Criminal Revision No.2314 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Revision No.2314 of 2008 Date of decision: 2.4.2009 Dilbag Singh ......Petitioner Versus Jagtar Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.S.Sihota, Sr.Advocate with Mr.B.R.Rana, Advocate, for the petitioner. **** SABINA, J. Respondent Nos.1 to 4 were tried for an offence under Sections 307, 506/34 of the Indian Penal Code and Sections 25 and 27 of the Arms Act in FIR No.60 dated 1.4.2006 registered at Police Station Majitha. However, they were acquitted vide judgment dated 5.2.2008 passed by the Additional Sessions Judge,(Adhoc) Fast Track Court, Amritsar. Aggrieved by the same, Dilbag Singh- complainant has filed the present revision petition. Prosecution case, as noticed by the trial Court in para 2 of its judgment, is reproduced herein below:- Criminal Revision No.2314 of 2008 2 “The case of the prosecution briefly stated is that on 31.03.2006 Gurbhej Singh alias Bheja was going on a motor cycle and the same hit the cycle driven by Raghbir Singh alias Beera son of Tara Singh, who is the son of the elder brother of father of Dilbagh Singh. Both of them received injuries. Gurbhej Singh was saying that Raghbir Singh had intentionally hit his cycle against the motor cycle. On coming to know about the incident,Dilbagh Singh PW went to the house of Kunan Singh at about 8.30p.m. And made inquiry. Jagir Singh alias Kala son of Kunan Singh was present there and he started abusing Dilbagh Singh and Beera. Dilbagh Singh told him it was not proper on his part to abuse him when he had come to his house. After protesting to the Sarpanch, he came to the house. Then after returning, he was present in the house with his brothers Puran Singh and Gursewak Singh, father Makhan Singh and other family members and they were taking food. At about 09.30 p.m. he heard noise of giving abuses by naming him on the road in front of their house. He recognized their voice and saw that Jagir Singh alias Kala armed with 315 bore gun, Gurbhej Singh alias Bheja having 315 bore gun, Lakhwinder Singh alias Ladha having 12 bore gun residents of Village Khiala and Criminal Revision No.2314 of 2008 3 Manjinder Singh resident of Cheema armed with 12 bore gun along with 2/3 other persons were abusing them. They fired 2/3 shots in the air and as such due to fear, all the family members of Raghbir Singh entered the rooms and assailants while standing in the road after naming each other and addressing each other,stated that they should fire directly at the house since all the members had hidden in the rooms. The assailants fired shots aiming at their house and abused and gave threats. They were asking them to come out. During night, whole of the family of Dilbagh Singh remained inside. On the next morning, they saw that one young she buffalo had received bullet injury and was bleeding. There was marks of fire shorts on the outer wall, rooms and in the varandaha. There was also fire shot marks on the trolly, which was standing in the house. Dilbagh Singh along with his brother Puran Singh was going to Police Station to inform the police and Balwinder Singh SI met him on the way at Bus Stop Khiala Kalan. He recorded the statement of Dilbagh Singh and sent the same to the Police Station for registration of the case and on the basis of the same, formal FIR was recorded. Then SI Balwinder Singh went to the place of occurrence and took into possession an empty cartridges of 315 bore gun Criminal Revision No.2314 of 2008 4 and 3 empty cartridges of 12 bore gun bearing no KF 12. The same were made into parcel before taking into possession. Trolly was also taken into possession. He recorded the statements of PWs, prepared the rough site plan of the place of occurrence. On return to the police station, he deposited the case property with MHC. On 2.4.2006 accused Jagir Singh alias Kala and Lakhwinder Singh alias Lakha were arrested at Bus Stop Khiala. After getting remand, they are interrogated. Jagir Singh made disclosure statement and got recovered 315 bore gun, from a trunk lying in his house, Lakhwinder Singh on the basis of disclosure statement got recovered 12 bore gun from his house. The guns were taken into possession after making them into parcels. On 26.4.2006 accused Gurbhej Singh and Manjinder Singh were arrested. Gurbhej Singh produced rifle of 315 bore and same was taken into possession. A gun was recovered from accused Manjinder Singh and same was taken into possession. The license of the gun of Gurbhej Singh was also taken into possession. The photographs of the place of occurrence were taken. Medical examination of the she buffalo was got done. After the receipt of report of Forensic Science Laboratory and completion of other investigation, accused