Criminal Appeal No. 388-MA of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc No. 378-MA of 2009 DATE OF DECISION:19.1.2010 *** State of Haryana ..APPELLANT VS. Sandeep ..RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S. GILL. HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Pardeep S. Poonia, Addl. AG Haryana. *** ARVIND KUMAR, J. The State of Haryana is seeking leave of this Court to prefer an appeal against the judgment of acquittal dated 4.3.2009 rendered in respect of respondent, in sessions Case No. 4-SC of 2002. The case of the prosecution is that on 19.2.2002 accused- respondent and two others criminally trespassed into the house of one Kamlesh and enquired about her brother Rajesh @ Bala. When she replied in negative, in the fit of rage, Sandeep slapped her, hurled abuses and damaged the articles and then they went away from there. It is further the allegations of the prosecution that when Rajesh @ Bala went to Sandeep for enquiry of the matter, then accused-respondent fired shots upon him. Case Fir No. 87 dated 19.2.2002 was registered against the respondent for the offence under Sections 452, 427, 323 IPC and 25 of Arms Act. However, after recording the statement of Rajesh @ Bala offence under Section 307 IPC was added. The accused was arrested and put on trial. It emerges out from the records that initially the accused was served with a charge sheet under Sections 452, 323, 427 IPC and 25 of Arms Act, to which he pleaded not guilty and claimed trial. During trial, the prosecution examined as many as 10 witnesses Criminal Appeal No. 388-MA of 2006 2 including Rajesh @ Bala as PW3, complainant Kamlesh as PW8 and eye- witness Baldev Singh Sharma @ Keshi as PW9. However, lateron charge under Section 307 IPC was additionally framed. After addition of charge, no fresh evidence was led by the prosecution and though Rajesh @ Bala was sought to be re-called by the learned defence counsel for further cross- examination, but the same could not be done on account of death of Rajesh @ Bala. When examined under Section 313 Cr.P.C. the accused pleaded innocence and false implication in this case. Learned trial Court, after analyzing the evidence produced on record, acquitted the accused-respondent. We have heard learned State counsel and have gone through the judgment of the trial court and find ourselves in total agreement with the findings recorded therein. As per prosecution allegations, the alleged occurrence took place in two episodes. Firstly, the accused allegedly trespassed into the house of Kamlesh, slapped her, hurled abuses and damaged the house-hold articles. While later he fired shots upon Rajesh @ Bala. Kamlesh while entering into the witness box as PW8 though deposed on the lines of the prosecution version, but in her cross examination, she showed hostility towards the prosecution case and denied having identified the assailant as they were with muffled faces and further stated that the names of the assailants were disclosed to her by the persons collected there, on whose instance she named the accused-respondent. Thus, on account of severe contradictions in her statement, as to the identity of the accused, she was disbelieved by the learned trial Court to the extent of charges under Sections 323, 427, 452 IPC. Admittedly, there was no other witness examined by the prosecution, so far as the alleged offences are concerned. Although, the prosecution initially examined Rajesh @ Bala as PW3 when there were charges for the offence under Sections 323, 427, 452 IPC only against the accused. But after addition of charge under Section 307 IPC, this witness, on whose the accused allegedly fired shots, could not be produced before the Court for further cross-examined since he was no more in this world by that time. The perusal of the impugned judgment reveals that cogent and convincing findings have been given by the Court below Criminal Appeal No. 388-MA of 2006 3 while acquitting the respondent of the charge under Section 307 IPC as well and the same are discernible from para No.26 of the impugned judgment, which reads as under:- “26. Now coming to charge under section 307 IPC, it is observed that none was injured on account of firing by accused Sandeep. No pellets were lifted from spot. The version of Rajesh that accused Sandeep fired shot at him is not supported by any other witness especially when in FIR it is mentioned that women told Kamlesh that Sandeep had fired shot at Rajesh. Prosecution was unable to lead any corroborative evidence. PW3 Rajesh made material improvements from his earlier statement Ex.DA to the police. He did not mention in Ex.DA that on his reaching his house, he found that Sandeep, Pawan and Jabir were coming out from his house. He also improved upon his version that accused Sandeep fired second shot which did not hit him whereas in Ex.DA he stated that shot was fired in air. He stated that empty had fallen at spot which was taken away by Sandeep, is also contrary to prosecution version as empty could only fell in case of reloading and there is no evidence of reloading. Rajesh PW3 stated that he informed the police on telephone whereas police version is that PW8 Kamlesh made statement to police. Involvement of Pawan and Jasbir was not found by the police. In view of discrepancies and improvement, version of PW Rajesh is not reliable. Moreso, as already observed, he is witness to prove charge under section 307 IPC, but prosecution could not cross examine him after addition of charge under section 307 IPC, for which defence has been prejudiced and benefit has to go to accused. Other witness to prove charge under seduction(?) 307 IPV (?), namely Baldev alias Kessi did not support the prosecution case at all.” Criminal Appeal No. 388-MA of 2006 4 There is no room to interfere with the aforesaid findings. Though, the licensed pistol was recovered from the possession of the accused, but finding no circumstance connecting the accused with the use of said licensed fire arm in the alleged offence, the Court below rightly acquitted the accused-respondent. In the circumstances, we are not inclined to grant the leave asked for and the prayer is accordingly declined. (MEHTAB S. GILL) (ARVIND KUMAR) JUDGE JUDGE January 19,2010 Jiten