IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : INDIAN PENAL CODE. Crl. Rev. No. 12/2002. Reserved on October 16, 2008

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : INDIAN PENAL CODE Crl. Rev. No. 12/2002 Reserved on October 16, 2008 Pronounced on December 20,2008 Dr. Harish Dr. Harish Bora Through :- Mr.Sumit Arora, Advocate Petitioner Versus State (NCT of Delhi) Through : Mr. Pawan Sharma, APP for state. Mr. Rajanish Mishra, Advocate for complainant....respondent KAILASH GAMBHIR, J. By way of this petition filed under section 397 read with Sections 401 and 482 of the CrPC the revisionist seeks to challenge the impugned order dated 7/1/2002 passed by Sh. V.K. Jain Ld. ASJ. The brief facts of the case relevant for deciding the present petition are that on 30/6/1996 the FIR No. 258/1996 was registered at P.S. Sarojini Nagar, New Delhi on the basis of the statement of Smt. Vimla W/o Sh. Mohan Lal. In her statement she stated that at around 11:00 pm she along with her husband was walking in the service lane along side the Ring Road at Nauroji Nagar and Dr. Harish Vohra, the revisionist herein, who was driving a car bearing registration no. DAQ 405 came on the service road from the direction of Dhaula Kuan and hit Sh. Mohan Lal, resulting in his death. Vide judgment dated 12/3/2001 Dr. Harish Vohra was convicted under Section 279/304-A IPC and vide separate order dated the petitioner was sentenced to undergo 6 months R.I. and fine of Rs. 5,000/- was imposed under S. 304-A IPC. The petitioner was further sentenced to undergo R.I. for 3 months with fine of Rs. 1,000/- under S. 279 IPC and in default of payment of fine to undergo RI for one month. Aggrieved with the said judgment and order, appeal was

2 preferred by Dr. Vohra and vide order dated 7/1/2002 Sh. V.K. Jain Ld. ASJ held Dr. Vohra liable but modified his punishment and sentenced him to undergo for 6 months R.I. and was also made to pay Rs. 5,000/-, being composite sentence under Ss. 279 and 304-A IPC and liberty was granted to claim refund of Rs. 1,000/-, which was deposited by Dr. Vohra as fine imposed under S. 279 IPC. Aggrieved with the said order, present revision petition has been preferred by revisionist/petitioner. Mr. Sumit Arora counsel for the petitioner contended that the learned ASJ grossly erred in not appreciating the fact that the instant case stands on the evidence of the sole witness i.e. Smt. Vimla who is the wife of the deceased Mohan Lal. As the said witness happens to be a close relative i.e. wife of the deceased Mohan Lal thus, the evidence of such a witness needs to be scrutinized very carefully. The counsel further submits that her evidence also lacks credence and does not extend any strong support to the case of prosecution while rest of the witnesses are formal and official witnesses. The counsel further submitted that the Ld. ASJ grossly failed to take into account that Smt. Vimla as PW4 clearly stated in her statement dated 11/08/1999 that she was ahead of her husband at the time of the accident and after her husband met with the accident she turned around and saw her husband thrown and fell on the road. The court also put a question to the said witness to ascertain whether she had seen the car prior to the accident or after that, to which, she specifically stated that No, I saw the car after it hit my husband. This prima facie establishes that the accident as occurred was not seen by her and as such her testimony is not believable and rather the version of the petitioner deposed as DW-1 is more probable. Also, since she did not see the happening of the accident thus, there is no proof that the said vehicle was driven by the petitioner at a high speed or in a rash and negligent manner. Further there is no evidence to suggest that the petitioner did not try to avert the accident by not applying brakes at the proper time. The counsel urged that the petitioner as DW1 on oath deposed that he was driving the vehicle at the speed of 20 KmPH and suddenly a man came in front of his car and struck against the car and resultantly fell on the road. The counsel maintained that the damage to the vehicle clearly rule out the possibility of the deceased having been hit by the car, rather it was the deceased who struck against the car. Furthermore, the counsel brought to the notice of this court that the deposition of the petitioner bore typographical error and the fact of the said error having crept in, was indicated to the Ld. ASJ but no rectification of the deposition was done in this respect. The counsel submitted that the Ld. ASJ erred in not appreciating properly the rationale laid down in the following cases: 1. Mahadev Hari Lokre vs. State of

