Full Judgment
Criminal Revision No.2251 o”
1. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2251 of 2002 Decided on 14.2.2013. Hari Kishan ... Petitioner versus State of Haryana and others .... Respondent 1. Whether Reporters of Local Newspapers may be allowed to see the judgment?.
2. To be referred to the Reporters or not?.
3. Whether the judgment should be reported in the Digest?. CORAM : HON'BLE MR.JUSTICE K.C.PURI Present :- Shri Kapil Aggarwal, Advocate for the petitioner. Shri Amandeep Singh, AAG, Haryana. Shri H.S.Gill, Senior Advocate with Shri Vivek Goel, Advocate for respondents No.2 to 5. K.C.PURI, J.Challenge in this revision petition is the judgment dated 13.8.2002 passed by Shri S.P.Singh, Additional Sessions Judge, Rewari preferred by complainant Hari Kishan vide which the accused/respondent Nos.2 to 5 were acquitted in case FIR No.145 dated 13.7.2000 registered Criminal Revision No.2251 o”
2. under Sections 302, 323, 506 read with 34 of the Indian Penal Code ( in short - the IPC) at Police Station Sadar Rewari.
2. The case of the prosecution in brief is that on 13.7.2000 HC Sarv Sukh along with Constable Gordhan was present at Rewari-Jhajjar road, Rewari in connection with investigation of another criminal case then he received two ruqas from Government Hospital, Rewari regarding admission of Karan Singh and Hari Kishan in injured condition. He reached to the hospital and was informed that injured Karan Singh had already been referred to PGIMS, Rohtak and the doctor opined that injured Hari Kishan was fit to make statement. Hari Kishan in his statement had stated that they had constructed residence in the fields and on the date of occurrence at about 6.00a.m. Balwan and Kuldip, who owned agricultural land adjoining to their land came to the fields with tractor of Bhim for cultivation. While cultivating the fields, they damaged the DOL (ridge) of their field. His uncle Karan Singh lodged protest with Balwan and others as to why they had damaged the DOL of their field, Balwan did not admit his fault rather saying that he had not damaged the DOL. On this some altercation took place between his uncle and Balwan. Then Balwan lifted an iron Dantali from the field and inflicted a blow thereof on the head of his uncle-Karan Singh. Kuldip Singh inflicted a blow with a wooden stick on the forehead of his uncle. He and his uncle Ramotar were sleeping in the fields and on hearing the alarm, they came to the spot. On seeing them, Balwan and Kuldip ran towards the village. His uncle Karan Singh told them about the incident. Thereafter, he, his uncles Karan Singh and Ramotar went to the Criminal Revision No.2251 o”
3. village to lodge protest with the assailants. Balwan, Kuldip, Sunil and Anil armed with lathis, pipes etc. were already prepared to assault them. The moment they reached the village, Balwan inflicted lathi blow on the head of his uncle Karan Singh. Karan Singh fell down. Then they came to the help of Karan Singh. Anil gave blow with pipe on the head of the complainant. They also caused injuries to Ramotar. Ram Kishan and Budh Ram also reached at the spot on hearing alarm and they attempted to rescue them. They were also caused injuries by the accused persons. They raised alarm which attracted Ajit and Parbhati, they reached at the spot and rescued them. On the basis of aforesaid statement, the instant FIR was registered under Sections 323, 506/34 of the IPC and the investigation commenced. Injured Karan Singh had died on 13.7.2000 itself and therefore offence under Section 302 of the IPC was also added. The accused were arrested. Site plan of the place of occurrence was also got prepared. After completion of the investigation challan against the accused was presented before Additional Chief Judicial Magistrate, Rewari.
3. On appearance of the accused copies of the documents as relied upon by the prosecution were supplied to the accused free of costs. The Additional Chief Judicial Magistrate, Rewari vide order dated 12.10.2000 committed the case to the Court of Session for trial as offence under Section 302 of the IPC was exclusively triable by the Court of Session.
4. The accused were charge sheeted under Sections 323, 302 and 506 of the Indian Penal Code of the Indian Penal Code (in short - the IPC ) of which they pleaded not guilty and claimed trial.
