Kulwinder Kaur vs State Of Punjab on 29 September, 2014

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Punjab-Haryana High Court

Kulwinder Kaur vs State Of Punjab on 29 September, 2014

This revision has been preferred belatedly. An application had been filed seeking condonation of delay of 384 days. The reason was that the revision petition had been returned with certain objection but the Clerk failed to collect the file and remove the objections. The file was then re-filed after 10 months. Again some objections were raised and the file was returned to file an application for condonation of delay.

The contention made on behalf of the petitioner is that the delay be condoned as the complainant had suffered a lot on account of delay which had occurred in refilling on account of fault of the Clerk of the counsel. It was urged that otherwise they had a good case on merits.

Prayer has been opposed by learned State counsel. REENA 2014.10.16 10:18 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 3341 of 2010(O&M) 2 Heard.

A party can not be made to suffer on account of fault of the Advocate. A liberal approach should be adopted where sufficient cause for delay is shown.

For the reasons mentioned in the application, same is allowed and delay of 384 days in filing the revision petition is condoned.

Crl. Revision No. 3341 of 2010

This revision is directed against the judgment dated 22.07.2009 passed by Additional Sessions Judge, Nawanshahr and judgment dated 07.03.2007 passed by Judicial Magistrate 1st Class Nawanshahr.

The brief facts were unfolded by Kulwinder Kaur wife of Amarjit Singh who lodged a complaint against her Jeth (brother-in- law) accusing him of theft and barging into her house and beating her and issuing threats which instilled fear in her.

The complainant had disclosed that there was property dispute between her husband Amarjit Singh and his brothers namely Paramjeet Singh and Sarabjit Singh(accused). Earlier the case under Section 307 IPC had been registered against Sarabjit Singh and his brother-in-laws. The allegations unfolded by the complainant were that on 17.10.1999 at about 1.30 p.m. her brother-in-law Sarabjit Singh came to their house and started abusing her and her husband and asked her to stop putting plaster on the walls else he would eliminate them. The complainant also mentioned that Sarabjit Singh had also taken their scooter which was parked at bus stand. A REENA 2014.10.16 10:18 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 3341 of 2010(O&M) 3 written complaint was given and the FIR was registered on 29.03.2000.

After the criminal was set in motion the accused was arrested and challan was presented under Section 452/506/411 IPC. The accused did not pleaded guilty and claimed trial.

The prosecution examined Balihar Singh PW-1 and Kulwinder Kaur PW-2 besides the official witnesses.

The plea of defence was one of denial and false implication.

The accused chose not to adduce any evidence.

The trial Court rejected the evidence and acquitted the accused. An appeal was preferred by the State. The Additional Sessions Judge dismissed the appeal on 22.07.2009.

I have heard the submissions made on behalf of both the sides.

It was urged that both the Courts below had wrongly rejected the testimony of Balihar Singh who was a neighbourer and had seen the accused coming out of the house soon after the incident. It was contended that recovery of the Scooter had been effected from the accused which gives support to the statement made by the official witnesses. It was contended that the accused had not only abused but had beaten up the complainant and the family was engaged in civil litigation. Reliance was placed upon Ravi Kumar vs. State of Punjab, 2005(2) RCR(Criminal) 72, Vithal Pundalik Zendge vs. State of Maharashtra, 2009(1) RCR (Criminal) 320, Lallu Manjhi and another vs. State of Jharkhand, REENA 2014.10.16 10:18 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 3341 of 2010(O&M) 4 AIR 2003 Supreme Court 854, Gurpreet Singh vs. Mohinder Pal Singh, AIR 2006 Supreme Court 191(1) and S. Sudershan Reddy and others vs. State of A.P., AIR 2006 Supreme Court 2716(1).

On the other hand counsel appearing for the respondent had canvassed that the judgment of acquittal should not be interfered solely on the ground that the judgment was perverse. It was urged that the statement of the neighbourer was hearsay and no complaint of theft had been lodged by the husband though the scooter had been lifted much earlier and the trial Court as well as the Appellate Court had given reasoned judgments as the prosecution had failed to bring home the charges and the allegations can not be unsettled.

Before proceedings any further, it is necessary to first notice the various judgments and the powers of the High Court to interfere in revision with order of acquittal, the scope of this power is circumscribed. In the case of K. Chinnaswamy Reddy vs. State of Andhra Pradesh and another, (1963) 3 SCR 412 the Supreme Court, while laying down the scope of the revisional jurisdiction of the High Court in respect of the orders of acquittal, held as follows:

(7) 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 in our opinion 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 REENA 2014.10.16 10:18 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 3341 of 2010(O&M) 5 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 direct method, of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal, in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision.

These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature ca properly be held to be cases of REENA 2014.10.16 10:18 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 3341 of 2010(O&M) 6 exceptional nature where the High Court can Justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the 'High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4).

The above would show that it is open to the High Court in exercise of its revisional jurisdiction 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 such jurisdiction should be exercised 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. The High Court shall not, however, covert itself into a Court of appeal, while exercising revisional jurisdiction.

In Ayodhya Dube and Ors. v. Ram Sumer Singh AIR 1981 SC 154, the Supreme Court has clarified that the instances mentioned by the Court in Chinnaswamy Reddy (supra), where the High Court would be justified in interfering with orders of acquittal, are illustrative and riot-exhaustive. The Supreme Court, in Ayodhya Dube (supra), also approved the High Court's view that when the trial Court misquotes evidence, when the judgment consist of faulty reasoning or lack of judicial approach throwing to the wind the accepted canons of appreciation of evidence, when the conclusions are reached against the weight of the overwhelming evidence on the record, interference in revision with orders of such acquittal is permissible and justified.

REENA

2014.10.16 10:18 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 3341 of 2010(O&M) 7

In Vimal Singh v. Khuman Singh and Anr., the Supreme Court has held thus, "9. Coming to the ambit of power of the 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 has 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 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 powers 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 law is, thus, well settled that in a revision against an REENA 2014.10.16 10:18 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 3341 of 2010(O&M) 8 order of acquittal the High Court shall not, ordinarily, in the absence of any legal infirmity, either in the procedure or in the conduct of trial, scrutinize the evidence or re-appreciate the evidence and it only as a limited jurisdiction. The High Court cannot constitute itself into an appellate court, which has the jurisdiction to enter into the question of fact as well as law and can convert an order of acquittal into one of the conviction.

Bearing in mind, as indicated hereinabove, the contours of the revisional jurisdiction of the High Court, while dealing with orders of acquittal, and also in the backdrop of the cautions, when we turn to the evidence on record, it is found that civil litigation was going on between the brothers relating to the property. The complainant had alleged that she was beaten up but there was no MLR. The allegations were made that Scooter had been stolen but the complainants' husband who is owner of the scooter failed to lodge the FIR. The statement of the complainant was not credible or trustworthy to record a conviction and rightly the Court below failed to act upon her testimony. It is true that it is not the quantity but the quality that is material and it a time honoured principle that evidence has to be weighed not counted. The trial Court had refused to act upon the statement made by the complainant who had judged all the factors and had rightly recorded acquittal. Statement of Balihar Singh who is said to be neighbourer was rightly rejected as his testimony did not inspire confidence.

There is no reason to differ with the view as finding of acquittal reached by the trial Court is constant with the evidence on REENA 2014.10.16 10:18 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 3341 of 2010(O&M) 9 record. As a result and for the reasons discussed above, the revision fails and the same is dismissed.

            September 29, 2014                             (ANITA CHAUDHRY)
            reena                                             JUDGE




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