JUDGMENT - KHARCHE S.T., J.:---Rule. Rule made returnable forthwith. 2. Heard Mr. Pathan, learned Counsel, for the applicant, Mr. Mirza, learned A.P.P., for non-applicant No. 1 and Mr. Ghurde, learned Counsel for non-applicants 2 to 4. 3. This revision is directed against the judgment dated 17-8-2002 delivered by the learned Sessions Judge, Amravati, in Criminal Appeal No. 38 of 1995 thereby acquitting the respondents 2 to 4 of the offence punishable under section 429 read with section 34 of Indian Penal Code. The complainant and the respondents 2 to 4 are related to each other. On 8-8-1991 when the complainant returned to the village, he found that ten sheep belonging to him were cut from their neck and on enquiry the accused No. 1 threatened him to kill all his sheep. On 15-8-1991 the complainant found twelve sheep dead and six sheep injured. The complainant immediately lodged the first information report at police station Shirkhed on the basis of which offence bearing Crime No. 178/91 under section 429 read with section 34 of Indian Penal Code was registered. After completion of investigation, charge-sheet was filed in the Court of learned J.M.F.C., Morshi. The learned trial Court framed the charge, recorded the evidence of the prosecution witnesses and ultimately convicted accused No. 1 to 3 for the offence punishable under section 429 read with section 34 of Indian penal Code and sentenced each of them to suffer rigorous imprisonment for two years and to pay a fine of Rs. 3,000/- each, in default to suffer rigorous imprisonment for six months. Being aggrieved by this order of conviction, accused/respondents 2 to 4 preferred Criminal Appeal No. 38 of 1995 in the Court of learned Sessions Judge, Amravati. The learned Sessions Judge vide order dated 17-8-2002 allowed the appeal and set aside the order of conviction passed by the learned trial Court and acquitted respondents 2 to 4 of the offence with which they were charged. It is this order of acquittal, that has been challenged in this revision. 4. The learned Counsel for the applicant/complainant contended that the impugned order passed by the learned Sessions Judge is not sustainable in law. It is this order of acquittal, that has been challenged in this revision. 4. The learned Counsel for the applicant/complainant contended that the impugned order passed by the learned Sessions Judge is not sustainable in law. The learned Counsel contended that the evidence of P.W. 1 Telmore and P.W. 3 Kalmegh is sufficient to convict the accused persons inasmuch as these two witnesses have in unequivocally terms stated that they had seen the accused No. 1 near the stall of the complainant and the evidence of these witnesses has not been shaken in the cross examination. The learned Counsel further contended that the Veterinary Doctor Shende (P.W. 5) had conducted autopsy on the sheep and opined that the cause of death of the sheep was due to haemorrhage by cutting of the vein by sharp object and that only one sheep was badly eaten by the dog. The medical evidence was corroborated in material particulars by the evidence of the aforesaid two witnesses and there was no possibility that the entire sheep could have died due to attack of wild animals. The learned Counsel also contended that the learned Sessions Judge committed an error in taking a different view of the matter especially when the prosecution has succeeded in proving the complicity of the accused in the present crime and, therefore, the impugned order passed by the learned Sessions Judge is not sustainable in law and deserves to be set aside. 5. The learned A.P.P. for the respondent No. 1 stated that Criminal Case No. 254/91 was a State case filed for the offence punishable under section 429 read with section 34 of Indian Penal Code and the State has not preferred any appeal against the order of acquittal passed by the learned Sessions Judge on 17-8-2002 in Criminal Appeal No. 38 of 1995. 6. The learned Counsel for respondent Nos. 2 to 4 fully supported the impugned order passed by the learned Sessions Judge and contended that the evidence adduced by the prosecution is totally inadequate to record a finding of conviction against the respondent No. 2 to 4. 6. The learned Counsel for respondent Nos. 2 to 4 fully supported the impugned order passed by the learned Sessions Judge and contended that the evidence adduced by the prosecution is totally inadequate to record a finding of conviction against the respondent No. 2 to 4. He contended that the isolated circumstance of medical evidence of Veterinary Doctor Shende (P.W. 5) is not corroborated by any other evidence and even presuming that the sheep were killed by the human beings by using sharp weapon, it did not follow that the accused/respondents 2 to 4 were in any way concerned with that. He contended that one sheep was badly eaten probably, by wild animals and, in such circumstances, the evidence adduced by the prosecution is doubtful. He contended that no test identification parade of the accused person was conducted by the Investigating Officer and, therefore, no reliance could be placed on the evidence of Telmore (P.W. 1) and Kalmegh (P.W. 3) to show that they had seen the accused No. 1 standing in front of the stall of the complainant in the night of 15-8-1991 at 1.30 a.m. The learned Counsel, therefore, contended that in such circumstances the impugned order of acquittal passed by the learned Sessions Judge is just, legal and correct. 7. The learned Counsel for respondents 2 to 4 contended that this is a criminal revision filed by a private party, i.e. the complainant, against an order of acquittal and as per sub-section (3) of section 401 of the Code of Criminal Procedure this Court cannot convert a finding of acquittal into one of conviction. He, therefore, contended that in such circumstances, the revision is liable to be dismissed. 