IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 114 of 2009 (O/M). Date of Decision : July 30, 2009. Somi son of Lilu Ram, resident of Nabh Kamal Mandir, Bahri Mohalla, Thanesar, District Kurukshetra. ...... Petitioner . Versus. State of Haryana, and another. ..... Respondent . CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. S.S. Siao, Advocate, for the petitioner . AUGUSTINE GEORGE MASIH, J. The present revision petition has been filed by the petitioner, who was complainant in the F.I.R. No. 92, dated 07.03.2007, registered at P.S. City Thanesar, under Section 302, 377, 511 I.P.C., wherein after investigation, the challan was presented against the accused, leading to framing of charges and ultimately on the basis of evidence led by the prosecution and on assessment thereof, the Trial Court came to the conclusion that the prosecution has failed to prove the charges against the accused, leading to acquittal of respondent-accused. Counsel for the petitioner contends that in the present case the accused Amit Kumar was last seen with the deceased Krishan, who is son of the complainant, by Veer Bhan (brother of the complainant) and Bir Singh on 06.03.2007 at 08:30 P.M. near Birla Mandir and the railway crossing. He submits that the prosecution has been able to prove that the accused and the deceased Krishan were last seen together and it was, therefore, incumbent upon the accused to have explained as to how and when the deceased Criminal Revision No. 114 of 2009. Krishan parted his company. In the absence of such an explanation, the presumption is that the deceased has been sodomized and murdered by the accused Amit Kumar. He further submits that it is a case of circumstantial evidence and last seen evidence is a major piece of evidence, which would pin down the accused and prove his guilt against him. I have heard counsel for the petitioner and have gone through the records of the case. This case is purely based on circumstantial evidence. Not only this, the only evidence which can connect the accused to the crime is the “last seen” evidence and the person who had seen the accused with deceased Krishan were Veer Bhan and Bir Singh. Nothing has thereafter come on record which could associate the accused with the offence. The case of the prosecution is that the complainant's son alongwith his mother Guddi on 06.03.2007 left the house at about 07:45 P.M. in the evening in order to supply milk to Ram Chander, Kabari, who was a customer of the complainant as the complainant apart from ply a mute cart was keeping some milch buffaloes to supplement his income. The mother of the deceased Smt. Guddi came back to purchase fodder and Krishan went ahead to deliver milk. He did not return in the night and, therefore, he was searched for. He was not found but on the next day in the morning when Basant and Som Nath went to answer call of nature, they detected the dead body of Krishan near Ganda Nallah near Theme Park. They came and informed the complainant about recovery of dead body. The dead body was found naked and underwear of Krishan was lying around his ankle. Dolu, chappals, underwear and pants of cream colour were found on the spot which were lifted by the police and sealed into a parcel. The post mortem was -2- Criminal Revision No. 114 of 2009. conducted on the body on 07.03.2007 in the evening. Eight injuries were found on the body of the deceased. Semen mixed blood was detected on the pants and underwear and traces of blood was detected on chappal. On this basis, it was opined by the Doctor that the deceased was subjected to sodomy. As per report of blood sample and viscera ethyl alcohol and organic phosphorus pesticides were detected in the parts of heart, small and large intestines, spleen, liver, kidney, portion of brain and heart as also in the blood sample. On this basis, the doctor opined that the death in this case was due to administration of organic phosphorus pesticides. The accused was arrested on 14.03.2007 and on the same date, the doctor examined the accused. According to the said examination report, the accused was fit to perform sexual intercourse but no external marks of injury were found on his penis. On the basis of the statements recorded by the police and the evidence collected against him, the accused was sent to trial. The evidence, which has been pressed into service to prove the guilt against the accused by the prosecution is that the deceased Krishan alongwith accused Amit Kumar was last seen by P.W. 10 Veer Bhan, who is the brother of complainant Somi, according to whose statement they were seen together at about 08:30 P.M. in the evening. In his statement, he has not referred to the fact that Bir Singh was with him at the relevant time when he had seen the accused and Krishan together at 08:30 P.M. Bir Singh has been given up by the prosecution as having been won over by the accused. The only person who could corroborate the statement of Veer Bhan was Bir Singh, who has not been produced by the prosecution. Veer Bhan is an interested witness as he is the real brother of the complainant. Further perusal of the evidence of P.W. 10 Veer Bhan would show that in his cross- -3- Criminal Revision No. 114 of 2009. examination , he had candidly stated that he did not tell his brother Somi (complainant), that he had seen accused and deceased together at 08:30 P.M. on 06.03.2007. Similarly, P.W.3 Somi (complainant) never mentioned in his statement Ex.P.A. before the police that his brother P.W. 10 Veer Bhan had last seen the accused and the deceased previous evening. This statement Ex.P.A. was recorded by the police at 11:00 A.M. on 07.03.2007 after recovery of the dead body of Krishan. It has come on record that Veer Bhan had reached the spot at 09:30 A.M., where Somi (complainant) was already present. They had ample time to discuss the matter on this point, but still this vital information was not supplied by Veer Bhan to his brother Somi (complainant). This creates a doubt with regard to evidence of the prosecution about “last seen”. It appears that the evidence of “last seen” is a made up story. This case is purely based on circumstantial evidence. There is no eye witness account available, therefore, the circumstances on which the prosecution relied must be consistent with the sole hypothesis of the guilt of the accused. Some suspicion, however, strong it may be, cannot be the basis for convicting an accused nor can it take place of the requirement of proof beyond doubt in criminal prosecution. The sole circumstance in the present case is the “last seen” evidence, that evidence also has not been found to worthy of credence as it is shone with doubt. In these circumstances, it cannot be said that the prosecution has proved the guilt of the accused. The scope of revision against acquittal is very restricted. Even if it is assumed for the sake of arguments that the Revisional Court may formulate different opinion than one formed by the Trial Court, still the Revisional Court unless it is held by it that the findings as recorded by the -4- Criminal Revision No. 114 of 2009. Trial Court are totally perverse, will be slow to interfere in the matter. In the absence of any legal infirmity either in the procedural or in the conduct of Trial Court, there would be no justification for this Court to interfere in exercise of its revisional jurisdiction. The Revisional Court should not re- appreciate the evidence to reach a finding different from the Trial Court unless manifest illegality resulting in grave mis-carriage of justice persuades the Revisional Court to exercise its jurisdiction. In the present case, it can by no stretch of imagination be said that the findings as recorded by the Trial Court is either not based on evidence or are totally perverse, which would persuade this Court to exercised its powers under the revisional jurisdiction against the order of acquittal. In view of the above, no interference in exercise of the revisional jurisdiction is called for and, therefore, the present revision petition stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE July 30, 2009. sjks. -5-