State of Haryana vs Ajmer Singh etc.

Uma Nath Singh, J.—This judgment shall also dispose of Crl. Revision No. 531 of 1997,filed by the complainant, as both the matters arise out of a judgment dated 7.9.1996, passed by the learned Additional Sessions Judge, Karnal, in Sessions case No. 45 of 1996 (Sessions trial No. 39 of 1996), recording acquittal of the accused persons of the charges under Sections 307/34 and 452 IPC.

As per the prosecution case, an information was received at 4.30 PM on 4.7.1989 in Police Post, Toraori, that one Ram Kishan had been admitted in General Hospital, Karnal, in injured condition. Head Constable Rajbir Singh (PW 8) accordingly went to the hospital, and recorded the statement of his son Ishpal, on the basis of which an FIR ( No. 317) was registered against accused Rajpal and others in respect of the main occurrence where Ram Kishan had sustained injuries. As regards the present incident, the complainant, Ishpal, who claimed to be the eyewitness, stated that after the main occurrence had taken place near the field of one Kirtu Brahmin, the present occurrence (second one) took place when his uncle injured Ramdhari reached the village. He was assaulted by accused Naresh and Ram Kumar. However, the complainant could not give the details as to in what manner the incident had taken place. After recording the statement of the complainant; on 6.7.1989, ASI Yad Ram (PW 4) of PS Butana recorded the statement of injured Ramdhari himself in the hospital. He also seized one parcel containing the shirt of the injured which had been handed over to him by Dr. Rakesh Mittal of General Hospital, Karnal, vide memo Exh. PD. The injured was referred to for radiological examination and Dr. R.S.Chaudhary (PW 1) conducted the x- ray examination. He found a fracture on parieto occipital region vide x-ray report Ex. PA. However, the police did not seek the opinion of Physician Dr. Rakesh Mittal, who had initially medically examined the injured and had referred the patient for radiological test. On the contrary, they sought the opinion of the Radiologist, as to the nature of injuries and not of the Surgeon, Dr.Mittal, who had initially examined the injured. The Radiologist opined that injury No. 1 located on the person of Ramdhari was dangerous to life.

The prosecution examined as many as 11 witnesses.

Dr. R.S. Chaudhary, Radiologist (PW 1), had examined the injured on 6.7.1989 and vide his opinion had declared injury No. 1 to be dangerous to life. Jai Bhagwan (PW 2) prepared a site plan (Ex. PC) of the scene of occurrence, being the house of Ramdhari, on 31.8.1989. Though Ramdhari claimed to have an enclosure attached to his house, but the site plan does not support it and the assertion is belied. Further, vide the site plan, the height of the boundary wall of the house was found to be six feet, and the house opened towards South in the street. SI Randhir Singh (PW 3) prepared the report u/s 173 Cr.P.C., and submitted a challan. ASI Yad Ram (PW 4) recorded the statement of injured Ramdhari on 6.7.1989, and took the possession of his shirt from Dr.Rakesh Mittal vide memo Ex. PD. ASI Phool Singh (PW 5) recorded the FIR No. 317 (Exh.PD/2) relating to the main occurrence on 4.7.1989 on receipt of a ruqa as per the statement of complainant Ishpal (Ex. PD/1). Dr.Rakesh Mittal (PW 6), had initially medico legally examined Ramdhari on 4.7.1989 at 8.15 PM, and had noticed five injuries on his person. The first injury was an incised wound of 9 cm. x 2.5 cm. bone deep on the right parietal region on the head. The second injury was also an incised wound of 5cm x 1 cm. bone deep on the left parietal region. The third one, also an incised wound of 1 cm. x 0.5 cm., was found located on the left side of back of chest. The fourth injury, also an incised wound, of 1 cm. x 0.5 cm., had been received on epigestic region, and the fifth one was only a reddish abrasion of 3 x 0.5 cm. on the left side of the back of abdomen. Dr. Mittal had opined that all the injuries be kept under observations and his opinion was awaited. Injury No. 5, however, was opined to have been caused with a blunt weapon, and the rest of the injuries with sharp edged weapons. He recorded the duration of injuries to be within six hours vide the MLR (Ex. PG). He also mentioned that he had sent a ruqa (Ex. PH) to the Incharge, Police Post, General Hospital, Karnal, on 4.7.1989 on admission of the injured with multiple injuries. On being showed two gandasis (Ex. P2 and P3) in the court, the witness stated that possibility of injury Nos. 1 and 2 having been caused with these weapons was not ruled out. However, he also opined that injury Nos. 3 and 4 were not possible with these gandasis. In his cross examinations, he has categorically stated that he could not get the x-ray report for Surgeon''s opinion regarding the nature of injuries on the person of injured Ramdhari, and therefore, he could not give any opinion as such. The same day he had also examined Chamel Singh, an accused in the main case, and in the cross examinations, the doctor has stated that Chamel Singh had received 10 injuries. He had been examined at 4.30 PM on 4.7.1989. Out of those 10 injuries which he had noticed, 8 injuries were incised in nature. Out of the rest two, one was reddish blue contusion, and the other, an abrasion. The MLR of Chamel Singh was exhibited as Ex. DA. Moreover, the doctor has categorically stated that a possibility that the injuries of Ram Dhari and Chamel Singh had been received at the same time in the same incident was not ruled out.

