July 12 v. Kailash Chander & Anr.

Present: Mr.Puneet Singla,Advocate for Mr.Anupam Bhardwaj, Advocate for the petitioner. Mr.Deepak Aggarwal,Advocate for the respondents ** Sabina, J. This petition is filed under Section 401 of the Code of Criminal Procedure challenging order dated 01.11.2006 passed by the Additional District & Sessions Judge (Adhoc), Jalandhar acquitting the accused-respondents- Kailash Chander and Neelam, who were convicted under Sections 323,324,427/34 of the Indian Penal Code (`IPC' for short) by the Judicial Magistrate 2nd Clas, Jalandhar vide judgment dated

15.4.2005 and vide order of even date were sentenced under the aforementioned Sections. Brief facts of the case, as noticed by the appellate Court, in para 2 of its judgment read as under:- “2. "The facts of the prosecution case, in brief, are that on

5.8.1999 complainant Charanjit Singh got recorded his statement before SI Harjinder Singh that he is resident of Dakoha and is CRR No. 1473 of 2007 2 doing accounts work. On 4.8.1999 at about 1.30 P.M. he alongwith his father were present at their house. One laterine is constructed in the Gali for the last 15 years which was demolished by their neighbourers Kailash Chander son of Chaman Lal, Neelam @ Bittu s/o Chaman Lal, Mandip Kumar s/o Kailash Chander. They also carried the waste material i.e. bricks in their own house and when he restrained them from doing so, the accused Mandip and Neelam started pushing the complainant and thereafter Neelam gave a brick blow which did not hit the complainant as he moved one side. Accused Mandeep caught hold the complainant and father of the complainant also came out. During the scuffle the gold chain of the complainant left with accused Mandeep and thereafter it was snatched by Kailash Chander from Mandeep and when the complainant stepped forward for taking his gold chain, accused Kailash Chander gave him a knife blow which hit him on his right arm and accused Mandip and Neelam also gave blows on his chest. The whole occurrence was witnessed by the father of the complainant. The complainant was rescued from the clutches of the accused and after arranging the vehicle the complainant was brought to Civil Hospital, Jalandhar by his father and Vijay Kumar son of Om Parkash where he was medically examined. After completion of the investigation the challan against the accused was presented in the court of Ilaqa Magistrate.” After hearing the learned counsel for the parties, I am of the opinion that no ground for interference by this Court is made out. CRR No. 1473 of 2007 3 Learned Additional Sessions Judge, in para 8 of its judgment, has held as under:- “8. It may be noted at the out set that a part of the prosecution version has been disbelieved by the learned Magistrate while holing that no offence under Section 379 IPC is made out against the accused, which shows that the complainant and his father have not come with clean hands. The first question which arises is as to where the latrine said to have been demolished by the accused is actually situated. In the site plan Ex.PB the latrine has been shown at point `A' which is a street. What actually was the necessity for the accused to remove the latrine has not been explained. Latrine is not such a item that it can be demolished with empty hands. The accused must be demolishing the same with the help of instruments such as Gandasi, Hammer etc. No such item was taken into possession. Moreover, it not understood that if the accused have demolished the latrine, what was the necessity for them to take the bricks to their house. The demolishing of latrine cannot be over within a minutes. It must have taken hours together. During this period other residents of the locality must have assembled. No one from the locality has been examined as a witness. There is only the statement of Mehnga Singh and his son Charanjit Singh who are the interested witnesses. It is also admitted fact that civil litigation has been going on between the parties. The occurrence is alleged to have taken place on 4.8.99 at 1.30 P.M. whereas the statement of Charanjit Singh was recorded on 5.8.999 between 3.10 to 3.45 CRR No. 1473 of 2007 4 P.M. i.e. after lapse of more than 24 hours. There is no any explanation from the side of the prosecution as to why it took such a long time for the complainant to get the FIR registered. It is evident that this time was used to manipulate the story as the present one. There is only one injury on the person of Charanjit Singh. The other is complaint to pain and as per the statement of Dr. Ashok Bhagat the possibility of this injury cannot be ruled out by having been inflicted by a friendly hand. The doctor further goes on to say that the complaint of pain is the subjective approach of a person and if there is no swelling or other mark of injury at the site of the complaint of pain, it can be just that the person is pretending. PW Mehnga Singh says that there was cut in the shirt at the place where the injury was inflicted and the shirt was smeared with blood and the blood was falling on the ground. On the other hand, Charanjit Singh injured says that there was no cut on the shirt worn by him, neither the shirt had become blood stained. Mehnga Singh that the fight continued for 15-20. It is not possible to believe that such like incident must have been over within 2-3 minutes. Charanjit Singh says that the police had enquired from Bhag Singh, Shiv Dass, Surinder Singh etc. about the occurrence but nobody has come forward to depose in favour of the complainant. The story of recovery of 70 bricks from the house of the accused is concocted one. What the accused were to do with these 70 bricks is not understood while going to the Hospital, the complainant had passed through the police station CRR No. 1473 of 2007 5 but not any effort was made to lodge the report. It is thus evident that the entire prosecution version on the face of it is unbelievable. The trial court has not considered all these vital aspects of the case.” The reasons given by the learned Additional Sessions Judge, while acquitting the respondents, are sound reasons. Learned counsel for the petitioners has failed to point out any misreading of evidence by the learned Additional Sessions Judge. The occurrence in this case relates to the year 1999. The latrine in question had been allegedly constructed in the street. There was no independent witness from the locality examined by the complainant/petitioner to support his plea that the respondents had demolished the latrine and carried the bricks to their house. The doctor, who had examined the petitioners, had deposed that the possibility of the injury having been caused by a friendly hand could not be ruled out. Hence, no ground for interference is made out. Dismissed. (Sabina) Judge July 12, 2010