Punjab-Haryana High Court
Surender Singh vs State Of Haryana And Others on 30 November, 2011
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.Misc.No.A-409-MA of 2011
Date of decision: 30.11.2011
Surender Singh
.....Applicant
versus
State of Haryana and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mrs.Justice Sabina
Present: Mr.Ashwani Bhardwaj, Advocate for the applicant
Jasbir Singh, J.
Respondent Nos.2 to 4 were put to face trial for commission of an offence under Section 307/34 IPC and also under Section 25 of the Arms Act, 1959 (in short, Arms Act), on the basis of an FIR No.289 registered on 11.10.2009.
The trial Court has noted the following facts regarding case of the prosecution:-
"In brief, it is the case of the complainant Surender that he is a resident of village Birhi-Kalan and an agriculturist by profession; that yesterday i.e. on 10.10.2009 around 8-8.30 PM when he along with Harender son of Surat Singh and Purshotam son of Karan Singh, was waiting for his relative at the bus stand, accused Bhupender alias Bulle son of Jai Narain, Surender son of Jai Narain, Jai Narain son of Ram Sawrup, Golia alias Pardeep son of Jagta, Ram Avtar son of Crl.Misc.No.A-409-MA of 2011 2 Rati Ram, Hem Chander son of Ram Avtar, Pardeep son of Babla alias Satish, Sombir son of Sant Ram, Mahender son of Jagdish, all residents of village Birhi-Kalan, came in a jeep and an Alto car and on reaching, they tried to surround them; that accused Bhupender and Sombir started firing; that Sombir fired a shot at him from his pistol which passed by touching his head whereas the shot fired by Bulle from his pistol hit the finger of left hand of the complainant. Thereafter, when he tried to run away, Jai Narain, Surender, Golia, Ram Avtar, Hem Chander, Pardeep and Mahender caught hold of him and then Bulle started firing at him and one bullet hit him on his left thigh and he fell in a pit near the road and even then he fired two-three more shots there which passed by and did not hit him; that those persons also took away his mobile phone make Micromax-211 bearing SIM No.9813155867 with them; that earlier also, those persons had attacked him with sharp- edged weapons on 13.09.2009 and had threatened to kill him, if the matter was reported to the police; that due to this reason, they have again attacked him."
On the basis of above allegations, the respondents were arrested. Investigation was completed as per norms. Thereafter, final report was put in Court for trial. All the accused were charge sheeted, to which they pleaded not guilty and claimed trial. Prosecution produced eleven witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, statements of the 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 Crl.Misc.No.A-409-MA of 2011 3 implication. Sombir respondent No.3 alleged that he was not present at the place of occurrence and on account of old enmity he has falsely been implicated in this case. Mahender respondent No.4 stated that a false case has been registered against him without any justification. Bhupinder alias Bhulle respondent No.2 stated that no such altercation as stated by the prosecution has taken place. He is a Sarpanch of the village and case has been registered against him on account of political rivalry. Respondent Nos.2 to 4 also led evidence in defence.
The trial Court on appraisal of evidence, held respondent Nos.2 and 3 guilty of the offences with which they were charged. They were convicted for commission of an offence under Section 307 IPC and sentenced to undergo RI for a period of five years and to pay a fine of Rs.25,000/- each with a default clause. Respondent No.3 Sombir was further sentenced to undergo RI for a period of one year with a fine of Rs.1000/- for commission of an offence under Section 25(1)(1B)(a) of the Arms Act with a default clause.
However, by giving benefit of doubt, respondent No.4 Mahender was acquitted of the charges framed against him. Qua him, it was observed as under:-
"51. As far as accused Mahender is concerned, he had no previous enmity with the complainant as it could not be established the way it has been established against accused Bhupinder and Sombir. No overt act was attributed to accused Mahender. There is no cogent evidence against him in view of the fact that he was stated to be one of the persons who surrounded the complainant. Surrounding of him was attributed to many persons by the complainant and that theory Crl.Misc.No.A-409-MA of 2011 4 was disbelieved by the police and subsequently by the Court in the proceedings under Section 319 of the Code of Criminal Procedure, 1973. In the totality of the facts and circumstances of the case, this Court is of the considered opinion that the case against accused Mahender is doubtful."
This application seeking leave to file an appeal has been filed with a prayer that punishment awarded to respondent Nos.2 and 3 is less and acquittal of respondent No.4 Mahender was not justified. As per facts, medico legal examination was conducted on Randhir Singh on 10.10.2009 by Dr.Nitin Kalra (PW8), who found the following injuries on his person:-
"i) Wound on the left thigh circular deep on the middle frontal area, blackness was present around it. Wound was in size of 2 cm x .5 cm and it was blunt. X-ray was advised. Duration was 24 hours.
ii) A wound on the back of the thigh 2 cm x .5 cm, blunt, duration was 24 hours.
iii) A circular wound on the right hand 2 cm x .5 cm, blunt, duration was 24 hours.
iv) Two abrasion on the left hand, blunt, duration was 24 hours.
v) Abrasion on the occipital region of scalp 2 cm x .5 cm, blunt and duration 24 hours."
All the injuries are on the non-vital part of the body. Taking note of the same, this Court is of the opinion that punishment awarded is perfectly justified. So far as respondent No.4 Mahender is concerned, it has rightly been held by the trial Court that his participation in the alleged crime was not proved on record. It has also come on record that during Crl.Misc.No.A-409-MA of 2011 5 investigation, he was declared innocent, however, thereafter he was summoned to face trial under the provisions of Section 319 Cr.P.C.
This Court is of the opinion that the order passed, qua Mahender respondent is perfectly justified and is as per evidence on record. It is a case where the view taken by the trial Judge is possible.
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, (Criminal Appeal No. 1719 of 2011), decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, Crl.Misc.No.A-409-MA of 2011 6 in which interference can be made in a judgment of acquittal, by observing as under:
"8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-
appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are Crl.Misc.No.A-409-MA of 2011 7 "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." Counsel for the applicant has failed to bring to our notice misreading of evidence or error of law, which may necessitate interference by this Court in the impugned judgment.
Dismissed.
However, any observation made in this order shall not affect rights of both the parties in any other litigation.
(Jasbir Singh)
Judge
30.11.2011 (Sabina)
gk Judge