Judgment : 1. The following is the prosecution case in brief:- 1.(a) The second accused is son of first accused. Both of them are residing in Muthukrishnapuram Street in V.K. Puram. The deceased Murugammal was spinster, who was living with her father in the opposite house of the accused. Murugammal was working as typist in a private nursing home. In both of their houses, landline telephone connections are available. On 05.05.1999, at about 2.15 pm while the 1st accused went to the house of Murugammal, where parents and some other persons were present and told that Murugammal asked her over phone about second accused. She also hurled filthy language on the character of Murugammal. The second accused came and throttle the neck of the father of Murugammal by a towel. Since Murugammal could not tolerate the disgrace at the behest of both the accused, on 6.5.1999 in the bathroom of her house at about 6.00 a.m., she poured kerosene on herself and set ablaze. She was immediately rushed to Ambasamudram Government Hospital. P.W.10, Duty Doctor examined the injured and issued Ex.P.3 Accident Register, in which he has recorded that she sustained 60% of burn injuries and that she was also conscious. She was taken to the Medical College Hospital, Tirunelveli by her close relatives for further treatment. 1.(b) On 06.05.1999 at about 8.30 a.m. P.W.15, the Head Constable, attached to the Police Outpost in the said hospital, on receipt of information, proceeded to the emergency ward, where Murugammal was admitted as inpatient and recorded statement Ex.P.6 from her. Thereafter he sent information to V.K.Puram Police Station. 1.(c) P.W.16 Judicial Magistrate No.VI, Tirunelveli, received intimation from the hospital, proceeded to the hospital and recorded dying declaration from the injured at 12.50 p.m. on 06.05.1999. Ex.P.9 is Dying Declaration, which has been recorded as follows: Tamil 1.(d) At the time of recording dying declaration, P.W.12 Senior Civil Surgeon was present. He certified in the dying declaration to the effect that the injured was conscious and physically fit to give dying declaration. 1.(e) On 13.05.1999, inspite of treatment, Murugammal died at 3.25 a.m. P.W.17 Head Constable of the Police Outpost got death intimation and intimated the fact to V.K.Puram Police Station under which the occurrence place lies. He certified in the dying declaration to the effect that the injured was conscious and physically fit to give dying declaration. 1.(e) On 13.05.1999, inspite of treatment, Murugammal died at 3.25 a.m. P.W.17 Head Constable of the Police Outpost got death intimation and intimated the fact to V.K.Puram Police Station under which the occurrence place lies. P.W.19, Head Constable of V.K.Puram Police Station, on receipt of the intimation, registered a case in Cr.No.190 of 1999 under section 174 Cr.P.C. and sent the same alongwith statement of the deceased to the Court. He placed the entire statement recorded from the injured in the General Diary of Police Station, before the Special Sub-Inspector P.W.20, attached to V.K.Puram Police station. 1.(f) P.W.13 Doctor conducted autopsy over the dead body and issued Ex.P.7 Post Mortem Certificate with an opinion that the deceased would appear to have died of infected burns. He found the following: "APPEARANCES FOUND AT THE POSTMORTEM: Moderately nourished body of a female, finger and toe nails blue in colour. Infected burns seen on head, entire face, neck front and back, entire chest including both breasts, upper part of abdomen, both upper limbs front and back, upper part of back on both sides both gluteal region, both lower limbs front and back including soles of feet.(lower part of abdomen, external genitalia, low back on both sides are free of burns) The base of the burnt area red in colour and partly covered with pus material. Degloving of skin of both hands noted. Surgical cutdown seen on the inner aspect of left ankle. Singeing of scalp hair, eyebrows, eyelashes and axillary hair noted." 1.(g) After the receipt of records in Cr.No.190 of 1999, P.W.20 proceeded to Tirunelveli Medical College Hospital on 13.5.1999 at 9.00 a.m. and held inquest over the corpse of Murugammal in the presence of Panchayatdars and prepared Inquest Report Ex.P.7. He came to the scene of occurrence and prepared Ex.P.2 Observation Mahazar and drew Ex.P.11 Rough Sketch. He examined the witnesses and recorded their statements. He sent Ex.P.12 alteration report to the Judicial Magistrate Court, intimating the alteration of section from 174 Cr.P.C. to 306 I.P.C. The Inspector of Police P.W.21 got the case file and conducted further investigation. He examined witnesses and recorded their statements. He examined the witnesses and recorded their statements. He sent Ex.P.12 alteration report to the Judicial Magistrate Court, intimating the alteration of section from 174 Cr.P.C. to 306 I.P.C. The Inspector of Police P.W.21 got the case file and conducted further investigation. He examined witnesses and recorded their statements. On completion of investigation, he laid charge sheet against both the accused under Section 306, 294(b) and 323 r/w 34 I.P.C. 1.