CRIMINAL MISC. NO. 454-MA OF 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: October 13, 2009. Parties Name State of Haryana ..APPLICANT VERSUS Ashok ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS JUSTICE. DAYA CHAUDHARY PRESENT: Mr. Harbhajan Singh Saron, Addl. A.G., Haryana, for the applicant. JASBIR SINGH, J. ORDER. State of Haryana has filed this application under Section 378(3) Cr.P.C. with a prayer to grant leave to file an appeal against the judgment dated May 22, 2009, acquitting the respondent of a charge under Section 302 IPC. CRIMINAL MISC. NO. 454-MA OF 2009 -2- Before the trial Court, it was allegation against the respondent that he, on April 23, 2006, committed murder of Sandeep son of Dharambir, within the area of village Bhatgaon Dungran, district Sonepat. The respondent was accused of commission of an offence punishable under Section 302 of the Indian Penal Code and Section 25 of the Arms Act, 1959. After trial, he was acquitted of the charge framed under Section 302 IPC. However, he was convicted and sentenced for commission of offences under Section 304 Part I IPC and Section 25 of the Arms Act, 1959. Hence this application. Complainant Satpal has also filed Criminal Revision No. 2183 of 2009 impugning the judgment, mentioned above, with a prayer that it be set aside and the respondent be punished for the offences, with which he was charge-sheeted. This order will dispose of above said application and the Criminal Revision arising out of the same occurrence. However, to dictate order, facts are being mentioned from Criminal Misc. No. 454-MA of 2009. Case of the prosecution, as noted by the trial Court reads thus: “It is the case of the prosecution that on receiving a telephone message from the Police Post, General Hospital, Sonipat on April 23, 2006, about the arrival of the dead body of Sandeep son of Dharambir Singh, Jat, a resident of village Bhatgaon, SI/SHO Mukesh Kumar rushed to the General Hospital, Sonipat to take stock of the situation and take appropriate action. He met Sh. Sat Pal son of Sh. Surat Singh, Jat, a resident of village Bhatgaon Dungran, there and settled down to record his statement which resulted in the lodging of the first CRIMINAL MISC. NO. 454-MA OF 2009 -3- information report (Ex. PA/2). 3. Complainant Sat Pal stated before SI/SHO Mukesh Kumar that there are serious differences between his group and the one headed by Prem Singh son of Amar Singh, Jat of his village in connection with a series of Panchayat elections. The opposite group had threatened to eliminate Sandeep son of Dharambir Singh Jat four or five days prior to the occurrence because of the election rivalry. Deceased Sandeep was serving the Indian Armed Forces and he was on leave during those days. 4. Complainant Sat Pal stated before the police that his nephew, Sandeep was on the rider's seat of the motorcycle whereas he was on the pillion with him at about 5.30 p.m. on that fateful day of April 23, 2006 and they were on their way to their fields to deliver tea to the workers. As the motorcycle riders arrived in the vicinity of the fields of Bajay Singh, they noticed Sat Pal, Ashok and their father, Prem Singh standing on the way with intent to intercept them. Sat Pal picked up a stone and hurled it at Sandeep which hit him on the right hand. He lost balance of the two wheeler and they both fell down on the Kucha passage. Immediately thereafter Prem Singh and Sat Pal caught the left and the right hand respectively of Sandeep whereas Ashok forcefully stabbed him on the left side of his abdomen and gave a second blow with the knife on the left back. He immediately rushed to rescue Sandeep from the clutches of the assailant but Ashok CRIMINAL MISC. NO. 454-MA OF 2009 -4- threatened by directing the blade of the knife at him. He then raised alarm which attracted his own brother, Satbir to the spot. Assailant Ashok and his two accomplices escaped along with the weapon of offence. Critically injured Sandeep was being taken to the hospital when he succumbed to the injuries.” On receipt of intimation, the Investigating Officer prepared the inquest report regarding dead body of the deceased and thereafter post- mortem was conducted on the same. Dr. S.P.Sharma (PW2) found the following injuries on the person of the deceased: “1. 2 cms x 1 cm elliptical vertically on the left mid-clavicular line at 9th rib subcostal margin anteriorly. On dissection, costo- chondral separation of the 9th rib and damage to the muscle present. 2. 2.5 cms. X 1 cm. Incised wound elliptical over the back D-10 level, 6 cms. lateral to midline on the left side of the chest. On dissection, the track was found going through the parietal pleurae to the left side of the chest wall to the left lung lower lobe to the mediastinum. A huge haemothorax on the left side of the chest ( 5 to 6 litres) and collected haematoma in the mediastinum were present. The internal vessels were damaged. 3. 2.5 cms. X 2 mm. red abrasion on the left chest anteriorly, 5 cms. lateral to midline in the second intercostal space.” He had also noticed the following injuries in muscle bones and CRIMINAL MISC. NO. 454-MA OF 2009 -5- joints:- “1. 5 mm. abrasion red in colour on dorsal of 4th M.P. joint (metacarpo-phalangeal joint) of right hand. 2. 2 cm x 2 cm. red abrasion on right wrist anterio-medially on the ulnar border. 3. 1” x 2 “ red bruise on the left thigh supra -condylar area laterally.” Injury No. 2 was declared fatal. All the injuries were found ante mortem in nature and were sufficient to cause death in the ordinary course of events. The Investigating Officer went to the spot and prepared a rough site plan of the place of occurrence. During investigation, it was found that the co-accused, namely, Satpal and Prem Singh were innocent and their names were put in column No. 2 of the final report, which was submitted only against the respondent, for trial. The respondent was charge-sheeted for commission of offence under Section 302 IPC and also under Section 25 of the Arms Act, 1959. He pleaded not guilty to the charge and claimed trial. The prosecution examined ten witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the respondent – accused was recorded under Section 313 Cr.P.C. He controverted the evidence led against him, pleaded innocence and false implication. It was further stated by him that on the fateful day, he was way-laid by the deceased and his companions. Realizing imminent danger to his life, he ran for cover. On the way, he met CRIMINAL MISC. NO. 454-MA OF 2009 -6- Balbir Singh (DW2) and informed him regarding intention of the deceased and his companions, to harm him. He was then intercepted by Sandeep etc. and they started causing injuries to him. By chance, a companion of Sandeep (deceased) gave a stab blow to the deceased. The fatal injury was not caused by the respondent, who also led evidence in defence. Dr. Varsha (DW1) stated that she had medico-legally examined the respondent on April 24, 2006, and she found the following injuries on his person: “1. Abrasion of size 2 cms x 1 cm with diffused swelling around it was present on the parietal region of the scalp and X- ray was advised. 