K.V. Nath vs Raghunath Singh
1999 Latest Caselaw 804 Del

ORDER

M.S.A. Siddiqui, J.

1. This revision is directed against the judgment and order dated 16.4.1994 passed by Shri D.S. Sidhu, Additional Sessions Judge, Delhi whereby the learned Additional Sessions Judge while allowing the appeal filed by the respondents, set aside the order of conviction passed by the Metropolitan Magistrate, New Delhi.

2. In brief, the prosecution case was that the petitioner was in occupation of the premises bearing No. 36/1, Raghunath Building as a tenant of the respondent Raghunath. He was paying Rs. 100/- per month as rent for residential portion and Rs. 70/- per month as rent for a shop of the said building. On. 8.4.1981, at about 10.30. p.m. the respondents came to the spot with intent to dispossess the petitioner from the residential portion of the said building. As per prosecution case, while the respondent Raghunath engaged the petitioner in conversion, the remaining respondents entered the residential portion occupied by the petitioner and dispossessed him by throwing away his household goods therefrom. The petitioner reported the matter to the police but the police did not take any action. However, on 9.4.1981, the petitioner lodged a written report at the Police Station Vasant Bihar as a result whereof a case under Sections 4481.34 IPC was registered against the respondents. Apprehending their arrest, the respondents again came to the spot on 10.4.1981 at about 9 or 9.30 A.M. and on noticing the petitioner's household goods lying scattered in front of his residential portion, removed them in front of his shop. Thereafter, on a distress telephone call given by the petitioner, the police came to the spot, and started investigation. On completion of the investigation, the respondents were charge-sheeted under Sections 448/34 IPC. The respondents abjured their guilt and examined two witnesses (D.W. 1 and D.W. 2 ) in support of their defense.

3. The trial court after assessing the evidence on record came to the conclusion that the prosecution has proved its case under Sections 448/34 IPC and as such convicted the respondents under sections 448/34 IPC and sentenced to undergo rigorous imprisonment for six months. On appeal, the learned Additional Sessions Judge after reappraising the evidence set aside the order of conviction and sentence passed by the trial court and acquitted the respondents. The State did not file any appeal against the acquittal of the respondents herein. The petitioner, being aggrieved by the impugned order of the acquittal, has come up in revision before this court.

4. Assailing the validity of the impugned order, learned counsel for the petitioner contended that the finding of the learned Additional Sessions Judge discarding the prosecution evidence is totally perverse and has resulted in miscarriage of justice. Learned counsel for the respondents has raised a preliminary objection with regard to maintainability of the present revision at the instance of the petitioner, who is a private party. The issue raised by the learned counsel for the respondents is no longer res integra as the law in this regard is very well settled. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh & Anr., , :-

"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 covert the finding of acquittal into one of the 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 limitations 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. But the High Court should confine itself only to the admissibility of the evidence and should not go further and appraise the evidence also."

5. Learned counsel for the respondents has invited my attention to the provision of sub-Section (3) of Section 401 of the code of criminal procedure in support of his contention that this court cannot substitute an order of acquittal into one of conviction even if it is convinced that the respondents deserve conviction. Reliance was also sought to be placed on the decision of the Supreme Court in Vimal Singh Vs. Khuman Singh & Another, , which is an authority for the proposition that the interference of this court under Section 401 Cr. P.C. 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 when the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issuse has been overlooked. Thus, this court in exercise of its revisional powers can set aside an order of acquittal if it falls within the ambit of exceptional case enumerated above but it cannot convert an order of acquittal into an order of conviction as sub-section (3) of Section 401 of the code clearly prohibits this court in converting the order of acquittal into one of conviction. The only course left to this court in such exceptional case is to order re-trial or rehearing of the appeal as the case may be.

