Criminal Revision No.575 of 2002 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.575 of 2002 Date of Decision:-January 13,2010 Tej Ram son of Ami Chand ...Petitioner Versus Mahesh and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present: Mr.Baldev Singh, Senior Advocate with Mr.Arshwinder Singh, Advocate for the petitioner. None for respondent Nos.1 and 2. Mr.G.S.Chahal, Addl. Advocate General, Haryana for respondent No.3. Mehinder Singh Sullar, J. Impugning the judgment dated 23.8.2001 of Sessions Judge, Gurgaon, the instant revision petition has been directed by petitioner Tej Ram son of Ami Chand, invoking the provisions of section 401 of the Code of Criminal Procedure. 2. The facts, barely needed, relevant for disposal of present revision petition and emanating from the record, are that originally, a criminal case was registered against Mahesh son of Zile Singh and Hari Parkash son of Ram Dayal-respondents/acquitted accused, vide FIR No.359 of 17.11.1999, on accusation of having committed the offence punishable under sections 302/34 IPC by the police of Police Station Sohna, District Gurgaon. 3. The prosecution version, as unfolded during the trial, was that on 17.11.1999 dead body of Amar Chand was brought by Dharam Pal (PW9) at General Hospital, Sohna. Dr.Tej Pal Sharma (PW1) sent ruqqa Criminal Revision No.575 of 2002 2 (Ex.PA) to Police Station Sohna at 5.20 P.M. with regard to the arrival of the dead body. On receipt of the wireless message from the Police Station, SI Ram Niwas (PW10) reached Civil Hospital, Sohna and ASI Surinder Singh handed over the said ruqqa to him. He recorded the statement (Ex.PC) of Pawan Kumar (PW8) wherein he stated that on 17.11.1999 at about 5 P.M., he alongwith Amar Chand (deceased), who in relation was the son of his uncle, went to the shop of Hari Parkash, Barber, situated at the Bus Stand for shaving. Hari Parkash and his brother-in-law Mahesh are doing the job of barber at the Bus Stand. Amar Chand sat on the chair for getting his shave done whereas he sat on a table. Meanwhile, another customer came there. Thereafter, Mahesh told that he would attend him first and on this Amar Chand got up from the chair and told that he should shave the said person first. When Amar Chand got down from the chair, Mahesh pinched on his hips for which Amar Chand told not to do so. Mahesh again pinched Amar Chand, who then caught hold of the neck of Mahesh and they both inter se started giving slaps and fist blows. He (complainant) separated them. On hearing noise, Dharam Pal (PW9) also came there from his shop. In the meantime, Hari, brother-in-law of Mahesh also came there from the nearby Khokha and Hari and Mahesh started giving abuses to Amar Chand. Suddenly, Hari took Amar Chand in his grip from back and Mahesh picked up scissors lying in the shop and gave a thrust blow on his chest and anther blow was given on the abdomen. Amar Chand felled on the ground. Mahesh and Hari put the scissors and other instruments in the bag and managed to flee away from the spot. He and Dharam Pal stopped one Maruti Car and removed Amar Chand to Sohna Hospital, but on the way, he succumbed to his injuries. On reaching hospital, the doctor declared him dead. 4. Levelling a variety of allegations, in all, according to the prosecution that on 17.11.999, respondents/acquitted accused Mahesh Criminal Revision No.575 of 2002 3 and Hari Parkash have committed the murder of Amar Chand. On the basis of aforesaid allegations, the present case was registered against the accused, in the manner indicated here-in-above. 5. Having completed all the codal formalities, the Sessions Judge, Gurgaon acquitted the accused vide impugned judgment dated 23.8.2001. 6. It is not a matter of dispute that the State of Haryana did not file appeal against the impugned judgment of acquittal, only the petitioner has filed the present revision petition. That is how I am seized of the matter. 7. At the very outset, learned counsel for the petitioner has contended with some amount of vehemence that the trial Judge fell in grave error in acquitting the accused. Although there was sufficient evidence in the shape of testimony of PW8 Pawan Kumar and PW9 Dharam Pal, besides medical and other connecting evidence. 8. Having heard the learned counsel for the petitioner, learned counsel for the State, having gone through the record and after bestowal of thoughts over the entire matter, to me, as there is no merit, therefore, the present revision deserves to be dismissed, for the reasons mentioned here-in-below. 