CRR No.1343 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.1343 of 2008 Date of decision: 19.01.2011 Attar Singh ....Petitioner Versus State of Haryana and another ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. N.S. Shekhawat, Advocate, for the petitioner. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) This revision petition is directed against the judgment passed by the learned Additional Sessions Judge, Panipat, dated 13.2.2008 vide which respondent No.2 was acquitted of the charge under Section 302 of the Indian Penal Code and Section 25 of the Arms Act, 1959. Feeling aggrieved by the said judgment, the complainant/petitioner has approached this Court for setting aside the impugned judgment passed by the learned Additional Sessions Judge, Panipat, and to convict the accused for an offence under Section 302 IPC read with Section 25 of the Arms Act. The prosecution case inter alia is that on the morning of 24.12.2005, deceased Mohinder Singh had gone to work in his fields situated within the revenue estate of village Patti Kalyana. At about 10.00 a.m., complainant/petitioner was also going there with food for CRR No.1343 of 2008 -2- him, when Attar Singh heard the sound of gun-shots and saw a young boy wearing a track suit of black colour running towards village Bhodwal Majri. Attar Singh ran to the tubewell situated in their fields and found his brother Mohinder Singh lying in a water course with face downward. His body was warm. On inspection, it was found that he had received two gun shot injuries on chest and was bleeding. Attar Singh raised alarm which attracted the persons working in nearby fields and other persons from the village including his cousin Telu Ram. They all put the deceased on a cot for removing him to a hospital. He was being taken to hospital when he succumbed to injuries near the fields of one Panna Master. Leaving the dead body at that very place, Attar Singh was going to inform the police when Ram Kishan, SI/SHO, Police Station Samalkha met him in front of house of one Mukesh Kumar in village Patti Kalyana who too on receipt of information about the accident was going to said place accompanied by Jai Kishan ASI and other police officials. He recorded the statement of Attar Singh Ex. PD and sent the same to Police Station for registration of a case with his endorsement Ex.PD/2 through constable Virender Singh. On the basis of that, FIR Ex.PD/1 was drawn by Mahender Singh, ASI. Ram Kishan SI then went to the place where the dead body of the deceased was lying. He summoned a photographer who took photographs of the dead body. He then held inquest Ex.PD/2 and went to the place where occurrence had taken place. He carried out spot inspection and prepared rough site plan Ex.PM of said place. He lifted blood stained earth from said place and took the same into possession vide memo Ex.PJ after converting into a sealed parcel. He then recorded the supplementary statement of CRR No.1343 of 2008 -3- Attar Singh and other witnesses present over there including Palu Ram, another brother of the deceased who stated that he was present at the time of occurrence and that his brother was shot dead by Sonu accused who after committing the crime ran away towards Bhodwal Majri. The dead body of the deceased was taken to hospital where autopsy was conducted by the doctor. The doctor opined that cause of death was haemorrhage and shock due to the injuries caused to the deceased, which were sufficient to cause death in the ordinary course of nature. After completion of investigation, challan was presented in the Court. The accused was chargesheeted for committing an offence under Section 302 of the Indian Penal Code and Section 25 of the Arms Act, to which he pleaded not guilty and claimed trial. The prosecution in support of its case has examined as many as 16 witnesses. Thereafter, statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, in which he denied all the allegations of the prosecution and pleaded false implication. However, he did not choose to lead any defence evidence. After hearing learned counsel for both the parties, learned Additional Sessions Judge acquitted the accused/respondent No.2 by giving him benefit of doubt. Learned Sessions Judge after going through the evidence of the prosecution witnesses, came to the conclusion that it was a blind murder and, in fact, on coming to know about the occurrence, PW Attar Singh accompanied by Telu Ram and others went to the spot and found the deceased lying in a water course with face downward. However, the extra judicial confession statement purported to be suffered by the CRR No.1343 of 2008 -4- accused to Jagpal Singh PW11 has been made after 11 days. The extra judicial confession is a weak type of evidence and as such no reliance can be placed on the same. The learned trial Court has rightly placed reliance upon the judgments in the matter of Yakub and another Vs. State of Haryana, 1996(3) RCR 474, Surinder Kumar Vs. State of Punjab, 1999(1) Criminal Court Judgments 39, Tara Chand Vs. State of Haryana, 2001(2) Criminal Court Judgments, 7 and Madan Mohan @ David Vs. State of Haryana, 1997(1) RCR 713 in support of its conclusion. Learned counsel for the petitioner vehemently argued that the learned trial Court has failed to appreciate the evidence of the prosecution witnesses and had given the benefit of the minor discrepancies occurred in the statements of the witnesses. He further