State of Haryana vs Raj Kumar and Others

H.S. Bhalla, J.—This appeal is the outcome of the acquittal order dated 16-12-1998 passed by the Court of Additional Sessions Judge,

Hisar by virtue of which respondents were acquitted of the charges framed against them under Sections 148, 307 read with 149 of the Indian

Penal Code-. The operative, part of the order of acquittal dated 16-12-1998 runs as under:

In these circumstances, the prosecution has failed to prove that on 10-1-96 in the area of Talwandi Badshahpur all the accused were members of

an unlawful assembly and in prosecution of the common object of the aforesaid unlawful assembly Hanuman and Duli Chand (now deceased) fired

at PWs Krishan, Prem and Surta from their licenced DBBL .12 bore gun and caused injury to Krishan with such intention or knowledge and under

such circumstances, that if by that act they had caused the death of PWs Krishan, Prem and Surta they would have been guilty of committing

murder. So the prosecution has failed to prove the charges levelled against them. Therefore, I acquit the accused. File be consigned to the records.

Aggrieved against this order, the State of Haryana has knocked the door of this ''Court and has prayed that the judgment of the learned trial

Court be set aside and accused respondents may kindly be convicted and sentenced, according to law.

A synoptical resume of the prosecution case is as under:

On 10-1-1996, Krishan son of Bhoop Singh alongwith his brothers Prem and Surta was going to Siwani in a jeep for the purpose of getting it

repaired. The said jeep was being driven by Surta. When they reached near the Dhani of Birbal Singh, they found that the accused alongwith Dhuli

Chand (since dead) were stationed on the road. Accused, namely, Dhuli Chand, Hanuman, Dhokal and Sant Lal were armed with a single barrel

guns of .12 bore, whereas, Rishi and Raj Kumar were armed with country made pistols. Dhuli Chand exhorted that the enemies should not be

allowed to escape. Thereafter, Dhuli Chand fired a shot with his double barrel gun. The pellet hit Krishan on his head. Thereafter, Hanuman also

fired a shot on the person of Krishan. The pellet hit Krishan on his chin. The said accused also fired on the persons of Krishan, Surta and Prem

with their respective weapons. In retaliation, Krishan also fired shots with his licenced gun on the accused. However, the accused ran away from

the spot with their respective weapons.

After the said occurrence, Krishan and others had returned back to their village at Talwandi and narrated the whole incident to their father

Bhoop Singh. Thereafter, they went to village Mangali and apprised about the said incident to one Santosh. Santosh took them to the Civil

Hospital, Hisar and got admitted Krishan. As per the prosecution story, there is a previous long standing enmity between Krishan and the accused

party. Three years prior to the said incident, Dhuli Chand etc. had fired upon Krishan and another. A case regarding the said incident, is also

pending.

Dr. Daya Nand, Medical Officer, medico legally examined Krishan and found two injuries. The copy of the MLR is Ex. PAA and the diagram

showing the location of injuries is Ex. PAA/1. The said doctor sent a ruqa Ex. PB to the police station. On receipt of the said ruqa, Mange Ram,

Inspector along with other police officials went to the Civil Hospital, Hisar and recorded the statement of Krishan Ex. PA. After recording the

statement, he sent the same along with his endorsement thereon Ex. PA/1 to the Police Station on the basis of which formal FIR Ex. PG was

recorded by Jai Parkash, Inspector. On the following day, Mange Ram went to the spot and recorded the statement of Prem. He prepared rough

site plan Ex. PL. On 16-1-1996, one sealed bottle Ex. PI7 containing the pellets was handed over to Mange Ram. Thereafter, Mange Ram

prepared the recovery memo Ex. PM.

However on 18-1-1996, Mange Ram arrested the accused-Raj Kumar, Dhokal, Hanuman and Rishi. Accused-Hanuman produced a double

barrel gun of .12 bore Ex. P5 along with 10 live cartridges Ex. P6 to Ex. P15 and licence Ex. P16 which were taken into possession vide recovery

memo Ex. PJ. On the same day, another accused-Dhokal produced double barrel gun of .12 bore Ex. PI along with two live cartridges Ex. P2

and Ex. P3 and licence Ex. P4 which were taken into possession vide recovery memo Ex. PH. Later on, on 19-1-1996, he arrested the accused-

Dhuli Chand who also produced a double barrel gun of .12 bore Ex. P19 along with six cartridges Ex. P20 to Ex. P25 and licence Ex. P26 which

were also taken into possession vide recovery memo Ex. PM.

