Criminal Appeal No.922-DBA of 2002 v. State of Haryana & Anr.

CORAM : HON'BLE MR.JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr.S.S. Randhawa, Additional Advocate General, Haryana, for the State. Mr. K.K. Aggarwal, Senior Advocate, with Mr. Kapil Aggarwal, Advocate, and Mr. R.K. Agnihotri, Advocate, for the complainant-petitioner in Criminal Revision No.4 of 2003. None for the accused-respondent Sombir. -.- -2- Criminal Appeal No.922-DBA of 2002 and Criminal Revision No.4 of 2003. MOHINDER PAL, J. This judgment will dispose of Criminal Appeal No.922- DBA of 2002 ( State of Haryana Vs. Sombir ) and Criminal Revision No.4 of 2003 ( Rajesh Vs. State of Haryana and another ) as they are directed against the same judgment dated 27.7.2002 passed by the learned Additional Sessions Judge (Ad hoc), Rohtak, whereby accused-respondent Sombir was acquitted of the charge framed against him under Section 307 of the Indian Penal Code (for short `the Code') and Section 25 of the Arms Act, 1959 (for short `the Act'). Criminal Appeal No.922-DBA of 2002 has been filed by the State of Haryana and Criminal Revision No.4 of 2003 has been preferred by complainant-petitioner Rajesh. Leave to appeal in Criminal Appeal No.922-DBA of 2002 was granted and the appeal was admitted for hearing on

9.12.2002. Criminal Revision No.4 of 2003 was admitted and ordered to be heard along with Criminal Appeal No.922-DBA of 2002 on 24.3.2003. We have heard Mr.S.S. Randhawa, learned Additional Advocate General, Haryana, for the State and Mr. K.K. Aggarwal, Senior Advocate, assisted by Mr. Kapil Aggarwal, Advocate, and Mr. R.K. Agnihotri, Advocate, appearing for the complainant- petitioner and have gone through the records of the case. It has been argued by the learned Additional Advocate -3- Criminal Appeal No.922-DBA of 2002 and Criminal Revision No.4 of 2003. General, Haryana, and the learned counsel for the complainant- petitioner that the learned trial Judge while passing the impugned judgment of acquittal failed to appreciate the facts of the case and the evidence on record. The prosecution evidence was sufficient to warrant conviction of accused-respondent Sombir and the trial Court erred in not believing the same. The instant case was registered at the instance of complainant Rajesh. As per the facts of this case, about four years prior to the present occurrence, one Raghbir son of Rakhu resident of Village Titoli had made a complaint against accused-respondent Sombir for teasing his (Raghbir's) daughter Suman, but that matter was compromised. However, Sombir was having ill-will against the complainant on that account and was not on speaking terms with him. On 3.1.2000 at about 2.30 P.M, Sombir, while armed with a pistol, waylaid complainant Rajesh and fired a shot at him. The pellets hit complainant Rajesh at the neck on the right side and on right shoulder. Sombir fired another shot which hit the complainant at his right knee. At that time, Sonu son of Ishwar of the same village, who was present in the street, also sustained injuries with the stray pellets. On an alarm raised by the injured, Rajender son of Dase Ram and Jagbir son of Chander Bhan came to the spot. On seeing them, Sombir fled away from the spot with his pistol. The injured were removed to Post Graduate Institute of Medical Sciences, Rohtak -4- Criminal Appeal No.922-DBA of 2002 and Criminal Revision No.4 of 2003. (for short `P.G.I.M.S'). Head Constable Jagdish Chander, on receipt of information, reached P.G.I.M.S, Rohtak, obtained opinion of the Doctor regarding fitness of complainant Rajesh to make statement and recorded his statement, which led to the registration of the instant case against accused-respondent Sombir. The accused was arrested on 6.1.2000. Upon interrogation, he suffered a disclosure statement and got recovered pistol from his house in consequence of his disclosure statement. After completion of investigation and due formalities, report under Section 173 of the Code of Criminal Procedure was submitted by the police before the Ilaqa Magistrate, who committed the case to the Court of Session at Rohtak, the offence under Section 307 of the Code being triable by the Court of Session. The trial Court, after recording evidence of the prosecution, statement of the accused under Section 313 of the Code of Criminal Procedure in which he denied any disclosure statement having been made by him or having got recovered any pistol in consequence thereof and hearing the learned counsel for the parties acquitted the accused, as mentioned above. For acquitting the accused, the learned trial Judge, inter alia, held that the motive in this case was almost non-existent as Suman, whom the accused had allegedly teased about four- five years prior to the occurrence, was not the real sister of the -5- Criminal Appeal No.922-DBA of 2002 and Criminal Revision No.4 of 2003. accused; that the pistol sent to Forensic Science Laboratory, Madhuban for examination was reported to be of 7.63 mm bore and the cartridge used in this type of pistol contains a bullet and not pellets; that, therefore, the prosecution version that pellets caused injuries to the complainant and Sonu stood belied; that only two shots were fired and at the most two injuries could be possible whereas there were four injuries on the person of the complainant; that there was no punctured wound