CIVIL APPEAL 59 of 2006 on 18 August 2005

In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No.59 of 2006 (O&M)Date of Decision: March 17, 2011

Jivani

---Petitioner

versus

Kishori Lal and another

---Respondent

Coram:HONBLE MR. JUSTICE GURDEV SINGH

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Present:Mr.Rahul Rathore, Advocate,for the petitioner Mr.S.K.Yadav, Advocate,for respondents No. 1 and 2

Mr.J.S.Rattu, Deputy Advocate General, Haryanafor respondent No. 3

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GURDEV SINGH, J.

This revision petition has been preferred by the petitioner-complaint, Jivani, against judgment dated 18.8.2005 passed by JudicialMagistrate Ist Class, Mahendergarh, vide which he acquitted the respondents-accused, Kishori Lal and Umed Singh, of the offences under Sections 323, 325read with Section 34 IPC.

The prosecution story, in brief, is that the complainant, PW-2, hadtwo sons; namely Balwant and Ram Kumar. The wife of Kishori Lal-accused,who is related to her as the son of the elder brother of her husband, hadcontested the election of Sarpanch, in which she was opposed by her sons. Onthat ground there used to remain quarrel between the parties. On 17.6.1995, atabout 9-00 p.m., both the accused, under the influence of alcohol, came out sideher house and called her. When her son, Balwant came out, they startedabusing him. She also came out and asked the accused to go back to theirhouse. Upon which Kishori Lal-accused, gave a blow with his lathi on herright wrist, as a result of which she raised an alarm which attracted herdaughter-in-law, Imratkala, PW-3, to the spot. Kishori lal-accused, gave ablow with his lathi on her left elbow. Jagmal, PW-6 and Satish Kumar @Pappu, PW-7, came to the spot, who saved them from the accused. She andImratkala were removed to the hospital where they were medically examinedby Dr. Dharambir, PW-1, who found one injury each on their person and thesame were described in the Medico Legal Reports, Ex. PW1/B and Ex. PW1/C. He sent his ruqa Ex. PW1/A to the police station, on the receipt of which,Balu Ram ASI, came to the hospital and recorded the statement of thecomplainant. That statement was sent to the police station and on the basisthereof, report was recorded in the Roznamcha at Sr.No. 51. Injuries on theperson of the injured were subjected to Radiological examination, which wasconducted by Dr, Narbeer Singh, PW-4, who found fracture of both bones ofthe right fore arm of the complainant. On the basis of the Skiagram, Ex, PB, hemade his report Ex. PA and on the basis thereof, injury on the person of thecomplainant was declared as grievous. After the receipt of that report, FIRwas registered against the accused, on the basis of the report which was sorecorded in the DDR. The Investigating Officer went to the place of occurrence

and after inspecting the same prepared the rough site plan with correctmarginal notes. Both the accused were arrested on 25.6.1995 and after thecompletion of the investigation, the challan was put in before the JMIC, whofound sufficient grounds for presuming that the accused committed offencespunishable under Sections 323 and 325 read with Section 34 IPC. They werecharged accordingly, to which they pleaded not guilty and claimed trial. Toprove their guilt, prosecution examined Dharambir Singh, PW-1, Jeewani, PW-2, Imratkala, PW-3, Dr. Narbeer Singh, PW-4, Dharam Singh, PW-5, Jagmal,PW-6 and Satish Kumar @ Pappu , PW-7. After the close of the prosecutionevidence, the accused were examined and their statements were recorded underSection 313 Cr.P.C. All the incriminating circumstances appearing againstthem in the prosecution evidence were put to them in order to enable them toexplain the same. They denied all those circumstances and pleaded theirinnocence. They were called upon to enter on their defence but they did notproduce any evidence in their defence.

I have heard learned counsel for both the sides.

It has been submitted by counsel for the complainant that thefindings recorded by the trial court for acquitting the accused are perverse andillegal. The acquittal could not have been recorded on the basis of thosefindings as the same are not based on sound reasoning. In this case, where thehurt and grievous hurt were voluntarily caused by the accused, the non-examination of the Investigating Officer could not have been termed asmaterial and it cannot be said that the accused were in any way prejudiced onaccount of the non-examination of that Investigating Officer. The prosecutionwas not to suffer on account of non-proving of the FIR, as the report on thebais of which that FIR was recorded, was duly proved and the complainantwas examined in the Court, who fully supported the prosecution case and her

