Crl. Revision No. 813 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 813 of 2005 Date of decision: February 16, 2011 Sukhcharan Singh and others ...Petitioners Versus State of Haryana ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. HS Gill, Advocate, with Mr. Vivek Goyal, Advocate, for the petitioners. Mr. JS Rattu, DAG, Haryana. GURDEV SINGH, J. During the elections of Gram Panchayat on 15.12.1994, Booth No.1 was established in village Gidderkhera. The voting was in progress and at about 4.30 p.m., about 150-200 persons were standing in the queue to cast their votes. Suddenly, Sukhcharan Singh-petitioner/accused, alongwith 8-9 persons, forcibly entered that booth and under a well planned conspiracy attacked the officials, who were on election duty. They were stopped from doing so by Gulshan Kumar, Presiding Officer (PW-4) of that booth. All the accused tore the ballot papers and also destroyed ballot boxes and ransacked the booth. About this act of the accused a written application Ex. PA was submitted by the said Presiding Officer before the Crl. Revision No. 813 of 2005 2 SHO of Police Station Sadar Dabwali, who after recording the police proceedings Ex. PW6/A sent the same to the Police Station and on the basis thereof, formal FIR Ex. PW3/A was recorded under Sections 353, 186, 147, 149, 427 IPC read with Section 182 and 157 of the Haryana Panchayati Raj Act, 1994. The SHO went to the place of occurrence and after inspecting the spot, prepared the rough site plan Ex. PW6/B. In the course of investigation, all the accused were arrested and after completion thereof, challan was put in before the Judicial Magistrate Ist Class, Dabwali, who found sufficient grounds for presuming that the accused committed offences punishable under Sections 186, 353, 427, 451/149 and 147 IPC. The accused were charged accordingly, to which they pleaded not guilty and claimed trial. To prove their guilt, the prosecution examined Raj Bhasin (PW-1), Bhagwan Singh (PW-2), Rajinder Singh HC (PW-3), Gulshan Kumar (PW-4), Ravi Kumar (PW-5) and Lachhman Singh (PW-6). After the close of the prosecution evidence, the accused were examined by the trial court and their statements were recorded under Section 313 of the Criminal Procedure Code. All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence and false implication on account of party faction in the village. They were called upon to enter on their defence. They examined Harpal Singh (DW-1) and Phool Singh (DW-2) in their defence. After going through the evidence, so produced and hearing Assistant Public Prosecutor for the State and the learned defence counsel for the accused, the JMIC convicted the accused for the aforesaid offences, vide Crl. Revision No. 813 of 2005 3 judgment dated 14.5.2001 and sentenced them as under:- 1 Sukhcharan Singh (i) to undergo rigorous imprisonment for a period of one year under Section 147 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of one month; (ii) to undergo rigorous imprisonment for a period of two years under section 451 IPC and to pay fine of ` 1000/-, in default thereof to further undergo simple imprisonment for a period of three months; (iii) to undergo rigorous imprisonment for a period of three months under section 186 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of 15 days; (iv) to undergo rigorous imprisonment for a period of two years under section 353 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of three months; and (v) to undergo rigorous imprisonment for a period of six months under section 427 IPC. 2 Malkiat Singh (i) to undergo rigorous imprisonment for a period of one year under Section 147 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of one month; (ii) to undergo rigorous imprisonment for a period of two years under section 451 IPC and to pay fine of ` 1000/-, in default thereof to further undergo simple imprisonment for a period of three months; (iii) to undergo rigorous imprisonment for a period of three months under section 186 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of 15 days; (iv) to undergo rigorous imprisonment for a period of two years under section 353 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of three months; and (v) to undergo rigorous imprisonment for a period of six months under section 427 IPC. 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Revision No. 813 of 2005 4 3 Darshan Singh (i) to undergo rigorous imprisonment for a period of one year under Section 147 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of one month; (ii) to undergo rigorous imprisonment for a period of two years under section 451 IPC and to pay fine of ` 1000/-, in default thereof to further undergo simple imprisonment for a period of three months; (iii) to undergo rigorous imprisonment for a period of three months under section 186 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of 15 days; (iv) to undergo rigorous imprisonment for a period of two years under section 353 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of three months; and (v) to undergo rigorous imprisonment for a period of six months under section 427 IPC. 4 Shivraj Singh (i) to undergo rigorous imprisonment for a period of one year under Section 147 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of one month; (ii) to undergo rigorous imprisonment for a period of two years under section 451 IPC and to pay fine of ` 1000/-, in default thereof to further undergo simple imprisonment for a period of three months; (iii) to undergo rigorous imprisonment for a period of three months under section 186 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of 15 days; (iv) to undergo rigorous imprisonment for a period of two years under section 353 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of three months; and (v) to undergo rigorous imprisonment for a period of six months under section 427 IPC. 