(h) After prosecution evidence was over, the accused were questioned by the trial judge under Section 313 Cr.P.C. as to the incriminating materials available against them in the prosecution evidence. They denied complicity in the offence. They have not examined any witness nor marked any document. The learned Assistant Sessions Judge, Ambasamudram, found both the accused guilty under Section 306 I.P.C. and imposed R.I. for 7 years each and imposed fine of Rs.5,000/-each in default to undergo R.I. for one year. The first accused was also found guilty under Section 294(b) I.P.C. and was directed to pay a fine of Rs.500/-in default to undergo S.I. for 15 days. The 2nd accused was further found guilty under Section 323 I.P.C. and sentenced to undergo R.I. for 6 months and to pay a fine of Rs.500/- in default, to undergo R.I for 3 months. All the sentences were ordered to run concurrently. 2. Both the accused preferred appeal in C.A.No.53 of 2005 before the Additional Sessions Judge, Fast Track Court No.II, Tirunelveli. After hearing both the sides, the learned Fast Track Court No.II allowed the appeal by setting aside the conviction and sentence and acquitted both the accused of all charges, further directing refund of the fine amount to them. 3. Getting aggrieved at the judgment of acquittal, the father of the deceased P.W.2 preferred present revision before this Court. After hearing both sides and analysing all circumstances, this Court on 18.07.2007 reduced the sentence imposed on the first accused to R.I for six months, confirming the imposition of fine. Pending hearing of the revision the second accused committed suicide. 4. The first accused preferred Crl.A.No.286 of 2009 before the Supreme Court of India. On 12.02.2009, the Apex Court set aside the impugned judgment i.e., the judgment of this Court, remitted the matter to this Court to consider the effect of the delay in lodging the FIR and the delay in despatching the same to the concerned Court. 4. The first accused preferred Crl.A.No.286 of 2009 before the Supreme Court of India. On 12.02.2009, the Apex Court set aside the impugned judgment i.e., the judgment of this Court, remitted the matter to this Court to consider the effect of the delay in lodging the FIR and the delay in despatching the same to the concerned Court. This Court has also been directed to keep in view the scope and ambit of Section 401(3) Cr.P.C. while dealing with the matter. 5. Both the parties were heard by this Court. 6. The learned counsel for the first respondent would submit that the Appellate Court has failed to appreciate the circumstances at the time of recording the dying declaration by the Judicial Magistrate and that the injured was not fit to give statement and the doctor has not certified that the patient was conscious. It is his further contention that on 13.05.1999 only, the case was registered for the occurrence took place on 06.05.1999, that 40 days after lodging of F.I.R the same was received by the Court on 17.06.1999 at 5.45 p.m., that upto 13.05.1999 no witness was examined, that absence of names of accused in dying declaration has to be considered and that there is contradictions in both the statement recorded from the injured by the Head Constable and the dying declaration recorded by the Judicial Magistrate. It is also agitated that the Executive Magistrate as per Section 174 Cr.P.C. should have conducted the Inquest. But in this case, police personnel have held the Inquest. 7. It is glaring on the face of the records that FIR was not registered immediately on receipt of intimation by V.K.Puram Police Station. P.W.19 Head Constable from V.K.Puram Police station rushed to Medical College Hospital, Tirunelveli, got the statement Ex.P.1 recorded from the injured, proceeded to V.K.Purampolice station and recorded the intimation in the General Diary maintained in the police station. He miserably failed to take steps to lodge FIR. He has stated that he placed Ex.P.1 and General Diary before the Special Sub-Inspector of Police P.W.20. Even the said Special Sub-Inspector of Police did not take any care in the matter of lodging of F.I.R. After 6 days only, on 13.05.1999, F.I.R. was lodged. In this context, the superior officials have not taken any steps against P.W.19 and P.W.20 for their failure to lodge F.I.R immediately. 8. Even the said Special Sub-Inspector of Police did not take any care in the matter of lodging of F.I.R. After 6 days only, on 13.05.1999, F.I.R. was lodged. In this context, the superior officials have not taken any steps against P.W.19 and P.W.20 for their failure to lodge F.I.R immediately. 