Crl. Revision No. 1755 of 2005 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1755 of 2005 Date of Decision: February 10, 2011 Kala Singh ---Petitioner versus State of Punjab ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Ms. Sukhpreet Kaur, Advocate, for Mr. Amrik Singh Kalra, Advocate, for the petitioner Ms. Gagan Mohini, Assistant Advocate General, Punjab *** GURDEV SINGH, J. This revision has been preferred by Kala Singh, petitioner- accused, against the judgment dated 18.8.2005 passed by Additional Sessions Judge(Ad hoc), Sangrur, vide which he dismissed the appeal preferred by the present accused against the judgment/order dated 4.2.2004 passed by Sub Divisional Judicial Magistrate, Dhuri, convicting him for the offences under Crl. Revision No. 1755 of 2005 -2- Sections 323 and 324 read with Section 34 IPC and sentencing him as under:- Sr. No. Under Section Sentence awarded Fine 1 323/34 IPC To undergo rigorous imprisonment for a period of six months ` 500/- In default of payment of fine to undergo rigorous imprisonment for seven days 2 324/34IPC To undergo rigorous imprisonment for a period of six months `. 500/- In default of payment of fine to undergo rigorous imprisonment for seven days Gurwinder Singh and Budhu Singh were also tried along with this accused, who were convicted and sentenced by the trial court but in the appeal, preferred by them, they were ordered to be released on probation by the Additional Sessions Judge, vide the above said judgment. The prosecution story, in brief, is that there was a dispute between Rajinder Singh, complainant, PW-2 and Bakhshish Singh and others regarding the electric motor in which security proceedings under Section 107/151 Cr.P.C. had been taken against them. On that account the accused were nourishing a grudge against him. On 12.9.1999, at about 9-30 p.m., Kala Singh-accused, came in the street, in front of the house of the complainant, while in a drunken condition, and started raising lalkaras and abuses. In the meanwhile, Budhu Singh, armed with a spade(Kahi), and Gurwinder Singh, armed with stick, came to that place. Budhu Singh exhorted Kala Singh-accused not to spare the complainant on that day. Thereafter, Kala Singh took the spade from Budhu Singh and gave a blow from the sharp side thereof on the head of the complainant, as a result of which he fell down. While he was lying on the ground, Gurwinder Singh gave blow with stick on his left knee and the second blow was given by him above that knee and the third blow was given on his right elbow. This occurrence was witnessed by Darshan Singh, PW-3, and Crl. Revision No. 1755 of 2005 -3- Sarwan Singh, PW-4, who raised an alarm and all the accused ran away from that place with their respective weapons. The complainant in injured condition was removed to Civil Hospital, Dhuri, by his father Sukhdev Singh and was admitted at that place. He was medically examined by Dr. N.S.Balian, PW-1, who found five injuries on his person, which were described by him in the Medical Legal Report, Ex. P.1. He sent ruqa (written information), Ex. P.3, to the police station. On the receipt thereof, Iqbal Singh, ASI, PW-7, came to the hospital and gave application, Ex. PW-7/A to enquire about the fitness of the complainant to make his statement. Doctor declared him fit to make the statement. Thereafter, the ASI recorded his statement, Ex. P.9 and after making his endorsement, Ex. PW7/B thereon, sent that to the police station on the basis of which formal FIR. Ex. PW7/C was recorded against the accused under Sections 323, 324 read with Section 34 IPC. The ASI went to the place of occurrence and after inspecting the same, prepared the rough site plan, Ex. PW7/D. All the three accused were arrested on 19.9.1999. On interrogation, Kala Singh, accused, disclosed that he had kept concealed one spade inside the room meant for electric motor, constructed in his fields and could get the same recovered from that place. In pursuance of that disclosure statement, Ex. PP, that accused got recovered the spade, which was taken into possession, vide Memo Ex. P-10. The ASI prepared the rough site plan, Ex. PW7/E of the place of recovery and after coming back to the police station, deposited that spade with the MHC. The injuries on the person of the complainant were subjected to radiological examination by Dr. Badri Dass, PW-6, but no fracture was detected. After the completion of the investigation, the challan was put in before the SDJM, Dhuri, for the trial of the accused for the aforesaid offences. Regarding the same occurrence, the complainant filed a criminal