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Revision No. 813 of 2005 5 5 Balwinder Singh (i) to undergo rigorous imprisonment for a period of one year under Section 147 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of one month; (ii) to undergo rigorous imprisonment for a period of two years under section 451 IPC and to pay fine of ` 1000/-, in default thereof to further undergo simple imprisonment for a period of three months; (iii) to undergo rigorous imprisonment for a period of three months under section 186 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of 15 days; (iv) to undergo rigorous imprisonment for a period of two years under section 353 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of three months; and (v) to undergo rigorous imprisonment for a period of six months under section 427 IPC. 6 Om Parkash (i) to undergo rigorous imprisonment for a period of one year under Section 147 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of one month; (ii) to undergo rigorous imprisonment for a period of two years under section 451 IPC and to pay fine of ` 1000/-, in default thereof to further undergo simple imprisonment for a period of three months; (iii) to undergo rigorous imprisonment for a period of three months under section 186 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of 15 days; (iv) to undergo rigorous imprisonment for a period of two years under section 353 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of three months; and (v) to undergo rigorous imprisonment for a period of six months under section 427 IPC. The accused preferred an appeal against that conviction and sentence, which was dismissed by the Additional Sessions Judge, Sirsa, vide Crl. Revision No. 813 of 2005 6 order dated 11.4.2005. Now, they have preferred the present revision against that conviction and sentence. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the accused that in the complaint so filed by the complainant before the SHO, only name of Sukhcharan Singh was mentioned. None of the witnesses examined by the prosecution stated the names of the other accused and merely made their statements that the other accused, who were present in the court at the time of the recording of their statements, were with Sukhcharan Singh accused when the said offences were committed. This was the identification of the accused in the court for the first time and no test identification parade was held. Such identification made in the court, after lapse of so many years, is meaningless and not admissible. He also submitted that the trial court could not have taken cognizance of the offence under Section 186 IPC in the absence of the complaint made in that regard by the concerned public servant. No such complaint was made and that itself is a ground for acquittal of the accused. In the last, it was submitted that the accused had been standing their trial for all these years and have already undergone imprisonment for a period of one month and 20 days and the sentence of imprisonment so imposed upon them be reduced to the period already undergone by them. On the other hand, it has been submitted by the learned State counsel that even in the absence of any evidence regarding holding of test identification parade, reliance can be placed on the identification of the accused made by the prosecution witnesses in the court for the first time. There was sufficient time for the prosecution witnesses to note down the Crl. Revision No. 813 of 2005 7 distinctive features of the accused at the time of the occurrence and on the basis thereof, they were in a position to identify them in the court for the first time. However, he could not counter the other submissions made by the learned counsel for the accused that cognizance of the offence under Section 186 IPC could not have been taken in the absence of any complaint made in that regard by the public servant. The prosecution version in the court was unfolded by Gulshan Kumar (PW-4). He reiterated the facts so narrated by him in the application given before the police. He stated that it was Sukhcharan Singh, who entered the booth alongwith 8-9 persons under a well planed conspiracy and all of them tore the ballot papers and damaged the ballot boxes. They totally destroyed this polling booth. The statement of this complainant was fully corroborated by Raj Bhasin (PW-1), who was also present on duty with the complainant at the time of the occurrence. According to both the witnesses, they had not stated the names of the other accused in their statements before the police recorded under Section 161 of the Criminal Procedure Code. If that was the case, how the investigating agency came to know that it were the other accused who were with Sukhcharan Singh at the time of the occurrence. The complainant and the other witnesses could have identified those accused in the court but the question arises as to how they were challaned in this case and were brought to the court when their names were not so disclosed by these witnesses and no test identification parade was conducted during the investigation for getting those accused identified from them. In the circumstances of the present case, no reliance can be placed upon the identification of the other accused made by these witnesses in the court for the first time and that itself Crl. Revision No. 813 of 2005 8 is a ground for acquitting them. However, Sukhcharan Singh accused was named in the application made by the complainant to the police and was again named and identified in the court by the prosecution witnesses. No ground has been made for setting aside the finding of conviction recorded against that accused. According to Section 195 of the Criminal Procedure Code, no court can take cognizance of the offence under Section 186 IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Gulshan Kumar (PW-4) was the concerned public servant. No doubt, he made a written complaint before the SHO, on the basis of which FIR was recorded but he never made any complaint before the Judicial Magistrate. The Magistrate could not have taken the cognizance of the offence under Section 186 IPC, on the basis of the police report, in the absence of any complaint by the concerned public servant himself. On that ground Sukhcharan Singh accused is liable to be acquitted of the offence under section 186 IPC. There is no denial of the fact that Sukhcharan Singh is standing his trial for the last so many years, but keeping in view the nature of the offences it will not be in the interest of justice in case sentence so imposed upon him is reduced. This country is known in the world as the largest democracy and the grass root thereof are the elections of the gram panchayats. This accused interfered in that election process. The acts so committed by him are to be viewed seriously. No one can be allowed to interfere in the peaceful election process by resorting to such like means. In the result, this revision is accepted, so far as Malkiat Singh, Darshan Singh, Shivraj Singh, Balwinder Singh and Om Parkash accused Crl. Revision No. 813 of 2005 9 are concerned. Their conviction and sentence is set aside and they are acquitted of the offences under Sections 186, 353, 427, 451/149 and 147 IPC. The fine, if already deposited, be refunded to them. Sukhcharan Singh accused is acquitted under Section 186 IPC, whereas his conviction and sentence under other sections is maintained. He is stated to be on bail. He be taken into custody to serve the remaining sentence. Records of the trial court be returned forthwith. February 16, 2011 (GURDEV SINGH ) prem JUDGE