Dilbagh Singh (PW 7) arrested accused Ajmer Singh, Chander Bhan, Naresh, and Ram Kumar on 15.7.1989. On disclosure and production by accused Ajmer Singh and Chander Bhan, he seized two gandasis, and from the rest two accused he seized two lathis. He had also moved an application to the Radiologist for opinion vide Ex. PB/1 who gave an opinion vide Ex. PB/1 that injury No. 1 located on the body of Ramdhari was dangerous to life. ASI Rajbir Singh (PW 8) was posted as Head Constable at that time. He had inspected the house of injured Ramdhari on 5.7.1989, and had lifted blood stained earth from the courtyard of that house vide Ex. PJ, which was attested by complainant Ishpal and Smt.Roshni Devi, wife of the injured. He had also prepared a site plan Ex. PK. In his cross examinations he has stated that he had received informations about the occurrence at 4.30 PM on 4.7.1989. He has proved the recoveries and seizures effected during the investigations. However, he has also admitted to have examined Smt. Roshni, wife of the injured, who had been set up as an eye-witness but was not produced later on. Ramdhari (PW 9) is the injured witness. He has narrated that on 4.7.1989 when he was returning home from another village Bajida at about 5-6 PM , in front of his house, four accused persons namely Ajmer, Chander Bhan, Naresh and Ram Kumar caused assaults on him. According to him, accused Ajmer and Chander Bhan were armed with gandasis, whereas the rest two were carrying lathis. In order to save himself, he tried to scale over a wall of his bara (enclosure), but he was followed by the accused persons who caused further injuries to him in his courtyard. He has attributed specific roles to the accused. Ajmer gave a gandasi blow to the injured on his head, which was followed by another gandasi blow, again on head by co-accused Chander Bhan, and thereafter yet another gandasi blow was caused by Ajmer on his stomach. Further thereafter, one more gandasi blow was caused by Ajmer on the waist of the victim. The injured also suffered a lathi injury on his hip at the hand of accused Ram Kumar, however, accused Naresh Kumar did not cause any injury and only exhorted that he should not be spared.

Heard learned Counsel for the State and the complainant. Learned Counsel assailed the impugned judgment on the ground that the trial Court has committed a grave error in holding that this is a case of only one incident which had taken place around 11 and 11.30 AM. Learned Counsel further submitted that even though Chamel Singh, an accused, sustained injuries in the incident but that itself does not become a ground for recording a complete acquittal without proper appreciation of evidence.