8. Another disturbing feature in this case is, receipt of F.I.R. by the Judicial Magistrate, Ambasamudram on 17.06.1999, nearly after 40 days from the occurrence date. The proper persons responsible to explain the delay are P.W.19-Head Constable, P.W.20-Special Sub-Inspector of Police and the Investigating Officer-P.W.21, who were all working in V.K.Puram Police Station. None of them has come forward to explain the delay. 9. While the delay in lodging F.I.R. and the delay in receipt of F.I.R. by the Court is another circumstance borne out by records is fatal to the case as per defence side. Even though FIR was received by the Court on 17.06.1999, immediately after the occurrence, the injured was examined by the Judicial Magistrate and dying declaration was recorded from the injured. Ex.P.1 contains detailed account of the incident as collected by the prosecution as if it was stated by the injured at 8.45 a.m. on 6.5.1999, whereas at 12.50 p.m. on the same day in the dying declaration, the injured has given a brief account of the incident as mentioned before. She has not mentioned about the details and particulars of the accused. She has only stated in the dying declaration that the parents of the boy who are residing in the opposite house came, stating that she rang up to the boy and they also attempted to assault her parents and hence she poured kerosene and set her afire. She has also stated that she does not know the name of the boy. 10. It is true that there are remarkable contradictions between Ex.P.1 and Ex.P.6. Ex.P.1 may loss its evidentiary value on account of its delayed receipt by the Judicial Magistrate. 11. The Court cannot ignore the importance of dying declaration in this case. Merely because there are contradictions between Ex.P.1 and Ex.P.6, the Court cannot pounce upon a conclusion that the prosecution case is unbelievable. The Court has to apply its mind to the circumstance with reference to the events with minute details which led to the dying declaration. 11. The Court cannot ignore the importance of dying declaration in this case. Merely because there are contradictions between Ex.P.1 and Ex.P.6, the Court cannot pounce upon a conclusion that the prosecution case is unbelievable. The Court has to apply its mind to the circumstance with reference to the events with minute details which led to the dying declaration. In other words, the Court has to look upon the evidence which would indicate the events which took place after the occurrence, at the time of taking to the injured to the hospital, after she was admitted to the hospital and afterwards when she gave dying declaration. No doubt, there are oral evidence on record which show the circumstance surrounding the recording of dying declaration. But there are certain obscure areas which have not been brought on record with reference to the affairs which occurred before and at the time of recording of dying declaration. To put it otherwise, when the dying declaration also came to existence during relevant point of time involving the first accused in the incident, whether the court can treat it as an information to the police with reference to the occurrence. 12. In this context, the Court has to find answer for two important queries. One is, it has to ascertain and verify whether the declarant was specific about both the accused in her statement. Particularly speaking, whether she intended to involve both the accused in the matter of abetment to commit suicide. The oral evidence from the other prosecution witnesses would indicate that both the accused came to the house of Murugammal hurled abusive language and obscene words touching the moral character of Murugammal. However, this Court is of the opinion that the trial Court might have however gone deep into the circumstances where the declarant has made the statement with an intention to say about the accused. She has not mentioned the names of the accused in her declaration. She has stated that the parents of the boy who are residing in the opposite house came to her house and indulged in mudslinging. But the oral evidence of prosecution witnesses are otherwise. The have stated that both the accused went to her house. The declarant has not stated about the presence of the father of the second accused and the second accused. But the oral evidence of prosecution witnesses are otherwise. The have stated that both the accused went to her house. The declarant has not stated about the presence of the father of the second accused and the second accused. Whether the contradictions are sufficient to reach a conclusion that both Ex.P.1 and Ex.P.6 are not true, is another question to be answered. 