Punjab-Haryana High Court
Sardar Singh vs The State Of Haryana And Others on 20 March, 2012
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
Crl.Misc.No.A-164-MA of 2012(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.Misc.No.A-164-MA of 2012(O&M)
Date of decision: 20.03.2012
Sardar Singh
.....Applicant
versus
The State of Haryana and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mrs.Justice Sabina
Present: Mr.Sushil Bhardwaj, Advocate for the applicant
Jasbir Singh, J.
Sardar Singh (PW4), the complainant, has filed this application under Section 378(3) Cr.P.C., seeking leave to file an appeal against judgment dated 17.12.2011, acquitting respondent Nos.5 to 9 of the charge framed against them. In this application, a further prayer has been made that sentence awarded to respondent Nos.2 to 4 is on the lower side and it be enhanced.
As per record, an FIR No.34 was registered against respondent Nos.2 to 9 on 20.6.2009 for commission of offences under Sections 148, 149, 323, 307 IPC and Section 27 of the Arms Act, 1959 in police station Naggal. It was allegation against respondent Nos.2 to 9, that they in furtherance of their common intention, after forming an unlawful Crl.Misc.No.A-164-MA of 2012(O&M) 2 assembly, have caused injuries to Sardar Singh (PW4)/ the applicant, Labh Singh (PW5), Parkash Singh (PW6) and Parvinder Singh (PW7). Sardar Singh (PW4) was medico legally examined by Dr.Harsh (PW11). One lacerated wound was found at his person (MLR Ex.PM). Similarly, on medical examination of Labh Singh (PW5) two lacerated wounds were found at his person (MLR Ex.PN). PW6 Parkash Singh was also medico legally examined and Dr.Harsh (PW11) found two lacerated wounds at his body. In the same manner, PW7 Parvinder Singh was also medico legally examined. Three lacerated wounds were found at his person.
Thereafter, Dr.Harsh (PW11) sent a Ruqa (Ex.PQ) to the police post, Urban Estate, Sector 7, Ambala City.
Process of investigation was started by ASI Atma Ram (PW13) on receipt of a telephonic information that a quarrel has taken place in village Niharsi. Above officer reached the said village and came to know that the injured have already been shifted to Government Hospital at Ambala City. He reached the hospital and collected Ruqa Ex.PQ and medico legal reports of the injured. On his application, Sardar Singh (PW4) was declared fit to make a statement. His statement (Ex.PF) was recorded by ASI Atma Ram (PW13).
The trial Judge has noted the following facts from the statement made by PW4:-
"It is stated that I am the resident of the above stated address and am an agriculturist. I am the present Sarpanch of village Niharsi. I and my brothers Parkash Singh, Singar Singh, Crl.Misc.No.A-164-MA of 2012(O&M) 3 Gurmeet Singh, Surjit Singh and Pala Singh sons of Shri Mehar Singh and Bhajan Singh son of Labh Singh residents of the said village, are the joint owners of the land measuring 7 kanals 11 marlas falling in village Tangri, comprised in Khewat No. 521. We purchased the share of Lakhbir Singh and Bhag Singh sons of Mangal Singh, from them, about three months ago. Resham Singh and his sons Sukhdev Singh and Nihal Singh started asking us as to why, we had purchased the land of their uncle. Today on 20.6.2009 at about 8.45 hours, Balkar Singh, and Parkash had gone from home on a tractor. I and uncle Labh Singh were sitting on the bore of the fields. From the side of the village Nihal Singh, Sukhdev Singh sons of Resham Singh, Resham Singh son of Mangal Singh, Nirmal Singh son of Resham Singh, Bhupinder Singh son of Madan Singh @ Maddi, Sushil Kaur w/o Resham Singh and wives of Sukhdev Singh and Nihal Singh, came. We also stood up from the tube-well and started following them. Sukhdev Singh and Nihal Singh were armed with guns. Immediately on reaching, Resham Singh gave a lalkara to fire a shot for purchasing their land. They will not allow us to plough the land. When we tried to stop them, Nishan Singh fired a shot from his gun. Its fire hit me on my fore-head. Then Dev also fired a shot from his gun. Its pallets hit the left arm of Parkash Singh. Then they both started firing Crl.Misc.No.A-164-MA of 2012(O&M) 4 indiscriminately. Two pallets hit Labh Singh on his neck and chest. In the meanwhile, son of Parkash Singh came running from the fields. Pallets also hit him on his arm and right leg. The accompanying women continued pelting brick bats. When their guns mis-fired, we came out of the blockade and snatched their guns. They again snatched guns from us and started assaulting us with those very guns. We went running and took the shelter of our tractor. They started assaulting us with their guns from near the tractor. Their guns hit the harrow of the tractor. The guns were broken. Nihar Singh was after me with his gun. Sukhdev Singh was after Labh Singh. In the meanwhile, Hardeep Singh son of Santa Singh and Faquir Chand son of Missi Lal, caste Balmiki came at the spot. They rescued us from them. The village people came to know about our fighting. They also came running to the fields. After seeing our family members coming, Sukhdev Singh and Nihal Singh, after leaving their broken guns at the spot, fled away. Son of my uncle namely Gurnam Singh son of Labh Singh picked up the said guns and cartridges and kept the same on one side. They had fired upon us with an intention to kill us but we were saved. We received not only one but two pallet injuries."
On getting intimation from ASI Atma Ram (PW13), an FIR (Ex.PH/1) was recorded in police station Naggal against the respondents Crl.Misc.No.A-164-MA of 2012(O&M) 5 by ASI Harpal Singh (PW9).
