IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.663-MA of 2008(O&M) Date of Decision: 16.02.2009 State of Punjab Applicant Versus Fateh Singh Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.A.S.Virk, Addl.A.G. Punjab for the applicant-State ….. Jasbir Singh, J. This application has been filed under Section 378 (3) Cr.P.C. with a prayer to grant leave to file an appeal against judgment dated 25.8.2008, vide which, the respondent- Fateh Singh was acquitted of the charges framed against him. Application is also barred by time. Besides Fateh Singh, two more were named as accused in FIR No.409 dated 9.7.2005. It was allegation against them that they, with common intention, have committed murder of Nar Singh on 9.7.2005. Vide judgment under challenge, co-accused of the respondent were convicted, however, he was acquitted. It is contention of counsel for the applicant that on the same set of evidence two accused were convicted, in such like situation, it was not open for the trial Court to acquit the respondent. We are not one with the argument raised by counsel for the applicant. The trial Court is supposed to make an attempt to separate truth from falsehood. In that process, it is Criminal Misc. No.663-MA of 2008(O&M) 2 necessary for the trial Court to acquit some one against whom prosecution has failed to prove its case and convict others on the same set of evidence, if case was made out against them. In this case, as per admitted facts, fatal shot was fired by co- accused of the respondent. It was allegation against him that he was present at the spot with a gun. In acquitting the respondent, the trial Court has observed as under:- “Now comes the next question as to whether Fateh Singh accused was present at the place of occurrence and participated in the crime. It is to be noted that though Fateh Singh was named by Jasvir Kaur, but during investigation the police found that Fateh Singh was not involved. Therefore, he was kept in column No.2 of the challan. However, he was summoned under Section 319 of the Code of Criminal Procedure. Gurdas Singh and Malkiat Singh are recorded to have brought injured Balbir Singh to the Hospital, as coming out from M.L.R. Ex.DA. The time of arrival is 12.45 a.m. on 9.7.2005. Here name of Fateh Singh is missing. An inquiry was conducted on the complaint Ex.DW.1/2 made by Harpreet Kaur wife of Fateh Singh. The inquiry report of Deputy Superintendent of Police (City), Bathinda is Ex.DW.1/A. In the inquiry, it was found that after recording the statement and making open and secret information, the police has come to the conclusion that Fateh Singh was not present in Civil Hospital, Bathinda at the time of occurrence. The presence of Fateh Singh is further ruled out Criminal Misc. No.663-MA of 2008(O&M) 3 from the fact that both the parties had fired each other. Though Jasvir Kaur claimed in her statement that Fateh Singh was also present along with Malkiat Singh and Balbir Singh and carrying a gun. However, in her first version, she had disclosed that Balbir Singh had fired at Nar Singh, which hit Nar Singh. Nar Singh retaliated in self defence and one of the shot fired by Nar Singh hit Balbir Singh and the second shot hit Malkiat Singh, but Fateh Singh is not injured. Both the parties used .12 bore cartridges, which has large number of pellets and which spread on firing. The non receipt of injury by Fateh Singh also rules out his presence at the spot, particularly when Balbir Singh and Malkiat Singh were held up in Mini Operation theatre and Nar Singh was firing from outside the operation theatre and the glasses of the door of Mini Operation theatre were also broken. Police recovered the guns used by Malkiat Singh, Balbir Singh and Nar Singh along with cartridges. However, no gun was recovered from Fateh Singh, nor it was found that he ever used any gun. It is to be noted that there is old enmity between the parties and Fateh Singh belongs to the opposite party, which was allegedly involved in the murder of Gurdeep Singh son of Jasvir Kaur in the year 1997 and, therefore, possibility is that Jasvir Kaur has exaggerated the occurrence to involve as many as persons of the opposite party. She even named Gurdas Singh in the crime, whose name was not mentioned at all in her first version to the police. Snehdeep Sharma appeared as DW.1 to Criminal Misc. No.663-MA of 2008(O&M) 4 stand by his inquiry report and stated that he had found that Fateh Singh was present in D.M.C., Ludhiana and that he had also visited D.M.C., Ludhiana and checked up the record of D.M.C. Ludhiana. In view of the matter, I come to the conclusion that Fateh Singh was not present at the time of occurrence and the statement of Jasvir Kaur in this regard is an exaggeration to rope him in the crime. We feel that in view of evidence on record, the trial Court was justified in concluding that the respondent was not present at the time of occurrence. During investigation, he was also declared innocent. Counsel for the applicant has failed to show us any misreading of evidence on the part of the trial Court, which may necessitate interference by us in appeal against acquittal. The view taken by the trial Court, in view of evidence on record, was justified. Even in cases where two views are possible, the view taken by the trial Court in favour of the accused is to be accepted. Their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. A Division Bench of this Court in State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:- “We are of the opinion that the matter would have to be examined in the light of the observations of the Hon’ble Criminal Misc. No.663-MA of 2008(O&M) 5 Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.” No case is made out to condone the delay. Accordingly, this application as also the application for condonation of delay stands dismissed. (Jasbir Singh) Judge 16.02.2009 (Jora Singh) gk Judge