In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Revision No.310 of 2008 ..... Date of decision:17.4.2009 Balbir Singh .....Petitioner v. State of Punjab and others .....Respondents .... Present: Mr. Deepak Arora, Advocate for the petitioner. Mr. Sudhir Nehra, Additional Advocate General, Punjab for the respondent-State. Mr. Vivek Goyal, Advocate for respondents No.2 and 3. ..... S.S. Saron, J. The revision petition has been filed by the complainant Balbir Singh against the judgment and order dated 17.8.2007 passed by the learned Sub Divisional Judicial Magistrate, Phillaur whereby Surjit Singh son of Nachhattar Singh and Nachhattar Singh son of Mehar Singh (respondents No.2 and 3) have been acquitted of the offences under Sections 326, 324 read with Section 34 of the Indian Penal Code (`IPC' – for short) by giving them the benefit of doubt. ASI Rajinder Kumar along with other police officials went to the Civil Hospital at Phillaur on 28.6.2000 as information was received that Cr. Rev. No.310 of 2008 [2] Surjit Singh son of Nachhattar Singh and Nachhattar Singh son of Mehar Singh (respondents No.2 and 3) were admitted on account having sustained injuries. The doctor at the hospital gave an opinion that the said injured were unfit to make statement. Rajinder Kumar, ASI then recorded the statement of complainant Balbir Singh (petitioner) who stated that he does agriculture work. On 24.6.2000, Balbir Singh (petitioner) along with his uncle Joginder Singh were giving fodder to their cattle in their dera. It was about 7.00 p.m. when Surjit Singh (respondent No.2) came on a tractor trolley from the side of the village at a high speed in the common `Taur' (compound) and tried to turn the tractor towards their dera. He had tried to run over Joginder Singh (injured) who had saved himself by being away from the tractor. Joginder Singh told Surjit Singh (respondent No.2) to drive the tractor at a slow speed. Upon this Surjit Singh hurled filthy abuses and further said that he would drive the tractor in the same manner. On hearing their quarrel Gian Kaur wife of Pavittar Singh an aunt of the petitioner and his brother-in-law Avtar Singh, resident of Garhi Ajit Singh came there. Surjit Singh parked his tractor and brought a `gandasi' from the room and gave a `Lalkara' that he would teach a lesson from stopping him from driving the tractor. Along with him Nachhattar Singh (respondent No.3) also came there. The complainant and others tried to make them understand but Surjit Singh was full of anger and he hurled filthy abuses and inflicted `gandasi' blow which hit on the head of Balbir Singh. Nachhattar Singh inflicted `dang' blow on Balkar Singh which hit him on the left elbow. Surjit Singh inflicted `gandasi' from its reverse side which Cr. Rev. No.310 of 2008 [3] hit on the right arm of Balbir Singh. Joginder Singh an uncle of Balbir Singh tried to rescue him. Then Surjit Singh inflicted two `gandasi' blows on the person of Joginder Singh which hit him on his left leg and left chest. Nachhattar Singh inflicted 3-4 `dang' blows on the person of Joginder Singh which hit him on his back and the chest. Surjit Singh also kicked Joginder Singh. Then a hue and cry was raised on hearing which Gian Kaur, an aunt of Balbir Singh and Avtar Singh his brother-in-law rescued them. The motive for causing the injuries was that the `Taur' (compound) of the well was jointly owned and had not yet been partitioned. However, Surjit Singh intentionally brought his tractor at a high speed. On recording the statement of the complainant the investigations of the case were started. The accused were arrested and after completion of investigations, charge-report (challan) was filed by the Police. Respondents No.2 and 3 were charged for having committed offences under Sections 326, 324 read with Section 34 IPC. In order to establish its case the prosecution examined Dr. R.P. Verma (PW-1). He did not, however, appear for cross-examination. Balbir Singh- complainant (PW-2), Joginder Singh (PW-3) an eye witness and injured, ASI Swaran Singh (PW-4) the Investigating Officer of the case and Dr. Barinder Pal Singh (PW-5) were examined. The remaining prosecution evidence was closed by order of the Court. The learned trial Magistrate formulated the question which arose for determination i.e. as to whether the accused caused injuries in the manner as alleged by the prosecution. Whether