PW13 recorded the statements of the injured, again went to the spot, got prepared a rough site plan (Ex.PX) with correct marginal notes. During investigation, he also took in his possession three empty cartridges, two alive cartridges and two missed rounds and two empty cases of 12 bore gun. He also took in his possession a broken guns along with belts of the rounds and two broken handle/ butt. Above articles were taken in possession against a recovery memo (Ex.PL).
Accused were arrested during investigation. On disclosure statements made, more incriminating material was recovered. After getting report from FSL Madhuban and completing other formalities, final report was put in Court. Copies of the documents were supplied to the accused as per norms. Case was committed to the competent court for trial.
The accused were charge sheeted on 1.4.2010, to which they pleaded not guilty and claimed trial. The prosecution produced 13 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, separate statements of all the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them which they denied, pleaded innocence and false implication. It was further stated by them that the complainant party was the aggressor and came to get possession of the land qua which an interim injunction has already been granted in favour of the accused party. It was further stated by the accused that when the Crl.Misc.No.A-164-MA of 2012(O&M) 6 complainant party started destroying their crop, they were asked to stop it, which resulted into a scuffle. Some shots were fired in self defence. It was further stated that respondent Nos.2 to 4 also received injuries at the time of above occurrence. They were also admitted in the Civil Hospital Ambala City, where they were medico legally examined. Despite request made, the police did not take any action against the opposite party. In their statements under Section 313 Cr.P.C., Sushil Kaur and Manjit Kaur denied their presence at the spot. Babaljit Kaur respondent took up a stand that she was at her place of posting as an Anganwari Worker in village Niharsi. Accused also led evidence in defence.
The trial Court on appraisal of evidence found respondent Nos.2 to 4 guilty. Accordingly, they were convicted for commission of offences under Sections 323, 307/34 IPC and accused Sukhdev Singh and Nihal Singh were also convicted under Section 27 of the Arms Act, 1959, vide judgment dated 17.12.2011. They were sentenced to undergo RI for five years with fine for offence under Section 307/34 IPC and sentenced to undergo six months RI with fine for an offence under Section 323/34 IPC. Sukhdev Singh and Nihal Singh respondents were convicted under Section 27 of the Arms Act, 1959 and ordered to undergo RI for three years.
It is contention of counsel for the applicant that when acquitting respondent Nos.5 to 9, the trial Judge has failed to appreciate and analyse the evidence on record in a proper manner. It is further stated that the punishment awarded to respondent Nos.2 to 4 was on the lower side. He prayed that application be allowed, leave to file an appeal be Crl.Misc.No.A-164-MA of 2012(O&M) 7 granted.
After hearing counsel for the applicant, this Court is not inclined to interfere in the judgment and order under challenge.
When giving benefit of acquittal to respondent Nos.5 to 9, the trial Judge has observed as under:-
32. I may also state that both the parties have admitted the occurrence in question. However, they are at variance regarding its manner and its participants. The accused side says that the complainant and others trespassed into the above said land and caused injuries to the accused Nihal Singh, Sukhdev and Bhupinder Singh. As against their such stand, the complainant side says that it was the accused side which caused injuries to them in the manner set forth by the prosecution. Since it has been held that on 20.6.2009, accused side was in cultivating possession of the said land and the complainant side has admitted that they had gone to the said land for cultivating it, in my opinion, it was the complainant side which was the aggressor in the instant case.
33. I may also state that the accused side says that only three persons namely Nihal Singh, Sukhdev Singh and Bhupinder Singh were present at the place of occurrence.
The deposition of PW4 to PW7 and contents of the statement Ex.PH show that although all the accused have been named therein, yet, the material overt acts have been attributed to Crl.Misc.No.A-164-MA of 2012(O&M) 8 the accused Sukhdev, Nihal and Bhupinder Singh. Lalkara has also been attributed to the accused Resham Singh. Attribution of Lalkara to the accused Resham Singh appears to be an improved version of the occurrence in question. A perusal of the MLRs Ex. D1 to Ex.D3 shows that accused Nihal Singh, Sukhdev Singh and Bhupinder were admitted on 20.6.2009 itself to the hospital in an injured condition. If Resham Singh and other remaining four accused would have been present at the spot, some injuries might have also been caused to them. However, it is not so in the instant case. In the said factual backdrop, the deposition of the prosecution witnesses and the contents of the statement Ex.PF that the remaining five accused were also present at the place of occurrence does not appear to be correct. It appears that they have been named in the case in question just to rope in all the family members of the accused side. Their involvement in the instant case does not appear to be correct. From the totality of the facts and circumstances, I am satisfied that they were not present at such place. The contents of the statement Ex.PF and the deposition of PW4 to PW7 against them, therefore, does not inspire confidence. The same is/are disbelieved to that extent."
This Court is of the opinion that the finding giving by the trial Judge is perfectly justified and is as per record. It has rightly been noted Crl.Misc.No.A-164-MA of 2012(O&M) 9 that the complainant side were the aggressors. It has also come on record that matter was pending before the Civil Court and stay order was in existence in favour of the respondent party. It was also rightly observed by the trial Court that in the first statement, only three accused (respondent Nos.2 to 4) were named as the assailants. Thereafter, in the subsequent statement, number was increased and other members of the family were also involved in this case. Finding giving in paragraph No.33 giving benefit of acquittal to respondent Nos.5 to 9 is as per 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."Crl.Misc.No.A-164-MA of 2012(O&M) 10
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 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
Crl.Misc.No.A-164-MA of 2012(O&M) 11
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 Crl.Misc.No.A-164-MA of 2012(O&M) 12 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 of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
Counsel for the applicant has failed to indicate any misreading of oral as well as documentary evidence on record by the trial Court. No case is made out for interference.
Dismissed.
(Jasbir Singh)
Judge
20.3.2012 (Sabina)
gk Judge