CRR No.3110 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.3110 of 2010 (O&M) Date of decision: 09.02.2011 Rohtash ....Petitioner Versus State of Haryana and others ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - None. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) This revision petition is filed for against the judgment dated 10.4.2010 passed by learned Additional Sessions Judge, Hisar, thereby acquitting the accused/respondents of the charge under Sections 323/325 of the Indian Penal Code. Brief facts of the present case are that on 11.12.1999 complainant got recorded a statement before the police to the effect that he is an agriculturist by occupation and he has taken an agricultural land of one Rajender on lease and has sown wheat crop over there; that on the intervening night of 10/11.12.1999 at about 10.00 p.m. while he was watering his fields from tubewell, then in the meantime, two young persons, the name of one of them was Rajpal came there having lathis in their hands and caused injuries on his person with their respective lathis; that on his raising alarm, two persons namely Ramesh and Kala came CRR No.3110 of 2010 (O&M) -2- there and rescued him from the clutches of the accused persons and the accused persons then ran away from the spot. After completion of the investigation, challan against the accused was presented in the Court for trial. To support its case, prosecution has examined Dr. Usha Kalra as PW1, Ramesh alleged eye-witness as PW2, Rohtash (complainant- injured) as PW3, Dr. S.K. Batta, CMO as PW4, SI Dharampal as PW5, ASI Jagmal Singh as PW6, HC Shamsher Singh as PW7, ASI Ramesh Chander Investigating Officer of the case as PW8 and closed the evidence. Statements of accused persons under Sections 313 Cr.P.C. were recorded in which they pleaded false implication and claimed innocence. No evidence in defence was led by the accused persons. After hearing the learned counsel for the parties and going through the record, learned Magistrate has held as under: - “I am of the considered opinion that the prosecution has been able to fully prove its case against the accused persons and it is proved on the file beyond reasonable doubt by cogent and positive evidence that on the fateful night, the accused persons in furtherance of their common intention, caused multiple injuries on the person of the complaint and have, thus, committed offences punishable under Section 323, 325 IPC read with Section 34 IPC and are liable to be convicted there under. Accordingly, the accused are hereby held guilty and are convicted under the aforesaid sections. Let the accused/convict be heard on the quantum of sentence on 10.3.2009.” Aggrieved by the judgment passed by the learned Trial Court accused/respondents preferred appeal before the Appellate Court/Additional Sessions Judge, Hisar, wherein the Appellate Court acquitted the accused persons vide judgment dated 10.4.2010 by observing as under: - CRR No.3110 of 2010 (O&M) -3- “In Ex. P1 complainant Rohtash stated that he came to know the name of Rajpal afterwards, but in the court he deposed that he identified Rajpal at the spot. In Ex.P1 Rohtash stated that Rajender had taken him to his fields from the spot and following day he came to his house, whereas in the court Rohtash as PW3 deposed that he came to his house that very night and on the next day he was taken to civil hospital, Hansi by Rajender. He was also confronted with portion A to A1 of statement Ex.P1, wherein the factum that Rajender had taken him to his fields during night and from there he came home next morning, finds mention. It was further contended by learned counsel for the appellants that in this case FIR is delayed. The occurrence is of 10.00 P.M. The MLR of Rohtash shows that he was taken to civil hospital Hansi at about 12.30 p.m. on 11.12.99. The FIR Ex.P1 shows that the same was recorded at 2.30 p.m. There is also over writing on the time mentioned and at the end of the FIR. Rohtash PW3 stated that he was brought to civil hospital, Hansi at 8.00 a.m. The police reached at hospital at 8.30 p.m. Thus, with the evidence on the file, it is evident that after receipt of injuries during night time Rohtash was not brought to hospital that very night. Even up 2.30 p.m. FIR was not recorded during this period. There was opportunity for the complainant party to have deliberations before getting the FIR recorded. Even Rohtash has mentioned about enmity in Ex.P1. Delay in lodging of FIR does not rule out the possibility of coloured version and thought out stories. As a result, since the statement of PW3 Rohtash is not consistent in the prosecution case so as to inspire confidence in the mind of court regarding the guilt of accused and further as Ramesh witness did not corroborate the statement of PW3 Rohtash. Therefore, I am of the considered view that prosecution has failed to prove his case against both the accused beyond reasonable doubts. As such, judgment of conviction dated 9.3.2009 and order of sentence recorded by Sh. A.D. Dewan, Sub Divn. Judl. Magistrate, Hansi is not sustainable and same is hereby set aside and both the appellants/accused are ordered to be acquitted.” 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 serious nature which has CRR No.3110 of 2010 (O&M) -4- 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 lihtly 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 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 qcquitted 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.” In view of the dictum of the Hon'ble Apex Court, in the humble opinion of this Court, in a revision filed by the complainant against the order of acquittal, revisional Court has no jurisdiction to re- appreciate the evidence. However, revisional Court shall be within its CRR No.3110 of 2010 (O&M) -5- jurisdiction to see as to whether trial Court has shut out or has overlooked the evidence which could clarify the issue. Revisional Court can further seek manifest error of law or jurisdictional error or procedural error committed by the trial Court amounting to failure of justice. In the present case from the perusal of the record, I am satisfied that Court below has not shut out or overlooked any evidence, which could prove offence against the accused. I do not find any manifest error of law or jurisdictional error or procedural error on the part of Court below resulting in wrong judgment. In the opinion of this Court, judgment impugned does not require any interference. Dismissed. (Alok Singh) Judge February 09, 2011 R.S.