Punjab-Haryana High Court
Rakesh Kumar vs State Of Haryana And Another on 18 February, 2013
Bench: Jasbir Singh, Inderjit Singh
In the High Court of Punjab and Haryana, at Chandigarh
Criminal Misc. No. A-499-MA of 2012 (O&M)
Date of Decision: 18.2.2013
Rakesh Kumar
... Applicant
Versus
State of Haryana and Another
... Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh.
Hon'ble Mr. Justice Inderjit Singh Present: Mr. N.S. Shekhawat, Advocate for the applicant.
Jasbir Singh, Judge Criminal Misc. No. 38723 of 2012 In view of the averments made in the application, the same is allowed. Delay of 41 days in filing the appeal stands condoned. Criminal Misc. No. A-499-MA of 2012 Applicant-Rakesh Kumar has filed this application under Section 378(4) read with Section 372 Cr.P.C. seeking leave to file an appeal against a judgment dated 24.2.2012 and order dated 27.2.2012 whereby respondent No.2-Sumit was acquitted of the charges framed against him. His co-accused namely Jagdish and Ramchander were convicted under Sections 325 read with Section 34 IPC and 307 read with Section 34 IPC. They were sentenced accordingly.
Respondent No.2-Sumit along with his father Jagdish and brother Ramchander were made to face trial in FIR No. 240 dated Criminal Misc. No. A-499-MA of 2012 (O&M) 2 13.11.2010, Police Station Sadar, Narnaul, for commission of offences under Sections 323, 307, 325, 506 and 34 IPC.
The process of law was started on a statement (Ex.PA) made by applicant/complainant-Rakesh Kumar, wherein it was stated that on 12.11.2010 at about 4.30 P.M., all the three above named persons, along with Nirmala and Braham Parkash, caused injuries to the complainant and his mother, namely Lali Devi (PW.3). From the statement made by Rakesh Kumar, complainant, the trial Judge has noted following facts regarding case of the prosecution:-
"that he being B.Sc./MBA had been running a coaching centre in the name of Shri Krishna in the town of Narnaul, that he and his parental uncle (Chacha) Rajender had been living at their tubewell after having constructed a house thereon alongwith their families, that the accused Jagdish, who was their neighbourer in the fields had encroached upon two karams of passage which leads to the complainant's house and they had been asking the complainant and his family not to use the said passage, that on 10th of November 2010 at about 10 A.M. the accused Jagdish came to their house and told not to use the said passage failing which he would kill the complainant and his family members, in response to which, the complainant's father told that since it was an official passage, so, the accused could not forbade them to use the said passage and he would complain against the accused about it to the Sarpanch of the village, that on 12th of November 2010 at Criminal Misc. No. A-499-MA of 2012 (O&M) 3 about 4.30 P.M., when the complainant and his mother Smt. Lali Devi were standing in front of their house, the accused Jadish, Sumit son of Jagdish, Ramchander son of Jagdish, Nirmala wife of Jagdish and Braham Parkash son of Nitya Nand came to the complainant's house while riding their tractor marka Fram Track of blue colour, that the accused Sumit was having an axe (Kulhari), the accused Nirmala was having a Jaily, the accused Jagdish was having an iron rod and the accused Braham Parkash was having an axe, that the tractor was being driven by the accused Ramchander, that immediately reaching in front of the house of the complainant, the accused Jagdish exhorted to kill the complainant and his mother by way of running the tractor over them, that on this, all the remaining accused came down from the tractor whereas accused Ramchander, who was driving the tractor, struck the tractor against the person of the complainant's mother namely Smt. Lali Devi, pursuant to which, she fell down, that immediately thereafter, the accused Ramchander ran the tractor over the neck and head of the complainant's mother, that thereafter, the accused Ramchander reversed the tractor and again ran the tractor over the person of the complainant's mother, that when the complainant went head in order to rescue his mother, the accused Sumit hit an axe at his head which struck on the left side and the accused Nirmala hit a Jaily on the left hand of the complainant, that Criminal Misc. No. A-499-MA of 2012 (O&M) 4 pursuant to it, the complainant ran into his house but the accused Braham Parkash while chasing the complainant inside the complainant's house struck the Kulhari at the back of the complainant, that pursuant to it, they raised a noise for rescue which attracted his Tau's son Jagat Singh and one Manoj Kumar and that on seeing them coming, the accused Jagdish & Ramchander etc. decamped from the scene alongwith their weapons while riding their tractor with the threat that they would kill the victims at an opportune time."
