IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 2187 of 2007 (O&M) Date of Decision: January 21, 2011 Ram Singh Saini …Petitioner Versus Pawan Kumar @ Poni and another. …Respondents CORAM: HON’BLE MR. JUSTICE ALOK SINGH. 1. Whether reporters of local news papers may be Allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Sachin Mittal, Advocate, for the petitioner. Mr. S.K. Hooda, Addl. A.G., Haryana, for the respondent-State. ***** Alok Singh, J. Present revision is filed challenging the order of acquittal passed by the learned Additional Sessions Judge, Jhajjar, dated 16.04.2007 in Sessions Case No. 1 of 2005 CRR No. 2187 of 2007 pursuant to FIR No. 271 dated 04.09.2004, under Sections 302/201 IPC, registered at Police Station Jhajjar. The prosecution story is that on 04.09.2004, Jagwanti SI along with other police officials in a Govt. Jeep bearing No. HR-14-A 0319 being driven by EHC Ajmal Khan No.457 were present at Silani Gate, Jhajjar, where she came to know that in front of Chand Ice Factory in the street, a dead body was lying on which she along with officials reached there and found that the dead body was of Pardeep Constable No. 489, Jhajjar. The dead body was having several injuries and blood was oozing out. There were also blood spots on the wall of the nearby house. The belt of deceased and button of his shirt were also broken. One blood stained piece of brick was lying there. SI Jagwanti came to know that last night at 10.30 p.m., Pawan son of Chander Bhan, Caste Saini, r/o Jhajjar along with his friends had threatened to kill him at Harish Hotel near Silani Gate, Jhajjar. The nearby neighbours were asked about the incident but none came forward to tell anything. Constable Rajesh was sent to the police Station for registration of the case and has been asked for calling photographer and Dog squad. Special report was also sent. Blood stained earth, broken piece of brick were taken into possession. Inquest was prepared and dead body was sent 2 CRR No. 2187 of 2007 to the Civil Hospital, Jhajjar. After that, investigation was handed over to SI Ram Kumar. After verifying the facts at the spot, Ram Kumar SI reached house of Pawan accused and searched for him. He also recorded the statement of Harish and Aas Mohammad under Section 161 Cr.P.C. On 6.9.2004, he recorded the statement of other witnesses. On 7.9.2004, he went to Bawal for investigation of search of accused. However, on 08.09.2004, he was apprehended at Jhajjar-Rewari road and suffered disclosure statement. He was taken to Rewari for effecting recovery. But said disclosure statement was found to be false. Because accused stated that he made the false disclosure statement. However, again he was interrogated on 11.9.2004, where he suffered disclosure statement to the effect that he has concealed the pant, shirt at the Kachha Beri Road and has buried under bushes in a vacant plot. No one has its knowledge and he could got them recovered and could demarcate that place. He has also stated that on the intervening night of 3/4.9.2004, he has caused injuries on the head and mouth of Pardeep Constable and he threw the said brick at the spot. Said disclosure statement is Ex.P30, which is signed by the accused and witnesses. In pursuance of disclosure statement, he got recovered the blood stained shirt and pant. There were kept in the 3 CRR No. 2187 of 2007 sealed parcel and same was taken into police possession, vide memo Ex.P31. Site plan Ex.P32 was prepared. On 13.09.2004, accused demarcated the place of occurrence, vide memo Ex.P33. FIR Ex.P34 was recorded by Mahipal ASI. After completion of investigation, challan was forwarded to the court for trial against the accused. The present case was committed to the Court of Sessions vide order dated 20.12.2004, passed by the then ld. Chief Judicial Magistrate, Jhajjar. On finding a prima- facie case charge under Section 302/201 IPC was framed against the accused on 28.01.2005, to which he pleaded not guilty and claimed trial. Learned Trial Court has observed as under:- “11. There is another aspect of the case that in the present case, 24 witnesses have been examined by the prosecution and the witnesses, have been shown to be the persons, who has witnessed the accused with the deceased last time prior to his death in the hotel of Harish at Silani Gate, Jhajjar. But all of them declared hostile except PW13 Aas Mohammad, who has specifically stated that he came to him regarding investigation of the FIR No. 229/03, under Section 365 IPC, P.S. Beri. He came to him at 4 CRR No. 2187 of 2007 8.00 p.m. and offered him dinner but he replied that they will take dinner at Silani Gate at Harish Hotel. At about 9.00 p.m., they entered the hotel and deceased Pardeep remained outside the hotel. Sham Sunder and Sita Ram were taking meals in the hotel and three persons were standing on the counter. At that time, Poni @ Pawan Kumar came on a motor cycle along with other persons and ordered for chicken to owner of the hotel, to which he refused. Poni slapped one of the customers, who was standing on the counter. Pardeep objected it and then there was an alteration between Pardeep and Pawan and he with the help of Sham Sunder and Sita Ram intervened and they left the part. On this, PW13 instructed the other two boys, who had come with Pawan on the motor cycle to take him to his house and on which, Pawan threatened Pardeep saying that he had come to arrest him and after taking the positioning CIA. On which, Pardeep told that two days earlier he had got his case compromised and now why he is threatening him. Pawan went away on the motor cycle and Pardeep went behind him. PW13 5 CRR No. 2187 of 2007 kept on waiting up to 10.30 p.m. and on the next morning, at about 8.00., he came to know that Pardeep has been murdered. Except the statement of PW13 Aas Mohammad no other witness has stated about the occurrence. Even PW2 Sham Sunder was also declared hostile and in his cross-examination, he denied his statement Ex.P13 alleged to have been made before the police. Despite lengthy cross- examination by learned Public Prosecutor, PW2 did not say anything regarding last seen of accused with the deceased. Even, the owner of the Hotel namely Harish PW3 has also