3 Maharashtra 1972 CrLj 49; 2. Nageshwar Srikrishna Ghobe vs. State of Maharashtra 1973 CrLJ 235; and 3. Mohammed Aynuddin vs. State of Andhra Pradesh 2000 II AD (Cr) SC 784. Further, the counsel contended that the conduct of the petitioner in taking the deceased to the hospital and visiting the deceased at the hospital is appreciable and requires to be considered. Furthermore, the counsel urged that the petitioner is not a previous convict and has clean antecedents to his credit, thus, the petitioner could have been afforded the benefit of probation. Per contra, Mr. Pawan Sharma, APP refuted the contentions raised by the petitioner and contended that the collective result of the statements of all the 13 prosecution witnesses is that the petitioner was rash and negligent in driving his vehicle and had he been little careful then the accident could have been averted. I have heard learned counsel for the parties at considerable length and have perused the record. It is well settled that revisional jurisdiction is the supervisory jurisdiction exercised by the Court for correcting miscarriage of justice and the revisional power cannot be equated with the power of an appellate court. In this regard in State of Kerala v. Putthumana Illath Jathavedan Namboodiri- AIR 1999 SC 981, the Hon ble Apex Court observed as under: 5. Having examined the impugned Judgment of the High Court and bearing in mind the contentions raised by the learned Counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re- appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned Judgment of the High Court from the aforesaid stand point, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. In this

4 view of the matter the impugned Judgment of the High Court is wholly unsustainable in law and we, accordingly set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence. Though the power to determine correctness of finding extends to a finding of fact, a court of revision would not normally reassess evidence and interfere merely because view of the trial court as to evidence does not commend to itself. In other words, revision would not lie on the mere ground of miss- appreciation of evidence unless any glaring feature is brought to the notice of the revisional court which would otherwise tantamount to flagrant miscarriage of justice. In this regard in Satyendra Nath Dutta and Another Vs. Ram Narain - (1975) 3 SCC 398, the Apex Court observed as under: 4. In D. Stephens v. Nosibolla [1951] SCR 284 it was held by this Court that the revisional jurisdiction conferred by Section 439 of the Code ought not to be exercised lightly when it is invoked by a private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. ``It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a 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 of the law or misappreciated the evidence on record. In Logendranath Jha and Ors. v. Polailal Biswas [195l] S.C.R. 676 the High Court, at the instance of private complainant, set aside the order of acquittal passed by the Sessions Court and directed that the accused be retried. This Court held that the provision contained in Section 439(4) of the Code cannot be construed to mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could, in the absence of any error on a point of law, re-appraise the evidence and reverse the findings of facts, provided only it stops short of finding the accused guilty and passing sentence on him. The order of re-trial based on a reappraisal of evidence was characterised by this Court as a formal compliance with the requirements of Section 439(4). In K. Chinnaswamy Reddy v. State of Andhra Pradesh MANU/SC/0133/1962the Court while emphasising that the revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in a flagrant miscarriage of justice observed that it was not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies.

5 The Court, however, indicated, in order to illustrate, a few of the cases in which the revisional jurisdiction could properly be used. An 'acquittal by a court lacking jurisdiction or excluding evidence which was admissible or relying on inadmissible evidence or where material evidence has been overlooked are some of the cases indicated by this Court as justifying the exercise of revisional powers. In Mahendra Pratap Singh v. Sarju Singh and Anr. MANU/SC/0398/1967 where the High Court in exercise of its revisional powers had, at the instance of a private party, directed re-trial of the accused, this Court on a review of the previous decisions re-affirmed that the High Court was wrong in entering into minute details of evidence, while examining the decision of the Sessions Court under Section 439(4) of the Code. The last decision to which reference may be made is Khetrabasi Samal etc. v. State of Orissa etc. MANU/SC/0113/1969. The High Court while exercising its revisional jurisdiction had set aside the order of acquittal on the ground that the Magistrate should not have disbelieved the three eyewitnesses. The High Court sought justification for the course it adopted by observing that the Magistrate had not taken the trouble of sifting the grain from the chaff. The order of the High Court was set aside by this Court. Keeping these well settled principles of law in view, I find no evidence was produced by the prosecution and the sole witness, wife of the deceased victim, who was walking ahead of the victim, could not have herself witnessed as to how and in what manner the accident had occurred. In her deposition she deposed that it was only after the offending vehicle had hit her husband, she looked back. The offending vehicle was admittedly in the service lane and no evidence was adduced stating that the car was running at a high speed in the service lane. It appears that the deceased did not notice the car coming from one side as the anxiety of the deceased victim was to board the bus from the bus stop abutting the service lane. In the absence of any incriminating evidence against the petitioner proved on record by the prosecution, simply because of the fact that the accident resulted in death of the victim, one cannot reach to the conclusion that the petitioner was rash and negligent in driving the vehicle. Thus, in my opinion, the impugned order of conviction suffers from infirmity warranting interference of this Court. It is a settled legal position that the standard of proof required in criminal matters is not mere preponderance of probability but the proof must be beyond reasonable doubt. In view of the above discussion and considering that since the prosecution has not been able to prove its case beyond reasonable doubt, the benefit of doubt goes to the petitioner, the petition is, therefore, allowed. The conviction of the petitioner under

6 Sections 279 and 304-A of IPC vides order dated 7/1/2002 passed by Sh. V.K. Jain Ld. ASJ is set aside. Sd/- KAILASH GAMBHIR JUDGE