Karam Singh vs Charan Singh and ors.

Ajit Singh, Bains, J.

This revision petition filed by Karam Singh (complainant) is directed against the order of the learned Judicial Magistrate Ist Class, Gharshankar dated 19th November, 1981 vide which the respondents were acquitted.

The prosecution case as set up at the trial was that on 30th January, 1980, at about 9 P.M., P.W. 1 Dial Singh complainant heard a raula in his house from the road and when he came out, he saw that Karam Singh (P.W.3) was being dragged by all the accusedrespondents and was taken to the room of Charan Singh, one of the respondents Charan Singh respondent was saying that since Karam Singh PW remained in the company of Rattan Singh Sarpanch, with whom Charan Singh had a party faction, and as such he should be taught a lesson for that and further exhorted that his coaccused should not bother for any expenses. It is alleged that Smt. Gurmit Kaur (P.W.2) wife of Karam Singh (P.W.3) also reached the spot and she was also given injuries by the respondents.

On the basis of the statement of Dial Singh complainant (P.W.1), the case was registered at 810 A.M. on 31th January, 1980, against the respondent under sections 365/149 and 148, Indian Penal Code, at Police Station Balachaur. His statement was recorded by S.I. Amrik Singh, S.H.O.

During investigation, Karam Singh PW was recovered from the baithak of Charan Singh respondent, vide recovery memo Ex. PA. The investigation officer also prepared the rough site plan, Ex. PC.

Both Karam Singh (P.W.3) and his wife Gurmit Kaur (P.W.2) were medically examined by Dr. Inder Mohan Kataria (P.W.5) in Civil Hospital, Balachaur. The doctor found 2 injuries on the person of Gurmit Kaur PW, one which was declared grievous on receipt of the Xray report and seven injuries on the person of Karam Singh PW and on that basis, the offence under section 325, Indian Penal Code, was included.

At the trial, the accused (respondents) denied the prosecution allegation and pleaded false implication due to enmity. Charan Singh respondent filed written statement under section 243 (1) of the Code of Criminal Procedure. In defence, they examined Gian Singh as D.W.1.

The trial Court acquitted the respondents on the ground that the first information report was delayed, that the offence under section 365, Indian Penal Code, was not made out and that the prosecution story regarding the manner in which the accused (respondents) have allegedly kidnapped Karam Singh PW had not withstood the test of judicial scrutiny and that the medical evidence is contradictory qua the ocular version. All these reasons for acquittal of the respondents are not warranted on the evidence on the record. It is established on the record that Karam Singh (P.W.3), injured was dragged by the respondents and was taken into the house of Charan Singh respondent, which consists of several rooms and that he was got released by the police next morning.

Section 365, Indian Penal Code, is in the following terms :

"Kidnaping or abducting with intent secretly and wrongfully to confine person.

Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment for either description for a term which may extent to seven years, and shall also be liable to fine."

From the reading of the aforesaid provision it is plain that this section makes punishable that offence of abduction with intent to cause the person abducted to be secretly and wrongfully confined. From the evidence on record it is established that Karam Singh (P.W.3) was dragged from his house and was taken to house of Charan Singh respondent, which consists of several rooms and was secretly and wrongfully confined there. He was got released by the police next morning, as observed earlier. This fact is substatituted by the evidence of P.W. 1 Dial Singh, P.W. 2 Gurmit Kaur and P.W. 3 Karam Singh. S.I. Amrit Singh (P.W.4), the investigating officer, says that he had recovered Karam Singh (P.W.3) from the house of Charan Singh respondent next morning. The dragging of Karam Singh P.W. also stands proved as the doctor had found injuries on the back of Karam Singh PW also.

The second reasoning that the first information report was delayed is also perverse. The occurrence took place at about 9 p.m. on 30th January, 1980 and the first information report was lodged on the following day at about 8.10 a.m. and the delay has been explained by the prosecution. According to the prosecution, the prosecution witnesses could not come out of fear during the night time as there had been threat to their lives. Dial Singh (D.W.1) is an independent witness. He has no animus against the accused (respondents). He is also not related to the complainant party. His evidence inspires confidence and the learned Magistrate has discarded his evidence on frivolous ground like the delay in the first information report.

The third ground taken by the Magistrate that there is contradiction in the medical evidence and the ocular account is also not based on the evidence on the record. According to the medical evidence, seven injuries were found on the person of Karam SIngh (P.W.3) and 2 injuries on the person of Gurmit Kaur (P.W.2), out of which one was grievous and the injuries are of the same duration. According to the doctor, the injuries could be caused within one or two days of the incident. Thus, wrong inference is drawn from the statement of Dr. Inder Mohan Kataria (P.W.5), who stated that the duration of the injuries was from 1 to 2 days. Thus, the view taken by the Magistrate that the injuries were caused a day before the occurrence is erroneous. In fact, one to two days means that the injuries could be caused during the period of two days. Moreover, the doctor''s evidence is only an opinion. Gurmit Kaur and Karam Singh PWs had no motive to falsely state that they were given injuries during the occurrence. Moreover, Karam Singh PW was recovered from the house of Charan Singh respondent next morning by the investigating officer and the injuries were found by him on the person of Karam Singh PW remained confined illegally for the whole night. Even his wife Gurmit Kaur (P.W.2) was not spared by the accused. She was also caused two injuries, one of which was grievous.

Thus, I am of the view that the reasoning of the trial Court of acquitting the respondents is perverse and has resulted in the miscarriage of justice. The trial Court even did not discuss the factum of the recovery of Karam Singh from the house of Charan Singh respondent the following morning by the police and thus ignored the material evidence.

Mr. Wasu, learned counsel for the respondents, relied upon Chaqanti Kotaiah and others v. Gogineni Venkateshwara Rao and others, 1974 C.L.R. 13, wherein their Lordships of the Supreme Court observed as under :

"It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court 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. Subsection (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not covert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly covert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however, indicate, some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be, where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be of exceptional nature where the High Court can justifiably interfere with an order of acquittal, and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of section 439(4)."

The aforesaid authority does not advance the case of the respondents; rather it helps the petitioner.

For the reasons recorded I am of the view that miscarriage of justice has taken place in this case. Accordingly the impugned order acquitting the respondents is set aside and the trial Court is directed to redecide the case in the light of the aforesaid observations without recording fresh evidence. The parties are directed to appear before the learned Judicial Magistrate Ist Class, Garhshankar on 28th November, 1983.

Before parting with this judgment I am of the view that the judgment rendered by the trial Magistrate is extremely poor and is not warranted on the evidence on record and the acquittal of the respondents seems to be for extraneous reasons other than legal.

JUDGMENT accordingly.