The learned trial Court has recorded acquittal mainly on the grounds that (i) the evidence of the complainant does not inspire confidence of the court in the wake of his unnatural conduct and in his cross examinations, he has stated that when Ramdhari sustained injuries, he was at Taraori, thus, he was not an eye-witness of the incident; (ii) that the statement of injured was recorded after two days and that of Kishan Chand, an eye witness of the incident, after 19 days; (iii) that Smt.Roshni Devi, wife of Ramdhari, said to have witnessed the incident was not produced in the witness box, even after the Investigating Officer had recorded her statement u/s 161; (iv) that Dr.Rakesh Mittal (PW 6), who initially examined the injured, did not give any opinion as to the nature of injuries and on the other hand Dr.R.C.Chaudhary (PW 1),Radiologist, was sought to give his opinion and according to him, injury No. 1 was dangerous to life; (v) that the prosecution has not come out with true story of the incident; (vi) that from the reply of Dr.Mittal in his cross examinations it appears that the injuries sustained by accused Chamel Singh and injured Ramdhari were caused in the same incident and at the same time; (vii) that the prosecution has not explained as to how accused Chamel Singh sustained 8 incised wounds and two contusions, in total 10, in the incident; (viii) that there are vital contradictions and variances in the statement of witness Kishan Chand (PW 11) as regards the height of the boundary wall of the house of Ramdhari (PW 9) for the site plan says it to be 6 feet high whereas this witness has stated the height to be 3-4 feet, and further the existence of bara (enclosure) in that house has also been denied by him; (ix) that PW 11 has contradicted his statement u/s 164 Cr.P.C.; and (x) that there is no explanation as to how injuries No. 3 and 4 were received by the injured.

This Court in a judgment in Crl.A. No. 429-DBA of 2000 State of Punjab v. Gurnam Singh and Ors., decided on 14.2.2007,while placing reliance on various judgments of Hon''ble the Apex Court, has held that the High Court is ordinarily not to reverse the judgments of acquittal of the trial Courts if two views are possible. The relevant portion of the said judgment is reproduced hereunder:

Regarding the scope of interference by the High Court with a judgment of acquittal, Hon''ble the Apex Court in the matter of Bhim Singh Rup Singh Vs. State of Maharashtra, has held as under:

The age-old controversy with regard to the width and scope of the powers of the appellate court in an appeal against an order of acquittal must be taken as settled by the decision of the court in Sanwat Singh and Others Vs. State of Rajasthan, . It was held therein that the appellate court has full powers to review the evidence upon which the order of acquittal is founded and than the different phrases used in some of the judgments of this Court like " substantial and compelling reasons", "good and sufficiently cogent reasons", and "strong reasons", were not intended to curtail the undoubted power of the appellate court to review the entire evidence and to come to its own conclusion in an appeal against acquittal. It was, however, emphasised that in exercising this power the appellate court, while dealing with an order of acquittal, should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal but it must express its reasons in its judgment which led it to hold that the acquittal is not justified. Following this decision this Court in Ramaphupala Reddy and Others Vs. The State of Andhra Pradesh, held that to the tests laid down in Sanwant Singh''s case may be added another that the appellate court must bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal. Therefore, "if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the findings of the trial court." If this additional test is applied to the instant case the conclusion is compulsive that the High Court has exceeded its powers in setting aside the order of acquittal recorded by the trial court.

The tests laid down in the judgment appear to be (i) if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate Court should not disturb the finding of the trial Court;(ii) The appellate Court has full powers to review the evidence upon which the order of acquittal is founded and to give its own conclusion in detail; (iii) while dealing with an order of acquittal, the appellate Court should not only consider every matter on record having a bearing on the question of fact and the reasons given by the Court below in support of its order of acquittal, but it must express its reasons in its judgment which led to hold that the acquittal is not justified.

In a latest judgment also, reported in Samghaji Hariba Patil Vs. State of Karnataka, , the Hon''ble Court has reiterated the view that the High Court shall not ordinarily over turn the judgment if two views are possible.

From the above findings of the trial Court and the discussions, we notice that the eye-witnesses are not reliable; the prosecution has suppressed the true and complete story; the time of occurrence is not proved as there are serious contradictions between the medical and occular evidence and the prosecution case has become doubtful, particularly in the background of earlier incident said to have taken place between 11 and 11.30 AM.

Thus, we do not find any infirmity or perversity in the impugned judgment which calls for interference in appeal by way of grant of leave to appeal. In view of the aforesaid, the Criminal Appeal No. 319-DBA of 1997 and Crl.Revision No. 531 of 1997 fail and are hereby dismissed.