KUSUM MALIK Vs. STATE

JUDGEMENT

(1.) This criminal revision petition arises from an order of acquittal. The revision petition is filed by the prosecutrix in a case of rape.

(2.) The first thing to be decided in this case is the scope of the revision petition. The learned counsel for the petitioner relies upon the judgment of the Supreme Court in the case of Ram Briksh Singh & Ors. vs. Ambika Yadav & Anr.; 2004 (1) JCC 665. In this case, in a similar revision, the order of acquittal was set aside and the case was sent back by the High Court to the Trial Court on the ground that material available on record has not been considered by the Trial Court. It was a case of murder. There was no eye witness. The prosecution case depended upon circumstantial evidence. However, there were three witnesses who had noticed, the deceased being dragged and the investigating officer who found the body of the deceased in the courtyard of the house of the accused in a mutilated condition. High Court also found that the evidence on the point of dragging of the deceased and on the point of recovery of the dead body from the courtyard of the house of the accused had remained unshaken and had been corroborated by evidence of PW 8. This material evidence had been overlooked by the Trial Court and accordingly, the order was made by the High Court. This order was upheld by the Supreme Court in the judgment. The relevant part of the judgment is extracted below:-

(3.) Section 401(3) of the Criminal Procedure Code says it specifically that on a revision petition, the High Court cannot convert a finding of acquittal into one of conviction. Both counsel agree that when a private party or a complainant files a revision petition over an order of acquittal, High Court can send the case for re-trial. Further following the judgment of the Supreme Court in the case of Ram Briksh Singh & Ors. vs. Ambika Yadav & Anr.(supra), the case can be sent back to the Trial Court for reappreciation of evidence in case any evidence on record has not been considered by the Trial Court. For getting an order of re-trial or for return of the file for re- consideration of the evidence, the counsel for the petitioner has to make out a case that either some evidence on record has not been considered or that some evidence which could have been produced was barred by the Court or that some evidence taken by the Court and relied upon by the Court was not admissible in evidence.