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2012 DIGILAW 1709 (PNJ)

Sushil Kumar v. State of Punjab and another

2012-12-03

PARAMJEET SINGH

body2012
Paramjeet Singh, J.— This criminal revision has been filed by the petitioner – Sushil Kumar against judgment dated 18.11.2011 passed by learned Additional Sessions Judge, Bathinda, thereby dismissing the appeal preferred by the petitioner against the judgment dated 12.04.2010 passed by learned Judicial Magistrate First Class, Phul, vide which respondent no. 2 has been acquitted of the charge framed against him. Brief facts of the prosecution case are that on 08.05.2002 petitioner moved a complaint against respondent no. 2-Rajinder Singh, Sadhu Singh and son of Rajinder Singh to Senior Superintendent of Police, Bathinda that he and his relative jointly own some property at Amrik Singh Road, Bathinda. Dispute with regard to the said property was pending in the Court. The above mentioned Rajinder Singh etc. were helping him in the said litigation due to friendship. In order to pursue the litigation, the petitioner executed two registered sale deeds dated 26.12.2000 and 07.12.2000 for 243 square yards in the name of respondent no. 2-Rajinder Singh, who promised that after winning the case property would be returned to him. Thereafter, on 07.02.2001, respondent no. 2 obtained a sum of Rs. 2 lacs from the petitioner in the presence of his relative Bachna Dass. Rs. 1,50,000/- was given to the petitioner at his residence on 13.04.2001 in the presence of Surjit Singh. Respondent no. 2 had received the above said amount to pursue the litigation on behalf of the petitioner. Accused – Rajinder Singh did not pursue the litigation after receiving the said amount but spent the same. The petitioner demanded money and plot back from the accused many times, but he put off the matter on one pretext or the other. On 06.05.2002 at about 11. 00 a. m the petitioner and Sarup Singh were sitting in his house at Amrik Singh Road. Accused along with his son and Sadhu Ram came there and threatened that he would be taught a lesson since he was demanding money from them. Rajinder Singh threatened the petitioner with a pistol. The accused persons started beating the petitioner. The petitioner raised cries. Sarup Singh and other persons rescued the petitioner from the accused person. Accused were threatening if he demand money and plot from them, then they would be killed. After completion of the investigation, challan against the accused was presented in the Court. Finding a prima facie case against respondent no. The petitioner raised cries. Sarup Singh and other persons rescued the petitioner from the accused person. Accused were threatening if he demand money and plot from them, then they would be killed. After completion of the investigation, challan against the accused was presented in the Court. Finding a prima facie case against respondent no. 2, charge under Section 8 of the Prevention of Corruption Act, 1988 and Section 420 of Indian Penal Code was framed against the accused to which he pleaded not guilty and claimed trial. The prosecution, to prove its case, examined PW1 Gurdeep Singh Patwari, PW2 Bachna Ram, PW3 Sushil Kumar, PW4 Surjit Singh, PW5 Basant Singh, PW6 Mann Singh, PW7 Balbir Singh Khaihra, PW8 Mahesh Kumar, PW9 Teja Singhand closed its evidence. Thereafter, statement of the accused was recorded under Section 313 Cr. P. C. All incriminating circumstances were put to him. He denied the same and pleaded innocence. The learned Trial Court, after trial, acquitted respondent No. 2 vide judgment dated 12.04.2010. Against the same judgment, the petitioner preferred an appeal, which was also dismissed by the learned Addl. Sessions Judge, Bathinda vide judgment dated 18.11.2011, Hence, the present criminal revision. I have heard learned counsel for the petitioner and gone through the impugned judgments. The learned Addl. Sessions Judge, after appreciating the evidence on record, observed as under:- “16. After considering the submissions of the learned Addl. PP for the appellant/State, learned counsel for the appellant/complainant and learned counsel for the respondent/accused. I am of the view that very serious duty is cast on the prosecution to bring on record quality evidence in order to substantiate allegations against the accused. In the case in hand, PW2 Bachna Ram did not support the version of the prosecution. He was declared hostile on the request of learned Addl. PP who crossexamined him in length. Mahesh Kumar PW8 was also declared hostile on the request of learned Addl. PP who cross-examined him in length but failed to bring any fact in favour of the prosecution. Surjit Singh PW4 stated in the examination in chief that Sushil Kumar borrowed sum of Rs. 2 lacs from him. In the cross-examination by leaned defence counsel, he did not support version of prosecution. Learned Addl. PP again cross examined him with the permission of the court but he did not support the version of prosecution. Surjit Singh PW4 stated in the examination in chief that Sushil Kumar borrowed sum of Rs. 2 lacs from him. In the cross-examination by leaned defence counsel, he did not support version of prosecution. Learned Addl. PP again cross examined him with the permission of the court but he did not support the version of prosecution. Basant Singh PW4 deposed that Sushil Kumar had borrowed sum of Rs. 1,50,000/- from him. They went to the house of accused at Kotha Guru Ka and handed over money to him. In the cross examination he stated that he was selling his crop through the agency of Sushil Kumar. He stated that he has got loan of Rs. 50/60 thousands from the society. He had purchased old tractor so Basant Singh is not proved to be a big financier but is a medium agriculturist. So, it is not believable that Sushil Kumar borrowed money from him for further payment to the accused. Mann Singh PW6 is marginal witness of the receipt. There is only statement of Sushil Kumar PW3. He made many improvements in the Court. In the original complaint Ex. P1 it is not mentioned that accused represented that he was having very good relations with Badal family. The allegations levelled in Ex. P1 are general in nature. In case Hans Raj cited (supra) some facts were mentioned in the FIR, improvements were made during the trial. Hon'ble Supreme Court of India held that facts could not be taken into consideration to convict the accused. The accused has proved complaint filed with SSP Bathinda Ex. DW1/A on 18.04.2002 whereby directions were given to DSP (City), Bathinda to inquire into the matter. There is specific allegation leveled against Sushil Kumar complainant and others that they forcibly entered into his house. They disconnected telephone connection. They gave beating to Sadhu Singh and turned him out of the house whereas instant complaint Ex. P1 was filed on 08.05.2002. The accused has also proved copy of plaint dated 08.05.2002 whereby suit for permanent injunction was filed against complainant Sushil Kumar and others. Complainant Sushil Kumar never challenged the sale deeds executed in favour of Rajinder Singh accused in the Civil Court. Learned Trial Court has rightly held that testimony of Sushil Kumar PW3 does not inspire any confidence and prosecution failed to prove the charge against the accused. Complainant Sushil Kumar never challenged the sale deeds executed in favour of Rajinder Singh accused in the Civil Court. Learned Trial Court has rightly held that testimony of Sushil Kumar PW3 does not inspire any confidence and prosecution failed to prove the charge against the accused. Since well reasoned judgment is passed by the learned Trial Court, there is no ground to interfere in the same. ” 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. Admittedly, FIR was lodged and State has opted not to assail the findings of the learned Lower Appellate Court. 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. 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; 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. ” 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. Hon'ble Supreme Court in the matter of Johar and others versus M/s Mangal Prasad and another, (2008) 3 SCC 423 in para 17 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 Lower Appellate Court, as well as, Trial Court. In the opinion of this Court, learned both the Courts below have not left or overlooked any important evidence which could prove the guilt of the accused. Both the Courts below have not committed any jurisdiction or procedural error which would have vitiated the trial. No interference is called for. Dismissed.