IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Revision No.1334 of 2008 (O&M) Date of decision : 11.2.2010 Surender Kumar … Petitioner Versus Devender and others …Respondents CORAM : HON’BLE MRS.JUSTICE SABINA Present: Mr.Bipan Ghai, Sr.Advocate with Rm.Deepak Garg, Advocate for the petitioner. Mr.Y.P.Malik, DAG, Haryana. Mr.D.S.Brar, Advocate for respondents No.1-5,7-9. Sabina J. Petitioner Surender Kumar has filed this revision petition under Section 401 of the Code of Criminal Procedure ( in short ‘Cr.P.C.’) challenging the order dated 18.10.2007 passed by Additional Sessions Judge, Gurgaon acquitting the respondents of the offence under Sections 307, 147, 148, 149, 323, 447 of the Indian Penal Code ( in short ‘IPC’) and 25 of the Arms Act. Brief facts of the case as noticed by learned Additional Sessions Judge in para 2 of its judgment reads as under:- “Brief facts of the present case as culled out from the report under section 173 of Code of Criminal Procedure are that on 14.3.2001, complainant/injured (PW-1) made statement (Ex.PA) before Assistant Sub Inspector Subhash Chand (PW15) Police Post Sohna, to the effect that complainant is resident of Sohna and in the year 1986, his father had purchased some land from Kesar Devi and in the month of October, 2000, his father had purchased some land from Vinod Kumar etc. whose sale deeds are in the name of his father and the said land is measuring 15 kanals 17 marlas and the girdawari of the said land is in the name of Om Parkash son of Harish Chand, caste Saini, resident of Sohna and possession is also with him and out of the said land, lease of some part has been taken by Sushil son of Amrit Lal Sharma, resident of waziradab from Manoj son of Ghanshyam resident of Nuh and Crl.Revision No.1334 of 2008 Om Parkash son of Hari Chand resident of Sohna has obtained the stay from the Gurgaon Court in the year 1992 against lease holder and on 14.3.2001 at about 7.00 AM, Sushil son of Amrit Lal resident of Wazirabad and Harish Kumar son of Sada Ram resident of Bhirawati, Suresh son of Jiya Ram, resident of Kaliawas, Devender resident of Badshahpur, Jagjit, Karan Kumar, Gandhi, Jasmer, Kamal and Amirt Lal and Shiv Kumar and 5/6 other persons armed with lathies, dandas and gun in their hands came there and started falling down the Wall of the said land and rooting up the wire and the complainant, his brother Satender Kumar and father Hem Chander stopped them from doing so and said that a case is pending in the Gurgaon Court and decision of the said case will be binding and on this, Sushil etc. gave slap and fist blows to the complainant side and intervention was made and after some times, said Sushil and others started breaking the Wall and the complainant stopped them and then Sushil gave lathi blow on the head of the complainant and Jagjit gave fist blow on the face of the complainant and Karan Kumar gave lathi blow on the right leg below knee and Harish gave lathi blow on the thumb of right hand and palm and Gandhi gave lathi blow on the right foot of the complainant and the complainant started running towards his dumper raising alarm BACHAO BACHAO and then Devender who was carrying gun in his hands fired at the complainant with intention to kill the complainant but the bullet hit driver’s side window of the dumper and to save himself the complainant entered into the dumper and started dumper to ran away and then Devender fired upon the complainant from front side which hit the glass of the front side of dumper and the complainant saved himself by bending down on the seat and Shanker son of Ram Avtar tried to save then Devener fired at the right leg of Shanker and its pallets hit the left leg of Shanker and then the complainant party raised noise BACHAO BACHAO and thereafter, Sushil son of Babu Ram resident of Thana Singh Ki Pyau and Jagdish son of Murari Lal resident of Sohna and complainant’s brother Ravinder Kumar and some other persons came there and saved complainant side from the clutches of the accused and while leaving the spot, Sushil son of Amrit Lal and 2 Crl.Revision No.1334 of 2008 others said that today, you (complainant party) have been saved and on finding an opportunity, the complainant party will be killed and Sushil Kumar and others with intention to dispossess the complainant party from the said land by breaking then Wall have tried to take possession of their land and have caused injuries and thereafter, the accused persons run away from the spot alongwith their