Sunil Kumar (PW-1), Suresh Kumar (PW-2), Savitri Devi (PW-3), Darshan Lal (PW-4), Ram Bhagat (PW-5), Anil Kumar (PW-6), Jai Bhagwan (PW-7), Raj Singh (PW-8), ASI Neki Ram (PW-9), HC Inder Singh (PW-10) and Inspector Sardara Ram (PW-11). After the evidence was closed by the prosecution, the accused was examined by learned Trial Court and his statement was recorded under Section 313 Cr.P.C. All the incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his innocence and stated that the deceased was a bachelor, vagabond and was addicted to drinking and gambling. He had illicit relations with the wife of one Surinder and used to spend all his salary on those activities. No amount of salary was due from him and, in fact, the deceased had borrowed a sum of Rs. 30,000/- from him for the construction of his house and for arranging his marriage. When he asked him to re-pay that loan amount and put pressure upon him, he left the job on 17.3.1998 and went away. The whereabouts of Crl. Revision No. 561 of 2001 5 the deceased were not known to him for a long time and when he asked the complainant party to repay the loan amount or to hand over the possession of the newly constructed room of the deceased, the complainant, in order to grab his money, concocted a totally false story against him. As no one was prepared to corroborate the concocted version, the witnesses from the family of the complainant were falsely introduced. The deceased is still alive and hiding himself in order to avoid re-payment of the loan. The accused was called upon to enter on his defence, but he did not produce any evidence. After hearing learned Public Prosecutor for the State and learned defence counsel for the accused and going through the record of the case, learned Additional Sessions Judge, acquitted the accused, vide aforesaid judgment. Notice of the revision petition was given to the respondents. I have heard learned counsel for the petitioner, learned counsel for the accused-respondent No.1 and the Assistant Advocate General, Haryana, for the State and have carefully gone through the records of the case. This revision was half heartedly argued by learned counsel for the petitioner. According to him, the circumstantial evidence was produced for proving the guilt of the accused and the Crl. Revision No. 561 of 2001 6 circumstantial evidence produced on record, consisting of last seen theory, motive and extra-judicial confession, proves the guilt of the accused and excludes hypotheses of his innocence. Learned trial court has committed illegality while ignoring the said evidence and acquitting the accused. The scope for interference by this Court in the revision which has been preferred by the private complainant is limited one. The revisional jurisdiction in such like cases is to be exercised by this Court only in very exceptional cases where some material defect in law or procedure or manifest error of law, resulting in flagrant miscarriage of justice is found. Order of acquittal cannot be interfered with merely on the ground of errors in appreciating of the evidence. This discretion is judicious and not arbitrary one. It is not to be lightly exercised but only in exceptional circumstances where justice delivery system requires interference for the correction of a manifest injustice, illegality or the prevention of gross miscarriage of justice. An order of acquittal, in exercise of revisional jurisdiction, on appreciation of evidence, cannot be set aside and it could be set aside only on the basis of material evidence which was available on record but over looked by the trial court. In this case, the prosecution relied upon circumstantial evidence, which consisted of last seen theory, extra-judicial Crl. Revision No. 561 of 2001 7 confession, motive on the part of the accused to eliminate the deceased, recovery of a wrist watch of the deceased from the possession of the accused and disclosure statement of the accused regarding disposal of dead body of the deceased. The complainant-Savitri (PW-3) and Anil Kumar (PW-6) made statements about leaving of the house by the deceased with the accused. Deposition of Ram Bhagat (PW-5) is to the effect that on 17.3.1998, the accused Narender made an extra-judicial confession before him that he strangulated the accused to death when he asked him to render the accounts. Jai Bhagwan (PW-7) has deposed about the altercation which had taken place between the deceased and the accused in his presence when the deceased had asked the accused to render the account. Statement of Raj Singh (PW-8) is to the effect that the accused had undertaken to search the deceased but failed to do so. HC Inder Singh, (PW-10) made his statement about the recovery of the wrist watch of the deceased, in pursuance of the disclosure statement of the accused. Inspector Sardara Ram (PW-11) made a statement in the court to the effect that on interrogation the accused had made a disclosure statement that on 12.8.1998 he had taken the deceased to Mahipal Transport area and thereafter the accused pointed out the place where the dead body was thrown. However, according to this witness no dead body was recovered. All this evidence was duly discussed and Crl. Revision No. 561 of 2001 8 appreciated by learned trial court. After that appreciation, it came to the conclusion that guilt of the accused has not been proved by the prosecution. Detailed reasons were recorded for not placing reliance on that evidence. Those reasons do not suffer from any illegality or infirmity. Re-appreciation of that evidence is not permissible so as to reach at a different conclusion for converting acquittal into conviction. No ground is made out for interference in the finding of the trial court acquitting the accused-respondent, while exercising the revisional jurisdiction. The Revision petition is dismissed accordingly. December 11, 2009 (GURDEV SINGH ) prem JUDGE