Crl. Revision No. 1698 of 2008(O&M) -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1698 of 2008(O&M) Date of Decision:February 24, 2010 Ashok Kumar and another ---Petitioners versus State of Haryana and another ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Ms. Saloni Sharma, Advocate, for the petitioners Mr. Pardeep Virk, DAG, Haryana Mr. K.K.Aggarwal, Senior Advocate with Mr. Kapil Aggarwal, Advocate for respondent No. 2. *** GURDEV SINGH, J. Petitioners - Ashok Kumar and Suresh Kumar have preferred this revision against judgment dated 9.6.2008 passed by Sessions Judge, Rewari, vide which he dismissed the appeal preferred by the petitioners- accused against the judgment dated 12.4.2006 passed by JMIC, Rewari, convicting them for the offence under Section 325 read with Section 34 of the Indian Penal Code, while setting aside the sentence of undergoing Crl. Revision No. 1698 of 2008(O&M) -2- rigorous imprisonment for a period of one year and to pay a fine of Rs. 1000/- each and in default thereof, to undergo simple imprisonment for a period of one month and making an order releasing them on probation of good conduct. The prosecution story, in brief, is that Dal Chand-complainant, PW-5, was having a shop in Purani Sabzi Mandi, Rewari. The adjoining shop was owned by Mahabir-accused, father of Ashok Kumar and Suresh Kumar. On 31.10.1999, at about 7.30 a.m., after opening the shop, he was reading a newspaper and his son Nimi Chand was also with him. The accused while cleaning the roof of their shop, threw garbage in the common stair case and they were stopped from doing so by Devi Dayal-PW-6, brother of the complainant and an altercation took place. In the meantime, Ashok Kumar and Suresh Kumar -accused, brought wooden battons from their shop. Ashok Kumar gave a blow with the help thereof on his forehead whereas Suresh Kumar gave blow on his face and eyes and the second blow was given by that accused on his nose. Thereafter, Mahabir caught hold of him and gave fist blows and slaps. He was saved from the accused by Devi Dayal, PW-6. He was removed to Civil Hospital, Rewari, where he was medically examined by doctor O.P.Dabas, PW-2, who found injuries on his person and those were detailed in medico legal report, Ex. P- 2/A. Those injuries were subjected to radiological examination and report of the Dental Surgeon was also obtained. On the day of occurrence itself, report regarding this occurrence was got lodged in the police station and same was recorded in the DDR at Sr. No. 7. After the receipt of the report Ex. PW1/A of Dr. V.S.Yadav, Dental Surgeon,PW-1, one of the injury was declared as grievous. Thereafter, the FIR Ex. PW4/A was recorded on the Crl. Revision No. 1698 of 2008(O&M) -3- basis of the report in the DDR. The investigation was conducted by Bhagwan Singh, SI, PW-4, who went to the place of accurrence and after inspecting the spot, prepared the rough site plan Ex. PW4/C. In the course of investigation, accused were arrested and after the completion thereof, challan was put in before JMIC for their trial. Mahabir-accused, died during the trial itself and the proceedings against him stood abated. The prosecution examined Dr. V.S.Yadav, PW-1, Dr. O.P.Dabas, PW-2, Siri Chand, Inspector, PW-3, Bhagwan Singh , SI, PW-4, Dal Chand, complainant, PW-5 and Devi Dayal, PW-6 to prove the guilt of the accused. After the prosecution closed its evidence, the accused were examined and their statements were recorded under Section 313 Cr.P.C. All 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 and false implication. They were called upon to enter upon the defence. They tendered certified copies of the orders dated 3.9.2001, Ex. DX, and 7.4.2003, Ex. DY. After going through the evidence and hearing the Assistant PP for the State and defence counsel for the accused, the trial court convicted the accused for the offences under Sections 325/34 IPC, vide judgment dated 12.4.2006, and sentenced them to under go rigorous imprisonment for a period of one year and to pay a fine of Rs. 1000/- each and in default thereof to undergo simple imprisonment for a period of one month, vide order dated 13.4.2006. The accused preferred an appeal against their conviction and sentence. The appellate Court vide its judgment dated 9.6.2008, upheld the Crl. Revision No. 1698 of 2008(O&M) -4- conviction of the accused and after setting aside the sentence of imprisonment imposed upon them released them on probation under Section 360 Cr.P.C. Notice of the revision was given. I have