Ram Prakash vs State (N.C.T. Of Delhi)
2011 Latest Caselaw 623 Del

          IN THE HIGH COURT OF DELHI: NEW DELHI

+              CRL. REV. P. NO. 526/2003

%              Judgment decided on: 3rd February, 2011

RAM PRAKASH                                      .....PETITIONER

                           Through:   Mr. Keshari K. Tiwari, Adv.

                           Versus

STATE (N.C.T. OF DELHI)
& ORS.                                         ....RESPONDENTS

                           Through: Mr. M.P. Singh, APP for the
                                    State with SI Shivji Singh,
                                    P.S. Tilak Marg.
                                    Mr. Ajay Verma, Mr. Gaurav
                                    and Ms. Swati, Advs.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers               No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?                  No

       3. Whether the judgment should be                      No
          reported in the Digest?


A.K. PATHAK, J. (Oral)

1. Respondent Nos. 2 and 3 (for short hereinafter referred

to as "private respondents") have been acquitted by the

Additional Sessions Judge, New Delhi of the charges under

Section 307 read with Section 120-B IPC. Aggrieved by their

acquittal, petitioner (injured) has approached this Court by

way of present petition under Sections 397/401 read with

Section 482 Cr.P.C. praying therein that impugned judgment

be set aside and private respondents be convicted under

Section 307 read with Section 120-B IPC.

2. Prosecution case as unfolded is that petitioner Ram

Prakash (PW2) had gone to a temple near jhuggi basti,

opposite Gate No. 1, Pragati Maidan on 10th June, 2001 at

about 7/7:30 AM for doing pooja. When he reached there he

saw Sohan Singh Gosain (respondent No. 3) standing at the

gate along with Shobhnab Singh (respondent No. 2) and

Mahender Sharma (since deceased). Respondent No. 3

exhorted „MAR SALE KO MANDIR PE KABZA NAHI HONE

DETA‟, Mahender shot at him from pistol resulting injuries on

his abdomen. Petitioner fell down on the ground. Mahender

handed over the pistol to respondent No. 2. Thereafter,

Mahender and respondent No. 2 ran away towards the

railway line, while respondent No. 3 ran away in different

direction. Ram Sarup Sharan Phalahari (PW1), who was

pujari of the temple, came there. Public persons gave a chase

to Mahender and respondent No. 3 and apprehended them

near the railway line. Later, Mahender and respondent No. 3

were handed over to the police, which arrived at the spot.

Petitioner was removed to the hospital. FIR was registered on

the statement of PW1. Subsequently, respondent No. 2 was

also apprehended. Weapon of offence could not be recovered.

3. FIR was registered on the statement of Ram Sarup

Sharan Phalahari, who has been examined as PW1.

4. Besides PW1 Ram Sarup Sharan Phalahari, petitioner

and two other public witnesses, namely, Raj Kumar and

Gopal Jha have been examined before the Trial Court as PW3

and PW12 respectively. Trial Court meticulously examined

their testimonies and found them untrustworthy and

unreliable witnesses in view of the inherent discrepancies in

their statements, inasmuch as, PW3 had completely turned

hostile and did not support the prosecution case. As regard

PW12 is concerned, Trial Court has returned a finding that he

was a false witness. Testimonies of PW1 and PW2 were also

found to be inconsistent. Trial Court has noted that PW1 had

deposed that after reciting arti he came out of the temple and

found petitioner lying on the ground and weeping. He

informed that Mahender had shot him and respondent Nos. 2

and 3 were accompanying him. However, PW2 deposed that

after receiving injuries he fell unconscious and had not

informed PW1 that he was shot by Mahender, who was

accompanied by respondent Nos. 2 and 3. As per the

prosecution, Mahender and respondent No. 3 were

apprehended by public persons within 5/10 minutes of the

incident, while they were trying to flee away. However, in FIR

PW1 had stated that Mahender had himself returned to the

spot and was caught and handed over by the public persons

to the police. While in witness box he said that public

persons chased Mahender and respondent No. 3 and

apprehended them and brought them at the spot. Non-

recovery of weapon of offence was also taken as adverse

circumstances against the prosecution. It was also noted by

the Trial Court that there was previous litigation pending

between the parties, therefore, false implication of private

respondents cannot be ruled out. By taking over all view of

the circumstances emanating from the evidence led by the

prosecution, Trial Court concluded that prosecution had

failed to prove its case beyond shadow of reasonable doubt

that private respondents were sharing common intention with

Mahender to cause such injuries on the person of petitioner

so as to cause his death.

