Punjab-Haryana High Court
Teeka Ram vs State Of Haryana And Others on 27 November, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRR No.116 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CRR No. 116 of 2010 (O&M)
Date of Decision: November 27, 2012
Teeka Ram
... Petitioner
Versus
State of Haryana and others
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers 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?
Present: Mr. Tajender K Joshi, Advocate,
for the petitioner.
Paramjeet Singh, J.
CRM No.2327 of 2010 For the reasons indicated in the criminal misc. application, the same is allowed. 110 days' delay in filing the criminal revision is condoned.
CRR No. 116 of 2010
Present criminal revision is filed challenging the order of acquittal passed by learned Additional Sessions Judge, Faridabad dated 11.04.2009 in Sessions Case No. RBT 50 of 2002/2204 arising out of FIR No. 67 dated 14.11.2002, under Sections 452, 307, 324/34 of the Indian Penal Code and Section 25 of the Arms Act, registered at Police Station CRR No.116 of 2010 2 City Palwal.
Brief facts of the case, mentioned in the judgment of the Trial Court is as under:-
"Kumari Poonam d/o Teeka Ram, resident of New Colony Palwal has informed the police, by making a statement Ex.PA, that she is a permanent resident of B- 37, L. New Colony Palwal and teaches computr education to the children in Adarsh Colony Palwal. She has two brothers, namely, Amit aged about 19 years and Sandeep aged about 13 years and has also two sisters. Today i.e. on 01.04.2002 at about 7.15 p.m. She along with her brothers and sisters, father and mother was prepared in her house. Meanwhile four boys, out of which two namely Asfak an Naveen, duly armed with swords and two others, who were armed with knives entered her house and started causing injuries to her mother and father with the help of swords and knives. She has further disclosed that well within their presence accused Asfak caused a sword blow on the left arm of his father, whereas other boy caused knife blow on the chest of his father, whereas accused Naveen caused an injury on the breast of her mother with the help of sword and all the accused caused injuries to her father and mother and upon hearing alarm of `Mar Diya Mar Diya", her younger sister Sangeeta and her brother Amit reached at the spot and witnessed the occurrence. She has also alleged that accused Wajif and Asfak and his two other companions entered their house and caused injuries to his mother Murti Devi and two her father Teeka Ram, who have shifted to Government Hospital, Palwal in CRR No.116 of 2010 3 injured condition and later on both have been shifted to Diamond Hospital."
Accused Asfak was arrested on 06.04.2002 where he had suffered a disclosure statement Ex.PE and in pursuance of disclosure statement, recovered two knives looking like a sword were recovered from the bushes situated near Senior Secondary School, Palwal and were taken into possession vide Memo Ex.PG . The accused Amzad was arrested on 07.05.2002. In pursuance of disclosure statement of Amzad, a knife was recovered and taken into possession vide memo Ex.PM/1. Similarly, accused Wazid who was interrogated on 07.05.2002 also suffered a disclosure statement Ex.PM and in pursuance of the disclosure statement a knife was recovered and taken into possession vide memo Ex.PM/1. After completion of investigation, report under Section 173 Cr.P.C. was prepared and challan was submitted in the Court. After completion of legal formalities, the case was sent to the Court of Sessions for trial. On finding a prima facie case, charge under Sections 307, 452, 324/34 IPC and Section 25 of the Arms Act was framed against the accused to which they pleaded not guilty and claimed trial.
The prosecution, to prove its case, examined PW1 complainant-Kumari Poonam, PW2 Tika Ram, PW3 Draftsman Anuj Kumar, PW4 Smt. Murti Devi, PW5 Insp. Ravi Dutt, PW6 Sub Inspector Bhagat Ram, PW7 ASI Randhir Singh, PW8 EHC Om Parkash, PW9 HC Sandeep Kumar, PW10 Dr. Sheela Bhagat, PW11 Dr.R. Joseph, PW12 Smt. Sunita, PW13 Amit Kumar and PW14 Sangeeta and closed its CRR No.116 of 2010 4 evidence.
Thereafter, statements of the accused Abdul Rahim and Wajif were recorded under Section 313 Cr.P.C. All incriminating circumstances were put to them. They denied the same and pleaded innocence.
The learned Trial Court, after trial, acquitted respondent Nos. 2 and 3 vide judgment dated 11.04.2009. Hence, the present criminal revision.
I have heard learned counsel for the petitioner and gone through the impugned judgment.
