Smt. Manju vs Sh. Mustafa Mastan & Ors.
2011 Latest Caselaw 141 Del

           IN THE HIGH COURT OF DELHI: NEW DELHI

+              CRL. REV. P. 949/2003

%              Judgment decided on: 11th January, 2011

SMT. MANJU                                .....PETITIONER

                           Through: Mr. S.C. Singhal, Adv.
                           Versus

SH. MUSTAFA MASTAN & ORS.                .....RESPONDENT

                           Through: Mr. Manish Vashisht and
                                    Mr. Samee Vashisht, Advs. for
                                    R1 & 2
                                    Mr. O.P. Saxena, APP for the
                                    State along with SI Ram Pal,
                                    P.S. Uttam Nagar

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
          reported in the Digest?                            Yes

A.K. PATHAK, J. (Oral)

Present revision petition under Section 401 of the Code of

Criminal Procedure (Cr.P.C.) has been filed by the

complainant/injured (PW1) against the judgment dated 4th

August, 2003, passed by the Additional Sessions Judge (Trial

Court) whereby respondent nos. 1 and 2 (hereinafter referred to

as "private respondents") have been acquitted of the charge

under Section 307/34 IPC.

2. Factual matrix of the case as unfolded is that FIR No.

387/2000 under Section 307/34 IPC was registered at Police

Station Uttam Nagar on the basis of statement of petitioner,

wherein she stated that on 29th May, 2000 at about 9 pm there

was electricity failure in the colony where she had been residing

with her family. Her husband had gone to the chowk where

transformer was installed to make enquiry about the reasons of

electricity failure. After some time she heard noises of quarrel.

Accordingly, she went towards the chowk with a kerosene oil

lamp in her hand. On reaching there she noticed private

respondents quarreling with her husband. When she

intervened, respondent no. 1 got enraged and snatched

kerosene oil lamp from her and threw it on her head. He also

poured kerosene oil on her as a result whereof her clothes

caught fire and she sustained burn injuries. Thereafter,

respondent no. 1 ran away from the spot. Her husband doused

the fire and removed her to hospital.

3. Charge under Section 307/34 IPC was framed against the

private respondents; to which they pleaded not guilty and

claimed trial.

4. Prosecution examined 10 witnesses in all. PW8 Dr. Anju

Bala Dey from Safdarjung Hospital has proved the MLC of

petitioner which shows that the petitioner had suffered burns

on the interior surface of her neck, both the upper limbs,

interior chest and abdomen and total surface area of burns was

about 35%. Petitioner was examined as PW1. Her husband

was examined as PW3. All other witnesses are formal in nature

being the police officials.

5. After prosecution closed its evidence statements under

Section 313 Cr.P.C. of the private respondent were recorded

separately wherein entire incriminating material, which had

come on record, was put to them. Respondents denied their

participation in the crime. They claimed themselves to be

innocent. According to them, they had been falsely implicated

due to political rivalry. They also produced Kishan Angad and

Babloo in their defense, whose statements were recorded as

DW1 and DW2. Both these witnesses claimed that they were

present at the spot at the time of incident being residents of

same area. These witnesses deposed that Raj Kumar was trying

to hook a wire on the phase which was working while petitioner

was standing beside him with a lamp. Raj Kumar received

electric shock and fell over his wife. Petitioner lost balance and

lamp fell over her resulting burn injuries to her. Besides them

one J.C. Vashishtha, Record Clerk from DDU hospital was also

examined as DW3, who has proved the MLC of the petitioner as

Ex. DW3/A. Petitioner was initially taken to DDU Hospital and

from there she was removed to Safdarjung Hospital where she

was treated by PW8 Dr. Anju Bala Dey. In DDU Hospital she

did not name the private respondents.

6. On in-depth scrutiny of statements of PW1, PW3, DW1

and DW2, Trial Court came to the conclusion that prosecution

had failed to prove its case beyond the shadow of reasonable

doubt that it is the private respondents, who in furtherance to

their common intention, had caused burn injuries to the

petitioner. As regards respondent no. 2, Trial Court was of the

view that deposition of PW1 and PW3, was shrouded with

suspicion, inasmuch as material improvements were made by

them, while in witness box, regarding role played by him. In the

FIR role of catching hold was not ascribed to respondent no. 2.

However, while deposing in court, it was alleged that respondent

no.2 had caught hold of PW1 while respondent no. 1 poured

kerosene oil on her. It was held that since PW1 and PW2 had

made improvements on material points, their depositions could

not have been preferred as against DW1 and DW2, who were

independent witnesses. It has been further noted that petitioner

had not disclosed the names of private respondents to the

doctor in DDU hospital, where she was first taken for her

medical treatment by one Shiv Narayan S/o Sukh Ram, even

though she was conscious and well oriented at that time. She

had left the hospital against the medical advice and was

removed to Safdarjung Hospital by her husband at about 11:30

pm, thus, had sufficient time with her to deliberate with her

husband. For the foregoing reasons, Trial Court concluded that

prosecution had failed to prove its case beyond shadow of

reasonable doubt, consequently, acquitted the private

respondents.