13. The next point to be considered by the Court is that even though FIR had reached the Court after a long time i.e., after 40 days, prompt steps had been taken by the hospital authorities for bringing the Judicial Magistrate to the infirmary to record dying declaration at the earliest possible opportunity and hence whether reliance can be placed upon that declaration since it came out from the mouth of the declarant at the point of death. Another notable aspect is that the dying declaration has been recorded at 12.50 p.m. on 6.5.1999. The occurrence took place at 6.00 a.m. on the same day. Firstly, she was taken to the Government Hospital, Ambasamudram, there she was accorded first aid and thereafter she was removed to Tirunelveli Medical College Hospital, where the Judicial Magistrate was brought, who recorded the dying declaration. The Court has also to bear in mind that the law was not set in motion by the dying declaration. It was retained by the judicial magistrate after recording and sent to the Judicial Magistrate Court concerned directly by him as per procedure and hence, it is to be seen whether dying declaration could be treated to be a corroborative piece of evidence. In case, if the court places reliance upon the versions in the FIR, the contents of FIR should be established by the oral accounts of the first informant, eye witnesses and other witnesses who are closely associated with the occurrence. If the court is able to get answers to the above said two larger questions then it could get a clear picture of the occurrence and of the individuals who are actors of crime as per the provisions of law. 14. The next point which assumes significance in this case is the findings of the appellate court for acquitting the accused. 14. The next point which assumes significance in this case is the findings of the appellate court for acquitting the accused. The trial Court has placed much reliance upon the dying declaration, whereas the appellate court suspects it, adducing reason of lack of appropriate medical certificate as regards the mental fitness of declarant to give dying declaration. In paragraphs 31 of the appellate Court judgment it is mentioned that there was no medical certificate to the effect that the declarant was mentally fit to give the dying declaration and it is one among the reasons for laying suspicion over the prosecution case. But the doctor P.W.12 has made a certificate after recording of dying declaration as under:- "6.5.99 Tamil 15. It is the view taken by the Appellate Court Judge that the prosecution has failed to establish that the declarant was mentally fit, though she was physically fit to give the dying declaration. It is discussed in the trial court judgment that the deceased gave statements to both the Head Constable and Judicial Magistrate and the doctor had certified the fitness of the declarant to give the dying declaration at the time of its recording by the Judicial Magistrate, that the Judicial Magistrate put questions, got satisfied himself and then he proceeded to record the statement and there under, the doctor has given the certificate and hence the dying declaration is acceptable evidence. 16. The court has to follow the principles laid down by the Honourable Supreme Court in the matter of placing reliance upon a dying declaration. The law has been settled by the Constitution Bench of the Honourable Supreme Court in a decision reported in 2002 (6) SCC 710 [Laxman v. State of Maharastra] in which the follow is the operative portion:- "4. ............ In Paparambaka Rosamma v. State of A.P. [1999 SCC (Cri.) 1361] the dying declaration in question had been recorded by a Judicial Magistrate and the Magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. The doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the Court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the Court had also found serious lacunae and ultimately did not accept the dying declaration recorded by the Magistrate. In the latter decision of this Court in Koli Chunilal Savji v. State of Gujarat [2000 SCC (Cri.) 432] it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The Court relied upon the earlier decision an in Ravi Chander v. State of Punjab [1998 SCC (Cri.) 1004] wherein it had been observed that for not examining by the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise. 5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab [1999 SCC (Cri.) 1130] wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P.[1999 SCC (cri.) 1361] (at SCC p. 701, para 8) to the effect that “in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration” has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P.