IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Rev. No. 2277 of 2002 (O&M) Date of decision: 26.3.2009 Jagdish Lal and another … Petitioners Versus Babu Singh etc. … Respondents Present: Mr. H.S. Rakkar, Senior Advocate with Mr. P.S. Baath, Advocate for the petitioners. Mr. Rahul Vats, Advocate for the respondents. *** S.S. SARON, J. The Crl. Revision petition has been filed against the order dated 12.4.2002 passed by the learned Additional Sessions Judge, Ludhiana, whereby the respondents have been acquitted of the offences punishable under Sections 148, 149, 364, 427, 323 and 452 Indian Penal Code (“IPC” – for short); along with the revision petition Crl. Misc. No.49135 of 2002 has been filed under Section 391 read with Section 401 of the Code of Criminal Procedure (“CrPC” – for short) for production of additional evidence on record. During the pendency of the petition, it was stated by learned counsel for the petitioners on 21.1.2008 that respondents No.1, 7 and 12 namely Babu Singh, Gopal Chand and Dalbag Singh had died and he prayed for deletion of their names from the array of the parties. This Court vide order dated 21.1.2008 allowed the prayer and deleted the names of respondents No.1, 7 and 12 from the array of the parties. The revision petition has been filed by the complainant Jagdish Lal (petitioner No.1) and his son Kamal Gupta (petitioner No.2). Crl. Rev. No. 2277 of 2002 (O&M) 2 Jagdish Lal (petitioner No.1) runs a Dhaba on G.T. road, Gajja Jain Colony, Sherpur Byepass, Ludhiana. He resides with his family. On 3.11.1995 he was sleeping in the Dhaba while his other family members i.e. his sons Kamal Gupta (petitioner No.2), Vikrant and Rajiv; besides his daughters-in-law Kiran and Seema, his daughters Preeti and Nisha and his wife Shakuntala were also sleeping in the house. At about 3.00 a.m., 10/15 persons came to his Dhaba armed with hockey sticks and swords. Babu Singh (respondent No.1) gave a blow with a ‘hockey’ stick on the left hand of Jagdish Lal. Surinder Pal (respondent No.2) gave a blow with his ‘soti’ (stick) which hit on the right leg of Jagdish Lal (petitioner No.1). Iqbal Singh (respondent No.3) and Harjit Singh (respondent No.4) also hit Jagdish Lal with their ‘sotis’ (sticks). An alarm was raised by Jagdish Lal (petitioner No.1) which attracted the other members of his family who came to the dhaba. Rajinder Pal tried to hit Rajiv Gupta with his ‘sword’. However, Rajiv Gupta stepped aside to ward off the blow. The sword blow, however, hit Vikrant Gupta on his right ear. Thereafter, the accused put all the family members of Jagdish Lal (petitioner No.1) in a room by thrusting them there with their hockey sticks and sotis and they tied the legs and arms of all the family members of Jagdish Lal (petitioner No.1). The family members were then put into a truck; besides, iron boxes, coolers, two petis (boxes), two beds, chairs, table and utensils of the dhaba were also loaded in the same truck along with the takhatposh (wooden platform) , sewing machine, bedding, bed sheets and clothes, furnaces and doors of the dhaba were dismantled by the accused. In this manner, the accused caused loss to the tune of Rs. 2000/- to Rs.4000/- to the complainant. Thereafter, the complainant Jagdish Lal (petitioner No.1) and his other family members along with Crl. Rev. No. 2277 of 2002 (O&M) 3 the articles loaded in the truck were taken towards Moti Nagar with an intention of killing them. When the truck was taking a turn towards Moti Nagar, one of the sons of Jagdish Lal (petitioner No.1) namely Kamal Gupta (petitioner No.2) managed to jump out of the truck and run away. The truck then was taken towards village Bahadurke where all the family members of Jagdish Lal (petitioner No.1) were put in a room while their articles were thrown in the plot. Kamal Gupta (petitioner No.2) son of petitioner No.1, who had jumped out from the truck, went to the Police Station. After sometime, he arrived at the plot in Bahadurke along with the police and one Tarlok Singh. Then the members of the family of Jadish Lal (petitioner No.1) were got set free by the police. The accused Gopal Chand (respondent No.7) (since deceased), Dharam Pal (respondent No.8), Prem Kumar (respondent No.9), Babu Singh (respondent No.1) and Bachan Kaur (respondent No.13) were arrested by the police at the spot. The articles that were lying at the plot were identified by Jagdish Lal (petitioner No.1) to be his articles. The injured were got medico-legally examined from the Civil Hospital, Ludhiana. Investigations in the case were carried out and the charge report (challan) in the case was filed in the Court of learned Chief Judicial Magistrate, Ludhiana. The offence under Section 364 