State of Uttarakhand vs Vineet @ Chinu Pandit and Sanjay Chandela

Dharam Veer, J.—The aforesaid appeals have arisen out of a common judgment and order and the issue to be decided in both of them is also one and the same, hence they both are being disposed of by this common judgment and order.

Heard Mr. Amit Bhatt, learned Additional Government Advocate for the State/applicant/appellant and perused the entire material on record.

Both these leave to appeal applications have been preferred by the applicant/appellant/State u/s 378(3) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) with a prayer to grant leave to the applicant/appellant/State to file the appeal against the acquittal of the respondents, namely, Vineet @ Chinu Pandit and Sanjay Chandela for the offence punishable u/s 25 of the Arms Act, 1959 {hereinafter to be referred as the Act} vide judgment and order dated 12.3.2010 passed by the Additional Sessions Judge/IV FTC, Haridwar in S.T. No. 52/07 State v. Vineet @ Chinu Pandit and S.T. No. 134/2006 State v. Sanjay Chandela.

In brief the facts of the case are that on 3.11.2005 at about 7:30 PM, PW2 Pradeep Kumar was in his shop. At that time, Vineet Sharma @ Chinu Pandit, his brother Rajeev Sharma @ Monu Pandit, Sanjay Chandela and one other person had come in his shop. Then the respondents Chinu Pandit and Sanjay fired upon the complainant due to which the complainant and his nephew Raghav sustained the injuries. At that time, brother of complainant, namely, Amit was also present there. On hearing the noise, the neighbourers had also come on the place of occurrence. During the scuffle, one Tamancha, magazine and cartridges, belonging to the respondents/accused, were left on the spot and the respondents ran away from the spot. With these averments, an FIR was lodged and the case was registered against the respondents under Sections 307/506/120B IPC and one punishable u/s 25 of the Act.

Thereafter, the prosecution evidence was recorded and after that the statements of the respondents/accused were recorded u/s 313 Cr.P.C. After appreciating the evidence on record and hearing the learned Counsel for the parties, learned Addl. Sessions Judge/IV FTC, Haridwar vide judgment and order dated 12.3.2010 has acquitted the respondents/accused for the offences under which they were charged.

From a perusal of the judgment, it reveals that the respondents have been acquitted in ST No. 133/2006 under Sections 307/506/120B IPC as well as for the offence punishable u/s 25 of the Act. However, the applicant/appellant/State has preferred the present appeals against the acquittal of the respondents only u/s 25 of the Act, but the appeal has not been preferred under the main offences and in those main offences, the respondents were acquitted.

As per the prosecution story, in the above-said incident, Tamancha, magazine and cartridges were found on the spot for which the offence punishable u/s 25 of the Act was made out. From a perusal of the record, it reveals that the said Tamancha, magazine and cartridges were not found from the possession of the accused/respondents. PW1 Raghav, who is said to be the injured witness, has stated that he did not find any Tamancha, magazine and cartridges on the spot. Likewise, PW2 Pradeep Kumar, complainant and also the injured witness, has stated that the said Tamancha, magazine and cartridges were not before him when his statement was recorded in the trial court. Similarly, PW3 Amit Sahdev, brother of complainant, has stated that the said Tamancha, magazine and cartridges were found by the police on the next day when the police had come on the spot. PW5 Gaffur Alam and PW6 Shahjad Khan were declared hostile. Even the said Tamancha, magazine and cartridges were not sent in the forensic laboratory to obtain any ballistic report whether the said articles were in the working condition or not.

Thus, from the above-said discussion and in the foregoing facts and circumstances of the case, the prosecution has failed to prove that the above-said Tamancha, magazine and cartridges were recovered from the possession of the respondents/accused and even the prosecution has failed to establish that the said Tamancha, magazine and cartridges were recovered on the spot on 3.11.2005 from the shop of the complainant. Even it was not proved that the said Tamancha, magazine and cartridges were sent for the ballistic expert whether they were in working condition or not. Further, the appeal has not been preferred by the State/appellant against the respondents under the main offences in which they were acquitted i.e. u/s 307/506/120B IPC. The present appeals have been preferred against the respondents only u/s 25 of the Act and the offence punishable u/s 25 of the Act is not proved against the respondents/accused.

Further, it is settled law that where two views are possible and one of the views is also possible which was taken by the trial court, then the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance is placed on paras 7 and 8 of a judgment rendered by Hon''ble Supreme Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which read as under:

The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do no, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible.

We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two views are possible, the High Court should not have interfered with the judgment of acquittal passed by learned Sessions Judge. We, therefore, set aside the impugned judgment and allow this appeal. The appellant is in jail, he is directed to be released forthwith if not required in connection with any other case.

On the basis of the evidence discussed above, I am of the considered view that when one view is also possible as the view taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the view taken by the trial court must be accepted. Therefore, there is no reason to disagree with the view taken by the trial court on the basis of the evidence discussed above and, therefore, the prosecution has not able to prove its case against the respondents beyond reasonable doubt.

Thus, from the evidence as discussed above, the prosecution has utterly failed to prove its case beyond reasonable doubt against the respondents/accused for the offences under which they were charged and the trial court was absolutely correct and justified in acquitting the respondents as above discussed.

After considering the entire facts and circumstances of the case and on perusal of the judgment and order passed by the trial court, I am of the view that the there is no ground to grant leave to appeal to the State.

Therefore, the leave to appeal is refused. Both the leave to appeal applications are dismissed. Consequently, both the appeals are also dismissed accordingly.