learned counsel for both the sides. Counsel for the petitioners-accused assailed the findings of conviction recorded by the trial court and upheld by the Appellate Court. He argued that the complainant and the only eye witness, examined in the court, made contradictory statements and that oral evidence was contradicted by medical evidence. The conviction of the accused could not have been recorded on the basis of such like evidence. According to the complainant, only one stick of the broom was brought by the accused and as such it was not possible for both the accused to cause injuries to the complainant with the help of one such stick. It has come out during the statement of the Dental Surgeon that there was only 19 teeth in the mouth of the complainant and that the oral hygiene was bad. In those circumstance there was every possibility of the falling of the tooth in question in natural process. There was no corresponding injury which also rules out the possibility of uprooting of the tooth as a result of any such blow. He prayed that the revision be accepted and the conviction of the accused be set aside. On the other hand, it was submitted by learned state counsel that there is no such alleged contradiction in the statements of the complainant and Din Dayal eye witness. Their statements were thoroughly scrutinized by the trial court as well as by the Appellate Court and were found to be trust worthy and reliable. It was only thereafter that the Crl. Revision No. 1698 of 2008(O&M) -5- conviction of the accused was recorded on the basis thereof. There is nothing on the record for concluding that the ocular evidence stands contradicted by medical evidence. It stands proved from the medical evidence also that the tooth of the complainant had come out as a result of the blow of the stick given to him by the accused. There is no ground for upsetting the conviction recorded by the trial court and upheld by the Appellate Court. The way in which the counsel for the petitioners has advanced the arguments, he wants that this Court should reappraise and re-appriciate the evidence produced by the prosecution. The legal position is not so. It was held by the Hon'ble Supreme Court in Associated Cement Companies Ltd. vs. Keshva Nand 1998(1) RCR (Crl.) 309 that it is trite legal position that appellate jurisdiction is co-extensive with the original court's jurisdiction for appraisal and appreciation of evidence and while recording findings of facts, an Appellate Court is free to reach at its own conclusion on the evidence untrammeled by any finding entered by the trial court. Revisional powers, on the other hand, belong to supervisory jurisdiction of a superior court. While exercising revisional powers, the court is confined to the illegality or impropriety of the findings and also whether the subordinate court has kept itself within the points of jurisdiction including the question whether the court has failed to exercise the jurisdiction vested in it. Though the difference between the jurisdiction is subtle, it is quite real and has now become well recognised in legal provinces. Again it was held held by the Supreme Court in Vimal Singh vs. Khuman Singh 1998 (4) RCR (Criminal)423 that High Court is not authorised to re-appreciate the evidence in exercise of revisional jurisdiction. Crl. Revision No. 1698 of 2008(O&M) -6- A perusal of the judgment of the trial court makes it very much clear that the points raised in this revision were also raised before the trial court and were duly considered. It is very much clear from that judgment that there was one wooden batton (bamboo stick) with each accused. It is also in the judgment that the doctor had found the upper left canine was freshly dislocated and the socket of the tooth was full with blood. The margins of the gums were found to be swollen and there was corresponding lacerated wound on the lateral part of the lower lip. Those points were also raised before the Appellate Court and were duly discussed. It was found that there was no merit in those points. After perusal of judgments, this court has come to the conclusion that the findings of fact so recorded, do no suffer from any illegality neither the same can be said to be incorrect nor it can be said that the propriety required that such a finding should not have been recorded. Therefore, the finding of conviction cannot be set aside while exercising the revisional jurisdiction. The revision petition is dismissed accordingly. (GURDEV SINGH) JUDGE February 24, 2010 PARAMJIT