Decided on October 13,1988

Radhanath Mohanty Appellant
Krupasindhu Mishra And Anr. Respondents


Vemulakonda Gopalaswamy, J. - (1.) This revision is preferred against the judgment of the learned Sub divisional Judicial Magistrate, Puri, dated 19 -10 -1984 acquitting the -opposite party No. 1 Krupasindhu Mishra of the charges under Sec. 448 and 338 IPC.
(2.) The prosecution case may be briefly stated thus: The opposite parties 1 and 2 are brothers. There was dispute between the Petitioner and the opposite parties 1 and 2 regarding the construction of a boundary wall. On 8 -4 -1980, during the absence of the Petitioner from his house, there was a quarrel between the wife and children of the Petitioner on the one hand and opposite party No. 1 on the other and during the course of the quarrel opposite party No. 2 had assaulted the wife and daughters of the Petitioner. As the Petitioner returned home after about 4 -30 P.M. obtaining a 144 Code of Criminal Procedure order against the opposite parties 1 and 2, the later got provoked and entered the house of the Petitioner and pelted stones at the Petitioner 's wife and assaulted the daughters of the Petitioner. P.W. 1 (the Petitioner) reported about the incident to the police when G.R. Case No. 585 of 1980 was registered against the opposite parties 1 and 2. Tile learned S.D. Jlvi, on a consideration of the evidence, while convicting the opposite party No. 2 under Sec. 448 and 338, I.P.C. acquitted the opposite party No. 1. Hence this revision is filed by the informant.
(3.) The scope of interference by this Court, when a revision against acquittal is preferred by a private party, is indicated by the Supreme Court in K. Chinnaswamy Reddy v/s. State of Andhra Pradesh and Anr. : AIR 1962 S.C. 1788 when their lordships of the Supreme Court on served thus: 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 I 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 Justice. Sub -section (4) of Sec. 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 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 a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised....;

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