It is case of the prosecution that thereafter the injured were taken to the Civil Hospital, Narnaul, where they were medicolegally examined. Taking note of serious condition of complainant and his mother, namely, Lali Devi, they were referred to a hospital at Gurgaon.
After recording statement of the applicant/complainant, the Investigating Officer Sub Inspector Om Parkash (PW.9) sent it to the Police Station for recording of an FIR. Thereafter, he went to the place of occurrence and got prepared a rough site plan with correct marginal notes. During investigation, accused were arrested. On interrogation, they suffered disclosure statements which led to the recovery of weapons of offence. The tractor owned by the accused party was also taken into possession against a recovery memo.
The Investigating Officer recorded statements of the witnesses and on completion of the investigation, final report was put in Court. Copies of the documents were supplied to the accused, as per norms. The case was committed to the competent Court for trial. The accused Criminal Misc. No. A-499-MA of 2012 (O&M) 5 were charge sheeted to which they pleaded not guilty and claimed trial.
The prosecution, in order to prove its case, produced 11 witnesses and also brought on record documentary evidence. On conclusion of the prosecution evidence, separate statements of all the accused were recorded under Section 313 Cr.P.C. Incriminating evidence against them, on record, was put to them which they denied, claimed innocence and false implication. In defence, it was projected by the accused that the complainant party were the aggressors. Lali Devi had received injuries due to accidental fall on the ground. It is also on record that the injuries were also stated to have been suffered by some of the accused at the time of alleged occurrence. The accused also led evidence in defence.
The trial Judge, on appraisal of evidence, found Jagdish and Ramchander, father & brother of respondent No.2, respectively, guilty and they were convicted for commission of offences under Sections 325, 307 & 34 IPC. Vide order dated 27.2.2012, they were sentenced to undergo rigorous imprisonment for a period of three years each and to pay fine of ` 3,000 each, for commission of offence under Section 325 read with Section 34 IPC. They were further sentenced to undergo rigorous imprisonment for a period of ten years each and to pay fine of ` 5,000 each, for commission of offence under Section 307 read with Section 34 IPC, whereas respondent No.2-Sumit was acquitted of the charges, framed against him. Hence, this application.
Counsel for the applicant has taken us through the paper book and has vehemently contended that qua respondent No.2, the trial Criminal Misc. No. A-499-MA of 2012 (O&M) 6 Judge has not appreciated the evidence in a proper manner.
After hearing counsel for the applicant, this Court is not inclined to interfere in the judgment, under challenge. It has come on record that at the time of alleged occurrence, injuries were also received by Jagdish and Ramchander, accused, who were convicted by the Court below. Those injuries were not explained on record.
Be that as it may, when giving benefit of acquittal to respondent No.2-Sumit, the trial Judge observed as under:-
"27. Now the case of the accused Sumit is taken up for discussion. The complainant PW1 Rakesh Kumar in his original complaint Ex.PA as well as in the capacity of PW1 has deposed that when he went ahead in rescuing his mother, the accused Sumit hit an axe at his head which struck on his left side thereof but the aforesaid assertion of the complainant PW1 cannot be held worthy of according any credence as the same does not find any support from the medical evidence placed on the record of this file by the prosecution.
Needless to say that if the accused Sumit had allegedly hit the axe on the head of the complainant which struck at the left side, then, a grievous injury on the left side of his head with sharp edged weapon must have been suffered by the complainant PW1 Rakesh Kumar, whereas, the perusal of his MLR Ex.PR/2 clearly shows that he had suffered only one injury on the left side of his head with blunt weapon.
