[CASE NUMBER] [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. [CASE NUMBER] State of Haryana v. [ENTITY] and another AND [CASE NUMBER] State of Haryana v. [ENTITY]. Date of decision: 23.3.2009 CORAM : HON'BLE MR.JUSTICE [ENTITY]. HON'BLE MRS.JUSTICE [ENTITY]. PRESENT: Ms. [ENTITY], Deputy Advocate General (Haryana), for the appellant. Mr.[ENTITY], Advocate, for the respondents. [ENTITY], J.
This judgment shall dispose of [CASE NUMBER] and [CASE NUMBER].
[CASE NUMBER] has been filed by State of Haryana against judgment dated 16.3.1994 passed by Sessions Judge, Rohtak, whereby [ENTITY] and [ENTITY] accused- respondents herein, were acquitted of the charge framed under [SECTION], [SECTION] [ACT], whereas [CASE NUMBER] has been filed by the State of Haryana against judgment dated 18.11.1995 passed by Sessions Judge Rohtak whereby [ENTITY] accused-respondent herein was acquitted of the charge framed under [SECTION] of the [ACT].
The facts are being taken from [CASE NUMBER].
In brief, the facts of the prosecution case are that on 5th March, 1992, deceased [ENTITY] was present under the shed outside his shop. At about 7.30 p.m., [ENTITY], wife of deceased, went to Mandirwali street to fetch water. [ENTITY] (brother of [ENTITY]) and [ENTITY] came there and wished [ENTITY]. In the meanwhile, accused [ENTITY] and [ENTITY] came there from the eastern side and called [ENTITY] and took him in the adjoining street. When they reached near electric pole, [ENTITY] opened fire shots at [ENTITY] from his pistol, while [ENTITY] remained standing there. [ENTITY] after opening 6- 7 fire shots escaped with [ENTITY] on which [ENTITY], [ENTITY] and [ENTITY] chased both the accused. When they reached in the street, one [ENTITY] (another accused) was found standing with a motor-cycle which was in a starting condition. Both accused i.e. [ENTITY] and [ENTITY] ran away on motor-cycle with accused [ENTITY] towards civil road but they failed to over-power the assailants. [ENTITY] was put in a loading rickshaw and was taken to Medical College Hospital, Rohtak, where he was declared dead.
As per prosecution story, in October 1989, [ENTITY] accused had some altercation with [ENTITY], younger brother of deceased [ENTITY]. On the next day, [ENTITY], [ENTITY], [ENTITY] and [ENTITY] went to the shop of [ENTITY] and opened fire in the air. A case was registered but the same was compromised on intervention of brotherhood. Still the accused was having grudge against [ENTITY] deceased and because of that reason, they attacked and committed the murder of [ENTITY]. [ENTITY] and [ENTITY] went to inform their relations. ASI [ENTITY] reached the hospital and recorded the statement of [ENTITY], which is Exhibit PD and after making endorsement Ex.PD/1 on the same, sent it to the police station for registration of the case, on the basis of which, formal FIR Exhibit PD/2 was registered. Thereafter SI [ENTITY] went to the emergency ward, prepared inquest proceedings (Ex.PR) and recorded statements of [ENTITY] and [ENTITY] The post mortem on the dead body of [ENTITY] was got conducted. Rough site plan Exhibit PS was prepared. Blood-stained earth was lifted which was packed and sealed with the seal 'KS'. Three empty cartridges and one bullet were also packed in one packet and sealed. The seal after use was handed over to [ENTITY] PW. Case property was taken into possession vide memo Ex.PN. Statements of [ENTITY] and [ENTITY] were recorded by the police. [ENTITY] accused made a disclosure statement that he had kept concealed one pistol behind a bus queue shelter of Haryana Roadways on Delhi bye-pass, Rohtak and on the basis of disclosure statement Pistol Ex.P1 was recovered from the specified place but no licence was recovered. Accused [ENTITY] was also challaned separately under the [ACT]. Accused [ENTITY], [ENTITY] and [ENTITY] were challaned under [SECTION] [ACT]. All relevant documents were supplied to the accused-respondents and the case was committed to the Court of Session for trial vide order dated 6.8.1992 of Ilaqa Magistrate. Charge under [SECTION] read with [SECTION] was framed against [ENTITY], [ENTITY] and [ENTITY] (since dead), whereas charge under [SECTION] of the [ACT] was framed against [ENTITY] only.