IPC was prima facie found to be made out against the accused. The same being exclusively triable by the Court of Sessions, the case was committed by the learned Chief Judicial Magistrate to the said Court for trial vide order dated 5.3.1997. The learned Sessions Judge, Ludhiana charged the respondents for having committed the offences under Sections 148, 149, 364, 427, 323 and 452 IPC. The respondents pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined Kamal Crl. Rev. No. 2277 of 2002 (O&M) 4 Gupta (petitioner No.2) as PW1, Jagdish Lal (petitioner No.1) as PW2 and Vikrant Gupta son of Jagdish Lal (petitioner No.1) as PW3. Kamal Gupta (PW1) supported the prosecution case. He proved the recovery memo (Ex.PB) in pursuance of which articles of Jagdish Lal (petitioner No.1) were taken in possession by the police from the plot at village Bahadurke. The memo of identification of articles (Ex.PC) was also proved. Jagdish Lal (PW2) stated that the hockey stick was recovered from Babu Singh (respondent No.1), besides, a sword was recovered from Gopal Chand (respondent No.7). Jagdish Lal (PW2) in his deposition proved the recovery of the petis (Exs.P1 and P2), coolers (Ex.P3), sewing machines (Exs.P4, P5 and Ex.P6), bed (Ex.P7), cot (Ex.P8), table fan (Ex.P13), iron boxes (Exs.P14 and P15), glass tumblers (Exs.P16 to P29), 48 plates (Exs.P30 to P77), four petis (Ex.P78 to P81), a chair (Ex.P82), dressing table (Ex.P83) and three gaddas (mattresses) (Ex.P84 to P86). The accused it was alleged had come on a truck bearing registration No. PCU-5189. Harmesh Singh a clerk in the office of District Transport Office, Jalandhar stated that according to the record maintained in his office, Dilbagh Singh son of Sardara Singh (respondent No.12) was recorded as registered owner. The registration certificate (Ex.PW3/A) was proved. Harminder Singh (PW4) draftsman had drawn site plan (Ex.PW4/A) on the identification at the spot by Pawan Gupta son of Jadish Lal Gupta (petitioner No.1). Tarlok Singh (PW5), a dairy owner of Moti Nagar Ludhiana deposed that on 3.11.1995 i.e. the date of occurrence, he was going to the New Vegetable Market situated at Jalandhar Byepass. A police party met him on the way at Bahadurke Road. Sub Inspector Ram Sarup was Incharge of the police party and Kamal Gupta (petitioner No.2) (PW1) was with them on an Allwyn Crl. Rev. No. 2277 of 2002 (O&M) 5 Nissan vehicle. On the asking of the police party, Tarlok Singh (PW5) joined the same. The police party was to conduct a search of the stolen articles of the complainant Jagdish Lal (petitioner No.1). When the police party reached near Oswal Dyeing Factory, they saw a vacant plot with one/two rooms constructed over it and the articles were lying scattered in the plot. The ladies and five male members were present at the spot and out of them some had left. In any case, five male members and three ladies were nabbed by the police. In the room Jagdish Lal (petitioner No.1), his wife, two daughters, two daughters-in-law and two sons were confined in the room and were rescued by Sub-Inspector Ram Sarup. Tarlok Singh (PW5) identified the articles. Weapons recovered from Babu Singh (respondent No.1) and Prem Kumar (respondent No.9) were taken in possession vide recovery memos (Ex.PD and Ex.PE). Puran Singh (PW6) deposed that an extra-judicial confession was made on 5.11.1995 by Surinder Pal Singh (respondent No.2), Harjit Singh (respondent No.4) and Iqbal Singh (respondent No.3) and the sons of accused Babu Singh (respondent No.1) came to him in the Company of three other persons. They requested Puran Singh (PW6) for producing them before the police as he had influence with the police. Puran Singh (PW6) stated that the three sons of Babu Singh (respondent No.1) namely Surinder Pal Singh (respondent No.2), Iqbal Singh (respondent No.3) and Harjit Singh (respondent No.4) had confessed before him that they had beaten up the members of the family of Jagdish Lal (petitioner No.1). Puran Singh (PW6) was taking Surinder Pal Singh (respondent No.2), Harjit Singh (respondent No.4) and Iqbal Singh (respondent No.3) to the Police Station that the ASI Incharge of the Police Chowki along with other police officials met them on the way near the overhead water Crl. Rev. No. 2277 of 2002 (O&M) 6 reservoir. Puran Singh then produced the said three accused before the ASI. Sub Inspector Ram Sarup (PW8) who is the Investigating Officer in the case stated that while he was present at Vishkarma Colony, Ludhiana on 3.11.1995 along with police official then Kamal Kumar (PW1) came to him and got his statement (Ex.PA) recorded which was endorsed by him vide Ex.PW8/A. It was sent to the Police Station through SPO Jagroop Singh, where formal