Punjab-Haryana High Court
Anguri vs State Of Haryana And Others on 9 November, 2010
Bench: Satish Kumar Mittal, Jora Singh
Crl.Misc.No.958-MA of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Crl.Misc.No.958-MA of 2010 (O&M)
Date of decision: 9.11.2010
Anguri
... Applicant
versus
State of Haryana and others
... Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL.
HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr.Ashit Malik, Advocate,
for the applicant.
...
JORA SINGH, J.
Anguri wife of Goverdhan filed this application under Section 378(4) Cr.P.C. for grant of leave to appeal, to challenge the judgment dated 20.1.2010 passed by Additional Sessions Judge, Panipat, arising out of FIR No. 246 dated 11.11.2006 under Sections 148/ 323/324/ 325/ 326/ 452/ 307/ 506/ 149 IPC, Police Station Sadar, Panipat.
By the said judgment, accused were acquitted of the charge levelled against them.
Along with application under Section 378(4) Cr.P.C., application under Section 5 of the Limitation Act was moved to condone the delay of 145 days in filing the appeal.
In view of the allegations in the application, we are of the opinion that there is no intentional or deliberate delay in filing the appeal. Accordingly, 145 days' delay in filing the application for grant of leave to appeal as well as appeal is condoned.
Crl.Misc.No.958-MA of 2010 (O&M) 2
Application is, accordingly, allowed.
Prosecution story, in brief, is that on 11.11.2006, a telephonic message was received from Police Post, Bus Stand, Panipat, regarding admission of Bijender, Attar Singh and Anguri in General Hospital, Panipat. ASI Balwant Singh along with police party had gone to General Hospital, Panipat. Application was moved requesting the doctor to opine as to whether injured were fit to make statement or not. Doctor opined that all the injured were unfit to make statement. Mohinder Singh present in the hospital had met ASI Balwant Singh. Statement of Mohinder Singh (Ex.PA) was recorded. Allegation of Mohinder Singh was that there was a dispute regarding partition of one acre of land amongst the complainant party and Bhim Singh. Half acre of land fell to the share of complainant party and remaining half acre fell to the share of Bhim Singh. Bhim Singh was in possession of entire one acre of land and there was a Panchayat on 7.11.2006 regarding partition of land. In the Panchayat, land was partitioned in equal share. Complainant party was satisfied with the decision of the Panchayat. On 10.11.2006, Joginder was present in his fields adjoining the disputed land. Family members of Bhim Singh had caused injuries to Joginder but matter was not reported to the police because complainant party wanted to settle the matter in the Panchayat and Panchayat was to be held on that day. At about 6.30 AM, Mohinder Singh, complainant, his brother Bijender, father Attar Singh and aunt Anguri were present in their house and were feeding their cattle. In the meantime, Bhim Singh, Balbir, Tejbir, Dharambir, Dilbag, Umed, Shamshar, Randhir, Satish and Kuldip came inside the house and raised lalkara to teach a lesson to the complainant party for taking half acre of land. Accused armed with jailly, Crl.Misc.No.958-MA of 2010 (O&M) 3 gandasi and lathis had caused injuries to the complainant, his brother Bijender, father Attar Singh and aunt Anguri. Raula was raised, then his brother-in-law Joginder came at the spot. On seeing Joginder, accused had fled away from the spot with respective weapons. Injured were shifted to General Hospital, Panipat, where they were medico legally examined. After making endorsement, statement (Ex.PA) was sent to concerned police station, on the basis of which, formal FIR (Ex.PK) was recorded. All the accused were arrested, except Randhir Singh. Weapons of offence were also recovered. After completion of investigation, challan was presented in Court. Randhir Singh was kept in Column No.2.
Accused were charged under Sections 148/323/324/325/307/452/506/149 IPC, to which they pleaded not guilty and claimed trial.
Mohinder Singh appeared as PW1. Then application under Section 319 Cr.P.C. was moved to summon Randhir Singh. Randhir Singh was summoned to face trial under Sections 148/ 323/ 324/ 325/ 307/452/ 506/149 IPC.
Accused were charged under Sections 148/323/324/325/307/452/506/149 IPC, to which they pleaded not guilty and claimed trial.
Prosecution examined 8 witnesses.
PW1 Mohinder Singh, complainant, PW2 Anguri and PW3 Bijender are the injured. All on oath stated that they were present in their house along with Attar Singh. Accused party came fully armed and had caused injuries to them.
Crl.Misc.No.958-MA of 2010 (O&M) 4
PW4 Dr. Bijender Singh had medico legally examined Mohinder Singh, Attar Singh, Bijender and Anguri. Four injuries were noticed on the person of Mohinder Singh, one injury was noticed on the person of Attar Singh, four injuries were noticed on the person of Bijender and two injuries were noticed on the person of Anguri.
