IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision 2081 of 2010 Date of decision: 4.8.2010 Baljinder Singh and ors …Petitioners Versus State of Punjab …Respondent Present: Mr. MP Goswami, Advocate for the petitioners. S.S.SARON, J. This revision petition has been filed by the petitioners against the judgment and order dated 9.7.2010 passed by the learned Additional Sessions Judge (Fast Track Court) Bathinda whereby the appeal of the petitioners against the judgment and order dated 23.1.2009 passed by the learned SDJM, Talwandi Sabo, convicting the petitioners for the offences under Sections 452, 325 and 323 read with Section 34 Indian Penal Code (“IPC” – for short) and sentencing them for various terms in respect of the said offences, the maximum being for a period of 2 years for the offence under Section 452 IPC, has been dismissed. Kulwant Singh (PW1) got registered the FIR on the allegation that he and his brother – Harbhajan Singh were living in adjoining houses and they had a common wall. On 30.4.2004, Bhog Ceremony of his Cr Rev 2081 of 2010 2 deceased cousin was to be performed and his entire family and that of his brother Harbhajan Singh had gone there. He was alone in his house. In the adjoining house of his brother, Sukhpal Kaur daughter of his brother – Harbhajan Singh was also alone. At about 3 p.m., complainant – Kulwant Singh (PW1) heard some noise of Sukhpal Kaur. On looking across the wall, he found Raja Singh (petitioner-2) present there with a ‘Soti’, Baljinder Singh (petitioner-1) armed with a ‘Kasia’, Jagga Singh (petitioner- 3) and Sikander Singh (non-petitioner) both armed with ‘Sotis’ were also present there. They were mis-conducting themselves and doing misdeeds with Sukhpal Kaur. Kulwant Singh – complainant rushed to her house. By then, Harbhajan Singh and his son had also reached there. Raja Singh (petitioner-2) was asked to refrain himself from indulging in his misdeeds and misconduct. However, Baljinder Singh (petitioner-1) gave a ‘Kasia’ blow from the reverse side on the complainant, which injured his right arm. Raja Singh (petitioner-2) gave a ‘Soti’ blow on his right shoulder and also gave another pointed blow of his ‘Soti’, which landed on the left eye of the complainant. Sikander Singh (non-petitioner) with his ‘Soti’ attacked the complainant and injured him on the wrist of his left arm. Jagga Singh (petitioner-3) gave a ‘Soti’ blow on the left elbow and right leg. The complainant cried for help. Besides, Harbhajan Singh and Sukhwinder Singh also shouted for help. The neighbours had then gathered there. On seeing them, the assailants left the spot with their respective weapons. The complainant – Kulwant Singh was got admitted in Civil Hospital, Talwandi Sabo. After completion of investigation, the charge report (Challan) was presented by the Police and the learned trial Court charged the petitioners for the offences under Sections 452, 323, 325, 354/34 IPC. The prosecution, in order to establish its case, examined as many as 6 PWs. On Cr Rev 2081 of 2010 3 completion of the evidence, statement of the accused were recorded in terms of Section 313 of the Code of Criminal Procedure. They denied the incriminating circumstances put to them and claimed innocence. The learned trial Court, after considering the evidence and material on record, convicted the petitioners for the offences under Sections 452, 325, 323 read with Section 34 IPC. However, the charge against the petitioners for the offence under Section 354 IPC was held to be not made out. Accordingly, the petitioners were sentenced for the offences for which they were convicted and were sentenced to varying terms, the maximum being 2 years. All the sentences were, however, ordered to run concurrently. The petitioners and Sikander Singh (non-petitioner) aggrieved against the order of the trial Court, preferred an appeal. The learned Additional Sessions Judge (Fast Track Court) Bathinda, upheld the conviction. However, the punishment awarded for the offence under Section 452 IPC, it was held, was somewhat on the higher side. All the injuries were on the non-vital parts of the body and the injury on the forehead was with a blunt weapon and it was held that it had been caused with a ‘Soti’, although it was from the pointed side. Accordingly, the imprisonment of 2 years for the offence under Section 452 IPC was reduced to 1-1/2 years. The appellants who were on bail, were taken in custody. It was ordered that revised custody warrants be sent to the Superintendent, Central Jail, Bathinda. Aggrieved against the said order, the petitioners have filed the present revision petition. Learned counsel for the petitioners has contended that there are several discrepancies in the evidence produced by the prosecution. It is submitted that Kulwant