Punjab-Haryana High Court
State Of Haryana vs Rajesh Etc on 15 December, 2009
Bench: Jasbir Singh, Daya Chaudhary
CRIMINAL MISC. NO. 605-MA OF 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
DATE OF DECISION: December 15, 2009.
Parties Name
State of Haryana
..APPLICANT
VERSUS
Rajesh etc.
...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE JUSTICE MRS. DAYA CHAUDHARY
PRESENT: Mr. P.S.Punia, Addl. A.G., Haryana,
for the applicant.
JASBIR SINGH, J.
ORDER.
State of Haryana has filed this application under Section 378(3) Cr.P.C. for grant of leave to file an appeal against judgment dated April 15, 2009, acquitting the respondents of the charges, framed against them. Application to condone delay of 55 days has also been moved.
It was allegation against the respondents that they, on December 18, 2007, had committed murder of Bijender Singh by causing fire-arm injury to him. FIR was recorded on a statement made by CRIMINAL MISC. NO. 605-MA OF 2009 -2- Sheelawati alias Sona (PW5) wife of the deceased.
Case of the prosecution, as noted by the trial Court in para No. 2 of its judgment, reads thus:
"That on 18.12.2007, SI/ SHO Banarsi Dass of P.S. Civil Lines, Rohtak alongwith other police officials was present at Kishanpura turning on Sonepat Road, Rohtak for patrol duty where the complainant Sheelawati alias Sona wife of Bijender Singh met him and got her statement recorded to the effect that her husband Bijender Singh was practising law at Rohtak court and their family was earlier residing in a rented house belonging to one Inder Singh at Vishal Nagar, Rohtak. In their neighbourhood, ASI Umed Singh, resident of Bhagwatipur and constable Darshan Singh were also residing alongwith their families. About 2/ 2½ months ago the hot exchanges and quarrel between ASI Umed Singh and constable Darshan Singh on the one hand and her husband on the other had taken place. Thereafter, the hot exchanges and a quarrel also took place between Binder alias Bijender, the nephew of said Darshan Singh and her husband. Said Bijender was working as milkman. At the time of quarrel, aforesaid Umed Singh and Darshan Singh etc. had threatened to kill her and her husband but lateron due to intervention of the neighbours, the compromise was effected. Accused Rajesh Deswal resident of Baliana, who is the husband of Upasana , the Sarpanch of village Baliana at the instance of Umed Singh as well as Darshan Singh etc. had visited her and her husband for CRIMINAL MISC. NO. 605-MA OF 2009 -3- compromise between them and Umed Singh and Darshan Singh three four times. Her husband was a counsel for the party, who had filed the case against accused Rajesh. The accused Rajesh had asked her husband to get the matter compromised between him and his opposing party on which her husband told him that he was the counsel of the opposite party, and if he (Rajesh) wanted to compromise the matter, then he should talk to the opposite party. On this account, Rajesh nursed a grudge against her husband but at the same time he became the friend of her husband. Any how, accused Rajesh continued to nurse the grudge against her husband on account of his failure to get effected the compromise between him and his opposite party. Similarly, Umed Singh and Darshan Singh were also nursing the grudge against her husband due to the old ill-will.
3. On 17.12.2007, at about 7.00 p.m., accused Rajesh had telephonic talks time and again from his telephone bearing No. 9813968133 to her husband on the telephone No. 9812126242. Thereafter, that day, i.e. 18.12.2007 at about 7.30/ 8 a.m. Rajesh had again telephoned to her husband with the same telephone number and when the missed calls were received for the fifth time, then she picked up the telephone and Rajesh asked her where her husband was. On this, she replied that he was in the bathroom. However, in the meanwhile, accused Rajesh Baliana, ASI Umed Singh, constable Darshan Singh alongwith other persons whose names she did not know but could identify them by face, CRIMINAL MISC. NO. 605-MA OF 2009 -4- reached her house by one Alto car of grey colour which was without number plate. On knocking the door of her house, she, her Jeth (brother-in-law), Khazan, Nanad (sister-in-law) Ram Rati and Bhanji (niece) Poonam came to the gate. In the meanwhile, her husband Bijender Singh also came out of the door and was asked by those persons to accompany them as they were having some important work with him. Saying so, her husband was made to sit in the car. As soon as their car started, she got suspicious,so, she Khazan, Ram Rati and Poonam ran behind the car and also loudly told her husband that he should get down of the car as the car borne persons were mischievous. The car borne persons were also asked to drop her husband but they threatened that they would not spare him that day and would kill him. On this, her husband, any how got down of the car and those persons tried to catch hold of him (her husband). Then, her husband was shot at his head by Rajesh Baliana after getting down from the car. Rajesh also fired another shot but she could not say as to where the second shot hit him. On receipt of the fire arm injuries, her husband fell down. ASI Umed Singh, constable Darshan Singh and other companions of Rajesh gave a Lalkara that he should be given more injuries so that he might not remain alive. When they raised noise, the culprits CRIMINAL MISC. NO. 605-MA OF 2009 -5- left the place after boarding their car alongwith their respective weapons. "
