Criminal Appeal No. 175-SB of 2000 And 1 Criminal Revision No. 698 of 2000 In the High Court of Punjab and Haryana, at Chandigarh. 1. Criminal Appeal No. 175-SB of 2000 Baljinder Singh and Another …Appellants Versus State of Punjab …Respondent AND 2. Criminal Revision No. 698 of 2000 Harminder Singh …Petitioner Versus Baljinder Singh and Another …Respondents Date of Decision: 17.2.2011 CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr.Paramjit Singh Brar, Advocate for the appellants. (In Criminal Appeal No. 175-SB of 2000). None for the petitioner (In Criminal Revision No.698 of 2000). Mr. J.S. Bhullar, Assistant Advocate General, Punjab, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) By this common order, both Criminal Appeal No.175-SB of 2000 titled as “Baljinder Singh and Another v. State of Punjab” and Criminal Revision No. 698 of 2000 titled as “Harminder Singh v. Criminal Appeal No. 175-SB of 2000 And 2 Criminal Revision No. 698 of 2000 Baljinder Singh and Another”, shall be decided together. Appellants Baljinder Singh alias Binder Singh and Jagga Singh alias Jagga were nominated as accused in case FIR No. 98 dated 28.8.1994, registered at Police Station Baghapurana, under Sections 302 and 34 IPC. The Court of Additional Sessions Judge, Moga, vide its judgment dated 11.2.2000 acquitted the appellants for the offence under Section 302 read with section 34 IPC, however, convicted appellant Baljinder Singh alias Binder Singh for the offence under Section 304 Part-II IPC and appellant Jagga Singh alias Jagga for the offence under Section 304 Part-II read with Section 34 IPC. Vide a separate order of even date, appellant Baljinder Singh alias Binder Singh was sentenced to further undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 500, in default whereof to undergo rigorous imprisonment for a period of one year, for the offence under Section 304 Part-II IPC. Whereas appellant Jagga Singh alias Jagga was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 500, in default whereof to further undergo rigorous imprisonment for a period of one year, for the offence under Section 304 Part-II read with Section 34 IPC. In Criminal Appeal No. 175-SB of 200, the appellants have assailed their conviction and sentence, whereas in Criminal Revision No. 698 of 2000, the petitioner has prayed that acquittal of both the appellants for the offence under Section 302 IPC be set aside and they be sentenced thereunder. It is pertinent to note that the State has filed no such appeal. Criminal Appeal No. 175-SB of 2000 And 3 Criminal Revision No. 698 of 2000 PW.5 Amar Singh, Assistant Sub Inspector, on 24.8.1994, was posted as such at Police Station Baghapurana and on that day he had received a quest from Police Station City, Moga-II that Guranditta Singh, injured was admitted in Civil Hospital, Moga and an Investigating Officer should be sent to the hospital to record the statement of the injured. Thereupon, Amar Singh, Assistant Sub Inspector, accompanied by the police officials, reached at Civil Hospital, Moga and moved an application Ex.PJ before the Medical Officer for seeking his opinion regarding fitness of the injured. The doctor gave his opinion Ex.PJ/1 that Guranditta Singh was fit to make a statement. Accordingly, on 24.8.1994 at about 12.10 Noon, statement of Guranditta Singh was recorded at Civil Hospital, Moga. The statement has been proved on record as Ex.PG, wherein Guranditta Singh stated that he was a resident of village Wander and was an Agriculturist. He was having three sons, namely Paramjit Singh, Charanjit Singh and Harminder Singh, who had constructed their separate houses. On 23.8.1994 at about 12.30 A.M., Guranditta Singh along with his son Harminder Singh and nephew Bahadur Singh were sleeping in the newly constructed house of Harminder Singh. At that time, Baljinder Singh alias Binder armed with Dang and Jagga Singh son of Gittan Singh came in front of his house and stated that they would teach a lesson for demolishing the wall and restrain them to construct the same. They started hurling abuses. Thereupon, Guranditta Singh, his son Harminder Singh and nephew Bahadur Singh woke up. Guranditta Singh restrained them from hurling abuses. At that time, Criminal Appeal No. 175-SB of 2000 And 4 Criminal Revision No. 698 of 2000 Jagga Singh gave a lalkara that a lesson should be taught to them for demolishing the wall. Thereafter, Baljinder Singh gave four dang blows on the head, neck and right knee of Guranditta Singh. He fell down. Harminder Singh and Bahadur Singh raised an alarm of “maar ditta maar ditta”. Then both the accused decamped from the spot with their weapons. Daljit Singh, brother of Guranditta Singh, had arranged for a vehicle and got him admitted in the hospital, where first aid was provided to him. The cause of grudge was that the plot of the accused adjoined the house of complainant and there was a dispute regarding that wall. After recording the statement, the Investigating Officer opined that the nature of injuries have not been declared by the doctor and the offence fell under Sections 323 and 34 IPC. Thereafter, the said report was incorporated in the Daily Diary Registry vide entry No.10. Admittedly, in the present case, Guranditta Singh had received injuries. On 27.8.1994, the Radiologist had declared injury No.1 as dangerous to life and injury No.2 as grievous. Therefore, on 28.8.1994, FIR was registered against the appellants. The abovesaid FIR was investigated and the report under Section 313 Cr.P.C. was submitted. Guranditta Singh was admitted in hospital on 27.8.1994 and on 