IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No.999-SB of 2002 Abhimanyu and others … Appellants Versus State of Haryana … Respondent 2. Criminal Revision No.1817 of 2002 Sunil … Petitioner Versus State of Haryana and another … Respondents Date of decision: 24th January, 2011 CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. D.S. Bali, Senior Advocate with Mr. Tejveer Singh, Advocate for the appellants in CRA 999-SB of 2002. Mr. Paramjit Singh Sullar, Advocate for the petitioner in CRR 1817 of 2002. Mr. Sandeep Singh Mann, Senior DAG, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. By this common order, both (1) Criminal Appeal No.999-SB of 2002 titled as ‘Abhimanyu and others v. State of Haryana’ and (2) Criminal Revision No.1817 of 2002 titled as ‘Sunil v. State of Haryana and another’ shall be decided together. Abhimanyu son of Prem Singh, Jaiveer Singh son of Lekh Raj and Pawan Kumar son of Mam Chand have directed Criminal Appeal No.999-SB of 2002 against the judgment of conviction dated 28th May, 2002 rendered by Additional Sessions Judge (I), Panchkula. Criminal Revision Criminal Appeal No.999-SB of 2002 and Criminal Revision No.1817 of 2002 No.1817 of 2002 has been preferred by the complainant against acquittal of Bidhi Chand recorded by the trial Court. The appellants were tried in case FIR No.266 dated 28.07.1997 registered at Police Station Chandi Mandir under Sections 323, 326, 307, 34 IPC along with one Bidhi Chand, who has been acquitted by the trial Court. The trial Court held all the three appellants guilty of offences punishable under Sections 326 and 324 read with Section 34 IPC and vide a separate order dated 31st May, 2002, all the three appellants were sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5000/- each, in default of payment of fine to further undergo rigorous imprisonment for one year under Section 326/34 IPC for causing injuries to Angad Singh. A similar sentence was awarded to them under Section 326/34 IPC for causing injuries to Ram Saroop. All the three appellants were further sentenced under Section 324/34 IPC for causing injuries to Angad Singh to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- each, in default of payment of fine to further undergo rigorous imprisonment for six months. A similar sentence was also awarded to them under Section 324/34 IPC for causing injuries to Sunil Kumar. All the substantive sentences were ordered to run concurrently, however, imprisonment in default of payment of fine under each head was ordered to run independently. All the three appellants were also charged for an offence punishable under Section 307 read with Section 34 IPC. However, the trial Court has acquitted them on this count. Co-accused Bidhi Chand was acquitted of all the charges leveled against him. No appeal against acquittal has been filed, though a revision against acquittal has been filed by the complainant. FIR Ex.PF was registered on the basis of a statement Ex.PA made by Angad Singh PW-1 in the hospital. He stated that he is a resident 2 Criminal Appeal No.999-SB of 2002 and Criminal Revision No.1817 of 2002 of village Bhareli, Police Station Chandi Mandir, District Panchkula and does agriculture work. Abhimanyu son of Prem Singh resident of the village was employed as a Salesman in the office of Cooperative Society and he embezzled funds of the members of the society. A complaint was made against him at Police Station Chandi Mandir, in pursuance whereof the complainant learnt that a meeting was fixed for 28th July, 1997 at about 12.00 noon by the members for removal of Abhimanyu from the post of Salesman. At about 11.30 a.m. the complainant, along with Ram Saroop, Narender and Sunil, reached at the office of Society to see the proceedings of the meeting. When they were standing in the Verandah of the office, Jaiveer Singh armed with a knife along with Pawan Kumar reached there. Jaiveer Singh hurled abuses to the complainant and said that they will teach a lesson for removing his relative Abhimanyu. Then Jaiveer Singh gave knife blows on the left shoulder, back and nose of the complainant one by one. Pawan Kumar caught hold of Sunil Kumar and made him fall on the ground. In the meantime, Abhimanyu and Bidhi Chand also came there. Abhimanyu snatched the knife from Jaiveer and gave its blow towards the back side of right shoulder of Sunil Kumar. He also gave a knife blow to Ram Saroop, which landed on left side of his clavicle. Bidhi Chand made the complainant fell on the ground and shouted that they should not be allowed to go. The injured raised noise of ‘Mar Diya Mar Diya’, whereupon Harjinder Singh Lamberdar and Ram Singh were attracted at the spot and they rescued the injured, otherwise they would have been killed. The complainant stated that in defence they have also caused injuries to Abhimanyu. Thereafter, all the accused decamped from the spot along with the weapon. Harjinder Singh Lamberdar and Ram Singh arranged for a private vehicle and took the injured to PGI, Chandigarh for treatment, where Ram Saroop became unconscious. The complainant demanded that action be taken against the accused. 