IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.A-435-MA of 2011(O&M) Date of decision: 29.09.2011 Amit Malik …..Applicant versus State of Haryana and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mrs.Justice Sabina Present: Mr.Dinesh Arora, Advocate for the applicant Jasbir Singh, J. CRM No.27343 of 2011 This application has been moved for condonation of 652 days delay in filing the appeal. In the application, it is stated that the delay in filing was not intentional. We are satisfied with the statement made in the application. In view of above, this application is allowed and delay in filing the appeal stands condoned. Crl.Misc.No.A-435-MA of 2011 This application has been filed under Section 378(4) Cr.P.C. with a prayer for grant of leave to file an appeal against judgment, passed by the Additional Sessions Judge at Gurgaon on 13.7.2009, vide which, respondent Nos.2 to 6 were acquitted of the charges framed against them. Crl.Misc.No.A-435-MA of 2011(O&M) As per case of the prosecution, respondent Nos.2 to 6 along with Karamvir and Rajat were made to face trial for committing murder of Sunil Malik on 15.1.2006 in Gurgaon. FIR No.52 was recorded on 15.1.2006 on a statement made by PW3 Amit Malik (brother of the deceased), wherein he has stated as under:- “that he was a resident of house No.380, Gali No.11, Krishna Colony, Gurgaon and was the youngest of three brothers. Anil was eldest brother and second was Sunil Malik who was working as property dealer in the area of Shiv market, Krishna Colony, Gurgaon. It is further alleged that Sunil went to Rewari in connection with some property and came back in the office at about 6.30 or 6.45 p.m. he was coming back from his office with his neighbour Pawan Kumar. It is further alleged that two young persons came from behind and started firing shots at Sunil indiscriminately. Consequently Sunil fell down. Assailants ran away. It is alleged that one of them was having spotted beard and was wearing white cap. The other was thin. Sunil died as a result of the injuries caused on the spot. He was declared dead in Kalyani hospital. It is alleged that the complainant chased the assailants. Black motor cycle of Yamaha make was parked at some distance. One youth was sitting on the motor cycle. The assailants went away on that motor cycle.” It is apparent from the record that none was named in the FIR as an accused. During investigation, respondent No.2 and one Karamvir were arrested. On further investigation, Rajat accused was also arrested along with others. It was allegation against respondent Nos.2 to 6, that 2 Crl.Misc.No.A-435-MA of 2011(O&M) murder of Sunil Malik was committed by Rajat and Karamvir in conspiracy with them and they have facilitated the commission of that offence. An intimation regarding death was received through telephone on 15.1.2006 by Shri Kailash SI, who thereafter went to Kalyani Hospital, where dead body of Sunil Malik was lying. Kailash SI (PW15), prepared inquest report (Ex.PS/2) on the dead body and sent it for post-mortem examination. He also prepared a rough site plan of the place of occurrence and lifted three empty cartridges from the spot. Blood stained earth was also taken into possession against a recovery memo (Ex.PD). All the accused were arrested in due course of time. On disclosure statements made by them, it is stated that, some articles and money, which they had taken to commit the murder, was recovered. On completion of investigation, final report was put in Court on 22.7.2006 by Jai Pal Singh, DSP (PW17). As per law, copies of the documents were supplied to the accused, they pleaded not guilty and claimed trial. The prosecution produced 23 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of all the accused 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 also led evidence in defence. The trial Court on appraisal of evidence found that the prosecution was successful in bringing home guilt of the accused, namely, Karamvir and Rajat. They were accordingly convicted under Section 302/34 IPC and were sentenced to undergo RI for life and to pay a fine of Rs.5000/- each with a default clause. They were also convicted under Section 25 of the Arms Act, 1959 and sentenced to undergo RI for three 3 Crl.Misc.No.A-435-MA of 2011(O&M) years and to pay a fine of Rs.1000/- with a default clause. However, by giving benefit of doubt, respondent Nos.2 to 6 were acquitted of the charges framed against them. It is a case in which none was named as an accused in the FIR, which was recorded on a statement made by PW2 Amit Malik (brother of the deceased). The accused were not known to the prosecution witnesses. It was so said in the Court by Amit Malik (PW2). Above witness specifically stated that Jai Dev -respondent No.4 had never met him prior to the date of occurrence. It is an admitted fact that Jai Dev –respondent No.4 was identified by the witness only in the Court. After taking note of the evidence on record, the trial Court came to a conclusion that there was not an iota of evidence against the accused. So far as conspiracy to commit the crime is concerned, it was also noted by the trial Court that PW2 Amit had failed to give registration number of the motorcycle on which the assailants had run away. The trial Court rightly came to a conclusion that there is no evidence against the private respondents. It is not possible to convict them simply on the basis of disclosure statements made by other accused. This Court is of the opinion that in view of above, no interference is called for in the impugned judgment. The view formed by the trial Court was justified and is as per evidence on record. Even in cases where two views are possible, ordinarily, the view taken by the trial Court in favour of the accused is to be accepted. 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. 4 Crl.Misc.No.A-435-MA of 2011(O&M) 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 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.” Dismissed. (Jasbir Singh) Judge 29.09.2011 (Sabina) gk Judge 5