5. Prosecution, in order to substantiate its case, examined Dr. Criminal Revision No.2251 o”
4. O.P.Dabas as PW-1, Mangat Ram as PW-2, Giarsi Lal as PW-3, SI Madan Singh as PW-4, Constable Rajiv Kumar as PW-5, Karan Singh as PW-6, Ramesh Chand as PW-7, Head Constable Satbir as PW-8, Hari Kishan as PW-9, Ram Kishan as PW-10, Constable Dharampal as PW-11, Dr. Raman Shukla as PW-12, Dr. Ashok Saini as PW-13, ASI Sarv Sukh as PW-14 and Inspector Vidya Nand as PW-15 and closed prosecution evidence.
5. The accused were examined under Section 313 of the Code of Criminal Procedure and all the incriminating evidence was put to them, to which they denied and pleaded their false implication. It has been further stated that Ramotar, Hari Kishan, Budh Ram, Ram Kishan, Ran Singh and Karan Singh had inflicted injuries to the complainant party about which a complaint titled Balwan vs. Ram Avtar and others was instituted and they received twenty three injuries in the occurrence and they had also caused injuries to Karan Singh and Hari Kishan in self defence after snatching lathi from Budh Ram. They have examined Satish Kumar Ahlmad as DW-1.
6. The learned trial Court after appreciating the evidence on the file, acquitted the accused/respondent Nos.2 to 5 after giving them benefit of doubt vide judgment dated 13.8.2002.
7. Feeling dissatisfied with the aforesaid judgment dated 13.8.2002, Hari Kishan-complainant has preferred the present revision petition. Criminal Revision No.2251 o”
5. 8. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
9. Learned counsel for the complainant-revisionist has submitted that the trial Court has acquitted the accused-respondents on the following grounds :- (i) That the injuries on the person of accused were not explained ; (ii) The disclosure statement made by injured to other witness cannot be looked into ?. (iii) That provisions of Section 34 of the IPC are not attracted as occurrence took place abruptly.
10. It is submitted by counsel for the petitioner that all these above grounds are not available. Regarding non-explanation of injuries, it is submitted that the accused cannot be acquitted on the said ground alone. It is further submitted that the statement made by deceased is a dying declaration within the ambit of Section 32 of the Indian Evidence Act, and is admissible in evidence.
11. It is further contended that the trial Court has not given a finding that the complainant party is the aggressor. It is not the number of injuries, which were ten whereas in the case of accused there were twenty three injuries but the seriousness of injuries is a material fact.
12. It is contended that although in a revision petition against the order of acquittal, at the instance of complainant, the Revisional Court cannot convict the accused but the Revisional Court, where found that the judgment of trial Court is wrong, on the face of it, in that case, the order of acquittal can be set aside and the case can be remanded to the Criminal Revision No.2251 o”
6. trial Court for afresh decision. In support of his contentions, the learned counsel for the petitioner has relied upon the following authorities : - (1) K.Chinnaswamy Reddy vs. State of Andhra Pradesh and another reported in AIR 196.Supreme Court 1788 ; (2) Vimal Singh vs. Khuman Singh reported in 1998 (4) RCR (Criminal ) page 423 ; (3) Smt. Durga Devi @ Smt. Asha Rani vs. Vinot Kumar & others reported in 2005 (2) RCR (Criminal) page 784 ; (4) Jagbir vs. State of Punjab reported in 1998 (4) RCR (Criminal ) page 175 (5) Shakuntla vs. Brahma Nand reported in 2000 (3) RCR (Criminal ) page 621 ; (6) Amar Singh vs. Balwinder Singh & Ors. reported in 2003 (1) RCR (Criminal ) page 701 ; (7) Bhagwan Tana Patil vs. The State of Maharashtra reported in AIR 197.Supreme Court page 21 ; (8) State of Rajasthan vs. Hanuman reported in 2001 (1) RCR (Criminal ) page 157 ; (9) Paras Yadav vs. State of Bihar reported in 1999 (1) RCR (Criminal ) page 628 ; (10) Raj vs. State of Punjab and others reported in 2000 (2) RCR (Criminal ) page 695 ; (11) Meharban Singh vs. State of Madhya Pradesh reported 2002 (1) RCR (Criminal ) page 88 ; and (12) Vinot Kumar Arjun Das Gupta vs. State of M.P. reported in 2002 (3) R.C.R. Page 667. Criminal Revision No.2251 o”
7. 13. In reply to the above noted submissions, learned senior counsel for the accused/respondents has supported the judgment of the trial court. It is submitted that there were as many as twenty three injuries on the person of the accused party whereas the injuries on the person of the complainant and witnesses were ten in number. Non-explanation of injuries is fatal for the prosecution. Otherwise also, the prosecution witnesses were suppressing the genesis of the occurrence by concealing the factum of receiving injuries by the accused-respondents at the hands of complainant party. Cross case was also registered against the complainant party and the trial Court acquitted the complainant party in that case.