was sent up for trial. Criminal Revision No.2314 of 2008 5 Learned counsel for the petitioner has submitted that the trial Court had erred in acquitting respondent Nos. 1 to 4 of the charge framed against them. The prosecution had been successful in proving its case. In the present case the occurrence had allegedly taken place in the evening of 31.3.2006. Jagir Singh @ Kala and Gurbhej Singh @ Bheja were armed with 315 bore guns. Lakhwinder Singh @ Lakha and Cheema were armed with 12 bore guns. They were also accompanied by 2-3 more persons. They fired 2-3 shots in the air and due to this reason the family members of Raghbir Singh went inside their rooms. Then the assailants fired shots aiming at the house of the petitioner and abused them. In the morning the petitioner saw that one young she buffalo had suffered bullet injury and was bleeding. There were marks of fire shots on the outer walls/rooms in the varandah. Learned trial Court, after considering the evidence on record observed that it was a case of no injury. As per the case of the complainant, police had come to the spot on hearing the noise of shots and then assailants ran away, hence the police had come to the spot immediately at the time of occurrence. However, the FIR was registered on the basis of the statement of the complainant at bus stop Khiala on 1.4.2006, whereas, the occurrence had taken place at about 8.30/9.30 p.m. on 31.3.2006. Had the police reached the spot as alleged by the Criminal Revision No.2314 of 2008 6 petitioner, FIR would have been registered immediately on 31.3.2006 and there was no occasion for the petitioner to report the matter to the police at bus stop Khiala. This is the major infirmity in the prosecution case and is fatal to the genesis of the occurrence. In these circumstances, the learned trial Court has rightly held that the statement of the petitioner was not a correct statement. Learned trial Court further observed that since the firing was done in the air, offence under Section 307 IPC was not made out. While dealing with charge framed against respondent Nos. 1 to 4 under Section 506 IPC, learned trial Court observed that the same had also not been established on record. As per the site plan, respondent Nos. 1 to 4 were present at point Mark 'C”, which was beyond the pucca road. The distance between the pucca road and the main gate was 55 karams. Thus, respondent Nos. 1 to 4 were present at a distance of more than 55 karams from the house of the petitioner when they had allegedly fired. As per the prosecution witnesses, the fire shot had injured a buffalo. There were also marks of fire shots on the outer wall, varandah and trolly lying in the court yard. However, the shots fired from a distance of 50-55 karams i.e. about 400 ft. could not have hit the buffalo or trolly as they were present in the lower portion of the house. The shots could have hit above height of 4-5 ft. No blood stained earth was lifted from the spot. A veterinary doctor (PW-4), who examined the buffalo, Criminal Revision No.2314 of 2008 7 deposed that he could not say as to whether buffalo had received any gun shot injury or not and the same could be confirmed only with the help of x-ray examination. No x-ray examination was conducted. Hence, offence under Section 428 IPC is not made out. As per PW-2, 70-80 shots were fired but only 12 empties in all were allegedly recovered. In the present case, in fact, the very genesis of the alleged occurrence is doubtful. Despite the alleged presence of the police immediately after the occurrence, the petitioner, however, got recorded his statement at bus stand Khiala in the morning on the next day. Had respondent Nos. 1 to 4 run away from the spot on the arrival of the police, the statement of the complainant would have been immediately recorded by the police. Keeping in view the fact that the reasons given by the trial Court, while acquitting respondent Nos. 1 to 4, are good reasons and, hence, call for no interference. It has been held by the Apex Court in Satyajit Banerjee vs. State of West Bengal (ST), 2004 (10) JT 27 that direction for de novo trial could be given in extraordinary case where Court was convinced that entire trial was farce. Revisional jurisdiction against the order of acquittal at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice. The present case does not warrant retrial. As per Section Criminal Revision No.2314 of 2008 8 401 (3) of the Code of Criminal Procedure, a finding of acquittal cannot be converted into a finding of conviction by this Court. Accordingly, this revision petition is dismissed. Hence, the application seeking condonation of delay in filing the revision petition is merely academic and is disposed of as such. (SABINA) JUDGE April 02, 2009 anita