3 Criminal Appeal No.999-SB of 2002 and Criminal Revision No.1817 of 2002 The matter was investigated and report under Section 173 Cr.P.C. was submitted. Complainant Angad Singh appeared as PW-1 and reiterated as to what was stated in the FIR. He was recalled for cross-examination. Injured Sunil Kumar and Ram Sarup appeared as PW-8 and PW-9 respectively, and corroborated the testimony of complainant Angad Singh PW-1. Dr. Deepak Puri PW-4 on 28th July, 1997 had medico legally examined the complainant Angad Singh and found following injuries on his person: “1. 2 cm x 1 cm stab injury fourth intercostal space in scapular region, communicating with the pleura. 2. 3 cm x 1.5 cm stab injury in eighth intercostal space on the left side of infra scapular region communicating with the pleura. 3. Fracture of ribs left side, with haemothorax left side.” All the injuries on the person of complainant Angad Singh were declared grievous in nature. Injured Sunil was also medico legally examined by this witness and following injury was found on his person: “There was a stab injury 2 cm x 1 cm x 2 cm in right side medial to shoulder chest wall extending up to subcutaneous plane.” The injury suffered by Sunil was declared as simple in nature. Dr. Deepak Puri PW-4 on the same day, also medico legally examined the injured Ram Sarup and opined that he suffered a grievous injury. The injury found on the person of Ram Sarup was: “There was a stab injury in the left infra clavicular region (2 cm x 1 cm) in the second intercostal space running obliquely with air bubbling.” 4 Criminal Appeal No.999-SB of 2002 and Criminal Revision No.1817 of 2002 The injuries suffered by Angad Singh and Ram Sarup were declared dangerous to life. Constable Ram Saran Draftsman PW-2 had prepared the scaled site plan Ex.PB. ASI Pritpal Singh PW-3 had arrested accused Abhimanyu on 17th December, 1997. ASI Avtar Singh PW-5 had recorded formal FIR Ex.PF on the basis of ruqa. SI Devinder Singh PW-6 had prepared the report under Section 173 Cr.P.C. HC Kehar Singh PW-7 stated that on 1st August, 1997 he was posted at Police Post Barwala. Injured Sunil Kumar had produced the blood-stained shirts of himself, Angad and Ram Sarup before ASI Phool Singh, which were taken possession vide memo Ex.PG. SI Phool Singh PW-11 was the Investigating Officer. Thereafter, prosecution closed its evidence and statements of the accused were recorded under Section 313 Cr.P.C. They denied the incriminating circumstances put to them and pleaded innocence. Accused Abhimanyu gave the following version: “As a matter of fact, on the date of incident, I had appeared with a stay order against my termination proposal which the members of the Co-operative Society were contemplating. It annoyed several persons who were after my blood. They attacked me with lathies and one of them namely Sunil was having a knife. When he attempted to inflict knife blow then I snatched the same from him and gave one or two knife blows in my defence. I was badly injured and taken to PGI. The police however did not take any action on my version and fabricated a false case against me. My co- accused were not present at that time.” In defence, Data Ram, Secretary of the Cooperative Society appeared as DW-1. Nichhatar Singh, an official of PGIMER Chandigarh, appeared as DW-2. 5 Criminal Appeal No.999-SB of 2002 and Criminal Revision No.1817 of 2002 The trial Court held that the prosecution has failed to establish charge under Section 307 read with Section 34 IPC against the accused. For recording acquittal of the accused under Section 307 read with Section 34 IPC, the trial Judge observed that during the course of arguments, prosecution conceded that Ram Sarup had received only one injury, which was described by Dr.Deepak Puri PW-4 as grievous. The trial Court relied upon the medical evidence and opinion of the doctor that none of the injuries on the persons of three injured PWs, individually or collectively is of the nature that it can be declared as dangerous to life. A further reliance was placed upon the cross-examination of Dr.Deepak Puri PW-4. Counsel for the State and the complainant could not advance any meaningful argument to persuade this Court as to how the acquittal of accused under Section 307 read with Section 34 IPC is bad, especially when the State has preferred no appeal against acquittal. The trial Court, for recording acquittal of Bidhi Chand, has given following finding: “25. As far as accused Bidhi Chand is concerned, no specific injury is being attributed to him as having been caused by him to any of the injured-PWs. With respect to his participation, all what has been stated in the original version of the prosecution case contained in statement Ex.PA made basis of the F.I.R. of this case is that it is only after the knife blow was given by accused Jaiveer to injured-complainant Angad Singh that accused Abhimanyu son of Prem Singh and accused