In the High Court of Punjab and Haryana At Chandigarh Criminal Misc. No.49476 of 2008 and Criminal Revision No.2267 of 2008 Date of Decision: 16.3.2009 Ajay Kumar .....Petitioner Versus Mukhtiar Singh and others .....Respondents .... Present: Mr. Aditya Kumar Sharma, Advocate for the petitioner. ..... S.S. Saron, J. This criminal revision petition has been filed by Ajay Kumar -complainant against the judgment and order dated 14.10.2006 passed by the learned Additional Sessions Judge, Panchkula whereby the appeal of respondents No.1 to 4 against their conviction and sentence passed by the learned Judicial Magistrate Ist Class, Panchkula vide judgment dated 29.7.2004 and order dated 30.7.2004 for the offences under Sections 326 read with Section 34 Indian Penal Code (IPC – for short), Section 323 read with Section 34 IPC and Section 506 read with Section 34 IPC has been accepted and respondents No.1 to 4 have been acquitted. Along with the criminal revision petition, a criminal miscellaneous application has been filed seeking condonation of 621 days delay in filing the revision petition. Case FIR No.27, dated 21.4.2000 was registered at Police Station Sector 19, Panchkula for the offences under Sections 323, 326 and 506 IPC on an application submitted by Ajay Kumar (petitioner) (PW-2) to ASI Barjinder Singh. It was alleged by the petitioner that on 2.4.2000 at about 7.00 a.m. his father called the President of Sector 19, Panchkula (i.e. Raj Kumar PW-1) to show him the sand lying near -2- Criminal Misc. No.49476 of 2008 and Criminal Revision No.2267 of 2008 the gate of his house. In the meantime, Mukhtiar Singh (respondent No.1), Sonu (Sukhwant Singh-respondent No.2) son of Mukhtiar Singh, Ram Sarup (respondent No.4) (tenant) and brother-in-law of Mukhtiar Singh namely Prem Singh (respondent No.3) came there and attacked him (complainant) and his father. Mukhtiar Singh (respondent No.1) inflicted a knife blow on the ear of the petitioner. The other respondents No.2 to 4 inflicted fist blows and kicked the petitioner. All the accused (respondents No.1 to 4) inflicted lathi blows to his father. The President of the Sector (i.e. Raj Kumar PW-1) and other persons of the area present there and rescued them from the assailants. Mukhtiar Singh (respondent No.1) and his brother-in-law (Prem Singh- respondent No.3) threatened to kill the petitioner as and when they would find an opportunity. They asked the petitioner and his father to leave the house. On the basis of the application, the petitioner and his father were medically examined at the General Hospital, Sector 6, Panchkula. After obtaining medical opinion, a case was registered for the offences under Sections 323, 326 and 506 IPC. After completion of investigations, police report (challan) was filed. The learned Judicial Magistrate charged the respondents No.1 to 4 for the offences punishable under Sections 323, 326 and 506 read with Section 34 IPC. The prosecution in order to prove its case examined Raj Kumar (PW-1), Lal Jha (PW-2), Ajay Kumar (petitioner) (PW-3), Meena (PW-4), Dr. Suvir Saxena (PW-5), SI Satish Mohan (PW- 6), SI Barjinder Singh (PW-7). The evidence of the prosecution was closed. In the statements of the respondents No.1 to 4 under Section 313 of the Code of Criminal Procedure (Cr.P.C.- for short) they pleaded their false implication and innocence. They did not lead any evidence in defence. -3- Criminal Misc. No.49476 of 2008 and Criminal Revision No.2267 of 2008 The learned trial Magistrate vide her order dated 29.7.2004 convicted the respondents No.1 to 4 for the commission of offences punishable under Sections 323, 326 and 506 read with Section 34 IPC. By a subsequent order dated 30.7.2004, the respondents No.1 to 4 were sentenced to undergo rigorous imprisonment for a period of three years along with a fine of Rs.1500/- each and in default of payment of fine to undergo simple imprisonment for two months each for the offence under Section 326 read with Section 34 IPC. Respondents No.1 to 4 were further sentenced to undergo imprisonment for a period of six months along with a fine of Rs.500/- each and in default of payment of fine to undergo simple imprisonment for fifteen days each for the commission of offence under Section 323 read with Section 34 IPC. The respondents No.1 to 4 were also sentenced to undergo rigorous imprisonment for one year each besides pay a fine of Rs.700/- each and in default of payment of fine to undergo simple imprisonment for one month each for the offence under Section 506 read with Section 34 IPC. All the