Crl. Revision No. 1755 of 2005 -4- complaint under Sections 323, 324 and 307 read with Section 34 IPC. He produced preliminary evidence in that complaint. In view of the statement made by him, that complaint was ordered to be clubbed with a case arising out of the FIR. The trial court found prime facie case against the accused under Sections 323 and 324 read with Section 34 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove their guilt, prosecution examined Dr. N.S.Balian, PW-1, Rajinder Singh, PW-2, Darshan Singh, PW-3, Sarwan Singh, PW-4, Jasbir Singh, PW-5, Dr. Badri Dass, Medical Officer, PW-6, Iqbal Singh ASI, PW-7 and Dr. Darshan Singh Sidhu, Professor Surgery Govt. Medical College, Patiala, PW-8. After the prosecution closed its evidence, the trial court examined the accused and recorded their statements under Section 313 Cr.P.C. The incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence. They pleaded that they have been falsely implicated on account of previous litigation and enmity and that they never caused any such injury to the complainant. They were called upon to enter on their defence and they examined Gurdev Singh, Sarpanch, DW-1 in their defence. After going through that evidence and hearing Assistant PP for the State and learned defence counsel for the accused, the trial court convicted and sentenced the accused, as aforesaid. I have heard learned counsel for both the sides. It has been submitted by counsel for the petitioner-accused that the injuries were received by the complainant in a road side accident and on account of the previous enmity with the accused, he falsely implicated them. The ocular evidence so produced by the prosecution consists of the statements Crl. Revision No. 1755 of 2005 -5- of the related and interesting witnesses and that stands totally contradicted by the medical evidence. The statements made by the prosecution witnesses in the court do not inspire confidence and there are material contradictions in the statements of the complainant and the alleged eye witnesses. The prosecution itself has produced evidence to the effect that injuries so found on the person of the complainant were received in a road side accident. Therefore, the petitioner and the other accused could not have been convicted for the said offences. On the other hand, it has been submitted by the State counsel that the prosecution case in the court was fully supported by the complainant and the eye witnesses and their trustworthy statements cannot be disbelieved merely on account of some contradictions in their statements or some contradictions in their ocular evidence and the medical evidence. In fact, the previous enmity was the motive on the part of the accused to cause injuries to the complainant. The statements of the eye witnesses cannot be discarded on the ground that they are related to the complainant and conviction can be recorded even on the statements of related witnesses. Re-appreciation and re-appraisal of the evidence, while exercising the revisional jurisdiction, is permissible only if this Court comes to the conclusion that the findings recorded by the trial court and upheld by the Appellate Court are perverse or illegal or there was misreading of the evidence. After having gone though the evidence produced by the prosecution, this Court has come to the conclusion that the findings recorded by the trial court and upheld by the Appellate Court are perverse and such findings could not have been recorded on the basis of the evidence so produced by the prosecution. There was delay of about 15 hours in reporting the matter to the police, which has remained unexplained. The occurrence took place on 12.9.1999 at 9.30 Crl. Revision No. 1755 of 2005 -6- p.m. whereas the FIR was lodged on 13.9.1999 at 12.05 p.m. As per the endorsement of the Illaqa Magistrate, the special report was received on 14.9.1999 at 10.10. a.m. This delay itself is not fatal to the prosecution but it is a circumstance which requires the court to scrutinize the evidence produced by the prosecution very carefully and cautiously. The prosecution is relying upon the statement of two alleged eye witnesses; namely, Darshan Singh, PW-3 and Swaran Singh, PW-4. The former witness is the real brother of the complainant whereas the latter witness is from their brotherhood. Though, this relationship cannot be equated with interestedness but still that relationship itself is a ground which requires scrutinization of the statements of the witnesses with much care and caution. It is a case where the ocular evidence stands contradicted by the medical evidence. In the Statement, Ex. P-9, made by Rajinder Singh, PW-2, before the police, he categorically stated that only one blow was given with the help of the spade on his head by Kala Singh-accused. Similar statements were made by Darshan Singh, PW-3 and Swaran Singh, PW-4. However, during the medical examination of the complainant, two injuries were found on the head. It was stated by Dr. N.S.Balian, PW-1, that when he medically examined the complainant, he found the following injuries on his person:- 1. An incised wound 7 cm x 1.2 cm deep into bone was present in the vertex, 15 cm from the hair line on the forehead lying transvercy. Fresh bleeding was present and X-ray was advised. 