At Chandigarh v. State of Haryana & Ors.

Judgment

#1. The present appeal has been preferred under Section 372 of the Code of Criminal Procedure, challenging the judgment of acquittal dated 02.12.2019 passed by the learned Additional Sessions Judge, Bhiwani. By the said judgment, respondents No. 2 to 7 (accused) were acquitted of the charges

framed against them in connection with FIR No. 240 dated 26.07.2017, registered under Sections 147, 148, 149, 323, 325, 307 and 506 of the Indian Penal Code at Police Station Tosham.

#2. The present case arises out of FIR No. 240 dated 26.06.2017, registered at Police Station Tosham under Sections 147, 148, 149, 323, 325, 307 and 506 CRA-AD-26-2020 (O&M) ( 2 ) of the Indian Penal Code. The prosecution case, as emerging from the pleadings, is that on 26.06.2017 at about 6:30 P.M. the appellant/complainant Jitender along with his nephew Joginder, who was serving in the Army, was present near the 'Diggi' (Water Works) situated near the bus stand of their village. At that time, respondents/accused Umed, Deepak, Kirpal, Ashok, Rajender @ Raj Kumar, along with Brijpal, Surjan and Mahender, arrived at the spot in their respective vehicles while armed with lathis and dandas. It is alleged that respondent No. 2 Umed and respondent No. 7 Rajender @ Raj Kumar raised a lalkara exhorting the others to kill the complainant and his nephew Joginder. Thereafter, Umed allegedly attempted to run over the complainant and Joginder with a Swift car with the intention of killing them however, both managed to escape. Subsequently, Rajender @ Raj Kumar allegedly drove his tractor towards them with the intention to kill. While attempting to evade the attack, Joginder jumped to one side, but the tractor allegedly ran over his right leg and thigh, causing serious injuries. Thereafter, respondent No. 6 Deepak allegedly inflicted a lathi blow on the complainant's right wrist, while respondent No. 4 Kirpal allegedly struck him below the ankle with a lathi. It is further alleged that all the accused thereafter assaulted the complainant and Joginder with lathis and dandas and also gave fist and kick blows. In the meantime, Dinesh, Jaipal and Anil reached the spot to intervene and rescue the victims. Upon seeing them, all the accused allegedly fled from the place of occurrence along with their respective weapons and vehicles. Thereafter, the complainant and his injured nephew Joginder were taken to the Government Hospital, Tosham, from where they were referred to the Government Hospital, Bhiwani for further medical treatment. On the basis of the statement made by the complainant, FIR No.240 dated CRA-AD-26-2020 (O&M) ( 3 )

26.06.2017 (Ex. PW5/A) was registered at Police Station Tosham under Sections 147, 148, 149, 323, 325, 307 and 506 of the Indian Penal Code.

#3. The learned Trial Court, vide judgment dated 02.12.2019, acquitted all the private respondents i.e. respondents No. 2 to 7 of the charges framed against them. Aggrieved by the said judgment of acquittal, the appellant has preferred the present appeal challenging the legality and correctness of the impugned judgment and seeking its reversal.

#4. Learned counsel for the appellant/complainant submits that the learned Trial Court has failed to properly appreciate the evidence adduced by the prosecution and has erroneously acquitted respondents No. 2 to 7 on the basis of conjectures and surmises. It is contended that the material prosecution witnesses had consistently supported the prosecution case; however, their testimonies were neither objectively evaluated nor appreciated in their true perspective. The learned Trial Court, despite the cogent ocular and documentary evidence available on record, wrongly concluded that the prosecution had failed to prove its case against respondents No. 2 to 7 beyond reasonable doubt. It is, therefore, prayed that leave to appeal against the judgment of acquittal of respondents No. 2 to 7 be granted.

#5. Per contra, learned State counsel submits that the appellant/complainant as well as the injured failed to examine any independent witness to corroborate the prosecution version, despite the admitted fact that the alleged occurrence took place at a public place, i.e., near the village bus stand. It is further contended that the three independent witnesses, namely those who allegedly intervened and rescued the appellant/complainant and the injured during the occurrence, were subsequently given up by the prosecution by making separate statements. In these circumstances, the prosecution failed to establish its case CRA-AD-26-2020 (O&M) ( 4 ) beyond reasonable doubt. It is, therefore, submitted that the learned Trial Court rightly extended the benefit of doubt to respondents No. 2 to 7 and recorded their acquittal, which calls for no interference by this Court.

#6. In order to substantiate its case, the prosecution examined as many as sixteen witnesses and relied upon documentary evidence exhibited as Ex. PW-1 to Ex. PW-16/A. Upon conclusion of the prosecution evidence, the learned Public Prosecutor closed the prosecution case. Thereafter, the statements of the accused were recorded under Section 313 of the Code of Criminal Procedure, wherein all the incriminating circumstances appearing against them in the prosecution evidence were put to them. The accused denied the allegations in toto, pleaded false implication, and claimed innocence. In defence, the accused examined two witnesses, namely DW-2 Dariya Singh and DW-3 Bajran, and also tendered documents Exs. D-2 to D-5 in support of their defence.