PW5 HC Surender was the Incharge of Malkhana, with whom case property was deposited.
PW6 ASI Balwant Singh was the Investigating Officer. PW7 Constable Sushil Kumar had deposited sealed parcels in the office of FSL.
PW8 Dr. Sanjay Aggarwal stated that on 12.11.2006, he was on duty at Prem Hospital, Panipat. On that day, patient Anguri was brought to the hospital with alleged history of assault on 12.11.2006 at 6.00 AM. She was conscious. CT Scan of head was done.
After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent.
Defence version of the accused was that cross case was registered against the complainant party for causing injuries to them. They had acted in their self defence. Number of documents, i.e., certified copy of MLR of Satish (Ex.DE), certified copy of MLR of Bhulla Devi (Ex.DF), certified copy of MLR of Dharambir (Ex.DG), certified copy of DDR No.31 (Ex.DH), certified copy of affidavit of Dr.Dalip Singh (Ex.DJ) and certified copy of statement of Dr. Dalip Singh (Ex.DK), were tendered in their defence.
Crl.Misc.No.958-MA of 2010 (O&M) 5
After hearing learned Public Prosecutor for the State, learned counsel for the accused and from the perusal of evidence on the file, accused were acquitted of the charge levelled against them.
We have heard learned counsel for the applicant and have gone through the file.
Learned counsel for the applicant argued that there was dispute regarding partition of land. Half acre of land fell to the share of complainant party and remaining half acre of land fell to the share of Bhim Singh. Entire killa was in possession of Bhim Singh. Panchayat was convened and there was partition of land. Complainant party was satisfied with the partition of land. Bhim Singh was not satisfied with the partition of land. On 10.11.2006, Joginder was present in his fields adjoining to the disputed killa. Then family members of Bhim Singh had caused injuries to Joginder but matter was not reported to the police. At about 6.30 AM, complainant party was present in their house. Respondents-accused came fully armed and had caused injuries to Mohinder Singh, Attar Singh, Bijender and Anguri. Certified copies of MLRs of Satish, Bhulla Devi and Dharambir were tendered in defence. After going through the copies of MLRs, trial Court wrongly opined that injuries on the person of Dharambir, Satish and Bhulla Devi were not explained by the prosecution. Secondly, eye witnesses made contradictory statements regarding arrival of respondents-accused. Injured witnesses have changed their statements as per their convenience. Lastly, report of FSL was not favourable to the prosecution because blood was found disintegrated. Approach of trial Court is not correct one.
Crl.Misc.No.958-MA of 2010 (O&M) 6
After going through the file, we are of the opinion that submission of learned counsel for the applicant is without any force. File shows that there was dispute regarding partition of land amongst the complainant party and respondents-accused. According to complainant party, one acre of land was partitioned. Half acre of land fell to the share of complainant party and remaining half acre of land fell to the share of Bhim Singh. Respondents-accused were not satisfied with the partition of land because entire killa was in possession of Bhim Singh. There was a partition by the Panchayat but no resolution by the Panchayat regarding partition that half of the property fell to the share of complainant party and remaining half fell to the share of respondents-accused. Admittedly, possession of entire killa was with the respondents-accused, as per FIR.
Second allegation of the prosecution was that on 10.11.2006, Joginder was present in his fields adjoining to the disputed killa. Family members of Bhim Singh had caused injuries to Joginder but no MLR on the file to show that injuries were noticed on the person of Joginder. In case, on 10.11.2006, family members of Bhim Singh had caused injuries to Joginder while present in his fields, then matter should have been reported to the police. No Panchayat member came forward to state that there was a Panchayat and in Panchayat, one acre of land was partitioned. Half acre of land was given to the complainant party and remaining half acre of land to the respondents-accused. Joginder failed to appear in Court to state that when he was present in the fields on 10.11.2006 before the present occurrence, then family members of Bhim Singh had caused injuries to him.
Next allegation of the complainant was that at 6.30 AM, they were present in their house, then respondents-accused came fully armed and Crl.Misc.No.958-MA of 2010 (O&M) 7 had caused injuries to them. Not a word in the FIR that complainant party had caused injuries to the respondents-accused or Goverdhan had fired twice with his revolver while present on the roof of his house to save the complainant party. After completion of investigation, challan was presented in Court against the respondents-accused except Randhir Singh, who was kept in Column No.2. After charge, Mohinder Singh appeared as PW1 on 3.10.2007. In cross-examination, Mohinder Singh admitted that his uncle Goverdhan had fired two shots from his gun from the roof of his house to save them. After the statement of Mohinder Singh dated 3.10.2007, application under Section 319 Cr.P.C. was moved. Randhir Singh was summoned to face trial along with co-accused. After appearance of Randhir Singh, charge was framed against the respondents-accused. Again Mohinder Singh appeared as PW1 on 21.8.2008, then stated that Goverdhan had not fired shot from his revolver after going in front of the house of respondents- accused, but admitted that his statement was recorded on 3.10.2007. Again stated that in his statement dated 3.10.2007, he has stated in Court that his uncle Goverdhan had fired twice with his rifle in the air while present on the roof of his house. That means, Mohinder Singh is not clear whether Goverdhan had fired twice with his rifle while present on the roof of his house to save them or not.