respective weapons carrying in their hands and thereafter, the complainant party was admitted in the Hospital by Raghubir and some other persons.” After hearing learned counsel for the parties, I am of the opinion that the instant petition is devoid of any merit and deserves dismissal. The trial Court in the impugned judgment after appreciating the evidence on record has observed that occurrence had taken place at 7:00 a.m. whereas, FIR was recorded at 12:15 p.m. Time mentioned in the FIR appeared to be manipulated and had been changed from 1:15 p.m. to 12:15 p.m. There was an over-writing in the FIR in this regard. The FIR was received on 15.3.2001 at 10:00 a.m. by the Magistrate. The learned trial Court further observed that the time had been changed to cover the delay in recording of the FIR which had been used for consultation and deliberation. In the FIR, 10 persons were sought to be prosecuted whereas attribution of injuries to the complainant was only by two persons. The learned trial Court further observed that as per the statement Ex.PA, motive was attributed to the accused to attempt dispossession of the complainant party from the land in dispute. The said fact was falsified as the complainant has stated in the complaint that his father had initially purchased the land in the year 1986 from Kesar Devi and some land has been purchased from Vinod Kumar in the year 2000. The total land measured 15 kanals 17 marlas. Entry in the Girdawari of the land was in the name of Om Parkash. Sushil had taken land on lease from Manoj Kumar and Om Parkash had got an injunction in the year 1992 against the lessee. Thus, 3 Crl.Revision No.1334 of 2008 there were two versions running counter to each other. On the one hand it was alleged that possession of the land was with Om Parkash who had got injunction in his favour against the lessee whereas, on the other hand, the allegation is that the Sushil had taken the land on lease from Manoj Kumar. It has also been averred in the complaint that Sushil and other with a view to eject the complainant party had attempted to illegally occupy the land by breaking the wall. Learned trial Court further observed that Om Parkash had not been cited as witness. The trial Court further observed that father of the complainant had only got symbolic possession of the suit land but had never been given physical possession of the suit land. It has also been observed by the learned trial Court that it had come to the notice of the Investigating Officer that the vacant piece of land in the site plan Ex.P-2 belonged to the accused persons. As per the medical officer who had examined the injured PW-6, there was firearm injury on the person of Hari Shankar. One penetrating wound on the right leg was observed by the doctor on the person of PW-6 with doubtful fracture on the right lower leg. The weapon used was blunt as per the medical opinion. The learned trial Court concluded that in fact no firearm injury has been received by PW-6. Moreover, the pellets and wades had not been recovered from the place of occurrence. Neither any blood strained earth had been lifted from the spot. The pent worn by PW-6 at the time of alleged occurrence to substantiate the firearm injury was not taken into possession. There was discrepancy in the testimony of the eye witness with regard to weapon used at the time of alleged occurrence. The learned trial Court in paras 57, 58 and 59 its judgment has observed as under:- “57 PW-6 is also deposing in the same tone and the injuries disclosed to have been inflicted by PW1 by accused Sushil, Jagjeet, Harish and One Gandhi, against whom, there is no prosecution, were also disclosed to have been inflicted by PW-6. According to 4 Crl.Revision No.1334 of 2008 Medical Officer PW-2, who examined PW1 Surener, there were nine injuries and injury No.1 was lacerated wound, whereas injury No.2 was boggy swelling and remaining seven injuries were reddish contusion. These nine injuries as disclosed, are not in conformity with the injuries alleged inflicted by the accused as deposed by PW-1 and PW-6. According to PW1 and PW6, the first blow was given by Sushil on the head of the complainant and this injury may be the injury No.2 as deposed by PW2 which is a boggy swelling. Another injury has been attributed to Jagjeet as PW-1 stated that Jagjeet gave him a blow on his mouth, whereas according to PW6, this blow was a fist blow, but non f the injuries, as reported by PW2, is a fist blow injury as according to Medical Jurisprudence and Toxicology by Doctor K.S.Narayan Reddy, Professor of Forensic Medicine M.R. Medical College, Gulbarga, 1st Edition, 2000 published by ALT Publications, Chapter II, page 170, a blow from a solid body, such as a hammer, or the closed fist surely produce a rounded bruise and as such, if fist blow was there at the hands of accused Jagjeet, then the fist blow injury on the person of PW-1 was bound to produce rounded bruise, but, no such injury is there on the person on PW- 1. 