FIR (Ex.PW8/B) was registered. Sub Inspector Ram Sarup (PW8), the Investigating Officer conducted investigations at the place of occurrence. He got the site photographed and also drew its rough site plan (Ex.PW8/C). Thereafter, a search was made for the accused and Tarlok Singh (PW8) was joined by the police in the investigations. In the plot on the Bahadurke road, accused were seen sitting outside a room in the plot. The door of the room was bolted. Three men and five women were recovered from the room at the plot. They were the father, two brothers, two sisters, wife and sisters-in-law of Kamal Gupta (PW1). Babu Singh (respondent No.1) his wife Bachan Kaur (respondent No.13), Gopal Dass (respondent No.7) and his son Dharam Pal (respondent No.8), Prem Kumar (respondent No.9) and Kamal Kumar were present at the plot at that time and were arrested by the police. On 5.11.1995, Sub Inspector Ram Sarup (PW8) was present near the overhead water reservoir in the area of Moti Nagar, Ludhiana where Puran Singh (PW6) produced six of the accused namely Surinder Pal Singh (respondent No.2), Surinder Kumar, Iqbal Singh (respondent No.3), Harjit Singh (respondent No.4), Sajjan Singh and another person whose name he could not recollect. The accused Surinder Pal Singh (respondent No.2), Iqbal Singh (respondent No.3) and Harjit Singh (respondent No.4) were carrying swords with them which were taken in Crl. Rev. No. 2277 of 2002 (O&M) 7 possession in pursuance of recovery memos. Thereafter from the Transport Nagar, Ludhiana truck No.PCU-5187 along with route permit and driving licence of Dilbagh Singh (respondent No.12) were taken in possession. Jagdish Lal (petitioner No.1) was medico-legally examined on 13.12.1995. The photographs that were taken of the place of occurrence were obtained from Jaswinder Singh on 13.12.1995. Ashwani Kumar Photographer (PW9) supported the prosecution version and stated that on 3.11.1995, he had gone to Moti Nagar, Ludhiana where household articles and the articles of dhaba were lying scattered. He took 6-7 photographs which were exhibited as Ex.PW9/7 to PW9/12. Their corresponding negatives were also tendered in evidence. He stated that no retouching of the photographs or the negatives was done by him. Kuldip Singh (PW10) AMHC at Police Station Focal Point, Ludhiana was examined. He tendered in evidence his affidavit (Ex.PW10/A). According to the said affidavit, SI Ram Sarup (PW8) had deposited the domestic articles as per the list, a hockey stick and swords with Kuldip Singh AMHC on 5.12.1995. Ram Sarup had also got deposited a truck bearing registration No. PBU-5187. It was stated that as long as the articles remained with him, he did not tamper with them nor he allowed anybody to tamper with them. Constable Ravinder Singh (PW11) by way of affidavit deposed that special report of the case was given to him at about 7 a.m. on 3.11.1995 but he could not find the residence of the Ilaqa Magistrate. Thereafter, he went to his Court to deliver the special report to him which was delivered at 10.00 am. Joginder Singh (PW12) Senior Assistant in the office of District Transport Officer, Jalandhar deposed that the driving licence (Ex.PW12/A) was issued in the name of Dilbagh Singh (respondent Crl. Rev. No. 2277 of 2002 (O&M) 8 No.12). After evidence of the prosecution, the statement of the accused in terms of Section 313 CrPC was recorded and the evidence appearing against him was put to him. In defence, the accused examined Om Parkash Ahlmad of the Court of learned Chief Judicial Magistrate, Ludhiana (DW1). He brought the summoned file of contempt application titled Babu Sing v. Jagdish Lal and others under Order 39 Rule 2A of the Code of Civil Procedure. Manjit Singh, Ahlmad (DW2) of the Court of learned Civil Judge (Junior Division), Ludhiana was examined and he brought the file of private complaint titled Babu Singh v. Jagdish Lal in respect of offences under Sections 467, 468, 471, 120-B IPC. In the said complaint Jagdish Lal (petitioner No.1) had been summoned and was facing trial. Harminder Singh, a textile master (DW3) stated that Tarlok Singh (PW5) was known to him as he was also a textile master. He also stated that he was acquainted with the voice of Tarlok Singh (PW5). In the third week of November, 1999, Tarlok Singh (PW5) had met Harminder Singh (DW3) and informed him of having deposed in the case against the accused for consideration of Rs.60,000/- which he received from the complainant Jagdish Lal. Upon that Harminder Singh (DW3) brought Tarlok Singh (PW5) to the house of Babu Singh (respondent No.1) where both of them and a son of Babu Singh sat together and had talk. Conversation amongst them was recorded on the audio cassette (Ex.DW3/B) by