IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 33 of 1997 Date of Decision : March 29, 2010 Jogi Ram ....Petitioner Versus Tara Chand and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. S.S.Narula, Advocate for the petitioner. Mr. Baljinder Singh, Advocate for Mr. K.S.Dhaliwal, Advocate for respondents No.1, 3, 4, 6 and 9. Mr. Ankur Malik, Advocate for respondents No.2, 5 and 7. T.P.S. MANN, J. (Oral) The petitioner, whose status in the case was that of a first informant, has filed the present revision for challenging the judgment dated 12.8.1996 passed by Additional Sessions Judge, Kaithal whereby the accused, who are arrayed as respondents herein, were acquitted of the charges under Sections 302/149, 148 and 120-B IPC. The occurrence in question had taken place on 11.2.1995, wherein Surinder, aged 17/18 years and a student of 10th class, was Crl. Revision No. 33 of 1997 -2- murdered. His grand father Jogi Ram, petitioner herein, who claimed to have seen the occurrence, made a statement before the police on the basis of which FIR No. 34 dated 11.2.1995 was registered at Police Station, Alewa. It was mentioned therein that Surinder, since deceased, was his grand son, who used to study in a school in village Mandi Kalan. Everyday, he used to go in the morning and return home after the school hours. On 11.2.1995 at about 8.00 a.m. Surinder was going to his school whereas the petitioner was returning from the fields after answering the call of nature. When Surinder reached near the fields of Didar Singh, the respondents, namely, Tara Chand armed with a gandasa, Abhey Ram son of Latu armed with a kassi, Ramesh @ Mahesha armed with a gandasa, Abhey Ram son of Ran Singh empty handed, Inder armed with a gandasa and Mohinder armed with a kassi came out from the fields of Didar Singh. Respondent Mohinder raised a lalkara that Surinder, who was son of their enemies, had come and he should not escape on that day. Saying so, Abhey Ram son of Ran Singh caught hold of Surinder whereas Tara Chand gave a gandasa blow from behind, which struck on the back side of the head of Surinder. Respondent Abhey Ram son of Latu then gave a kassi blow on the head of Surinder. As a result, Surinder fell down and succumbed to the injuries. An alarm was raised, which attracted Chandi Ram, Ram Kala and Chander Bhan to the spot, who witnessed the occurrence with their own eyes. According to the first informant, the reason as to why his grandson was murdered was that about 25/26 years ago, Hawa Singh Crl. Revision No. 33 of 1997 -3- son of Bishna was murdered in which he and Chandi Ram were challaned. On the day of the present incident, the respondents murdered his grand son Surinder in furtherance of their common intention. After leaving Chandi Ram and Ram Kala to guard the dead body, Jogi Ram went to inform the police. His statement was recorded at the bus stand. The statement was then sent to the Police Station on the basis of which aforementioned F.I.R. was registered. Following the registration of the criminal case, the investigation was taken up by SI Om Parkash, SHO, Police Station, Alewa. He reached the place of occurrence and conducted proceedings under Section 174 Cr.P.C. The dead body was sent for post mortem examination. Blanket Ex.P16, school bag Ex.P17 and blood stained earth were lifted from the place of occurrence. During the investigation of the case, it surfaced that Bhartha, Gazia and Satbir accused had hatched a conspiracy about 8/9 days earlier to the incident with the other accused to commit the murder of Surinder. Consequently, offence under Section 120-B IPC was added to the FIR. On 20.2.1995 respondents Tara Chand, Abhey Ram son of Latu, Ramesh, Abhey Ram son of Ran Singh, Inder, Mohinder and Gazia were apprehended. On the basis of disclosure statements made by Abhey Ram son of Latu, Inder, Mohinder, Ramesh and Tara Chand, kassi Ex.P15, gandasa Ex.P21, kassi Ex.P22, gandasa Ex.P23 and gandasa Ex.P14 respectively, were recovered. Accused Bhartha and Satbir were apprehended on Crl. Revision No. 33 of 1997 -4- 27.2.1995. After completion of necessary formalities, the respondents were sent up to face trial for the