Criminal Appeal No. 442-DBA of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 442-DBA of 1993 Date of Decision: 24.03.2009 State of Haryana ... Appellant Versus 1. Sarla Ram son of Bhawani Singh Ahir, resident of Khasapura, Rewari, P.S. City Rewari. 2. Karan Singh alias Hapli son of Sarla Ram Ahir, 3. Naresh @ Neshi son of Sarla Ram Ahir, 4. Siri Bhagwan @ Billu son of Sarla Ram Ahir, All residents of Khasapura, Rewari, Police Station Rewari. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. P.S. Sullar, Deputy Advocate General, Haryana, for the appellant. Mr. Mukesh Yadav, Advocate, for the respondents. SHAM SUNDER, J. This appeal is directed against the judgement dated 10.07.93, rendered by the Court of Chief Judicial Magistrate, Rewari,vide which, it acquitted the accused (now respondents). 2. The facts, in brief, are that Sardarmal, complainant, on 22.04.86, at about 6.00 PM, was returning from the house of Babu Lal, and when he passed in front of the house of the accused, he noticed Sarla Ram, Criminal Appeal No. 442-DBA of 1993 2 alongwith his three sons consuming liquor. Sarla Ram, accused,invited him to sit down with them, but he refused. Upon this, Sarla Ram, accused, felt annoyed and hurled a stone at the complainant, which hit his head. The complainant then ran away to his house. All the accused followed him. Karan Singh alias Hapli, accused, hurled a stone at him, hitting his left hand. Naresh, accused, hurled a stone, hitting his nose, whereas, Siri Bhagwan @ Billu, accused, hurled a stone, hitting the left hand finger of Sardarmal, complainant. It was further stated that Sarla Ram, accused, caught hold of the complainant, and, thereafter, all the accused, pelted more stones at him (complainant),which hit him on various parts of the body. Ultimately, the complainant was rescued, from the clutches of the accused, by Kashmiri Lal, PW3, who was present there and his (complainant's) son Ved Parkash. On the basis of the statement, made by the complainant, first information report, was registered. The complainant was got medico-legally examined. The accused were arrested. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Sections 452, 323, and 325 read with Section 34 of the Indian Penal Code, was framed against them, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Dr. R.S. Yadav, Medical Officer, Civil Hospital, Rewari (PW1), who found eight injuries, on the person of Sardarmal. Injury No. 3, was declared grievous in nature, caused by blunt weapon, whereas, the remaining injuries, were declared simple in nature, caused by blunt weapons, Sardarmal, Criminal Appeal No. 442-DBA of 1993 3 complainant, (PW2), Kashmiri Lal (PW3), Ram Chander, Assistant Sub Inspector, CIA Staff, Rewari (PW4), the Investigating Officer, Ved Parkash son of Sardarmal, complainant (PW5), Roshan Lal (PW6), Attar Singh, Medical Record Clerk, Medical College Hospital, Rohtak (PW7), and Dr. Pradeep Grower, Medical College, Rohtak (PW8). Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They also examined Nand Lal (DW1), in support of their defence. Thereafter, they closed the defence evidence. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court acquitted the accused, as stated above. 7. Feeling aggrieved, the instant appeal, was filed by the State of Haryana/appellant. 8 I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. It is settled principle of law, that the Appellate Court, in an appeal, against acquittal, will not interfere with the order of acquittal, solely because different plausible view, may arise, on the evidence and it thinks that the view taken by the trial Court of the evidence, was not correct. If the evaluation of evidence, made by the Court below, while recording an order of acquittal, does not suffer from any illegality or manifest error, and the grounds, on which, the order of acquittal is based are not unreasonable, then this Court should not disturb the said order of acquittal. Keeping this Criminal Appeal No. 442-DBA of 1993 4 principle of law, in view, now let us see, as to whether, the trial Court, was right, in recording acquittal of the accused (now respondents), or not. Ved Parkash, PW5, is the son of the complainant, whereas Kashmiri Lal, PW3, is the employee of Sardarmal, as admitted by the former. Under these circumstances, it could be said, that both these witnesses, were highly interested, in the complainant. It is, no doubt, true that the mere fact that the witnesses are interested, in itself, could not be sufficient to disbelieve their evidence and record acquittal. Their evidence is required to be scrutinized carefully and cautiously. If after such scrutiny, the Court comes to the conclusion, that the same does not suffer from any serious infirmity, the same can be believed. The evidence of the prosecution witnesses, as would be discussed, in the subsequent paragraphs, is unreliable. Under these circumstances, the prosecution was required to examine an independent witness, who was joined, during the course of investigation, so as to ensure that the truth came to the surface. In this case, Babu Lal, whose house is situated in the same vicinity was joined by the Investigating Officer. He was not examined by the prosecution, on the ground, that he had been won-over by the accused. It is to be seen, as to whether, the Public Prosecutor for the State, gave him up, as having been won-over, for valid