In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1095 of 2001 Date of decision: March 03, 2009 Chandgi and others ... Petitioners vs. State of Haryana ... Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Sunil Panwar, Advocate for the petitioners. Mr. Parduman Yadav, DAG, Haryana for the respondent. A.N. Jindal, J Nine accused were challaned for the offence under Sections 326, 325, 324, 323, 34 IPC. On trial, the court of Sub Divisional Judicial Magistrate, Mahendergarh, vide its judgment dated 17.12.1999, observed that all the accused in furtherance of their common intention voluntarily caused grievous hurt to Sanwati, Ramjana, Majid and Sadik, therefore, convicted all of them under Section 323, 324, 325, 326 read with Section 34 IPC and sentenced them as under :- U/s 323 IPC : To undergo rigorous imprisonment for three months and to pay fine of Rs.200/- each. U/s 324 IPC : To undergo rigorous imprisonment for six months and to pay fine of Rs.250/- each. U/s 325 IPC : To undergo rigorous imprisonment for one year and to pay fine of Rs.300/- each. U/s 326 IPC : To undergo rigorous imprisonment for two years and to pay fine of Rs.500/- each. Crl. Revision No. 1095 of 2001 -2- *** However, during appeal, vide judgment dated 14.7.2001, learned Additional Sessions Judge, Narnaul dismissed the same preferred by the eight accused. However, accused Barket had not filed appeal. The brief resume of facts is that house of Sanwati (PW4) is quite adjacent to the house of Chandgi and Barkat accused (since deceased). On 9.4.1988, at about 10.00 a.m. a dispute arose on account of throwing water in the street by Sanwati to which Lali daughter of Barkat had lodged a protest and hurled abuses. On hearing this noise, Leelu, Babu Lal sons of Barkat, Om Parkash son of Chandgi, all accused, holding lathies came there. Babu Lal inflicted a lathi blow on the right side of her head. Leelu inflicted another lathi blow near her right eye. Om Parkash inflicted lathi blow on her neck. Ramjana (PW9) intervened in order to save her sister Sanwati. Meanwhile, Sitar Singh son of Jumardeen and Nabbo son of Chandgi armed with lathies arrived there. Sitar Singh inflicted a lathi blow on the forehead of Ramjana. Naboo also inflicted a lathi blow on her person. On hearing noise, Majeed (PW2) brother-in-law of Sanwati also came at the spot. At the same time, Majeed and Chandgi sons of Barkat also came there. Majeed caught another Majeed, whereas, Chandgi gave a kulhari blow on his right leg. Sadeek (PW9) father in law of Sanwati also arrived there and from the accused side Malku son of Chandgi and Barkat son of Bhakhtawar also came there. Malku and Barkat inflicted one lathi blow each on his left leg. Barkat inflicted lathi blow on his left shoulder and in the abdomen of Sadeek. The occurrence was witnessed by Krishan Kumar (PW6) and Rohtash. Sanwati, Ramjana, Majeed and Sadeek injured were shifted to the hospital where they were medico-legally examined. The case was investigated which was followed by a report under Section 173 Cr.P.C. Crl. Revision No. 1095 of 2001 -3- *** Charges against all the accused under Sections 323, 324, 325, 326 read with Section 34 IPC were framed to which they pleaded not guilty and claimed trial. The prosecution in order to support its case examined all the four injured. They have made consistent statements with regard to time, place and manner in which the occurrence took place. In their statements under Section 313 Cr.P.C. the accused denied all the allegations and pleaded their false implication. They examined Dr. Rajender Gera (DW1) and Lilu (DW2) in their defence. The trial ended in conviction. Their appeal also failed. Since accused Barkat had died during trial, he did not prefer any appeal. Arguments heard. Record perused. It is surprising to note that neither the trial court nor the appellate court applied its mind to the facts and law involved in the case. According to the medical evidence, Chandgi had caused grievous injuries falling under Section 326 IPC but no specific charge has been framed against him for inflicting grievous injuries on the person of Majeed. Similarly, no specific charge was framed against any accused. A general charge has been framed against all the accused. The motive behind framing of charge is to apprise the accused about the bare allegations and to inform him as to for which offences he is being tried and the questions which are to be decided against him. From the bare reading of the charge, it transpires that all the