#7. In defence, the accused examined DW-2, Dariya Singh, who was running a tea stall at the chowk near Sungerpur Bus Stand, and DW-3, Bajrang son of Neki Ram, who claimed to be present at Sungerpur at the time of the alleged occurrence. On the basis of the oral and documentary evidence adduced by both the parties, the learned Additional Sessions Judge, Bhiwani, vide judgment dated 02.12.2019, acquitted respondents No. 2 to 7 of all the charges. Aggrieved by the said judgment of acquittal, the appellant has preferred the present appeal.

#8. We have heard learned counsel for the parties and have carefully reviewed the Trial Court record.

#9. A bare perusal of the impugned judgment, read in conjunction with the material available on record, reveals that the learned Trial Court acquitted CRA-AD-26-2020 (O&M) ( 5 ) respondents No. 2 to 7 by extending to them the benefit of doubt. The principal reason assigned by the learned Trial Court was that, despite the alleged occurrence having taken place at a public place near the village bus stand, the appellant/complainant failed to examine even a single independent witness to corroborate the prosecution version. Furthermore, the three independent witnesses, who allegedly intervened and rescued the appellant/complainant and the injured, were admittedly given up by the prosecution by making separate statements. The learned Trial Court also took into consideration the testimonies of DW-2 Dariya Singh and DW-3 Bajrang and recorded a finding that, on the date of the occurrence, it was in fact the appellant/complainant and the injured Joginder who were the aggressors. According to the defence version, they were armed with a farsa, a sword and a knife and had attacked respondents/accused No. 2 and 4 as well as one Mir Singh. The learned Trial Court further observed that after allegedly inflicting injuries upon the aforesaid persons, the appellant/complainant and his nephew Joginder attempted to flee from the spot, during which they fell to the ground and sustained injuries.

#10. The learned Trial Court further observed that the possibility of the grievous injury sustained by the appellant/complainant, Jitender, having been caused by a fall on a hard surface could not be ruled out. The said finding was based upon the testimony of PW-7, Dr. Parveen, who opined that such an injury could be caused by a fall on a hard surface.

#11. We have also perused the medical evidence and the material available on the record.

#12. The medical evidence on record shows that the appellant/complainant sustained three blunt injuries, whereas the injured Joginder sustained five CRA-AD-26-2020 (O&M) ( 6 ) blunt injuries on his person. None of the said injuries was found to be grievous in nature except Injury No.2, which was subsequently opined to be grievous vide opinion dated 05.08.2017 (Ex. PW-7/H). It is also significant that none of the injuries sustained by the appellant/complainant or the injured Joginder was declared to be dangerous to life. In these circumstances, and in the absence of any material indicating the requisite intention or knowledge to cause death, the ingredients constituting the offence under Section 307 of the Indian Penal Code are not prima facie made out. Consequently, the mere registration of the FIR under Section 307 IPC cannot, by itself, be sustained.

#13. Keeping in view the nature of the injuries sustained by the appellant/complainant and the injured Joginder, this Court finds substance in the testimonies of DW-2 and DW-3, who consistently deposed that after allegedly assaulting respondents No. 2 to 7, the appellant/complainant and his nephew Joginder attempted to flee from the spot and, in the process, fell on a hard surface, thereby sustaining the injuries in question. The medical evidence, particularly the opinion of PW-7 Dr. Parveen, that such injuries could be caused by a fall on a hard surface, lends support to the defence version and corroborates the testimonies of DW-2 and DW-3. Another significant circumstance, as rightly noticed by the learned Trial Court, is that although the alleged occurrence took place at a public place, the appellant/complainant failed to examine any independent witness in support of the prosecution case. More importantly, the three independent witnesses, who were alleged to have intervened and rescued the appellant/complainant and the injured during the occurrence, were admittedly given up by the prosecution by making separate statements. In the opinion of this Court, these witnesses were material witnesses whose testimony could have thrown CRA-AD-26-2020 (O&M) ( 7 ) considerable light on the manner in which the occurrence had taken place. The prosecution has offered no satisfactory explanation for withholding such material evidence, thereby giving rise to an adverse inference against its case. Furthermore, there is no reason to discard the testimonies of DW-2 and DW-3 merely because they were examined as defence witnesses. Their version that the appellant/complainant and the injured Joginder were the aggressors, armed with a farsa, a sword and a knife, and that they had assaulted respondents No. 2 and 4 before attempting to flee from the spot, finds support from the medical opinion of PW-7 Dr. Parveen, who categorically stated that the injuries sustained by the appellant/complainant and the injured Joginder could have been caused by a fall on a hard surface. Thus, the medical evidence substantially corroborates the defence version regarding the manner in which the injuries were sustained.

