CIVIL APPEAL 572 of 2001 on 20 October 2000

IN THE HIGH COURT FOR THE STATES OF PUNJAB &HARYANA AT CHANDIGARH...

Criminal Revision No.572 of 2001

Decided on : April 30, 2009

Subhash

... Petitioner

VERSUS

The State of Haryana, etc.

... Respondents

CORAM :HON'BLE MR.JUSTICE A.N.JINDAL

Present:Mr.V.D.Sharma, Advocate for the petitioner.

Ms.Rajat Goyal, Assistant Advocate GeneralHaryana.

Mr.Munish Garg, Advocate.

-A.N.JINDAL, J.

Challenge in the present petition filed by Subhash –complainant is to the judgment dated 20.10.2000 passed by AdditionalSessions Judge, Sirsa, whereby, accused/ respondents Raju alias RajKumar, Anand Sharma, Pappu alias Ramesh Kumar, Ram Kumar, Tonyalias Anil Bishnoi and Lila Dhar (herein referred as `respondents') wereacquitted of the charge under Sections 148, 449, 302/149 of the IndianPenal Code.

A brief resume of facts is that on 20.5.1997, on receiving aninformation about arrival of dead body of Hoshiar Singh in the hospital, Inspector Balbir Singh along with other police officials reached thehospital chowk, where he came across the complainant, who gotrecorded his statement to the effect that Hoshiar Singh (deceased) hiseldest brother, was engaged in sale of milk and milk products. On19.5.1997, they had gone to attend the marriage of the daughter of ShriChandu Saini. The respondents Lila Dhar Saini and Tony alias AnilBishnoi, Advocates were also present there and were making videomovie of the females attending the marriage party. Hoshiar Singhobjected to it, which resulted into exchange of hot words between himand the accused. Hoshiar Singh smashed the rear screen of the gypsyowned by accused. Lila Dhar Saini left the place quietly, but developeda grudge against Hoshiar Singh. On the next day i.e. 20.5.1997, atabout 9.30 p.m, the complainant Subhash was standing at the corner ofGali Golchawali in the area of Nohria Bazar, Sirsa. Ramesh son ofKhayali, Deepak son of Om Parkash and Hoshiar Singh reached there ona scooter and started talking with each other. In the meantime, a gypsybearing Reg.No.DL-2C/8088 arrived there at enormous speed andaccused Lila Dhar Saini, Tony and Anand Sharma alighted from it.Another jeep carrying accused Raju, Ram Kumar and Pappu also arrivedthere. Lila Dhar Saini was armed with a rifle, Tony was armed with apistol, Anand Sharma was armed with a gun and Ram Kumar was armedwith a sword, whereas, the other two accused persons were emptyhanded. All the accused exhorted to teach a lesson to Hoshiar Singh forthe unsavory and unpleasant incident of the previous evening. HoshiarSingh sensing the imminent danger to his life, entered the house of Shubh Karan Soni, finding its main entrance lying open. The accusedchased him and accused Lila Dhar Saini placed the barrel of his rifle onthe chest of Hoshiar Singh and fired the fatal shot. Thereafter, all theaccused left the scene. The complainant shifted his brother HoshiarSingh to the hospital, where he was declared `brought dead'.

On the aforesaid version of the complainant, a case wasregistered, inquest proceedings were conducted on the dead body ofHoshiar Singh and a medical board conducted the autopsy on the deadbody. After completing the necessary formalities and recording thestatements of the witnesses, the police filed charge report in the court.

The accused were charge-sheeted for the allegedcommission of offences punishable under Sections 148, 302 read withSection 149 of the Indian Penal Code and accused Lila Dhar was alsocharge-sheeted under Section 302 IPC, to which all the accused pleadednot guilty and claimed trial.

Arguments

The prosecution in order to bring home the charge,examined Ramesh Kumar, Reader to JMIC, Bahadurgarh (PW1), SumerSingh, Reader to SDJM, Fatehabad (PW2), Ved Parkash, Ahlmad(PW3), Suresh Kumar (PW4), Inderjit, draftsman (PW5), MHC SitaRam (PW6), HC Amar Nath (PW7), Vijay Kumar (PW8), Dr.JoginderSingh (PW9), Constable Om Parkash (PW10), Constable RajinderSingh (PW11), Ravinder Kumar, Reader to JMIC, Hissar (PW12), Sub-Inspector Maninder Singh (PW13), Beant Singh (PW14), SubhashChander (PW15), Constable Shanker Lal (PW16) and Inspector BalbirSingh (PW17).

In their statements under Section 313 of the Code ofCriminal Procedure, all the accused denied the allegations. Accused LilaDhar Saini further stated that he has strained relations with Rajinder,Municipal Commissioner and is very close to complainant Subhash. Hefurther alleged that both of them belong to opposite political camps andbecause of the conflicting interests, Rajinder got him implicated in thisfalse case as also his real brother-in-law Ram Kumar, his real nephewPappu and his friends and supporters, namely; Anand, Toni and Raju.The other five accused also took the similar stand. In defence, theyexamined Ramesh Kumar (DW1). However, the trial resulted inacquittal. Hence, the present revision.

Arguments heard. Records perused.

On scrutiny of the evidence led on record, it transpires thatthe testimony of complainant Subhash (PW15), an alleged eye-witness,does not inspire the confidence of the Court for want of corroborationfrom the testimony of Inspector Balbir Singh (PW17) or even from themedical evidence on record. Presence of the complainant at the placeof occurrence is doubtful. Absolutely, there is no evidence on the recordabout involvement of the respondents in the commission of the crime.The presence of Deepak and Ramesh Kumar (DW1) is admitted by theprosecution and this fact is also proved from the medical memo (Ex.PL),therefore, there are no reasons to disbelieve the statement of RameshKumar (DW1) that the complainant was not present at the scene ofoccurrence. The medical evidence is contradictory to the ocular version.The doctor detected a sharp cut on the inner side of the pent below the

belt area. He also detected a sharp cut on the right side of the back of theshirt of the deceased. These cuts had nothing to do with the injuriescaused by the fire arm. The doctor has very specifically stated that boththe cuts were by the tip of the weapon, like naked sword and could resultfatal, if the deceased had kept the naked sword on his back under hisshirt and pent and pulled it out in a bid to save himself. This version isin consonance with the defence version. The accused had maintained intheir defence that the deceased Hoshiar Singh was a desperate man, whowas got booked by the respondents for a murderous attack on SatnamSingh and he was also booked for attacking one Puran Chand. Thedeceased was habitual of keeping a sword under his shirt, which wasstuck in the belt area. Thus, it seems that he pulled the sword out, afterseeing the assailants. The said sword did not belong to Ram Kumar.The Investigating Officer did not pick up the finger prints on the swordfor the reasons best known to him. Though the prosecution cited someeye-witnesses in the case, yet none of them was examined to give theeye-witness account. The presence of alleged eye witness Subhash(brother of the deceased), who was examined as PW15, is doubtful. Thedeceased admittedly was a criminal as admitted by complainant Subhashhimself. Resultantly, it could be inferred that the prosecution has notcome with the true version and has suppressed the genesis of occurrence,and that the defence version is believable.

The law is well-settled that while hearing a revision/appealagainst an order of acquittal, interference would be called for only whenthe judgment is palpably perverse and is based on a misreading of the evidence. However, it is equally settled that where two views arepossible, then the one taken by the Trial Court should not be disturbed.

As a result of the above discussion, the revision petitionfails and the same is hereby dismissed.

April 30, 2009 `gian'

( A.N.JINDAL ) JUDGE