nine accused were charged for causing simple injuries under Section 323 IPC, whereas, there are only four injuries on the person of Sanwati. The charge does not depict as to who caused these injuries out of 9 accused. Again all the accused were charged for committing the offence under Section 324 IPC for causing injuries to Majeed. On perusal of the medicolegal report of Majeed, there are only two injuries on his person and it is not clear as to who caused these injuries. As a matter of fact, the court should have framed a specific charge for these Crl. Revision No. 1095 of 2001 -4- *** injuries against particular accused and other accused should have been charged with the aid of Section 34 of the IPC. Similarly, all the accused were charged for the offence under Section 325 read with Section 34 IPC for causing injuries to Sadeek and all the accused were charged for the offence under Section 326 read with Section 34 IPC for causing injuries to Majeed and no specific charge for causing grievous hurt with sharp edged weapon have been framed. That apart, the procedure followed by the trial court in conduct of the trial appears to be unknown inasmuch as the statements of the accused though were recorded by the official of the court but no certificate was appended as per provisions of sub-sections (4) and (5) of Section 281 Cr.P.C. which reads as under :- “281. Record of examination of accused – xxx xxxxxxx xxxxxxx (4) The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers. (5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.” In this case, no such certificate certifying that the examination was conducted in his presence and hearing and that the record contained full and true account of the statement made by him. Thus, in the absence of such certificate, it is difficult to say that Crl. Revision No. 1095 of 2001 -5- *** whether these statements were read over to the accused in their own language and whatever was said was recorded in their presence. It is further noticed that all the pages of the statements of the accused are not signed by the accused or the Magistrate. Further more, though the prosecution itself did not close its evidence of its own, so as the accused did not close their defence by making specific statement which was only their prerogative by making categoric statement and the court of its own could not close the same. If the Court wanted to close the evidence by order, then the court could record that the evidence was being closed by order by assigning reasons thereof. On perusal of the order dated 17.1.1995, there is nothing if the court closed the evidence by order. Even otherwise, while going through the merits of the case, the occurrence took place all of a sudden over throwing of dirty water by Sanwati. Not only this, the other fault committed by the complainant party is that they have not explained the injuries on the person of two accused namely Naboo son of Chandgi and Lilu son of Barkat. According to the medical evidence, Sanwati suffered four injuries; Majeed suffered two injuries; and Sadeek suffered three injuries. To the contrary, Naboo suffered at least seven injuries out of which two injuries were on the skull and on the chest i.e. vital parts of the body. The other circumstance which goes against the accused is that there is delay in lodging the FIR. The occurrence took place on 9.4.1988 at about 10.00 a.m. whereas the injured were admitted in the hospital at about 4.00 p.m. on the same day. To the contrary, Naboo and Lilu injured from the accused side were admitted in the same hospital i.e. Mahendergarh at about 2.40 p.m. i.e. prior to the complainant party. All this goes to show that the complainant party had gained sufficient time to concoct the prosecution version. As such, it could well be observed that all is not well with the prosecution case. The courts below have not taken into consideration the aforesaid circumstances of the case which has resulted into miscarriage of Crl. Revision No. 1095 of 2001 -6- *** justice. Consequently, interference in the impugned judgment has become inevitable at my end. On conspectus of the aforesaid circumstances, this court reaches the conclusion that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. Resultantly, I accept the petition, set aside the impugned judgment, acquit the petitioners of the charges framed against them. Bail bond and surety bonds furnished by them stand discharged. Fine, if any deposited by them, be refunded. March 03, 2009 (A.N. Jindal) deepak Judge