CRR No.393 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.393 of 2009 (O&M) Date of decision: 13.01.2011 Sukhdeep Singh ....Petitioner Versus State of Punjab and others ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. P.S. Ahluwalia, Advocate, for the petitioner. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) Complainant has filed the present revision challenging the judgment dated 3.7.2008 passed by Additional Sessions Judge, Jalandhar, in Sessions Case No.38 of 2006, thereby acquitting the accused in an offence pursuant to FIR No.65 dated 14.7.2005 under Sections 302/201/34 of the Indian Penal Code, Police Station Kartarpur, District Jalandhar. The prosecution story is that father of the complainant/revisionist Kashmir Singh was serving as a Home Guard posted with GRP Police Station Jalandhar. About six months prior to 14.7.2005, he had quarreled with Nind Pal @ Ninda and his nephew Varinder, who used to stand in front of their house. The matter was compromised with the intervention of Panchayat but Nind Pal and Varinder Singh remained standing in front of their house for the last CRR No.393 of 2009 (O&M) -2- few days. On 12.7.2005 Kashmir Singh returned to his house in the evening as usual. Nind Pal and Varinder who were standing in front of their house were scolded by Kashmir Singh who in turn started abusing Kashmir Singh. Wife of Kashmir Singh and revisionist called Kashmir Singh inside the house and Nind Pal and Varinder left from their with the threat to see Kashmir Singh. After taking dinner Kshmir Singh and his family was present in their house that Nind Pal and Varinder came again and started calling bad names to Kashmir Singh whereupon Kashmir Singh told both of them that he was going to the police station to inform the police and left on his bicycle at about 10/10.30 p.m. but he did not return thereafter. Petitioner and other members of his family searched for Kashmir Singh for two days but could not find any clue. On 14.7.2005 Complainant/revisionist and his brother in law Kulwinder Singh observed that earth has recently been dug at a place in the rear side of a school in the area of village Fazalpur and foul smell was coming from that place. Sukhdeep Singh and Kulwinder Singh dug out some earth from there and found dead body of Kashmir Singh lying buried there. The matter was reported to the police by the revisionist which led to the registration of FIR No.65 dated 14.7.2005. During investigations Nind Pal, Varinder Singh, Jarnail Singh and Arshad Ahmad are said to have suffered extra judicial confession before Nishan Singh, a former Sarpanch of village Ghug to the effect of murdering of Kashmir Sigh. It is also the case of investigating agency that in pursuance of disclosure statement suffered by Nind Pal he got recovered a Spade from the wheat chaff of his house, accused Jarnail Singh got recovered wallet of Kashmir Singh containing his identity card and CRR No.393 of 2009 (O&M) -3- Rs.200. Accused Varinder Singh got recovered a bicycle from a pit dug near the school in village Fazalpur and accused Arshad Amad got recovered a scooter from Bawa Workshop at Railway line Jalandhar- Amritsar which was used in committing the offence of murder of Kashgmir Singh. Upon completion of investigations, final report was submitted against the accused. Initially, police has not filed challan against the accused. After investigation, however, on the basis of material filed along with report under Section 173 Cr.P.C., Magistrate having perused the material, found prima facie case against the accused and has committed the case for trial vide order dated 11.10.2005 to the Sessions Court. From the prosecution side as many as 13 witnesses were examined. Learned trial Court having perused the statement made by prosecution witnesses and having perused entire record has come to the conclusion that entire chain of circumstantial evidence is not complete, hence offence against the accused is not proved and ultimately acquitted the accused. Hon'ble Apex Court in the matter of Akalu Ahir reported in 1973(3) SCC 583 in para 8 has observed as under: - “...........the revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. .............It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court in the court of trial, that the High Court is empowered to set aside the order of acquittal and direct the retrial of the acquittal accused persons. From the very nature of this power, it should be exercised in exceptional cases and with great care and caution. CRR No.393 of 2009 (O&M) -4- Trials are not to be lihtly set aside when such order expose the accused persons to a fresh trial with all its consequential harassment. This matter is not res integra and had indeed been dealt with by this court at least in the four cases noticed by the High Court. ...............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 retrial 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 qcquitted the accused; ii. Where the trial court has wrongly shut out evidence which the prosecution wishes to produce; iii. Where the appellate court has wrongly held the evidence which was admitted by the Trial Court to the inadmissible; iv. Where the material evidence has been overlooked 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.” Hon'ble Apex Court, in the matter of Bindeshwari Prasad Singh Vs. State of Bihar reported in 2002(6) SCC 560 in paras 13 and 14 has observed as under: - “13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of CRR No.393 of 2009 (O&M) -5- justice, exercise of revisional jurisdiction in such cases is not warranted. 14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial Court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. At best the High Court thought that the prosecution witnesses were reliable while the trial court took the opposite view. This Court has repeatedly observed that in exercise of revisional jurisdictional against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and should not constitute itself into an appellate court which has a much wider jurisdiction to go into questions of facts and law, and to convert an order of acquittal into one of conviction.” Hon'ble Apex Court, in the matter of Johar Vs. Mangal Prasad reported in 2008(3) SCC 423 in para 19 has held as under: - “19. The approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure, it exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred, but severally (sic severely) restricted, particularly when it arises from a judgment of acquittal.” In view of the dictum of the Hon'ble Apex Court, in the humble opinion of this Court, in a revision filed by the complainant against the order of acquittal, revisional Court has no jurisdiction to re- appreciate the evidence. However, revisional Court shall be within its jurisdiction to see as to whether trial Court has shut out or has CRR No.393 of 2009 (O&M) -6- overlooked the evidence which could clarify the issue. Revisional Court can further seek manifest error of law or jurisdictional error or procedural error committed by the trial Court amounting to failure of justice. In the present case, neither manifest error of law nor jurisdictional error is pointed out by the revisionist. The only argument advanced by learned counsel for the revisionist is that from the evidence available on the record, guilt of the accused is proved. I am afraid that while exercising my revisional jurisdiction, I cannot re-appreciate the evidence. This is not a case where an important piece of evidence was left by the trial Court while deciding the case. In the opinion of this Court, even if two views are possible on the appreciation of evidence available on record, the view taken by the trial Court while acquitting the accused must prevail and this Court should not substitute its view over the view taken by the learned trial Court. Petition is devoid of merit, hence is dismissed. (Alok Singh) Judge January 13, 2011 R.S.