Criminal Revision No. 389 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 389 of 2009 Date of Decision: 23.3.2009 Balwinder Singh …Petitioner Versus State of Haryana and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Kuldeep Tiwari, Advocate counsel for the petitioner. Mr. S.S.Mor, Senior Deputy Advocate General, Haryana, for respondent No.1-State. None for respondents No.2 and 3. Kanwaljit Singh Ahluwalia, J. (Oral) Petitioner Balwinder Singh had lodged a case FIR No. 24 dated 18.3.2006 under Section 304 read with Section 34 IPC and Section 3(2)(v) of Schedule Caste & Schedule Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Act”). Accused was summoned under Section 319 Cr.P.C. to face trial under the aforesaid Sections. On 18.3.2006, Sant Ram, Ex- Sarpanch of the village made a telephonic call to the Police Station that Om Parkash was killed in front of Flour Mill of Prajapat. On receipt of this information, police party reached at the spot. Statement of present petitioner Balwinder Singh was recorded. He stated that on 18.3.2006 at Criminal Revision No. 389 of 2009 2 about 2.00 P.M., he along with his uncle Om Parkash went to the Flour Mill belonging to Bhardwaj alias Guddu Prajapat for purchase of flour (Atta). Sohan Lal alias Sonu, nephew of Bhardwaj was present there. It is stated that at that moment, Sohan Lal and Om Parkash exchanged abuses with each other. There was scuffle and slaps were given by Sonu. It is further stated that Bhardwaj gave leg blow to deceased Om Parkash. Om Parkash became unconscious. Doctor was called who declared Om Parkash dead. Learned counsel for the petitioner has submitted that in the present case, death was caused due to leg blow given by Bhardwaj. To fortify his submission, he has drawn my attention to the deposition of Dr. S.K. Dhattarwal, Professor, Department of Forensic Medicine, PGI(MS), Rohtak, who conducted autopsy. Learned counsel has paid much emphasis on the following portion in the testimony of doctor who had conducted autopsy, which is as under:- “....Small intestine was having diffuse contusion of upper 30 cm. With evidence of hyperemia. Large intestine contained digested food and gases, liver, spleen and kidneys were congested. In organ or generation, externally there was diffuse contusion of scrotum and tests with evidence of ecchymosis”. Learned counsel states that this part of the ocular evidence that deceased received leg blow on his testes is also corroborated by medical evidence that injury was caused to the deceased. Evidence of PW.4 Dr. Rajnish Kalra, who had conducted the pathological examination and PW.7 Dr. S.K. Dhattarwal, who conducted the autopsy, Criminal Revision No. 389 of 2009 3 has been annexed with the present petition as Annexure A2 and A3. In cross-examination, PW-7 had admitted as under:- “It is correct that this case was referred to PGI as the Medical Officer could not find any external injury on the dead body of deceased Om Parkash. We had found the injury mark on external genitalia which is described in the post mortem report”. PW.4 Dr. Rajnish Kalra, Pathologist, who had examined the heart stated as under:- “Microscopic description. Heart representative micro sections from various portions show changes of chronic ischemic Heart disease. Right Coronary artery shows mild to moderate atherosclerosis. Left coronary artery shows marked atherosclerotic changes with complicated plaque”. In cross-examination, Pathologist has admitted that Om Parkash was an old heart patient. Admittedly, no specific opinion regarding cause of death has been given in the present case by medical experts to hold that Om Parkash had died due to injury caused by the accused. It is well settled law that prosecution has to stand on its own legs and prove its case. In the present case, prosecution has miserably failed to prove that Om Parkash had died due to any injury or any act on the part of accused. Criminal Revision No. 389 of 2009 4 Admittedly, FIR was lodged and State has opted not to assail the findings of the trial Court. The trial Court has held that medical evidence does not corroborate the ocular version. Ocular version is stated to be testimony of Pw.8 Balwinder Singh whose presence on the place of occurrence was held to be doubtful. Court further relied upon the report of Chemical Examiner Ex.P7 wherein the viscera sent was examined. Learned counsel for the petitioner has shown the Chemical Examiner Report Ex.P7. Chemical Examiner has observed as under:- “Contents of the exhibit No.1, 2 & 3 give positive test for organophosphorus compounds group of insecticides” Presence of poison ruled out that deceased died due to injury caused by the accused. In view of this fact, no interference is warranted in this present revision petition against acquittal. 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 these two propositions, this Court further states that the Criminal Revision No. 389 of 2009 5 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 High Court may interfere with an acquittal in revision it is Criminal Revision No. 389 of 2009 6 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 of prohibition in Section 439(4), Cr.P.C., for the High Criminal Revision No. 389 of 2009 7 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 Court; and Criminal Revision No. 389 of 2009 8 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 others, 1995 Supreme Court Cases (Cri) 181, held that it is well Criminal Revision No. 389 of 2009 9 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 March 23, 2009 “Sd/DK”