Criminal Misc. No. 20-MA of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 20-MA of 2009 Dated of Decision: 16.02.2009 State of Haryana ... Applicant Versus 1. Satish @ Kana, son of Dalip Singh, aged 25 years, 2. Vicky @ Satish son of Ishwar, aged 18 years, 3. Mahender son of Ram Kumar, aged 23 years, 4. Partap son of Mangal, aged 20 years, all residents of village Kharak Poonia, Distt. Hisar. ...Respondents CORAM: HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. Navin Malik, Additional Advocate General, Haryana, for the applicant/appellant. * * * * SHAM SUNDER, J. This petition, under Section 378(3) of the Code of Criminal Procedure (as amended upto date), seeking grant of leave, to prefer an appeal against the judgment of acquittal, dated 06.09.2008, rendered by the Additional Sessions Judge (Fast Track Court), Hisar, has been filed Criminal Misc. No. 20-MA of 2009 2 by the State of Haryana. 2. On 28.10.2006, at about 7.00/7.30 PM, Balwan Singh, complainant, was present in his house with his wife Kamlesh. Four persons alighted from a Maruti car, and knocked at the door of their house. On account of knock, at the door of his house, when the complainant came out, those persons demanded water for consuming liquor. On refusal of the complainant, Satish, accused, gave a slap to him, whereas Vicky, accused, twisted his arm, and gave a hockey blow at his face. Thereafter, Satish, accused, gave a danda blow, on the left leg of the complainant. The remaining two accused also gave him beatings. The complainant and his wife raised alarm. Upon this, the accused sat, in the same car, and declared that if anybody tried to come nearby, they would shoot him. Many persons from the locality gathered there. The complainant and his wife stood, in front of the car. Thereafter, those persons, alighted from the car. Satish, took out a country made pistol and fired a shot, at the complainant, with an intention to kill him, but he sat down, as a result whereof, no fire arm injury, was caused on his person. When the accused were trying to sit in the car, the neighbours started pelting stones. The accused then fled. The occurrence was witnessed by Nafe Singh, brother of the complainant and Ram Mehar, his cousin. The complainant was shifted to the hospital, where he was medico-legally examined. The statement of the complainant was recorded, on the basis whereof, the First Information Report was registered. The accused were arrested. After Criminal Misc. No. 20-MA of 2009 3 the completion of investigation, they were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Sections 307 read with Section 34 of the Indian Penal Code, against all the accused, and under Section 25 of the Arms Act, against Satish @ Kana, accused, was framed, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Constable Raju, draftsman (PW1), who prepared the scaled map, Assistant Sub Inspector Mohinder Singh (PW2), EHC Krishan Kumar (PW3), Balwan Singh, Assistant Sub Inspector (PW4), Balwan son of Risala, complainant (PW5), Kamlesh, wife of Balwan, complainant (PW6), Dr. Joginder Kapoor (PW7), Kartar Singh, Inspector (PW8), HC Ravinder Kumar (PW9), and Mahender Singh, Assistant Sub Inspector (PW10). Thereafter, the 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 pleaded false implication. They, however, did not lead any evidence, in their defence. 6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court, acquitted the accused (now respondent), on the following grounds:- (i) Balwan, PW5, the complainant-cum-injured and Kamlesh, PW6, an eye-witness did not support the case of the prosecution. They stated that the assailants had muffled their faces and, therefore, they could not be identified, at the time of the alleged occurrence; Criminal Misc. No. 20-MA of 2009 4 (ii) Balwan, injured and Kamlesh, eye-witness denied that any fire arm was used for the alleged commission of crime; (iii) No independent witness was joined by the Investigating Officer despite availability, at the time of making the alleged disclosure statement by Satish, and alleged recovery of Country made pistol 315 bore, in pursuance thereof, by him. 7. We have heard the Counsel for the applicant, and have carefully gone through the judgement of the trial Court and the documents placed on the record. 