Crl.Rev.No.187 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 4026 of 2009 and Crl.Rev.No.187 of 2009 Date of Decision:- 11.09.2009 Kalawati ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Sarfraz Hussain, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. Crl. Misc. No. 4026 of 2009: For the reasons mentioned in the application, the same is allowed. The delay of 320 days in filing the revision petition is condoned. Crl.Rev.No.187 of 2009 : The present revision petition has been filed by the complainant challenging the judgment dated 30.11.2007 passed by the learned Additional Sessions Judge, Panipat, whereby the accused-respondents 2 and 3 after being given benefit of doubt have been acquitted of the charges framed against them. Counsel for the petitioner-complainant submits that the learned trial Court has not appreciated the evidence so brought on record by the prosecution and has proceeded merely on conjectures and surmises while granting the benefit of doubt to the accused-respondents 2 and 3. His submission is that the eye-witness account of the complainant and that of Crl.Rev.No.187 of 2009 -2- Sh.Onkar Singh has been disbelieved by the trial Court. Minor discrepancies which had crept in due to passage of time when the FIR and the subsequent statements under Section 161 Cr.P.C. were recorded and those made in the Court, have been made the sole basis for acquitting the accused-respondents No.2 and 3. I have heard counsel for the petitioner and have gone through the records of the case. The trial Court has in detail gone into the evidence so led by the prosecution and has given its findings in paras 12, 13, 14 and 15, which read as follows:- “12. It is true that it is duty of the Court to separate grain from chaff and where chaff can be separated from grain, it would be open to the Court to convict an accused. It is again true that if the court comes to the conclusion that the statement of a witness has not been correctly recorded by the police, the same can be ignored and has no meaning at all. It is also true that the statement of Omkar PW is relevant under Section 33 of the Indian Evidence Act, but appraisal of evidence would show that there are certain holes in the case of the prosecution which it has failed to explain. 13. First of all, arises the question of identity of the accused. According to the complainant, regarding the incident of 24.3.1998, she had presented an application before the S.H.O., Police Station Samalkha and she placed on the file copy of the same as mark A. Although presentation of such a complaint before the police could not be proved, but perusal of report Ex.DB would show that the Crl.Rev.No.187 of 2009 -3- complainant had reported the incident of 24.3.98 before the police. In said complaint, she had stated that total number of persons who came to her Dera on the evening of 24.3.98 were five and one of them was Anil son ofSmt. Kali and remaining persons were not known to her. If on the evening of 24.3.1998, she could not identify Krishan accused, then how did she identify him on the night of 28.3.98 and that too while fleeing in the headlight of a truck going on the road. It is also doubtful whether in the incident of 24.3.98 only both the accused now facing trial were involved or there were five persons in all. In her complaint to the police, as stated above, the complainant had stated that the total number of persons who came to her Dera on the evening of 24.3.1998 was five, but in her statement before this Court as PW1, she has stated that only both the accused had come. 14. It is also doubtful whether the dead body of the deceased was taken out from the well by the complainant with the help of neighbours and thereafter, the matter was reported to the police or it was the police who took out the dead body from the well. The complainant in her statement before the police on which FIR was drawn and in her statement before the learned committing Magistrate, had stated that they first of all took the dead body of her husband out of the well and when she found that he was dead, she informed the police. This version appears natural because in such a situation, priority of the relatives would be to take the Crl.Rev.No.187 of 2009 -4- person lying in the well out, so that timely medical and aid could be provided to him if he was alive. But in her statement before this Court, the complainant changed her version and stated that they first of all tried to take out her husband from the well, but when could not succeed, they informed the police, the police arrived at the spot and took out the dead body of her husband from the well. In cross- examination, when she was confronted on said point with her statement made before the learned committing Magistrate, she stated that she had stated in her statement before the learned committing Magistrate that they had taken out the dead body of her husband out of the well first and then informed the police, but explained that it was not her correct statement and they the dead body was taken out from the well by the police and further explained that as the occurrence had taken place at about 10.00/11.00 p.m., no person from the surrounding area came there. If this version of the prosecution is admitted to be true, it makes the story of the prosecution doubtful because as stated above, had the complainant seen her husband falling into the well, her first priority would have been to call the neighbours to take out her husband from the well to provide him timely medical aid and she would not have waited for the arrival of the police to take out the dead body. It is suggestive of the fact that the deceased was not seen by anyone falling into the well and when it was found that his dead body was lying in the well, Crl.Rev.No.187 of 2009 -5- the police was informed who arrived at the spot and took out the dead body. 15. Otherwise also, the story of the prosecution appears to be doubtful. The deceased had left the house at about 7.p.m. and the alleged occurrence took place at about 10/11.00 p.m. If he was to be killed by the accused, they would have killed him at some other place and it looks highly improbable that he was brought by the accused just in front of his house and there, he was killed inviting the danger of being apprehended. All these factors are important because on investigation by the police, both the accused were found innocent. It has come in evidence that during investigation, the complainant was asked by the police to identify Krishan accused, but she refused to identify him saying that he was not known to her. It is also a circumstance which goes against the prosecution.” A perusal of the above leaves no manner of doubt that the trial Court has properly appreciated the evidence which has been led by the prosecution and has rightly given benefit of doubt to the accused- respondents No.2 and 3. The Hon'ble Supreme Court in various judgments has held that the powers being exercised by the Revisional Court are limited in nature,especially to set aside the order of acquittal and that too at the instance of private party. In the case of Mahendra Partap Singh Versus Sarju Singh and another, A.I.R. 1968 S.C. 707, Hon'ble the Supreme Court Crl.Rev.No.187 of 2009 -6- has said that the High Court is entitled to set aside the acquittal in a revision or order of retrial, where 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. The High Court is not entitled to interfere, if wrong view is taken by Court of Session or if even there is mis-appreciation of evidence. However, the High Court can interfere, if there is an error on point of law or no appraisal of evidence at all. The High Court can also exercise its jurisdiction, 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. This position has been reiterated by Hon'ble the Supreme Court in the case of Akalu Ahir Versus Ramdeo Ram, A.I.R. 1973 S.C. 2145. This has been the consistent view of Hon'ble the Supreme Court, which has been followed by the Courts. In Bindeshwari Prasad Singh Versus State of Bihar, 2002 S.C. 2907, again this position has been reiterated. By now, it is well settled that the revisional jurisdiction conferred on the High Courts, should not be lightly exercised, particularly when it has been invoked by a private complainant. This jurisdiction being limited one, should not be equated and exercised as one which an Appellate Court exercises, which is much wider as the Court exercising such jurisdiction can go into the question of facts and law and convert an order of acquittal into one of conviction. The revisional jurisdiction and that too at the instance of complainant has to be exercised by the High Courts with care, caution, circumspect and sparingly that too in very exceptional cases. Keeping these principles in view, no legal infirmity in the Crl.Rev.No.187 of 2009 -7- procedure or conduct of trial has been pointed out, which would call for interference by this Court as the assertion of counsel for the petitioner is non consideration of evidence by the Trial Court in the proper perspective, while reaching the conclusion. This cannot be said to be a case, which would call for interference by this Court or one which would fall within the parameters, while exercising its revisional jurisdiction as has been laid down in various judgments of Hon'ble the Supreme Court for exercise of jurisdiction. Consequently, the revision petition being without any merit is hereby dismissed. September 11, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE