Criminal Revision No.978 of 1997 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Revision No.978 of 1997 Date of Decision:07.08.2009 Charanjit Kaur .....Petitioner Vs. Karnail Singh and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mrs. Baljeet Kaur Mann, Advocate for the petitioner. Mr. Narinder Singh, Advocate for the respondents. Mr. H.S. Brar, Additional Advocate General, Punjab. **** JUDGMENT HARBANS LAL, J. This revision is directed against the judgment dated 18.7.1996 passed by the Court of learned Additional Sessions Judge, Ludhiana whereby he acquitted all the accused by accepting the appeal preferred against the judgment/ order of sentence dated 11.2.1994 rendered by the Court of learned Sub Divisional, Judicial Magistrate Khanna vide which he had convicted and sentenced the accused Jang Singh to undergo rigorous imprisonment for two years and to make a payment of fine of Rs.1,000/- under Section 326 of IPC and in default of payment of fine to further undergo rigorous imprisonment for a period of six months and also sentenced him to undergo rigorous imprisonment for a period of one year under Section 324 of IPC and sentenced the accused Karnail Singh to Criminal Revision No.978 of 1997 -2- undergo rigorous imprisonment for a period of two years and to make a payment of fine of Rs.1,000/- under Section 326 read with Section 34 of IPC and in default of payment of fine to further undergo rigorous imprisonment for six months and also sentenced him to undergo rigorous imprisonment for one year under Section 324 of IPC and sentenced Surjan Singh accused to undergo rigorous imprisonment for a period of two years and to make a payment of fine of Rs.1,000/- under Section 326 read with Section 34 of IPC or in default of payment of fine to further undergo rigorous imprisonment for six months and also sentenced him to undergo rigorous imprisonment for one year under Section 324 of IPC and sentenced Amar Singh accused to undergo rigorous imprisonment for two years and to make a payment of fine of Rs.1,000/- under Section 326 read with Section 34 of IPC or in default of payment of fine to further undergo rigorous imprisonment for six months and also sentenced him to undergo rigorous imprisonment for one year under Section 324 read with Section 34 of IPC with a further direction that all the substantive sentences shall run concurrently. The facts in brief are that on 24.2.1989 at about 6:15 P.M., Nirbhai Singh was returning home from Village Issru after having purchased the medicines. When he was passing in front of the house of accused Jang Singh, then Amar Singh son of Inder Singh raised lalkara that he be caught hold of and be not allowed to escape alive. On this, accused Jang Singh armed with Kirpan, Karnail Singh holding Dah, Surjan Singh carrying gandasa and Amar Singh encircled him. Nahar Singh PW and Nasib Kaur sister of the injured came from the front side. The accused Jang Criminal Revision No.978 of 1997 -3- Singh wielded his kirpan and in order to ward off the blow, Nirbhai Singh raised his arms and the blows hit on his right and left hands from sharp edged side. The accused Karnail Singh dealt two dah blows, which landed on his left arm. On receipt of these injuries, he fell down on the ground. When he lay fallen on the ground, Amar Singh held him from his long hair and said that the blows be given on his neck. Surjan Singh gave three gandasa blows from its sharp edged side on his back and arm. The accused Jang Singh delivered another kirpan blow, which hit on his left hand. When some other persons of the village arrived at the scene of occurrence, the accused decamped from the spot with their respective weapons. Nirbhai Singh was got medico legally examined. The accused were arrested. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused. The accused were charged under Sections 326/324 read with Section 34 of IPC to which they did not plead guilty and claimed trial. On close of the prosecution evidence, when examined under Section 313 of Cr.P.C, all the accused denied the incriminating circumstances appearing in the prosecution evidence against them. They alleged that the police conducted the investigation partially and nothing has been recovered from their possession. In their defence, they did not adduce any evidence. After hearing the learned Assistant Public Prosecutor for the State, the learned defence counsel and examining the evidence on record., the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with their conviction/ sentence, they went up in appeal which was accepted by the learned Additional Sessions Judge, Criminal Revision No.978 of 1997 -4- Ludhaina and the accused- appellants were acquitted. In consequence of murder of Nirbhai Singh injured/ complainant, his widow Charanjti Kaur feeling aggrieved by the judgment delivered by the Court of learned Additional Sessions Judge, Ludhiana has preferred this revision. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the petitioner strenuously urged that the Court of Sessions has observed that the prosecution has failed to explain the delay in lodging the F.I.R as well as injuries on the person of accused Amar Singh. It implies that Amar Singh accused as alleged had also suffered injuries. If it be so, the occurrence stands admitted and that being so, the prosecution was not obligated to explain the delay. To add further to it, the accused Amar Singh did not adduce any evidence to the effect that he had sustained injuries in this occurrence. As such, his version stands belied. Furthermore, a careful delving into the medical evidence on the record would reveal that the alleged delay has been fully explained. It deserves to be pointed out here that in the absence of any evidence on the record, it is very difficult to assume that Amar Singh did receive injuries at the hands of the complainant party during this occurrence. So, there was no occasion for the prosecution to explain the same. She further pressed into service that another circumstance which weighed with the mind of the Court of Sessions is that the names of Ujjagar Singh and Bana Singh witnesses did not find mention in the statement of the injured Nirbhai Singh and thus held that their presence at the spot is rendered doubtful. This finding is also unsustainable for the reason that it is well settled that if the names of the Criminal Revision No.978 of 1997 -5- witnesses are not mentioned in the FIR, the case of the prosecution cannot be thrown out of hand merely on this ground. She further canvassed at the bar that the learned Court of Sessions has also observed that the possibility could not be ruled out that there may have been a direct free fight between Amar Singh and Nirbhai Singh injured and in the next breath, it has been said that this is not the case of the prosecution. She also contended that a glance through Annexure A.1, the copy of the judgment dated 27.11.1997 would reveal that Nirbhai Singh the complainant in this case has been murdered by the accused- respondents Jang Singh, Karnail Singh and Amar Singh and for that, they have been convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- each under Section 302 read with Section 34 of IPC. The present occurrence took place on 25.2.1989 whereas he was murdered on 15.6.1993. Last of all, she urged with great eloquence that the Court of Sessions have overlooked the material evidence which has resulted in manifest illegality and gross miscarriage of justice and that being so, in view of the rule laid down by the Apex Court in re: Ram Briksh Singh and others v. Ambika Yadav and another, 2004(2) Recent Criminal Reports (Criminal) 182, this case should be remitted to the Court of Sessions for retrial. To controvert these submissions, the learned counsel for the respondents stressing his every nerve maintained that the Court of Sessions has given cogent reasons and on due appreciation of evidence, directed the acquittal of the accused- respondents. He further submitted that the evidence and material on record was duly considered by the Court of Sessions. As a result thereof, the conclusion was reached that the Criminal Revision No.978 of 1997 -6- prosecution has failed to establish its case beyond reasonable doubt. I have given a deep and thoughtful consideration to the rival contentions. The ratio decidendi laid down in re: Ram Briksh Singh and others (supra), contemplates that the Revisional Court cannot set aside the order of acquittal on appreciation of evidence, but it can set aside the order on basis of material evidence, which was available on record, but overlooked by the trial Court. Their Lordships have also observed that the principles on which Revisional Court can set aside a judgment and order of acquittal passed in favour of the accused are well settled by catena of judgments. The difficulty, however, arises at times about the application of the said principles. It is true that there is a statutory prohibition contained in sub-section(3) of Section 401 of Criminal Procedure Code from converting a finding of acquittal into one of conviction and what is prohibited cannot be done indirectly as well. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice. Adverting to the facts of the instant case, the statement of Ujagar Singh PW1 reads in the following terms:- “That on 24.2.1989, at about 6:00 P.M., I heard a noise of `Maar Ditta Maar Ditta' of Nirbhai Singh out of our house gate. I got out of our house and saw the accused present in Court Criminal Revision No.978 of 1997 -7- were causing injuries to Nirbhai Singh. Accused Jang Singh was armed with sword, Karnail Singh was armed with Dah, Sajjan Singh was armed with Gandasa. I also raised alarm `Na Maaro Na Maaro' and accused ran away along with their respective weapons. At that time, when I saw accused Amar Singh, Surjan Singh, Karnail Singh and Jang Singh, they were not having injury on their bodies.” Further the statement of Nahar Singh PW4 reads as under:- “On 24.2.89 at about 6:15 P.M I was going to purchase some household articles. When I reached near the house of Bant Singh, I saw Nirbhai Singh complainant coming from front side. When he reached near the house of Jang Singh accused, Amar Singh who was standing there raised a lalkara that Nirbhai Singh has come let he not go spare. On the lalkara Jang Singh, Karnail Singh, Surjan Singh came there with their respective arms. Jang Singh was armed with kirpan, Karnail Singh was armed with Dah, Surjan Singh was armed with Gandasa. Then they caused injuries to Nirbhai Singh collectively and with common intention. Jang Singh present in Court gave two blows with his kirpan on Nirbhai Singh, which fell on his left and right hand. Karnail Singh gave two blows on Nirbhai Singh with his Dah, which