JUDGMENT : A.S. SUPEHIA, J. 1. The present revision application filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short “the Code”) emanates from the judgment and order passed by the Additional Sessions Judge (Fast Track Court), District Kachchh against the order of acquittal passed in Sessions Case No. 13 of 2004. 2. The present applicant is the original complainant, who had filed complaint on 20.10.2003 at 13:30 hours against the opponent nos. 2 to 16 (original accused) for the offence punishable under Sections 143, 147, 148, 149, 120-B, 447, 452, 323, 324, 427, 342, 506(2), 302 and 114 of the Indian Penal Code, 1860 and Section 135 of the Gujarat Police Act. 3. The investigation was handled by P.S.I. R.K. Zala. After completion of the investigation, he filed a report under Section 173 of the Code before the concerned court of Judicial Magistrate, First Class, who committed the case before the court of Sessions on 17.01.2004, which was registered at Sessions Court (Fast Track Court No. 4), Kachchh at Bhuj being Sessions Case No. 13 of 2004. After examining 20 witnesses and 43 documentary evidence, the trial court acquitted the accused for the aforesaid offence by giving benefit of doubt. 4. Learned advocate Mr. Viren G. Dave appearing for the applicant has submitted that the trial court has not considered the evidence of eye-witness Dipakgar M. Gosai (PW-5), who has examined at Exh.38 in true perspective and on the basis of presumption the same is discarded by drawing inference that his mother deceased Narmadaben Gosai had died due to injury which was sustained when she fell down while going to answer nature’s call. It is submitted that the trial court has also not considered the medical evidence and has discarded the same on the ground that the injuries could not have been received by the Pickaxe. It is submitted that the trial court has totally ignored the evidence of the eye-witness and has given undue weightage to the defence version acquitting the accused by giving benefit of doubt. It is also submitted by him that the testimonies of the injured eye-witness Tulshi J. Vanand (PW-16), who has been examined at Exh.63, is also ignored as he has received various injuries in the incident as recorded by the trial court and hence, the impugned judgment and order is required to be set aside. 5. It is also submitted by him that the testimonies of the injured eye-witness Tulshi J. Vanand (PW-16), who has been examined at Exh.63, is also ignored as he has received various injuries in the incident as recorded by the trial court and hence, the impugned judgment and order is required to be set aside. 5. Learned APP Ms. Shruti Pathak while adopting the arguments advanced by the learned advocate for the applicant has submitted that the trial court has wrongly given weightage to the lapse of period of lodging the FIR between 18:15 to 20:30. She has invited the attention of this Court to the testimony of the eye-witness Dipakgar M. Gosai (PW-5) in support of her submissions and submitted that except some minor contradictions, the testimony of the eye-witness remains intact and the same could not have been discarded by the trial court. She has further invited the attention of this Court to the testimony of Dr. R.R. Buchiya (PW-1), who has been examined at Exh.21 and submitted that in fact the doctor has opined that the fatal injuries could have been caused by a sharp edged weapon like Pickaxe. She has invited the attention to the P.M. Note at Exh.22 and submitted that there were other injuries, which were inflicted on the head of the deceased, whereas the testimony of the eye-witness stated that his mother deceased Narmadaben Gosai was inflicted the injury on the head by the handle of the spade. 6. Learned APP Ms. Pathak while placing reliance on the testimony of Tulshi J. Vanand (PW-16), who is examined at Exh.63, has submitted that he has supported the case of the eye-witness and he was also present at the time of incident. Thus, she has submitted that the trial court has totally ignored the testimony of the eye-witness Tulshi J. Vanand while giving benefit of doubt to the accused and hence, this Court may order retrial on the material irregularity committed by the trial court. In support of her submissions, she has placed reliance on the judgment of the Supreme Court in the case of Solanki Chimanbhai Ukabhai vs. State of Gujarat, AIR 1983 SC 484 and submitted that the medical evidence can only be said to be corroborative and the same can only be used for ascertaining the manner of inflicting injuries. In support of her submissions, she has placed reliance on the judgment of the Supreme Court in the case of Solanki Chimanbhai Ukabhai vs. State of Gujarat, AIR 1983 SC 484 and submitted that the medical evidence can only be said to be corroborative and the same can only be used for ascertaining the manner of inflicting injuries. She has submitted that the testimony of the eye-witness cannot be discarded on the ground of the alleged inconsistency between it and the medical evidence and hence, in the present case, the testimony of the eye-witness could not have been discarded by the trial court. Thus, she has submitted that the present revision application may not be entertained. 