State of Haryana v. Shish Ram & Anr.

Mr. G.S. Chahal, Addl. A.G., Haryana, for the applicant-State. SATISH KUMAR MITTAL , J. * * *

1. The State of Haryana has filed this application seeking leave to appeal against the judgment dated 26.2.2010, passed by the court of learned Additional Sessions Judge, Fatehabad, whereby accused Shish Ram and his son Surender (respondents herein) have been acquitted in case FIR No. 230 dated 2.4.2007 under Sections 323/325/307/34 IPC, Police Station Sadar Fatehabad.

2. In the present case, the complainant Birbal and accused Shish Ram have their agricultural land adjoining to each other situated in village Bhuthan Kalan, District Fatehabad. As per the case of the prosecution, the turn of accused Shish Ram for taking canal water comes after the turn of his brother Partap Singh. On 24.4.2007, complainant Birbal had borrowed canal water from Partap Singh, but accused Shish Ram along with his sons Crl. Misc. No. A-760-MA of 2010 -2- Surender and Pawan had taken the water 10 minutes earlier to their turn, regarding which complainant Birbal told to his brother Rajinder. Rajinder went to the Dhani of accused Shish Ram to lodge his protest. At about 8.45 PM, accused Shish Ram and his sons started abusing Rajinder, upon which complainant Birbal along with his brother Shankar also came to the spot. It has been alleged that in the meantime, accused Shish Ram gave a Gandasi blow upon the head of Rajinder, as a result of which he fell down. Thereafter, accused Surender gave two Gandasi blows upon the head and left eye of complainant Birbal, while Pawan (who was declared juvenile) gave two lathi blows upon the right hand and left shoulder of complainant Birbal. It is the further case of the prosecution that in their self defence, complainant Birbal and his brother Rajinder also gave lathi blows to accused Shish Ram.

3. The injured were got admitted in the Hospital and after registering the FIR on the basis of the statement of complainant Birbal, the police arrested accused Shish Ram and Surender and in pursuance of their disclosure statements, Gandasis were got recovered by them, which were taken into possession vide separate recovery memos.

4. After completion of investigation, challan was filed against the respondents-accused and they were charge sheeted for the offences under Sections 323/325 and 307 read with Section 34 IPC, to which they did not plead guilty and claimed trial.

5. In support of its case, the prosecution examined fourteen Crl. Misc. No. A-760-MA of 2010 -3- witnesses.

6. PW.1 Dr. Rajiv Tanwar, who medico legally examined Birbal and Rajinder, proved their MLRs Ex.P1 and Ex.P2. PW.6 Dr. D.L. Bansal, who radiologically examined injured-complainant Birbal, proved his opinion Ex.P18. PW.9 Rajinder is the injured witness. PW.10 Birbal is the complainant-injured and PW.13 Dilbag Singh SI is the Investigating Officer in the case. All the remaining witnesses are formal in nature.

7. In their statements under Section 313 Cr.P.C., the respondents- accused denied all the allegations appearing against them in the prosecution evidence and pleaded false implication in the case. However, they did not examine any witness in their defence.

8. The trial court, after considering the evidence and the documents available on the record, came to the conclusion that the prosecution has miserably failed to prove the case against the respondents- accused beyond all reasonable doubts and thus acquitted both the accused.

9. After hearing learned counsel for the applicant-State and going through the impugned judgment, we are of the opinion that the instant case is not a fit case, where leave to appeal is to be granted.

10. It has been found by the trial court that in the alleged occurrence, accused Shish Ram had also sustained four injuries, out of which injury No.3 was declared as grievous in nature, regarding which a cross case under Sections 323/325/34 IPC was registered against complainant Birbal and his brother Rajinder, both the injured persons in this Crl. Misc. No. A-760-MA of 2010 -4- case, along with his another brother Shankar and Partap Singh, for causing injuries to accused Shish Ram. These injuries on the person of accused Shish Ram have not been explained by the prosecution. Thus, it has been held by the trial court that it was a case of free fight, in which both the parties received simple as well as grievous injuries upon their persons and it cannot be said that the accused were the aggressors. We also do not find any illegality in these findings recorded by the trial court. A careful perusal of the statement of complainant Birbal, on the basis of which the FIR was registered, shows that it was the complainant party who went to the house of accused Shish Ram to lodge his protest, over a small issue that accused Shish Ram along with his sons Surender and Pawan had taken the water of canal 10 minutes earlier to their turn. They then started fighting with the accused. In view of this fact, version of the complainant Birbal that he and his brother Rajinder inflicted injuries to accused Shish Ram in their self defence does not appear to be probable. Thus, in the facts and circumstances of the case, it has been rightly held by the trial court that the accused deserve the benefit of doubt.

11. After considering all the aforesaid factors, we are of the opinion that the view taken by the trial court is one of the possible view, which can be taken from the evidence led by the prosecution in the instant case. It cannot be said that the view taken by the trial court, while acquitting the respondents-accused, is totally perverse, which cannot be taken, at all, in the given circumstances. It is settled law that the judgment of acquittal is to Crl. Misc. No. A-760-MA of 2010 -5- be interfered only when there are compelling and substantial reasons for doing so. It has been held by the Supreme Court in State of Rajasthan v. Sohan Lal and others, (2008) 2 SCC (Cri) 53 that the High Court should interfere in the judgment of acquittal only when it finds that the evidence on record clearly and absolutely indicate the guilt of the accused. The High Court should not interfere merely on the basis that from the evidence on record a different view as to the trial Court is possible.

12. In view of the aforesaid discussion, we do not find any ground to grant leave to appeal.

13. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE September 29, 2010 ( JITENDRA CHAUHAN ) JUDGE