The learned Trial Court, after appreciating the evidence on record, observed as under:-
"28. The present case was registered on the statement of Kumari Poonam which is Ex.PA on the record and the first information report Ex.PA/2 was also registered disclosing the version given in the statement by the complainant. Therefore, for the purpose of judge/assess the guilt of the accused the first version given in Ex.PA is very relevant and in Ex.PA complainant Kumari Poonam has disclosed that on 01.04.2004 she was present in her house whereas her parents were present in the courtyard and his brother Amit was present in the other room meanwhile four accused, after jumping over the wall of the house entered her house and caused injuries to her parents. She has also disclosed that two accused were armed with swords whereas the other two were armed with knives. She has also disclosed the names of two assailants one as Asfak and other as Naveen and it is a fact that she had not disclosed even the description of the CRR No.116 of 2010 5 other two accused. Meaning thereby the name of accused Amjad and Wajif have been not disclosed as one of the assailant by the complainant. The reason may be that by that time accused Amzad and Wajif may not have been known to the complainant but Kumari Poonam when appeared in the witness box as PW1 has disclosed that even she was not aware about the name of accused Naveen, Asfak at that time and it was her brother Amit who had disclosed the name of the two accused to her. The statement of Amit who has appeared as PW13 is also very relevant to be referred here as the witness has testified on oath that he was only known Asfak and told his name to the police, Therefore, even after completion of this trial it remained in dark as who had disclosed the names of these two accused to the police as assailants. Complainant Poonam has stated that she did not know the name of four accused and her other brothers and sisters knew their names whereas her sister Sangeeta has appeared in the witness box as PW12 and she has not disclosed as how this occurrence had appeared and she has only disclosed that blood stained earth and blue colour dupatta was taken by the police in possession vide memo Ex.PT/1. She has not disclosed in her statement that accused Amzad and Wajif had also entered her house and caused injuries to her parents. Now take the statement of injured witness Tika Ram who has appeared in the witness box as PW2 and witness has stated in cross examination that Amit has told him the name of children of Abdul Rahim, meaning thereby, even injured was not aware about, the name of accused at that time also and it was the witness Amit PW13 who has CRR No.116 of 2010 6 disclosed the name of accused to injured Tika Ram and similar is the statement of PW4 Murti who had disclosed in her statement that Amit had told us the name of assailants. The statement of Investigating Officer is also perused very carefully and he has also no where disclosed from where he came to know that accused Amzad and Wajif were two other assailants whose reference has not been given in the statement Ex.PA.
29. The case may be assessed with another angle also as the occurrence had taken place on 1.4.2002 at 7.15- 7.30 PM whereas the statement of Poonam was recorded on 2.4.2002 at about 12.00 Noon where the Medical Officer has opined on the request of the police that the injured were fit to make the statement. Therefore, the delay has played a very vital role and it has destroyed the case of the prosecution. Further, when the injured had been examined under Section 161 Cr.P.C. on 24.4.2009 Shri Tika Ram has disclosed that he gained consciousness after 4-5 days and even the medical officer has opined him fit to make the statement on 2.4.2002 at 9.15 A.M., therefore, recording the statement of injured after a gap of more than 24 days is going seriously against the prosecution. When the names of the accused had not appeared in the first information report and their names have been introduced after a gap of three week then most certainly it was the duty of the Investigating Officer to arrange a test identification parade to make it sure that it were the accused and none else who had caused injuries to the injured. The case has become further doubtful when an application u/s 319 of the Code of Criminal Procedure was moved in CRR No.116 of 2010 7 which the name of accused Naveen was pleaded to be substituted in which it was prayed that accused Firoj Khan was the real culprit and in fact Firoj Khan was present and caused injuries. Accused Naveen has been arrested by the police and produced in the Court and even still facing trial before the Juvenile Justice Board and moreover the application was dismissed but the complainant party has not gone in revision or appeal against this order. Therefore, one inference can be drawn that even the injured and the complainant were not sure whether it was accused Naveen or Firoj who had crossed over the wall and caused injuries. Therefore, the case of the prosecution is very doubtful to prove the identity of the accused and seriously lacking in proving that accused Wajif and Amzad were present at the spot and caused injuries.