7. A fortiori, learned advocate Mr. S.K. Patel appearing for the respondent nos. 2 to 14 (original accused) has submitted that the prosecution has miserably failed in proving the offence and while exercising the powers of revision under Section 401 of the Code of Criminal Procedure, 1973, this Court may not convert the finding of acquittal into conviction until and unless there is convincing evidence or it is found that the findings of the trial court are absolutely illegal and perverse. He has submitted that the entire prosecution case arises from the FIR lodged by Dipakgar M. Gosai (PW-5), who has lodged the complaint with an oblique motive since there was a civil dispute between the accused and the family of the complainant. He has submitted that the evidence of the two eye-witness Dipakgar M. Gosai (PW-5) and Tulshi J. Vanand (PW-16) are rightly discarded by the trial court since the same suffer from major contradiction and omissions, which are proved by the Investigating Officer. He has submitted that as per the testimony of the eye-witnesses Dipakgar M. Gosai (PW-5), who has been examined at Exh.38, the incident had occurred on 19.10.2003 between 8:00 to 9:00 o'clock and he has lodged the FIR at Nakhatrana Police Station, which is about 30 kilometers away from village Mangwana. It is submitted that the complainant neither approached the police chowki nor the Public Health Center of the village with regard to the occurrence of the incident, but travelled 30 kilometers away in a bus and hence, such conduct of the complainant itself raises doubt. It is submitted that the complainant neither approached the police chowki nor the Public Health Center of the village with regard to the occurrence of the incident, but travelled 30 kilometers away in a bus and hence, such conduct of the complainant itself raises doubt. He has further submitted that in fact the panchas have not supported the case of the prosecution and no blood stains are found on the weapon-Pickaxe, alleged to have been used on the deceased. He has submitted that the deposition of both the eye-witnesses Dipakgar M. Gosai (PW-5) and Tulshi J. Vanand (PW-16) are absolutely improbable, unnatural and the same cannot be relied for arriving at the conviction of the accused for the alleged offence and the trial court has precisely recorded the acquittal. 8. Learned advocate Mr. Patel has invited the attention of this Court to the testimony of the Dr. R.R. Buchiya (PW-1) and submitted that the doctor has also not opined that the injury is caused by a sharp edged weapon or the alleged weapon, which is used in the offence i.e. Pickaxe, however, he has opined that the injury could have been sustained by falling on the ground on the sharp edged stone. He has further submitted that as per the deposition of the doctor, the incident had occurred between 2.00 A.M to 6.00 A.M in the morning at 20.10.2003. He has submitted that even the medical evidence does not implicate the accused in the offence and hence, no interference is called for in the judgment and order of the Sessions Court acquitting the respondents from the offence. 9. This Court has heard the learned advocates appearing for the respective parties at length. The evidence, which has emerged from the record and proceedings, is also perused by this Court alongwith testimonies of the relevant witnesses. It is the case of the prosecution that on 19.10.2003 between 20.30 to 21.00 the accused have conjointly by entering into conspiracy assaulted the complainant and his mother with the help of sticks, shovel pickaxe and thereby the accused have caused murder of the mother of the complainant namely Narmadaben Mohanagar Gosai. 10. The entire case of the prosecution hinges on the testimonies of the two eye-witnesses Dipakgar M. Gosai (PW-5), who is the complainant and the son of the deceased Narmadaben Gosai, who has been examined at Exh.38 and Tulshi J. Vanand (PW-16). 