Shammi Kapoor Vs State of Hp

The present revision is directed against the judgment dated 04.12.2013, passed by learned Sessions Judge, Solan, District Solan, H.P. vide which the judgment of conviction dated 20.07.2011 and order of sentence dated 21.07.2011, passed by learned Judicial Magistrate, First Class, Solan, District Solan, H.P. (learned Trial Court), were upheld (The parties shall hereinafter be referred to in

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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the same manner as they were arrayed before the learned Trial Court for convenience.).

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2. Briefly stated, the facts giving rise to the present petition are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 341, 323, 326, and 506 read with Section 34 of the Indian Penal Code (IPC). It was asserted that victim Dharam Dass (PW-1) was going to his home on 23.05.2006. When he reached near Gugga Maadi Ground, Sabathu at 8:10 p.m., Rajinder Kumar @ Raju and Shammi Kapoor @ Shammi came to the spot on a scooter bearing registration No. UP-80-1467. They stopped the informant. Rajinder Kumar asked the informant when he would return ₹700/-. The informant replied that he was to pay only ₹400/-. Rajinder Kumar and Shammi Kapoor started beating the informant. Shammi Kapoor caught the informant and bit the informant’s right ear, resulting in the severance of the lower right ear. He also bit the right cheek of the informant. The shirt and the under vest of the informant were torn in the incident. The informant shouted for help. Amar Dass (PW-4) and Binda Ram (PW-8) reached the spot. The accused sped away from the spot on the scooter after threatening the informant. The informant made

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the statement (Ext.PW1/A), which was sent to the Police Station, where F.I.R. was registered. Dr. Balvir Singh (PW-6) medically examined the informant and found that he had sustained grievous injuries, which could have been caused by a sharp-edged weapon. He issued MLC (Ext.PW-6/A). Shirt (Ext.P-1) and under vest (Ext.P-2) were produced by the informant. These were put in a cloth parcel and were sealed with seal impression ‘D’. The parcel was seized vide memo (Ext.PW-1/B). The police inspected the spot and found a piece of the under vest (Ext.P-3), which was picked up and sealed in a parcel with seal impression ‘D’. It was seized vide memo (Ext.PW-1/C). Accused Rajinder Kumar produced the scooter bearing registration No. UP80-1467, along with its registration certificate and affidavit, which was seized vide memo (Ext.PW-2/A). Accused Shammi Kapoor produced the blood-stained shirt and pants. These were put in a cloth parcel, and the parcel was sealed with seal ‘D’. These were seized vide memo (Ext. PW-4/A). A seal impression was taken on a separate piece of cloth. The statements of prosecution witnesses were recorded as per their version. Site plan of the place of incident was prepared, and after the completion of the investigation, a challan was prepared and presented before the learned Trial Court.

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Learned Trial Court charged the accused with the commission of offences punishable under Sections 326, 341, 323 and 506 read with Section 34 of IPC to which they pleaded not guilty and claimed to be tried.

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The prosecution examined eight witnesses to prove its case. Dharam Dass (PW-1) is the informant. Sita Ram (PW-2) is the witness to recovery, but he did not support the prosecution’s case. Nanak Chand (PW-3) proved that there was a discussion regarding the return of money between the informant and the accused. Amar Dass (PW-4) and Binda Ram (PW-8) are the eyewitnesses. HC Dev Raj (PW-5) recorded the informant’s statement. Dr. Balvir Singh (PW-6) conducted the medical examination of the informant. Constable Chhedi Ram (PW-7) proved the entry in the daily diary.

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Accused in their statements recorded under Section 313 of Cr.P.C. denied the prosecution’s case in its entirety. Accused Rajinder Kumar stated that he had to receive payment from Dharam Dass, and a false case was made against him to avoid the payment. The accused did not lead any evidence in defence.

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Learned Trial Court held that the testimonies of the

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informant and eyewitnesses corroborated each other. Minor contradictions in the statements of the prosecution witnesses were not sufficient to discard the prosecution’s case. The statement of the informant was duly corroborated by the medical evidence. The mere fact that the informant was not examined in the Hospital at Sabathu will not make the prosecution’s case suspect. The accused acted in concert, and they shared the common intention; therefore, the accused were convicted and sentenced as under:

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Section	Sentence
341 of IPC	To undergo simple imprisonment for a period of 15 days and directed to pay a fine of ₹500/- each and in default of payment of fine the accused shall further undergo simple imprisonment for a period of one month.
323 of IPC	To undergo simple imprisonment for a period of six months and directed to pay a fine of ₹500/- each and in default of payment of fine the accused shall further undergo simple imprisonment for a period of one month.
326 of IPC	To undergo rigorous imprisonment for a period of three years and directed to pay a fine of ₹2000/- each and in default of payment of fine the accused shall further undergo simple imprisonment for a period of one month.

