Crl.Revision No.1041 of 2003 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl. Revision No.1041 of 2003 Date of decision:11.5.2010 Swaran Singh and others ... Petitioners versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.P.S.Dhaliwal, Advocate, for the petitioners. Mr.Rajinder Mathur, AAG, Punjab. ... JORA SINGH, J. Swaran Singh, Jagsir Singh, Jagdeep Singh and Gurcharan Singh, all residents of Barnala, filed this revision to challenge the judgment dated 3.5.2003 passed by Additional Sessions Judge, Barnala, rejecting their appeal against the judgment and order dated 22.9.2001 passed by JMIC, Barnala. Vide the judgment and order dated 22.9.2001, petitioners were convicted under Sections 326/382/506 IPC and sentenced to undergo RI for three years and to pay a fine of Rs.200/-, in default of payment of fine, to further undergo RI for two days each under Section 326 IPC, to undergo RI for three years and to pay a fine of Rs.100/-, in default of payment of fine, to further undergo RI for one day each under Section 382 IPC and to undergo RI for one year each under Section 506 IPC. All the sentences were ordered to run concurrently. Prosecution story, in brief, is that on 3.11.1994, ruqa from Medical Officer, Barnala, was received in the Police Station regarding Crl.Revision No.1041 of 2003 2 admission of Vijay Kumar in the hospital. On receipt of ruqa, ASI Sadiq Ali had gone to Civil Hospital, Barnala. Opinion was sought from the Medical Officer regarding fitness of injured, but injured was declared unfit to make statement. Vijay Kumar was referred to Rajindra Hospital, Patiala. Regarding admission of Jagdeep Singh, Jagsir Singh and Swaran Singh, ruqa was handed over to ASI Sadiq Ali. Opinion was obtained from the doctor as to whether injured were fit to make statements or not. Doctor declared the injured fit to make statements. Statements of Jagdeep Singh, Jagsir Singh and Swaran Singh were recorded and then entry was made in the DDR. On 4.11.1994, ASI Sadiq Ali had gone to Rajindra Hospital, Patiala. By moving application, opinion of the doctor was obtained regarding fitness of Vijay Kumar, but he was declared unfit to make statement. On 5.11.1994, again ASI Sadiq Ali had gone to Rajindra Hospital, Patiala. Opinion of the doctor was obtained regarding fitness of the injured. Injured was declared fit to make statement. Then statement of Vijay Kumar was recorded. He reported to the police that he was a jeweller and was carrying on business near Bhagat Singh Chowk, Barnala. 3.11.1994 was a festival of diwali and at about 7.00 PM, he was present at his shop. Then 8-10 persons forcibly started lifting crackers from the shops of Darshan Kumar and Binder Kumar. Binder Kumar requested them to make payment, then the accused had threatened to set on fire the shop of Binder Kumar. Raula was raised. Then one of the accused, namely, Pilla threatened that today they have only taken the crackers, but they would finish him. Swaran Singh, Jagsir Singh, Jagdeep Singh and Jagdev Singh Crl.Revision No.1041 of 2003 3 were known to him. Other accused were not known to him, but he could recognize them if produce before him. Complainant was caught hold by Pilla and brought him out of his shop. Acid was thrown on his face. Jagsir Singh and Jagdeep Singh had forcibly tried to put acid in his mouth. 9-10 months earlier to the occurrence, Harbax Singh, brother of Pilla, had come to their house and after calling his brother Narinder Kumar from the house, had slapped him. Later on, there was a compromise amongst the parties. On account of earlier dispute, injuries were caused by throwing acid. While throwing acid, one gold chain and wrist watch were taken away by the accused. Accused were arrested on different dates and after completion of investigation, challan was presented in the Court. Accused were charged under Sections 326/382/506 IPC, to which they pleaded not guilty and claimed trial. Defence version of Swaran Singh, Jagdeep Singh and Jagsir Singh was that on the day of diwali, they were present near Bhagat Singh Chowk. They had some altercation with Vijay Kumar. Vijay Kumar brought acid from his shop and tried to throw acid. Some acid also fell on the complainant. They were shifted to Civil Hospital, Barnala, where their statements were recorded, but no action by the police. Defence version of Gurcharan Singh was that in fact, Vijay Kumar had caused injuries to him. Acid was thrown on him and his companions. In defence two witnesses were examined. After hearing learned Public Prosecutor for the State, defence counsel for the accused and from the perusal of evidence on the file, all the accused were convicted