Criminal Revision No. 828 of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 828 of 1996 Date of Decision: December 09, 2009 Indra ...... Petitioner Versus State of Haryana and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Atul Lakhanpal, Senior Advocate with Mr.Manav, Advocate for the petitioner. Mr. Ajay Singh Ghangas, Additional AG, Haryana for respondent No.1. Mr. Deepender Singh, Advocate for Mr.Baldev Singh, Senior Advocate for respondents No. 2 and 3. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This is a revision filed by the complainant against acquittal of the accused in case bearing FIR No. 109 dated 17.7.93, under Sections 302/452/34 IPC registered at Police Station Adampur. In brief the facts which have emerged from the FIR are that on 17.7.93 the husband of the complainant was sitting in the Baithak of his Dhani at village Mahalsara, Police Station Adampur. At about 6.00 a.m. the complainant and her father were tethering the cattle outside when the Criminal Revision No. 828 of 1996 2 accused persons came in and fired one shot each at the deceased. The deceased in an attempt to save his life ran towards the Dhani of one Badri Parshad with the accused following him and the complainant and her father following the accused. The deceased went into one of the rooms of the said Dhani and, in an attempt to save himself hid under a cot whereupon the accused pulled him out, repeatedly shot him, killed him and ran away. During the trial the complainant who appeared as PW6 stuck to her guns and nothing worthwhile could be elicited from her cross- examination. The learned trial court, however, in view of the fact that the medical evidence and the ocular evidence were inconsistent; that the injuries suffered by the accused were not explained; and disbelieving the factum of recovery of the weapons, acquitted the accused. Learned Senior Advocate on behalf of the petitioner has primarily urged that despite the inconsistencies the eye witness account of the complainant was thoroughly credible. He has argued that as per the version put forward by the accused in fact, the murder was actually committed by Badri Parshad. He has argued that in that eventuality there was no occasion for the complainant to have implicated the present accused one of whom was her brother-in-law. There was no reason for her to favour Badri Parshad and be hostile to her own brother-in-law. He has further argued that in her entire cross-examination no suggestion was put to her with regard to this theory. He has relied upon Anvaruddin and ors. v. Shakoor and ors. reported as 1990(3) SCC 266 wherein the Hon'ble Supreme Court as held as follows:- “Even though the ballistic expert initially opined that injuries Nos. 12 and 13 could be the result of a single shot he vacillated and stated that the possibility of the said two injuries having Criminal Revision No. 828 of 1996 3 been caused by two different shots could not be ruled out altogether. He merely stated that the greater probability was that they were the result of a single shot. In other words the ballistic expert was not positive in his view. In this nebulous state of the evidence of the ballistic expert we are of the view that the High Court was wholly wrong in doubting the direct evidence of the three eye-witnesses on this ground. Where the expert evidence is obscure and oscillating, it is not proper to discredit the direct testimony of the eye-witnesses on such uncertain evidence. In such a situation unless the evidence of the eye-witnesses is shaken by some glaring infirmities, it would not be proper to doubt the correctness of their statements. We are, therefore, of the opinion that the High Court was wrong in its conclusion based on the vacillating evidence of the ballistic expert.” He has also relied upon Dharma v. Nirmal Singh alias Bittu reported as 1996(2) RCR(Criminal) 500 wherein it was held as follows:- “4. Before we record our reading of the evidence produced in the case, let a legal submission advanced by Shri Lalit, appearing for the respondent-accused, be dealt with. His submission is that as the complainant had approached the High Court in revision and as under the revisional power available to the High Court under Section 401 Cr.P.C., the High Court could not have altered the finding of acquittal into one of conviction, because of what has been stated in sub-section (3) thereof, if we were to be satisfied that the acquittal was wrongful, it would not be within our competence to convict the respondent; at best the case could be sent back for retrial. We are not impressed with this submission inasmch as the approach to this Court being under Article 136 of the Constitution, we do not read the limitation imposed by Section 401(3) of the Code qua the power available to us under the aforesaid provision. May it be pointed out that a similar submission had been advanced by Shri Lalit himself in the case of Criminal Revision No. 828 of 1996 4 E.K.Chandrasenan v. State of Kerala, JT 1995(1) SC 496, then contention that this court is incompetent to issue rule of enhancement as had been done in those cases. It was held in the aforesaid decision that the power available to this Court under Article 136 is not circumscribed by any limitation. In any case, power under Article 142 is available to pass such order as may be deemed appropriate to do complete justice. We, therefore, reject this contention of Shri Lalit and proceed to examine the materials to find out whether case of conviction does exist,as is the contention of the appellant.” On the contrary learned counsel for the respondents has argued that the present is not a case where it can be said that any evidence has been ignored and that at best it could be a case where another view may be possible but that this would not justify interference under Section 401 Cr.P.C. In Satyajit Bannerjee and others v. State of W.B. and others reported as 2005 SCC(Crl.) 276 case it was held by the Hon'ble Supreme Court as follows:- “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 resulting in flagrant miscarriage of justice.” In Jagannath Choudhary v. Ramayan Singh reported as 2002(2) RCR (Crl.) 813 the Hon'ble Supreme Court held as follows:- “ 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, wherein there is some glaring defect in the procedure or there is a manifest error on a point of Criminal Revision No. 828 of 1996 5 law and consequently there has been a flagrant miscarriage of justice. To the similar effect are the judgments Johar and others v. Mangal Prasad and another reported as (2008)2 SCC (Cri) 89, Bansi Lal and others v. Laxman Singh reported as 1986 Crl.L.J. 1603 and Bindeshwari Prasad Singh alias B.P.Singh and others v. State of Bihar (Now Jharkhand and another) reported as 2002 Crl. L.J. 3788. I have carefully considered the arguments raised by both the sides. Even though it cannot be gainsaid that the complainant in this case would have no reason to falsely implicate the accused yet at best as argued by learned counsel for the respondents it is a case where two views are possible. There is no doubt that there is evidence contrary to the story which has been sought to be proved by the prosecution. In the circumstances the benefit of any infirmity or inconsistency has to go to the accused. It is also to be noticed that no appeal has been filed against acquittal. In the circumstances this revision is dismissed. (AJAY TEWARI) JUDGE December 09, 2009 sunita