it is a case of counter-blast to falsely implicate the accused and whether the prosecution has proved the Cr. Rev. No.310 of 2008 [4] essential ingredients of the offences under Sections 326, 324 read with Section 34 IPC. After considering the evidence and material on record, the learned trial Magistrate has acquitted respondents No.2 and 3, which is assailed in the present petition. It was held that the case had been lodged by the complainant as a counter-blast to falsely implicate the accused (respondents No.2 and 3) by fabricating the injuries. The injuries on the person of Joginder Singh, it was observed, were fabricated by the complainant which was clear from the testimony of Dr. Barinder Pal Singh (PW-5). The prosecution had failed to establish the essential ingredients qua the offences under Sections 326, 324 read with Section 34 IPC. Mr. Deepak Arora, Advocate, learned counsel for the petitioner has contended that the injuries on the person of the petitioner as well as Joginder Singh injured were duly explained. It is submitted that Dr. R.P. Verma (PW-1) proved the MLR qua Joginder Singh and he opined that injuries No.1 and 2 were inflicted with a sharp edged weapon while the remaining injuries were with a blunt weapon. Injury on the person of Joginder Singh was declared as grievous vide report (Ex.P.3). Dr. R.P. Verma (PW-1) had also proved the MLR of Balbir Singh in which injury No.1 was depicted to be an outcome of a sharp edged weapon and the other injuries were outcome of a blunt weapon. Therefore, in the evidence of Dr. R.P. Verma (PW-1) all the injuries on the person of the petitioner as well as Joginder Singh were duly explained by leading evidence. It is also submitted that respondents No.2 and 3 were the aggressors and they had attacked the petitioner side and inflicted injuries and this aspect has not Cr. Rev. No.310 of 2008 [5] been noticed by the learned trial Court. It is submitted that on 28.6.2000 FIR No.125 was registered against the petitioner as well as Joginder Singh, Bhupinder Singh, Gurdeep Singh and Pavittar Singh for the offences under Sections 326, 325, 324, 148 and 149 IPC on account of the injuries said to have been suffered by Surjit Singh and Balbir Singh. The case registered against the side of the petitioner was tried together with the present case in which respondents No.2 and 3 have been acquitted. In fact, both the cases have been decided by the learned trial Court on the same day, however, two different judgments have been passed. It is submitted that in the case registered against the petitioner side, the petitioner as well as Joginder Singh, Bhupinder, Gurdeep Singh and Pavittar Singh were convicted for the offences under Sections 326, 325, 323, 148 and 149 IPC. A copy of the judgment passed by the trial Court in case FIR No.125 dated 28.6.2000 has been placed on record as Annexure-P.1. In response, Mr. Vivek Goyal, Advocate, learned counsel for respondents No.2 and 3 has contended that the learned trial Court has recorded sound and convincing reasons for acquitting respondents No.2 and 3 and this Court in exercise of its revisional jurisdiction is not to re- appreciate the evidence and set aside the order of acquittal or order re-trial of the case. Therefore, the judgment and order passed by the learned trial Court, it is submitted, is liable to be sustained and upheld. I have given my thoughtful consideration to the matter and gone through the order passed by the learned trial Court. The prosecution case has been initiated on the statement of Balbir Singh (petitioner) that was Cr. Rev. No.310 of 2008 [6] made before ASI Rajinder Kumar on 28.6.2000. It is alleged by the petitioner that on 24.6.2000 he along with his uncle Joginder Singh was giving fodder to the cattle in their dera. At about 7.00 p.m. Surjit Singh (respondent No.2) had brought his tractor trolley by driving it in a rash and negligent manner and at a high speed in the common `Taur’ (compound). Surjit Singh then tried to turn the tractor towards the dera and run over Joginder Singh. The latter, however, rescued himself by jumping away from the tractor. Joginder Singh then told Surjit Singh to drive the tractor at a slow speed. On this Surjit Singh (respondent No.2) hurled filthy abuses and stated that he would drive the tractor in the same manner. On hearing this they quarreled. Gian Kaur, an aunt of Balbir Singh (petitioner) and