[1999 SCC (cri.) 1361] must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat[2000 SCC (Cri) 432]" 17. In the case on hand, the Judicial Magistrate who is an uninterested person put questions to the injured got himself satisfied with both the mental and physical conditions and then proceeded to record her statement. He has also obtained the medical certificate from the doctor to the effect that she was mentally and physically fit to give dying declaration at the foot of the declaration. As per the above settled law, a person who records dying declaration must satisfy himself with the declarant's mental and physical fitness and when it is shown that he is a disinterested person, then there is no impediment for the Court to place reliance upon the evidence emerging from dying declaration. The Supreme Court has also observed that for non-examining the doctor, the dying declaration recorded by the Executive Magistrate and the declaration orally made need not be doubted. The Supreme Court has also observed that for non-examining the doctor, the dying declaration recorded by the Executive Magistrate and the declaration orally made need not be doubted. Hence, even if the doctor was not examined as to his certificate regarding physical and mental fitness to the injured, it would not in no way hamper the court's decision to accept such evidence. 18. As evident from Ex.P.4 intimation given by Doctor P.W.11 to the police at the time of admission, the injured sustained 100% of burns. At the time of recording Ex.P.1 complaint from her, the constable did not get certificate from the duty doctor. It is not the case of the prosecution that there was no doctor in the FS ward. In Ex.P.3 wound certificate which was recorded at 7.20 a.m., by the doctor P.W.10 it is stated that the patient was conscious. At 6.00 a.m., occurrence took place and about 7.20 a.m. injured was brought to the Government Hospital, Ambasamudram. Immediately she was rushed to the Tirunelveli hospital where she was admitted in FS Ward by P.W.11 doctor. It is definite that at the time of admission to the hospital, the injured was suffering from 100% burns. Though it is stated in Ex.P.3 that she was conscious, the doctor who recorded Ex.P.11 says that even though she was conscious, since she suffered dehydration, the blood pressure and pulse were not regular and there was collection of fluid in both of her lungs (pleural effusion). In this context, we have to see whether she could have given Ex.P.1 at 8.45 a.m. to the constable P.W.15. Ex.P.1 complaint is full of particulars with reference to the place, date and time of occurrence, the names of the persons involved in the offence and the alleged act of 2nd accused, etc., But they are not found in the Dying Declaration recorded by the Judicial Magistrate at 12.50 p.m. on the same day. It is argued that since the names of the accused have not been mentioned in the dying declaration, it cannot be believed. 19. It is argued that since the names of the accused have not been mentioned in the dying declaration, it cannot be believed. 19. The learned counsel for the petitioner placed reliance upon a decision of the Supreme Court in AIR 1972 SC 1174 [Ghurphekan and others v. The State of U.P.] in which it is held that even if a dying declaration suffers from two weaknesses viz., non mentioning of the name of person involved in the offence and it did not account for the injuries on accused, the dying statement could not be ignored or discarded. Hence, merely because the name of certain person is not available in the dying declaration it cannot be rejected on that score. 20. The dying declaration does not refer the presence of the second accused in the scene of occurrence and his alleged throttling the neck of P.W.2 by means of a towel. But in Ex.P.1 complaint, the names of the first accused and second accused and alleged act of A2 have been stated. 21. Another disturbing feature is as regards thumb impression of the injured in Ex.P.1. Her thumb impression in Ex.P.1 is not clear. It is smudged, while in dying declaration, her thumb impression appears with clarity. One could not say that in Ex.P.1 bears thumb impression of a person. It appears just like a smear of blue ink. Even though it is mentioned therein that it is LTI of Murugammal and though it is stated by P.W.1, the witness to Ex.P.1, that Murugammal put her thumb impression, it is not earning the confidence of the Court. This Court is of the considered view that the injured could not have been the author of Ex.P.1. 22. As adverted to supra, dying declaration was not seen by anybody else, particularly by the police personnel. Admittedly, it is not the document which set the law in motion. It is only Ex.P.1 which set the law in motion. When Ex.P.1 is bristled with infirmities and when the Court does not place reliance upon it, then no question of fixing responsibility on the accused by the police would arise. The delay of 40 days for the FIR in reaching the Court raises strong suspicion which has not been cleared by the prosecution. 