In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 635 of 2003 Date of decision: May 27, 2009 Krishan .. Petitioner Vs. State of Haryana .. Respondent Crl. Revision No. 1732 of 2003 Sunder Lal .. Petitioner Vs. State of Haryana and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Akshay Partap Singh, Advocate for Mr. Jagat Singh, Advocate for the petitioner. Mr. Jasbeer Singh, Advocate for Mr. Sanjay Mittal, Advocate for the respondents. A.N. Jindal, J This judgment shall dispose of two revision petitions bearing Nos.635 and 1732 of 2003. These having been arisen out of the same judgment are decided together. The petitioners Krishan Kumar along with Mehar Chand, Tota Ram and Kumar (non petitioners) were tried by the Chief Judicial Magistrate, Rewari for the offences punishable under Sections 323/325/34 IPC, and were convicted, vide judgment dated 22/26.4.2002, and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- each under Section 325 IPC; to undergo rigorous imprisonment for one year each under Section 323 IPC. On appeal, the learned Additional Sessions Judge, Rewari, vide its judgment dated 14.3.2003, dismissed the appeal qua Krishan Kumar accused-petitioner (herein referred as the petitioner) and upheld the Crl. Revision No. 635 of 2003 & Crl. Revision No. 1732 of 2003 -2- sentence awarded against him. However, the appeal qua the other accused was accepted and they were acquitted of the charges framed against them. The brief resume of facts is that on 19.10.1999, Sunder Lal complainant (herein referred as 'the complainant') was celebrating some religious function in connection with the birth of his son and had invited some relatives who had gone to the house of his paternal uncle. Rakesh, his younger brother, when had gone to call them for celebrating the function, they misbehaved with him and was forced to come back. The accused were nursing a grudge against him. On that very day, i.e. 19.10.1999, at about 9.30 p.m. when the complainant along with aforesaid Rakesh were going from Rewari to village Takri, they came across Krishan, Bijender and Mehar Chand, who were armed with axe and lathies. When the complainant tried to pass through, they waylaid them. Krishan inflicted axe blow on right leg of Rakesh from its reverse side. Bijender inflicted lathi blow to the complainant hitting on his back. In the meanwhile, Tota and Kuber also reached there so as Raghbir Singh. They also abused him. The complainant escaped himself while hiding in his house. Hawa Singh and Hira Lal also reached the spot and witnessed the occurrence. On the statement of the complainant, DDR No.36 dated 19.10.1999 (Ex.PA) was recorded which later became the basis of first information report. The case was investigated and all the accused were challaned. All the accused were charged under Sections 323/325/34 IPC to which they pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined as many as nine witnesses. The material witnesses amongst others are complainant Sunder Lal (PW3), Hawa Singh (PW6), Hira Lal (PW7), ASI Jagat Raj (PW1), Dr. Ashok Kumar (PW2) and Constable Niranjan Lal (PW5). In their statements under Section 313 Cr.P.C. the petitioner Krishan as well as the other accused denied all the allegations and pleaded their false implication in the case. While scrutinizing the impugned judgment, it may be observed that presence of Mehar Chand has not been admitted by the complainant in Crl. Revision No. 635 of 2003 & Crl. Revision No. 1732 of 2003 -3- the DDR so as allegations against Tota Ram and Kumar are that they came later and only abused them. No injuries are attributed to these three accused; the FIR is contradictory to the initial version given by the complainant in the DDR Ex.PA, wherein it was stated that Raghbir Singh also reached there but in the final report under Section 173 Cr.P.C. name of Bijender and Ragahbir did not find mention and none of the prosecution witnesses stated anything against Bijender and Raghbir. Name of Mehar Chand appears to have been introduced later on, therefore, the testimonies of PW-3, PW-4, PW-6 and PW-7 cannot be believed qua the presence of Bijender or Ragbir also. As regards the allegations qua Tota Ram and Kuber, it is not alleged at all in the DDR that Tota Ram caused any injuries to the complainant. Sunder (PW3) thus appears to have made exaggerations with an anxiety to implicate these persons. Even during his statement in the court, he deposed that Tota and Kuber gave lathi blows on his back, which is again contrary to the DDR Ex.PA. As regards the presence of Hawa Singh (PW6) and Hira Lal (PW7), their presence at the spot is quite doubtful. Hawa Singh (PW6) states that when he was going towards the house of Raghbir Singh he heard commotion and according to him, the occurrence had already taken place before he reached the place of occurrence. Similarly, no categoric statement has been made by Hira Lal (PW7), who disclosed that at about 9.30 p.m. he had heard about some dispute. He saw Mehar Chand, Kuber and Tota beating Sunder and Rakesh. Even the medical evidence is quite contrary to the ocular version. Dr. Ashok Kumar, who medico-legally examined Rakesh (PW4) on 19.10.1999 and found the following injuries on his person :- 1. Marked swelling present over middle of right leg irregular shaped and size, area was marked tender. Injury was advised x-ray. 2. Complain of pain over both side of chest. No external injury was seen. Slight tenderness was present. Crl. Revision No. 635 of 2003 & Crl. Revision No. 1732 of 2003 -4- The injury No.1 is stated to be grievous as per report Ex.PW2/B which is attributed to the petitioner. As per allegations, the petitioner had given injury with axe on the right leg of Rakesh. On minute examination of the injuries, it appears that both the injuries are in the shape of swelling and there are no marks of violence over both the injuries. One injury is on the right leg and the other is complain of pain on chest. The complain of pain could not be result of the blows allegedly given by the accused. The blows given by the sticks or the axe must have left some impressions behind, therefore, had these injuries been the result of sticks or axe as the case may be then there must have been some marks of violence. As such, complain of pain on both sides of the chest could not be said to be the result of axe and sticks blows. While examining the case from another angle, the injury No.1 on the person of Rakesh is stated to have been caused with axe and as per the medical report, the fracture of both bones could be caused if the blow is given with a heavy force. Had the axe blow been given with heavy force, then it would have left some bruise, abrasion or peeling of skin at the place. But, no such mark of violence has been recorded by the doctor. It has also been accepted by Dr. Ashok Kumar (PW2) that the injuries could be the result of a fall from the motor cycle or could be possible by fall on the hard surface. The testimony of Hira Lal (PW7) is also not reliable. He had not seen any accused at the spot, but he states that when he reached the spot, then the complainant was present there and he was given one injury and after that he had left for his house. Even it is not known as to how the other two injuries were received by the complainant. The injury on the person of Rakesh attributable to the petitioner was not visible with naked eye, therefore, the same could be known after x-ray examination. No doubt, the prosecution has brought on record the x-ray report but the doctor who x-rayed the injuries has not been examined, therefore, in the absence of examination of the doctor, who x- rayed the injuries, his report is insignificant. The aforesaid facts and circumstances lead me to infer that the prosecution has failed to prove its case beyond reasonable doubt. Many improbabilities remained unexplained. The presence of the witnesses at the spot is doubtful. The medical evidence is also quite inconsistent with the Crl. Revision No. 635 of 2003 & Crl. Revision No. 1732 of 2003 -5- ocular version. As such, the petitioner also deserves parity with the non petitioners. The evidence has not been properly appreciated. Resultantly, while accepting the revision petition No.635 of 2003, I, set aside the impugned judgment and acquit the petitioner of the charges framed against him. Bail bond and surety bond furnished by him stand discharged. Fine, if any deposited by him, be refunded. Consequently, revision petition No.1732 of 2003 filed against acquittal by the complainant Sunder Lal stands dismissed. May 27, 2009 (A.N. Jindal) deepak Judge