58. Another injury attributed is a lathi blow on the right hand given by accused Harish and this injury may be the injury No.3 as deposed by PW-2, PW-1 again claimed that Karan inflicted a blow on the right leg and one Gandhi (not being prosecuted) inflicted lathi blow on the right foot, but no such injuries are there on the person of PW-1, as per depositions of PW-2 and as such, if the medical evidence and oral version of PW-1 and PW-6 is taken together then out of nine injuries, as disclosed in MLR Ex.PB, of PW-1 as deposed by PW2, only two injuries attributed to Sushil and Harish were found in the medical evidence and for rest of the injuries, no attribution to any of the accused could be proved and as such, the medical evidence and oral evidence is again contradictory and according to PW-2, injury No.1 can be cause if the hand of person having thumb and the other finger pressed into the window of a vehicle and again PW-2 stated that contusions and abrasions could be caused by fall on a hard surface. 5 Crl.Revision No.1334 of 2008 59. As already discussed, the registration of the case is the result of consultation and deliberations and when the specific attribution to the accused except accused Sushil and Harish could not be proved by medical evidence, the conclusion of consultation and deliberations in getting the case registered is further strengthened as expect accused Sushil and Harish, no specific attribution could be proved and firing incident allegedly attributed to accused Devender is not proved and other injuries as noticed by PW-2 on the person of PW-1 could not be attributed by PW-1 and PW-6 to the accused and as such, undoubtedly, except accused Sushi, Karan and Deveneder and Harish non was present on the spot as presence of Sushil, Karan and Devender stands admitted by the accused in their statements under section 313 of Cr.P.C. as well as in the cross examination of PW-1 and PW-6 and other witnesses and as such, the presence of the accused except accused Sushil, Karan and Devender and Harish could not be established on record and as such, either the question of formation of an unlawful assembly or acting in furtherance thereof, does not arise at all and accused except accused Sushil, Karan, Devender and Harish were falsely involved as a result of consultation and deliberations in between PW-5and the complainant himself.” The trial Court further observed that PW-6 was introduced after manipulating false injury. He was servant of the father of the complainant. Medico legal examination of PW-6 also established that he was not present at the spot as he was examined on 14.3.2001 at 9:45 a.m. whereas the complainant was examined at 8:15 a.m. So far as the injured Hari Shanker father of the complainant is concerned, he was examined at 2:30 p.m. There is no explanation in this regard also as to why all the injured were not taken to the hospital at the same time. It has been held by Apex Court in Satyajit Banerjee vs. State of West Bengal (ST), 2004 (10) JT 27 that direction for de novo trial could be given in extraordinary case where Court was convinced that entire trial was farce. Revisional jurisdiction against the order of acquittal at the instance of 6 Crl.Revision No.1334 of 2008 the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect or procedure or manifest error of law resulting in flagrant miscarriage of justice. In the circumstances, learned trial Court has rightly acquitted the respondents of the charge framed against them by giving them the benefit of doubt. The present case does not warrant retrial. As per Section 401(3) of the Code of Criminal Procedure Code, a finding of acquittal cannot be converted into a finding of conviction by this Court. The impugned judgment of the court below does not call for any interference. Accordingly, this petition is dismissed. Application seeking condonation of delay in filing the revision petition is merely academic and is disposed of as such. [ Sabina ] Judge 11.02.2010 sd 7