CRIMINAL APPEAL NO. 304-DBA OF 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: May 11, 2009 Parties Name State ...APPELLANT. VERSUS Harnek Singh and others ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. S.S.Randhawa, Addl. A.G., Haryana, for the appellant. Mr. G.S.Nagra, Advocate, and Mr. Narinder Lucky, Advocates, for the respondents. Mrs. Kiran Bala Jain, Advocate, for the petitioner in Cr.R. No. 388 of 2001. JASBIR SINGH, J. JUDGMENT This order will dispose of Criminal Appeal No. 304-DBA of 2001 and Criminal Revision No. 388 of 2001 as both have been filed against a common judgment. Facts are being taken from Criminal Appeal No. 304-DBA of 2001. By filing this appeal, State of Haryana has laid challenge to the judgment dated November 8, 2000, acquitting the respondents of the charges framed against them. It was allegation against the respondents that they, on February 18, 1996, with common intention, had committed murder CRIMINAL APPEAL NO. 304-DBA OF 2001 -2- of Jai Pal son of Om Parkash and also had caused injuries to Savitri Devi wife of Om Parkash. The trial Court has noticed brief facts of the case of the prosecution in para No. 1 of the impugned judgment, which read thus: “The first information report, with regard to the murder of Jai Pal son of Om Parkash, came to be recorded on 18th February, 1996, at 8.05 p.m. at Police Station Sadar Ambala. The incident is unfolded in Ex. PQ, which is the statement, made by Ajit Ram, uncle of the deceased. A telephonic message was received by the police from the hospital. Ruka was also sent by the Medical Officer. The incident is stated to have taken place at 6.00 p.m., the same day. All the accused were named in the FIR and the allegations were that at about 6.00 p.m., Jai Pal, along with his mother Savitri were going back to their village and when they were near G.T. Road, a Swaraj tractor was coming from the opposite side, which was being driven by Harnek Singh, while the other accused were sitting behind and on seeing Jai Pal and his mother, the accused party raised a Lalkara that they should be killed and Harnek then trampled Jai Pal under his tractor. Jai Pal died on the spot, while his mother Savitri received fracture on the left leg. The incident is said to have been witnessed by Ajit Ram, uncle of the deceased, Surta and Om Parkash. It was alleged that all the accused left hurling abuses. The complainant, lateron, came to know that the same day, his brother Om Parkash had an altercation with Gurmelo, wife of Dwarka and his brother had pushed Gurmelo and in order to take revenge for the incident, life of Jai Pal had been CRIMINAL APPEAL NO. 304-DBA OF 2001 -3- taken. The FIR came to be registered at 8.05 p.m. The special report reached the Magistrate at 12.30 a.m.” The Investigating Officer SI Mange Ram (PW14) went ahead with the investigation, recorded statements of the witnesses and on completion of investigation, presented final report only against respondent No. 1 Harnek Singh and respondent No. 6 Dwarka. Names of the other respondents were put in column No. 2 of the final report. However, during trial, remaining accused were also summoned to face trial, on an application moved under Section 319 Cr.P.C. The respondents were charge-sheeted for commission of offences under Sections 302/323/325/149 IPC. They pleaded not guilty to the charges and claimed trial. The prosecution produced 14 witnesses and also brought on record documentary evidence to prove its case. On completion of prosecution evidence, statements of the respondents were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. They gave a different version as to how injuries were received by the deceased Jai Pal and Savitri Devi (PW13). They also led evidence in defence. The trial Court on appraisal of evidence came to a conclusion that the prosecution has failed to prove guilt of the respondents beyond a shadow of reasonable doubt. By giving them benefit of doubt, they were acquitted of the charges framed against them. Hence this appeal. Complainant Ajit Ram, at whose instance FIR Ex. PB was registered, has filed Criminal Revision No. 388 of 2001, laying challenge to CRIMINAL APPEAL NO. 304-DBA OF 2001 -4- the impugned judgment. Counsel for the parties heard. Shri S.S.Randhawa, Additional Advocate General, State of Haryana, by making reference to the statements made by Savitri Devi (PW13), Ajit Ram (PW11), Om Parkash (PW12) and the medical evidence on record has vehemently argued that the trial Court was not justified in acquitting the respondents of the charges framed against them. He