In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Revision No.880 of 2006 (O & M) ..... Date of decision:4.2.2009 Sombir .....Petitioner v. State of Haryana and others .....Respondents .... Present: Mr. Jitender Nara, Advocate for the petitioner. Mr. Ajay Singh Ghangas, Deputy Advocate General, Haryana for the respondent-State. Mr. Babbar Bhan, Advocate for respondent No.2. Mr. Mahender Singh Chahal, Advocate for respondent No.3. ..... S.S. Saron, J. This revision petition has been filed by the complainant Sombir against the judgment and order dated 17.12.2003 passed by the learned Additional Sessions Judge (Ad hoc), Jhajjar whereby Parbhat Nath alias Ramesh (respondent No.2) has been convicted for the offence under Section 325 Indian Penal Code (`IPC' – for short) while Chand (respondent No.3) has been acquitted. A prayer has been made for setting aside the order of the learned Additional Sessions Judge and for convicting respondents No.2 and 3 for the offences for which they had been charged i.e. Sections 302 and 34 IPC. Sombir (petitioner) lodged a report with the Police on 23.9.2002 on the allegations that his elder brother namely Sewa Dass had renounced Crl. Rev. No.880 of 2006 (O & M) [2] the world and had become a `Pujari' (priest) in the Shiv Temple of their village. On 21.9.2002 during the day, the accused Chand (respondent No.3) and Parbhat Nath (respondent No.2) both residents of village Jhamri came to the temple and consumed liquor there. They also served liquor to Sewa Dass (deceased). Thereafter, they started quarreling probably over the matter that Parbhat Nath (respondent No.2) accused also wanted to stay in the temple and he could not do so as long as Sewa Dass was a `Pujari' there. While leaving, Parbhat Nath and Chand (respondents No.2 and 3) held out threats to Sewa Dass of dire consequences. On the same day in the evening, the complainant went to Sewa Dass in the temple and he informed the complainant about the threats held out to him by respondents No.2 and 3. At about 9.00 p.m. on the same day i.e. 21.9.2002, the complainant and his mother Sharbati were present in their field known as Talwala when they heard an alarm of Sewa Dass saying `Bachao Bachao'. The complainant and his mother rushed to the temple and on reaching there they saw that both the accused Parbhat Nath and Chand (respondents No.2 and 3) were causing injuries to Sewa Dass. Parbhat Nath (respondent No.2) had an axe in his hand and Chand (respondent No.3) had an iron rod in his hand. There was electric light in the temple and outside the temple. Parbhat Nath (respondent No.2) gave a `kulhari' (axe) blow on the head of Sewa Dass while Chand (respondent No.3) gave a pipe blow on his right hip. The complainant and his mother raised an alarm that they had reached. On seeing them, the respondents No.2 and 3 ran away with their respective weapons. Sewa Dass had suffered several injuries. The complainant and his mother, therefore, brought him to their house and gave him some first aid treatment. But on the next day his condition became serious, so he was taken to Civil Hospital, Crl. Rev. No.880 of 2006 (O & M) [3] Jhajjar where he was admitted on 22.09.2002 and the doctor medically examined him. On receiving message regarding the admission of Sewa Dass, Surender Singh, ASI reached the hospital and collected the Medico Legal Report of Sewa Dass and submitted an application regarding fitness of the injured to make a statement. The doctor declared Sewa Dass to be not fit for making a statement. No attendant was there with Sewa Dass at that time. ASI Surender Singh, therefore, returned to the police station. On 23.9.2002 at 7.15 a.m., another message was received that the injured Sewa Dass had died in the hospital. On receipt of the said message, Surender Singh, ASI accompanied by Ajit Singh, HC reached the hospital and found Sombir (petitioner)-the brother of the deceased Sewa Dass and some other persons of the village in the ward where the dead body of Sewa Dass was lying. The statement (Ex.P1) of Sombir (petitioner) was recorded on the basis of which FIR was registered. After investigation of the case, police report (challan) was filed. Respondents No.2 and 3 were charged for the offences punishable under Sections 302 and 34 IPC. The prosecution in order to prove its case examined as many as 12 witnesses. The learned trial Court after considering the evidence and material on record has convicted Parbhat Nath (respondent No.2) for the offence under Section 325 IPC while Chand (respondent No.3) has been acquitted. The State of Haryana has not filed any appeal against the acquittal of respondents No.2 and 3 for the offence under Sections 302 and 34 IPC. The complainant-Sombir has filed the present revision petition. Along with the revision petition, Criminal Misc. No.25172 of 2006 has been filed seeking condonation of 671 days delay in filing the Crl. Rev. No.880 of 2006 (O & M) [4] revision. It is stated that the petitioner is a poor person has no means of livelihood other than agriculture. He has small holdings; therefore, he did not have sufficient funds to engage a counsel. The petitioner after harvesting and selling his wheat crop and after raising money from the ‘Arhtia’ (commission agent) could engage a counsel to file the present revision petition. Therefore, it is submitted that the delay in filing the revision petition may be condoned. Notice was issued on the application seeking condonation of delay. Learned counsel for the petitioner has submitted that delay in filing the revision petition on account of the aforesaid reasons is liable to be condoned. In any case it is submitted that the case against the respondents is clearly made out. It is submitted that it is a case of misreading of evidence by the learned Court below. A reference has been made to the deposition of Dr. Balvinder Singh (PW-8) who conducted the post-mortem examination of deceased Sewa Dass. It is submitted that the doctor had clearly opined that the cause of death was the injuries on the person of the deceased specially head injury. Therefore, it is submitted that the learned trial Court gravely erred in acquitting respondents No.2 and 3 for the offence under Sections 302 and 34 IPC. Mr. Babbar Bhan, Advocate has put in appearance for respondent No.2. It is stated that the reasons given