Crl.Revision No.2908 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Rev.No.2908 of 2009 (O&M) Date of decision: 3.5.2011 Mukesh Kumar ... Petitioner versus Brahm Dev and others ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.M.K.Yadav, Advocate, for the petitioner. ... JORA SINGH, J. Crl.Misc.No. 56791 of 2009 In view of allegation in the application, application under Section 5 of the Limitation Act for condonation of delay of 37 days in filing the revision is condoned. Application is allowed. Crl.Revision No. 2908 of 2009 Mukesh Kumar filed this revision to challenge the judgment dated 1.4.2009 passed by JMIC, Ambala, in FIR No.25 dated 20.1.1998 under Sections 323/325/34 IPC, PS Panjokhra. By the said judgment, respondents No.1 to 4-accused were acquitted of the charges levelled against them. Against acquittal, no appeal by the State. Prosecution story, in brief, is that on 12.1.1998, respondents- accused had caused injuries to Mukesh Kumar with dandas/axe. Occurrence was witnessed by Shiv Ram. Respondents-accused had also caused injuries to Shiv Ram. Mukesh Kumar and Shiv Ram were shifted to Crl.Revision No.2908 of 2009 (O&M) 2 hospital, where they were medico legally examined. Statement of Mukesh Kumar, injured-complainant, was recorded, on the basis of which, formal FIR was registered. Rough site plan with correct marginal notes was prepared. Statements of the witnesses were recorded. Accused were arrested. After completion of investigation, challan was presented in Court. Respondents-accused were charged under Sections 323/325/34 IPC. They pleaded not guilty and claimed trial. Prosecution examined number of witnesses. In order to substantiate its case, prosecution examined PW1 Shiv Ram, who stated on oath that respondents-accused had caused injuries to Mukesh Kumar. He tried to save Mukesh Kumar, then they had also caused injuries to him. Occurrence was witnessed by Purni Devi. Statement of PW2 Constable Om Parkash is of formal nature. PW3 Dr. V.K.Sharma stated that on 12.1.1998, he had medico legally examined Mukesh Kumar son of Shiv Ram . 5 injuries were noticed on his person. Kind of weapon used was blunt. In cross-examination, admitted that injuries noticed on the person of Mukesh Kumar were possible by fall on a hard surface. PW4 HC Dharampal is the Investigating Officer. PW5 Purni Devi is the eye witness and stated that in her presence, respondents-accused had caused injuries to Mukesh Kumar and Shiv Ram. After close of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. In defence, DW1 Dr. V.K.Sharma stated that on 12.1.1998, Crl.Revision No.2908 of 2009 (O&M) 3 Narain Dass was medico legally examined and 2 injuries were noticed on his person. On the same day, Brahm Dev was also medico legally examined and 3 injuries were noticed on his person. After hearing learned PP for the State, learned defence counsel for the respondents-accused and from the perusal of evidence on the file, respondents-accused were acquitted of the charges levelled against them. Learned counsel for the petitioner argued that evidence on the file was not rightly scrutinized by the trial Court. Shiv Kumar, injured, categorically stated that respondents-accused had caused injuries to Mukesh Kumar. When he tried to rescue Mukesh Kumar, then respondents- accused had caused injuries to him. Occurrence was witnessed by Purni Devi. Purni Devi also appeared and stated that respondents-accused had caused injuries to Mukesh Kumar and Shiv Ram. Mukesh Kumar was not examined because he was not in a position to speak and this fact is clear from certificate (Annexure P-1) by the doctor of PGI, Chandigarh. After going through the evidence on the file, I am of the opinion that submission of learned counsel for the petitioner seems to be not correct one. According to the story, respondents-accused had caused injuries to Mukesh Kumar and Shiv Ram on 12.1.1998 at about 7.30 AM, place of occurrence was near the house of the respondents-accused, whereas FIR was recorded on 20.1.1998. That means, there was a delay of 8 days. No explanation why this delay. According to Dr. V.K.Sharma, who had medico legally examined Mukesh Kumar, injured, did not state that he was unfit to make statement or unconscious. After the occurrence at 7.30 AM on 12.1.1998, Crl.Revision No.2908 of 2009 (O&M) 4 when Mukesh Kumar was medico legally examined on 12.1.1998 at 10.40 AM, then he was conscious, then no explanation why statement of Mukesh Kumar was not recorded on 12.1.1998 or on the next day. Occurrence was witnessed by Purni Devi and Shiv Ram. If Mukesh Kumar was not fit to make statement, then Purni Devi and Shiv Ram should have reported the matter to the police. No explanation why report was not lodged immediately after the occurrence and why FIR is dated 20.1.1998, when injuries were caused on 12.1.1998 at 7.30 AM. Evidence shows that when Shiv Ram tried to rescue Mukesh Kumar, then respondents-accused had also caused injuries to him but no MLR of Shiv Ram on the file. If Shiv Ram was one of the injured, then why he was