fell on the left arm of Nirbhai Singh. On this, Nirbhai Singh fell down on the ground. The above said blows given by Jang Singh and Karnail Singh caused injuries to Nirbhai Singh from the sharp sides. When Criminal Revision No.978 of 1997 -8- Nirbhai Singh fell down, Amar Singh caught hold of hairs of Nirbhai Singh (headhairs) and declared that a blow be given on the neck of Nirbhai Singh. Then Surjan Singh gave three blows with his gandasa to Nirbhai Singh, which fell on the back and arm of Nirbhai Singh. Then again Jang Singh gave a kirpan blow to Nirbhai Singh, which caused injury on the left hand of Nirbhai Singh. All the above said accused, who caused injuries to Nirbhai Singh are present in Court today. Nasib Kaur was also present when the accused caused injuries to Nirbhai Singh. I and Nasib Kaur raised alarm then accused ran away along with their respective weapons towards the fields.” Further the statement of Nirbhai Singh PW4 injured runs as under:- “On 24.2.89 at about 6.15 P.M., I was returning from Isru after taking medicine to my house. When I reached in front of house of Karnail Singh and Jang Singh, Amar Singh accused present in the court was there and he raised lalkara that Nirbhai Singh had come Ist, he not escape alive. Accused Jang Singh armed with Kirpan, Karnail Singh armed with Dah and Surjan Singh armed with gandasi who were present there on hearing the lalkara came out. In the meantime my sister Nasib Kaur and Nahar Singh who were coming from the opposite side came there. Accused Jang Singh gave me two kirpan blows from the sharp side and in order to avoid the blows, I raised my both hands and received injuries on both hands. Then Karnail Singh Criminal Revision No.978 of 1997 -9- accused gave two blows of Dah, which hit me on my left arm when I raised the same to ward off the blows. Then I hold by the hair and exhorted the accused to give blows on my neck. Then accused Surjan Singh gave three gandasa blows from the sharp side to me out of which two hit me on the back and one hit me on the left arm. Then accused Jang Singh gave me a kirpan blow, which hit me on the left hand. They my sister Nasib Kaur, Nahar Singh and I raised raula and the accused escaped with their respective weapons towards the fields.” Dr. Lalit Kaushal PW8 has stated as under:- On 24.2.89 I was posted as Registrar, DMC Ludhiana on that day, I admitted Nirbhai Singh s/o Ajmer Singh, aged 45 years, male, r/o VPO Narsali, Tehsil Khanna, District Ludhiana vide C.R. No.1708. I found the following injuries on his person:- 1. A cut wound about 8 cm long at the distal and 4th and 5th metacarpal extending over volar and dorsal aspect of left hand. Fracture 5th metacarpal visible in the wound. 2. A cut wound 1½ inch present over the carpal bones on the dorsal aspect of left hand. Bleeding was present. 3. A cut wound 2 inches over the distal 3rd of left forearm over its dorsal aspect muscle bellies protruding out. Tenderness abnormal mobility and bony crept is palpable over left ulna. 4. A cut wound 1” over olecranon process of left ulna bone Criminal Revision No.978 of 1997 -10- visible in the wound. 5. A cut wound 1” over the right scapular margin, muscle deep. Active bleeding was present. 6. A 2½ inch cut wound, bone deep present over right hypothenar eminence. 7. A ½ inch sized cut wound over posterior aspect of right forearm in its middle third. 8. A 2½ inch sized cut wound present over proximal phalanx of left hand middle finger. He was operated upon 25.2.89 for debridement of wounds extensor tendor repair and fixation of the left hand 4th and 5th metacarpal fractures. During operation, it was found that all flexor tendens of left hand were cut, deep branch of the ulnar nerve was cut. And extensor tendons of the left hand were cut at the wrist. Injuries no.1 was grievous. I examined Nirbhai Singh at about 10 P.M.” This being the Revisional Court cannot re-appreciate the evidence. The Revisional Court can set aside an order of acquittal and remit the case for retrial, where the trial Court by overlooking the material evidence has passed the order. In the present case, the material evidence referred to hereinbefore has axiomatically been overlooked by the learned Court of Sessions in relation to the circumstances, namely, Amar Singh accused- respondent has not adduced any medical evidence showing the number and nature of his alleged injuries. His medico legal examination report would have revealed the duration of injuries and other aspects. Criminal Revision No.978 of 1997 -11- Material evidence tendered by the above-mentioned witnesses has been overlooked, which in fact has resulted in manifest illegality and gross miscarriage of justice. The overlooking of this evidence warrants the remand of the case to the Court of Sessions for retrial. In view of the preceding discussion, this case is remitted to the successor Court of Shri J.S. Korey, the then learned Additional Sessions Judge, Ludhiana for deciding the same afresh by taking into consideration the entire material ocular as well as medical evidence referred to hereinbefore. The parties through their respective counsels are directed to appear before the said Court on 10.9.2009 at 10:00 A.M. The Registry is directed to send a copy of this judgment to the aforesaid Court well before the said date. August 07, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No