14. It is further submitted that High Court while exercising powers in the revision has very limited scope for interference. High Court can interfere only if an exceptional case for interference is made out which is apparent even from the authorities relied upon by the counsel for the petitioner/complainant. The trial court has discussed the fact that which of the parties is aggressor but the finding has not been given specifically. It must be in the mind of trial court that complainant party is an aggressor party. High Court cannot entertain appeal against the order of acquittal as envisaged in authority Krishan Swaroop vs. Govt. of NCT of Delhi reported in AIR 199.Supreme Court page 990. It is further submitted that High Court can interfere in revision in case there is a glaring defect that brought on the file which amounts to miscarriage of justice. To support this contention, learned counsel for the respondents has relied upon authority Satyajit Banerjee vs. State of West Bengal reported in 2005 (1) RCR Criminal Revision No.2251 o”
8. page 723.
15. It has been further contended that in authority Bindeshwari Prasad Singh @ B.P.Singh and others versus State of Bihar ( not Jharkhand ) and another reported in 2002(4) R.C.R. (Criminal) page 61., the Hon'ble Apex Court held that Reversional Court/High Court cannot re-appreciate the evidence in revision and set aside order of acquittal and order re-trial except in exceptional cases to prevent gross miscarriage of justice. There is nothing in the present case which shows that there is miscarriage of justice in the prosecution case. It is contended that Division Bench of this Court in authority Dharamjit Singh etc. vs. State of Haryana reported in 2009 Crl. L.J.Page 1641 held that the High Court has no power to reach at a finding different from the trial Court while exercising power under Section 401 of the Cr.P.C. in respect of revision against acquittal.
16. I have considered the submissions made by both the sides and have gone through the records of the case.
17. The learned trial Court has observed that the occurrence relates in two parts, one in the field and another near the plot of Amro. It is observed by the trial Court that regarding first occurrence, the statement of Hari Kishan cannot be taken as dying declaration. The other ground for acquittal by the trial court is that injury on the person of accused party have not been explained and on that account the prosecution witnesses are suppressing the genesis of the occurrence. Another ground for acquittal was that since the first occurrence has taken place abruptly and as such Section Criminal Revision No.2251 o”
9. 34 of the IPC would not be made applicable.
18. The accused before the trial Court have taken a stand that complainant party is aggressor but the learned trial Court has not decided this stand anywhere. It is a case of cross version and occurrence is virtually admitted by both the parties. The question in the present case is whether the accused have given injuries in their right of self-defence or not?. In case the observations made by the trial Court regarding non-applicability of Section 34 of the IPC is taken as it is, in that case also, the trial Court should have discussed about the role of the persons who have actually given injuries to the deceased. The trial court in paragraph No.15 of the judgment has referred to authorities State of Rajasthan vs. Madho and another, 1991 Supreme Court Cases (Cri) 1048, Ram Sunder Yadav and others vs. State of Bihar, 1998 Supreme Court (Cri) 1630 ; Bhaba Nanda Sarma vs. State of Assam 1977 SCC (Crl) 602 and Vijayee Singh vs. State of U.P. 1990 SCC (Cri) 378. In all these authorities it has been discussed that the prosecution is not obliged to explain the injuries on the person of the accused in all the cases and in all the circumstances.
19. The trial Court observed that since the witnesses are interested and as such their testimony cannot be accepted. These observations are against the law. In case of interested witnesses, the Court is required to scrutinize their testimony with more care and caution. Their testimony cannot be discarded merely on the ground that they are relative and interested witnesses. Moreover, as discussed above, the occurrence has been admitted by taking the plea of self-defence. Strange enough, the trial Criminal Revision No.2251 o”
10. Court has not dealt in the plea of self-defence of the accused.
20. It is not a simple case of injuries but a person has lost his life due to those injuries. The Courts are required to be sensitive in appreciating evidence more-so when it is a case of cross-version.
21. The authorities relied upon by both the parties mentioned above lays down the law that the revisional court should slow in interference in the order of acquittal and should interfere if the case of miscarriage of justice is made out. There is no dispute to that proposition of law. However, when the Court ignored the basic issue which goes to the root of the case in that case, it amounts to miscarriage of justice and this Court should interfere.
