{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.221 OF 2007 Ramesh Balasaheb Devkar APPLICANT VERSUS Santosh Manchakrao Deokar & others RESPONDENTS ....... Mrs.S.S.Jadhav, h/f Mr.Kailas Kadam, Advocate for applicant Mr.N.B.Patil, APP for respondent State Mr.S.S.Bora, Advocate for respondents No.1 to 11 ....... [CORAM : A.V.POTDAR, J.] DATE: 10 th November 2009 PER COURT: 1. By the present criminal revision u/s 401 (3) r/w section 397 of the Code of Criminal Procedure, the original complainant has challenged the judgment of acquittal dated 19.06.2007 passed by the Ad Hoc Additional Sessions Judge -2 Parbhani in Sessions Case No.103/2006 thereby acquitting the respondents No.1 to 11 from the offence punishable u/s 147, 148, 341, 302 and 201 r/w 149 of the Indian Penal Code. 2. This Court had directed to call for Record and {2} Proceedings of the case. Accordingly, the record and proceedings is received and the criminal revision application is heard finally at the stage of admission. 3. Heard learned counsel appearing for the applicant / original complainant followed by the arguments of learned counsel Mr.Bora appearing for respondents No.1 to 11 followed by the arguments of learned APP. 4. At the outset, learned counsel for the applicant / original complainant has stated that she is pressing the present application only against respondent No.1 and she does not want to press the revision application against respondents No.2 to 11. In the premise, the scope of the submissions is to be considered as to whether any interference is required in the impugned judgment and order of acquittal. 5. During the course of submissions, considering the limited scope of the revision, my attention is drawn towards the evidence of PW-9, who is the alleged eye witness to the incident. It is not disputed that the deceased died due to homicidal death and 9 incise wounds were found on his person. In this connection, according to learned counsel for the applicant, evidence of PW-9 is material. She has pointed out from the deposition of PW-9 from para 2 that the said witness has deposed that when he was passing through the road near Pachalgaon, he heard noise and {3} shouts “Dhavare Bapare” from at a distance of 100 feet and at that time he he saw that respondent No.1 was having sword in his hand and he was giving blows of the sword on the neck of the deceased and gave 2/3 blows on his hand and other parts of the body and at that time some 5/6 persons were also present there. By pointing out this portion, learned counsel for the applicant has contended that though PW-9 is a material witness who has deposed about the injuries inflicted on the person of the deceased during the alleged incident, yet his evidence, which is discussed in para 24, 25 and 54 of the impugned judgment, is discarded by the learned trial judge. 6. Considering the submissions, the point which requires consideration is that, whether the trial court has properly appreciated the evidence of the material witness or has wrongly discarded the same. It is to be noted that in para 10 of the cross examination of PW-9, he was put certain questions in respect of improvement, which he has made in the examination in chief, which is absent in his statement recorded u/s 161 during the investigation. To the said question this witness has answered to the effect that he has not stated before the police that he has heard noise “Dhavare Bapare” from at a distance of 100 feet. He has also admitted that he has not stated before the police that the first blow of the sword was given to the deceased by the accused on the neck and thereafter 2/3 blows on hand and other parts of the body. In para 54 sub para 10 of the judgment it is observed by the trail {4} judge that these material omissions brought on record in para 10 of the cross examination will give fatal blow to the deposition of the so called eye witness as it will project about the probability of the witnesses whether in reality he has witnessed the incident in the manner in which he has given deposition before the trial court on oath. 7. The scope of the High Court in revisional jurisdiction is discussed by the Supreme Court in the latest judgment reported in “Johar & others V/s Mangal Prasad & Another” (2008) 3 SCC 423. In the said judgment reference is given to the observations made in the judgment reported in AIR 1951 SC 196 in case of “D Stephens V. Nasibolla”. In para 10 of the said judgment it is observed thus- “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 complaint against an order of acquittal, against which 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 correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record.” {5} It is further observed in para 22 of the said judgment with reference to the famous judgment about the scope of the High Court in revisional jurisdiction, in the matter of “K.Chinnaswamy Reddy V. State of A.P.” AIR 1962 SC 1788. It is observed in the said judgment thus- “7. 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 thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court 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. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it 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 retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitation on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised.” 8. In the light of these observations it is clear that the scope of the High Court in revisional jurisdiction is very limited only to the extent to consider as to whether the trial judge has properly appreciated the evidence or not. As discussed above, the trial judge has negatived and discarded the evidence of PW-9 due to improvements made by him, by passing a reasoned observations. It is also necessary to consider the evidence of the {6} said witness in the light of Post Mortem notes as well as deposition of the medical officer. The PM notes and evidence of medical officer indicate that 9 incise wounds have been found on the person of the deceased. If it is so, then it is clear that there might have more than one assailants equipped with sharp edged weapons other than Santosh. However, unfortunately evidence of this witness is silent on the point as to whether the persons who are unknown to him were holding weapons in their hands and whether they have also assaulted the deceased at the alleged occurrence witnessed by PW-9. In this background, it cannot be said that the evidence of this material witness is not properly appreciated by the trial judge. In the premise, no interference is required at the hands of this Court in the order of acquittal passed by the trial court. Considering these aspects, the revision, which is sans merits, is dismissed. [A.V.POTDAR, J.] drp/crirev221-07