Punjab-Haryana High Court
State Of Haryana vs Raj Kumar And Others on 26 April, 2013
Bench: Jasbir Singh, Rakesh Kumar Jain
In the High Court of Punjab and Haryana, at Chandigarh
Criminal Misc. No. A-165-MA of 2013
Date of Decision: 26.4.2013
State of Haryana
... Applicant
Versus
Raj Kumar and Others
... Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh, Acting Chief Justice.
Hon'ble Mr. Justice Rakesh Kumar Jain.
Present: Mr. Anil Rathee, Additional Advocate General, Haryana, for the applicant.
Jasbir Singh, Acting Chief Justice (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 1.12.2012. Vide this judgment, the respondents were acquitted of the charges framed against them. It was an allegation against them that on 2.5.2010, they had caused injuries to Sombir son of complainant-Mai Ram. All the three respondents along with Kuldeep and Shyam Sunder alias Shyam were made to face trial. During pendency of the proceedings, Kuldeep and Shyam Sunder alias Shyam were declared as Proclaimed Offenders.
The process of law was started on a statement made by Mai Ram (PW.11), which was recorded by Sub Inspector Kirori Lal (PW.12). The trial Judge has noted the following facts regarding case of the prosecution:-
Criminal Misc. No. A-165-MA of 2013 2
"that on 02.05.2010, at about 10:00 A.M., son of complainant Mai Ram namely Sombir was having a tea while sitting in the courtyard and the complainant was also present in the house. The gunman had left away without informing them. In the meanwhile, two motor cycles came there. Two boys entered into their house by opening doors out of whom one was Raj Kumar son of Mahavir, Jat by caste, resident of Isharwal and another was Raj Kumar's brother-in-law namely Anil Kumar son of Sale Bhan, Jat by caste, resident of Golagarh. Both of them fired shots from their pistols at his son Sombir. Bullets hit his son in his abdomen and other parts of his body. Complainant and his son raised alarm, "MAAR DIYA-MAAR DIYA" and when his son ran towards the room for hiding himself, both of them went out from the door along with their pistols and fled away by riding on two separate motorcycles which were standing outside along with the motorcyclists. The entire incident was witnessed by his son Ombir, daughter Ravita and wife Kitabo. He sought action against the accused. On statement Ex. PA made by complainant Mai Ram, FIR Ex.PB came to be registered against the accused. Investigation came into motion."
The Investigating Officer went to the place of occurrence and prepared rough site plan of that place with correct marginal notes. He also recorded statement of the witnesses and on completing other formalities, final report was put in Court against respondents No.1 and 2. Criminal Misc. No. A-165-MA of 2013 3 Respondent No.3 was summoned to face trial, on an application moved by the prosecution under Section 319 Cr.P.C.
Copies of the documents were supplied to the respondents/accused, as per norms. The case was committed to the competent Court for trial on 8.11.2010. The respondents/ accused were charge sheeted to which they pleaded not guilty and claimed trial.
The prosecution, to prove its case, produced 15 witnesses and also brought on record documentary evidence. On conclusion of the prosecution evidence, separate statements of all the respondents/accused were recorded under Section 313 Cr.P.C. Incriminating evidence appearing on record was put to them which they denied, claimed innocence and false implication. They also led evidence in defence.
The trial Judge has noted contradictions on material facts, in the statement made by Mai Ram (PW.11). By giving sufficient reasons in paragraphs No. 13, to 16, testimony of the above witness has been rejected. It is further noticed that the alleged eye witnesses have made an attempt to put up a false version of the entire episode.