and sentenced as aforestated. Against the judgment of sentence and order of conviction dated Crl.Revision No.1041 of 2003 4 22.9.2001, appeal was preferred but the same was dismissed vide the impugned judgment. I have heard learned counsel for the petitioners, State counsel and have gone through the evidence on the file. Learned counsel for the petitioners argued that there is a delay in lodging the FIR. Occurrence was at about 7.00 PM on 3.11.1994, whereas FIR was registered at 8.00 AM on 6.11.1994. Special report was delivered to the Ilaqa Magistrate at 5.30 PM. No explanation regarding delay. He further argued that in fact, petitioners had some altercation with the complainant. Complainant brought bottle of acid from his shop and had thrown the same upon the petitioners and in that process, Vijay Kumar, complainant, also received some injuries. Evidence on the file was not properly scrutinized. No explanation regarding injuries on the person of the petitioners. At the time of occurrence, petitioners were the first offenders. They were the sole male earning members of their families. Petitioners Swaran Singh, Jagsir Singh and Jagdeep Singh had already undergone nine months and six days each and petitioner Gurcharan Singh had already undergone nine months and twenty six days, and if the Court is of the opinion that offence was committed, then the petitioners may be directed to undergo imprisonment already undergone. Learned State counsel argued that revisional Court is not to reassess or reevaluate the evidence on the file. Court is to interfere if the impugned judgment is perverse and any law point is involved. Delay as well as injuries on the person of the petitioners were discussed by the trial Court as well as first Appellate Court. Vijay Kumar appeared in the Court and stated that on the day of Crl.Revision No.1041 of 2003 5 diwali in the evening, Swaran Singh, Jagsir Singh, Jagdeep Singh and Gurcharan Singh were noticed while lifting crackers from the shops of Darshan Kumar and Binder Kumar. When he intervened and requested the petitioners, then they had thrown acid on him. Defence version of the petitioners is that they had a dispute with certain persons, then Vijay Kumar brought a bottle of acid from his shop. Acid was thrown upon the petitioners and in that process, some acid fell on Vijay Kumar. According to prosecution story, occurrence was witnessed by Binder Kumar and Darshan Kumar because from their shops, petitioners had forcibly lifted crackers but they were not examined for the reasons best known to the prosecution. Prosecution story is based on the sole testimony of Vijay Kumar. Earlier to the occurrence, Vijay Kumar had no dispute with the petitioners. For the first time, petitioners had a dispute with Vijay Kumar regarding lifting of crackers from the shop of Binder Kumar and Darshan Kumar. On the basis of sole statement, if statement inspires confidence, then conviction can be based. Petitioners when examined under Section 313 Cr.P.C., then admitted that they had a dispute with Vijay Kumar at about 7.00 PM on 3.11.1994. The only dispute is whether the occurrence had taken place in view of the statement of Vijay Kumar or as per defence version. Earlier to the present occurrence dated 3.11.1994, Vijay Kumar had no enmity with the petitioners. For the first time, dispute arose amongst the parties on 3.11.1994 at about 7.00 PM, while present near Bhagat Singh Chowk, Barnala. When occurrence is an admitted fact and only dispute is as to who was the aggressor, then delay is not fatal. Vijay Kumar stated that while present near Bhagat Singh Chowk, Barnala, petitioners were Crl.Revision No.1041 of 2003 6 requested not to pick up crackers, then they had thrown acid upon him (Vijay Kumar). Defence of the petitioners was that they had a dispute with some persons, then Vijay Kumar brought a bottle of acid from his shop and had thrown the same upon them and in that process, some acid also fell on Vijay Kumar. Immediately after the occurrence, Vijay Kumar and petitioners were shifted to hospital. Both the parties were medico legally examined. This fact is clear from the statement of Dr.Narsi Ram (PW1). Injuries with acid were noticed on the person of Vijay Kumar and the petitioners. Question is whether petitioners had thrown the acid causing injuries on the person of Vijay Kumar or when the petitioners had some altercation with some persons, then Vijay Kumar had brought a bottle of acid and had thrown the same upon the petitioners. After the occurrence at 7.00 PM, Vijay Kumar was medico legally examined on the same day, i.e., 3.11.1994 at 7.15 PM. Chemical injury was noticed on the face, front