Crl. Misc. No. 537-MA of 2008 Date of decision: December 8, 2008 State of Haryana ….. Applicant Versus Sonu and another ….. Respondents CORAM: HON’BLE MR. JUSTICE S.S. SARON. HON’BLE MRS. JUSTICE SABINA. Present: Mr. H.S. Sran, Addl. A.G., Haryana for the applicant-State *** S.S. SARON, J. The Crl. Misc. application under Section 378 (3) of the Code of Criminal Procedure (“CrPC” – for short) has been filed by the applicant - State of Haryana seeking leave to appeal against the acquittal of respondents Sonu son of Krishan and Sonu son of Om Parkash recorded by the learned Sessions Judge, Sonepat vide order dated 26.7.2008. The case of the prosecution is that the injured Devender (PW-5) on 19.4.2006 at about 3.00 p.m. had gone out to look for his brother namely Anil. He met the respondents Sonu son of Krishan and Sonu son of Om Parkash, besides, Ravi (since declared juvenile) son of Dilbagh on the road side. He enquired from them about Anil but they all lost their cool and started abusing Devender (PW-5). They all caught hold of Devender (PW-5); and Ravi (juvenile) stabbed him twice in the stomach with a knife before giving a knife blow on his left arm. Devender (PW-5) Crl. Misc. No. 537-MA of 2008 [2] raised an alarm and fell down on the ground. Ravi (juvenile) again attacked him with a knife on his left hip region. The alarm raised by him attracted his cousin Krishan (PW-6) and also one Rajinder who came to the spot. The respondents as also Ravi (Juvenile) escaped from the spot. The prosecution in order to prove its case examined as many as seven witnesses. The respondents in their statements under Section 313 CrPC took the stand that they have been falsely implicated. The learned trial Court after considering the evidence and material on record has acquitted the respondents against which leave to appeal is sought by the State. Sh. H.S. Sran, learned Additional Advocate General, Haryana appearing for the State has submitted that leave to appeal is liable to be granted as the involvement of the respondents is clearly established from the evidence and material on record. It is submitted that both the respondents had caught hold of Devender (PW-5) – the injured and this facilitated Ravi (Juvenile) to give knife blows. It is submitted that the repetition of the knife blows clearly shows the involvement of the respondents who are liable to be convicted with the aid of Section 34 of the Indian Penal Code (“IPC” – for short). After giving our thoughtful consideration to the matter, we find no merit in the submissions of the learned Additional Advocate General, Haryana. It may be noticed that the learned trial Court has held that Krishan (PW-6) had testified that he had seen both the accused having identical names of Sonu holding Devender (PW-5) by his hands while Ravi (Juvenile) stabbed him in the stomach. It was also stated that no other person was attracted to the spot. He was confronted with his statement Ex.DA from portion A to A wherein, it was recorded that many persons had gathered at the spot when he arrived near the fields of Chander Bhan. The learned trial Court observed that the evidence of Devender (PW-5) and Krishan (PW-6) did not inspire confidence regarding the actual and active involvement of the respondents in the commission of the crime. Both the witnesses had though deposed that all the injuries Crl. Misc. No. 537-MA of 2008 [3] were caused by Ravi (Juvenile) and that the other two accused (i.e. the respondents) had merely caught hold of him, however, Devender (PW-5) had deposed that one of the accused had caught him from behind his neck while the other accused had caught him by his hands. In cross-examination Krishan (PW-6) deposed otherwise that both the accused having identical names of Sonu had held Devender (PW-5) by his hands while Ravi (Juvenile) caused stabbed wounds with a knife in his stomach. Therefore, there indeed is an inconsistency in the two statements. It was also stated that no other person was attracted to the spot. Before the Police, Devender (PW-5) in his statement Ex.DA under Section 161 CrPC had, however, stated that many persons had gathered at the spot when he arrived near the fields of Chander Bhan. It may also be noticed that Dr. Deepak Kumar (PW-3) who medico-legally examined the injured Devender (PW-5) found incised wounds measuring 2 cms x 2 cms near umbilicus, one incised wound just above the left hip which was 4 cms x 1 cm and one incised wound 5 cms x 2 cm on the left hand just below the elbow. It was stated by Dr. Deepak Kumar (PW- 3) that all the injuries were caused with a sharp edged weapon. However, it was not stated nor is it otherwise shown that the said injuries were dangerous to life. Therefore, it was held that the charge under Section 307 IPC was not established in the case. In the circumstances, it may be noticed that charge for the offence under Section 307 IPC has not been held to be established. The injuries that were caused to Devender (PW-5) in the circumstances are primarily attributed to Ravi who has been declared Juvenile and was not tried along with the respondents. The allegations against the respondents are that they had caught hold of the injured Devender. The circumstances in which the incident occurred is that Devender (PW-5) had gone to look for his brother Anil and he met the respondents as also Ravi (juvenile). On enquiring from them about Anil, they lost their cool. The respondents caught hold of Devender (PW-5) while Ravi stabbed him with a knife. Therefore, it is not a case Crl. Misc. No. 537-MA of 2008 [4] where the respondents can be said to have come with a pre-planned and pre-meditated intention to stab Devender (PW-5). Besides, in the facts and circumstances, it cannot even be said that the respondents had a prior knowledge that Ravi (juvenile) was armed with a knife and the part played by him cannot be said to be a conjoint act so as to attract the element of common intention of the respondents with Ravi. Common intention is to be inferred in the facts and circumstances of each case, the part played by the accused and the surrounding circumstances i.e. the kind of weapon used as well as the injury inflicted as also the meeting of minds of the accused who are being held constructively liable. These elements are not there insofar as the respondents are concerned. Keeping in view the discrepancies also in the depositions of the prosecution witnesses, the learned trial Court has arrived at the conclusions that their evidence did not inspire confidence which in the circumstances cannot be said to be unsound or such that would warrant interference by this Court by granting leave to appeal against their acquittal. The learned trial Court having reached the conclusion which is just and probable, no interference is warranted by this Court. Accordingly, the application seeking leave to appeal against the acquittal of the respondents is dismissed. It is, however, made clear that nothing stated herein shall be construed as an expression of opinion insofar as the role attributed to Ravi (juvenile) is concerned and the Court/Board shall consider the evidence and material as against Ravi (juvenile) as adduced before it and uninfluenced by any observations made herein. (S.S. SARON) JUDGE December 8, 2008 (SABINA) amit JUDGE