Bidhi Chand son of Laxman resident of Bareli had suddenly come and Abhimanyu snatched the knife from Jaiveer and gave knife blow to Sunil Kumar and another knife blow was given by Abhimanyu to Ram Sarup. As per Ex.PA, then accused Bidhi Chand have got complainant Angad Singh fallen on the ground and had started uttering that there was an opportunity and complainant party should not be permitted to go. 6 Criminal Appeal No.999-SB of 2002 and Criminal Revision No.1817 of 2002 This original version of the occurrence as statement Ex.PA of injured-complainant, as such, all what attributes as participation on the part of accused Bidhi Chand is as has been summed up above. This version of the prosecution has been subsequently improved upon in the statements of the prosecution witnesses during trial. There does not emerge any explanation for the improvement to make believe as if Bidhi Chand along with Pawan Kumar had caught hold of injured- PWs. One after the other, while they were caused knife injuries by Jaiveer accused and Abhimanyu accused. Even if for argument’s sake, it be taken that injured-PW Angad Singh may because of his injuries may not be in a position to observe fully with respect to the happening and injuries having been caused to other injured-PWs. Even then the statements of other injured-PWs deserve to be analysed independently. And when the statements of PW Sunil Kumar and PW Ram Sarup are analysed independently, it clearly emerges from the statement of PW8 Sunil Kumar and Abhimanyu gave a knife blow which hit him on his shoulder. As per him, Bidhi Chand had not caught hold of him. The statement of PW Ram Sarup is that Sunil was caught by Bidhi Chand and Pawan Kumar, which is contrary to what is stated by PW Sunil himself. Therefore, the participation of accused Bidhi Chand, who otherwise is also an old man of 70 years of age and participation on his part becomes doubtful.” The above said finding returned by the trial Judge cannot be disturbed, as the view formulated by the trial Court is possible on the facts and circumstances of the case and this Court will be hesitant to tread on the path of re-appreciation and re-appraisal of the evidence. It was held in ‘Mahendra Partap Singh vs. Sarju Singh and another’ AIR 1968 Supreme Court 707, relying upon ‘D.Stephens vs. Nosibolla’ AIR 1951 SC 196, as under: “only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision 7 Criminal Appeal No.999-SB of 2002 and Criminal Revision No.1817 of 2002 and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is mis- appreciation of evidence. Again, in Logendranath Jha v. Polajlal Biswas, 1951 SCR 676 (AIR 1951 SC 316), this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is “perverse” or “lacking in true correct perspective”. It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K.Chinnaswamy Reddy v. State of Andhra Pradesh, 1963 (3) SCR 412 = (AIR 1962 SC 1788), it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. As stated not one of these points which have been laid down by this Court, was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned judge has re-weighed the evidence from his own point of view and reached inferences contrary to those of the Sessions judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government 8 Criminal Appeal No.999-SB of 2002 and Criminal Revision No.1817 of 2002 has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.” In ‘Akalu Ahir v. Ramdeo Ram’ AIR 1973 Supreme Court 2145 (V 60 C 352), Hon'ble apex Court observed as under: “8. … … … This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but it was emphasized that this jurisdiction should be exercised 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.” In face of prohibition in Section 439(4), Cr.P.C., for the High Court to convert a finding of acquittal into one of conviction, it makes all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering re-trial. No doubt, in the opinion of this Court, no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court’s power of ordering re-trial can be laid down. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision: (i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused; (ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce; (iii) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible; (iv) Where the material evidence has been over- looked only (either?) by the trial Court or by the appellate Court; and 9 Criminal Appeal No.999-SB of 2002 and Criminal Revision No.1817 of 2002 (v) Where the acquittal is based on the compounding of the offence which is invalid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal. In Mahendra Pratap Singh, (1968) 2 SCR 287 = (AIR 1968 SC 707) (supra) the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court made it plain that it had re-weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal on revision, when the Government had not chosen to file an appeal against it. “In other words” said this Court, “the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.” Similar view was reiterated by Hon'ble apex Court in ‘Bansi Lal and others vs. Laxman Singh’ (1986) 3 Supreme Court Cases 444. Again, Hon'ble the Apex Court, in ‘Ramu alias Ram Kumar and others’ 1995 Supreme Court Cases (Cri) 181, held that it is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it has been invoked by a private complainant. In ‘Vimal Singh vs. Khuman Singh and another’ (1998) Supreme Court Cases (Cri) 1574 and in ‘Bindeshwari Prasad Singh vs. State of Bihar’ 2002 AIR (SC) 2907, the High Court has been reminded of its very limited jurisdiction in revision against acquittal. Therefore, no ground is made out to cause interference in the revision petition preferred by the complainant and the same is hereby dismissed. 