5.9.1994, he died in Civil Hospital, Moga. The statement Ex.PG made by Guranditta Singh is to be treated as a dying declaration. On 14.3.1995, appellant Baljinder Singh was substantively charged for the offence under Section 304 IPC, whereas appellant Jagga Singh with the aid of Section 34 IPC. Subsequently, on Criminal Appeal No. 175-SB of 2000 And 5 Criminal Revision No. 698 of 2000 11.3.1998, a fresh charge was framed and appellant Baljinder Singh was substantively charged with the offence under Section 302 IPC, whereas appellant Jagga Singh with the aid of Section 34 IPC. Both the appellants pleaded not guilty and claimed trial. Harminder Singh, son of deceased Guranditta Singh, appeared as PW.2. He stated that on the day of occurrence, both the accused came in front of his house. They raised a lalkara. Baljinder Singh was armed with a dang. They stated that they would teach a lesson for not allowing them to demolish the wall. His father Guranditta Singh restrained both the accused from hurling abuses. Then accused Jagga Singh raised a lalkara that a lesson be taught for stopping them from demolishing the wall. Baljinder Singh gave four dang blows which hit head, neck and right knee of his father. PW.3 Dr. Yash Pal had conducted medicolegal examination of deceased Guranditta Singh. He found the following injuries on his person:- “1. Patient was conscious. B.P. 140/90 mm of Hg. Pulse 92 per minute, regular pupils were equal on both sides and reacting to light. History of unconsciousness after the patient was hit with a lathi on the back. Back of neck region, patient had difficulty in the movements of the limbs. So general condition was kept under observation. 2. As the patient was hit with lathi on the neck region he had pain and difficulty in Criminal Appeal No. 175-SB of 2000 And 6 Criminal Revision No. 698 of 2000 the movements of neck region. Advice X- ray. 3. Longitudinal abrasion of 3 x .1 cm present on the medial side of right knee joint and right lower limb, oozing was present. 4. Abrasion of 1.5 x 0.1 cm on the right leg 1.6 cm below the lower end of the injury No.3. Oozing was present...” PW.4 Dr. S.P. Bansal conducted autopsy on the dead body of Guranditta Singh on 6.9.1994. According to him, there was no visible external injury on the back of neck. However, on dissection the underlying cervical sixth vertebra was found fractured. The spinal cord was edematous from C4 to C7 and was lacerated. Clotted blood was present in the cord. According to opinion of the doctor, the cause of death was asphyxia as a result of paralysis of nerves which control respiration. All the injuries were ante mortem in nature, which are sufficient to cause death in the ordinary course of nature. PW.5 Amar Singh, Assistant Sub Inspector, stated that he had recorded the statement of deceased Guranditta Singh, on the basis of which formal FIR was registered. PW.8 Gurcharan Singh, Sub Inspector, on receipt of the opinion of the doctor regarding the nature of injuries, had registered the FIR and lateron had added the offence under Section 304 IPC. Thereafter, the statements of both the accused, under Section 313 Cr.P.C., were recorded. All the incriminating evidence was put to them. They denied the same and pleaded innocence. Criminal Appeal No. 175-SB of 2000 And 7 Criminal Revision No. 698 of 2000 The trial Court held that since there was no visible external injury on the back of neck of deceased Guranditta Singh, who died after 13 days of the occurrence, knowledge can be attributed to appellant Baljinder Singh. The Court further held that it is doubtful as to whether appellant Baljinder Singh was having an intention to cause injuries culpable homicide amounting to murder. The prosecution case rests upon a dying declaration Ex.PG made by Guranditta Singh and testimony of his son PW.2 Harminder Singh. It was observed by the Hon'ble Apex Court in Godhu and Another v. State of Rajasthan AIR 1974 Supreme Court 2188 as under:- “16. We are also unable to subscribe to the view that if a part of the dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying declaration. The rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of the dying declaration which is, not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the, two parts. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration Criminal Appeal No. 175-SB of 2000 And 8 Criminal Revision No. 698 of 2000 may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon - part of the dying declaration, the other part of which has of been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct...” A Division Bench of this Court in Kanwal Singh and Others v. State of Haryana 2006(3) Recent Criminal Reports 783 relying upon Narain Singh v. State of Haryana 2005 Supreme Court Cases Criminal 185, held that a duty is cast upon the Court to sift the grain from the chaff and find out as to whether the accused has been falsely roped in or not. In the present case, in the dying declaration only a lalkara is attributed to appellant, Jagga Singh. He has played no overt role. In State of Punjab v. Darshan Singh and Others 1992(3) Recent Criminal Reports 381, a Division Bench of this Court has held that exhortation (lalkara) is a weak piece of evidence and there is quite often a tendency to implicate some person in addition to the actual assailant by attributing lalkara. It will be apposite here to reproduce para No.6 of Criminal Appeal No. 175-SB of 2000 And 9 Criminal Revision No. 698 of 2000 the judgment rendered in Darshan Singh's case (supra):- “6. Lachhu and Nazar, two out of the four accused are attributed