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506 of IPC	To undergo simple imprisonment for a period of one month and directed to pay a fine of ₹500/- each and in default of payment of fine the accused shall further undergo simple imprisonment for a period of one month.
	All the substantive sentences of imprisonment were ordered to run concurrently.

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Being aggrieved by the judgment and order passed by

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the learned Trial Court, the accused filed an appeal, which was decided by the learned Appellate Court. Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the testimonies of the prosecution witnesses corroborated each other. The medical evidence also corroborated the testimonies. The informant was to pay money to Rajinder Kumar, and when he declined, Rajinder Kumar and Shammi Kapoor gave him beatings. The F.I.R. was lodged immediately and ruled out the possibility of concoction/fabrication. Mere non-examination of the Investigating Officer is not sufficient to discard the prosecution’s case. Therefore, the appeal filed by the accused was dismissed.

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Being aggrieved by the judgments and order passed by the learned Courts below, the accused have filed the present revision asserting that the prosecution version is highly

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improbable. Two witnesses turned hostile, and other witnesses were interested. The learned Trial Court erred in relying upon their testimonies. The presence of Amar Dass (PW-4) was highly suspect. The Medico Legal Certificate did not bear the signature of informant Dharam Dass. The informant could have been easily medically examined in the Government Dispensary or Military Hospital at Sabathu. Binda Ram (PW-8) was declared hostile, and there is no corroboration of the informant’s testimony from the independent sources. There were major contradictions between the statements of prosecution witnesses, and the learned Courts below erred in relying upon the testimonies of the prosecution witnesses. The Investigating Officer was not examined, which is fatal to the prosecution’s case. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

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I have heard Mr. Janesh Gupta, learned counsel for the petitioners and Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State.

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Mr. Janesh Gupta, learned counsel for the petitioners, submitted that the learned Courts below erred in appreciating the

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evidence on record. The prosecution’s evidence was highly contradictory. Medical evidence showed that the informant had sustained injury by a sharp-edged weapon. No teeth marks were noticed on the earlobe or the cheek, which makes the prosecution’s case highly suspect. The presence of Amar Dass (PW-4) on the spot was highly suspect, and Binda Ram (PW-8) did not support the prosecution’s case. The relationship between the parties was strained as the informant had to repay the money to accused Rajinder Kumar; therefore, the possibility of false implication to avoid the payment of money cannot be ruled out. The Investigating Officer was not examined, which is fatal to the prosecution. Therefore, he prayed that the present petition be allowed and the judgments and order passed by the learned Courts below be set aside.

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Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State, supported the judgments and order passed by the learned Courts below. He submitted that the learned Courts below had rightly appreciated the material placed before them, and this Court should not interfere with the concurrent findings of fact recorded by the learned Courts below. The enmity is a double-edged weapon- while it furnishes a motive

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of false implication, it also furnishes a motive for the commission of a crime. Therefore, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh , (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional court is not an appellate court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207: -

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“10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.

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13. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC

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1294, wherein it was observed at page 695:

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14. The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.

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15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986] , where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13)

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“ 12 . Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are

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merely indicative. Each case would have to be determined on its own merits.

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13 . Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even the framing of the charge is a much-advanced stage in the proceedings under CrPC.”

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16. This Court in the aforesaid judgment in Amit Kapoor case [ Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986 ] has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228CrPC is sought for as under : ( Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986 ], SCC pp. 482-83, para 27)

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“ 27 . Having discussed the scope of jurisdiction under these two provisions, i.e. Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but inherently impossible to state such principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section

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397 or Section 482 of the Code or together, as the case may be:

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27.1 . Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

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27.2 . The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere.

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27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in a conviction or not at the stage of framing of charge or quashing of charge.

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27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

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27.13 . Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to

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permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records, but is an opinion formed prima facie.”

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17. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistencies in the statement of witnesses, and it is not legally permissible. The High Courts ought to be cognizant of the fact that the trial court was dealing with an application for discharge.

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It was held in Kishan Rao v. Shankargouda , (2018) 8 SCC

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165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed at page 169:

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“12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri [State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275] , while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5)

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“ 5 . … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court, nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it

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would not be appropriate for the High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. …”

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13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19] . This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135)

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“ 14 . … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law

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or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction.”

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14. In the above case, also a conviction of the accused was recorded, and the High Court set aside [ Dattatray Gulabrao Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom 1753] the order of conviction by substituting its view. This Court set aside the High Court's order, holding that the High Court exceeded its jurisdiction in substituting its views, and that too without any legal basis.