8. The Counsel for the applicant, confined her arguments, only with regard to the acquittal of the accused (respondent), for the offence, punishable under Section 25 of the Arms Act. It was submitted by her, that the trial Court, was wrong, in acquitting the accused (respondent), for the offence, punishable under Section 25 of the Arms Act, merely, on the ground, that no independent witness was joined, at the time of making the disclosure statement and getting the recovery effected in pursuance thereof. She further submitted that the independent witnesses are generally reluctant to join a search and seizure and, thus, none of them could not be joined. She further submitted that the other evidence produced by the prosecution, was sufficient to bring home the guilt to the accused, for the offence punishable under Section 25 of the Arms Act. It was further submitted by her that the judgement of acquittal, recorded by the trial Court, regarding the offence, punishable under Section 25 of the Arms Act, being perverse, is liable to be set-aside. 9. After giving thoughtful consideration, to the contentions, Criminal Misc. No. 20-MA of 2009 5 advanced by the Counsel for the applicant, in our considered opinion, the application deserves to be dismissed, for the reasons to be recorded hereinafter. It is settled principle of law, that if two views are possible, on the basis of the evidence, produced by the prosecution, and the view taken by the trial Court, can be said to be a reasonably possible view, then the Appellate Court, is not required to interfere with the judgement of acquittal. In Ashok Kumar Vs. State of Rajasthan (1991 (1) SCC 166 it was held that interference in an appeal against acquittal, would be called for only, if the judgement under appeal was 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. In our considered opinion, the trial Court, was right in coming to the conclusion, that since no independent witness was joined, despite availability, at the time of making the alleged disclosure statement, by the accused, and getting the alleged recovery of pistol effected by him, in pursuance of the same, the case of the prosecution was highly doubtful. Had any independent witness been not available, the matter would have been different. In those circumstances, it could be said that it was not possible for the Investigating Officer, to join an independent witness. The alleged occurrence took place on 29.10.2006, whereas Satish, accused, allegedly made a disclosure statement on 13.11.2006, i.e. after a period of about 14 days. Had even an attempt been made by the Investigating Officer to join an independent witness and had he failed in bid, the Criminal Misc. No. 20-MA of 2009 6 matter would have been different. In the instant case, no effort was even made by the Investigating Officer, to join an independent witness at the relevant time. In Naranjan Singh Vs.Kuldip Singh & others, 1998, SAR (Criminal), 789 (SC), a case, decided by the Apex Court, the bank notes and the wrist watch of the deceased, were recovered, at the instance of the accused, in the presence of maternal grand-father of the deceased. Under these circumstances, it was held that the recovery was held to be doubtful, as it was not effected, in the presence of an independent witness. Non joining of an independent witness of the locality, at the time of making the alleged disclosure statement, by the accused, and getting the alleged recovery of country made pistol effected, cast a cloud of doubt, on the prosecution story. The trial Court, was, thus, right in holding that the accused (now respondent) was liable to be acquitted, on this ground. 10. Not only this, even Balwan, injured, PW5, and Kamlesh, PW6, eye-witness, denied that any fire-arm was used by Satish, accused, at the time of the alleged occurrence. Had any fire-arm been used, at the time of the alleged occurrence, by Satish, accused, they would have certainly made a statement, in that regard. In the absence of any evidence that 315 bore country made pistol was used, at the time of the alleged occurrence, it could not be said that the alleged recovery of pistol got effected by Satish, accused, related to the instant case. Plantation of the country made pistol, against the accused, after about 14 days of the alleged occurrence, therefore, could not be ruled out. Criminal Misc. No. 20-MA of 2009 7 The trial Court, was, thus, right in coming to the conclusion that the accused was liable to be acquitted. 11. The judgement of the trial Court, is neither illegal, nor perverse, nor based on the mis-reading of evidence. No ground, whatsoever, is made out, to interfere with the same. The instant application, seeking leave, to prefer an appeal, against the judgement of acquittal, thus, deserves to be dismissed. 12. For the reasons recorded above, Criminal Misc. No. 20-MA of 2009, being devoid of merit, is dismissed. (K.S. GAREWAL) (SHAM SUNDER) JUDGE JUDGE 16.02.2009 Amodh