Crl. Misc. Application No.1002-MA of 2010 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARAYANA AT CHANDIGARH Crl. Misc. Application No.1002-MA of 2010 Date of Decision: October 13, 2010 State of Haryana ….Appellant Versus Ravinder and others ….Respondents CORAM: HON’BLE MR. JUSTICE SABINA Present: Mr. Satyavir Singh Yadav, Dy. Advocate General, Haryana for the appellant. **** SABINA, J.(ORAL) Respondents were tried for offence under Sections 148, 149, 332, 333, 186, 353 IPC and 61(i)(a) of Punjab Excise Act, 1914. The learned trial Court vide impugned judgment dated 24.05.2010 acquitted all the respondents of the charges framed against them. Hence, the present application by the State under Sections 378(3) for grant of leave to appeal. The brief facts of the prosecution case, as noticed by the learned trial Court in para No.1 of its judgment, read as under: - “…on 22.08.2006, Ashok Kumar EHC 1133, Hisar, then posted in Excise Staff, while admitting in General Hospital, Hisar made statement before the police stating therein on 22.08.2006, he along with Ramesh Chander ASI, Satish Kumar constable No.747, erected barrier near main gate of Horse Breeding Farm, Hisar on Hisar Sirsa Road, in order to check the excise theft. At about 9.00 p.m. one youth mounting on scooter, came -1- Crl. Misc. Application No.1002-MA of 2010 from the side of village Peeranwali and on the scooter, two bags containing pouches of illicit liquor were loaded. When the scooterist came near the police party, he was signaled to stop and the scooterist became nervous and as such thrown the scooter at the site and ran away towards the village Peeranwali. Scooter was not bearing any registration number. They all three were making efforts to bring the scooter and bags containing liquor pouches at the barrier, meanwhile at about 9.15 p.m. 7-8 persons came from the side of village Peeranwali, and raised lalkara to teach a lesson to them on account of seizure of their liquor and they all cordoned off all the three and started beating to them and one of the person from the crowd, in the left side of his head (Ashok Kumar’s head) hit some pointed object. He fell on the ground and then one of the persons from the crowd gave beating to him with lathi while striking its point into his chest and another person gave blow of lathi on his left arm and one of the person gave blow on his right ankle and also gave beating to his co-police officials Ramesh Chander ASI and Satish Kumar constable No.747. Ramesh Chander ASI having no another alternative, shot two fire in the air, in self defence and thereafter, the members of the crowd ran towards village Peeranwali, by following the unmetalled road (Kaccha passage). Ramesh Chander ASI remained at the site to keep watch on the scooter and illicit liquor and deputed to him as well as Satish Kumar for treatment in General Hospital, Hisar.” -2- Crl. Misc. Application No.1002-MA of 2010 After hearing learned counsel for the State I am of the opinion that no ground for interference by this Court is made out and the instant application deserves dismissal. Learned trial Court in paras No.12 to 15 of its judgment has held as under: “….12. As per statement Ex.P10, made by Ashok Kumar PW6 occurrence has taken place at 9.15 p.m. Quite obvious, it was dark. While making his statement Ex.P10, Ashok Kumar and Satish Kumar, PW8 not implicated any of the accused by name. In such like circumstances it becomes the duty of the prosecution, to establish the identity of the accused beyond reasonable doubt. The scooter, which was thrown at the site, at the time of occurrence, was not bearing any registration number. There is not an iota of evidence on record to show that the scooter was owned by any of the accused, in any capacity. Ashok Kumar PW6 Satish Kumar PW8 and Ramesh Chander PW10 according to prosecution were on duty in order to check theft of excise and as such they were present at Barrier near Horse Breeding farm Hisar. Again no iota of evidence has come on record, such as, police report, Rapat Roznamacha, police entries or any order, showing they erected the barrier in front of Horse Breeding farm, Hisar, in discharge of their official duties. The view of this Court is fully supported by the law cited by Ld. Defence counsel in 2004(1) CCJ7 P&H State of Haryana Vs. Des Raj and another. Ashok Kumar PW/6 in his first line of cross-examination admitted, he has scribed the names of the accused on the palm of his left hand and on the -3- Crl. Misc. Application No.1002-MA of 2010 pointing of defence counsel, he shown his palm of left hand to the Court which bore the names of the accused. His