argued that minor discrepancies are bound to occur in the statements of the truthfull witnesses and as such the statements of the witnesses should not be discarded, therefore, the impugned judgment is liable to be set aside. FIR was lodged on the statement of Attar Singh PW-9 the brother of Mohinder Singh deceased. He has not named the accused in the FIR. There is no mention about the presence of another brother Palu Ram PW10 in the FIR. Palu Ram PW10 another brother of the deceased has improved the case saying he was present on the spot and has chased Sonu accused for some time after seeing him firing on deceased Mohinder Singh.. Presence of PW9 and PW10 on the spot could not be proved beyond reasonable doubt. PW11 Jagpal Singh has stated that accused has come to him CRR No.1343 of 2008 -5- and has confessed that he has killed Mohinder Singh and thereafter he has produced the accused before the police. Accused is said having approached PW11 Jagpal Singh after 11 days of the incident. Accused is nowhere related with Jagpal Singh. As to why accused would have gone to unknown-unrelated PW11 Jagpal Singh to confess his guilt does not inspire any confidence. After hearing the learned counsel for the petitioner and going through the record, I find that the material witnesses of the prosecution have not supported the prosecution version on all material points. Hon'ble Apex Court in the matter of Akalu Ahir reported in 1973(3) SCC 583 in para 8 has observed as under: - “...........the revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. .............It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court in the court of trial, that the High Court is empowered to set aside the order of acquittal and direct the retrial of the acquittal accused persons. From the very nature of this power, it should be exercised in exceptional cases and with great care and caution. Trials are not to be lihtly set aside when such order expose the accused persons to a fresh trial with all its consequential harassment. This matter is not res integra and had indeed been dealt with by this court at least in the four cases noticed by the High Court. ...............It makes all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering re-trial. No doubt, in the opinion of this court no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court's power of ordering retrial can be laid down. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision. i. Where the trial court has no jurisdiction to try the case, but has still qcquitted the accused; CRR No.1343 of 2008 -6- ii. Where the trial court has wrongly shut out evidence which the prosecution wishes to produce; iii. Where the appellate court has wrongly held the evidence which was admitted by the Trial Court to the inadmissible; iv. Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and v. Where the acquittal is based on the compounding of the offence which is invalid under the law.” These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal.” Hon'ble Apex Court, in the matter of Bindeshwari Prasad Singh Vs. State of Bihar reported in 2002(6) SCC 560 in paras 13 and 14 has observed as under: - “13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. 14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial Court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. At best the High Court thought that the CRR No.1343 of 2008 -7- prosecution witnesses were reliable while the trial court took the opposite view. This Court has repeatedly observed that in exercise of revisional jurisdictional against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and should not constitute itself into an appellate court which has a much wider jurisdiction to go into questions of facts and law, and to convert an order of acquittal into one of conviction.” Hon'ble Apex Court, in the matter of Johar Vs. Mangal Prasad reported in 2008(3) SCC 423 in para 19 has held as under: - “19. The approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure, it exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred, but severally (sic severely) restricted, particularly when it arises from a judgment of acquittal.” In view of the dictum of the Hon'ble Apex Court, in the humble opinion of this Court, in a revision filed by the complainant against the order of acquittal, revisional Court has no jurisdiction to re- appreciate the evidence. However, revisional Court shall be within its jurisdiction to see as to whether trial Court has shut out or has overlooked the evidence which could clarify the issue. Revisional Court can further seek manifest error of law or jurisdictional error or procedural error committed by the trial Court amounting to failure of justice. In the present case from the perusal of the record, I am satisfied that learned trial Court has not shut out or overlooked any evidence, which could prove offence against the accused. I do not find any manifest error of law or jurisdictional error or procedural error on the part of the trial Court resulting in wrong judgment. CRR No.1343 of 2008 -8- In the opinion of this Court, even if two views are possible on the appreciation of evidence available on record, the view taken by the trial Court while acquitting the accused must prevail and this Court should not substitute its view over the view taken by the learned trial Court. Petition is devoid of merit, hence is dismissed. (Alok Singh) Judge January 19, 2011 R.S.