CRR No. 352 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No. 352 of 2003 Date of decision: 1.12.2010 Dharam Singh ........ Petitioner Versus Hari Om and others ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH PRESENT: Mr. Sukhvinder Pal Singh, Advocate, for the petitioner. Mr. Tapan Kumar Yadav, Advocate, for the respondents. JORA SINGH, J. Dharam Singh, preferred this revision petition against the judgment of acquittal dated 3.8.2002, passed by the learned Additional Sessions Judge, Rewari, in Sessions Case No. 87 of 25.9.1998/ 30.10.1999, arising out of FIR No. 88 dated 10.6.1998, registered under Sections 304/316/323/452/148/149 of the Indian Penal Code at Police Station Jatusana. By the said judgment, Hari Om, Sadhu Ram and Anand were convicted and sentenced whereas Om Parkash, Har Chand and Laxmi Narayan, were acquitted of the charges levelled against them. Prosecution story, in brief, is that on 29.5.1998, a V.T. message was received in the Police Station Jatusana, regarding CRR No. 352 of 2003 -2- admission of Satpal and Dharam Singh in Government Hospital, Rewari and on receipt of this message police party headed by ASI Ram Avtar had gone to Government Hospital, Rewari. In the meanwhile, another ruqa dated 30.5.1998, was received regarding the admission of Roshni in Government Hospital, Rewari. Application was moved requesting the doctor to opine as to whether Satpal, Dharam Singh and Roshni, were fit to make statements or not. Doctor opined that Satpal, Dharam Singh and Roshini, were fit to make statements but they refused to make statements. On 2.6.1998, again ASI Ram Avtar, had gone to Government Hospital, Rewari and requested the injured to make their statements then Dharam Singh, made statement Ex. PA to the effect that on 29.5.1998, at about 4.00 p.m. he was present in his house. His son Jagdev aged about 16 years came and told that cattle had entered into Jawar fields of Har Chand then Har Chand and others had reprimanded him. He came out of his house, in the meantime, Sadhu Ram and Anand came armed with lathis. Hari Om was also with them. Accused abused them then Sadhu Ram gave lathi blows on his head and right shoulder. His son Satpal and daughter-in-law Roshni came at the spot. Anand gave lathi blows on the person of Satpal. Hari Om gave kick blow in the abdomen of his pregnant daughter-in-law Roshni. On hearing raula Champa and Har Saroop came at the spot and had witnessed the occurrence. They had rescued them from the clutches of the accused. After causing injuries accused had fled away from the spot. After making arrangement of conveyance injured had gone to Civil Hospital, Rewari. He alongwith his son were admitted in Civil CRR No. 352 of 2003 -3- Hospital, Rewari, while his daughter-in-law Roshni was admitted in hospital on 30.5.1998. On account of the receipt of kick blow Roshni aborted in the hospital. After recording the statement Ex. PA the same was sent to the police station on the basis of which DDR No. 15 dated 2.6.1998, under Sections 323/324 and 316 IPC was recorded. Subsequently, as a result of injuries sustained by Roshni in the occurrence she died on 4.6.1998, in Safdarjang Hospital, Delhi. During investigation statement of Dharam Singh under Section 164 Cr.P.C. was recorded. In the statement dated 20.6.1998, Dharam Singh, had named Hari Om, Sadhu Ram, Anand, Om Parkash, Harchand and Laxmi Narain. Accused were arrested. After completion of investigation challan was presented in the Court. Accused were charge-sheeted under Sections 304/326/ 323/452/149 and 148 of the Indian Penal Code, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined PW-1 Dharam Singh, PW-2 Dr. M.K. Garg, PW-3 Dr. Mahesh Narang, PW-4 Dr. Ishwar Singh, PW-5 ASI Satnarain, PW-6 Sube Singh, PW-7 Joginder Singh, PW-8 SI Phool Singh, PW-9 ASI Sunder Pal, PW-10 Jaspal, PW-11 Shri N.K. Biriwal, PW-12 ASI Ram Avtar, PW-13 ASI Sri Niwas, PW-14 Ajit Singh and PW-15 Dr. L.K. Baruax. After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded wherein they denied all the allegations of the prosecution and pleaded to be innocent. In defence DW-1 Constable Mahipal, DW-2 Dr. Kamal CRR No. 352 of 2003 -4- Mehra, DW-3 Samay Singh, retired DSP and DW-4 Dr. P.K. Paliwal, were examined. After hearing learned Public Prosecutor for the State, learned defence counsel and after going through the evidence on record, Hari Om, Sadhu Ram and Anand were convicted and sentenced whereas Om Parkash, Har Chand and Laxmi Naraian, were acquitted of the charges levelled against them. I have heard learned counsel for the petitioner, learned counsel for the respondents and have carefully gone through the evidence available on the file. Learned counsel for the petitioner argued that Om Parkash, Har Chand and Laxmi Narain were also present at the spot armed with lathis. They alongwith Hari Om, Sadhu Ram and others had caused injuries to Dharam Singh, Satpal, Roshni and Indrawati but evidence on file was not property scrutinized by the trial Court. When the judgment is perverse and the evidence on file was misread then Appellate Court has the power to interfere. Learned counsel for the respondents argued that occurrence is dated 29.5.1998, whereas statement of Dharam Singh – complainant was recorded on 2.6.1998. Dharam Singh was declared fit to make statement but he refused to make statement. In the statement dated 2.6.1998, Om Parkash, Har Chand and Laxmi Narain were not named but later on statement of Dharam Singh was recorded under Section 164 Cr.P.C. on 20.6.1998 then they were named but they had not caused injuries to anyone. Firstly, there is delay in lodging the FIR. Secondly, statement of Dharam Singh dated 