1 D.B. Criminal Revision Petition No.759/2009 Mehar Chand. vs. State of Rajasthan & Ors. Date : 9.8.2010 HON'BLE JUSTICE SHRI PRAKASH TATIA HON'BLE JUSTICE SHRI KAILASH CHANDRA JOSHI Mr.DS Sodha, for the petitioner. Mr.KR Bishnoi, PP. Mr.Doonger Singh, for the accused respondents. - - - - - Heard learned counsel for the parties. On 12.6.2002, one Mehar Chand, present petitioner, lodged a FIR at P.S. Kotwali, Sri Ganganagar alleging that his daughter Shakuntala was married with one Mahendra Singh about 6 years back. There was a dispute between the husband and wife resulting into the proceedings taken into Court. On 11.6.2002, deceased Ramesh, son of Mehar Chand, went to the house of Mahendra Singh at about 4:30 AM to talk for settlement. It is alleged that at 6:15 AM, when the victim reached to the house of the accused, the accused persons Balveer Singh, Mahendra Singh, Surendra Singh and Jaswant Singh abused him and they refused to settle the dispute between the sister of deceased and Mahendra Singh and they even alleged that the sister of victim is of a bad character. While oral 2 altercations were going on, Jagdish and Krishna, who were passing from there, also heard and saw the incident and when they had hardly moved 3-4 steps, then they heard the cries of the victim uttering “burnt” “killed”. On this FIR, a case under Section 306/34 IPC was registered and after investigation, the police filed charge-sheet against the accused Mahendra Singh for offence under Section 302 IPC. The case was committed to the Court of Sessions Judge. The learned Additional Sessions Judge (FT), Sri Ganganagar framed charge against accused persons under Section 302 IPC and in alternate Section 302/34 IPC. The said order of the trial court dated 22.11.2002 framing charge was challenged by preferring criminal revision petition no.1067/2002 before this Court. The said revision was allowed by this Court vide order dated 28.5.2004 and the charge framed by the trial court was quashed and set aside. Against the order of this Court dated 28.5.2004, Criminal Appeal No.1139/2006 was preferred which was allowed by the Hon'ble Supreme Court vide order dated 12.11.2006 holding that the High Court was not justified in setting aside the order framing charge and the order passed in revision dated 28.5.2004 was set aside and, therefore, the trial proceeded. In trial, the prosecution produced as much as 16 witnesses and 47 documents. The trial court disbelieved the prosecution story in total and 3 found that even the father of the victim, who got the information of alleged burning of his son in the evening of 11.6.2002, had no reason to lodge FIR after about 20 hours and the explanation given for the said delay that the complainant was heart patient and after knowing the murder of his son took his medicine and slept for whole night, was rejected. Substantially, there was no evidence found and on the basis of circumstantial evidence and even on the basis of alleged letter by the complainant, which is alleged to be written on 10.6.2002, a day before the incident, was also not found sufficient for implicating the accused persons. Learned counsel for the petitioner vehemently submitted that the fact of dispute between the complainant's family with the accused family is admitted fact and because of that enmity, the victim was burnt by the accused persons. Learned counsel for the petitioner drew our attention to the evidence recorded before the trial court and also drew our attention to Ex.P/21 and other statements. It is also submitted that the cause for delay in lodging FIR was fully explained. Therefore, the trial court committed serious error in acquitting the accused. Learned counsel for the accused persons 4 vehemently submitted that the scope under Section 397/401 Cr.P.C. is very limited which has been well and in detail examined in the case of Akalu Ahir and others vs. Ramdev Ram reported in AIR 1973 SC 2145 wherein all aspects of consequence allowing of revision in criminal matter acquitting the accused have been well examined and considered and distinction between the appeal against the acquittal and scope of revision has been explained. It is also submitted that the petitioner has failed to establish any reason for setting aside the impugned judgment of acquittal so as to direct the trial court to hold retrial as, according to learned counsel for the respondent accused, Sub-Sec.(3) of Section 401 Cr.P.C. clearly provides that High Court in revision cannot convert acquittal into conviction. We considered the submissions of learned counsel for the parties and perused the reasons given in the impugned judgment and the record. The facts as already we have noticed that the incident occurred on 11.6.2002 at 6:00 AM. It is not in dispute that the complainant who is none else but the father of the victim got information of such heinous act of death of his son in the evening of 11.6.2002 itself. He did not lodge the FIR forthwith or within reasonable time. The 5 explanation given in the Court by the complainant for not lodging the FIR Ex.P/23 in time is only that since he had heart trouble, therefore, he took medicine and thereafter went to sleep and, therefore, he lodged the FIR on the next day. Such explanation was not in the FIR itself and otherwise also, this explanation hardly explains the delay in lodging the FIR. Two witnesses P.W.5 Kishan Lal and P.W. 9 Jagadish Verma were projected as eye-witnesses but they did not support the prosecution story and were declared hostile. P.W.1 Om Prakash, P.W.2 Shyam Lal, P.W.3 Ravindra Kumar and PW-4 Narendra Kumar are the witnesses only, who stated that after hearing the voice of a person, they came out from their house and found that one person was in flames. P.W.3 stated that subsequently he came to know that deceased was brother-in-law of accused Mahendra. P.W.4 Narendra Singh, however, stated that at relevant date, at about 5.45 p.m., while he was walking he saw one man in flames in the gallery of house of Mahendra. In Cross- examination, he stated that thereafter he called accused Mahendra and Surendra but they were not there, as they were gone for playing cricket, who were called through one Ravindra. Therefore, all above witnesses did not support the prosecution case. The trial court considered the alleged letter 6 Ex.P.21 and found that that letter is suspicious and because of that letter, it cannot be inferred that accused have committed the crime. After going through the reasons given in the impugned judgment as well as from the evidence, we do not find any reason to entertain this revision petition and, therefore, the revision petition is dismissed. [KAILASH CHANDRA JOSHI], J. [PRAKASH TATIA], J. S.Phophaliya