Daler Singh vs Bhajan Ram And Others

H.S. Madaan, J

Complainant Daler Singh had filed a complaint under Sections 323, 324, 342, 506, 148 and 149 IPC against Prem Chand, Bhajan Ram, Kishan Chand,

Jille Singh, Roshan, Mahinder, Rajender, Balwan and Suresh on the allegations that on 23.9.2009 at about 8:00 p.m. when the complainant was

returning to his house and had reached near house of accused Prem Chand, then Prem Chand having a lathi assaulted the complainant causing him

injury on his right arm; then Bhajna Ram armed with barchha arrived at the spot and attacked the complainant therewith but the complainant saved

himself by moving aside; Bhajna Ram further attacked with binda of kassi (wooden handle of spade) hitting the complainant on left side of forehead;

the complainant raised an alarm, hearing which his brother Ram Mehar and father Jagdish arrived at the spot; in the meanwhile, accused Zile Singh,

Roshan, Rajinder, Balwan and Mukesh reached at the spot and attacked the complainant, his brother Ram Mehar and father Jagdish with gandasies

and lathies, however, the complainant, his brother Ram Mehar and father Jagdish were saved due to intervention of villagers. The injured was got

medically examined. Under political pressure, police registered FIR No.308 dated 29.9.2009, under Sections 323, 324, 506 read with Section 34 IPC

against the complainant but no action was taken against the accused. Therefore, the complainant filed a private complaint against them on 23.12.2009.

After recording of preliminary evidence, only accused Prem Chand, Bhajan Ram, Jile Singh, Roshan, Rajender and Balwan were summoned, whereas

it was not so as regards the remaining accused Kishan Chand, Mahinder and Suresh. They ( Prem Chand, Bhajan Ram, Jile Singh, Roshan, Rajender

and Balwan) put in appearance and were granted bail. The case was fixed for pre-charge evidence during the course of which, the complainant

examined himself as CW2, besides examining Balbir as CW1 and Dr.Sunita as CW3. After hearing the arguments, the trial Magistrate discharged the

accused vide impugned order dated 31.8.2013. The reasons given for doing so are as under:

True, it is trite that at the stage of framing of the charge the Court is not expected to go deep into the probative value of the material on record. What

needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused

has been made out. However, at the same time, framing of charge is a serious step as it is determinative to some extent, in the sence that either the

accused is acquitted giving right to challenge to the complainant party, or the State itself, and if the charge is framed, the accused is called upon to

face the complete trial which may prove prejudicial to him, if finally acquitted. While coming tot he decision whether the discharge or frame charge,

the Judge cannot act merely as a Post Office or a mouth-piece of the prosecution but has to consider the broad probabilities of the case, the total

effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. The aforesaid legal

proposition stands fortified by judgments of the Hon'ble Supreme Court in Vinay Tyagi V. Irshad Ali @ Deepak & Ors.: 2013 Cr.L.J.754 and Sheoraj

Singh Ahlawat V. State of U.P.: 2013(1) RCR(Crl.) 153 (SC).

In the case in hand, firstly, there is delay of 3 months in filing of the complaint. Allegedly, the incident occurred on 23.9.2009 but he complaint was

filed on 23.12.2009. Although, the complainant alleges to have given a complaint (Ex.C-2) to the police on 24.9.2009 but neither there is any receiving

or acknowledgment or endorsement on it by police nor any postal receipt etc. is placed on record. On the face of it, this document does not inspire

confidence.

Secondly, in his examination in chief, the complainant appearing as CW-2 stated that he suffered an injury on his right eye due to attack of barchha by

accused Bhajna Ram but in his complaint, the complainant has mentioned that he suffered this injury as he had fallen down on floor. He further stated

that he has a civil dispute with accused Prem Chand and his family.

Thirdly, the conduct of complainant and other injured is very unnatural which casts serious doubts over the allegations levelled by the complainant in

his complaint and evidence. Allegedly, CW-2 and his brother Ram Mehar and father Jagdish received injuries at about 8:00 PM on 23.9.2009 but they

went to get first aid at 10:45 AM next morning Further, as per testimony of CW-3 i.e. Dr.Sunita, there was no fresh injury on the person of CW-2 and

other injured. All injuries were simple in nature and no injury caused by any sharp weapon was found on person of the injured. Therefore, the

allegation of the complainant that he has suffered injuries caused by barchha and gandasi are nullified by CW-3.

Fourthly, in his deposition, CW-2 i.e. the complainant has not mentioned that CW-1 Balbir was also present whereas CW-1 claims himself to be an

eye-witness. This witness deposes to have suffered injury but no other witness testifies so. Also, there is no MLR on record to corroborate this

allegation.

Fifth, in his pre-charge evidence the complainant did not even examine the alleged injured witnesses i.e. his brother Ram Mehar and father Jagdish.

At the stage of framing charge, the trial Court should sift the evidence as it cannot be expected even at the initial stage to accept all that the

prosecution/complainant states as gospel truth. If two views are possible and one of them gives rise to suspicion only as distinguished from grave

suspicion, the trial Judge will be empowered to discharge the accused.

In view of the foregoing discussion, this Court is of the opinion that the allegations, even if taken on their face,do not give rise to grave suspicion

making out a prima-facie case. Therefore, all the accused are hereby discharge.

Feeling aggrieved, the complainant has approached this Court moving an application under Section 378(4) of Code of Criminal Procedure seeking

grant of Special Leave to appeal.

On notice, the respondents put in appearance through counsel. The complainant has approached this Court belatedly and there is delay of 1100 days in

filing of application for special leave to appeal.

I have heard learned counsel for the parties besides going through the record.

Section 3 of the Limitation Act, 1963 deals with Bar of Limitation providing that every suit instituted, appeal preferred, and application made after the

prescribed period shall be dismissed although limitation has not been set up as a defence.

The reason given in application under Section 5 of the Limitation Act for condonation of delay is that the applicant had first filed a revision petition in

the Court of Sessions under wrong legal advise, which was withdrawn on 3.6.2016, resultantly, appeal was filed. Ignorance of law is no excuse. The

reason given in the application does not appear to be very convincing and plausible. Even if the contentions of the applicant are admitted then revision

petition had been withdrawn on 3.6.2016, whereas the application under Section 5 of the Limitation Act along with application 378(4) Cr.P.C. was

filed on 7.10.2016 i.e. after more than four months thereafter. No convincing reason for doing so has been mentioned. I do not see any reason to

condone such huge delay. Therefore, the application is doomed for failure and is dismisssed accordingly. The appeal being dtime barred is also

doomed for failure. However, on merits also, the application does not have any case.

Thus there is no ground to grant special leave to appeal in this case. The application is, therefore dismissed accordingly.