aforementioned offences. Vide order dated 26.5.1995, learned Chief Judicial Magistrate, Jind committed the case to the Court of Session for trial. After taking into consideration the allegations and the documents attached with the final report under Section 173 Cr.P.C., learned Additional Sessions Judge, Jind found a prima facie case for offence punishable under Section 120-B IPC against all the accused whereas a prima facie case was found to exist against respondents No.1 to 6 for offences under Sections 148 and 302/149 IPC. Accordingly, all the respondents were charge sheeted, to which they pleaded not guilty and claimed trial. In support of its case, the prosecution had examined ten witnesses, namely, PW1 Constable Subhash, PW2 Dr.Manjula Bansal, Civil Hospital, Jind, PW3 Jogi Ram-complainant, PW4 Constable Harjit Singh, PW5 Head Constable Taqdir, PW6 Chandi Ram, eye witness, PW7 Ram Kala, eye witness, PW8 Mewa Singh, PW9 SI Om Parkash, Investigating Officer of the case and PW10 Balwant Singh. Reports of Senior Scientific Officer-cum-Ex Officio Chemical Examiner to Government of Haryana Exs.PD and PD/1 were tendered in evidence besides affidavits of certain formal witnesses, who were given up as unnecessary as they were not required for cross-examination. Crl. Revision No. 33 of 1997 -5- When examined under Section 313 Cr.P.C., the respondents admitted that Hawa Singh, who was son of Bishna and brother of Bhartha, was murdered in the year 1962 and that Risala, Kapoor, Jogi, Chandi Ram etc. were convicted in the year 1968 by Sessions Judge, Karnal. According to them, they were innocent. The deceased was a vagabond, who used to tease girls. It was a case of blind murder, which had been converted into an eye witness account. Accused Abhey Ram son of Ran Singh was a teacher in the Government High School, Mandi Kalan and on the day of incident, he was present in the school at 7.50 a.m. In their defence, the respondents examined DW1 Jasmer Singh, Incharge, Government High School, Mandi Kalan to prove the alibi set up by accused Abhey Ram son of Ran Singh. After hearing learned counsel for the parties and going through the evidence brought on the record, learned trial Court came to the conclusion that the motive as alleged by the prosecution in the case to commit murder of Surinder was not established. Rather, the complainant party was out to implicate the respondents. The prosecution also failed to establish the charge under Section 120-B IPC as allegations of conspiracy contained in the report under Section 173 Cr.P.C. were not corroborated either by PW7 Ram Kala or PW9 SI Om Parkash, who was the Investigating Officer. No such allegation was levelled by Jogi Ram-complainant and the statement of PW6 Chandi Crl. Revision No. 33 of 1997 -6- Ram was only hear say. Though the testimonies of PW3 Jogi Ram, PW6 Chandi Ram and PW7 Ram Kala were relied upon by the prosecution in support of the ocular account yet their presence at the time of the occurrence was not believed. The medical evidence was found to be contradicting the ocular account. Even as per the prosecution case both Jogi Ram and Chandi Ram, apart from Matu Ram, father of PW3 and Ram Kala were accused in the earlier case but despite the same they were not attacked by the respondents in the present case and, therefore, their presence at the spot was held to be doubtful. The plea of alibi taken by Abhey Ram son of Ran Singh was also held to be not established. Accordingly, learned Additional Sessions Judge, Kaithal, vide impugned judgment concluded that the prosecution had not been able to prove its case against the respondents beyond shadow of reasonable doubt. They were given the benefit of doubt and acquitted of the charges against them. It may not be out of place to mention here that it being a State case, the State of Haryana alone was competent to challenge the acquittal of the accused-respondents. However, as per letter dated 30.10.1996 issued by the Advocate General, Haryana and addressed to learned counsel representing the petitioner, which is on record, the Government had declined to file an appeal. The scope of revision filed by the first informant against the