has laid special emphasis, so far as role played by Harnek Singh, respondent No. 1, at the time of alleged occurrence, is concerned. By making reference to statements made by PW7 Dr. Vijay Bansal, who medicolegally examined Savitri (PW13) and Om Parkash (PW12) argued that the respondents had crushed the above named Savitri Devi and deceased Jai Pal under the tractor. Harnek Singh was on the steering wheel and as such his exoneration by the trial Court is not justified. On the same lines, arguments have been raised by Mrs.Kiran Bala Jain, counsel for the revision petitioner. Both prayed that the appeal and the revision petition be allowed, judgment under challenge be set aside and the private respondents be convicted and sentenced for the offences, which were charged against them. Counsel for the respondents has vehemently opposed prayer made by counsel for the appellants. He, by making reference to the medical evidence on record, argued that the allegation of crushing the deceased and injured Savitri (PW13) under the tractor was not proved on record. He further argued that the prosecution has failed to give any explanation for the injuries received by family of the respondents and further that the view formed by the trial Court was in consonance with the evidence on record. He prayed that no interference be made in the judgment under challenge. CRIMINAL APPEAL NO. 304-DBA OF 2001 -5- After hearing the arguments, we are convinced that it is a case in which it will not be possible for this Court to interfere at the instance of the appellant and the revision petitioner. As per case of the prosecution, Jai Pal and Savitri Devi were crushed under the tractor. Former died and the latter was critically injured. Dr. Vijay Bansal (PW7) has medicolegally examined PW13 Savitri Devi on February 18, 1996 and he found the following injury on her person: “1. There was swelling of left ankle joint. Slight disfigurement was there. There was haematoma both sides 6 x 3 cm, 6 x 3 cm. There was .5 cm x 0.5 cm reddish abrasion on the medical malleolus. X-Ray was advised.” Dr. R.K. Patnaik (PW8) found that there was fracture of navicula bone of left foot of Smt. Savitri Devi. Dr. Vijay Bansal (PW7) also examined PW12 Om Parkash on the above said date and found following one injury on his person: “There was bleeding from the nose both sides. Blood clots were present in the nasal cavity. There was slight deformity of the nose. X-ray was advised.” This witness has specifically stated that injury on the person of Om Parkash did not show any external mark. Witness has further stated that if a person tried to board a tractor from behind by putting his foot on lift of the tractor and falls while boarding, then injury of the kind sustained by Savitri was possible. Post-mortem on the dead body of Jai Pal was conducted by Dr. CRIMINAL APPEAL NO. 304-DBA OF 2001 -6- N.P.Jindal (PW10) on February 19, 1996, at 10.40 AM. Following seven injuries were found on the person of the deceased: “1. Right ear loule partially torn from the base, clotted blood was present over and around the wound. 2. Multiple contusion over the right side of upper part of chest, covering first, second and third intercostral space to right of the mid-line, to mammary line. It was brownish in colour. 3. 8 cm x 4 cm contused area with peticheal haemorrhages in the left lower part of chest extending from the anterior axillary line to the midline. It was brownish in colour. 4. Multiple (9) superficial abrasions, small sized of varying sizes over the right lower leg extending from knee to foot. 5. Three superficials small abrasions of 3 cm x 1-½ cm over the fronto-lateral aspect of left knee joint. It was brownish in colour. 6. On opening the skin over the chest there was blood in the intercostral muscles of Ist, 2nd, 3rd and 4th intercostral spaces. On opening the chest cage there was fracture of the 2nd , 3rd and 4th rib on right side in mid clavicular line, piercing the apical lobe of the lung leading to massive haemorrhage in the right thoracic cavity. 