sentences were ordered to run concurrently. Respondents No.1 to 4 aggrieved against the orders dated 29.7.2004 and 30.7.2004 passed by the learned Judicial Magistrate Ist Class, Panchkula filed an appeal and the learned Additional Sessions Judge vide her impugned order dated 14.10.2006 has acquitted them for the offences for which they were convicted and sentenced by the learned trial Magistrate. The said order is impugned in the present petition. Learned counsel for the petitioner has contended that respondents No.1 to 4 have been acquitted by the learned Additional Sessions Judge primarily on the ground that the prosecution has not been able to explain the injuries suffered by the accused (respondents No.1 to 4) which was held to cast a serious doubt regarding the origin -4- Criminal Misc. No.49476 of 2008 and Criminal Revision No.2267 of 2008 and the manner in which the occurrence took place and the injuries were caused to the respondents No.1 to 4. It is submitted that the case law relied upon by the learned Additional Sessions Judge is inapplicable to the facts of the present case in view of the judgment of the Supreme Court in Mohinder Singh and others v. State of Punjab, (2006) 10 SCC 418 wherein it has been held that non- explanation of the injuries on the accused by the prosecution would not dislodge the case which was fully established by evidence of creditworthy witnesses and supported by medical evidence. Therefore, it is submitted that the learned Additional Sessions Judge erred in acquitting respondents No.1 to 4 and the matter is liable to be remitted back for reconsideration in the light of the judgment in Mohinder Singh's case (supra). As regards the delay in filing the revision petition it is contended that the revision petition was initially filed on 12.1.2007 and it was returned with certain objections on 27.1.2007. Thereafter, the brief of the case got misplaced in the office of the counsel and the revision petition was then re-filed on 7.1.2008 which was again returned on the same date with the objection that one of the objections had not been complied with and upto date application for condonation of delay be filed. The revision petition was then filed and thereafter re-filed and returned on other dates. It is submitted that last time the revision petition was filed on 30.9.2008. The primary cause for the delay it is submitted is that the brief of the case got misplaced in the office of the counsel which has now been located, so delay has occurred which is not intentional and is bona fide. I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner and with his assistance perused the records of the case. The prosecution witnesses, namely, Lal Jha (PW-2), Ajay Kumar (PW-3) and Meena (PW-4) have -5- Criminal Misc. No.49476 of 2008 and Criminal Revision No.2267 of 2008 deposed that the four accused (respondents No.1 to 4) attacked them and inflicted a cut with a knife on the ear of Ajay Kumar (petitioner). From the said statement, it is evident that an incident had occurred between the respondents No.1 to 4 and the petitioner. The learned Additional Sessions Judge in her impugned judgment and order inter alia observed that the prosecution evidence was not at all consistent, cogent and worth reliance and it had utterly failed to prove its charge against the accused beyond shadow of reasonable doubt. It was noticed that to prove the occurrence Raj Kumar (PW-1), Lal Jha (father of the petitioner, PW-2), Ajay Kumar (petitioner, PW-3) and his mother-Meena (PW-4) were examined. Raj Kumar (PW-1) was the only independent witness. He inter alia deposed that when he reached the spot Mukhtiar Singh (respondent No.1), his son (respondent No.2) and some guests etc. were fighting with the family members of Lal Jha and Ajay Kumar-complainant (petitioner). The complainant-Ajay Kumar suffered an injury and his ear was bleeding but he did not remember who inflicted the injury on him. He categorically reiterated that he did not know as to who had inflicted the injury on Ajay Kumar (petitioner) and in his presence none of them held out any threats. Raj Kumar (PW-1) was got declared hostile by the Public Prosecutor and his cross-examination was allowed. In cross- examination, Raj Kumar (PW-1) disowned the statement Mark-A recorded by the Police under Section 161 Cr.P.C. He stated that the fight had not taken place in his presence. He also specifically denied that in his presence any of the accused (respondents No.1 to 4) had hit the complainant and his father with a knife. He remained firm that he did not know