the son of Babu Singh. The audio cassette was played in the Court during the statement of Harminder Singh (DW3) and he recognized the voices of Babu Singh (respondent No.1), Tarlok Singh (PW5) and the son of Babu Singh, besides, his own voice in the version as recorded in the audio cassette (Ex.DW3/A). The certified copies of the judgment and decree (Exs.D1 and D2) dated 20.9.1988 passed by the Crl. Rev. No. 2277 of 2002 (O&M) 9 learned Sub-Judge Ist Class, Ludhiana in suit titled Babu Singh v. Mohan Lal and another were tendered in evidence. Babu Singh (respondent No.1) was held to be in possession of property bearing Municipal No.923 situated at Sherpur Khurd. The Civil Court had by way of a temporary injunction restrained Jiwan Lal and Kamal Kumar from taking forcible possession of that property from Babu Singh. The copy of the judgment dated 13.8.1987 (Ex. DW3) passed by the learned Sub Judge Ist Class, Ludhiana in the suit filed by Kamaljit Singh against Babu Singh and another qua the property bearing Municipal No. Bxxx372 situated at Mohalla Sherpur Khurd Byepass was tendered in evidence. The said suit was dismissed by holding that Babu Singh (respondent No.1) was in possession of the suit property. Another judgment dated 15.9.1995 (Ex.D5) passed by the learned Sub-Judge in suit titled Babu Singh v. Bachan Kaur was tendered in evidence by the accused in which the suit of Jagdish Lal (petitioner No.1) qua the property bearing Municipal No. B-xxx/372/1 situated at Baba Gaja Jain Colony, near Moti Nagar, Sherpur was dismissed holding Babu Singh and not Jagdish Lal to be in possession of the said property. Jagdish Lal had filed an appeal against the said judgment and decree dated 15.9.1995 (Ex.D5) which was pending in the Court of learned Additional District Judge, Ludhiana. Babu Singh made a statement on 5.2.1999 that Jagdish Lal on 3.2.1999 had taken forcible possession of the property from him on 3.11.1995 with police help and as such he would get the possession back in due course of law only. The defendants produced on record the copy of order dated 5.2.1999 (Ex. D6) passed by the learned Additional District Judge, Ludhiana on the basis of the said statement of Babu Singh and also relying on the order dated 10.10.1995 passed by the learned Sub-Judge Crl. Rev. No. 2277 of 2002 (O&M) 10 Ist Class, Ludhiana on an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure in the suit filed by Babu Singh against Jagdish Lal and others, whereby the defendants were restrained by way of temporary injunction from dispossessing Babu Singh from the property B-XXX-791 by forcible means. The learned Additional Sessions Judge considered the question as to which of the factions was in possession of the disputed property and the same it was observed was the important issue on which the fate of the case hinges. After considering the evidence and material on record, it was held that the prosecution had not been able to prove its case beyond all reasonable doubts against the accused. Accordingly, the benefit of doubt was extended to the accused and they were acquitted of the charges. It was held that Babu Singh (respondent No.1) was in possession of the suit property on the date of occurrence as had been held by the Civil Court of competent jurisdiction. As such there was no occasion for Babu Singh to take other members of his family including aged women to throw out the articles from the Dhaba and then to abduct and wrongfully confine the members of the family of Jagdish Lal (petitioner No.1). In the face of the findings of the Civil Court of competent jurisdiction that Babu Singh (respondent No.1) was in possession of the property, the prosecution case was not accepted. The tape recorded evidence that was produced on record, it was observed, falls short from being admitted as reliable piece of evidence and the accused were not entitled to any advantage of this count. It was also found that the testimony of Tarlok Singh (PW5) was otherwise not found of the quality and character which could instill confidence of the Court. Crl. Rev. No. 2277 of 2002 (O&M) 11 Learned Senior counsel appearing for the petitioners has submitted that the prosecution had established its case against the accused beyond shadow of reasonable doubt and the learned trial Court committed a material irregularity and illegality in acquitting the respondents. It is also submitted that the additional evidence is liable to allowed to be produced on record. It is submitted that in previous litigation between Kamaljit Singh and Babu Singh i.e. Civil Suit No.125 filed on 30.3.1983 decided on 27.4.1987, Babu Singh (respondent No.1) had made a statement that he was not forcibly dispossess Kamaljit Singh