given clean chit to the accused by saying that he does not know anything about this case. In the lengthy cross-examination by ld. PP, he denied about altercation between accused and deceased at his hotel. PW4 Rakesh was a witness about the fact that on 3.9.2004 at about 9.00 p.m. he met with Pupple Balmiki near Silani Gate, Jhajjar and in the market, they have seen Pawan @ Poni and Pardeep Kumar Saini talking in a loud voice. Pupple asked Naveen and Ravinder, who were on a motor cycle to take Poni to his 6 CRR No. 2187 of 2007 house as he was under the influence of liquor. Pardeep came back and Pupple also went away. But he was confronted with his statement Ex.P15 from portion A to A and nothing incriminating came out against the accused from his statement. PW5 Pupple have not stated anything against the accused and also declared hostile. He has also given clean chit to accused while denying statement Ex.P23 to the effect that on 3.9.2004, at about 10.00 p.m., he came to Silani Gate, Jhajjar for purchasing Bidi and was sitting in front of the hotel of Rajesh and he saw Pawan @ Poni and Pardeep Kumar Constable talking loudly and two boys Naveen and Rajinder were present nearby on a Motor cycle. Then Pardeep under the influence of liquor was staying regarding the threat of killing and quarreling with him that he will tell to the uncle (Tau). He asked Naveen and Rajinder to take away Pawan on the Motor cycle to his house and Pardeep went away. PW5 was confronted with his statement Ex.P16 from portion A to A. PW8 Sita Ram was also declared hostile and he has not stated anything against the accused. Nothing 7 CRR No. 2187 of 2007 incriminating came out from his lengthy cross- examination by learned PP. PW9 Sham Lal has also stated that he did not see the accused causing injuries to deceased Pardeep Kumar and he was also declared hostile. He has not stated anything against the accused despite lengthy cross-examination and he was confronted from his statement Ex.P24 alleged to have been made before the police. PW12 Bhanmati has also not stated anything against the accused and she was also declared hostile. She was confronted with her statement Ex.P26. PW24 Sehjad has also given clean chit to accused as he has not uttered even a single word against the accused….” Learned Trial Court has also disbelieved the statement of PW13 Aas Mohammad for want of corroboration. Hon'ble Apex Court in the matter of Akalu Ahir reported in 1973(3) SCC 583 in para 8 has observed as under: - “...........the revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a 8 CRR No. 2187 of 2007 serious nature which has resulted in grave failure of justice. .............It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court in the court of trial, that the High Court is empowered to set aside the order of acquittal and direct the retrial of the acquittal accused persons. From the very nature of this power, it should be exercised in exceptional cases and with great care and caution. Trials are not to be lightly set aside when such order expose the accused persons to a fresh trial with all its consequential harassment. This matter is not res integra and had indeed been dealt with by this court at least in the four cases noticed by the High Court. ...............It makes 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 re-trial. No doubt, in the opinion of this court no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court's power of ordering retrial can be laid down. This Court, however, by way of illustration, indicated the 9 CRR No. 2187 of 2007 following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision. i. Where the trial court has no jurisdiction to try the case, but has still acquitted the accused; ii. Where the trial court has wrongly shut out evidence which the prosecution wishes to produce; iii. Where the appellate court has wrongly held the evidence which was admitted by the Trial Court to the inadmissible; iv. Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and v. Where the acquittal is based on the compounding of the offence which is invalid under the law.” These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal.” Hon'ble Apex Court, in the matter of Bindeshwari Prasad Singh Vs. State of Bihar reported 10 CRR No. 2187 of 2007 in 2002(6) SCC 560 in paras 13 and 14 has observed as under: - “13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. 14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the 11 CRR No. 2187 of 2007 trial Court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. At best the High Court thought that the prosecution witnesses were reliable while the trial court took the opposite view. This Court has repeatedly observed that in exercise of revisional jurisdictional against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and should not constitute itself into an appellate court which has a much wider jurisdiction to go into questions of facts and law, and to convert an order of acquittal into one of conviction.” Hon'ble Apex Court, in the matter of Johar Vs. Mangal Prasad reported in 2008(3) SCC 423 in para 19 has held as under: - “19. The approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure, it exercises a limited power. Its jurisdiction to entertain a 12 CRR No. 2187 of 2007 revision application, although is not barred, but severally (sic severely) restricted, particularly when it arises from a judgment of acquittal. ” Now, this is a settled position of law that power of this Court in a revision against the judgment of acquittal is limited. This Court while exercising the revisional jurisdiction ordinarily will not re-assess the evidence. Even if two views are possible on the re-assessment of the evidence, this Court while exercising the revisional jurisdiction ordinarily shall not disturb the order of acquittal passed by the learned Trial Court. In the opinion of this Court, learned Trial Court has not left or overlooked any important evidence which could prove the guilt of the accused. In the opinion of this Court, Trial Court has not committed any jurisdictional or procedural error which would have vitiated the trial. No interference is called for. Dismissed. January 21, 2011 ( Alok Singh ) vkd Judge 13