23. When Ex.P.1 is bristled with infirmities and when the Court does not place reliance upon it, then no question of fixing responsibility on the accused by the police would arise. The delay of 40 days for the FIR in reaching the Court raises strong suspicion which has not been cleared by the prosecution. 23. Improbability in bringing about Ex.P.1 coupled with its delay in receipt by the Court would definitely show that there would be no justification in placing reliance upon Ex.P.1. 24. The learned counsel for the petitioner placed reliance upon a Division Bench decision of this Court reported in 2010 (2) M.L.J. (Cri.) 1073 [Thangaraj v. Inspector of Police, Omalur Police station ] wherein it is held that when the dying declaration is an acceptable document in the eye of law. The evidentiary value attached to it cannot be suspected. Therefore, when the dying declaration was recorded by the Judicial Magistrate, when the deceased was conscious oriented and the same was certified by a medical person, no doubt could be cast upon such a document to sustain conviction. 25. In2004 M.L.J. 637 [Tmt.K.Sulochana v. Sekar alias Gunasekar and another] it is held that when the doctor has certified that the declarant was conscious, it is wrong on the part of the Court to reject the same. In 2005 M.L.J. (Crl.) 62 [Palanivelu and others v. State thro' Inspector of Police, Thirukkovilur Police Station], it is observed by this Court that since the doctor has certified as to the fit state of mind and conscious mental state of deceased , it is relevant to note that deceased survived for one day and died only on the next day, there is every possibility of making statement in conscious state. 26. The learned counsel for the respondent placed reliance upon a decision of the Supreme Court in 2010 AIR(SC) 408 [Sharda v. State of Rajasthan]. In the said case there was three dying declarations and the last dying declaration marked as Ex.P.18 was not believed by the Court. Following is the observation of the Supreme Court in the regard. "30. Cumulative effect of the aforesaid lead to an irresistible conclusion that Ex.P.18 is not sufficient to hold the appellant guilty of commission of offence under Section 302 of the IPC. It neither inspires confidence nor is wholly trustworthy to sustain the conviction of the appellant. Following is the observation of the Supreme Court in the regard. "30. Cumulative effect of the aforesaid lead to an irresistible conclusion that Ex.P.18 is not sufficient to hold the appellant guilty of commission of offence under Section 302 of the IPC. It neither inspires confidence nor is wholly trustworthy to sustain the conviction of the appellant. It was an after-thought and has been got prepared after the deceased appears to have been tutored to say so by her parents. In the light of this, it has to be completely ignored which we accordingly do so." 27. As far as the present case is concerned, there are two dying declarations. One is Ex.P.1 and another is Ex.P.6. Since there was world of difference between both the documents, suspicion has arisen as to the complicity of both the accused in the offence. In the dying declaration, she has stated that she does not know the name of the boy. When it is not established that Ex.P.1 is the first information to the police as to the occurrence, it is not possible to conclude that the accused are perpetrators of crime. As observed in the above said decision in Sharda's case, the dying declaration in Ex.P.6 could have been the outcome of the afterthought tutoring of the injured by her close relatives. Following the above said decision, the dying declaration has to be ignored on this ground. 28. As regards the applicability of Section 401(3) Cr.P.C. is concerned, the High Court's revisional power is much more restricted . Section 401 (3) Cr.P.C. reads as follows:- "401(3). Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction." 29. In this case, the State has not preferred any appeal against the acquittal. But P.W.2, the father of the deceased has preferred revision. 30. As to the maintainability of the revision against the acquittal filed by a private person, it is the dictum formulated by the Honourable Supreme Court that except exceptional circumstances, there shall be no direction for re-trial. The scope on this point has been clarified and explained by the Supreme Court in AIR 1968 SC 707 [Mahendra Pratap Singh v. Sarju Singh]. Their Lordships have referred and following three earlier decisions of the Supreme Court and held as follows: 8. The scope on this point has been clarified and explained by the Supreme Court in AIR 1968 SC 707 [Mahendra Pratap Singh v. Sarju Singh]. Their Lordships have referred and following three earlier decisions of the Supreme Court and held as follows: 8. The practice on the subject has been stated by this Court on more than one occasion. In D. Stephens v. Nosibolla 1951 SCR 254 = ( AIR 1951 SC 196 ) only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that 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. