Punjab-Haryana High Court
State Of Haryana vs Shailender @ Kaku And Others on 12 October, 2012
Bench: Jasbir Singh, Rameshwar Singh Malik
CRM-A-789-MA of 2012 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRM-A-789-MA of 2012 (O & M)
Date of decision : 12.10.2012
State of Haryana .......Applicant/Appellant
Vs.
Shailender @ Kaku and others ..........Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Rameshwar Singh Malik
Present:- Mr. Kshitij Sharma, AAG, Haryana
for the applicant-appellant
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Jasbir Singh, J. (Oral)
The State of Haryana has filed this application under Section 378 (3) Cr.P.C. seeking leave to file an appeal against judgment of acquittal dated 9.7.2012.
The respondents were arrayed as accused in FIR No. 130 dated 1.5.2007 Police Station Barwala for commission of offences under Sections 332, 353, 307/34 IPC and 25 of the Arms Act, 1959. It was an allegation against them that when police officials went to apprehend the respondents, they fired a shot at the police party, which hit front glass of the jeep. Thereafter, respondent No.4 ran away from the spot. The trial Judge has noted the following facts regarding case of the prosecution :-
CRM-A-789-MA of 2012 (O & M) -2- "that on 01.05.2007 Sub Inspector Arjun SHO, CIA Staff, Hisar alongwith other police officials was present at Balak Chowk, in government jeep bearing registration No. HR- 20G-5733, in connection with crime detection when received information that four persons i.e. Shailender @ Kaku son of Ram Kumar, resident of village Hasangarh, Sandeep son of Om Parkash, resident of village Kirmara, Gobind son of Gaje Singh, resident of village Nahla and Vicki @ Vikas son of Subhash, resident of village Pabra (accused) are sitting in the fields of Vicky situated at Pabra- Faridpur road. They are possessing illegal arms and if raided, they can be caught red handed. Sub Inspector Arjun Singh tried to join independent witnesses in the raiding party but none agreed. There upon, Sub Inspector formed the raiding party of officials alone and proceeded to the room situated in the fields of Subhash, where four young boys were sitting under a tree near a room. On seeing the police party, with intention to kill, they fired at the police party. The gun shot hit front glass of jeep towards the driver's side and thereafter the said boys made to run from there. There upon, all police officials alighted from jeep and ran after those boys (accused) to nab them. One of them, fired at police party, Sub Inspector Arjun had narrow escape. Police party in self defence also fired at them. Sub Inspector Arjun, fired nine rounds of shots; HC Surender fired six rounds and Constable Ramesh fired two rounds with their service weapons."
It is case of the prosecution that accused-respondents No.1 to 3 were arrested at the spot. From respondent No.1, country made pistol 3.15 bore along with one cartridge was recovered. Similarly, one country made pistol 3.15 bore along with one case of cartridge was recovered from accused-respondent No.2 Sandeep. An Iron rod CRM-A-789-MA of 2012 (O & M) -3- was found in possession of accused-respondent No.3 namely; Gobind. Upon receipt of intimation by SI Arjun, above FIR was recorded. Respondent No.4 was also arrested in the meantime. The Investigating Officer prepared rough site plan of the place of occurrence, recorded statements of the witnesses and on completion of investigation, final report was put in Court. Before that sanction to prosecute as per the provisions of the Arms Act, 1959 was also obtained from the District Magistrate as per rules. Copies of the documents were supplied to the respondents-accused as per norms. The case was committed to the competent Court for trial vide order dated 29.11.2007. Vide order dated 11.3.2011 the respondents- accused were charge sheeted for commission of offences under Sections 353, 307/34 IPC and 25 of the Arms Act, 1959, to which they pleaded not guilty and claimed trial. The prosecution examined 16 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of the prosecution's evidence, statements of respondents-accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. However, they led no evidence in defence.
The trial Judge after discussing evidence of the prosecution in a thread-bare manner observed that the prosecution has failed to bring home the guilt of the respondents-accused and accordingly, they were acquitted of the charge framed against them. The trial Judge has CRM-A-789-MA of 2012 (O & M) -4- rightly noted the material discrepancies and contradictions in the statements made by EASI Ram Chander PW-6 and Inspector Arjun Dhundhara PW-7. Detail discussion has been made in Para No. 20 of the judgment under challenge. It was case of the prosecution that when firing was opened on the police party by the respondents- accused, the members of the police party also fired many shots at them. However, it was rightly noted by the trial Court that the non- collection of empties of the shots fired by the police party (19 in numbers) put the prosecution story in doubt. It was also rightly noted by the trial Judge that the prosecution has failed to fix identity of Vicky accused-respondent No.4, as per law, who was not arrested at the spot. It has also come on record that independent witness was not joined at the time of recovery of the jeep. The trial Court has also noticed material discrepancies regarding number of the seals used on the parcels containing weapons, allegedly recovered from the respondents-accused and also regarding impressions of the seal used on those parcels. The trial Judge has also found that ocular version do not tally with the reports submitted by the Forensic Science Laboratory regarding the weapons recovered. Regarding non-lifting of the empties from the spot, of the shots fired by the police, the trial Judge has observed as under :-
"According to the version of prosecution witnesses 21 rounds of fire were used in occurrence but surprisingly no empty was recovered from the spot, nor police made the effort to collect from the spot. Rather a live cartridge is shown to be recover from pistol of Shailender. It is very strange that accused did not use it, particularly when CRM-A-789-MA of 2012 (O & M) -5- allegedly they wanted to kill police party and had fired at police party with said intention. Strangely empty case was recovered from the person of accused, and not from the spot. Further more, surprisingly, no one was injured in the incident. Police did not bother to pick up broken glass pieces of jeep to support the version that one shot hit the glass of jeep and prosecution also did not dare to produce jeep in the court for the physical verification, nor dare to get the jeep photographed. Contrary, PW 6 stated that he prepared the report as per wish of the investigating officer. In the circumstances, the report Ex.PC showing the jeep had broken glass, indicating hitting of a bullet, can not read against the accused. PW7 Inspector Arjun did not speak in examination-in-chief that bullet hit the jeep or accused while running also fired at them. He did not fully corroborate the prosecution version. This created doubt as to the version of prosecution. There are discrepancies in the statement of PW7 Inspector Arjun and PW16 ASI Ranbir as to where the paper work was done, in which direction the accused ran, kind and number of seals used on the parcels, all these made the version of prosecution witnesses unworthy of reliance."
As per observations made above, this Court feels that the view taken by the trial Judge is perfectly justified and as per evidence on record.
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 CRM-A-789-MA of 2012 (O & M) -6- 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 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 CRM-A-789-MA of 2012 (O & M) -7- 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 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 CRM-A-789-MA of 2012 (O & M) -8- 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 of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
Counsel for applicant-appellant has failed to show any error in law on the basis of which interference can be made by this Court in the judgment under challenge.
Accordingly, the application is dismissed.
(Jasbir Singh) Judge (Rameshwar Singh Malik) Judge 12.10.2012 Ashwani