Punjab-Haryana High Court
Davinder Kaur vs Raghbir Singh And Others on 19 March, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRR No.1560 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CRR No.1560 of 2012 (O & M)
Date of Decision: March 19, 2013
Davinder Kaur
... Petitioner
Versus
Raghbir Singh 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. Gurcharan Dass, Advocate,
for the petitioner.
Paramjeet Singh, J.
CRM No.31349 of 2012 Having heard learned counsel for the petitioner and for the reasons stated in the application, the application is allowed and the delay of 29 days in filing the revision is condoned.
CRR No.1560 of 2012 (O & M)
Instant criminal revision has been filed under Section 401 of the Code of Criminal Procedure (hereinafter referred to as "Code" in short) CRR No.1560 of 2012 2 against the order dated 10.01.2012 passed by the learned Additional Sessions Judge, Ludhiana dismissing the appeal preferred by the petitioner against order dated 29.03.2010 passed by the Judicial Magistrate Ist Class, Jagraon whereby the respondents have been acquitted in complaint case No.45/1 dated 5.5.1998, under Sections 148/326/324/323/452/149 of the Indian Penal Code (hereinafter referred to as "IPC" in short).
The brief facts of the case are that petitioner-complainant filed a complaint against the respondents alleging that she is a widow and is residing in her ancestral house with her sons Jaswinder Singh and Sukhwinder Singh and one daughter Varinder Kaur. The brothers of husband of the complainant were threatening her to vacate some portion of the house situated towards the eastern side of the residential house of the complainant. The complainant allegedly refused to do so. Thereafter, on 03.03.1999, at about 9.30 p.m, some persons knocked at her door. When Jaswinder Singh, son of the complainant opened the door, Manjinder Singh and Manpreet Singh gave blows of dang and balla respectively on the arm of Jaswinder Singh. Thereafter, Jaswinder Singh closed the main door of the house, but all the respondents came on roof of house of the petitioner through the house of Harbans Kaur with whom the petitioner and her family members were not in talking terms. Respondent no.2 gave gandasi blow on the leg of Sukhwinder Singh, respondent no.1-Raghbir Singh gave another blow of sabal to Sukhwinder Singh, respondent no.4-Avtar Singh gave dang blow on the upper side of the left eye-brow of Sukhwinder CRR No.1560 of 2012 3 Singh. Thereafter, all the respondents came down on the ground floor where the petitioner was crying for help. Respondents-Avtar Singh, Phuman Singh, Manpreet Singh and Manjinder Singh gave dang blows on the person of Jaswinder Singh and Ranjit Singh gave gandasi blow on the face of the petitioner which hit the lower side of the right eye of the petitioner and Avtar Singh gave dang blow on the forehead of the petitioner and Raghbir Singh hit the sabal on the left arm of the petitioner and other blow of sabal by Raghbir Singh was given on the right leg of the petitioner. The respondents demolished the eastern side of house of the petitioner and installed bricks in front of the door which was having opening towards the portion which was demolished by the respondent and thereafter, they fled away from the spot with their respective arms. The daughter of petitioner with the help of some other persons brought the injured to Civil Hospital, Jagraon where all were medically examined. The local police in connivance with the respondents did not take any action against them and rather pressured the petitioner to compromise the matter.
I have heard learned counsel for the petitioner and perused the record.
Learned counsel for the petitioner vehemently argued that in fact, no appeal was maintainable before the learned Additional Sessions Judge, Ludhiana, as in view of Section 378(4) of the Code, appeal against acquittal in a complaint case lies only before the High Court. Keeping in view the same, the order of learned Additional Sessions Judge, Ludhiana CRR No.1560 of 2012 4 be treated as nullity. However, the present petition be considered as application for leave to appeal. The learned counsel further argued that the learned trial Court has not properly appreciated the evidence on record and has recorded the findings which are not sustainable.
I have considered the contention of learned counsel for the petitioner.
The learned trial Court has rightly come to the conclusion that the statements of CW 1 Davinder Kaur (complainant), CW 2 Varinder Kaur and CW 3 Jaswinder Singh are highly discrepant regarding the number of accused persons involved in demolishing of their house and construction of wall by the accused. Even the statement of CW 4 Dr. R.S.Grewal clearly shows that he declared injury no.1 on the person of complainant as grievous without conducting any X-ray. The concerned orthopedician has also not been examined by the petitioner to prove the offence under Section 326 of the IPC. This Court in State of Haryana vs. Prem Singh 2007(2) CRC (Criminal) 537 has held that when radiologist has not been examined, X-ray report cannot be treated as proved and the opinion of the doctor could be of no avail and is not admissible in evidence. The trial Court has also rightly come to the conclusion that the complainant could not clarify as to whom the grievous injury was attributed. The petitioner- complainant has failed to corroborate the injury by the medical evidence, even Harbans Kaur whose house was allegedly used by the accused for entering in the house of complainant, has not been examined. The trial CRR No.1560 of 2012 5 Court after appreciating the evidence on record has rightly come to the conclusion that the complainant has failed to prove her case against the accused beyond reasonable doubt and acquitted the accused of the charges framed against them.
The scope of revision against acquittal has 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 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.
CRR No.1560 of 2012 6
The learned counsel for the petitioner failed to point out any illegality or perversity in the impugned orders or misreading of the evidence.
Taking into consideration the facts of the case in hand and following the ratio of judgment of the Hon'ble Apex Court laid down in Bindeshwari Prasad Singh's case (supra), the petitioner has no case. As such, this criminal revision is dismissed.
March 19, 2013 [ Paramjeet Singh ] parveen kumar Judge