Crl. Rev. No. 85 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No. 85 of 2005 Date of decision:- April 19th, 2011 Garja Singh & Ors. ... Petitioners Versus State of Haryana ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. P.S.Sullar, Advocate, for the petitioners. Mr. Shekhar Mudgal, DAG, Haryana. Gurdev Singh, J (oral) The petitioners/accused Garja Singh, Tarsem Singh @ Sema and Mohinder Singh have preferred this revision against the judgment dated 14.12.2004 passed by Additional Sessions Judge, Ambala, vide which he dismissed the appeals preferred by them against the judgment dated 20.9.1999 passed by JMIC Ambala City, convicting them for the offences under Sections 323, 325 and 326 read with Section 34 IPC and sentencing them as under:- Name of the accused Under Section Sentence Fine In default Garja Singh 323/34 IPC R.I for six months ---- --- 325/34 IPC R.I for two years `1000/- --- 326/34 IPC R.I for three years `2000/- --- Tarsem Singh @Sema 323/34 IPC R.I for six months ---- --- Crl. Rev. No. 85 of 2005 -2- Name of the accused Under Section Sentence Fine In default 325/34 IPC R.I for two years `1000/- --- 326/34 IPC R.I for three years `2000/- --- Mohinder Singh 323/34 IPC R.I for six months ---- --- 325/34 IPC R.I for two years `1000/- --- 326/34 IPC R.I for three years `2000/- --- The prosecution case, in brief, is that on 8.3.1995 at about 5.00 PM, Gurdarshan Singh PW3 was playing cards at the flour mill of Balwant Singh. After he stopped playing cards Mohinder Singh came to that place and started abusing him. When he came in front of his house, Tarsem Singh @ Sema armed with chain of motor-cycle, Mohinder Singh armed with a lathi, Gajjan Singh armed with gandasi and Garja Singh armed with lathi came to that place and started abusing him. On hearing the "rolla" (alarm) his brother Hardial Singh complainant PW4 came out of the house and at that time he was accompanied by his wife Jaswant Kaur PW5. Iqbal Singh PW10 was also present at that time. Tarsem Singh gave a blow with a chain above the right eye of Iqbal Singh whereas Garja Singh gave a blow with his lathi on the head of the complainant, then Gajjan Singh gave a blow with his gandasi on the head of Jaswant Kaur and when she tried to save herself, she received injuries on the little finger of left hand. Labh Singh and Gurpal Singh came to the spot, who saved the injured from the accused. All the injured were removed to the Civil Hospital Ambala City and were admitted at that place. They were medically examined by Dr. Aman Chaudhary PW11, who found two injuries on the person of Gurdarshan Singh and one Crl. Rev. No. 85 of 2005 -3- injury each on the person of Iqbal Singh and Jaswant Kaur. About the admission of these injured he sent his ruqa Ex.PW8/E to the police station and on the receipt thereof Harbans Singh SI PW9 came to the hospital and made an application Ex.PW7/A for enquiring about the fitness of the injured to make their statements. All of them were declared fit to make their statements. He recorded the statement of Hardayal Singh Ex.PA and after recording the police proceedings Ex.PW7/B sent that to the police station and on the basis thereof FIR was recorded against the accused. The SI went to the place of occurrence and after inspecting the same prepared the rough cite plan Ex.PW7/D with correct marginal notes. The injuries on the person of the injured were radiologically examined by Dr. R.S.Bugalia PW1. Fracture was detected in the 5th metacarpal left hand of Jaswant Kaur and fracture acromion process of right scapula of Gurdarshan Singh. After the receipt of the report of the radiologist, Dr. Aman Chaudhary declared injuries on the person of Gurdarshan Singh and Jaswant Kaur as grievous. The accused were arrested on 13.3.1995 by SI, who recovered one lathi each from Mohinder Singh and Garja Singh, Gandasi from the possession of Charan Singh @ Chain Singh and Chain of motor-cycle from the possession of Tarsem Singh @ Sema and those were taken into possession vide memos Ex.PW4/A, PW4/B, PW4/C and PW4/D, respectively. After the completion of the investigation, the challan was presented against the accused before Judicial Magistrate, Ist Class, who found sufficient grounds for presuming that they committed offences punishable under Sections 323, 325, 326 read with Section 34 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove their guilt prosecution Crl. Rev. No. 85 of 2005 -4- examined some of the prosecution witnesses, including Gurdarshan Singh PW2. An application was filed under Section 319 Cr.P.C for summoning Gajjan Singh as an additional accused and he was ordered to be summoned as such to stand his trial along with the other accused, vide order dated 19.5.1997. Processes were issued against him, but the same were not executed due to his non-availability in this Country. His trial was ordered to be segregated vide order dated 26.7.1997. To prove the guilt of the accused prosecution examined Dr. R.S.Bugalia PW1, Labh Singh PW2, Gurdarshan Singh PW3, Hardayal Singh PW4, Jaswant Kaur PW5, Fouza Singh PW6, Sawan Singh PW7, Virbhan HC PW8, Investigating Officer SI Harbans Singh PW9, Iqbal Singh PW10 and Dr. Aman Choudhary PW11. After the close of the evidence by the prosecution, the accused were examined and their statements were recorded 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 stated that on the day of alleged occurrence marriage of the daughter of Bachan Singh was performed and injuries were caused to the injured by the members of the marriage party and they have been falsely