Point of Law: Criminal Law - Offence of Causing hurt and House Tress pass – Appeal against Acquittal – Revisional Jurisdiction - Cross-examination - Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that revisional jurisdiction can be invoked where decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits

JUDGMENT :

SUBRAMONIUM PRASAD, J.

1. This revision petition filed under Section 397/401 Cr.P.C. is directed against the order dated 08.05.2018, passed by the Additional Session Judge-02, (South), Saket Courts, New Delhi in Criminal Appeal No. 27/2017 where by the Additional Session Judge has dismissed the appeal filed by the petitioner and has affirmed the order dated 08.11.2016, passed by the Metropolitan Magistrate, Saket Courts, New Delhi. The learned Metropolitan Magistrate, New Delhi by order dated 08.11.2016 has acquitted the respondents No. 2, 3 and 4 for offences under Sections 323/448/34 IPC arising out of FIR No. 368/09, dated 10.10.2009, registered at Police Station Sangam Vihar, New Delhi.

2. The petitioner states that she is the owner of the property bearing H. No. 1125, Gali No. 19, Sangam Vihar, Delhi. It is stated that she is in possession of the said property since June, 2004. It is stated in the revision petition that on 01.10.2009, the accused and his associates broke open into the house of the petitioner and threw away the household goods of the petitioner in her absence and took away the jewellery and other articles and documents. It is stated that on her return the petitioner went to the Police Station. However, the records indicate that FIR bearing No. 368/09 was registered on 10.10.2009 at Police Station Sangam Vihar, Delhi for offences under Sections 448/323/34 IPC. After investigation charge-sheet has been filed. On being summoned the accused entered appearance, they pleaded not guilty and claimed trial.

3. Proceedings were initiated against the accused. In order to prove the guilt, prosecution examined 5 witnesses:

(i) PW-1 (Sapna) is the complainant.

(ii) PW-2 ASI Gajraj Singh duty officer was examined to prove the copy of FIR and endorsement on rukka.

(iii) PW-3 Head Constable Nathi Lal deposed that he alongwith Constable Sarvan went to the spot on receiving DD No. 33A, regarding quarrel on 09.10.2009.

(iv) PW-4 Constable Sarvan was examined to prove the arrest memos and personal search memos.

(v) PW-5 SI Ram Kishan was examined to prove the site plan and personal search memo of one of the accused.

4. The learned Metropolitan Magistrate after hearing both sides came to the conclusion that the prosecution has not been able to establish its case. The learned Metropolitan Magistrate held that for the purpose of establishing offence under Section 323 IPC it has to be proved that the accused caused hurt to the complainant and that the accused persons acted in furtherance of their common intention within the meaning of section 34 IPC. The learned Metropolitan Magistrate found that the entire case of the prosecution rests upon the testimony of PW-1, complainant/petitioner herein. The learned Metropolitan Magistrate after analysing the deposition of the complainant/petitioner herein held that the complainant has given contradictory answers to the question put by the Defence counsel. The learned Metropolitan Magistrate found that the FIR is dated 10.10.2009 whereas according to the complainant/petitioner herein the alleged incident took place on 09.09.2009. It is also found that she has filed Civil Suit against the accused wherein the complainant/petitioner had stated that the date of incident is 01.10.2009. The learned Metropolitan Magistrate did not accept the version of the complainant/petitioner that even though the incident took place on 01.10.2009 the complaint was not recorded by the Police Officer and the FIR was registered only on 10.10.2009. The learned Metropolitan Magistrate found that the complainant was changing her stance at every stage and that the statement of the complainant is not believable. The learned Metropolitan Magistrate by its order dated 08.11.2016 acquitted the accused.

5. The matter was taken up in appeal by the complainant. The learned Additional Session Judge perused the record and found that the order of acquittal does not require any interference. The learned Additional Session Judge