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2000 DIGILAW 130 (HP)

SHANKAR DASS v. STATE OF H. P.

2000-06-02

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.—Respondents No. 2 to 7 upon having been tried by the learned Sessions Judge, Kangra at Dharamshala for the offence under Sections 302, 201 read with Section 34, Indian Penal Code stand acquitted vide the impugned judgment dated 3.11.1997. 2. The prosecution story briefly stated is this. The deceased Mohinder alias Varinder on 5.5.1997 was found in the area of Malan Chowk and proceeding towards Buhli Majhetli village. He appeared to be mentally upset. The residents of village Buhli Majhetli including the respondents mistook him as a thief and they started beating him. He was tied with a rope. On account of the injury sustained, he died. On the next day, that is, 6.5.1997, his dead body was noticed by one Mahavir Singh in a drain by the side of the road. On the basis of the report made by him to the police, the present case came to be registered. After the necessary investigation, the respondents No. 2 to 7 were arrested, challaned and sent up for trial. 3. The learned Sessions Judge upon consideration of the entire evidence led before him came to the conclusion that the prosecution had failed to bring home the offence against any of the six respondents. He, accordingly, acquitted each one of them of the offence charged against them vide the impugned judgment. 4. The acquittal of the respondents No. 2 to 7 as recorded by the learned Sessions Judge vide the impugned judgment dated 3.11.1997 was never assailed by the State by way of an appeal. The petitioner who is the father of the deceased has come up before this court by way of the present revision petition under Sections 397, 401 read with Section 482, Code of Criminal Procedure. 5. The learned Counsel for the respondents, at the very out set, has contended that unless there is a manifest illegality or grave miscarriage of justice, the High Court should not exercise its reivisonal power while sitting in judgment over an order of acquittal. 6. 5. The learned Counsel for the respondents, at the very out set, has contended that unless there is a manifest illegality or grave miscarriage of justice, the High Court should not exercise its reivisonal power while sitting in judgment over an order of acquittal. 6. The Apex Court in Kaptan Singh and others v. State of M.P. and another, [1997 (6) SCC 185], while dealing with the scope and extent of exercise of revisional jurisdiction by the High Court invoked by a private complainant against an order of acquittal, has held: ".....the revisional power of the High Court while sitting in judgment over an order of acquittal should not be exercised unless there exists a manifest illegality in the judgment or order of acquittal or there is grave miscarriage of justice.” 7. Again in The Associated Cement Co. Ltd. v. Keshvanand, [JT 1997 (1) SC 165], while drawing a distinction between the appellate powers and the revisional powers, it has been held by the Apex Court: "It appears that learned single Judge has equated appellate powers with revisional powers, and that the core difference between an appeal and a revision has been overlooked. It is trite legal position that appellate jurisdiction is co-extensive with original Courts jurisdiction as for appraisal and appreciation of evidence and reaching findings on facts and appellate Court is free to reach its own conclusion on evidence untrammelled by any finding entered by the trial Court. Revisional powers on the other hand belong to supervisory jurisdiction of a superior Court. While exercising revisional powers the Court has to confine to the legality and propriety of the findings and also whether the subordinate Court has kept itself within the bounds of its jurisdiction including the question whether the Court has failed to exercise the jurisdiction vested in it. Though the difference between the two jurisdictions is subtle, it is quite real and has now become well recognised in legal provinces." 8. The Apex Court reiterated its earlier view taken in State of Kerala v. KM. Charia Abdullah and Co. [AIR 1965 SC 1585], wherein it was held: "There is an essential distinction between an appeal and a revision. The distinction is based on the differences implicit in the said two expressions. The Apex Court reiterated its earlier view taken in State of Kerala v. KM. Charia Abdullah and Co. [AIR 1965 SC 1585], wherein it was held: "There is an essential distinction between an appeal and a revision. The distinction is based on the differences implicit in the said two expressions. An appeal is a continuation of the proceedings, in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power." 9. Read in the context of the above principle of law, I have no hesitation in concluding that the judgment of the acquittal of the learned Sessions Judge does not suffer from any manifest illegality nor there has been a grave miscarriage of justice. The learned Sessions Judge has given adequate reasons for acquitting each of the six respondents of the offence charged against them. 10. All the material witnesses examined by the prosecution have not supported the case of the prosecution. Though such witnesses were declared hostile and were subjected to cross-examination by the prosecution, nothing could be brought on the record to show either that they were suppressing the truth or were in any way interested in the respondents. 11. Much reliance was placed on the statements made by PW 1 Sudershan and PW 3 Mahavir which were recorded by the Magistrate under Section 164, Code of Criminal Procedure. PW 1 and PW 3 have resiled from such statements1 and had stated that they were forced to make such statement by the police. The statements were not voluntarily made. They were being called for investigation and were being threatened time and again that unless they were ready to make a statement as per the desire of the prosecution, they would be involved in the present case as accused. 12. The Magistrate who recorded the statements Ext. PW 1/ A and Ex. PW 3/B of PW 1 and PW 3 under Section 164, Code of Criminal Procedure, respectively, has appeared as PW 12. It is in the statement of the Magistrate that while recording the statements, he had not inquired as to since when both these witnesses were with the police. Ex. PW 1/ A and Ex. PW 3/B of PW 1 and PW 3 under Section 164, Code of Criminal Procedure, respectively, has appeared as PW 12. It is in the statement of the Magistrate that while recording the statements, he had not inquired as to since when both these witnesses were with the police. Ex. PW 12/A and Ex. PW 12/C are the applications made to the Magistrate for recording of the statements of PW 1 and PW 3 under Section 164, Code of Criminal Procedure. Both these applications have been made by the Investigating Officer praying for recording of the statements of the above said two witnesses. The orders passed on such applications are Ex. PW 12/B and Ex. PW 12/D. A perusal of the order passed by the learned Magistrate shows that both these persons were produced before the learned Magistrate by the police, no appearance appears to have been made by any of these two persons before the learned Magistrate voluntarily. The orders passed by the Magistrate also do not show that while giving the time to each of these two witnesses for reflection, he had ensured that both these witnesses would not remain under the influence of the police. Therefore, the learned Sessions Judge had rightly not placed reliance on the statements of PW 1 and PW 3 purported to have been recorded under Section 164, Code of Criminal Procedure. 13. The acquittal as recorded by the learned Sessions Judge is based upon proper appreciation of the evidence. It does not suffer from any illegality or impropriety calling for interference in exercise of the revisional powers by this Court. 14. Resultantly, the present revision petition fails and the same is accordingly dismissed. Revision dismissed.