30. The occurrence must have taken place as six injuries on the part of the injured are evident to the fact that injured Tika Ram & injured Ram Murti have received injuries must and similarly two knife blows on the person of a lady Smt. Murti Devi is further evident that some one had caused injuries to her but it is not suffice and it was the duty of the prosecution to prove that it were the accused and none else who had caused injuries to the injured. The nature and numbers of injuries are as such which cannot be suffered self- inflicted or can be received from the friendly hands but merely presence of six injuries on the person of an injured are not sufficient to held the accused guilty for causing injuries to the injured. The prosecution has examined Miss Poonam PW1 who was not known to the CRR No.116 of 2010 8 accused and she has affirmed that names of the accused were not known to her and since test identification parade has not been conducted, therefore, her identification in the court that too after a gap of more than three years is not sufficient for the purpose of conviction and similarly, the statement of injured witness Tika Ram PW2 who has disclosed that his son Amit told him the name of children of Abdul Rahim is not sufficient to inspire the confidence of the court to rely the fact that these two accused had caused injuries to injured Tika Ram. The statement of witness Amit PW13 is also very shaky in nature as first of all he has introduced a new story that accuses Asfak and Wajif came on motorcycle while chazing her sister Poonam and his brother Sandeep and even chazed them even to their house. Whereas PW2 complainant has not disclosed this fact in her statement Ex.PA as well as in her statement recorded in the Court as PW1 and the case has further been deteriorated when witness Amit has disclosed that only accused Asfak was known to him and he was not aware about the name of the other accused. So, as commented earlier, the fact remained still in dark as who had disclosed the name of accused Amzad and Wajif to the police as assailants.
31. The copy of judgment Ex.D3 passed by the court of Shri A.K. Raghav, the then Special Judge, Faridabad passed in case No. 41 of 2003 decide don 7.2.2007 is evident to the effect that Sandeep, the brother of the complainant of the present case and accused Amzad,Asfak, Firoj etc. are known to each other and frequently facing each other in criminal trial also. In this CRR No.116 of 2010 9 case also a defence is taken that Firoj Khan had received injuries from the hands of Sandeep and Mandeep and in order to prepare a defence accused Amzad Khan and Asfak all involved falsely. In Sessions case No. 41 of 2003 also it was the allegations that Sandeep was abused and called with derogatory language indicating his caste by accused Asfak, Amzad, Firoj Khan etc. and Sandeep has appeared as a witness against them in the trial as PW7 and the result ended in the acquittal of the accused in the case. The report under Section 173 Cr.P.C. Ex.D4 is evident to the effect that Firoj Khan had received injuries and on the basis of his statement a case u/s 307/34 IPC was registered against the accused Sandeep and Mandeep alias Moni. It is further evident from Ex.D2 that the statement of Firoj Khan injured was recorded by Investigating Officer Bhagat Ram ASI on 3.4.2002 whereas Firoj Khan had received injuries on 1.4.2002 at 6.30 p.m. In this case injured PW2 Tika Ram and other injured Murti Devi PW4 have stated in their statements that it was accused Firoj Khan who had reached at their house and caused injuries whereas the Investigating Officer has admitted in the cross examination that Firoj Khan was admitted in the hospital at 6.30 pm on 1.4.2002. Therefore, the statements of injured witnesses are also very doubtful regarding involvement of the accused in the case.
32. The argument of the prosecution that it is the intention and knowledge which had to prove the nature of injury is not relevant here as it is no where in the question and the number of nature of injuries can only be scrutinized when the case of the prosecution is CRR No.116 of 2010 10 otherwise proved. When there is a serious doubt on the involvement of the accused in this crime it is a futile exercise to refer the nature and number of injuries on the person of injured. However, the role of Dr. R. Joseph PW1 is not that fair as he has not even consulted the medicolegal reports before giving such an important opinion and again judgment Ex.D3 is evident that the same doctor has given a medical opinion in favour of Sandeep Kumar in some other case. Moreover, it is always a prerogative of the medical officer who conducted the medicolegal report on the injuries to issue the opinions regarding the number and nature of injuries but any how since in this case it is hardly relevant to refer the number and nature of injuries as it would not effect, the result of the case.