suffered by the complainant and the lacerated wounds of the dimensions of 3 cms x 2 cms etc. could not be caused either with pellets or with a bullet; that the Doctor also opined that all the injuries on the person of the complainant could be by blunt weapon; and that on the radiological examination no opaque shadow was found at the place of any injury on the person of the complainant. The law with regard to the powers of the High Court while hearing appeal against order of acquittal was summarized by the apex Court in the case of Allarakha K.Mansuri vs. State of Gujarat, 2002(1) RCR (Criminal) 748, as under:- “(i) High Court has full powers to review the evidence upon which an order of acquittal is based. (ii) It will not interfere with an order of acquittal because with the passing of an order -6- Criminal Appeal No.922-DBA of 2002 and Criminal Revision No.4 of 2003. of acquittal the presumption of innocence in favour of the accused is reinforced. (iii) High Court should be slow in disturbing the finding of the fact arrived at by the trial Court. (iv) If two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (v) It is not a jurisdictional limitation on the appeal court but a judge made guideline of circumspection. (vi) Paramount consideration of the Court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. (vii) Where the trial Court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. -7- Criminal Appeal No.922-DBA of 2002 and Criminal Revision No.4 of 2003. (viii) Probable view taken by the trial Court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence.” The afore-mentioned reasoning given by the learned trial Judge for acquitting the accused, in our considered opinion, is impeccable and does not call for any interference. There was no motive for the accused to cause injuries to the complainant because Suman, who had allegedly been teased by the accused about four-five years prior to the occurrence, was not the sister of the accused, as has himself been stated by the complainant in his statement (Exhibit P.A) leading to the registration of the instant case against the accused that Suman was the daughter of Raghbir whereas the accused is the son of Balbir. Besides, the accused would not wait for four-five years to wreak vengeance. Dr. Raman Gupta (P.W.14), who had medico-legally examined injured Rajesh and Sonu, had observed four lacerated wounds on the person of Rajesh and one lacerated wound on the person of Sonu. Dr. Raman Gupta opined that lacerated wound can be caused by any blunt weapon. As per Dr.Anju Yadav (P.W.7), Radiologist, no opaque shadow of metallic density was seen at the site of any of the injuries on the person of the complainant. As such, no surgical intervention with regard to the injuries of the complainant was done. No doubt, opaque shadow -8- Criminal Appeal No.922-DBA of 2002 and Criminal Revision No.4 of 2003. of metallic density was seen regarding the abdomen injury of injured Sonu, but no intervention was done to take out the said object of metallic density. It shows that the said opaque shadow in respect of injured Sonu was on account of some other fact. Though the prosecution has produced on record medical report (Exhibit P.F/1) according to which Rajesh (complainant) remained admitted in the hospital for six days, but no specific treatment given to the injured during his hospitalization has been mentioned in the medical report. Besides, injured Sonu was not examined by the prosecution and was given up as having been won over by the accused. Be that as it may, but it leads to the irresistible conclusion that Sonu had some different version to tell than the one put forth by the prosecution. From the site plan (Exhibit P.O), it appears that the two shots had been fired from a very close range. Certainly, if the shots are fired from a very close range i.e from a distance of a few feet, intensity of damage to the body will be much more than shown in the medico-legal report. It is also worth-mentioning here that though two shots are alleged to have been fired, but only one empty was recovered from the spot. Also, there were no corresponding cuts on the clothes of either of the injured. The fact that the cartridge used in the pistol as was recovered from the accused contains one bullet and not the pellets belies the case of the prosecution that from -9- Criminal Appeal No.922-DBA of 2002 and Criminal Revision No.4 of 2003. two shots fired from the said pistol complainant Rajesh received four injuries and Sonu received one injury. Still further, complainant Rajesh (P.W.1), in his cross-examination, stated that first of all his relatives, on the date of occurrence, had taken him to the Police Station, from where, on the direction of the police, they took him to the Hospital for treatment. It is highly improbable that a person having received injuries from a firearm from a very close range will be taken to the Police Station rather than to the hospital for treatment. For the aforesaid reasons, we do not find any perversity in the impugned judgment of acquittal rendered by the learned Additional Sessions Judge, Rohtak and no contrary view than the one taken by him can be taken. Resultantly, Criminal Appeal No.922-DBA of 2002 and Criminal Revision No.4 of 2003 are hereby dismissed being without any merit. ( SATISH KUMAR MITTAL ) JUDGE ( MOHINDER PAL ) JUDGE July 02, 2010.