as to which of the accused had inflicted injuries on the person of Ajay Kumar and that no one held out any threats in his presence. -6- Criminal Misc. No.49476 of 2008 and Criminal Revision No.2267 of 2008 The other three prosecution witnesses, namely, Lal Jha (PW-2), Ajay Kumar (PW-3) and Meena (PW-4) deposed that all the four accused (respondents No.1 to 4) had attacked them and inflicted a cut with a knife on the ear of Ajay Kumar. It was, however, noticed by the learned Additional Sessions Judge that according to Lal Jha (PW-2), he on 2.4.2000 at about 7.00 a.m. in the morning went and called the President of the Sector because Mukhtiar Singh (respondent No.1) had unloaded sand in a manner which had blocked the front passage to his house. He, however, further stated that Raj Kumar (PW-1) came and called out to Mukhtiar Singh (respondent No.1) on which he and his son (respondent No.2), tenant-Ram Sarup (respondent No.4) and his brother-in-law Prem Singh (respondent No.3) came and immediately attacked them. Prem Singh (respondent No.3), it is stated, gave a knife blow on the ear of Ajay Kumar (petitioner) which resulted in a cut. The other accused (respondents No.1, 2 and 4) inflicted ‘Lathi' blows on them. Lal Jha (PW-2) further stated that he was kicked and beaten. He was also slapped and ‘Lathi' blows were hurled. The statement of Lal Jha (PW-2) was observed to be improbable and unbelievable. It was in evidence from his version that when Raj Kumar came and had called Mukhtiar Singh (respondent No.1), he (Lal Jha), his son Ajay Kumar (petitioner) and his wife Meena (PW-4) were also with him and were standing at the spot. So if Mukhtiar Singh came on the call of the President Raj Kumar (PW-1), there was no occasion or reason for him and the other accused to attack Lal Jha (PW-2) and his family members without responding and talking to Raj Kumar. Had the occurrence taken place in the manner as stated by the prosecution witnesses, it was certain that Raj Kumar, who was standing with Lal Jha (PW-2) and his family members would also have suffered some injuries from the accused (respondents No.1 to 4). In fact, Raj Kumar had stated that -7- Criminal Misc. No.49476 of 2008 and Criminal Revision No.2267 of 2008 when he came, a fight was already going on between the family members of Lal Jha and the accused (respondents No.1 to 4). Raj Kumar (PW-1) also did not mention the presence of Ram Sarup (respondent No.4), tenant of Mukhtiar Singh (respondent No.1) during the occurrence. He did not name Prem Singh (respondent No.3) though he stated that there was a guest of Mukhtiar Singh with him. It was also noticed that the statement of Lal Jha (PW-2), Ajay Kumar (PW-3) and Meena (PW-4) were not consistent on the point of identity of the person who inflicted the knife blow on the ear of Ajay Kumar. Lal Jha (PW-2) stated that Prem Singh (respondent No.3), brother-in-law of Mukhtiar Singh had given a knife blow to his son Ajay Kumar (petitioner) and that the other accused (respondents No.1, 2 and 4) had given ‘Lathi' blows, kicked him and inflicted fist blows to him. As per the version of Lal Jha (PW-2), Prem Singh (respondent No.3) was armed with a knife. Ajay Kumar (PW-3), however, stated that Mukhtiar Singh (respondent No.1) had a knife in his hand when he along with his son Sonu (respondent No.2), brother-in-law Prem Singh (respondent No.3) and his tenant Ram Sarup (respondent No.4) attacked them and that Mukhtiar Singh gave a knife blow to him (Ajay Kumar) on his ear. He also stated that his father (Lal Jha) was beaten with ‘Lathis’. He was slapped, kicked and inflicted fist blows. There are inconsistencies in the statements of Lal Jha (PW-2) and Ajay Kumar (PW-3) (petitioner) as to who inflicted the knife blow. According to Lal Jha (PW-2), Prem Singh (respondent No.3) inflicted the knife blow on the ear of Ajay Kumar (PW-3), whereas according to Ajay Kumar, Mukhtiar Singh (respondent No.1) inflicted the knife blow. Ajay Kumar (PW-3) during cross- examination stated that Mukhtiar Singh (respondent No.1) had a knife in his hand and he (Ajay Kumar) suffered injuries with the knife, however, he also stated that Sonu (respondent No.2) may be known as -8- Criminal Misc. No.49476 of 2008 and Criminal Revision No.2267 of 2008 Sukhwant Singh also and it was he who had inflicted the cut on his ear. Thereby Ajay Kumar (PW-3) changed his version regarding the knife blow being caused by Sukhwant Singh (respondent No.2). Ajay Kumar (PW-3) on being confronted with his statement Mark DW.3/A admitted that in portion ‘A to A1’ he had stated that Sukhwant Singh had cut his ear. In the next sentence, he admitted that he had made a statement to the effect that Mukhtiar Singh (respondent No.1) was armed with a knife and he had inflicted a knife blow on his ear. Smt. Meena (PW-4), mother of the complainant-Ajay Kumar (PW-3) stated that Mukhtiar Singh (respondent No.1) had a knife in his hand and he inflicted a cut on the ear of her son. She did not state that the other accused were armed with ‘Lathis' or that her son and husband were given ‘Lathi' blows by the accused. Her presence at the place of occurrence was held to be doubtful in view of her discrepant statement. The respondents No.1 to 4 proved through Dr. Suvir Saxena Medical Officer (PW-5) and Sub Inspector Barjinder Singh (PW-7), the Investigating Officer that all four of them had also suffered injuries during the occurrence. Barjinder Singh, Sub Inspector admitted that on 2.4.2000, HC Jaspal Singh had recorded DDR No.30 (Ex.DA) at Police Station, Sector 19, Panchkula at the instance of Mukhtiar Singh (respondent No.1). Barjinder Singh, Sub Inspector (PW-7) also admitted that he arrested the accused on 2.4.2000 but before their arrest he got them medically examined as they too had suffered injuries. He first prepared an injury statement of the four accused (respondents No.1 to 4) and then sent them to the doctor for their medical examination. It is stated that since the injuries suffered by the accused (respondents No.1 to 4) were simple and had been caused by a blunt weapon, commission of a cognizable offence was not made out. The injuries suffered by the accused were proved on record by medico-legal -9- Criminal Misc. No.49476 of 2008 and Criminal Revision No.2267 of 2008 reports (Ex.DC, Ex.DD, Ex.DE and Ex.DF) by Dr. Suvir Saxena, Medical Officer (PW-5) who had examined them on 2.4.2000. One injury each was found on the person of Mukhtiar Singh (respondent No.1) and Prem Singh (respondent No.3). Three injuries were found to have been suffered by Ram Sarup (respondent No.4) and five injuries had been suffered by Sukhwant Singh (respondent No.2) out of which four were abrasions. Therefore, it stood established beyond doubt that respondents No.1 to 4 had also suffered injuries during the occurrence. The said injuries suffered on the person of the respondents No.1 to 4 have not been explained. Therefore, evidently the origin and genesis of the occurrence had not been established. The case of Mohinder Singh (supra) relied upon by the learned counsel for the petitioner is with regard to effect of non- explanation of injuries on the persons of accused by the prosecution and the evidence produced by the defence only showed the minor injuries suffered by the accused. In the said context, it was held that it was not to dislodge the prosecution case which was fully established by evidence of creditworthy witnesses, supported by medical evidence. There is no dispute with the said proposition. However, in the present case, as has already been noticed, the independent witnesses Raj Kumar (PW-1) has not supported the prosecution case. The statements of the other witnesses, namely, Lal Jha (PW-2), his son Ajay Kumar (PW-3) and Meena (PW-4), mother of Ajay Kumar are highly discrepant and unreliable. It is not clear as to which of the respondents No.1 to 4 had inflicted the knife blow on the ear of Ajay Kumar. In fact, it is not even clear that who was carrying the knife and which of the accused were carrying ‘Lathis'. In view of the several discrepancies noticed by the learned Additional Sessions Judge and the fact that the genesis of the occurrence could not be established, the learned Additional -10- Criminal Misc. No.49476 of 2008 and Criminal Revision No.2267 of 2008 Sessions Judge rightly held that the prosecution had utterly failed to prove its charge against the accused (respondents No.1 to 4) beyond all shadow of reasonable doubt. In the circumstances, no interference in exercise of the revisional jurisdiction of this Court is warranted against the order of the acquittal recorded by the learned Additional Sessions Judge. Consequently, there is no merit in the criminal revision petition and the same is dismissed. In view of the fact that criminal revision petition has been dismissed on merits, the question of delay of 621 days in filing the revision petition is only academic. In any case, there being no satisfactory explanation as to the delay of almost one year and nine months, the application seeking condonation of delay is also dismissed. (S.S. Saron) Judge March 16, 2009 *hsp*