7. On opening the scalp there was 3 cm x 9 cm 'Y' shaped crack over the right fronto parietal bones. It was 9 cm x 3 cm in size. 8. On opening the skull chipped bone fragments identing the duramatter. On opening the dura-matter there was profuse CRIMINAL APPEAL NO. 304-DBA OF 2001 -7- sub dural haemotoma covering the fronto parietal and temporal lobe. Areas. Underlying brain tissue showed blood in the sulci.” By pointing to injury No. 6, Shri Randhawa made an attempt to show that the same was caused on account of crushing the deceased under front wheel of the tractor. In his cross-examination, Dr. N.P.Jindal (PW10) has specifically stated as under: “There was no crush injury or any tyre mark injury on the dead body. If a person was wearing clothes, tyre marks may not come, volunteered. Possibility of sustaining these injuries by catching hold of a moving tractor and in a fall cannot be ruled out.” Smt. Savitri when appearing in Court has specifically stated that Harnek Singh accused drove his tractor with speed and crushed her son underneath the tractor. She also received injuries on her left leg. She further said that Harnek Singh intentionally drove his tractor and crushed her son. The tractor ran over the body of her son, first the front wheel crushed and then the entire tractor passed on her son, who died instantaneously, whereas to the contrary, in his statement Harnek Singh accused has taken up the following stand: “I am innocent. I have been falsely involved in this case at the instance of complainant party. Om Parkash had come to his house and had informed his son Jai Pal that he (Om Parkash) had been beaten by Dwarka and his wife Gurmelo and with a CRIMINAL APPEAL NO. 304-DBA OF 2001 -8- view to take revenge from them, Jai Pal armed with a lathi came over to G.T. Road under the belief that Dwarka was coming on the tractor. He climbed the trolley but the two ladies namely Gurmelo and Karamjit Kaur and children who raised hue and cry, as a result myself tried to sped the tractor as Jai Pal caused injuries to Gurmelo, Karamjit and Raj Kumar and when Jai Pal saw that I was speding the tractor, he tried to catch hold the steering of the tractor, which he could not catch properly and fell down and received injuries, and he was not trampled under the tractor as alleged. “ After looking at the medical evidence, deposition made by the alleged eye witnesses, nature of injuries received by Savitri Devi and the deceased, we are of the firm opinion that the occurrence might have taken place in the manner, in which it has been depicted by Harnek Singh, respondent No. 1. Tractor is a heavy weight machinery. If it had passed over the deceased, his body was bound to be crushed but at the time of post- mortem, no crush injury was found on person of the deceased and also on the person of Savitri Devi (PW13). In their defence, respondents have produced Dr. Manoj Aggarwal, Medical Officer, General Hospital, Ambala City, who had examined Gurmelo , Karamjit and Raj Kumar on February 19, 1996, and found injuries on their person. Injuries were of the same duration when injuries were allegedly inflicted upon the deceased and PW13 Smt. Savitri. The prosecution has failed to give any explanation for those injuries, which shows that an attempt was made to suppress genesis and origin of the occurrence. No doubt recording of FIR in this case was prompt, however, CRIMINAL APPEAL NO. 304-DBA OF 2001 -9- in view of facts mentioned above, no benefit of the same can be extended to the prosecution. Prosecution witnesses have denied any injury to the lady members of the respondents' family. However, medical evidence depicts to the contrary. It has come on record that during the day, there was some altercation in the fields. That was a cause of discontentment between the two families. It appears that on account of that grudge, the deceased wanted to lodge a protest with the opposite party. It appears that he intended to cause injuries to the family members of the respondents sitting on the trolley and tried to stop Harnek Singh from driving the tractor. The accident occurred, in which he received injuries and ultimately died . The trial Court has also held that non-examination of the independent witnesses was fatal to the case of the prosecution. We feel that as per evidence on record, view taken by the trial Court was possible. Their Lordships of the Supreme Court in Allarakha K. Mansuri v. State of Gujarat, 2002 (1) RCR (Criminal) page 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) page 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 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 CRIMINAL APPEAL NO. 304-DBA OF 2001 -10- 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.” Counsel for the State has failed to show that the trial Court has committed any error on facts or material irregularity, on the basis of which judgment under challenge acquitting the respondent can be set aside. For the reasons, mentioned above, this appeal and Cr. Revision No. 388 of 2001 fail and the same are accordingly dismissed. (JASBIR SINGH) JUDGE (JORA SINGH) JUDGE May 11, 2009. DKC