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This position was reiterated in Bir Singh v. Mukesh Kumar , (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)

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309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:

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“16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.

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17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH [Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457] , it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative.”

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The present revision has to be decided as per the

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parameters laid down by the Hon’ble Supreme Court.

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Dr. Balbir Singh (PW-6) conducted the medical examination of the informant and found a clean-cut wound on 1/3^rd of the right ear. The lower part was cut. The cut portion of the wound is missing. He also found a small, sharp, clean cut wound over the left side of the face. The nature of the injury was grievous, and the weapon used was sharp. The injury could have been caused by biting with human teeth. He stated in his crossexamination that the MLC does not mention that the injury was caused by biting. He mentioned that injury No.2, the word ‘sharp’ has been written because the edges were sharp.

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The injuries caused by the teeth are described in Modi’s Medical Jurisprudence and Toxicology, Twenty-third Edition, LexisNexis Butterworths Wadhwa at page 695 as under:

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“Abrasions caused by a teeth-bite are elliptical or circular in form, and are represented by two or four separate marks caused by the upper front teeth on one side and the same or less number of marks by the lower front teeth on the opposite side. The intervening space between the marks is often bruised. Sometimes, the marks coalesce together and form a single mass of abrasions. Actual size photographs bringing out the details by using flash light, ultra-violet or infra-red lighting help in investigating these cases; also, casts made of rubber or silicone base avoid distortions. Any trace of saliva on the lesion should also be examined, as it gives confirmatory evidence.”

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19. A similar view is expressed in Knight’s Forensic

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Pathology, 4^th Edn. at pages 529-530 as under:

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A human bite mark may present only a small part of the dental arcade, caused by the front teeth from canine to canine, with an almost invariable gap at either side representing the separation of the upper and lower jaw. A human bite is nearly circular or a shallow oval. A deep parabolic arch or a ‘U-shape’ can only be animal in origin. The teeth may cause clear, separate marks, or they may run into each other to form a continuous or intermittently broken line. As time passes, originally clear tooth marks spread out and blur progressively, losing their definition, though abrasions on the skin surface retain their shape until scabbed healing is complete. Teeth marks may be abrasions, bruises or lacerations – or a combination of any two or three. The clarity of a bite mark depends on a number of factors. If the contour of the part bitten is irregular or markedly curved, then only part of the dental arch may contact the tissues. If the bite is forcible, then extensive subcutaneous bruising may spread laterally and blur the outline. If the bite was inflicted many days before, then healing of abrasions and lacerations, and absorption of bruising will leave progressively less detail.

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Where teeth have been forcibly applied, the typical appearance is of two ‘bows’ with their concavities facing each other and a gap at each end. Within this may sometimes be suction petechiae, which are often present without teeth marks, in the so-called ‘love bite’. They are caused by the firm application of the lips, which form an airtight seal against the skin, then a sucking action reduces the air pressure over the centre. This causes a shower of petechial haemorrhages to appear from rupture of small venules in the superficial layers of the subcutaneous tissues. If forcible, the petechiae are confluent and a frank bruise, or even a haematoma develops. Added to this is pressure from the tongue, pushing the tissues against the palate. This type of lesion is most often seen on the side of the neck and the

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breasts of women, either in love play or after a sexual assault. They are by no means rare in child abuse, however, and are sometimes self-inflicted. Such a suction lesion must be human in origin, and the claim that one is caused by a household pet can be immediately discounted. Bites may be inflicted by the teeth closing down on a relatively flat skin surface, but there is usually an element of indrawing into the mouth, so that the teeth close down onto a parallelsided or elliptical block of skin. In sexual bites, especially of the breast or nipple, the tissue may be actually sucked into the mouth before the jaws close upon it. This will naturally affect the shape of the resultant bite mark when the skin is released and flattens out once more.

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Occasionally, the bite mark may not be two opposing arches, but more linear in pattern. This is seen especially where the upper incisors are scraped down the skin, leaving a series of parallel tracks, sometimes several centimetres long. The lower incisors may leave either a curved line of static marks, or a straight or interrupted line below the upper incisor scrapes, as the lower teeth dig in and anchor the skin whilst the upper teeth gouge downwards towards them, during the act of closing the mouth.”

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It is apparent from the opinion of the learned Authors

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that teeth bite causes abrasion, which is elliptical or circular and bears two or four separate marks caused by front and lower teeth.

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In the present case, the Medical Officer has found clean-cut wounds and not abrasions. No abrasion or pattern was found, even on the cheek; rather, a sharp, clean-cut wound was found over the left side. Therefore, the absence of patterns/marks on the wound makes it difficult to conclude that injuries were caused by teeth bite.

