CRM Application No. 615-MA of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CRM.Application. No.615-MA of 2008 Date of Decision: July 05,2010 Angrejo ...........Complainant/Appellant Versus Sewa Singh and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Vikas Chatrath, Advocate for the appellant. ** Sabina, J. Complainant-Smt.Angrejo filed a complaint under Sections 323, 324, 506 read with Section 34 of the Indian Penal Code (`IPC' for short) against accused-respondents. Vide judgment dated 23.9.2008 passed by the Judicial Magistrate 1st Class Tohana, the accused- respondents-Jaibir and Shera were held guilty under Section 323 read with Section 34 IPC and accused-Sewa Singh Singh and Darshan were acquitted. Aggrieved by the same, accused-respondents filed an appeal and the same was dismissed vide judgment dated 30.11.2009 passed by the Additional Sessions Judge, Fatehabad with the modification by granting probation to the accused- Jaibir and Shera on furnishing their probation bonds in the sum of Rs.25,000/- each with one surety in the like amount for the period of one year and during this period, they shall keep peace. Fine of Rs.5000/- was CRM Application No. 615-MA of 2008 2 imposed upon the convicts-appellants and out of the abovesaid fine, Rs.1000/- was ordered to be applied in defraying the expenses of prosecution and Rs.4000/- was ordered to be paid to the injured party jointly as compensation for injury caused to them in equal parts. Hence, the complainant-appellant has filed this application under Section 378(4) of the Code of Criminal Procedure for grant of leave to file an appeal against the orders mentioned above. Brief facts of the case, as noticed by the trial Court, in paras 1 of its judgment, are reproduced here in below:- “ 1.Present complaint under Section 323, 324, 506 read with Section 34 of Indian Penal Code has been filed by Smt. Angrejo the complainant against Sewa Singh and others the accused with the averments that on 02.07.2000 at about 12.00 PM she along with Beermati and others was working in their fields. She went to take water from a nearby water course where accused persons were drinking liquor in a room. When she was in the process of taking water then all the four accused came there and starting abusing her in filthy language and asked to teach her lesson for visiting the police station. On this, Sewa Singh gave a lathi blow on her back. Darshan Singh accused caught her from hair and made her fall on the ground. Shera Singh gave a lathi on her nose due to which blood started oozing out of her nose and she tried to ran away. Then accused Jaibir gave a stick blow on her wrist. On raising her alarm then Beermati came to rescue her. Accused persons also caused injuries on chest and hands of Beermati. Thereafter, Anil and Sunil came there and started crying. CRM Application No. 615-MA of 2008 3 Thereafter, her husband and Baldev Singh brother-in-law came there and on seeing them accused fled away alongwith their weapons by giving threatening to kill her on finding some other occasion. Balbir Singh brought them to Civil Hospital, Tohana where they were medically examined. The police got their thumb impressions on blank papers and assured them to take action but no action was taken so far.” After hearing the learned counsel for the appellant, I am of the opinion that the application for leave to appeal against judgment dated 23.9.2008 is liable to be dismissed. During arguments, it transpired that the appeal filed by the accused Jaibir and Shera against their conviction was dismissed by the Additional Sessions Judge, Fatehabad vide judgment dated 30.11.2009. However, the sentence of the said accused was modified to the extent that they were ordered to be released on probation. The trial Court in paras 14 and 15 of its judgment has held as under:- “14.As per the allegations of the complainant when she was present at the field then she had gone to take water from nearby water course where the accused above named caused injuries to her. She has alleged that Sewa Singh gave a lathi blow on her back. Accused Darshan Singh threw her down on the floor. Accused Sham Singh also gave a lathi blow on her nose and thereafter, accused Jaibir Singh gave a lathi blow on her wrist. When Birmati came to save her then accused gave fists blow to her on her chest and her hand. The Dr. Ashwani Kumar has been CRM Application No. 615-MA of 2008 4 examined as PW3. He has mentioned the following injuries on the person of Birmati:- “She was complained of pain in breast whole back and both shoulder and both upper arm being alleged beaten by blow and fists and thrown on the field. There was presence of mud on the back and feet. The back and breast was tender. No mark of injury seen on these party at present. He has also mentioned the following injuries on the person of Angrejo:- “A swelling of upper part of nose, tender blood was coming out of both nostrils and in sputum on spiting. An abrasion in front of left fore arm 3.5x1/2 c.m. and tender 4 c.m. above wrist joint. A bruise on front and middle of right leg 2.5 c.m. red and tender 10 c.m. below knee joint. She was complaint of pain in upper part of back and being alleged bitten by blow and fists but no mark of injury present. Advise x-ray.” The Court has to carefully and scrutinize the testimony of the witnesses. When Birmati was examined she only complained the paid. No visible mark of injury was found on her person. Similarly, there were two visible injuries only on the person of Angrejo i.e. one a swelling on the upper part of nose and an abrasion in front of left arm and above wrist joint. The other was orally a bruise and a complaint of pain. No X-ray report was got CRM Application No. 615-MA of 2008 5 done. Neither same has been proved on the record. Injury No.3 could be caused by falling on the floor. However, injuries No. 1 and 2 are material in nature and have been attributed to the accused Shera Singh and Jaibir Singh. Accordingly, only the presence of accused Shera Singh and Jaibir Singh has been proved on the record. The injuries attributed to Darshan and Sewa are not corroborated by any medical evidence. Moreover, in criminal law there is always a tendency to implicate as many person as possible. The court has to differentiate the person present and absent. The possibility of false implication of Darshan and Sewa cannot be ruled out. Presence of Sewa and Darshan at the place was become doubtful at the place of occurrence 15. In view of above discussions, the accused Sewa and Darshan are acquitted from the charges levelled against them. As far as the allegations against the accused Shera and Jaibir under Section 506 of Indian Penal Code are concerned, the same has not been proved as there was no specific averments of the complainant with regard to threatening. There was no overact by the accused persons coupled with the threatening. Therefore, accused Shera and Jaibir are held guilty under Section 323 read with Section 34 of Indian Penal Code. Let the convicts Shera and Jaibir Singh be heard on the point of question of sentence on 24.09.2008. The reasons given by the trial Court are sound reasons. Their Lordships of the Supreme Court in Allarakha K.Mansuri vs. State of Gujarat 2002(1)RCR(Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, CRM Application No. 615-MA of 2008 6 has to be adopted by the Court. A Division Bench of this Court in State of Punjab v. Hansa Singh 2001(1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:- “We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar vs. State of Rajasthan, 1991(1)scc 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.” Keeping all these facts and circumstances in mind, the learned trial Court had, thus, rightly acquitted the accused-Sewa and Darshan of the charge framed against them and all the accused under Section 506 IPC. No ground is made out to grant leave to file an appeal. Accordingly, this application is dismissed. (Sabina) Judge July 05, 2010 arya