When giving benefit of doubt to the respondents/accused, it was observed as under:-
"17. Having made the comparative study of cross- examinations of both medical officers, referred to above, it is clear that, as per the examination conducted by the Government doctor PW10, patient was fully conscious and he did not disclose the factum who had assaulted him and what Criminal Misc. No. A-165-MA of 2013 4 kind of weapon was used for causing his injuries, otherwise, the same would have been mentioned by the doctor. No blood was oozing out of the injuries at the time of examination, nor was found on the body near the injuries. He did not refer the patient to any other hospital but at his own he left the hospital at 12:20 P.M. on 02.05.2010 without advice of Surgeon or Ortho-paedician as per Bed-Head Ticket, nor he disclosed any kind of weapon due to which he could not ascertain as to what kind of weapon was used for causing injuries on his person. So, what was the hitch and hurry before patient Sombir when he was fully conscious and normal in Government Hospital, Hisar on 02.05.2010 to rush to the private hospital run by Dr. Tarun Sapra in Hisar without doctor's advice and without his being referred by the Government Hospital. Therefore, admission of this patient in Tarun Sapra's hospital at 11:00 A.M. on 02.05.2010 is completely falsified. His condition fictitiously shown as serious by Dr. Tarun Sapra seems to be based on concocted story. Prosecution could not explain this reason as to why patient at his own left the hospital without his being referred to any other hospital and why he got himself admitted in a private hospital named as Sapra Hospital, Hisar run by Dr. Tarun Sapra which is known in the area for showing false injuries on the person in lieu of money. This is another factor which makes the story of the prosecution doubtful.Criminal Misc. No. A-165-MA of 2013 5
18. Patient did not disclose the weapon, injuries nor the factum who assaulted him when he first time admitted in Government hospital and examined by PW10. Even at the time of his examination at 12:00, noon, blood was not oozing out from the injury nor was found near thereby on the body of the injured, that is why, he has not been referred by this doctor to any other hospital but without referring him he got himself admitted in the hospital run by Dr. Tarun Sapra PW7 who found the patient so serious on same day because of injuries so as to became unfit to record the statement to the police and when he was operated by Dr. Tarun Sapra on 02.05.2010, he found bullets in his body. Police paid visits repeatedly in his hospital as on 02.05.2010 for recording the statement of the patient but despite that, bullets were handed over by him to ASI Suresh Kumar only on 21.09.2010. It is very surprising fact that doctor did not hand over the bullets which he got recovered from the body of injured Sombir on 02.05.2010 till 21.09.2010 but he took lame excuse that Investigating Officer did not ask him to hand over the bullets though he had preserved the bullets in a bottle but, during his cross- examination, he could not tell as to whether that bottle was of a glass or a plastic bottle. He deposed that he had affixed hospital's seal on the parcel of the bullets. He started the operation at 12:30, noon and finished it up to 3:30 P.M. whereas patient was under the control of PW10 Dr.Puneet Criminal Misc. No. A-165-MA of 2013 6 Loona in Government Hospital, Hisar upto 12:00, noon to whom he did not disclose the story of bullet or assault. This suggests the falsification in the statement of Dr. Tarun Sapra. Either Dr. Tarun Sapra is guilty or the Investigating Officer of the case is guilty with regard to the withholding of the bullets, which were recovered by Dr. Tarun Sapra during operation of the injured, since 02.05.2010 but handed over to police on 21.09.2010 which drags the story of the prosecution towards falsification. Here, the statement of Suresh Kumar PW3 becomes more relevant who deposed that on 21.09.2010 he obtained the letter which was taken out from the injured in Sapra Hospital, Hisar and after converting into a sealed parcel which was taken into possession vide memo Ex.PH, and was got attested by Dr. Tarun Sapra. He recorded the statement of witnesses under Section 161 Cr.P.C. So, the statement of Dr.Tarun Sapra and Suresh Kumar PW3 do not tally with each other regarding demand of handing over bullets allegedly recovered from the body of the injured by Dr.Tarun Sapra which makes the story of the bullets unworthy of credence.
19. Complainant Mai Ram again appeared in the witness-box as PW11 and Sombir injured appeared as PW13. Complainant gave a new version that he was standing just before the gate of room in Verandah of his house and he saw Manjit when he was fleeing from the spot after firing the bullets and he noticed accused Manjit when he was standing Criminal Misc. No. A-165-MA of 2013 7 outside his house but he could not tell the number of motorcycle and he tried to run behind the motorcycle to identify the assailants. The security personnel had left his house prior to the incident without any intimation. So far no written complaint had been made by him to the Higher Authorities for taking action against the security personnel who left the house of the complainant without any intimation which makes it doubtful that absence of the security personnel has been willfully shown by the complainant so that he could not be examined in this case, otherwise, the genuine story of the case would be unearthed. But, during his cross- examination, he has changed his version by stating that he remained in his house till arrival of the police on the day of occurrence but earlier he stated that he ran behind the assailants in order to identify the assailants after the incident.