and shall take possession only by due process of law. On the basis of the said statement, the suit filed by Kamaljit Singh was withdrawn. The copy of the judgment passed by the learned Additional District Judge on 10.1.1990 in appeal titled Kamaljit Singh v. Babu Singh is prayed for being placed on record as additional evidence in which the suit filed by Babu Singh for permanent injunction against Diwan Mohan Lal and Kamaljit Singh restraining the latter from dispossessing him forcibly and illegally from the property situated at Sherpur Khurd, Tehsil and District Ludhiana was dismissed. A decree sheet passed in appeal is Annexure P2. The copy of the statement of Babu Singh recorded on 27.7.1984 that he shall not take forcible possession of the disputed property from the plaintiff Kamaljit Singh and he shall take possession only by due process of law, is attached as Annexure P3. Besides, the statement of counsel for Kamaljit Singh dated 27.7.1984 that in view of the statement of the counsel for the defendant Babu Singh, the plaintiff Kamaljit Singh did not want to prosecute the suit is attached as Annexure P4. It is submitted that these documents are necessary and relevant documents to be proved by way of additional evidence. Moreover, these are judgments of Civil Crl. Rev. No. 2277 of 2002 (O&M) 12 Courts in earlier litigation between the parties and do not require any formal mode of proof. After giving my thoughtful consideration to the matter, it may be noticed that there is indeed a disputed question of fact as to who is in possession of the property in dispute. The learned trial Court had held that the dispute in the case hinges on the fact as to who is in possession of the property in question. On the basis of evidence and material produced before the learned trial Court, it was held that Babu Singh (respondent No.1) was in possession of the property. The said finding and conclusion is sought to be dispelled by the petitioner by producing on record the additional documents in which Babu Singh (respondent No.1) is stated to have submitted that he would dispossess Kamaljit Singh etc. only in accordance with law. From the said statement, inference is sought to be drawn that Babu Singh (respondent No.1) was never in possession of the property. Learned Senior Counsel has placed strong reliance on the order dated 5.2.1999 (Ex.D6) passed by the learned Additional District Judge, Ludhiana. It is submitted that the learned trial Court has wrongly mentioned that the statement of Babu Singh (respondent No.1) was recorded and on his statement an order was passed, whereas a perusal of the order dated 5.2.1999 (Ex.D6) showed that the statement of Jagdish Lal was recorded and order was passed on the basis of his statement and the appeal directing the defendant-respondent Babu Singh and Bachan Kaur not to take forcible possession of the property in dispute from the plaintiff forcibly and illegally except in due course of law was passed. It may be noticed that the question of as to who is in possession of the property is not to be determined or gone into in the Crl. Rev. No. 2277 of 2002 (O&M) 13 present case especially when various civil suits inter se between the parties are pending and the determination of the same is the domain of the civil Court. In the circumstances, the benefit of doubt which has been extended is not liable to be interfered with in exercise of of revisional jurisdiction of this Court. This Court in exercise of its revisional jurisdiction can call for the records of any proceedings for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. The revisional jurisdiction is supervisory in nature and is to be exercised for correcting miscarriage of justice. However, it cannot be equated with an appellate jurisdiction. There is no glaring feature in the appreciation of the evidence on record by the Courts below which would warrant interference by this Court in exercise of its revisional jurisdiction. Besides, no such circumstances has been brought to the notice of this Court from which it can be said any miscarriage of justice has been occasioned. Therefore, the findings and conclusions reached at by the learned Courts below in acquitting the respondents No.2 to 6, 8 to 11 and 13 to 16 cannot be said to be, in any manner, erroneous. Respondents No.1, 7 and 12 as already noticed have died. Babu Singh (respondent No.1) was the main accused. His name has already been deleted from the array of the parties. In the circumstances, no interference is warranted with the judgment and order passed by the learned trial Court. In view of the above, there is no merit in this revision petition and the same is accordingly dismissed. (S.S. SARON) March 26, 2009 JUDGE amit