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It was specifically mentioned in the statement recorded under Section 154 of Cr.P.C. (Ext.PW-1/A) that Amar Dass (PW-4) and Binda Ram (PW-8) came to the spot after hearing the noise, which shows that they reached the spot after the incident was over. This fact was also stated by Binda Ram (PW-8), who stated that he heard some noise and saw that informant Dharam Dass and accused Shammi Kapoor were leaving the spot. Nothing happened in his presence. He was permitted to be crossexamined. He denied the previous statement marked ‘Y’ recorded by the police. He denied that he saw the blood-stained shirt of Dharam Dass.

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In the present case, the Investigating Officer was not examined; therefore, the credit of this witness has not been impeached. There is nothing to show that he had made a contradictory statement to the police, and his credit stood impeached under Section 155 (3) of the Indian Evidence Act. His testimony is also as per his initial version that he and Amar Dass (PW-4) came to the spot after hearing the noise. Therefore, no corroboration is provided by the statement of this witness to the informant’s statement.

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Amar Dass (PW-4) stated that he saw Shammi Kapoor and Raju heavily intoxicated. Shammi Kapoor bit the ear of Dharam Dass. He saw Shammi Kapoor and Raju speeding away on the scooter. He took Dharam Dass to the Police Station, where a complaint was lodged by Dharam Dass. He accompanied Dharam Dass and the police to the hospital, where Dharam Dass was treated.

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Statement of Amar Dass (PW4) that he accompanied Dharam Dass to the Police Station where the complaint was lodged is not supported by HC Dev Raj (PW-5), who stated that he and Constable Devinder Kumar were on patrolling duty when Dharam Dass made a statement (Ext. PW-1/A), which was sent to the Police Station. Therefore, as per the statement of HC Dev Raj (PW5), the informant made the statement at Subathu Bazar and not in the Police Station as claimed by Amar Dass (PW-4).

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HC Dev Raj (PW-5) stated in his cross-examination that he met Dharam Dass at the Gugga Maadi ground, and there was no other person with him. Constable Devinder Kumar took Dharam Dass to the hospital.

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Informant Dharam Dass stated in his cross-

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examination that he visited the Police Station at 8:05 p.m. He was alone. He reached Dharampur Hospital at 10:00 p.m. The police officials accompanied him, and no other person was with him. Thus, the statement of Amar Dass (PW-4) that he had accompanied the informant to the hospital is not supported by the informant and the police officials, which makes his presence on the spot doubtful. He is the brother of the informant and would have naturally accompanied him to the hospital. The fact that he did not accompany the informant to the hospital and that only police officials accompanied the informant to the hospital shows that he was not present on the spot.

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The statement of the informant that Rajinder Kumar had given a teeth bite on the cheek is not supported by the medical evidence, where the pattern of the bite was found missing. He stated that he was bitten by Shammi Kapoor with kicks and fist blows is also not supported by any medical evidence, as no abrasion or tenderness was found on his body.

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It is undisputed that the relationship between the informant and Rajinder Kumar is strained because he had to pay

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money to Rajinder Kumar; therefore, he has a reason to depose against Rajinder Kumar, and reliance could not have been placed upon his sole testimony without any corroboration.

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Reliance was also placed upon the recovery of the clothes of accused Rajinder Kumar to show that they had blood stains and corroborate the informant’s version; however, the clothes were not sent to SFSL to examine whether they contained blood stains. Hence, the recovery of clothes will not implicate the accused.

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Nanak Chand (PW-3) stated about the dispute regarding the payment of money. Since it is undisputed that the accused Rajinder has to take money from the informant, therefore testimony of this witness will not will not help the prosecution.

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There is no other evidence to prove the prosecution’s case; therefore, the learned Courts below erred in convicting and sentencing the accused. They failed to notice the discrepancy between the ocular and medical evidence, which made the prosecution’s case highly suspect, and the fact that the testimony of Binda Ram (PW-8) did not provide any corroboration, and the testimony of Amar Dass (PW-4) was highly suspect because his

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presence at the spot was not established satisfactorily. Therefore, learned Courts below took a view which could not have been taken based on the evidence placed before them, and such a view is to be interfered with while exercising the revisional jurisdiction.

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In view of the above, the present revision is allowed and the judgments and order passed by the learned Courts below are ordered to be set aside and the accused are acquitted of the commission of offences punishable under Sections 341, 323, 326 and 506 read with Section 34 of IPC.

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In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the petitioners are directed to furnish bail bonds in the sum of ₹25,000/- each with one surety each in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the petitioners on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

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