2.6.1998 is contrary to the CRR No. 352 of 2003 -5- statement dated 20.6.1998. Statement of Har Saroop was also recorded under Section 164 Cr.P.C. but he stated that he had not witnessed the occurrence. Ex. PS is the statement of Har Saroop recorded under Section 164 Cr.P.C. Smt. Champa was the eye-witness and her statement under Section 164 Cr.P.C. was also recorded. Ex. PT is the statement of Smt. Champa but she categorically stated that Roshni was not present at the spot, at the time of present occurrence. Delay in lodging the FIR not explained. Statement of Dharam Singh dated 2.6.1998, Ex. PA is contrary to the statement under Section 164 Cr.P.C. dated 20.6.1998, Ex. PB. When injured were fit to make statements as per opinion of the doctor then there was no idea to refuse to make statements. Evidence on file was rightly scrutinized by the trial Court. Undisputedly, FIR was registered against six accused but three were convicted and sentenced and three were acquitted. Acquitted accused are Om Parkash, Laxmi Narain and Har Chand. Against acquittal no appeal by the State. Occurrence is dated 29.5.1998 at 4.00 p.m. After the occurrence injured reached at Civil Hospital, Rewari. Regarding admission of injured V.T. message was sent to the concerned police station and on receipt of message ASI Ram Avtar had gone to Civil Hosptial, Rewari. By moving an application opinion of the doctor was sought as to whether injured are fit to make statement or not. Doctor opined that injured are fit to make statements but injured refused to make their statements. If the respondents had caused injuries and were lying admitted in the hospital. Doctor had declared them fit to CRR No. 352 of 2003 -6- make their statements then there was no idea to refuse to make statements. Again on 2.6.1998, the Investigating Officer had gone to Civil Hospital, Rewari and requested the injured to make statements then statement of Dharam Singh Ex. PA dated 2.6.1998, was recorded but as per statement Ex. PA Sadhu Ram, Anand and Hari Om had caused injuries to Dharam Singh, Satpal and Roshni. Occurrence was witnessed by Jagdev, Champa and Har Saroop. Statement Ex. PT of Champa was recorded under Section 164 Cr.P.C. Champa stated that Roshni was not present at the time of occurrence. Statement Ex. PS of Har Saroop was also recorded under Section 164 Cr. P.C. In the statement under Section 164 Cr.P.C. he stated that he had not witnessed the occurrence. Statement of Dharam Singh, was also recorded under Section 164 Cr.P.C. Ex. PB is the statement of Dharam Singh dated 20.6.1998, then he named six accused, namely, Hari Om, Sadhu Ram, Anand, Om Parkash, Har Chand and Laxmi Narain. Dharam Singh is illiterate and if respondents had caused injuries as per statement Ex. PA then there was no idea, not to report the matter immediately to the police. In the statement Ex. PA Dharam Singh could easily name all the six accused. There was no idea to leave Laxmi Narain, Har Chand and Om Parkash. When Har Saroop and Champa in their statements under Section 164 Cr.P.C. did not support the prosecution story then Dharam Singh in his statement under Section 164 Cr.P.C. dated 20.6.1998, named six accused. No allegation of Dharam Singh that his statement Ex. PA was not recorded correctly. Prosecution is not clear which CRR No. 352 of 2003 -7- statement is correct one i.e. Ex. PA or Ex. PB. As per Ex. PA Champa and Har Saroop had witnessed the occurrence but they were not examined for the reasons best known to the prosecution. As per Ex. PB occurrence was witnessed by Mahipal, Sube Singh and Ajit Singh etc. and if they had witnessed the occurrence then why they were not named as the eye-witnesses in the first statement Ex. PA dated 2.6.1998. Dharam Singh when appeared as PW-1 then he named six accused including the accused acquitted by the trial Court but he is not clear to whom they had caused injuries. Dharam Singh, simply stated that all the accused were armed with lathis and had caused injuries to him, his son Satpal, his wife Indra Wati and daughter-in-law Roshni. PW-6 Sube Singh, claimed to be the eye-witness and stated that all the six accused armed with lathis had caused injuries to Dharam Singh, Satpal, Indra Wati and Roshni. Ajit, Sube Singh, Mahipal, Champa and Har Saroop, were also present at the spot at the time of present occurrence but in view of the statement Ex. PA Sube Singh was not the eye-witness. In view of the present occurrence dated 29.5.1998, Hari Om gave kick blow in the abdomen of Roshni. Roshni was also got admitted in the hospital. She was fit to make statement but no explanation why her statement was not recorded till her death on 4.6.1998. All discussed above shows that trial Court rightly opined that there was delay in lodging the FIR. Delay was not explained. No explanation as to why injured failed to make statements when they were CRR No. 352 of 2003 -8- declared fit to make statements. Statement of Dharam Singh Ex. PA is contrary to the statement dated 20.6.1998, Ex. PB. Presence of Roshni was also doubtful. After going through the evidence on file I am of the opinion that possible view was taken by the trial Court. Judgment of acquittal is to be set aside if the Court is of the opinion that the same is perverse and evidence on file was misread. Lightly judgment of acquittal is not to be set aside simply on the ground that Appellate Court is inclined to take different view than the possible view taken by the trial Court. For the reasons recorded above, there is no infirmity and illegality in the impugned judgment and the same is upheld. Revision petition without merits is dismissed. December 01, 2010 ( JORA SINGH ) rishu JUDGE