High Court Punjab-Haryana High Court

Narender Kumar vs Dalip Singh on 3 September, 2008

Punjab-Haryana High Court
Narender Kumar vs Dalip Singh on 3 September, 2008
Criminal Misc. No.730-MA of 2007                                   -1-

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IN THE HIGH COURT OF PUNJAB AND HARYANA
              AT CHANDIGARH

                         Criminal Misc. No.730-MA of 2007
                         Date of decision : 3.9.2008

Narender Kumar                                               .....Appellant

                         Versus
Dalip Singh                                                  ...Respondent

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CORAM : HON'BLE MR. JUSTICE S. D. ANAND

Present: Mr. G.S.Sidhu, Advocate for the petitioner.

            Mr. S.K. Jain, Advocate for the respondent.

S. D. ANAND, J.

The appellant-complainant has filed a plea on the authority of

the provisions of Section 378 (4) of the Code of Criminal Procedure to

obtain leave to appeal against order dated 23.8.2007, vide which the

learned Trial Magistrate recorded a finding of exoneration in favour of

respondent/accused Dalip Singh. His co-accused Gobind Ram is

indicated in the impugned order itself as dead. The other

respondents/accused were not ordered to be summoned by the learned

Trial Magistrate.

The allegations, levelled by the appellant/complainant in the

complaint, were as under:-

On the evening of 10.11.1996, the appellant/complainant was

celebrating Diwali festival with other members of his family when

respondent/accused no. 3 Dalip Singh came over there while he was under

the influence of liquor and started hurling abuses. When the
Criminal Misc. No.730-MA of 2007 -2-

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appellant/complainant desired him to get away from there,

respondent/accused left the spot but not without reiterating the abuses. At

about 8.00 P.M., respondent/accused Dalip Singh along with others forced

their entry between the house of the complainant/appellant. At that point

of time, they were armed with lathis and gandasis. On reaching the house

of the complainant, they initially raised a lalkara, Thereafter,

respondents/accused belaboured the appellant/complainant with lathis and

fist blows. When Ram Pal brother of appellant/complainant, endeavoured

intervention on hearing a raula raised by the latter, the respondent/accused

gave a Gandasi blow to him. Om Parkash and few women folk, belonging

to the family of complainant, came over there on hearing the alarm raised

by the complainant and they rescued them. The respondent/accused left

the scene of occurrence but only after holding out a threat that the

appellant/complainant would not be allowed to stay alive if they got an

other opportunity in future. The appellant-complainant was treated in the

hospital. Inspite of having been approached a number of time in the

relevant behalf, the police did not take any action against the

respondent/accused. Instead thereof, it foisted a false case against

complainant and two members of the complainant party.

During the course of preliminary evidence, complainant

stepped into the witness box as PW-1 and examined PW-2 Ram Pal, PW-

3 Dr. Viresh Bhushan and PW-4 Om Parkash.

On perusal of the preliminary evidence, the Court ordered the

summoning of only Gobind Ram and Dalip Singh to face a trial under

Sections 323, 452 and 506 IPC. As already indicated in the impugned

order itself Gobind Ram is dead. That explains the filing of the present

petition against only Dalip Singh.

Criminal Misc. No.730-MA of 2007 -3-

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Learned Trial Court invalidated the prosecution presentation

by observing that complaint in respect of occurrence dated 10.11.1996

have been filed after unexplained and inordinate delay on 30.1.1997 i.e.

after delay of almost 2-2-1/2 months. Apart from noticing that “no

explanation whatsoever is forthcoming on record for this delay” learned

Trial Court observed that the present complaint is appeared to be counter

blast of a State case which petitioner and some other were facing in case

FIR No. 262 of 1996, Police Station, Nathusari Chopra under Sections

452, ,323, 324, 326 read with Section 34 IPC. The learned Trial Court, in

order to draw sustenance from finding of exoneration also drew

sustenance from the fact that no independent witness had entered the

witness box to reiterate the presentation on behalf of the complainant and

the alleged eye witness examined by the petitioner/complainant were also

related to him. The fact that the petitioner/complainant was not proved to

have notified the offence to the police was also noticed by the learned Trial

Court while observing that “this casts serious doubt in the mind of the court

that the occurrence took place in the manner depicted by the present

complaint and that the accused was aggressor party. It appears that

present complaint is a counter blast of the State case.”

Learned counsel for the appellant argued that the impugned

finding is perverse in view of the own finding by the learned Trial

Magistrate conceding the factum of the impugned occurrence in which both

the parties were participated.

Learned counsel is not on a firmer footing when he so argues.

Learned Trial Magistrate recorded adequate reasons to discard the

presentation made by the appellant/complainant. As already indicated,

learned Magistrate invalidated the presentation made by the
Criminal Misc. No.730-MA of 2007 -4-

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appellant/complainant on account of fact that the (private) complaint had

been filed after unexplained and inordinate delay of almost 2-21/2 months.

It is also noticed that offence is not proved to have been notified to the

police. The fact that the presentation by the appellant/complainant was

supported only by relation witnesses and not by any independent witness

was also noticed by the trial Magistrate to draw sustenance in support of

the finding of exoneration.

Learned Trial Magistrate, noticed that the present prosecution

was a counter blast of the case in which the complainant/appellant and few

others are being prosecuted. It cannot, thus, be said that the present case

represents a cross-case.

In the other case, the petitioner and his co-accused are

averred to have been convicted and an appeal filed by them is pending

consideration with the Court of Sessions. In the light thereof, learned

counsel for the appellant/complainant raised a plea that if the present

appeal comes to be allowed, it would enable the Court of Sessions to

dispose of both the matter simultaneously.

The plea advocated on behalf of the appellant/complainant

does not merit acceptance for the simple reason that an appeal cannot be

allowed just because the allowance thereof would enable simultaneously

disposal in the above indicated manner. The parameters for disposal of

such like controversy was indicated by the Apex Court in Ramesh Babulal

Vs. State of Gurarat, AIR 1996 SC 2035, Jaswant Singh Vs. State of

Haryana AIR 2000 SC 1833 and Main Pal Vs. State of Haryana AIR

2004 SC 2158.

The impugned judgment has been decided on the touch stone

of parameters indicated therein. There is nothing perverse in the manner
Criminal Misc. No.730-MA of 2007 -5-

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of appreciation of evidence at the hands of learned Trial Magistrate. The

impugned finding has not called for any interference.

Dismissed.

September 03,2008                                   (S. D. ANAND)
Pka                                                     JUDGE

Note: Whether to be referred to Reporter: Yes/No
Criminal Misc. No.730-MA of 2007 -6-

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