implicated. They were called upon to enter on his defence and they examined Balwant Singh DW1 and Chuhar Singh DW2. I have heard learned counsel for both the sides. While challenging the conviction recorded by the trial Court and upheld by the appellate Court, it has been submitted by learned counsel for the petitioners/accused that there is a delay of about 18 hours in lodging the Crl. Rev. No. 85 of 2005 -5- FIR, which has remained unexplained and this delay itself is fatal to the prosecution. He tried to assail the prosecution evidence by contending that it is full of contradictions and as such the conviction of the accused could not have been based upon the same. According to Jaswant Kaur PW5, the lathies from the accused were snatched by them at the time of occurrence and according to Labh Singh PW2 also, the motor-cycle chain was snatched from Tarsem Singh accused at the time of occurrence itself whereas according the Investigating Officer these recoveries were effected subsequently from the possession of the accused at the time of their arrest. He also contended that prosecution story stands falsified from the statement of Balwant Singh DW1, who owns the flour mill where Gurdarshan Singh was stated to have been playing cards; as according to that witness the Gurdarshan Singh was not playing the cards at his flour mills at the said time. Chuhar Singh DW2 proved the version of the accused that a fight had taken place during the marriage of daughter of Bachan Singh between the members of the marriage party and the injured and injuries were caused to them during that fight. When the accused successfully proved their version in the Court, they could not have been convicted. In the last he submitted that the accused are standing protracted trial from the so many years and they be given the benefit of probation. State counsel has tried to controvert the submissions of learned counsel for petitioners/accused, while supporting the findings recorded by the trial Court and the appellate Court. No doubt, there is a delay in lodging the FIR. According to the prosecution, occurrence took place on 8.3.1995 at 5.00 PM whereas the FIR Crl. Rev. No. 85 of 2005 -6- was recorded at 1.30 PM on the next day. The prosecution has not offered any explanation for that delay. The law aims at promt lodging of the FIR as that rules out the possibility of the implication of innocent persons and introduction of coloured version and false witnesses. However, there is no rule of law that the delay in lodging the FIR itself is fatal to the prosecution in every case. It depends upon the facts and circumstances of each case. However, this delay makes it the onerous duty of the Court to scrutinize the statements of prosecution witnesses with much care and caution. If on that thorough scrutiny the statements made by the prosecution witnesses are found to be trustworthy and reliable, the delay in lodging the FIR pales into insignificance. Before recording the conviction of the accused on the basis of the statements of the prosecution witnesses the same were duly scrutinized by the trial Court and the appellate Court. The jurisdiction of this revisional Court is very limited one. The re-appreciation and reappraisal of the evidence is permissible in case the Court comes to the conclusion that the finding so recorded by the trial Court or the appellate Court are illegal, perverse or are based on misreading of the evidence. Learned counsel for the accused has been able to point out only above said contradiction in the prosecution case, which may be on account of the over zealousness on the part of the witnesses to strengthen their case. It may be that they actually snatched the weapons of offence from the accused at the spot and the investigating agency tried to plant those upon the accused subsequently. The statements of Gurdarshan Singh PW3, Hardayal Singh PW4, Jaswant Kaur PW5 and Iqbal Singh PW10 injured were duly corroborated by Labh Singh PW2 and the medical evidence furnished by Crl. Rev. No. 85 of 2005 -7- Dr. Aman Choudhary PW11. No doubt it has been admitted by them that the marriage of daughter of Bachan Singh took place on the same day and in that marriage they themselves and the members of the marriage party had consumed alcohol, but they specifically denied the fact that the injuries were caused to them during that fight with those members of marriage party. It is not the case of the prosecution that the occurrence had taken place on the flour mill of Balwant Singh DW1. Therefore, much weight cannot be given to the fact that no occurrence took place at his flour mill. The solitary statement of DW2 is not sufficient to rebut the cogent convincing evidence produced by the prosecution. In these circumstances the finding of conviction so recorded by the trial Court and upheld by the appellate Court cannot be interfered with. It is not the case of the petitioners/accused that any of them was below 21 years of age at the time of commission of offences. They were convicted for the offence under Section 326 also, which is punishable with imprisonment of life. The benevolent provision of Section 360 and Section 4 of the Offenders Act, 1958 for releasing the petitioners/accused are not attracted in this case. No ground is made out for releasing them on probation. There is no merit in this revision and the same is hereby dismissed. This order be certified to the trial Court for taking appropriate action. The records be returned forthwith. April 19, 2011 (Gurdev Singh) tripti Judge Whether to be referred to the Reporter?_____