#14. On the other hand, the defence examined DW-2 Dariya Singh and DW-3 Bajrang, who claimed to be eyewitnesses to the occurrence and supported the defence version regarding the manner in which the incident had taken place. In contrast, although the prosecution alleged that three independent witnesses had intervened and rescued the appellant/complainant and the injured, it chose to give up all of them by making separate statements. The non-examination of these material witnesses has proved fatal to the prosecution case, as they were the most natural witnesses to corroborate the version of the appellant/complainant regarding the occurrence dated 26.06.2017. In these circumstances, the version put forth by the appellant/complainant and the injured Joginder loses considerable credibility, particularly when no independent witness has been examined in its support despite the occurrence having allegedly taken place at a public place. Consequently, the prosecution CRA-AD-26-2020 (O&M) ( 8 ) has failed to establish, beyond reasonable doubt, that respondents No. 2 to 7 committed the offences alleged against them. The learned Trial Court, after a comprehensive appreciation of the oral as well as documentary evidence on record, rightly concluded that the prosecution had failed to prove its case and, by extending the benefit of doubt, acquitted respondents No. 2 to 7 of the charges framed against them.

#15. After reviewing the impugned judgement as well as the evidence of material witnesses mentioned therein, we also share the same view that in a criminal case, the guilt of the accused must be proved beyond a reasonable doubt. There should be no other possible inference, that can be deduced except the one implying the guilt of the accused, which is not the situation in the present case. This Court cannot lose sight of the fact that the present case was registered by the appellant/complainant by lodging FIR (Ex.PW5/A), however, during the testimony, contrary depositions were made by them. Further, several improvements were made by discrediting the testimonies, which impeached their credibility.

#16. Moreover, the prosecution failed to establish the presumption that respondents/accused No.2 to 7 had committed the offence. Accordingly, the Trial Court examined all the evidence and witnesses and concluded that the accused/respondents No.2 to 7 were falsely implicated.

#17. After reviewing the pleadings and the impugned judgment, we believe that the examination of prosecution witnesses does not match the allegations against the respondents/accused No.2 to 7, and the evidence placed on record does not support such allegations. Therefore, the findings recorded by the trial Court do not suffer from illegality or perversity. In a criminal matter, whenever doubt is CRA-AD-26-2020 (O&M) ( 9 ) cast upon the prosecution's case, the accused is entitled to the benefit of such doubt. After examining the depositions of the prosecution and defence witnesses, the Trial Court held that the prosecution had failed to prove the charges levelled against respondents/accused No.2 to 7 and acquitted them.

#18. In an appeal filed against an acquittal, the appellate court must examine whether the findings of the Court are perverse and prima facie illegal. Once the appellate Court finds that the grounds on which the judgment is based are not depraved, the scope of the appeal filed against acquittal is limited, considering that the trial court's finding further strengthens the legal presumption of the accused's innocence. At this point, it is imperative to consider the decision of the Hon'ble Supreme Court in the case of Mrinal Das v. State of Tripura (2011) 9 SCC 479, wherein it has been observed as follows: “8. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, it being the final Court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, the law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate Court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent Court. If two reasonable views are possible on the basis of the evidence on record, the appellate Court should not disturb the findings of acquittal. There is no limitation on the part of the appellate Court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate Court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is CRA-AD-26-2020 (O&M) ( 10 ) the duty of the appellate Court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.......”

#19. Similarly, in the case of Ghurey Lal v. State of Uttar Pradesh, (2008) 10 SCC 450, the Hon'ble Supreme Court reiterated the same view and the relevant extract of the said judgment reads as follows: “78. On careful analysis of the entire evidence on record, we are of the view that the reasons given by the High Court for reversing the judgment of acquittal is unsustainable and contrary to settled principles of law. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable”.

#20. Thus, the judgment of acquittal is to be interfered with only for compelling and substantial reasons. In case the impugned judgment is clearly unreasonable, it would be a compelling reason for interference but when there is no perversity in the findings recorded in the impugned judgment regarding the acquittal of respondents No.2 to 7, the appellate Court must not take a different view only because another view is possible. The trial Court has the privilege of seeing the demeanour of witnesses and, therefore, its decision must not be upset in the absence of strong and/or compelling grounds.

#21. In view of the above, we do not find any illegality or perversity in the findings recorded by the Trial Court. Therefore, the application seeking grant of leave to appeal stands dismissed and leave to appeal declined. CRA-AD-26-2020 (O&M) ( 11 )

#22. Pending applications, if any, also stand disposed of. ( DEEPAK MANCHANDA ) JUDGE ( RAJESH BHARDWAJ ) JUDGE

09.07.2026 Pankaj Whether speaking /reasoned Yes / No Whether Reportable Yes / No