8. I have thoughtfully considered the contentions canvassed by the learned Counsel for the respective parties. It is not disputed that the first information report was lodged by the complainant on 16-8-1991 mentioning therein that his 15 sheep were killed by the accused persons in the night intervening between 15-8-1991 and 16-8-1991. It is also true that the complainant in the first information report had mentioned the names of the accused but it would reveal that he was not an eye-witness in the sense that he himself did not see any of the accused killing his sheep on the relevant night. It is also true that the complainant in the first information report had mentioned the names of the accused but it would reveal that he was not an eye-witness in the sense that he himself did not see any of the accused killing his sheep on the relevant night. The complainant admits in his cross-examination in the following words--- "It is true that I stated the names of the accused causing loss to me by killing the sheep on suspicion." This admission would make it clear that the names of the accused have been mentioned in the first information report only on suspicion and hence much importance could not be given to the recitals of the first information report and in view of the specific admission of the complainant his evidence has been considerably impaired. 9. Reliance is placed by the prosecution on the evidence of Audhut Telmore (P.W. 1) and Punjab Kalmegh (P.W. 3), who are said to be star witnesses in the case. The evidence of both these witnesses would show that in the mid night when they woke up they saw three persons near the stall of the complainant. Audhut Telmore (P.W. 1) could identify only accused No. 1 who was standing in the cattle-pond whereas the evidence of Kalmegh (P.W. 3) would reveal that he had seen accused No. 1 to 3 standing near the stall of the complainant. What is relevant to note is that both these witnesses have stated that in that night it was raining and there was no electric light available in order to identify the accused persons. Kalmegh (P.W. 3) attempted to state that he had identified the accused persons in the light of the stars, but as stated above that it was a raining night, it would not be possible to accept that these two witnesses could identify the three persons standing near the cattle-pond. 10. The evidence of Telmore (P.W. 1) and Kalmegh (P.W. 3) could have been of great assistance to the prosecution had there been a test identification parade conducted during the course of investigation and in absence thereof it is not possible to accept the testimony of these witnesses to say that it were the accused and none else who had been there near the cattle-pond of the complainant in that night. 11. One more aspect is relevant. 11. One more aspect is relevant. As per the medical evidence, spear must have been used for killing the sheep but there is no discovery or recovery of weapon under section 27 of the Evidence Act. It is equally important to note that the names of Telmore (P.W. 1) and Kalmegh (P.W. 3) did not find place in the first information report and their statements under section 161 of the Code of Criminal Procedure appear to have been recorded on the next day, i.e. on 16-8-1991. In the circumstances, I am of the considered view that no implicit reliance could be placed on the testimony of these two witnesses and it cannot be said that their evidence is corroborated in material particulars by any other evidence on record. Admittedly, both these witnesses are relatives of the complainant and, as such, are interested in seeing the success of the prosecution. It is clear that the evidence adduced on record is totally inadequate to record a finding of conviction against the accused persons. The learned Sessions Judge has considered the evidence in proper perspective and has accordingly recorded finding of acquittal and there is no reason for this Court to take a different view of the matter especially when it appears that the learned Session Court based its finding of acquittal on appreciation of evidence and thus his findings deserve to be confirmed. It is obvious that the trial Court convicted the accused in absence of reliable and independent evidence and I am of the considered view that in absence of test identification parade uncorroborated testimony of the two witnesses is not at all sufficient to reach the conclusion that the prosecution has proved beyond doubt that the accused have committed the offences with which they are charged. 12. The learned Counsel for the applicant/complainant does not dispute the position of law that as per sub-section (3) of section 401 of the Code of Criminal Procedure this Court cannot convert the finding of acquittal into conviction. When the State has not chosen to file an appeal against acquittal, it is not the duty of this Court to reweigh the evidence from its own point of view and draw contrary inference. When the State has not chosen to file an appeal against acquittal, it is not the duty of this Court to reweigh the evidence from its own point of view and draw contrary inference. Though it is open to the High Court in its revisional jurisdiction to set aside an order of acquittal even at the instance of private parties, where the State does not prefer an appeal, the jurisdiction should be exercised only in exceptional cases, when there is glaring defect in the procedure or manifest error on the point of law and consequent flagrant miscarriage of justice. In the instant case, in that view of the matter, this Court is not inclined to interfere with the findings of the learned Sessions Judge as it is not shown that there is some glaring defect in the procedure or there is manifest error on the point of law and consequent flagrant miscarriage of justice. Having regard to the facts and circumstances of the case, I am of the considered view that there is no merit in the present revision and the same is liable to be dismissed. The criminal revision accordingly stands dismissed. Rule discharged. Criminal revision dismissed. -----