2. Abrasion of size 1.5 cms x 0.5 cm was present on the right side of the forehead. 3. Multiple abrasions of size 1 cm x 1.5 cm linear in shape was present over the right side of the face and the bridge of the nose. 4. Abrasion of size 1.5 cms x 1 cm with redness and swelling around it was present on the left elbow region. 5. He was complaining of pain in the centre of the chest and there was no visible mark of injury. 6. He was complaining of pain on the dorsal surface of the right hand and there was no visible mark of injury seen.” This witness has further stated that the injuries were caused by blunt weapon within a period of 24 hours of the examination. It was further stated that the injuries were not the result of a friendly hand. By noting evidence on record, trial Court opined that it was a case of scuffle between CRIMINAL MISC. NO. 454-MA OF 2009 -7- the parties. The respondent - accused was beaten up by the deceased and his companions. In that process, to save himself, he caused a solitary blow of knife, to the deceased. The respondent was acquitted of the charge under Section 302 IPC but convicted for commission of an offence punishable under Section 304 Part I IPC and sentenced to undergo rigorous imprisonment for a period of seven years and directed to pay a fine of Rs. 5,000/-. Sentence of rigorous imprisonment for a period of six months and a fine of Rs. 1,000/- was also imposed upon him for an offence punishable under Section 25 of the Arms Act. Counsel for the State, by making reference to the statements of the prosecution witnesses, has vehemently contended that the trial Court was not justified in acquitting the respondent of the charge under Section 302 IPC. By taking us through the post-mortem report and deposition made by Dr. S.P.Sharma (PW2), he argued that not one but two knife blows were given by the respondent to the deceased. He further argued that the Court below has wrongly held that it was a case of scuffle. To the contrary, it was a pre-determined attack upon the deceased by the respondent and his close relations. He prayed that the application be allowed and leave to file an appeal be granted. After hearing the State counsel , we are not inclined to interfere in the judgment under challenge. It is an admitted fact that in the FIR, no reference was made to the injuries caused to the respondent. During trial, the respondent has produced Dr. Varsha (DW1) to say that he was medico- legally examined on April 24, 2006, and six injuries were found on his body. Injuries were of the same duration, when as per prosecution, occurrence had taken place. This doctor has specifically stated that the CRIMINAL MISC. NO. 454-MA OF 2009 -8- injuries were not the result of a friendly hand. By looking at the nature of the injuries, the trial Court has said that it was a case of scuffle between the parties, before a fatal stab wound was caused to the deceased. It has also come on record that there was no blood stain on the alleged weapon of offence. To say that not two but one stab blow was given by the respondent to the deceased, the trial Court has referred in detail to the medico-legal evidence and the statement made by Dr. S.P.Sharma (PW2). In his cross-examination, this witness has testified that injuries No. 1 and 2 could be the result of one stab blow. Injuries on the chest and the back side of the deceased are at the same level. The trial Court has further noticed that as per case of the prosecution, co-accused of respondent has held the deceased from both the arms and stab blow was given by the respondent on his chest and then at the back. The trial Court has rightly said that the version given by the prosecution does not inspire confidence. If more than one blow was to be given, the respondent would have done so by giving repeated blows on the chest and the abdomen. There was no occasion to go at the back and then cause a blow. It is not case of the prosecution that during scuffle, the deceased had turned his back towards the respondent when second blow was caused. By looking at the extent of injury caused, it was rightly observed by the trial Court that a blow was given with tremendous force, which resulted into causing the entry and exit wounds. By looking at the injuries caused to the respondent, the trial Court has believed the defence version that the deceased and his companions were chasing the respondent and when they were beating him, CRIMINAL MISC. NO. 454-MA OF 2009 -9- in self-defence, he caused a stab blow to the deceased. The trial Court has also noted with concern that the prosecution has failed to prove motive to commit crime at the part of the respondent. Motorcycle allegedly abandoned by the complainant and non-removing of fuel and tea soaked earth also weighed heavily with the trial Court to say that the other two accused were rightly found innocent by the police. This Court is of the opinion that in view of facts on record, view taken by the trial Court was perfectly justified. Even in cases where two views are possible, ordinarily, 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) page 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) page 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 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.” CRIMINAL MISC. NO. 454-MA OF 2009 -10- Counsel for the State has failed to show that the judgment, under challenge, is perverse or based on misreading of evidence on record. In view of facts, mentioned above, Criminal Misc. No. 454-MA of 2009 and Criminal Revision No. 2183 of 2009 are dismissed. (JASBIR SINGH) JUDGE ( DAYA CHAUDHARY) JUDGE October 13, 2009. DKC