7. It may be noted here that during the pendency of this

petition, respondent no. 2 has died and the proceedings against

him stood abated on 22nd July, 2010.

8. Learned counsel for the petitioner has vehemently

contended that the Trial Court has not appreciated the

testimony of PW1 and PW3 in correct perspective. It has erred

in discarding their testimony on the ground that it was

discrepant or that they had made material improvements.

Statement of the petitioner before the Trial Court has to be

preferred as against the averments made in the FIR, history

given in the MLC and testimony of defence witnesses. In

nutshell, it has been contended that in view of the testimonies

of PW1 and PW3 Trial Court ought to have concluded that the

private respondents, in furtherance to their common intentions,

had set PW1 on fire after pouring kerosene oil, thus, had

committed the offence under Sections 307/34 IPC.

9. In this case, State has not filed any appeal against the

acquittal of private respondents. It is the complainant/injured

who has filed this revision under Section 401 Cr.P.C. I am of

the view that while exercising revisional jurisdiction High Court

does not function as court of appeal and cannot re-appreciate

the evidence and substitute its view as against the view taken

by the Trial Court. 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 the acquittal of an

accused are very limited. It cannot 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 a flagrant

miscarriage of justice. Even if, High Court, on appreciation of

the evidence on record, were to reach a conclusion different

from that of the Trial Court, that by itself would be no

justification for exercise of the revisional jurisdiction under

Section 401 Cr.P.C. In Thankappan Nadar & Ors. Vs. Gopala

Krishnan and Another 2002 (9) SCC 393, Supreme Court has

held that re-appreciation of evidence by the High Court in

revision petition filed by the complainant against acquittal order

is impermissible where the acquittal order did not suffer from

any procedural illegality or manifest error of law and the court

passing that order had not overlooked the evidence clinching

the issue, High Court cannot re-appreciate the entire evidence

and take a view to the contrary for setting aside the acquittal

order. In the said case trial court had convicted the accused

persons, whereas the appellate court had acquitted them. In the

revision application filed by the private complainant, High

Court, after appreciating the evidence, observed that although

the injured persons belonged to the rival party, but that did not

render their evidence interested and partisan and set aside the

acquittal order. Supreme Court while, allowing the appeal

against the order of High Court, observed that although it was

unfortunate that such a serious offence inspired by rivalry over

election matter would go unpunished, however, that would not

be a valid ground for ignoring or not strictly following the law as

enunciated by the Apex Court, which does not empower the

Court exercising the revisional jurisdiction to reappreciate the

evidence.

10. In Akalu Ahir Vs. Ramdeo Ram 1973 (2) SCC 583,

Supreme Court has observed as under:-

"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 retrial. It is unfortunate that a serious offence inspired by rivalry and jealously 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."

11. What can be culled out from the above pronouncements is

that the powers of the High Court in its revisional jurisdiction

under Section 401 Cr.P.C. in a revision petition by a private

party against a judgment of acquittal are very limited. High

Court in exercise of its revisional jurisdiction does not function

as a court of appeal and cannot re-appreciate the evidence. It

can interfere with the order of acquittal only if it is shown that

Trial Court had committed some procedural irregularity or over

looked the material evidence or misread the same which

resulted in a flagrant miscarriage of justice.

12. As regards the present case is concerned, none of the

aforesaid circumstances exist so as to compel this Court to

interfere with the impugned judgment and direct the re-trial.

Trial Court has considered the evidence in detail. It has found

itself unable to return a finding of guilt in view of the evidence

lead by the parties. According to Trial Judge the prosecution

case was shrouded with suspicion. Improvements were made

by PW1 and PW3 while deposing in court than what they had

stated earlier, during the investigation. Not only this, two

independent witnesses, who were present at the spot, made a

statement that husband of the petitioner was trying to fix a wire

in electricity mains while the petitioner was standing by his side

with a kerosene oil lamp in her hand. Petitioner's husband

received electric shock and fell over the petitioner resulting in

falling of kerosene oil lamp on her, as a consequence of which,

she sustained burn injuries. I do not find any procedural

irregularity or manifest error of law in the judgment passed by

the Trial Court. There is nothing to show that Trial Court had

shut out or over looked the evidence which clinches the issue.

Entire evidence cannot be re-appreciated to form a different

opinion than what had been formed by the Trial Court on

appreciation of the evidence.

13. For the foregoing reasons, this petition is dismissed being

devoid of merits.

A.K. PATHAK, J.

JANUARY 11, 2011 ga