2. A lacerated wound 2 cm x 0.5 cm. Deep into Sub-cutaneus tissue was present on the right parietal region. Lying obligicly and is 8.5.cm from the hair line on right temporal region. Fresh bleeding was present. 3. An abrasion 3 cm x 2 cm on the left leg on anterior aspect just Crl. Revision No. 1755 of 2005 -7- below the patella. Fresh bleeding was present. 4. An abrasion 2 cm. X 1 cm. Present on the left patella. Fresh bleeding was present. X-ray was advised. 5. Am abrasion 3 cm. X 0.75 cm. Present on the dorsal aspect of right forearm just below the elbow joint. It was stated by him that injuries No. 1 and 2 with the help of single blow of the spade was less likely. Faced with that situation, complainant, PW-2, took a somersault while making his statement in the court and stated that two blows with the help of spade was given to him by Kala Singh, accused. To that extent, his statement stands totally contradicted by the other eye witnesses as according to them only one such blow was given. According to Darshan Singh, PW-3, only one blow was given by Gurwinder Singh-accused with the help of stick on the legs of the complainant and the other blow was given by that accused which fell on the ground. That is the other material contradiction in the evidence of the prosecution. Moreover, the complainant himself has excluded the presence of both eye witnessed by deposing during his cross examination that they were not present at the time of occurrence and both of them came subsequently. According to Darshan Singh, PW-3, he witnessed the occurrence while coming out of the house. Swaran Singh, PW-4, has tried to depose that at the time of occurrence, he was passing in front of the house of the complainant in order to purchase the flour. It is highly improbable that a person in a village will be going to purchase flour at 9.30 p.m. Though the complainant and Darshan Singh have tried to depose that Swaran Singh had not voted in their favour by making statement that they never helped him for contesting the elections against Gurdev Singh, Sarpanch, yet that witness himself admitted that fact during his cross examination. He admitted in so many words that the accused were supported by Gurdev Singh, Crl. Revision No. 1755 of 2005 -8- Sarpanch whereas he had been supporting the complainant party. All of them have admitted that there was previous enmity between the parties and so many disputes had been going between them. Thus, there was a motive on the part of the complainant to falsely implicate the accused. The prosecution itself examined Dr. Darshan Singh Sidhu, PW-8, who was Professor of Surgery in Government Medical College, Patiala, where the complainant was admitted on 20.9.1999 for the treatment of his injuries. He stated during his examination-in-chief itself that it was a case of injury by way of road side accident. When the prosecution itself has relied upon this evidence, it is to be concluded that according to it the injuries were received in some road side accident. That fact also becomes probable from the cross examination of Dr. N.S.Balian, PW-1, who categorically stated during his cross examination that the possibility of all the injuries by a fall cannot be ruled out. He has even gone to the extent of deposing that there is possibility of injuries No. 1 and 2 having been received while in lying condition. In view of what has been said above, it is concluded that the prosecution failed to bring home the guilt of the accused beyond any reasonable doubt. The findings recorded by the trial court and upheld by the appellate court are perverse and requires to be interfered with while exercising the revisional jurisdiction. Accordingly, this revision petition is hereby accepted and the petitioner is acquitted of the offences under Sections 323, 324 read with Section 34 IPC. The fine, if already deposited, be refunded to him. (GURDEV SINGH) JUDGE February 10, 2011 PARAMJIT