Singh (PW1), during his cross-examination, stated that he remained unconscious for 3 days and he gained consciousness on the third day of the occurrence. This has also been corroborated by his brother – Cr Rev 2081 of 2010 4 Harbhajan Singh (PW2), who stated that he narrated the entire story to SHO, who obtained his signatures in the hospital. It is submitted that the Police had obtained the thumb impression of Kulwant Singh while he was unconscious, which shows that Kulwant Singh never made any statement before the Police, as alleged and the same is manipulated by the Police in connivance with the complainant for the success of their case. It is further submitted that Harbhajan Singh (PW2) is not an eye-witness to the occurrence as it is stated that he reached the spot after the occurrence and he also admitted that no altercation took place between the two sides. This aspect, it is submitted, has not been appreciated by the learned Courts below. It is further submitted that the Courts below failed to appreciate that in the previous version, it is alleged that Baljinder Singh (petitioner-1) had a ‘Kasia’ and the other three accused were carrying ‘Sotis’, but when Kulwant Singh appeared as PW1, he stated that he received injuries from the handle of a handpump and he never stated that he received injuries from ‘Soti’ and ‘Kasia’. It is further submitted that the weapons of offence when they were produced before the Court, were not shown to PW-1 – Kulwant Singh and PW5 – Sukhpal Kaur, daughter of Harbhajan Singh (PW2). It is further submitted that Dr Harinderpal Singh (PW6) stated that injuries-1 and 4 to 6 on the person of Kulwant Singh were superficial in nature and could be the result of a fall and the possibility cannot be ruled out that these injuries could be result of a fall. It is further deposed by the said doctor that it cannot be ruled out that injuries-2 and 3 could be caused by a friendly hand. I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner; however, find no merit in the same. Cr Rev 2081 of 2010 5 The contention that Kulwant Singh (PW1) had remained unconscious for three days and regained consciousness on the third day, has been considered by the learned trial Court in its judgment and order dated 23.1.2009. It was observed that Kulwant Singh had stated that he was unconscious and his statement was recorded in that state and his thumb impressions were taken. On the said basis, learned counsel for the accused (now petitioners) argued that the entire complaint and registration of the FIR should be discarded. It was observed that there was over-whelming evidence which would lead to other conclusion. Dr Harinderpal Singh (PW6) had declared Kulwant Singh (PW1) fit to make a statement and only thereafter his statement was recorded. This fact is corroborated by the investigating officer – PW3 (ASI Gurjit Singh). Therefore, it was observed that it was not clear as to under what circumstances, he made such a statement. Nevertheless nothing serious could be inferred from such utterance as in his evidence on oath in Court, he (Kulwant Singh PW1) had fully supported the averments of his complaint and he withstood the test of cross-examination. The evidence of Kulwant Singh (PW1) has been seen from the brief of the learned counsel for the petitioner in which as regards his being unconscious, he has at one point stated that he was conscious. It is stated by him that when his statement was recorded, he was conscious. It is further stated that all his brothers were present at the spot. It is further stated that when his statement was recorded, his thumb impressions were taken while he was unconscious. Therefore, there is merely some inconsistency in the cross examination of Kulwant Singh, which does not in any manner affect the prosecution case because it is clearly stated by Kulwant Singh PW1 that he was conscious when his statement was recorded and was unconscious Cr Rev 2081 of 2010 6 when his thumb impressions were taken. This would mean that when the statement was recorded, he was conscious and by the time, it ended, he had gone off to sleep and his thumb impressions were taken in a state of unconsciousness. This, however, would not in any manner affect the deposition of Kulwant Singh (PW1). This is more so for the reason that the learned trial Court had considered this aspect and observed that nothing serious could be inferred from such an utterance. Moreover, this aspect was not assailed before the learned lower appellate Court even though it is mentioned as one of the grounds in the grounds of appeal. It may be noticed that the contentions as raised in the grounds of appeal at times are generally not urged during the course of hearing and arguments. Therefore, it is to be taken that the said contention was not