5. Learned counsel for the petitioner has vehemently

contended that Trial Court has not appreciated the

statements of PW1 and PW2 in correct perspective. It has

committed an error in disbelieving their versions. PW2 had

deposed that weapon of offence was handed over by

Mahender to respondent No. 2, who had succeeded in

escaping. Thus, non-recovery of weapon of offence was

inconsequential. Learned counsel has placed reliance on the

statements of PW1 and PW2 for contending that their

testimonies are trustworthy and reliable. From their

statements, it is established beyond the shadow of reasonable

doubt that on the fateful day Mahender along with

respondent Nos. 2 and 3 had arrived at the temple.

Respondent No. 3 exhorted to kill the petitioner, at which

Mahender shot at petitioner resulting injuries to him. It is

contended that findings returned by the Trial Court are not in

conformity with the evidence adduced by the prosecution and

suffers from perversity.

6. As against this, learned counsel for the private

respondents has vehemently contended that jurisdiction of

High Court to interfere with the order of acquittal, while

exercising its revisional jurisdiction under Section 401

Cr.P.C. in a Revision Petition by a private party against the

judgment of acquittal, is very limited. The revisional court

does not function as a court of appeal and cannot reappraise

evidence and take a different view than what had been taken

by the Trial Court. Order of acquittal cannot be interfered

with unless it is shown that it is an exceptional case of some

procedural irregularity or overlooking of material evidence or

misreading of the same which has resulted in flagrant

miscarriage of justice. He has contended that testimony of

witness cannot be re-appreciated so as to take a different view

than what had been taken by the Trial Court. Reliance has

been placed on Baleshwar Ghelot & Anr. vs. Siri Chand &

Ors., 2008 Crl.L.J. 306 and Thankappan Nadar and Ors.

vs. Gopala Krishnan and Anr., (2002) 9 SCC 393. As per

the learned counsel, present case is not an exceptional case

resulting in flagrant miscarriage of justice, thus, the

judgment of acquittal passed by the Trial Court cannot be

interfered with and the Revision Petition is liable to be

dismissed.

7. I have considered the rival contentions of both the

parties. It is well settled that revisional jurisdiction vested in

the High Court under Sections 397/401 Cr.P.C., cannot be

exercised lightly in a Revision Petition filed by a private party

against an order of acquittal, which could have been,

otherwise, appealed against by the Government. Revisional

jurisdiction can be exercised by the High Court only in

exceptional cases where the interest of public justice requires

interference for the correction of a manifest illegality or

prevention of gross miscarriage of justice. In other words, the

revisional jurisdiction of the High Court cannot be invoked

merely because the lower court has taken a wrong view or

misappreciated the evidence on record. In Mahendra Pratap

Singh vs. Sarju Singh and Anr. AIR 1968 SC 707, where the

High Court in exercise of its revisional jurisdiction had, at the

instance of a private party, directed re-trial of the accused,

Supreme Court held that High Court was wrong in entering

into minute details of evidence, while examining the decision

of the Sessions Court.

8. In Baleshwar Ghelot's case (supra), a Single Judge of

this Court has held that powers of the High Court in exercise

of its revisional jurisdiction under Section 401 Cr.P.C., in a

revision petition filed by a private party against an order of

acquittal are very limited. The revisional court does not

function as a court of appeal and cannot re-appreciate or

reappraise the evidence adduced before the Trial Court. It

cannot also interfere with an order of acquittal unless it is an

exceptional case of some procedural irregularity or

overlooking of material evidence or misreading of the same,

which is manifest and which results in flagrant miscarriage of

justice.

9. In Akalu Ahir vs. Ramdeo Ram, (1973) 2 SCC 583,

Supreme Court has held that the appraisal of evidence of 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 retrial.

10. Keeping in mind the facts of the present case, I do not

find any justification to direct a retrial when Trial Court has

considered the evidence in detail and has concluded that

statements of witnesses suffer from inherent discrepancies

and it was not safe to base conviction thereon. As per the

Trial Court, there were grave doubts about the prosecution

case. These doubts had arisen in view of the inherent

discrepancies and contradictions in the testimonies of PW1

and PW2, which otherwise were found to be in variance with

the prosecution case. Sufficient reasons have been given as

to why their testimonies were untrustworthy and unreliable.

On the basis of evidence adduced before it, Trial Court has

returned a finding that prosecution had failed to prove its

case beyond shadow of reasonable doubt. I find no reason to

set aside the order of acquittal passed by the Trial Court and

order for retrial, in the fact of this case, more so when there is

nothing to indicate that the judgment of Trial Court suffers

from any perversity or defect of procedure or manifest

illegality of such a nature as would result in miscarriage of

justice.

11. For the foregoing reasons, petition is dismissed.

A.K. PATHAK, J.

FEBRUARY 03, 2011 rb