33. The test identification parade has not been arranged whereas the name of these two accused was not mentioned in the first information report. The Hon'ble High Court in cases Pardeep Kumar vs. State of Haryana 2005(3) RCR (Criminal) 959, P&H DB has held that where the name of one of the accused is not mentioned in the first information report and his identification was done in the court for the first time, the identification of such accused in the court should not be relied upon especially when his name has not been disclosed before the police. As commented in the earlier part of the judgment also the names of these two accused have been disclosed to the police by the injured witness on 24.4.2002 when their statements have been recorded and therefore, the non-arranging the test identification parade is very fatal for the case of the CRR No.116 of 2010 11 prosecution and the identification in the court that too after a long time, especially when the name of these two accused have not been mentioned in the first informtion report, it is not safe to rely upon the statements of such witnesses. The Investigating Officer Bhagat Ram PW6 has moved application Ex.PC and Ex.PA to Dr. R. Joseph on 2.4.2002 and at 9.25 am the Medical Officer declared Tika Ram and Murti Devi fit to make statement vide opinions Ex.D1 and D2 whereas the Investigating Officer has avoided to record down the statements of the injures and prefer to register the case on the statement of Kumari Poonam who met him in the hospital on that very day. It is also eye raising fact that when the two injured were fit to make the statement on 1.4.2002 and 2.4.2002 their statements were recorded u/s 161 Cr.P.C. on 24.4.2002. The name of accused Firoj as one of the assailants by moving application u/s 319 Cr.P.C. And lateron supported by the witness in the court also create a serious dent in the prosecution story as Firoj was admitted in the hospital at that time and his presence is doubted at the place of occurrence and therefore, the defence is justified to the extent that name of these two accused namely Wajif and Amjad were introduced for the purpose to put pressure in the trial of Sandeep who is son of Tika Ram and Murti Devi injured and brother of complainant Poonam PW1 and other witness Amit who has appeared as PW13 in the Court."
Learned counsel for the petitioner has not been able to point out any infirmity or illegality in the impugned judgment either on facts or on law which would call for interference by this Court. CRR No.116 of 2010 12
Admittedly, FIR was lodged and State has opted not to assail the findings of the Trial Court.
Dealing with the scope of revision against acquittal at instance of private party,the Hon'ble Supreme Court in the matter of Akalu Ahir versus Ramdeo Ram, 1973(3) SCC 583 has observed as under:-
"This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but it was emphasized that this jurisdiction should be exercised only in exceptional cases when "there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice." In fact of prohibition in Section 439(4) Cr.P.C. for the High Court to convert a finding of acquittal into one of conviction, it makes all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial. No doubt, in the opinion of this Court, no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court's power of ordering re-trial can be laid down. This court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision:
i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused;
ii) Where the trial Court has wrongly shut out evidence which the prosecution wishes to produce;CRR No.116 of 2010 13
iii) Where the appellate court has wrongly held the evidence which was admitted by the Trial Court to the inadmissible;
iv) Where the material evidence has been overlooked only (either) by the trial Court or by the appellate court; and
v) Where the acquittal is based on the compounding of the offence which is invalid under the law.
These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal."
Further, the scope of revision against acquittal has also been well discussed by the Hon'ble Apex Court in a judgment rendered in Bindeshwari Prasad Singh alias R.P. Singh and others versus State of Bihar (now Jharkhand) and another, 2002(4) R.C.R. (Criminal) 61 (SC), wherein the Hon'ble Apex Court has observed that in the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It is further observed that the High Court should not re-appreciate the evidence to reach a finding different than the one arrived at by the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. It is further observed that in exercise of revisional jurisdiction against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and it should not constitute CRR No.116 of 2010 14 itself into an appellate court which has a much wider jurisdiction to go into questions of facts and law and to convert an order of acquittal into one of conviction. It cannot lose sight of the fact that when a re-trial is ordered, the dice is heavily loaded against the accused, and that itself must caution the court exercising revisional jurisdiction.
Similarly, Hon'ble Supreme Court in the matter of Johar and others versus M/s Mangal Prasad and another, (2008) 3 SCC 423 with regard to revision against acquittal by private party has held as under:-
"17. The approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure, it exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred, but severally restricted, particularly when it arises from a judgment of acquittal."
Now, this is a settled position of law that power of this Court in a revision against the judgment of acquittal is limited. This court while exercising the revisional jurisdiction will not re-assess the evidence. Even if two views are possible on the re-assessment of the evidence, this Court while exercising the revisional jurisdiction ordinarily shall not disturb the order of acquittal passed by the learned Trial Court.
In the opinion of this Court, learned Trial Court has not left or overlooked any important evidence which could prove the guilt of the CRR No.116 of 2010 15 accused. Trial Court has not committed any jurisdictional or procedural error which would have vitiated the trial. No interference is called for.
Dismissed.
November 27, 2012 [Paramjeet Singh] vkd Judge