22. The learned trial Court observed that regarding the first occurrence, statement made by deceased to Hari Kishan cannot be taken as a dying declaration. That finding is against the spirit of Section 32 of the Indian Evidence Act. However, this is a matter of appreciation of evidence whether the statement of the witness i.e. Hari Kishan is to be accepted on the facts of the case or not.
23. On the facts of the present case, the learned trial Court could have arrived at the following conclusions :- (1) That complainant party is aggressor and the injury have been caused by the accused in their right of self-defence but the trial Court has not given any finding in spite of specific stand taken by the accused ; (2) Whether it is a case of free fight and what are the Criminal Revision No.2251 o”
11. consequences of free fight, that aspect of the case has also not been considered by the trial Court.
24. Mere fact that complainant party received ten injuries and the accused party received twenty three injuries and one of which was grievous is itself not a ground to discard the prosecution version in a case of cross- version.
25. In authority K.Chinnaswamy Reddy's case (supra), Hon'ble the Apex Court has held that in case the admissible evidence has not been considered, in that case the High Court can interfere in the revision and set aside the order of acquittal at the instance of private party, though the State may not have filed the appeal.
26. In authority Vimal Singh's case (supra) held that High Court cannot convert a finding of acquittal into one of conviction and can interfere in following exceptional cases :- “.. i) When it is found that order under revision suffers from glaring illegality or has caused miscarriage of justice ; ii) When it is found that trial court has no jurisdiction to try the case ; iii) Where trial court has illegally shut out the evidence which otherwise ought to have been considered ; iv) Where material evidence which clinches the issue has been overlooked. AIR 186.SC 178.relied.”
27. In the present case the trial Court has shy away to decide the fact whether right of self defence has accrued to the accused and as such the order under revision suffer from glaring illegality and amounts to Criminal Revision No.2251 o”
12. miscarriage of justice.
28. In authority Smt. Durga Devi @ Smt. Asha Rani's case (supra) Delhi High Court has just reiterated the assertions made in authority Vimal Singh's case (supra).
29. In authorities Jagbir's case (supra), Shakuntla's case (supra), Amar Singh's case (supra), Bhagwan Tana Patil's case (supra), State of Rajasthan's case (supra), Paras Yadav's case (supra), Raj's case (supra), Meharban Singh's case (supra), and Vinot Kumar Arjun Das Gupta's case (supra), it has been held that revisional Court can interfere if there is a miscarriage of justice.
30. Authority Krishan Swaroop's case (supra), is concerned in that case, the Hon'ble Apex Court has held that private party cannot file appeal against the order of acquittal. There is no dispute to that proposition of law.
31. Authority Satyajit Banerjee's case (supra) it has been held that de novo trial should not be ordered by the revisional Court. In that case, the order of remand was upheld by the Apex Court after giving some observations.
32. In authority Bindeshwari Prasad Singh @ B. P. Singh and others' case (supra) the Hon'ble Apex Court held that High Court cannot re-appreciate the evidence in revision petition and order of acquittal can be set aside except in exceptional cases to prevent gross miscarriage of justice. Criminal Revision No.2251 o”
13. 33. In authority Dharamjit Singh etc.'s case (supra) the Division Bench of this Court has held that in revision at the instance of private party High Court cannot reach at a finding different from the trial Court by re-appreciating the same. There is no dispute to the said proposition of law. However, where the trial Court shut the eyes in deciding most material points involved in the murder case, in that case this Court should interfere.
34. The revisional Court cannot pass the order of conviction in case of revision at the hands of a private party. Admittedly, the State has not preferred any appeal against the order of acquittal. However, the revisional Court can remand the case in case the complainant make out a case for remand. In my view the complainant has made out a case for remand for deciding the case afresh in the light of observations made above.
35. So, in view of the above discussion, the revision petition is accepted. The order of acquittal stands set aside and the trial court is directed to decide the case afresh on the basis of evidence available on the file. The parties are directed to appear before the trial a Court on 11.3.2013.
36. The trial Court shall be at liberty to appreciate the evidence afresh after hearing both the sides. The trial Court shall be at liberty to decide afresh whether on the facts of the case Section 34 of the IPC is applicable or No.?. The trial Court is also at liberty to appreciate the statement of Hari Kishan afresh regarding the fact stated by deceased to him which according to the prosecution amounts to dying declaration. Criminal Revision No.2251 o”
14. 37. A copy of this judgment be sent to the trial Court for strict compliance. February 14 , 2013 (K. C. PURI) sv JUDGE