statement was corroborated by three eye witnesses. The trial court did not atall touch the statements of Jagmal, PW-6, Satish Kumar @ Pappu, PW-7 and itwas wrongly observed by the trial court that both the injured witnesses madecontradictory statements. No material discrepancy has crept in the testimonyof those eye witnesses. Without any evidence on the record, the trial courtrecorded a finding that Kishori Lal, accused, was of unsound mind at the timeof trial. Only suggestion to that effect was put to the prosecution witnessesand they showed their ignorance about that fact. Unsoundness of mind of thataccused was to be proved by positive evidence and no such finding could havebeen recorded merely on account of the ignorance of the prosecution witnessesabout that fact. It is a case where the finding of acquittal is to be convertedinto the finding of conviction.

On the other hand, it has been submitted by the counsel for theaccused that it cannot be said that the findings recorded by the trial courtsuffer from any such perversity or illegality. The injured witnesses made suchlike discrepant statements that the same do not inspire any confidence. TheInvestigating Officer was the most material witness as he was to prove thestatement made by the complainant, which ultimately formed basis of the FIR.Neither that statement was proved on the record nor the FIR itself and as suchthe very foundation of the case is missing. It was rightly concluded by the trialcourt from the statement made by the complainant that Kishori Lal, accused,was of unsound mind and that was a ground for acquittal of the accused. Theaccused has been materially prejudiced on account of non-examination of theInvestigating Officer and conviction of the accused could have been recordedon the basis of the contradictory statements made by the injured and the othereye witnesses.

Conclusion

Investigating Officer is always fatal to the prosecution. It is to be seen in thefacts and circumstances of each case as to how the accused has been materiallyprejudiced on account of non-examination of the Investigating Officer. In thepresent case, it cannot be said that the accused were in any way prejudiced onaccount of his non-examination and in case any one has been prejudiced, itwas the complainant, as the Investigating Officer was to prove on record thestatement made by her before him and which formed basis of the FIR itself.The report recorded in the DDR regarding this occurrence was duly proved onthe record as Ex. PC. If the accused were to confront the complainant with herstatement, made before the police, they could have easily done so by referringto that report. The acquittal of the accused could not have been recordedmerely on the ground that the Investigating Officer has not been examined bythe prosecution, keeping in view that the accused have not been materiallyprejudiced on account of his non-examination.

Learned trial court did not place reliance on the statements of theinjured witnesses on the ground that they made contradictory statements. Afterhaving gone through their statements, with the help of the counsel for theparties, it has been found that they made consistent statements inter se and didnot contradict each other on any aspect of the case. It is pertinent to note thatthe trial court totally ignored the statements of two eye witnesses; namely,Jagmal, PW-6 and Satish Kumar @ Pappu, PW-7, who fully corroborated thestatements of both the injured witnesses. It is strange that the trial court tookinto consideration the insanity of Kishori Lal-accused for acquitting him. Ifthat accused was of unsound mind during the trial then trial court was to followthe procedure as prescribed by the Code of Criminal Procedure. That could nothave been made a ground for acquittal of that accused. When that fact has cometo the notice of the trial court, it should have resorted to the procedure laid

down in the Code. Moreover, there is no positive evidence on record that thisaccused was of unsound mind during the trial. The complainant has shown hisignorance about his insanity and that could not have been made a ground forrecording a positive finding regarding the unsoundness of that accused. Itappears that the trial court tried to find one excuse or the other to acquit theaccused. The acquittal of the accused could not have been recorded for thereasons disclosed in the judgment of the trial court. Cogent, convincing andocular evidence was produced by the prosecution in the form of statements ofboth the injured witnesses, which were further corroborated by the said two eyewitnesses and the medical evidence. The finding of acquittal so recorded bythe trial court cannot be sustained.

Keeping in view Section 401(3) of the Code of CriminalProcedure, the finding of acquittal cannot be converted into the finding ofconviction while exercising revisional jurisdiction. But for the reasonsrecorded above, the acquittal of the accused is liable to be set aside and thecase is to be remanded back to the trial court for passing fresh judgment bykeeping in view the above said observation and by duly scrutinizing the wholeof the evidence produced by the prosecution.

Accordingly, this revision is hereby accepted. The acquittal of theaccused is set aside. The case is remanded back to the trial court for passing afresh judgment, as said above.

During the trial the accused were on bail. They are directed toappear before the trial court on 18.4.2011.

(GURDEV SINGH) JUDGE

March 17, 2011PARAMJIT