Anguri while appearing as PW2, then in cross-examination stated that she cannot tell whether her husband Goverdhan had fired twice from his rifle. If Goverdhan had not fired twice with his rifle, then Anguri can state categorically that Goverdhan was not present and had not fired with his rifle while present on the roof of his house.
Crl.Misc.No.958-MA of 2010 (O&M) 8
PW3 Bijender in cross-examination stated that Goverdhan came at the spot and had fired two shots from his rifle after the respondents- accused had left the place of occurrence. In the FIR, there is not a word that Goverdhan while present on the roof of his house had fired twice to save the complainant party. In court, Mohinder Singh and Bijender admitted that Goverdhan had fired twice with his rifle while present on the roof of his house, whereas third injured Anguri stated that she cannot tell whether her husband had fired with his rifle or not. Anguri has not stated a word that Goverdhan was not present or he had not fired with his rifle. Anguri has shown her ignorance about the presence of Goverdhan and firing with his rifle to save the complainant party. Mohinder Singh in cross-examination stated that some of the respondents-accused came inside the house from the main gate and some of the respondents-accused came inside the house by scaling wall of the house, but Anguri and Bijender stated that all the respondents-accused came inside their house through the eastern gate of the house.
As per prosecution story, place of occurrence was inside the house of Mohinder Singh. Blood stained earth was lifted but as per report of the laboratory, blood was found disintegrated.
PW3 Bijender admitted that complainant party was facing criminal trial for causing injuries to accused party and in the clash, no one from the side of the accused party had received any injury. So, one thing is clear that complainant party was facing trial for causing injuries to the accused party. Respondents-accused tendered certified copies of MLRs of Dharambir, Satish and Bhulla Devi along with certified copies of DDR No.31, affidavit of Dr.Dalip Singh and statement of Dr. Dalip Singh. After Crl.Misc.No.958-MA of 2010 (O&M) 9 going through the copies of MLRs, trial Court opined that in the same occurrence, respondents-accused also received injuries.
PW6 ASI Balwant Singh, Investigating Officer, in cross- examination admitted that on the same day, he had recorded the statement of respondent-accused Dharambir (Ex.DB) and prepared rough site plan (Ex.DC). On the statement of Dharambir, DDR No.31 was recorded with remarks that respondents-accused also received injuries at the hands of complainant party. So, complainant party committed offence punishable under Sections 148/149/323/324/285 IPC and Section 27 of the Arms Act. Qua the injuries on the person of respondents-accused, he had investigated the case against the complainant party. According to the site plan (Ex.DC), occurrence had taken place in the street and not in the house of complainant party. When copies of MLRs, copy of DDR No.31, copies of affidavit and statement of Dr. Dalip Singh were tendered into evidence, then no objection was raised by learned Public Prosecutor for the State or learned counsel for the complainant party. MLRs show that in the same occurrence, respondents-accused, namely, Dharambir, Bhulla Devi and Satish had also received injuries. After relying upon the judgments in Joginder Singh vs. Avtar Singh, 2001(1) RCR (Crl.) 7, and Nathu Ram and others vs. State of Haryana, 2004(1) RCR (Crl.) 656, trial Court rightly opined that when Magistrate failed to opine as to which party was the aggressor and prosecution suppressed the genesis of fight by not explaining the injuries on the person of respondents-accused, then complainant party changed their version as per their convenience and failed to explain the injuries on the person of respondents-accused. Prosecution has suppressed the genesis of Crl.Misc.No.958-MA of 2010 (O&M) 10 fight and has not come out with true version, both parties are to be acquitted.
When there are two versions, then version favourable to the respondents-accused is to be accepted.
In the light of above discussion, we are of the opinion that evidence on the file was rightly scrutinized by the trial Court. Judgment of acquittal is to be set aside if the Court is of the opinion that judgment is perverse and evidence on the file was misread. Judgment of acquittal is not to be set aside if Appellate Court was inclined to take different view.
For the reasons recorded above, leave to appeal is declined.
( JORA SINGH )
JUDGE
9.11.2010 ( SATISH KUMAR MITTAL )
pk JUDGE