for seeking condonation of delay are not remotely made out and are general in nature which do not make out any case for condoning the delay. In any case, it is submitted that even on merits it has been found that the nature of injuries on the person of Sewa Dass were not established as no x-ray examination of Sewa Das was Crl. Rev. No.880 of 2006 (O & M) [5] got conducted. Therefore, it cannot be said that the nature of injuries on the person of Sewa Das were such that Parbhat Nath (respondent No.2) had the intention or knowledge to cause the death. It is submitted that for the offence under Section 325 IPC, respondent No.2 has undergone imprisonment for three years and thereafter has been released after completing his sentence of imprisonment. Respondent No.2 even otherwise did not challenge the order imposing the conviction and sentence. I have given my thoughtful consideration to the contentions of the learned counsel for the parties. From the copies of evidence that has been given by the learned counsel, it may be noticed that Dr. Balvinder Singh (PW-8) conducted the post-mortem examination on the dead body of Sewa Dass. He found 7 lacerated wounds on the person of Sewa Dass which are as follows:- 1. Lacerated wound 1 x .5 cm. on scalp in mid line parietal region sagittaly placed. 2. A punctured wound of size 1 cm x 1 cm. present on left arm middle part lateral aspect. 3. Lacerated wound of size 1 x .5 cm. present on left hand dorsal aspect base of index finger. 4. Lacerated wound 6 cm x 1 cm. present left hand palmer aspect. 5. Swelling of size 6 x 4 cm. present in knee joint. 6. Lacerated wound of size 1 x 1 cm. present on right forearm. 7. Lacerated wound of size 1 x 1 cm. present on foot left at the base of great toe dorsal aspect.” Crl. Rev. No.880 of 2006 (O & M) [6] Injury No.1 is lacerated wound 1 x .5 cm. on scalp in mid line parietal region sagittaly placed. The other injuries are primarily on non-vital parts. The viscera was sent to the Chemical examiner, however, nothing incriminating was detected. Therefore, it was deposed that in the Chemical Examiner's report there was nothing in the viscera poison etc. and so the cause of death was due to injuries on the person of the deceased specially the head injury. In cross-examination, it is stated that infection can occur in any way at any time and even within one hour. Besides, the time between death and injury had not been mentioned in post-mortem report and the injuries – death could be within 24 hours of sustaining the injuries. Dr. S.C. Nawal, Medical Officer (PW-7) had conducted the MLR of Sewa Dass on 22.9.2002. He noticed injury No.1 as a lacerated wound of size of 8 x .5 cm present on the head. Margin was lacerated. Slight infection was present and x-ray was advised. Injury No.2 was a punctured wound of size 1 x 1 x 1 cm. present on left arm. Margin was lacerated. Bleeding and pus was present. X-ray was advised. The opinion regarding injuries 1 and 2 was to be given after X-ray examination. The other injuries i.e. injuries No.3 to 10 were opined to be simple in nature. Injury No.2 it was stated was caused by a blunt and pointed weapon. Rest of the injuries was opined to have been caused by a blunt weapon. It has come on record that no X-ray examination of Sewa Dass was conducted. Therefore, the nature of the injury on the head could not be ascertained. The learned trial Court inter alia observed that the ‘kulhari’ was not used from its sharp side. The head injury was a lacerated wound 1 x .5 cm. on the scalp in the parietal region. X-ray was advised for the said injury but no x-ray was conducted. It was observed that the injury on the head was not given with Crl. Rev. No.880 of 2006 (O & M) [7] force and in case an axe was used with some force, the fracture of the parietal bone was a must. As such, it was observed that there was neither any intention to cause the death nor any such bodily injury was caused which was likely to cause death. The accused Chand (respondent No.3) it was observed had no interest in the temple. He was stated to be armed with an iron pipe but no injury with such pipe was found on the person of the deceased. Keeping the facts and circumstances in view, an offence under Section 325 IPC was found to be made out against Parbhat Nath (respondent No.2). The reasoning and conclusions reached at by the learned Additional Sessions Judge (Ad hoc) Jhajjar are just and proper and do not warrant any interference by this Court in exercise of its revisional jurisdiction. Sewa Dass died within 9-10 hours of his reaching the hospital. He did not make any statement to the Police. He was not immediately taken to the hospital but was being given first aid treatment in his home. It is thereafter when he became serious that he was taken to the hospital and the attending doctor i.e. Dr. S.C.Nawal (PW-7) sent a ‘ruqa’ (Ex.PE/1) to the SHO Police Station Salhawas (Jhajjar) regarding the reaching of injured Sewa Das in the hospital. On this ASI Surender Singh reached the hospital and recorded the statement (Ex.P1) of Sombir. Therefore, there has been unnecessary delay on the part of the complainant in reporting the matter and even in getting timely treatment for the injured. In the circumstances, the conclusions reached at by the learned trial Court are plausible and reasonable. It may also be notice that there is a delay of 671 days in filing the revision petition and Parbhat Nath alias Ramesh (respondent No.2) has undergone his sentence of imprisonment. Crl. Rev. No.880 of 2006 (O & M) [8] The delay in filing the revision is not satisfactorily explained. This Court in view of Section 401(3) Cr.P.C., in any case is not authorised to convert a finding of acquittal into one of conviction. The respondents No.2 and 3 having been acquitted for the offence under Section 302 read with Section 34 IPC are not liable to be convicted in exercise of the revisional jurisdiction of this Court. Even otherwise nothing has been shown that there has been any illegality or impropriety in passing the impugned order by the learned trial Court. For the foregoing reasons, there is no merit in the revision petition which is accordingly dismissed. The application seeking condonation of delay of 671 days is also highly belated and the same is also dismissed. February 4, 2009. (S.S. Saron) Judge *hsp*