Criminal Misc. No. 362-MA of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Criminal Misc. No. 362-MA of 2010 Date of Decision: 16.8.2010 State of Haryana ..Applicant-Appellant Versus Satish and others ..Respondents CORAM:- HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE H.S.BHALLA Present:- Mr. Sandeep Vermani, Additional Advocate General, Haryana for the applicant-appellant. Mr. Jagjeet Beniwal, Advocate for accused-respondent Nos. 2 to 5. H.S.BHALLA, J. Crl.Misc. No. 15163 of 2010 For the reasons stated in the application, delay of 38 days in filing the appeal is condoned. Criminal Misc. Application stands disposed of. Criminal Misc. No. 362-MA of 2010 Through this application filed under Section 378 (3) of the Code of Criminal Procedure, the appellant-State has sought permission to file an appeal against judgment dated 9.9.2009 passed by the Additional Sessions Judge, Fast Track Court, Amritsar, vide which he acquitted the accused-respondents for offences punishable under Sections 395 and 398 IPC and 25 of the Indian Arms Act. The facts required to be noticed for the disposal of this appeal are that on 15.12.2008 Krishan Kumar, Inspector/Station House Officer Criminal Misc. No. 362-MA of 2010 2 was present near Badhra Chowk for patrol duty. In the meantime, complainant Sanjay Kumar moved an application before him stating therein that he is resident of village Digawa and is serving as a driver on the vehicle bearing registration No. HR-61/7825 owned by him. On 14.12.2008 at about 7.00 P.M. when he was standing at the Bus Stand of village Digawa along with his vehicle, two young boys came there on a motorcycle and hired his vehicle for carrying five cement bags to village Hui and the fare fixed was at Rs.400/-. On their asking, he took the vehicle to the shop of Chiranji and loaded five bags of cement in his vehicle. One of those boys sat in the vehicle whereas the other boys went on motorcycle. He called one Naresh son of Hazari Lal, resident of village Digawa, who also came and sat in the vehicle. When they reached two and a half kilometer ahead near a Service Station on Badhra-Dadri road, the boy sitting in the vehicle got the vehicle stopped and got down from the vehicle by saying that he would come back within five minutes. After a short while, said boy along with other boys came out of the Service Station and asked him to load two long pipes in the vehicle. At this, he refused to load the same. He was pressurised to load the pipes, but he again refused to do so and asked them to unload the bags of cement. Thereafter three other persons reached there and asked him to park the vehicle in the backside for the purpose of unloading the bags. Thereafter, two persons put a pistol on his forehead and made him sit in the vehicle while remaining persons boarded the vehicle in its front and took it to the forest of village Badesra, where they turned him out of the vehicle and took away the vehicle. While leaving the place, they removed his clothes, tied his eyes and hands with cloth. They also took away his mobile, Rs.1000/- cash besides his friend's mobile, Rs.1500/- cash, one chain and one ring, both made of silver while fleeing away from the spot. On the basis of the complaint lodged against the assailants, the present case was registered and prosecution machinery Criminal Misc. No. 362-MA of 2010 3 set into motion. During the course of investigation, site plan of the place of occurrence was prepared. Statements of the witnesses were recorded. Accused were arrested. Recoveries of the articles were effected from their possession as per the disclosure statements made by them. After completion of necessary formalities, accused were challaned and sent up for trial. Accused were charge sheeted under Sections 395 and 398 of the Indian Penal Code and 25 of the Indian Arms Act, to which they did not plead guilty and claimed trial. Prosecution examined as many as fourteen witnesses and thereafter closed its evidence after tendering certain documents. We have heard learned counsel appearing for the appellant- State as also learned counsel appearing for the accused-respondents at length and with their able assistance have also gone through the evidence of the prosecution and the findings recorded by the learned Additional Sessions Judge, Fast Track Court, Bhiwani minutely. Learned Additional Advocate General appearing for the appellant-State has assiduously argued that the learned court below committed a grave error in acquitting the accused respondents after taking into consideration the statements of complainant Sanjay Kumar (PW-1) and Naresh Kumar (PW-2), who, during their depositions, failed to identify the accused respondents present in the court. Learned State counsel has further contended that merely not identifying the accused respondents by these two witnesses, the entire case of the prosecution can not be disbelieved, inasmuch as recoveries alleged to have been effected from the possession of the accused respondents have been proved by the testimony of other prosecution witnesses. We have considered the submissions made by the learned Criminal Misc. No. 362-MA of 2010 4 Assistant Advocate General appearing for the State of Haryana. We are not convinced to accept the submissions made by the learned counsel. The contentions raised by the learned State counsel, in our considered view, have been dealt with by the learned Additional Sessions Judge in a comprehensive manner giving sound reasoning therein on the strength of material available on the record. Having analyzed the entire testimony of the prosecution witnesses available on the record as also the finding recorded by the learned Additional Sessions Judge, we are of the considered view that the learned court below is right in acquitting the accused respondents by giving them the benefit of doubt, especially when two star witnesses of the prosecution case, namely, Sanjay Kumar (PW-1) complainant and his companion Pardeep Kumar (PW-2) an eye witness to the occurrence, were declared hostile, inasmuch as they failed to identify the accused respondents present in the court that they were the same assailants. We are further of the view that since the identity of the accused persons has not been established on the record beyond reasonable doubt by the most important witnesses as referred to above, it would not be safe to convict the accused respondents only on the basis of statements of the police official witnesses, who are always interested in the success of the prosecution case as also on the basis of recoveries of the articles alleged to have been effected from their possession in view of the alleged disclosure statements made by them. That apart, reasons for the finding recorded by the learned Additional Sessions Judge Fast Track Court on other material particulars 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 Additional Sessions Judge. Scope of appeal against acquittal has been gone into by the Criminal Misc. No. 362-MA of 2010 5 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 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 Additional Sessions Judge, Fast Track Court, Bhiwani. In the light of what has been discussed above, we find no ground to interfere with the judgment of acquittal dated 9.9.2009 passed by the Additional Sessions Judge, Fast Track Court, Bhiwani. Accordingly, leave to appeal sought by the appellant-State through the instant application moved under Section 378 (3), Code of Criminal Procedure, is declined. ( H.S.BHALLA ) JUDGE 16.8.2010 ( MEHTAB S. GILL ) VK JUDGE