KAMLI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This revision is directed against order dated 20-2-1981 by Sri R. R. Jatav learned III Additional Sessions Judge, Hameerpur in Ses sions Trial No. 164 of 1978 by which the opposite parties 2 to 7" were acquitted of the charges under Sections 147/148/302/307/149 of Indian Penal Code. The incident is alleged to have taken place on 1-2-1978 at about sun-set; Ratan and Ganesh sustained injuries during the occurrence, and succumbed to their injuries. A report about this incident was lodged at police station Rath on the next morning at 10 A. M. by Smt Kamli (PW-1 ). The distance of police station from the scene of occurrence was five miles After investigation Sri R P. Singh (PW-5) submitted charge sheet against/opposite parties 2 to 7. Opposite parties 2 to 7 denied their participation in the occurrence and alleged their implication to ill- will, the learned trial Judge disbelieved prose cution story on several grounds and recorded order of acquittal. Aggrieved by that order, this revision has been preferred by Smt. Kamli. I have heard Sri N. K Saxena, learned Advocate for revisionist and Sri Vijay Bahadur learned Advocate for opposite parties' No. 2 to 7 and Sri Rame-shwar Nath for State. The learned counsel for revisionist attacked the judgment of the learned trial Judge. He assailed the findings of fact recorded by learned trial Judge and alleged that it was a double murder case which should not have been lightly acquitted. The reasoning adopted by learned trial Judge was not cogent and should not have entailed acquittal. I have carefully perused the record and appreciated these contentions. A look at Section 378 of the Code of Criminal Procedure shows cases in which an appeal could have lain against an order of acquittal. Such appeal was not preferred by State Government and the revision had been filed by Smt. Kamli, although the case was not initiated on a comp laint but on a police report. Section 401 of the Code of Criminal Procedure lays down the powers of revision of High Court. Sub-clauses (2), (3) and (4) read as below: "401 (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . . (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defense, (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed," In Harihar Chakravarty v. State of West Bengal (A. T. R. 1954 S. C. 259), it was observed, "the revisional jurisdiction conferred on the High Court under Section 439, Criminal Procedure Code is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gro s miscarriage of justice. This Jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong vie w of the law or misappreciated the evidence on re cord," Scope of revision was again pointed out in Pakalapati Narayana Gaja-pathi Raju and others v. Banapalli Pada Appadu and another; (A,i. R. 1975 S. C. 1854) in the follow ing terms: "the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, can be exercised only in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of a gross miscarriage of Justice, The revisional jurisdiction cannot be invoked merely because the lower Court has not appreciated the evidence properly. " Revision application against acquittal can be entertained only in excep tional cases, such as where a question of law of general importance to the com munity arises in the case. The exceptional cases are where (1) the trial Court having no jurisdiction has acquitted the accused: (ii) it has wrongly shut out evidence of the prosecution: (iii) the Appellate Court has wrongly held the evidence admitted by the trial Court as inadmissible: (iv) the material evidence has been overlooked either by the trial Court or the Court of appeal: or (v) the acquittal is based on a compounding of the offence, invalid under the law. These categories are illustrative, not exhaustive, and retrial or rehearing of appeal may be ordered (Bishambhar 52 Cr. L. J. 179 (All ). The learned trial Judge has taken into account the inordinate delay in lodging the report; he has also pointed out the motives for the alleged double murder on the part of opposite parties 2 to 7 were not proved. He also found that the two eye witnesses examined in this case viz. Ram Kali and her daughter- in-law Chutti (PW-2) were not trustworthy. He has also given some other reasons for recording acquittal. Under such circumstances it is not pos sible to hold that the Sessions Judge had entirely overlooked that evidence and finding recorded by him was simply perverse. Moreover, the mere fact that the lower Court might not, have appreciated the evidence properly could not be a sufficient ground for interference to convert the finding of acquittal, into one of conviction. In the result, revision fails and impugned order is upheld. Bonds execut ed by Ops. 2 to 7 are discharged. .