Criminal Revision No. 1056 of 2001 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 1056 of 2001 Date of Decision: 11.2.2009 Bikramjit Singh …Petitioner Versus State of Punjab and Another …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. M.S. Dhillon, Advocate for the petitioner. Mr. Mehardeep Singh, Assistant Advocate General, Punjab, for respondent No.1-State. None for respondent No.2. Kanwaljit Singh Ahluwalia, J. (Oral) The present revision petition has been filed against the judgment and order passed by learned Additional Sessions Judge, Ropar, on 13.12.2000 whereby respondent Gurmukh Singh was acquitted. Respondent Gurmukh Singh was tried in case FIR No. 35 dated 19.4.1991 registered at Police Station Morinda, under Section 302 read with Section 34 IPC. Mr. M.S. Dhillon, Advocate, appearing for the petitioner has very fairly stated that State has not preferred any appeal against the acquittal. Criminal Revision No. 1056 of 2001 2 Briefly stated that statement of Tara Singh was recorded. He stated that four persons who were having their faces covered came to his house. Deceased Baldev Singh was called by his name who after recognizing the voice opened the door and after shaking the hand, Baldev Singh accompanied them. It was stated that these four persons earlier also came to the house of the complainant. He further stated that he came to know on 19.4.31991 at 10.00 in the morning that dead body of his brother is lying the village shamlat land. He along with other persons reached at the spot and found that his brother Baldev Singh was lying dead along with many injuries. Admittedly, in the FIR, name of no person has been mentioned. The matter was investigated. A perusal of the impugned judgment reveal that originally four accused namely Manjit Singh, Jharmal Singh, Avtar Singh and Gurmukh Singh were named in this Case. Jharmal Singh is stated to have died during encounter. Manjit Singh accused had committed suicide. Accused Avtar Singh was not identified during identification parade by the witness and was discharged. Respondent-accused Gurmukh Singh was not arrested for a long time and was subsequently arrested in the present case to face trial. He was charged by the Court of learned Additional Sessions Judge, Ropar for offence under Section 302 IPC on 1.7.1998. Complainant Tara Singh appeared as PW.1. He stated that accused was one of the persons who were amongst the four persons who had knocked the door and they had taken the deceased forcibly. In cross-examination he admitted that he had not identified the accused Criminal Revision No. 1056 of 2001 3 in the police custody or in the Jail. Uttam Singh, Sub Inspector, appeared as PW.2. He proved ruqa on basis of which FIR Ex.PW2/A was recorded. Karam Chand, Assistant Sub Inspector, was examined as PW.3. He stated that ruqa was received in the Police Station and FIR was recorded. Gurcharan Singh, Assistant Sub Inspector, appeared as PW.4. He recorded the FIR Ex.PA/1. Gian Dass, Assistant Sub Inspector, PW.5 had patly conducted the investigation. Balwant Singh, Sub Inspector, PW.6 proved arrest of accused on 31.1.1998. Dr.Tirath Goel PW.7, had conducted autopsy and stated that deceased had suffered one gun shot injury. Jasmeet Singh appeared as PW.8 is Draftsman, who prepared site plan Ex.PW8/A. Ashwani Kapoor, Deputy Superintendent of Police, appeared as PW.9, had proved his signatures on the FIR. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded. Except the statement of Tara Singh in the Court that accused was one of the four persons who had taken the deceased along, there is no incriminating evidence on the file. Gurmukh Singh accused belongs to the village of deceased to which deceased and PW.1 Tara Singh belonged. Tara Singh has not named the petitioner in the FIR. It was for the first time in the Court he has given his name. He has not Criminal Revision No. 1056 of 2001 4 given any description in the FIR from which identity of the accused could be established. The trial Court held ;that no other witness had been examined to establish the identity of Gurmukh Singh who was identified for the first time in the Court. The Court further held that testimony of PW.1 Tara Singh suffers from the blemish of improvements. The Court further held that it has come in the testimony of PW.1 Tara Singh that accused Gurmukh Singh was not previously known to the witness. The Court further held that no test identification parade under Section 9 of the Indian Evidence Act has been held. In the circumstances of the case, it was incumbent upon the prosecution to prove test identification by any corroborative evidence. I find no infirmity in the judgment of trail Court whereby the respondent has been rightly acquitted. The findings of the Court below cannot be said to be perverse. The Court has formulated one view which is possible in the facts and circumstances of the case. Admittedly, no appeal has been preferred by the State. It was held in Mahendra Partap Singh vs. Sarju Singh and another, AIR 1968 Supreme Court 707, relying upon D.Stephens vs. Nosibolla, AIR 1951 SC 196, as under: “Only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining Criminal Revision No. 1056 of 2001 5 these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is mis-appreciation of evidence. Again, in Logendranath Jha v. Polajlal Biswas, 1951 SCR 676 (AIR 1951 SC 316), this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is “perverse” or “lacking in true correct perspective”. It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K.Chinnaswamy Reddy v. State of Andhra Pradesh, 1963 (3) SCR 412 = (AIR 1962 SC 1788), it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the Criminal Revision No. 1056 of 2001 6 High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. As stated not one of these points which have been laid down by this Court, was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned judge has re-weighed the evidence from his own point of view and reached inferences contrary to those of the Sessions judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.” In Akalu Ahir v. Ramdeo Ram, AIR 1973 Supreme Court 2145 (V 60 C 352), Hon'ble apex Court observed as under: “This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but it was emphasized that this jurisdiction should be exercised 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.” In face Criminal Revision No. 1056 of 2001 7 of prohibition in Section 439(4), Cr.P.C., for the High Court to convert a finding of acquittal into one of conviction, 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 re-trial 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 acquitted the accused; ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce; iii) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible; iv) Where the material evidence has been over-looked only (either?) by the trial Court or by the appellate Criminal Revision No. 1056 of 2001 8 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. In Mahendra Pratap Singh, (1968) 2 SCR 287 = (AIR 1968 SC 707) (supra) the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court made it plain that it had re- weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal on revision, when the Government had not chosen to file an appeal against it. “In other words” said this Court, “the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.” Similar view was reiterated by Hon'ble apex Court in Bansi Lal and others vs. Laxman Singh, (1986) 3 Supreme Court Cases 444. Again, Hon'ble apex Court, in Ramu alias Ram Kumar and Criminal Revision No. 1056 of 2001 9 others, 1995 Supreme Court Cases (Cri) 181, held that it is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it has been invoked by a private complainant. In Vimal Singh vs. Khuman Singh and another, (1998) Supreme Court Cases (Cri) 1574 and in Bindeshwari Prasad Singh vs. State of Bihar, 2002 AIR (SC) 2907, the High Court has been reminded of its very limited jurisdiction in revision against acquittal. It is well settled that unless any legal infirmity in the procedure or in the conduct of trial or patent illegality is pointed out, the revisional Court will not interfere. I find no merit in the instant revision petition to interfere while exercising revisional jurisdiction as learned counsel for petitioner has failed to point out any illegality or irregularity. There is no merit. Present revision petition is dismissed. (Kanwaljit Singh Ahluwalia) Judge February 11, 2009 “DK”