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
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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.
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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
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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
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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
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