On completion of investigation, initially, the police presented a challan against the accused, namely, Raj Kumar, Dhokal, Rishi Lal and Dhuli

Chand under Sections 148, 307 read with Section 34 of the Indian Penal Code and sent up for trial.

During the pendency of proceedings before the trial Court, accused, namely, Dhuli Chand had died. Since the accused-Dhuli Chand had died,

therefore, the trial Court dropped the proceedings qua Dhuli Chand.

The said accused were charge-sheeted under Sections 148. 307 read with Section 149 of the Indian Penal Code to which they did not plead

guilty and claimed trial.

It: may be relevant to mention that initially the challan was presented against four accused, namely. Raj Kumar, Dhokal, Rishi Lal and Dhuli

Chand, whereas, during investigation, Hanuman and Sant Lal were found innocent. But at a latter stage, after recording the statement of injured

Krishan, the prosecution moved an application u/s 319 of the Code of Criminal Procedure, whereby a prayer for summoning Hanumnn and Sant

Lal as additional accused was made. Accordingly, a prayer made by the prosecution has been allowed and Hanuman and Sant Lal were

summoned as additional accused.

Accordingly, the aforesaid two accused-Hanuman and Sant Lal were also charge-sheeted under Sections 148, 307 read with Section 149 of

the Indian Penal Code to which they did not plead guilty and claimed trial.

Prosecution in order to prove its case has examined Krishan, complainant (P.W. 1), Ramesh Kumar, Head Constable (P.W. 2), Mohinder

Singh, constable (P.W. 3), Jai Parkash, Inspector (P.W. 4), Dr. Dayanand (P.W. 5), Surta (P.W. 6), Dr. Pawan Jain (P.W. 7), Mange Ram,

Inspector (P.W. 8) and Chaillu Ram, constable (P.W. 9) and closed its evidence.

The accused in their statements recorded u/s 313 of the Code of Criminal Procedure pleaded themselves to be innocent. Accused-Sant Lal

has stated that on 4-9-1995 his gun was taken into police possession and it was returned back on 30-7-1996. Since he was not having in

possession the gun on the day of occurrence, therefore, he has been falsely implicated in the case on account of enmity. In support of his version,

the accused also produced Har Lal, Head Constable as D.W. 1. Thereafter, the accused closed their evidence in defence.

We have heard the learned Counsel for the parties and have also gone through the record carefully.

The learned Counsel appearing for the appellant-State has vehemently contended that the learned trial Court has committed a grave error in

not appreciating the ocular evidence available on record in its correct perspective resulting in the acquittal of the accused-respondents. Learned

Counsel has further contended that the approach of the learned trial Court in coming to a conclusion that the matter was reported to the police

belatedly. Rather the fact is that the matter was reported to the police at the earliest and delay, if any, found on the part of the prosecution, that has

been fully explained. Learned Counsel has further contended that the learned trial Court has drawn a wrong conclusion to the effect that the

occurrence had not taken place in the manner in which it has been projected by the prosecution.

We have considered the contentions raised by the learned Counsel appearing for the appellant-State. We are not persuaded to accept the

contentions raised by the learned Counsel in view of findings recorded by the learned trial Judge on appreciation of evidence available on the

record. All the contentions raised by the learned Counsel have been dealt with by the learned trial Judge in a comprehensive manner on the

strength of ocular evidence given by the witnesses. Reasons for the finding recorded by the learned trial Court are not shown, in any manner, to be

illegal or perverse. Even if two views are possible, there is no ground to set aside the well reasoned judgment of acquittal passed by the learned

trial Judge.

Scope of appeal against acquittal has been gone into by the Hon''ble Supreme Court in number of judicial pronouncements. It is well settled

law that order of acquittal can be interfered with only if there is an absolute assurance of the guilt of the accused upon the evidence on record and

the High Court would not be justified in interfering with the order of acquittal, unless the same is found to be perverse and the order of acquittal can

be set aside if the view taken by the trial Court is perverse. We would also like to observe that if on over all appreciation of evidence available on

record, two views are possible and when on appreciation of evidence, a particular view has been preferred by the learned Additional Sessions

Judge, Hisar, and when the findings cannot be said to be perverse merely because another view is possible, the High Court would not be justified

in interfering with the acquittal order recorded by the learned trial Judge.

In view of the above discussion, appeal filed by the appellant-State fails and is dismissed.