Avtar Singh, brother-in-law of the petitioner came at the spot. Then Surjit Singh (respondent No.2) parked his tractor and brought a `gandasi’ from the room. He raised a `Lalkara’ that he would teach a lesson for stopping him from driving the tractor. Nachhattar Singh (respondent No.3) also accompanied Surjit Singh (respondent No.2). Thereafter, Surjit Singh while hurling abuses inflicted a `gandasi’ blow on the head of Balbir Singh (petitioner). Nachhattar Singh (respondent No.3) inflicted a `dang’ blow on the left elbow of Balbir Singh (petitioner). Then Surjit Singh (respondent No.2) gave a `gandasi’ blow from its reverse side on the left arm of the petitioner. When the uncle of the petitioner, namely, Joginder Singh tried to rescue him, then Surjit Singh (respondent No.2) inflicted two `gandasi’ blows on Joginder Singh which hit him on his left leg and left wrist. Nachhattar Singh (respondent No.3) also inflicted three-four `dang’ blows Cr. Rev. No.310 of 2008 [7] on the person of Joginder Singh which hit on his back and chest. Surjit Singh (respondent No.2) also kicked Joginder Singh. On hearing their noise Gian Kaur and Avtar Singh came there and rescued the petitioner and Joginder Singh from their clutches. On the statement of the petitioner, FIR No.125 dated 28.6.2000 was registered at Police Station Phillaur for the offences under Sections 326, 325, 324, 323 and 34 IPC. The accused (respondents No.2 and 3) were charged for having committed the offence punishable under Sections 326, 324/34 IPC. The grievance of the petitioner is that while acquitting respondents No.2 and 3, the learned trial Court did not appreciate that the injuries on the person of the petitioner and Joginder Singh were duly explained in the evidence of Dr. R.P. Verma (PW-1). It may, however, be noticed that Dr. R.P. Verma (PW-1) medico-legally examined Joginder Singh injured on 24.6.2000 at 8.50 p.m. and he found the following injuries on his person:- “1. An incised wound 6 cm x 0.5 cm. into bone deep on left leg in its back. Fresh bleeding was present. X-ray was advised. 2. An incised wound 2 cm. x 0.5 cm. x bone deep on the base of left thumb in its dorsal aspect. Fresh bleeding was present. Pain and tenderness was present. Advised X-ray. 3. A contusion of 6 cm. x 3 cm. x red in colour on the back of left scapula region surrounded by diffused swelling. Pain and tenderness present. X-ray was advised. 4. Complaining of pain tenderness at lower part of right side of chest. Cr. Rev. No.310 of 2008 [8] 5. Complaining of pain and tenderness at right scrotal region.” Injuries No.1 to 3 were kept under observation while injuries No.4 and 5 were simple in nature. Injuries No.1 to 3, it was opined, were caused by sharp edged weapon while the remaining injuries were caused by blunt weapon. Later upon X-ray examination fracture was found in injury No.2. Insofar as Balbir Singh (petitioner) injured is concerned the following injuries were found on his person:- “1. An incised wound of 3 cm. x 0.5 cm. x bone deep ortho top of skull at the junction of occipital parietal region. Fresh bleeding present. Pain and tenderness present. Advised X-ray. 2. An abrasion with defused swelling at the back of left elbow joint. Pain and tenderness present. Advised X-ray. 3. A defused swelling lateral aspect of right elbow joint. Pain and tenderness present. Advised X-ray. 4. Complaining of pain at the nap of neck. Difficulty in movement both shoulder.” Injuries No.1 to 3 were kept under observation while injury No.4 was declared to be simple in nature. Injury No.1 was caused by sharp edged weapon while the remaining injuries were with blunt weapon. No fracture was detected in injuries No.1 to 3 and the same were declared simple in nature. According to the petitioner, the injuries on his person fall under Sections 324 and 323 IPC. It may, however, be noticed that the primary thrust of the contentions of the learned counsel for the petitioner is that the Cr. Rev. No.310 of 2008 [9] nature of injuries stand established and explained in the deposition of Dr. R.P. Verma (PW-1). Dr. R.P. Verma (PW-1) who appeared as a witness and got his examination-in-chief recorded did not appear for the purpose of his cross-examination. Accordingly, it was held by the learned trial Court that his deposition cannot be read in evidence as he had failed to appear for his cross-examination. It was observed by the