portion of neck, left arm and both the feet. Injuries were 80%. On the same day, Jagdeep Singh, Jagsir Singh and Swaran Singh were medico legally examined and this fact is also clear from the statement of Dr. Narsi Ram (PW1). Chemical burns were noticed on the person of Jagdeep Singh, Jagsir Singh and Swaran Singh. When there is no dispute regarding the occurrence, then delay is not fatal. Next submission of learned counsel for the petitioners was that injuries on the person of the petitioners were not explained by the prosecution. Failure to explain injuries shows that prosecution story is not correct one but all these facts were taken into consideration by the trial Court as well as Appellate Court. In defence, Dr. Baldev Raj Gupta Crl.Revision No.1041 of 2003 7 appeared and stated that he had medico legally examined Gurcharan Singh and noticed the following injuries on his person:- “1. Abrasion 1 /2 cm x 1/ 4 cm present on the left upper eye lid with brown crust present over it. 2. Lacerated wound 1 /2 cm x 1/ 4 cm on the right cheek 2 cm below the lower eye lid. 3. Abrasion 1 cm x 1/ 4 cm with brown crust present over it on the left pinna of ear on its back. 4. Complains of pain in the head. No external mark of injury was present. 5. Swelling 4 cm x 2 cm on the back of right hand, 1-1/2 cm base of the right little finger. Advised X-ray. 6. Complains of pain on the right hip joint. No external mark of injury was present.” Main grievance of the petitioners is that their injuries were not explained by the prosecution, but when accused sustained injuries in the same occurrence, then prosecution is not obliged to explain the injuries. In Kashi Ram vs. State of MP, 2001(4) RCR (Crl.) 556 (SC), Hon'ble Supreme Court observed that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained injuries in the same occurrence, then the prosecution is obliged to explain the same and on its failure to do so, its case should be disbelieved. Before non-explanation of injuries on the person of the accused by the prosecution witnesses may affect the prosecution case, two conditions are to be taken into consideration that the injuries on the person of the accused were of serious nature and such injuries must have been caused at the time of occurrence. In the present Crl.Revision No.1041 of 2003 8 case, injuries on the person of the petitioners were explained by Ashok Kumar (PW5), who is one of the eye witnesses. Vijay Kumar also explained as to how and under what circumstances, opposite party sustained injuries. Allegation of the petitioners is that their statements were recorded but no action by the police and if no action by the police, then petitioners should have filed a private complaint. But no complaint was instituted. No explanation is forthcoming why the petitioners remained silent if they had received injuries at the hands of Vijay Kumar. When injuries on the person of the petitioners were explained and argument of learned defence counsel for the petitioners was taken into consideration by the first Appellate Court, then I am of the opinion that revisional Court is not to reassess or reevaluate the evidence. If there is any illegality or evidence was misread or a legal question is involved only then revisional Court is to interfere. For the reasons recorded above, I am of the opinion that evidence on the file was rightly scrutinized. No question of divergent view. Conviction of the petitioners is upheld. Admittedly, occurrence had taken place at about 7.00 PM on 3.11.1994. At that time, petitioners were the first offenders. They are the only male members to earn their livelihood. They have also received injuries in the same occurrence. Petitioners Swaran Singh, Jagsir Singh and Jagdeep Singh had already undergone nine months and six days each and petitioner Gurcharan Singh had already undergone nine months and twenty six days. They are to become hard criminal if again sent to jail to undergo remaining sentence. Before the present occurrence, there was no enmity amongst the parties. Suddenly, there was an altercation. When petitioners started picking up crackers from the shops of Darshan Kumar and Binder Crl.Revision No.1041 of 2003 9 Kumar, who were not examined. Keeping in view the nature of offence and antecedents of the petitioners, I order the petitioners to undergo imprisonment already undergone (nine months and six days each in case of petitioners Swaran Singh, Jagsir Singh and Jagdeep Singh, and nine months and twenty six days in case of petitioner Gurcharan Singh). Fine is maintained. With this modification on the point of sentence, revision without merit is dismissed. 11.5.2010 ( JORA SINGH ) pk JUDGE