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misapprehensions of evidence. Again, in Logendranath Jha v. Shri Polailal Biswas, 1951 SCR 676 = ( AIR 1951 SC 316 ) this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is “perverse” or “lacking in true correct perspective”. It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to reweigh the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy v. State of Andhra Pradesh, 1963 (3) SCR 412 = ( AIR 1962 SC 1788 ) it is pointed out that an interference in revision with an order of acquittal can only take place 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. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. As stated, not one of these points which have been laid down by this Court was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned Judge has reweighed the evidence from his own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them." 31. In AIR 1986 SC 1721 [Bansi Lal and Others v. Laxman Singh] the Apex Court has held that mere circumstance that a finding of fact recorded by the trial Court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a retrial of the accused. The Supreme Court has also referred and followed the following decision in 1974 (1) SCR 130 : AIR 1973 SC 2145 [Akalu Ahir v. Ramdeo Ram] wherein it has been held as follows:- “The unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given this right only when the criminal prosecution was instituted on his complaint and then also subject to special leave by the High Court." " Considering the problem facing the court in this case in the background of this scheme, the High Court when approached by a private party for exercising its power of revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. It is not expected to act under Sections 435/439 CrPC as if it is a hearing on appeal in spite of the wide language under Section 435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity of any proceeding and also in spite of the fact that under Section 439 it can exercise inter alia the power conferred on a court of appeal under Section 423 CrPC." The High Court is statutorily prohibited from converting an acquittal into conviction on revision. In (1975) 2 SCR 743 [Satyendra Nath Dutta v. Ram Narain] the above said principles have been reiterated. The powers of the High Court to direct retrial have been stated in the above said judgment . 32. In AIR 1973 SC 2145 [Akalu Ahir and others v. Ramdeo Ram], the Supreme Court has held as follows: "10. No doubt, the appraisal of evidence by the trial Judge in the case in hand is not perfect or free from flaw and a Court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to reappraise the evidence for itself as if it is acting as a Court of appeal and then order a re-trial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village Mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court." 33. The High Court is precluded from re-appraising the evidence on record for itself as if it is acting as a Court of appeal and then order a re-trial on a revision filed by a private party. It is also held that normally re-trial should not be ordered unless there is some infirmity rendering trial defective. Here, there is no irregularity nor defect in the conduct of trial. 34. In view of the above said illuminating judicial pronouncements on the subject, it is held that the acquittal by the Court below cannot be set aside and no conviction can be recorded by the revisional court normally. There shall be no direction for re-trial unless there had been any defective conduct of trial. 34. In view of the above said illuminating judicial pronouncements on the subject, it is held that the acquittal by the Court below cannot be set aside and no conviction can be recorded by the revisional court normally. There shall be no direction for re-trial unless there had been any defective conduct of trial. There is no power for High Court to re-appraise the evidence in a revision filed by private party as if it is sitting in appeal, when the Government has not preferred any appeal or revision from the acquittal. Even if there is misappreciation of evidence and wrong view of law on the part of the Court below, the High Court is not to interfere in a revision. 35. In view of the above, revision by P.W.2 is not maintainable. The acquittal recorded by the Appellate Court cannot be set aside and no conviction be recorded. The law does not permit passing of direction for re-trial in the available attending circumstances of the case. No grounds have been made out to interfere with the judgment of the appellate court. It is confirmed. Hence, the revision has to fail, which suffers dismissal. In the result, the Criminal Revision Case is dismissed.