reasons, vide statement dated 12.02.88, or not. There is no material, on record, that Babu Lal, an independent witness, had actually been won over, by the accused. It means that the Additional Public Prosecutor for the State, exercised the discretion vested in him, in giving up Babu Lal, independent witness, arbitrarily and capriciously. The decision of the Additional Public Prosecutor for the State, in giving up Babu Lal, independent witness, could not be said to be bonafide. The prosecution, thus, withheld the best evidence Criminal Appeal No. 442-DBA of 1993 5 in its possession. Under these circumstances, an adverse inference, could be drawn that had Babu Lal, been examined, he would not have supported the case of the prosecution. In Masalti Vs. State of U.P., AIR 1965, SC, 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness must be examined, even though his evidence, may not be material, or even if, it is known that he has been won over or terrorized. Non-examination of Babu Lal, an independent witness, without any rhyme or reason, by the Additional Public Prosecutor for the State, especially when the case of the prosecution was based on the evidence of the highly interested witnesses, was rightly taken to be one of the grounds, to disbelieve the prosecution case, by the trial Court. This Court, on reappraisal and appreciation of the evidence, also agrees with the conclusion, so arrived at, by the trial Court. The finding recorded by the trial Court, that on account of non-examination of Babu Lal, an independent witness, the case of the prosecution became doubtful, being based, on the due appreciation of evidence, could not be said to be unreasonable, in any manner. This finding of the trial Court, is, thus, upheld. 10. Not only this, Sardarmal, PW2, denied the suggestion that Kashmiri Lal, PW3, was his employee. Even Kashmiri Lal, also denied the suggestion that he was an employee of Sardarmal, at the relevant time. When Ved Parkash,PW5, son of the complainant, appeared, as witness, he admitted,during the course of cross-examination, that Kashmiri Lal, was employed, at the shop of the complainant. The admission made by Ved Parkash son of the complainant, that Kashmiri Lal, was an employee of the Criminal Appeal No. 442-DBA of 1993 6 complainant, falsified the statement of Sardarmal, and Kashmiri Lal, on the aforesaid point. Under these circumstances, it could be very well said, that Kashmiri Lal, being an employee of Sardarmal, could be said to be a convenient witness. A person who could, tell a lie, that he was not an employee, of Sardarmal, complainant, could go to any extent, to depose in his favour. Even, Kashmiri Lal, made improvements, over his statement,under Section 161 of the Code of Criminal Procedure. He stated that he had told the Police that Naresh, accused, had hurled stones at him, while he laid himself, on the ground. When his attention was drawn to his statement,under Section 161 of the Code of Criminal Procedure, this fact was not found recorded therein. It was further stated by him that Sardarmal, was hit on his left eye and finger of his left hand. But this fact was not found recorded in his statement,under Section 161 of the Code of Criminal Procedure. He also stated that he did not make any statement, before the Police, that there was a wordy duel, between the complainant, and accused Sarla Ram. However, when he was confronted with his statement Ex. DA, this fact was found recorded therein. Sardarmal, PW2, stated that, during the course of attack by the accused,he fell down, on the ground. However, this fact was not found mentioned in PC, the statement made by him, on the basis whereof, the first information report, was recorded. It was further stated by him, that blood from his injuries, had fallen on the earth, and he had shown the blood stained clothes to the Police. However, the Investigating Officer, did not take into possession any blood stained clothes. The Investigating Officer did not state that he saw the blood stained earth at the spot. There is nothing, on record, that any blood stained earth was lifted from the spot. Had any blood stained earth been in existence at the spot, the Criminal Appeal No. 442-DBA of 1993 7 same wold have been lifted. Sardarmal, complainant, claimed that stones were lying outside his house. However, Kashmiri Lal, PW3, deposed that no stones were lying anywhere, near the place of occurrence. It may be stated here, that only if the heaps of stones, had been at or near the place of occurrence, a number of stones could be thrown at Sardarmal, resulting into injuries. Ved Parkash, PW5, stated that the accused were carrying stones with them. Since there was no heap of stones, near the place of occurrence, the question of the accused carrying a number of stones, in their hands, at the time of the alleged occurrence, did not at all arise. The improvements and contradictions made, in their statements by the prosecution witnesses, over their previous statements, as also the other circumstances, referred to above, made the case of the prosecution doubtful. The trial Court, was, thus, right, in holding, that the story set up by the prosecution, that the occurrence took place, in the house of Sardarmal, from the aforesaid improvements, contradictions, and circumstances, could be said to be most improbable and unnatural. The conclusion arrived at, by the trial Court, in this regard, cannot be said to be unreasonable or erroneous. This Court, after reappraisal and reappreciation of the evidence, also comes to the same conclusion. 