not medico legally examined. In case, injuries were not grievous and were simple in nature, then Shiv Ram should have reported the matter to the police. So, delay of about 8 days in lodging the FIR is fatal. When there is a delay, then on this short ground, story is not to be ignored. Delay is one of the suspicious circumstance to scrutinize the evidence with great care and caution. As per evidence on the file, Court was to separate grain from the chaff. Both the eye witnesses failed to explain why matter was not brought to the notice of the police immediately after the occurrence, in case Mukesh Kumar was unconscious to make statement, although no evidence on the file that Mukesh Kumar was unconscious while lying admitted in the hospital. Certificate (Annexure P-1) issued by the Doctor of PGI, Chandigarh, is on the file but Doctor was not produced to state that he had examined Mukesh Kumar and after examination, Mukesh Kumar was found unfit to speak or move. No explanation why concerned Doctor was not examined, who issued certificate (Annexure P-1), that after the occurrence, Crl.Revision No.2908 of 2009 (O&M) 5 till the issuance of certificate (Annexure P-1), Mukesh Kumar remained unconscious and unfit to make statement. If the concerned Doctor would have appeared in Court to state that after the occurrence till the issuance of certificate (Annexure P-1), Mukesh Kumar remained unconscious and unfit to speak or move, then something could be said that non-appearance of Mukesh Kumar as PW is not fatal. When Mukesh Kumar was fit at the time of examination and no document is on the file that after examination till the decision of main case, Mukesh Kumar remained unfit to speak or move, then certificate (Annexure P-1) is not helpful to the prosecution to justify the absence of Mukesh Kumar from the Court as prosecution witness. As per evidence, respondents-accused had caused injuries to Mukesh Kumar and Shiv Ram on 12.1.1998. In defence, same doctor, i.e., Dr.V.K.Sharma appeared and stated that on 12.1.1998, Narain Dass and Brahm Dev were also medico legally examined. Two injuries were noticed on the person of Narain Dass and three injuries on the person of Brahm Dev. No explanation qua injuries on the person of Narain Dass and Brahm Dev. No question was put to the doctor that all the injuries noticed on the person of Narain Dass and Brahm Dev could be self suffered or self inflicted. According to MLRs, Narain Dass and Brahm Dev received injuries in the same occurrence but no explanation by the eye witnesses regarding injuries on the person of Narain Dass and Brahm Dev, then story becomes doubtful. Purni Devi appeared as PW5 and stated that respondents- accused were armed with dandas/axe but PW1 Shiv Ram did not state a word that any of the respondents-accused was armed with axe. Purni Devi stated that danda blow was given by Brahm Dev to Mukesh Kumar, whereas Crl.Revision No.2908 of 2009 (O&M) 6 Sunehri Devi gave fist/kick blow. Narain Dass and Narangi were present at the spot. As per Purni Devi, no specific role was attributed to Narain Dass and Narangi. Only one danda blow was given by Brahm Dev, whereas Sunehri Devi gave fist/kick blows. She has not stated a word as to whether any of the respondents-accused was armed with axe and axe blow was given either to Mukesh Kumar or Shiv Ram. Purni Devi in cross- examination admitted that she came to the spot after the occurrence. That means, statement of Purni Devi is without any evidentiary value because she has not seen the respondents-accused while causing injuries to Mukesh Kumar or Shiv Ram. Shiv Ram appeared as PW1 and stated that after hearing raula, he had gone to the spot. Respondents-accused had also given fist/kick blows to him. He has not stated a word that any of the respondents-accused had caused injuries to him. In cross-examination admitted that none of the respondents-accused had given beatings to him. Shiv Ram did not state a word that occurrence was witnessed by Purni Devi. No explanation why he was not medico legally examined if respondents-accused had given beatings to him. As per Dr.V.K.Sharma, injuries noticed on the person of Mukesh Kumar were possible by fall against hard surface. So, after going through the evidence on the file, trial Court has rightly opined that story was not genuine one. When there is an appeal/revision against acquittal, then impugned judgment is not to be set aside simply on the ground that there is possibility of different view. When possible view as per evidence on the file was taken by the trial Court, then Appellate Court is not to set aside the Crl.Revision No.2908 of 2009 (O&M) 7 judgment of acquittal on the ground that there is possibility of different view. When two views are possible, then the view favourable to the accused is to be accepted. In the light of all discussed above, I am of the opinion that there is no infirmity or illegality in the impugned judgment and the same is upheld. For the reasons recorded above, revision without merit is dismissed. 3.5.2011 ( JORA SINGH ) pk JUDGE