9. The cardinal fundamental principles of criminal jurisprudence have to be kept in focus while deciding criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused cannot possibly be convicted without any legal substantive evidence as the evidence is essential element in the criminal proceedings, notwithstanding the seriousness of the allegations alleged against the accused because criminal proceedings require strict proof of guilt. It is the evidence, on the basis of which, the decision of a criminal court is based and is the requirement of criminal Criminal Revision No.575 of 2002 4 justice. Otherwise, in the absence of the same, the courts have no option but to record an order of acquittal howsoever painful the same may be. 10. Sequelly, no one can dispute with regard to the proposition of law laid down by the Hon'ble Apex Court in K.Chinnaswamy Reddy v. State of A.P. and another AIR 1962 Supreme Court 1788 (1) and Ayodhya Dube and others v. Ram Sumer Singh AIR 1981 Supreme Court 1415, relied upon, on behalf of the petitioner, that it is open to a High Court in revision to set aside an order of acquittal, even at the instance of the private parties, though the State may not have thought fit to appeal, but this jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. 11. Above being the position of law, now the core question that arises for determination in the instant petition is whether there are glaring defects in the procedure or there is a manifest error on a point of law resulting in flagrant miscarriage of justice or not, so as to invoke the revisional jurisdiction of this Court. 12. The bare perusal of the impugned judgment would reveal that the case of the prosecution mainly rests on the testimony of PW8 Pawan Kumar and PW9 Dharam Pal. They initially did not support and totally demolished the case of the prosecution. They inter-alia maintained that they did not witness Mahesh and Hari Parkash accused inflicting injuries on the person of Amar Chand (deceased). No doubt, in the wake of application of the prosecution, they were re-examined and attempted to support the prosecution version but their testimony did not find favour with the trial Court and accused were acquitted. 13. The question of admissibility and reliability of such witnesses, who in examination-in-chief had supported, but demolished the prosecution Criminal Revision No.575 of 2002 5 version in cross-examination, was considered by the Hon'ble Supreme Court of India in Baldev Singh v. State of Punjab 1991 Supreme Court Cases (Criminal) 61. Having considered the matter, it was ruled as under:- “It is seen from the judgment of the High Court that though PW10 in his chief examination has supported the prosecution version in all its material particulars but has given a complete go-by and struck a death knell to the prosecution in his cross-examination stating that due to darkness he could not identify the culprits. The High Court was inclined to place reliance on his evidence on the ground that this witness in his statement before the police, evidentially referring to the statement recorded under section 161 of the Code of Criminal Procedure during the investigation as well as in the first information report Ex.PO, has narrated all the relevant facts and had not whispered in those statement that he could not identify the appellant due to darkness. This reasoning of the High Court in our view was erroneous. Needless to stress that the statement recorded under section 161 of the Code of Criminal Procedure shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to section 162 (1) and that the first information report is not a substantial piece of evidence. The High Court has misled itself into relying upon these two statements and thereby has fallen into a serious error. It is pertinent to note in this connection that PW7, an Advocate who is a disinterested witness has testified to the fact that both PWs 9 and 10 met him after the accident, but they did Criminal Revision No.575 of 2002 6 not tell the name of the appellant.” 14. Not only that, the trial Judge did not place reliance on the oral testimony of PW8 and PW9. It also considered the factum of delay in lodging the FIR and non-connection of the weapon of offence and other improbabilities in the prosecution case while acquitting the accused vide impugned judgment. Meaning thereby, the trial Court recorded valid reasons in acquitting the accused and in that eventuality, it cannot possibly be saith that there are glaring defects in the procedure or there is a manifest error on the point of law, resulting into a flagrant miscarriage of justice. That being so, I am of the view that since the trial Court has recorded valid reasons in this respect, therefore, no ground for interfering in the impugned judgment is made out, in the exercise of limited revisional jurisdiction of this court, in the obtaining circumstances of the case. 15. For the reasons recorded above, this revision petition is hereby dismissed. (Mehinder Singh Sullar) January 13,2010 Judge AS Whether to be referred to reporter?Yes/No