11. According to the site plan PW4/D, the houses of Banshi, Chaman Singh, Durga Parsad, Hulasa Ram, Roshan, and Kanhaiya, are in between the houses of the accused and the complainant. This proved that there was sufficient distance, between the houses of the complainant, and the accused. Had the occurrence taken place, in the manner, deposed to by the complainant, and the alleged eye-witnesses, the persons of the adjoining houses referred to above, must have collected, at the spot. However, according to the complainant, none of these persons, came to his house, on Criminal Appeal No. 442-DBA of 1993 8 hearing his alarm, when the occurrence took place. It could not be imagined that no person from the neighbourhood, came to the spot. In towns, such like occurrence, never remains a secret affair. As and when an occurrence takes place, it becomes the talk of the town. The mere fact that none of the aforesaid persons, residing in the neighbourhood of the complainant, collected at the spot, at the time of the alleged occurrence, clearly showed that no occurrence, as deposed to by the prosecution witnesses, ever took place, but the accused were falsely implicated. The trial Court, also came to the same conclusion, on appreciation of the evidence. The conclusion arrived at, by the trial Court, in this regard, could be said to be reasonable. On reappraisal and reappreciation of the evidence, this Court also comes to the same conclusion. 12. Even there was no motive, with the accused, for causing injuries on the person of Sardarmal, complainant. It is, no doubt, true that the occurrence can take place, even without motive. However, in the instant case, the motive set up by the complainant, that when he refused to sit with the accused, they came to his house, and attacked him does not appear to be probable. There was no reason, on the part of the accused, to attack Sardarmal, complainant, on the basis of such a flimsy motive. Had there been a strong motive, it would have been said, that the accused caused injuries, on the person of the complainant. The motive set up by the prosecution, being very slender, the trial Court, was right, in holding that the occurrence did not take place, in the manner, deposed to, by the prosecution witnesses and the accused were falsely implicated. The conclusion, arrived at, by the trial Court, in this regard, cannot be said to be, in any way, unreasonable. This Court also after reappraisal of the evidence, Criminal Appeal No. 442-DBA of 1993 9 comes to the same conclusion. 13. Even the ocular evidence, was not supported by the medical evidence. Dr. R.S. Yadav, who appeared as, PW1, during the course of cross-examination stated that all the injuries, on the person of Sardarmal, could be the result of fall on hard surface. The doctor by examining the seats of injuries, on the person of the complainant, could certainly come to a definite conclusion, as to whether, such injuries could be the result of fall, on the hard surface or not. He was not re-examined by the complainant, with a view to show that such an opinion given by him, was not correct. In this view of the matter, the trial Court, was right in coming to the conclusion, that the occurrence may have taken place, in some other manner, and not in the manner, deposed to, by the prosecution witnesses. The trial Court, was also right, in coming to the conclusion, that since the doctor deposed that the injuries, on the person of the complainant, could be the result of fall, on the hard surface, the case of the prosecution was doubtful, and the possibility of false implication of the accused, could not be ruled out. The conclusion arrived at, by the trial Court, in this regard, being based on the correct appreciation of evidence, there is no reason to be differ with the same. 14. It was not that the accused were allegedly throwing stones, aiming the same at Sardarmal only. Kashmiri Lal, PW3, and Ved Parkash, PW5, alleged eye-witnesses, who were allegedly present, at the time of the alleged occurrence, did not receive any injuries, though according to them, a number of stones were pelted by the accused. Had they been present, at the time of the alleged occurrence, when a number of stones were allegedly pelted, by the accused, the same would have certainly hit them. In the Criminal Appeal No. 442-DBA of 1993 10 absence of any injury, having been received by them, on account of the alleged pelting of stones by the accused, a reasonable inference could be drawn, that no occurrence, took place, in the manner, deposed to by the prosecution witnesses. 15. In view of the above discussion, it is held that the view taken by the trial Court, that the accused were entitled to acquittal, could be said to be a reasonable view, based on the correct appreciation of evidence, and law on the point. The judgement of the trial Court, does not suffer from any illegality or manifest error and the grounds, on which, the acquittal was recorded, could not be said to be unreasonable. In this view of the matter, there is no warrant to disturb the judgement of acquittal, recorded by the trial Court. 16. For the reasons recorded above, the appeal,being without merit, must fail,and the same is dismissed. 24.03.2009 (SHAM SUNDER) AMODH JUDGE