only lalkara. In Fatta v. Emperor, AIR 1931 Lahore 63, it was observed:- “When the prosecution are unable to prove satisfactorily the intention of knowledge of an accused person they generally ascribe to him certain words which he is supposed to have spoken in order to supply the missing proof. This method is more often adopted in cases in which certain person is sought to be punished for constructive liability as regards the commission of crime of violence. It is highly unlikely that the accused would be so foolish to proclaim his intentions before committing the attack, as by doing so he was sure to be thwarted by the persons present.” In Garib Singh and Others v. State of Punjab, AIR 1973 Supreme Court 460, it was observed:- “Allegations of participation by giving lalkaras are sometimes made only to show additional overt acts so as to take in at least five persons and make out the Criminal Appeal No. 175-SB of 2000 And 10 Criminal Revision No. 698 of 2000 ingredients of an offence under Section 147 IPC against all of them.” In Amar Singh v. State of Haryana, AIR 1973 Supreme Court 2221, it was observed:- “If the appellant had shouted lalkaras it would be difficult to sustain the conviction.” In Jainul Haque v. State of Bihar, AIR 1974 Supreme Court 45, it was observed:- “The evidence of exhortation is in the very nature of things a weak piece of evidence. There is quite often a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the assailing to assault the victim.” The learned trial Court, thus, rightly acquitted both of them. Its finding regarding their acquittal is, therefore, affirmed...” This view is further reiterated by another Division Bench of this Court in Surjit Singh v. State of Punjab 2000(1) Recent Criminal Reports 33 that where the person, who has attributed a lalkara, was acquitted. In Jugraj Singh and Another v. State of Punjab 2007(2) Recent Criminal Reports 276, another learned Single Bench of this Court has held that “ there is a general tendency to rope in an innocent person and while doing so, the role attributed to such an accused is Criminal Appeal No. 175-SB of 2000 And 11 Criminal Revision No. 698 of 2000 generally of raising of lalkara or giving of exhortation”. In view of the discussion made above, this Court is of the view that as a matter of abundant caution, benefit of doubt can be extended to appellant Jagga Singh. Thus, appeal qua Jagga Singh is accepted and conviction and sentence, awarded upon him, by the trial Court is set aside. He is acquitted of the charges. So far as the role of appellant Baljinder Singh is concerned, he had caused injuries with dang to deceased Guranditta Singh, who will be the last person to substitute the real assailant. In the present case, dying declaration Ex.PG was duly corroborated by the testimony of PW.2 Harminder Singh, son of the deceased. The occurrence, in the present case, had taken place in front of the house of deceased, during night time, where the presence of deceased Guranditta Singh and his son PW.2 Harminder Singh was natural. Thus, the trial Court has rightly relied upon this piece of evidence to record conviction of appellant Baljinder Singh. Therefore, conviction of appellant Baljinder Singh for the offence under Section 304 Part-II IPC is affirmed. Section 304 Part- II IPC prescribes the sentence which may extend upto ten years. The trial Court has awarded maximum sentence. The occurrence, in the present case, had taken place in the year 1994. A period of more than 16 years has elapsed. Taking into consideration sufferance of protracted trial as a mitigating circumstance, sentence of appellant Baljinder Singh is reduced from ten years to that of seven years rigorous imprisonment. However, sentence of fine and default clause are maintained. Hence, Criminal Appeal No. 175-SB of 2000 And 12 Criminal Revision No. 698 of 2000 appeal qua Baljinder Singh is disposed of in the above terms. As stated earlier, the State has opted not to file any appeal against acquittal of the appellants for the offence under Section 302 IPC. This Court, while exercising revisional jurisdiction, will be hesitant to reverse the findings returned by the trial Court on acquittal of the appellants for the offence under Section 302 IPC. 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 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 Criminal Appeal No. 175-SB of 2000 And 13 Criminal Revision No. 698 of 2000 “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 Criminal Appeal No. 175-SB of 2000 And 14 Criminal Revision No. 698 of 2000 Sessions judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government 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: “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 Criminal Appeal No. 175-SB of 2000 And 15 Criminal Revision No. 698 of 2000 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 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 Criminal Appeal No. 175-SB of 2000 And 16 Criminal Revision No. 698 of 2000 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 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 Criminal Appeal No. 175-SB of 2000 And 17 Criminal Revision No. 698 of 2000 been reminded of its very limited jurisdiction in revision against acquittal. It is well settled that unless any legal infirmity in the procedure or in the conduct of trial or patent illegality is pointed out, the revisional Court will not interfere. This Court has already given benefit of doubt to Jagga Singh and furthermore in view of the settled legal position, which has been enumerated above, this Court