Admittedly, it is a well settled proposition of law that Criminal Misc. No. A-499-MA of 2012 (O&M) 7 if a witness asserts that he had been hit by the sharp edged weapon without specifying that the blunt side of said weapon was used, then, it has to be construed that the victim was hit with the sharp-edge side of the sharp edged weapon. Since in the instant case, the complainant PW1 has not uttered even a single word either in his complaint Ex.PA or in his depositions in the capacity of PW1 that the accused Sumit had hit the axe from the blunt side on his head, so, as per well settled law, it has to be held that the axe had been allegedly hit from its sharp edge side and as discussed above, this attribution of injury does not find any support from the medical evidence.
28. In this connection, it is also worthwhile to mention here that in the incidents like the present one, there always remains a tendency on the part of the victims to implicate more and more members of the aggressive side as an accused. This tendency was also seen in the instant case because in the instant case also, the complainant PW1 Rakesh has attributed the specific infliction of injuries to Nirmala and Braham Parkash by saying that said Nirmala had hit a Jaily blow on his left side whereas Braham Parkash chased him inside his house and then hit Kulhari at his back. Again admittedly, both the aforesaid two injuries did not find any mention on the person of the complainant PW1 Rakesh nor the aforesaid two persons were found guilty by the IO Criminal Misc. No. A-499-MA of 2012 (O&M) 8 during the course of interrogation, pursuant to which, they were placed in column no.2 of the challan and eventually the application under Section 319 Cr.P.C. for their summoning as accused had also been rejected by the Court. Therefore, in these circumstances, the presence and participation of the accused Sumit in the alleged incident becomes highly doubtful and that being so, he deserves acquittal under the benefit of doubt that too especially in the circumstances when even as per defence version his presence has not been mentioned at the spot, and therefore, it is quite possible that the injury attributed to the accused Sumit with an axe might have been caused by the accused Jagdish, who was admittedly having a blunt weapon i.e. an iron rod in his hand."
It has also come on record that during investigation, Nirmala and Braham Parkash, who were named as accused were found innocent and their names were put in column No.2 of the final report. An application under Section 319 Cr.P.C. moved to summon both of them as accused was also rejected. The trial Judge has rightly observed that there is always a tendency to increase number of the accused. So far as respondent No.2 is concerned, while acquitting him, it was noticed that the injury, alleged to have been caused by him, was not proved on record. He was shown to have wielded a sharp edged weapon, whereas the injury was found to have been caused by a blunt weapon. This Court feels that the view expressed by the trial Court is perfectly justified and is as per evidence on record.
Criminal Misc. No. A-499-MA of 2012 (O&M) 9
Their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
Similarly, in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, it was held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
In Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479, decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"An order of acquittal is to be interfered with only when there Criminal Misc. No. A-499-MA of 2012 (O&M) 10 are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."
Similarly, in the case of State of Rajasthan v. Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602, the Hon'ble Supreme Court has observed as under:-
"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused.
This Court has taken a consistent view that unless the
judgment in appeal is contrary to evidence, palpably
erroneous or a view which could not have been
taken by the court of competent jurisdiction keeping
in view the settled canons of criminal jurisprudence, this
Court shall be reluctant to interfere with such judgment of
acquittal.
8. The penal laws in India are primarily based
upon certain fundamental procedural values, which are right
to fair trial and presumption of innocence. A person is
presumed to be innocent till proven guilty and once held to
be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only Criminal Misc. No. A-499-MA of 2012 (O&M) 11 for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage Criminal Misc. No. A-499-MA of 2012 (O&M) 12 of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
The trial Judge has noted the entire evidence on record in a proper manner. Counsel for the applicant has failed to show any misreading of evidence by the Court below which may necessitate interference of this Court.
Dismissed.
(Jasbir Singh) Judge (Inderjit Singh) Judge February 18, 2013 "DK"