20. A person whose son got bullet shot injuries and admitted in serious condition in the hospital and operated there in Hisar which is not much far away from Tosham is not expected being father not to pay even a single visit to see him but it is so happened in this case because complainant himself deposed during his cross-examination that he did not go to Jindal Hospital along with his son for his treatment and without going to Hisar he deposed on the idea basis that firstly his son was admitted in Jindal Hospital and thereafter, he was admitted in Sapra Hospital, Hisar. He absolutely omitted the Criminal Misc. No. A-165-MA of 2013 8 idea of admission of his son in the Government Hospital, Hisar whereas, as per statement of PW10, injured Sombir admitted in Government Hospital, Hisar and remained there up to 12:20 P.M. This gentleman never went to the hospital to meet his son. How it is possible for father not to go to hospital even to meet his injured son. So, it shows that injured had not actually received bullet injuries on his person at the behest of accused, otherwise, his father would have certainly paid the visit, had he suffered the injuries and would have admitted in serious condition in Hisar. So, it strengthens the case of the accused by drawing an inference that no injury had been caused by them.
21. He (complainant) admitted that accused Raj Kumar is the son of his brother Mahabir and Anil Kumar is the brother-in-law of accused Raj Kumar. His brother Mahabir is having only one son and one daughter and there is none to look after the land of Mahabir because his daughter is married who does not use to come to the village and his wife had already died whereas Mahabir is missing for a long time. In such a situation, it seems to be impossible for Raj Kumar, to have fired on the son of complainant, who is already facing the ordeal of mental agony because his father is missing, his mother has already died, his sister is already married whose husband has already been dragged in this case and none is behind him to look after his land. So, what was the purpose to Criminal Misc. No. A-165-MA of 2013 9 caused bullet shot injuries to his cousin nothing is appearing, rather it appears to me that he is being dragged and involved in the false case by the complainant and his son Sombir in connivance with police and Dr. Tarun Sapra so that his agricultural land may be utilized by them in his absence. Various material contradictions and discrepancies have been occurred in the statements of complainant PW11 Mai Ram and his injured son Sombir PW13, which are fatal to the case of the prosecution.
22. Both father and son are discrepant with each other qua the presence of family members inside the house at the time of occurrence, their sitting situation, condition of injured, treatment of the injured and his attendant etc. some of which are pointed out as PW13 Sombir stated that just after two minutes after entering the accused, he became unconscious and he cannot tell as to by whom he was lifted from the house to the vehicle whereas, as per the statement of his father, injured Sombir went on foot and sat in the vehicle for going to hospital Hisar for treatment. As per the statement of the father, Sombir was shucking tea in the courtyard of the house but, as per the statement of injured, his brother Ombir was also taking tea along with him and his father Mai Ram was also taking tea with him at that time whereas Ravita was sitting with them and Manisha and Pooja were playing in the courtyard. How the other members who were sitting with the injured Sombir could Criminal Misc. No. A-165-MA of 2013 10 manage their escape from receiving any bullet injury, nothing has been explained properly by the prosecution nor the other members of the family of the complainant have been examined in this case. It is very strange that as per the statement of Sombir, he never inquired from his family members regarding the departure of the accused from his house but one step ahead he further stated that he inquired from his family members about the firing and they told that they did not receive any injury whereas father-cum- complainant deposed that he never inquired about the status report of injured Sombir since 02.05.2010 till he remained in the hospital at Hisar, nor he visited him. Such type of discrepant statements make the witnesses unworthy of credence which cannot be relied upon till corroboration appears which is lacking in the present case. On the basis of F.S.L. Reports Ex.PA, Ex.PA1 and Ex.PA2, accused cannot be connected with the crime without its corroboration."
It was also noticed that recovery of motorcycle from the respondents/accused was doubtful. To say so, reasons are given in paragraphs No.25 to 27 of the judgment under challenge. It was also observed that there was delay in recording the FIR which the prosecution has failed to explain properly. As to when the police officials reached at the place of occurrence, the statements made by the witnesses were also found discrepant in that regard. This Court feels that the view propounded by the trial Court is perfectly justified and is as Criminal Misc. No. A-165-MA of 2013 11 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 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:
Criminal Misc. No. A-165-MA of 2013 12
"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 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 Criminal Misc. No. A-165-MA of 2013 13 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 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 Criminal Misc. No. A-165-MA of 2013 14 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."
The trial Judge has examined the entire evidence on record in a correct manner. Counsel for the applicant has failed to show any misreading of evidence by the Court below which may necessitate interference by this Court.
Dismissed.
(Jasbir Singh) Acting Chief Justice (Rakesh Kumar Jain) Judge April 26, 2013 "DK"