In order to prove its case, the prosecution examined as many as 20 witnesses, namely, SI [ENTITY] PW-1, SI [ENTITY] PW-2, [ENTITY], Draftsman , PW-3, [ENTITY] as PW-4, [ENTITY] PW-5 who tendered his affidavit Ex.PG. Constable [ENTITY] as PW-6 who tendered his affidavit Ex.PH and Constable [ENTITY] as PW-7, who tendered his affidavit Ex.PJ, [ENTITY] PW-8, [ENTITY] PW-9, HC Subhash Chand PW-10, Dr. [ENTITY] PW11, [ENTITY] PW-12, [ENTITY] PW-13, [ENTITY] PW14, [ENTITY] PW-15, ASI [ENTITY] PW-16, Inspector [ENTITY] PW-17, Inspector [ENTITY] PW-18, Dr.[ENTITY] PW-19 and Dr.[ENTITY], Senior Scientific Officer, Ballistic as PW-20. Statements of accused under [SECTION] [ACT] were recorded and they pleaded innocence and false implication. Accused in their defence examined [ENTITY], Advocate as DW-1, [ENTITY] Editor as DW-2, [ENTITY], Stamp Vendor, DW-3 and [ENTITY] Advocate DW-4.
The trial Court after hearing both the parties and perusing documentary and oral evidence placed on the file, acquitted the accused- respondents of the charge vide orders dated 16.3.1994 and 18.11.1995 by giving them the benefit of doubt.
Ms. [ENTITY], Deputy Advocate General, Haryana, appearing on behalf of the appellants, argued that the trial Court has not considered the fact that there was a delay in recording the statements of eye-witnesses and no explanation with regard to delay has been given while acquitting the accused. She argued that the trial Court has disbelieved the statements of two eye-witnesses whose presence was most natural. The presence of [ENTITY] (PW-13) has also been doubted by stating that her presence has been planted just to create her evidence. The trial Court has also lost sight of the fact that the accused were holding a pistol and had fired shots at the deceased. The trial Court has wrongly held that it was blind murder.
It was further argued by Mrs.[ENTITY] that the statement of [ENTITY] (PW-13) has been disbelieved by the trial Court on the ground that there was a water connection in her house and, therefore, there was no reason for her to fetch water from the street. The trial Court has also not believed the presence of [ENTITY] (PW-14) and [ENTITY], as their statements were not recorded by the police at the place of occurrence. Further contention of learned State counsel is that the trial Court has not believed the disclosure statement made by [ENTITY] accused and the recovery made on the basis of that statement.
Mr. [ENTITY], learned counsel for the accused-respondents, argued that the trial Court has rightly acquitted the accused on the basis of evidence produced by the prosecution. The prosecution has miserably failed to establish the presence of eye-witnesses. Moreover, there was a delay of five hours in sending the special report to the Ilaqa Magistrate. That delay has not been explained by the prosecution. The trial Court has rightly disbelieved the presence of PW-13 [ENTITY] and PW-14 [ENTITY] as their conduct was not natural. Neither any blood- stained was found on the clothes of [ENTITY] (PW-13) who was stated to be present at the time of firing, nor on the clothes of [ENTITY] (PW-14), who took the deceased to the hospital. The trial Court after proper appreciation of evidence has rightly acquitted the accused.
[ENTITY] accused died during trial, whereas accused [ENTITY] died after his conviction by the trial Court.
We have heard the arguments of learned counsel for the parties and also perused the judgment and other documents available on record.
After careful examination of documents on the file, we are of the view that the trial Court after considering the evidence led by both the parties, has come to the conclusion that there is no evidence on record to connect the accused with the alleged crime. Even [ENTITY] and [ENTITY] (PW-13 & PW-14) who is wife and real brother of deceased [ENTITY] have not supported the prosecution case. The trial Court observed that it was a blind murder and no one had seen the occurrence. If some one had seen the occurrence, none would have came forward to support it. In fact, [ENTITY] and [ENTITY] were also not present at the spot which is evident from their own affidavits that they had also not seen [ENTITY] accused of being fired at [ENTITY] deceased.
Keeping in view the aforesaid facts and circumstances, the trial Court has acquitted the accused after appreciation of the evidence of both the parties and no evidence was there on record to support the case of the prosecution. The view taken by the trial Court seems to be reasonable and possible. It is a settled law that the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the judgment of acquittal is unreasonable and relevant and convincing materials have been eliminated in the process in an unjustifiable manner, it is a compelling reason for interference. This position has been reiterated by Hon'ble the Supreme Court in [PRECEDENT]; [PRECEDENT]; [PRECEDENT] and [PRECEDENT].
Hon'ble the Apex Court in Tota Singh v. State of [ENTITY]ab 1987(2) RCR (Crl.) 35 has observed that if two views are possible on an appraisal of the evidence adduced in the case and the trial Court has taken a view which is a plausible one, the appellate Court should refrain from interfering with an order of acquittal. Therefore, the view taken by the trial Court on the basis of evidence available on record is reasonable and plausible and the same does not require any interference.
Thus, in view of the facts and circumstances of the case, we do not find any ground to interfere with the judgments of Sessions Judge, Rohtak.
Hence, both the appeals are dismissed.
( [ENTITY]) JUDGE ([ENTITY]) JUDGE March 23, 2009 raghav