urged as it is not recorded by the learned first appellate Court that such a contention was raised. The judicial record as is recorded by the Courts with regard to the contentions raised and considered, are not questionable and are not open to doubt. The orders recorded by the Courts below as regards the contentions raised, are absolute verity and are to be taken as statements precisely as recorded. Therefore, the contention that Kulwant Singh (PW1) was unconscious at the time of giving his statement, is not borne out from his deposition as he also states in his cross examination that he was conscious when his statement was recorded. The other contention of the learned counsel for the petitioner is that Harbhajan Singh (PW2) is not an eye witness as he stated that he reached the spot after the occurrence and he also admitted that no altercation took place between the two. Even if Harbhajan Singh is not to be taken as an eye witness, the prosecution case stands established from the deposition of Kulwant Singh (PW1). Therefore, even if the contention of Cr Rev 2081 of 2010 7 the learned counsel for the petitioner is to be accepted, it does not in any manner affect the prosecution case. The next contention of the learned counsel for the petitioner is that the Courts below have failed to appreciate that in the previous version, it is alleged that Baljinder Singh (petitioner-1) was having a ‘Kasia’ and the others were having ‘Sotis’, but when Kulwant Singh appeared as a witness in the Court, he stated that he received injuries from the handle of a handpump and he never stated that he received injuries inflicted by ‘Soti’ and ‘Kasia’. In this regard, it may be noticed that the statement of Kulwant Singh (PW1) has been perused from the brief of the learned counsel for the petitioner wherein it is stated in his examination in chief that Baljinder Singh, accused, who was present in Court was holding a ‘Kasia’ at the time of occurrence and had attacked him. Kulwant Singh (PW1) then raised his right arm to save himself and the ‘Kasia’ hit him from the reverse side on his right arm. Therefore, it is not a case that Kulwant Singh (PW1) never stated that he received injuries from the ‘Kasia’. It is, however, stated by Kulwant Singh (PW1) in his cross examination that one accused had a handle of a handpump, with which he caused injuries on his bicep and on his forehead. It is further stated that the others had ‘Sotis’. Learned counsel for the petitioner in fact wants to draw an inference that since the other accused namely Raja Singh (petitioner-2) and Jagga Singh (petitioner-3) were said to be armed with ‘Sotis’, therefore, it is to be taken that Kulwant Singh (PW1) was carrying a handle of a handpump. It may, however, be noticed that apart from the petitioners, there is one more accused – Sikandar Singh and it is not stated by Kulwant Singh as to who was the accused who was carrying a handle of handpump. Therefore, it cannot by process of elimination be inferred that Kulwant Singh (PW1) was holding a Cr Rev 2081 of 2010 8 handle of a handpump. The contention that the weapons of offence were not shown to Kulwant Singh (PW1) and Sukhpal Kaur (PW5), is also inconsequential. The complainant has stated that they were caused injuries with the weapons that the accused were carrying. Merely because the weapons of the offence were not shown, would not in any manner affect the prosecution case. In case any clarification was required, it was open to the petitioners to cross examine the witnesses while they were in the witness box. The other contention of the learned counsel for the petitioner is that Dr Harinderpal Singh (PW6) has stated that injuries, 1, 4 to 6 on the person of Kulwant Singh (PW1) could be the result of fall and that injuries –2 and 3 could be with a friendly hand, is also inconsequential as the medical evidence would not supersede the ocular account, which has established the genesis of the occurrence and also given an account of the incident as it occurred. It may also be noticed that both the Courts below have held the case against the petitioners to be fully proved and established. This Court in exercise of its revisional jurisdiction is not to substitute its decision for that validly reached at by both the Courts below on appreciation of the evidence and material on record. The revisional jurisdiction is to be exercised in exceptional cases where there is a glaring defect in the procedure that has been followed or a manifest error on point of law which has consequently resulted in grave miscarriage of justice. In fact, the revisional jurisdiction does not postulate the re-appreciation of evidence. In view of the above, there is no merit in this petition and the same is accordingly dismissed. 4.8.2010 ( S.S.SARON ) ASR Judge