statement Ex.P10 was recorded on 22.08.2006, in which, name of the accused was not mentioned. In statement Ex.P10, PW6 stated the presence of 7-8 persons at the site, who had come from the side of village Peeranwali. While appearing into witness box PW-6 stated the persons, who had come from the side of village Peeranwali, were five in total. In his cross-examination, he admitted there was no mention in statement Ex.P10 which of the accused caused which of the injury to whom. He also admitted he came to know about the names of the accused after 1-1/2 months of the occurrence as the names were disclosed by secret informer. He also admitted he had not given description of any of the accused to the IO when his statement Ex.P10 was recorded, on 22.08.2006. In his statement Ex.P10 Ashok Kumar stated when the person from the side of village Peeranwali cordon off them, they attacked upon all the three, and having no another alternative, Ramesh Kumar ASI PW10 fired a shot from the pistol, in the air, to scare the culprits. However, in cross- examination at page No.3, he admitted Ramesh Kumar had not fired any shot from his revolver when the accused raised lalkara and accordin to Ashok Kumar EHC, a revolver bearing No.N- 403485 of .38 bore and 18 live cartridges of same bore were issued to Ramesh Kumar ASI NO.136-H on 05.12.2005. On 23.08.2006, he deposited two empties with him. Ramesh Kumar ASI had not shot any fire in the air as per Ashok Kumar PW-6, -4- Crl. Misc. Application No.1002-MA of 2010 therefore, version stated in statement Ex.P10 is contradictory to his version made in the court and it put dent in the story of the prosecution. 13. Satish Kumar EHC one of the inured, while stepping into witness box as PW-8 in his first line of cross- examination admitted, he had not disclosed name of accused in his statement Ex.P10 made before the IO. He admitted he came to know the name of the accused on 10.02.2007 and the accused had got identified from him in the police station. No identification parade was organized by the police to get the accused identified from the eye witness. Eye witnesses first time identified the accused in the Court and their first time identification in the Court by eye witness is immaterial. The view of this court is fully supported by the law cited by defence counsel in 1980 CAR 233 (SC) Kanan & Ors. Vs. State of Kerala; 2007(2) CCJ 413 (SC) Ravi @ Ravichandran, appellant Vs. State rep by Inspector of Police, respondent ; 2002(3) CCJ 649(SC) Dana Yadav & Ors. Appellants Vs. State of Bihar, respondent. 14. Ramesh Chander ASI, one of the members of the police party, while stepping into witness box, as PW10 in his cross- examination admitted, he had not stated in his statement made before Vikram IO stating he was knowing the accused by face only and he did not know the name of any of the accused. He further stated in his statement, he stated 5/6 persons caused injuries to the members of the police party. He also stated -5- Crl. Misc. Application No.1002-MA of 2010 scooter was stopped by them at the distance of about 100/150 yards. No police official chased the boys who escaped from the spot and it was dark night and they only saw 5-6 persons surrounded them. He received two injuries on his person. He was summoned ij police station after 6-7 months to identify the accused. Ashok Kumar PW-6 in his statement stated when the scooterist came near to the barrier, he was signaled to stop. It was dark night and given signal to the scooterist from the distance of 100/150 yards as stated by Ramesh Chander PW was not possible. His version is improbable. In this way, the prosecution has not been able to prove the identification of any of the accused. None of the accused was caught by the police party at the site. It was dark. The version of Ashok Kumar PW- 6, Satish Kumar PW-8 and ASI Ramesh Chander PW-10 is contrary to each other and they all are uncertain on the point of identity. According to them, none of them, knew any of the accused at the time of occurrence and one of them had given any clue about the identify of the accuse. In this way the prosecution has failed to establish the identity of the accused beyond reasonable doubt. Further more, certain dandas were recovered vide recovery Memo Ex.P14 to Ex.P23. Ravinder Kumar PW11 admitted such type of dandas are easily available and it is also noticeable fact, object like danda are available in every house in the village or it can easily be procured by the police, in order to falsely implicate the accused. IO had not collected any proof regarding the ownership of scooter. This -6- Crl. Misc. Application No.1002-MA of 2010 fact