6. Bearing in mind the said principles, I have to examine whether the case in hand falls within the parameters which could enable this court to interfere with the order of acquittal passed by the learned Sessions Judge. In the instant case, the grounds that largely weighed with the learned Additional Sessions Judge for reversing the order of conviction of the respondents are as under:-

(i) that there is an unexplained delay of two days in lodging the FIR, which is fatal to the prosecution case;

(ii) that the prosecution witnesses Raju and Ganesh are interested witnesses and their evidence is also replete with discrepancies and embellishments and as such the learned Magistrate was not right in placing implicit reliance on their testimony;

(iii) that the story set up by the prosecution about the complainant's household goods lying scattered in front of his shop for two days appears to be highly improbable;

(iv) that the complainant has not produced any documentary evidence to prove the contract of tenancy between him and the respondent Raghunath;

(v) that the testimony of the complainant (P.W. 3) cannot be accepted without independent corroboration and no such corroboration was forthcoming in the case.

7. It is beyond the pale of controversy that the shop belonging to the respondent Reghunath was let out to the petitioner. The petitioner (P.W. 3) deposed that he was in occupation of the residential premises bearing No. 36/1, as a tenant of the respondent Raghunath at a monthly rent of Rs. 100/-. He also deposed that on 8.4.1981, the respondents came to his house; that while the respondent Raghunath engaged him in conversation, the remaining respondents entered his house and threw away his household goods therefrom and that after dispossessing him from the said house, the respondents went away. Prosecution witnesses Raju and Ganesh also swear to the same effect. Even Madan Singh (D.W. 1) has admitted in his cross-examination that the petitioner (P.W. 3) was in occupation of the said residential premises and thus this witness has lent material corroboration to the testimony of the petitioner (P.W. 3) and the prosecution witnesses Raju and Ganesh. It needs to be highlighted that both the defense witnesses (DW. 1 & DW. 2) have also admitted in their evidence that on the day in question they had seen the petitioner's household goods lying in front of the said house and on their enquiry they were told by the petitioner (P.W. 3) that he was shifting from the premises in question. The circumstance that the petitioner was in occupation of the premises in question coupled with the fact that on the day in question both the defense witnesses had seen the petitioner's household goods lying in front of the said premises amply corroborates the testimony of the petitioner (P.W. 3), Ganesh and Raju regarding the alleged incident.

8. It is pertinent to mention that nothing has been elicited in the cross-examination of Raju and Ganesh to show or suggest that they had any axe to grind against the respondents or intimately connected with the welfare of the petitioner (P.W. 3.) Surprisingly, the Learned Sessions Judge has stamped these witnesses as interested witnesses and rejected their testimony on imaginary grounds. On an assessment of the evidence on record, I am of the opinion, that the learned Magistrate was right in believing the testimony of the petitioner (P.W. 3) Raju and Ganesh for recording the finding of guilt against the respondents and the learned Additional Sessions Judge, to say the least, has committed a manifest illegality in discarding their testimony on imaginary grounds.

9. Learned Additional Sessions Judge has also rejected the prosecution case on the ground of unexplained and inordinate delay in giving the F.I.R. Learned Magistrate has considered this aspect of the matter and rightly came to the conclusion that in view of the overwhelming evidence on the record, mere delay of two days in lodging the FIR is not fatal to the prosecution case. It is now well settled that mere delay in giving the FIR cannot by itself be held to be a reason for rejecting evidence which is otherwise fully entitled to credit. It is only a circumstance which puts the Court on its guard for careful and closer scrutiny of the evidence as well as contents of the first information report. On an assessment of the evidence on record, I am of the opinion, that the finding of the learned Additional Sessions Judge discarding the prosecution evidence and reversing the order of conviction of the respondents under Section 448/34 IPC is totally perverse and has resulted in miscarriage of justice.

10. Now, the question is: in the facts and circumstances of the case, would it be appropriate to set aside the order of acquittal and remand the matter to the appellate court for re-hearing the appeal. It is relevant to mention that the alleged occurrence took place in 1981 and the respondents have undergone the proceedings for a period of more than 18 years. Having regard to the nature of the offence and the circumstances in which the same was committed and the duration of the proceedings undergone by the respondents, it would not be appropriate to set aside the order of acquittal and remand the case to the appellate court for re-hearing the appeal. The revision petition is disposed of accordingly.