Dilbagh v. Suresh And ORS.

In the High Court of Punjab and Haryana at Chandigarh ......

Criminal Misc. No.A-412-MA of 2016 .....

Date of decision:28.8.2018 Dilbagh ...Applicant v.

Suresh and others

...Respondents

....

Coram:

Hon'ble Mr. Justice Inderjit Singh .....

Present:

Mr. Sumit Sharma, Advocate for the applicant. ......

Inderjit Singh, J.

The complainant/applicant has filed this criminal miscellaneous application under Section 378(4) Cr.P.C. against Suresh and othersrespondents seeking grant of leave to file appeal against the impugned judgment of acquittal dated 4.1.2016 passed by learned Sub Divisional Judicial Magistrate, Tosham, whereby the complaint filed under Sections 147, 148, 149, 323, 324, 386, 506 and 34 IPC has been dismissed and the accused-respondents have been acquitted of the charges as framed against them.

It has been mainly stated in the application that the accompanying appeal is being filed against the judgment dated 4.1.2016 passed by learned Sub Divisional Judicial Magistrate, Tosham, which is likely to succeed on the grounds mentioned therein. It has been stated that the judgment of acquittal has caused injustice to the applicant and the findings of the learned trial Court are against settled norms and hence are

[2] liable to be set aside. It has, therefore, been prayed that this application be allowed and leave be granted to the applicant to file appeal. From the record, I find that Dilbagh-complainant filed complaint against Suresh, Rajesh alias Kalia, Satbir and Vinod for the offences under Sections 147, 148, 149, 323, 324, 386, 506 and 34 IPC. The brief facts of the case as noted down by learned Sub Divisional Judicial Magistrate, Tosham, in his judgment dated 4.1.2016 are as under:- "Concisely, the complainant asserted that on 26.02.2010 he received a telephonic message from Sonu @ Sandeep son of Hawa Singh that Suresh, Rajesh, Satbir and Vinod are demanding a sum of Rs.10,000/- from him. At about 1.00 P.M. he, Om Parkash, Kuldeep and Vinod reached at the petrol pump near Village Khanak.

The accused were manhandling Sonu and were demanding Rs.10,000/-. He refrained them from doing so but they started abusing him. The accused Suresh gave a blow of knife on his left arm. Rajesh, Satbir and Vinod gave danda blows on the back of complainant. He raised alarm upon which Aakash, Om Parkash, Kuldeep and Vinod saved him. The accused fled away threatening that he would be eliminated in future as and when they got an opportunity. He was taken to CHC Tosham but the accused reached there and threatened that if he got his medical examination conducted, he would be eliminated. He went to his house and came to the CHC, Tosham on the next day i.e. 27.10.2010. The accused No.

[3] involved in criminal activities. The matter was reported to the Police but no action was taken. Hence this complaint." On finding a prima facie case, charges against accused were framed for the offences under Sections 323, 324, 506 and 34 IPC, to which they pleaded not guilty and claimed trial.

The complainant produced his evidence. At the close of evidence, the statements of the accused were recorded under Section 313 Cr.P.C.

After appreciating the evidence, the accused were acquitted by the learned Sub Divisional Judicial Magistrate, Tosham, vide judgment dated 4.1.2016. Aggrieved from this judgment of acquittal, the present appeal along with application seeking leave to appeal has been filed by the complainant.

I have heard learned counsel for the applicant and have gone through the record.

From the record, I find that in the present case accused Suresh has received injuries which are not explained in the present case which creates a reasonable doubt. Secondly, as per the evidence, complainantDilbagh is already facing trial in FIR No.95 dated 27.2.2010 for the offences under Sections 147, 148, 149, 323, 325 and 506 IPC registered at Police Station, Tosham, regarding causing injuries to accused No.1-Suresh, which means that the present complainant (applicant herein) is concealing the genesis of the occurrence and further not explaining the injuries on the person of accused Suresh. Further more, the version of the complainant was

[4] not believed by the Court below. If he received injury with a sharp edged weapon on his person then as to why he had not got medico-legal examination on the day of occurrence i.e. 26.2.2010. He got his medicolegal examination on 27.2.2010 which also creates doubt. There is no allegation that he got treatment from any other hospital or got some first aid. Further more, the learned trial Court held that the complainant went to the place of occurrence after receiving a call from Sonu, but there is nothing on record qua Sonu. Even Sonu was not examined as a witness. There is also nothing on the record as to how the complainant is so close to Sonu and as to why Sonu had called him. Further more, the version of the complainant that he was threatened not to get his medico-legal examination on 26.2.2010 by the accused is not believable. If there would have been any threat, then he might have reported the matter to the Police to get his medical examination conducted. However, he went to the Police Station only on 27.2.2010 as is manifest from the DDR entry which was recorded on next day.

Keeping in view the above facts, I find that the reasoning given by the learned Sub Divisional Judicial Magistrate, Tosham, are as per evidence and law. In no way, the findings can be held as perverse. Nothing has been pointed out as to which material evidence has been misread by the Court below and which material evidence has not been considered by the Court below. A reasonable doubt exists in the case of the complainant and the learned trial Court has correctly acquitted the accused. The findings have been given by the Court below after appreciating the evidence in right

[5] and proper perspective which are as per evidence and law and the same do not require any interference from this Court and the same are upheld. From the above, I do not find any ground to grant leave to file appeal. Therefore, finding no merit in the criminal miscellaneous application filed under Section 378 (4) Cr.P.C. seeking leave to file appeal, the same is dismissed.

August 28, 2018.

(Inderjit Singh) Judge *hsp* NOTE:

Whether speaking/reasoned:

Yes Whether reportable:

No