On registration of an FIR, Investigating Officer- SI Banarsi Dass (PW21) came in action. After recording statement of Sheelawati (PW5), he went to the spot, conducted inquest proceedings on dead body and sent it for post-mortem examination. He also prepared rough site plan of the place of occurrence with correct marginal notes and lifted blood-
stained earth from the spot. He also recovered one fired bullet and one empty cartridge of .315 bore and one empty cartridge of 9 MM bore from the spot, which were taken into possession against recovery memos. He recorded statements of the eye witnesses, i.e., PW2 Khazan Singh , brother of the deceasaed, PW3 Poonam , niece of the deceased, and PW4 Ram Rati , sister of the deceased. Thereafter, investigation was taken over by Inspector Satpal Singh (PW23), before whom all the respondents- accused were produced on December 22, 2007, by PWs Umed Singh and Sukhbir Singh. On interrogation, they suffered disclosure statements, which led to the recovery of weapons of offence , mobile phones and Alto car, in which they had allegedly come to the scene of occurrence. Above said articles were taken into possession against recovery memos. On completion of investigation, final report was put in Court.
Respondents were charge-sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced 25 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statements of the respondents were recorded under Section 313 Cr.P.C. Incriminating material, existing on record, was put to CRIMINAL MISC. NO. 605-MA OF 2009 -6- them, which they denied, claimed innocence and false implication. However, they led no evidence in defence.
The trial Court, on appraisal of evidence, held that the prosecution had failed to prove its case against the respondents. Accordingly, they were acquitted vide the impugned judgment. Hence this application.
After hearing the State counsel, this Court is of the opinion that the prosecution has failed to bring on record any evidence against the respondents. As per case of the prosecution, it was an eye witness account. In the FIR, it was stated that the occurrence was seen by Sheelawati wife of the deceased and Khazan Singh (brother of the deceased), Poonam (niece of the deceased) and Ram Rati (sister of the deceased). However, during trial, none supported case of the prosecution. Above named witnesses were declared hostile and were cross-examined at length by the Public Prosecutor. However, nothing tangible was elicited from them. PW5 Sheelawati has denied that she had signed statement Ex. PJ. The prosecution had also relied upon extra-judicial confession, allegedly made by the respondents before Umed Singh (PW7) and Sukhbir Singh (PW8). Both the above named witnesses failed to support case of the prosecution during trial. They have specifically stated that accused were not known to them and made no statement before them, as projected by the prosecution. Both the witnesses were declared hostile and cross-examined by the Public Prosecutor. However, nothing favourable to the prosecution was extracted from them. Recovery of weapons of offence was also rightly disbelieved by the trial Court. Disclosure statement was stated to have been made before Dalbir Singh (PW10), who failed to support case of the prosecution CRIMINAL MISC. NO. 605-MA OF 2009 -7- during trial. Witnesses to the recovery have also resiled from their statements. Merely because as per Forensic Science Laboratory's report (Ex PY), recovered empty cartridges and the bullets were fired from the pistols allegedly recovered from Sanjay and Kanwaljeet ( respondents) verdict of guilt cannot be passed against them. The witnesses to the recovery have categorically stated that these weapons were not recovered in their presence as alleged.
Counsel for the applicant has failed to indicate any misreading of evidence on part of the trial Court, which may necessitate any interference by this Court. View taken by the trial Court is perfectly justified and as per evidence on record.
Even in cases where two views are possible, ordinarily, the view taken by the trial Court in favour of the accused is to be accepted.
Their Lordships of the Supreme Court in Allarakha K. Mansuri v. State of Gujarat, 2002 (1) RCR (Criminal) page 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) page 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 CRIMINAL MISC. NO. 605-MA OF 2009 -8- merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
Counsel for the State has failed to show that the judgment, under challenge, is perverse or based on misreading of evidence on record.
In view of facts, mentioned above, Criminal Misc. No. 605-MA of 2009 is dismissed.
As the the main application has been dismissed, Cr. Misc. No. 56784 of 2009 for condonation of delay has become infructuous and the same stands disposed of accordingly.
(JASBIR SINGH) JUDGE ( DAYA CHAUDHARY) JUDGE December 15, 2009.
DKC