learned trial Court that the entire evidence of the prosecution revolves around the testimony of Dr. R.P. Verma (PW-1) who has opined as to there being injuries on the person of the complainant but the entire report it was observed is a fabricated one in connivance with the doctor in the light of the opinion recorded by the Board of Doctors, in which it had clearly come out that injury No.2 on the thumb of Joginder Singh had been manipulated and that too afterwards. Dr. Barinder Pal Singh (PW-5), who was a member of the Board of Doctors appeared as a prosecution witness and stated that the injuries on the person of Joginder Singh which were referred for X-ray examination by Dr. R.P. Verma (PW-1) did not correspond with injury No.2 of the MLR but was corresponding to the fictitious injury said to have been suffered at a later stage. Dr. Barinder Pal Singh (PW-5) deposed in his cross-examination of having examined Joginder Singh who was referred by Dr. R.P. Verma (PW- 1) for X-ray examination. It was deposed by Dr. Barinder Pal Singh (PW-5) that the Board of Doctors was constituted for re-examination of the injuries on the person of Joginder Singh and he gave his opinion on the application moved by ASI Bhagat Ram that injury No.1 mentioned by the Board of Doctors in fact is injury No.2 and injury No.2 mentioned by the Board of Cr. Rev. No.310 of 2008 [10] Doctors, it was observed, was a self-suffered within 48 hours duration. The learned trial Court observed that injury No.2 on the thumb of Joginder Singh was self-suffered which was suffered afterwards. In the circumstances, the learned trial Court having come to the said conclusion in acquitting respondents No.2 and 3 as the injury on the person of Joginder Singh was found to be fabricated on the basis of medical record it cannot be said that there is any infirmity in the same. In the cross- case in which FIR was recorded on the statement of Surjit Singh (respondent No.2); the accused Balbir Singh, Joginder Singh, Bhupinder Singh, Gurdeep Singh and Pavittar Singh have been held guilty and convicted for the offences punishable under Sections 326, 325, 323, 148 read with Section 149 IPC. The said case in which the petitioner side in the present case has been convicted is not subject matter of appeal or revision before this Court at present and, therefore, the same is not liable to be commented upon as the persons convicted may have preferred their appeal against their conviction and sentence. In any case, the injuries on the person of Joginder Singh having been found to have been self-suffered, it cannot be said that Surjit Singh and Nachhattar Singh (respondents No.2 and 3) were the aggressors. In Satyajit Banerjee v. State of West Bengal, 2005 (1) RCR (Cr.) 723 (SC), it was observed by the Supreme Court that the revisional jurisdiction at the instance of the complainant has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage Cr. Rev. No.310 of 2008 [11] of justice. There is no such defect in the procedure nor any manifest error of law which can be said to have resulted in flagrant miscarriage of justice. The case of the petitioner hinges on the deposition of Dr. R.P. Verma (PW- 1) who has only got his examination-in-chief recorded and did not appear for the purpose of cross-examination. In any case, whatever he stated stands falsified by Dr. Barinder Pal Singh (PW-5), who was a member of the Board of Doctors who examined the injured Joginder Singh and Balbir Singh (petitioner). The injury on the thumb of Joginder Singh which was stated to be a fracture has been found to be fabricated. The other injuries on the person of Joginder Singh and Balbir Singh (petitioner) have also been found fabricated. In the circumstances, there is no error of law in acquitting respondents No.2 and 3, which would warrant interference by this Court in exercise of its revisional jurisdiction. As such, there is no merit in this revision petition and the same is accordingly dismissed. Nothing, however, stated or observed herein shall be construed as an expression of opinion on the merits of the case in the appeal that may have been filed by Balbir Singh, Joginder Singh, Bhupinder Singh, Gurdeep Singh, Pavittar Singh etc. and the learned Court shall consider the case on the basis of evidence and material as available before it and uninfluenced by any observations made herein. April 17, 2009. (S.S. Saron) Judge *hsp*