10. The entire case of the prosecution hinges on the testimonies of the two eye-witnesses Dipakgar M. Gosai (PW-5), who is the complainant and the son of the deceased Narmadaben Gosai, who has been examined at Exh.38 and Tulshi J. Vanand (PW-16). A close scrutiny of the evidence reveals that as per the examination-in-chief of P.W5, the incident has occurred between 8:00 to 9:00 hours in the night when he was sitting alongwith his mother and at that time 15 persons had attacked them with weapons like Pickaxe, Spade, sticks etc and attacked them. It is stated by him that the accused no. 11 Manilal Mavji Pokar demolished the newly constructed wall with the Pickaxe which was not having the handle, and thereafter, gave a blow of the Pickaxe(without handle) on her chest, Ratilal Mavji Pokar i.e. the accused no. 1 gave blow of the handle of Spade on her head and Purshottam Jeram Thakkar, who is accused no. 10, gave two blows on the feet of his mother and at that time Tulshi J. Vanand (PW-16) intervened and the accused had also started assaulting them. It is deposed by him that due to assault Tulshi J. Vanand (PW-16) had sustained injuries, which resulted in loosing of blood. It is further stated that after the incident, his father returned home at 10 o'clock and thereafter, he went to catch a luxury bus for going to Nakhatrana Police Station and reached in the morning at around 8:00 or 8:50 hours and at that time PSI R.K. Zala had registered the FIR. After registering the FIR, PSI R.K. Zala came with him with the Jeep at Mangwana village. From the testimony and cross-examination of PW-5, it is revealed that there was a dispute with regard to the passage from his house, which was used by the accused and for that purpose, a civil suit was also instituted in the competent court. The trial court has disbelieved the version of the PW-5, the complainant that the accused no. 11 demolished the wall with the handless pickaxe, and thereafter inflicted the injury with the same on the chest of the deceased. The trial court has disbelieved the version of the PW-5, the complainant that the accused no. 11 demolished the wall with the handless pickaxe, and thereafter inflicted the injury with the same on the chest of the deceased. In the cross-examination, it is elicited that he went unconscious when he was attacked and after he regained consciousness, he saw his mother was lying in a blood stained condition and at that time he saw that all the 15 accused armed with the weapons and thereafter, he saw Tulshi J. Vanand (PW-16) was also attacked by them. Thus, it is highly doubtful that the complainant can be said to be an actual eye-witness to the incident. From the cross-examination of the complainant it is also established that he had reached the Nakhatrana police station in the morning at 8.15, whereas the evidence reveals that the FIR has been lodged at 13.30 hours and the evidence further reveals that the police have reached the place of incident in the morning between 9 to 10 hours. Thus, the deposition of the complainant appears to be contradictory and does not reconcile with the facts. The medical evidence does not reveal any injury on the feet of the deceased. Thus, the overall deposition of the eye-witness, PW-5 does not inspire confidence and the same is tainted with exaggeration. It is also come on record that in village Mangwana there is a police chowki and also a Public Health Center, however it is surprising that the complainant neither thought it fit to visit the Public Health Center with regard to the injuries nor went to the police chowki informing about the incident, but he chose to catch the bus and travelled around 30 kilometers for informing the police. In the entire deposition, no satisfactory explanation is coming for such behaviour of the complainant. It is also emerging that Tulshi J. Vanand (PW-16) and the present complainant had in fact taken the medical aid on the next night. Thus, as per his deposition, though the complainant and Tulshi J. Vanand (PW-16) suffered serious injuries, they did not thought it fit to take the medical aid immediately from the Public Health Center located in the village but waited till the next night and took the medical aid in the night at 11.00 hours. The PW-16 has narrated the same version as deposed by the complainant. The PW-16 has narrated the same version as deposed by the complainant. The Investigating Officer, Mr. R.K. Zala (PW-20), who has been examined at Exh.74, in his cross-examination, has stated that Tulshi J. Vanand (PW-16) has not stated that the accused no. 11 Manilal Mavji Pokar hit the deceased with Pickaxe or she was hit by Manilal Mavji Pokar in the left side of the deceased or Ramshibhai had hit the deceased Narmadaben Gosai on her head with the Spade. The testimony by the Investigating Officer reveals that there are major contradictions and omissions in the deposition of Tulshi J. Vanand (PW-16). Thus, Tulshi J. Vanand (PW-16) has not established himself as a true and reliable witness. 