10 Criminal Appeal No.999-SB of 2002 and Criminal Revision No.1817 of 2002 Mr.D.S. Bali, Senior Advocate, assisted by Mr.Tejveer Singh, Advocate, appearing on behalf of the appellants, referring to the cross- examination of SI Phool Singh PW-11, has stated that appellant Abhimanyu was also admitted in the PGI and his medico legal report was not obtained by the Investigating Officer. Therefore, it is submitted that Abhimanyu, as stated by the complainant, had received injuries in the occurrence and the prosecution, by not producing his medico legal report, has suppressed the origin and genesis of the occurrence. Nichhatar Singh DW-2 has produced the patient record of Abhimanyu, from which it is evident that he remained admitted in the hospital. He was discharged from PGI on 29th July, 1997. In the present case, occurrence had taken place on 28th July, 1997. The very next day of the occurrence, Abhimanyu was discharged from the hospital. No effort has been made by the defence to prove his medico legal record. In his statement Ex.PA, on the basis whereof formal FIR Ex.PF was registered, Angad Singh PW-1 has stated in categoric terms that they also caused injuries to Abhimanyu in their self defence. This fact has been reiterated by the witnesses in the Court. Therefore, the contention that prosecution has suppressed the origin and genesis of occurrence, is devoid of any merit. At the very first instance, in the FIR complainant party had made an attempt to explain the injuries suffered by appellant Abhimanyu. The accused have failed to prove the nature of injuries. Whether they were serious injuries or superficial in nature? The version pleaded in the defence has to be proved to the hilt. No doubt, if the defence version looks probable from the prosecution version, the Court can extend benefit to the accused, but in the present case, there are no chinks in the prosecution case to extend the benefit to the accused to uphold their plea of self defence. Angad Singh PW-1, Sunil Kumar PW-8 and Ram Sarup PW-9 had received injuries in the occurrence. The injuries on the persons of these three witnesses have been suffered by one weapon, i.e. knife, as all the injuries 11 Criminal Appeal No.999-SB of 2002 and Criminal Revision No.1817 of 2002 are stab injuries. The injuries on the person of Angad Singh PW-1 and Ram Sarup PW-9 were declared grievous. Angad Singh PW-1 has received injuries on the back of his chest whereas, Sunil Kumar PW-8 has received an injury in the chest and Ram Sarup PW-9 on the back of his chest. These injuries cannot be self suffered. Therefore, presence of these witnesses, because of the injuries suffered by them, is stamped at the spot. Thus, their testimonies cannot be discarded as their presence is proved at the place of occurrence. Testimony of these three witnesses aspire confidence. In the FIR, both Bidhi Chand and Pawan Kumar, are said to be empty handed. It is stated in the FIR that Pawan Kumar caught hold of Sunil and made him fall on the ground. Bidhi Chand is also said to have caught hold of the complainant Angad Singh. Their role is not different. In Court Angad Singh, appearing as PW-1, in his examination in chief, stated as under: “… … … Pawan Kumar and Vidhi Chand caught hold of me and Jaiveer gave three knife blows on my person, one on the shoulder, other in the back and third on the nose. After leaving me Pawan Kumar and Bidhi Chand caught Sunil and Jaiveer gave a knife blow in his back… … …” Sunil Kumar PW-8, in his examination in chief, stated that Pawan Kumar caught hold of him and made him fall down. This witness further stated that Bidhi Chand caught hold of Ram Sarup. Ram Sarup PW- 9, in examination in chief stated as under: “… … … Bidhi Chand and Pawan Kumar caught hold of Angad Singh. Jaivir gave three knife blows to Angad Singh. Then Abhimanyu snatched knife from Jaivir. Sunil was caught by Bidhi Chand and Pawan Kumar. Abhimanyu gave knife blow to Sunil on his back. Then Bidhi Chand and Pawan Kumar caught hold of me. Abhimanyu gave knife blow to me on the upper portion of chest near the shoulder… … …” 12 Criminal Appeal No.999-SB of 2002 and Criminal Revision No.1817 of 2002 In view of the above evidence led by the prosecution, it is difficult to make distinction between the case of Bidhi Chand and that of Pawan