has been admitted by Vikram Jeet IO, in his cross examination. In this way, the link evidence is missing and the injury suffered by Ramesh Chander PW10 as per medical evidence is contrary to ocular version and such type of injury can be by fall on hard surface. It appears to the Court, in fact, the police party sustained injury from some where else and Ramesh Chander ASI misused two live cartridges pertaining to the service revolver issued to him and in order to save his skin, from departmental proceedings, the story has been concocted, because as per statement made by PW-6 Ashok Kumar, at about 9.00 p.m. one youth mounting on scooter, loading two bags containing pouches of illicit liquor, came from the side of village Peeranwali. The question is prior to the nabbing of the scooterist and without checking the two bags, allegedly loaded on the scooter, how he came to know the bags were containing pouches of illicit liquor. This part of his statement makes clear, in fact, no occurrence had taken place but story has been concocted with ulterior motive to explain the loss/mis-use of two live cartridges by Ramesh Chander ASI PW-10. Further more, except danda like object nothing else was recovered by the police from the accused in the courts of investigation. As already observed by this Court, danda like object is easily available any where and none of the accused, was identified by any of the members of the’ police party so there is nothing to infer, the accused were armed with deadly weapon in prosecution of their common object to commit the offence of -7- Crl. Misc. Application No.1002-MA of 2010 rioting and caused hindrance in discharge of duty by Ashok Kumar PW-6 Satish Kumar PW-8 and Ramesh Chander PW-10, and also caused injuries to them, in the discharge of their duties. All the accused are acquitted of the charges under Sections 148, 149, 333, 332, 353 IPC. Charge under Section 61(i)(a) of Punjab Excise Act, 1914. 15. According to the prosecution at the time of occurrence, two bags containing pouches of illicit liquor were loaded on the scooter. Except FSL report Ex.P.29 there is no evidence on record to prove that any quantity of illicit liquor was recovered from any of the accused and while giving findings under Sections 148, 149, 333, 323, 353 IPC as already observed by this Court, the prosecution failed to establish the identity of any of the accused. It was dark time. None of the accused caught by the police at the time of occurrence. No excise officials has been examined to prove that the liquor recovered in fact, was according to his opinion, illicit liquor. Vijay Singh SI, stated about taking into possession 80 pouches of illicit liquor, at the site, which were put into two bags, but the said 80 pouches of illicit liquor, were not produced in the Court. No explanation has been given why the same have not been produced in the court. In the light of the observations of this Court on substantial charges under Sections 148, 149, 333, 332, 353 IPC the story of the prosecution regarding recovery of illicit liquor from any of the accused is very much doubtful. All the accused are also acquitted of the charge under Section 61(i) -8- Crl. Misc. Application No.1002-MA of 2010 (a) of Punjab Excise Act, 1914. Their bail bonds and surety bonds are ordered to be discharged. Their sureties are ordered to be discharged in their absence. Illicit liquor allegedly recovered from the site of occurrence, be confiscated in favour of State of Haryana. It be destroyed as per rules. While making their even date statement, none of the accused has claimed unregistered scooter, which was taken into possession by the police in this case. Similarly, they have not claimed any danda, allegedly, recovered from the accused. The said unregistered scooter and all the dandas, which were recovered from the accused and taken into possession by the police vide recovery memo Ex.P4 to Ex.P23 and Ex.P24(MO) to Ex.P28 (MO) ordered to be confiscated in favour of State of Haryana and said scooter be disposed of and danda be destroyed as per rules. File be consigned to records. The reasons given by the learned trial Court while acquitting the respondents of the charges framed against them are sound reasons 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 -9- Crl. Misc. Application No.1002-MA of 2010 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.” The learned State counsel has failed to point out any misreading of evidence on record by the learned trial Court. Hence, no ground is made out to grant leave to file an appeal. Accordingly, this application is dismissed. 13.10.2010 (SABINA) vcgarg JUDGE -1 0-