11. The recovery panchnama has not been proved as the panch witnesses have turned hostile and have not supported the prosecution. There are no bloodstains found on the Pickaxe as per the FSL report. 12. Dr. R.R. Buchiya (PW-1), who has been examined at Exh.21, in his cross-examination, while referring to the injury, which was inflicted on the deceased, has stated that such injury could have been caused by a stone, if a woman is pushed to the ground. In his deposition he has stated that probably the death of the deceased has occurred on 20.10.2003 between 2:00 to 6:00 o'clock in the morning. The post mortem report reveals that there were injuries on the head of the deceased and injuries on the left side of the chest having 4 inch wounds between the ribs and the lungs. The timings of the death, as per the postmortem report and the evidence of the doctor do not reconcile with the incident as narrated by the complainant. The other witnesses, who were examined, are also not found to be reliable and they are not the eye-witnesses. Thus, the entire case of the prosecution hinges on the two eye-witnesses, who have not established themselves as reliable witnesses and their evidence is tainted with improbability and appears to be illogical. 13. The other witnesses, who were examined, are also not found to be reliable and they are not the eye-witnesses. Thus, the entire case of the prosecution hinges on the two eye-witnesses, who have not established themselves as reliable witnesses and their evidence is tainted with improbability and appears to be illogical. 13. At this stage, it would be apposite to refer to the observations made by the Supreme Court in the case of Vimal Singh vs. Khuman Singh and Another, (1998) 7 SCC 223 , which read as under: “86 The legal position as to the powers of the High Court in revision in the matter of interference with the order of acquittal is no longer res-integra, as the law in this regard is very well settled. Suffice it to refer in this regard a decision of this Court in K. Chinnaswamy Reddy vs. State of Andhra Pradesh, AIR 1962 SC 1788 , wherein it was held, thus: “It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitation on the power of the High Court to set aside the finding of acquittal in revision and it is only in exceptional cases that this power should be exercised... Where the appeal Court wrongly ruled out evidence which was admissible, the High Court would not be justified in interfering with the order of acquittal in revision, so that the evidence may be reappraised - after taking into account the evidence which was wrongly ruled out as inadmissible. Where the appeal Court wrongly ruled out evidence which was admissible, the High Court would not be justified in interfering with the order of acquittal in revision, so that the evidence may be reappraised - after taking into account the evidence which was wrongly ruled out as inadmissible. But the High Court should confine itself only to the admissibility of the evidence and should not go further and appraise the evidence also.” “Para 7 - Coming to the ambit of power of High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial Court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial Court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial Court has no jurisdiction to try the case or where the trial Court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue have been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 of the Code mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. In fact, sub-section (3) of Section 401 of the Code forbids the High Court in converting the order of acquittal into one of conviction. The only course left to the High Court in such exceptional cases is to order retrial. In fact, sub-section (3) of Section 401 of the Code forbids the High Court in converting the order of acquittal into one of conviction. In view of the limitation on the revisional power of the High Court, the High Court in the present case committed manifest illegality in convicting the appellant under Section 304, Part-I and sentencing him to seven years' rigorous imprisonment after setting aside the order of acquittal.” 14. The Apex Court has held that it is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. It is further declared that the High Court, in exercise of its revisional power, can set aside an order of acquittal if it comes within the ambit of exceptional cases, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. 15. In the present case, looking to the evidence, which has emerged from the record, this Court is of the considered opinion that the same does not fall within the parameter of an exceptional case, which would demand a retrial. Hence, the present revision application fails. The same is dismissed. R&P shall be sent back to the concerned trial court forthwith.