acquittal of the accused in a State case is very limited. In Ram Briksh Crl. Revision No. 33 of 1997 -7- Singh and others V Ambika Yadav and another 2004(2) RCR (Criminal) 182 and Satyajit Banerjee V State of West Bengal 2005(1) RCR(Criminal) 723, it was held by the Hon'ble Apex Court that a revision against the acquittal can only be entertained if some material evidence had been overlooked by the trial Court. In Kishan Swaroop V Govt. of NCT of Delhi 1998(3) RCR(Criminal) 137, the Hon'ble Apex Court went to the extent of holding that the revision by a private party against an order of acquittal was not permitted where the case was instituted on police report. A perusal of the impugned judgment would reveal that all the substantive evidence, which had been led by the prosecution, had been duly considered and appreciated by the trial Court in coming to the conclusion that the prosecution had miserably failed to prove its case beyond shadow of doubt. Learned counsel for the petitioner has not been able to point out any evidence which the prosecution had brought on record but not considered by the trial Court while passing the impugned judgment. Learned counsel for the petitioner submitted that the injuries attributed to respondent Tara Chand and Abhey Ram son of Latu caused on the head of deceased Surinder resulted in only one injury as both the blows landed at the same place and the injury was described by PW2 Dr.Manjula Bansal as concave in nature. Therefore, the trial Court was not justified in holding that the injury could not be caused by Crl. Revision No. 33 of 1997 -8- giving a blow by gandasa Ex.P.14 wielded by respondent Tara Chand and kassi Ex.P.15 wielded by respondent Abhey Ram son of Latu. Though two injuries were said to have been caused on the back side of the head of Surinder yet as per the testimony of PW2 Dr. Manjula Bansal, only one injury was noticed on the back of the head of the deceased, which was concave in nature. She did not opine that the said injury was the result of two blows received by Surinder. Though in her examination-in-chief, she did not rule out the possibility of the injuries having been caused with gandasa Ex.P14 and kassi Ex.P15 having landed at one place yet during her cross-examination, she stated that she had described the injury in the diagram as concave in nature but the said description was only symbolic in manner and not exactly as per the wound. In such a situation, there was an apparent conflict between the ocular evidence consisting of the testimonies of PW3 Jogi Ram, PW6 Chandi Ram and PW7 Ram Kala viz-a-viz the medical evidence in the shape of statement of PW2 Dr. Manjula Bansal. Surprisingly, four out of the six accused, who were said to be present at the time of the occurrence, had not been attributed causing of any injury to Surinder deceased, although, out of them, three were armed with deadly weapons. Only two accused, namely, Tara Chand and Abhey Ram son of Latu were attributed a blow each on the head of Surinder. Instead of finding two separate injuries, only one injury on the back of the head of Surinder had been noticed. It is too much of co- Crl. Revision No. 33 of 1997 -9- incidence that two blows caused by two different accused landed on the same portion of the head of Surinder deceased and resulting in one injury. It is the admitted case of the parties that in the earlier incident, which had taken place about 25 years ago, one Hawa Singh belonging to the accused party was killed and in that case Jogi Ram, Chandi Ram, Risala, apart from others were tried and convicted. Risala's father Ram Kala, who was examined in the present case as PW7 also claimed to be an eye witness. In the presence of Jogi Ram, Chandi Ram and Ram Kala, the accused would not have touched Surinder deceased in committing his murder. They would not have spared any of the three aforementioned witnesses, who claimed themselves to be present at the time of the occurrence. In view of the above, no case is made out for interference in the impugned judgment of acquittal. Accordingly, the revision is held to be without any merit and, therefore, dismissed. ( T.P.S. MANN ) March 29, 2010 JUDGE ajay-1