Criminal Misc. No.730-MA of 2007 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.730-MA of 2007 Date of decision : 3.9.2008 Narender Kumar .....Appellant Versus Dalip Singh ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. G.S.Sidhu, Advocate for the petitioner. Mr. S.K. Jain, Advocate for the respondent. S. D. ANAND, J. The appellant-complainant has filed a plea on the authority of the provisions of Section 378 (4) of the Code of Criminal Procedure to obtain leave to appeal against order dated 23.8.2007, vide which the learned Trial Magistrate recorded a finding of exoneration in favour of respondent/accused Dalip Singh. His co-accused Gobind Ram is indicated in the impugned order itself as dead. The other respondents/accused were not ordered to be summoned by the learned Trial Magistrate. The allegations, levelled by the appellant/complainant in the complaint, were as under:- On the evening of 10.11.1996, the appellant/complainant was celebrating Diwali festival with other members of his family when respondent/accused no. 3 Dalip Singh came over there while he was under the influence of liquor and started hurling abuses. When the Criminal Misc. No.730-MA of 2007 -2- **** appellant/complainant desired him to get away from there, respondent/accused left the spot but not without reiterating the abuses. At about 8.00 P.M., respondent/accused Dalip Singh along with others forced their entry between the house of the complainant/appellant. At that point of time, they were armed with lathis and gandasis. On reaching the house of the complainant, they initially raised a lalkara, Thereafter, respondents/accused belaboured the appellant/complainant with lathis and fist blows. When Ram Pal brother of appellant/complainant, endeavoured intervention on hearing a raula raised by the latter, the respondent/accused gave a Gandasi blow to him. Om Parkash and few women folk, belonging to the family of complainant, came over there on hearing the alarm raised by the complainant and they rescued them. The respondent/accused left the scene of occurrence but only after holding out a threat that the appellant/complainant would not be allowed to stay alive if they got an other opportunity in future. The appellant-complainant was treated in the hospital. Inspite of having been approached a number of time in the relevant behalf, the police did not take any action against the respondent/accused. Instead thereof, it foisted a false case against complainant and two members of the complainant party. During the course of preliminary evidence, complainant stepped into the witness box as PW-1 and examined PW-2 Ram Pal, PW- 3 Dr. Viresh Bhushan and PW-4 Om Parkash. On perusal of the preliminary evidence, the Court ordered the summoning of only Gobind Ram and Dalip Singh to face a trial under Sections 323, 452 and 506 IPC. As already indicated in the impugned order itself Gobind Ram is dead. That explains the filing of the present petition against only Dalip Singh. Criminal Misc. No.730-MA of 2007 -3- **** Learned Trial Court invalidated the prosecution presentation by observing that complaint in respect of occurrence dated 10.11.1996 have been filed after unexplained and inordinate delay on 30.1.1997 i.e. after delay of almost 2-2-1/2 months. Apart from noticing that “no explanation whatsoever is forthcoming on record for this delay” learned Trial Court observed that the present complaint is appeared to be counter blast of a State case which petitioner and some other were facing in case FIR No. 262 of 1996, Police Station, Nathusari Chopra under Sections 452, ,323, 324, 326 read with Section 34 IPC. The learned Trial Court, in order to draw sustenance from finding of exoneration also drew sustenance from the fact that no independent witness had entered the witness box to reiterate the presentation on behalf of the complainant and the alleged eye witness examined by the petitioner/complainant were also related to him. The fact that the petitioner/complainant was not proved to have notified the offence to the police was also noticed by the learned Trial Court while observing that “this casts serious doubt in the mind of the court that the occurrence took place in the manner depicted by the present complaint and that the accused was aggressor party. It appears that present complaint is a counter blast of the State case.” Learned counsel for the appellant argued that the impugned finding is perverse in view of the own finding by the learned Trial Magistrate conceding the factum of the impugned occurrence in which both the parties were participated. Learned counsel is not on a firmer footing when he so argues. Learned Trial Magistrate recorded adequate reasons to discard the presentation made by the appellant/complainant. As already indicated, learned Magistrate invalidated the presentation made by the Criminal Misc. No.730-MA of 2007 -4- **** appellant/complainant on account of fact that the (private) complaint had been filed after unexplained and inordinate delay of almost 2-21/2 months. It is also noticed that offence is not proved to have been notified to the police. The fact that the presentation by the appellant/complainant was supported only by relation witnesses and not by any independent witness was also noticed by the trial Magistrate to draw sustenance in support of the finding of exoneration. Learned Trial Magistrate, noticed that the present prosecution was a counter blast of the case in which the complainant/appellant and few others are being prosecuted. It cannot, thus, be said that the present case represents a cross-case. In the other case, the petitioner and his co-accused are averred to have been convicted and an appeal filed by them is pending consideration with the Court of Sessions. In the light thereof, learned counsel for the appellant/complainant raised a plea that if the present appeal comes to be allowed, it would enable the Court of Sessions to dispose of both the matter simultaneously. The plea advocated on behalf of the appellant/complainant does not merit acceptance for the simple reason that an appeal cannot be allowed just because the allowance thereof would enable simultaneously disposal in the above indicated manner. The parameters for disposal of such like controversy was indicated by the Apex Court in Ramesh Babulal Vs. State of Gurarat, AIR 1996 SC 2035, Jaswant Singh Vs. State of Haryana AIR 2000 SC 1833 and Main Pal Vs. State of Haryana AIR 2004 SC 2158. The impugned judgment has been decided on the touch stone of parameters indicated therein. There is nothing perverse in the manner Criminal Misc. No.730-MA of 2007 -5- **** of appreciation of evidence at the hands of learned Trial Magistrate. The impugned finding has not called for any interference. Dismissed. September 03,2008 (S. D. ANAND) Pka JUDGE Note: Whether to be referred to Reporter: Yes/No Criminal Misc. No.730-MA of 2007 -6- ****