Punjab-Haryana High Court

State Of Haryana vs Nagender @ Monu And Others on 15 March, 2024

                             Neutral Citation No:=2024:PHHC:042101-DB
CRM-A-1948-2019                                                        -1-
                                                     2024: PHHC: 042101-DB


     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

                                               CRM-A-1948-2019
                                          Date of decision: 15.03.2024

State of Haryana                                     ......Applicant
                        Versus
Nagender @ Monu and others                           .........Respondents

CORAM:     HON'BLE MR. JUSTICE SUDHIR SINGH
           HON'BLE MR. JUSTICE HARSH BUNGER

Present:   Mr. Manish Dadwal, AAG, Punjab, for the applicant.

           Mr. Rahul Bhargava, Advocate,
           for respondents Nos. 1 to 3 and 5.

           Mr. Sunil Kumar, Advocate, for respondent No.4.

SUDHIR SINGH, J.

The instant application seeking leave to appeal is

preferred against the judgment dated 20.11.2018 passed by the

learned Additional Sessions Judge, Jhajjar, whereby

respondents No.1 to 5 have been acquitted of the charges under

Sections 148, 341, 302 read with Section 149 IPC.

2. Vide order dated 28.04.2022, the Lower Court record

was called for. The same was received on 10.11.2022.

3. The prosecution case, as per the complaint of

complainant-Ranbir Singh (PW-4) is that on 18.01.2015, at

about 5.00 P.M., his nephew, Satish, was going to the Stadium

for playing and he (complainant) was following him, as he was

going for a walk. When Satish reached near the gate of the

Stadium, the accused-respondents, namely-Nagender, Yashpal,

Hoshiyar Singh, Ashwani, Sanjeet and Ravinder, armed with

iron pipe, iron rod, jelly and lathi reached there and started

beating the victim with an intention to murder him. Nagender

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hit the victim with an iron pipe and Hoshiyar hit him with an

iron rod, whilst Yashpal hit him with a jelly. Rest of the accused-

persons also hit the victim with lathis and caused injuries on his

person. The complainant stated that prior to the incident, all the

accused persons had gathered in the house of Yashpal and had

conspired to murder Satish. Ashwani (respondent No.2) had

inquired about the whereabouts of victim from his mother

Kamlesh. He saw that the victim had fallen unconscious. Thus,

he and Kamlesh raised hue and cry upon which, all the accused

persons fled away from the scene along with their weapons. The

victim was brought to General Hospital, Beri for treatment, from

where, he was referred to the PGIMS, Rohtak. Later on, the

victim succumbed to the injuries. Thus, application was moved

by PW4 before the police to lodge an FIR.

4. Based on the aforesaid complaint, formal FIR No.19

dated 20.01.2015, under Sections 148, 149, 323, 341, 506, 302

IPC, was registered at Police Station, Beri. After investigation,

the charge-sheet was submitted, whereafter cognizance was

taken. Thereafter, charges were framed against the respondents,

to which they pleaded not guilty and claimed to be tried.

5. During trial, the prosecution examined fourteen

witnesses, namely, PW1 Ravinder, PW2 Bhupender, PW3 ASI

Vijay Pal, PW4 Ranbir Singh (complainant), PW5 Kamlesh

(mother of deceased Satish), PW6 ASI Om Parkash, PW7

Constable Sonu, PW8 Dr. Kunal Khanna, PW9 Ct. Sunil Kumar,

PW10 HC Sant Kumar, PW11 Dr. Rajesh Singhal, PW12 ASI

Subhash, PW13 Constable Parveen and PW14 Inspector Jasbir

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Singh (Investigating Officer). On conclusion of the prosecution

evidence, statements of the accused (respondents) were recorded

under Section 313 Cr.P.C., wherein entire incriminating

evidence was put to them. However, they denied the same and

pleaded false implication in the case. In defence, no evidence

was led by them. After conclusion of the trial, the learned Trial

Court acquitted the accused persons.

6. The grounds considered by the learned Trial Court for

acquitting the Respondents are as under:-

1. Ranbir Singh-complainant (PW-4), himself did not support the prosecution version. He categorically stated that the accused persons had not committed any offence against Satish. He was declared hostile by the learned Public Prosecutor as he denied the contents of his complaint Ex.PW4/A.

2. PW5 Kamlesh (eye witness), mother of deceased, supported the case of the prosecution by stating that she was present at the spot, but during her cross-

examination, she admitted that she was not present at the time of alleged occurrence and rather she was informed about the said occurrence by one Naveen. The prosecution did not examine Naveen in order to corroborate the version of Kamlesh. PW5 Kamlesh further stated that Lalit son of Satbir had informed her that a quarrel was going on between her son (victim) and some others and she had reached the place of occurrence after about 10 minutes. Thus, the presence of PW5 Kamlesh at the spot was highly doubtful.

3. The prosecution has failed to prove recovery of any weapons from the accused persons. There is no incriminating material against the accused, which could prove their involvement in the commission of crime.

4. Furthermore, there was delay of more than 45 hours in lodging the FIR, which creates a further doubt in the prosecution's story.

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7. The learned State counsel, while assailing the

judgment of acquittal passed by the trial Court, argued that

when there is testimony of eyewitnesses corroborating the entire

occurrence, whereby the accused have been named to be

specifically present at the place of occurrence which resulted in

the death of the deceased, there was no occasion for the trial

Court, to discard the prosecution case. He has further submitted

that even if, the witnesses had turned hostile during the trial,

the Court can still look into his statement to the extent of

admission of offence committed by the accused. He has further

submitted that the respondents being the part of an unlawful

assembly having a common object, cannot escape their criminal

liability. It is, thus, argued that the learned trial Court, while

passing the impugned judgment, has totally ignored the said

aspect of the matter.

8. On the other hand, the learned counsel appearing for

the respondents while defending the judgment passed by the

trial Court, submits that the findings recorded by the trial Court

are based on the facts and circumstances on record and the

same do not call for any interference.

9. After hearing the arguments advanced by the learned

counsel appearing for both the parties and upon examining the

material available on the record, the following issue arise for

consideration before this Court:-

"Whether in a case based on direct evidence, an accused can be convicted, especially when one of the eye-witnesses (complainant) has turned hostile and other's testimony is found doubtful?"

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10. Admittedly, there were two eye witnesses of the said

occurrence i.e. PW4 Ranbir and PW5 Kamlesh, mother of the

deceased. In the case at hand, the complainant had been

declared hostile and he denied moving any complaint

(Ex.PW4/A) to the police. Furthermore, there are material

contradictions in the deposition of PW5-Kamlesh, which clearly

prove that she was not present at the spot and had only reached

there after the occurrence. It is pertinent to note that the

prosecution has not been able to connect the accused persons

with the said recovery of weapons. The factum of the date of

recovery of the weapons of offence is also disputed. No blood

stains were detected on the weapons shown to have been

recovered from the accused.

11. There is no other eye witness of the case. Though

only the complainant (one of the eye witnesses) had turned

hostile, yet the fact remains that the version of the PW5-

Kamlesh along with the other eye witness has been found to be

doubtful. The case of the prosecution was based on direct

evidence and in such a circumstance, the eye witness account

holds the key. In para No. 19 of its judgment, the trial Court,

has found as under:-

"19. The entire case of the prosecution was based on the

statements of these two material witnesses, but the first

witness PW4 Ranbir had turned hostile and did not support the

case of the prosecution and the presence of the second witness

PW5-Kamlesh at the place of occurrence is highly doubtful.

Thus, from the eye-witness account, the case of the

prosecution could not be proved."

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12. Once the eye witness account did not hold the

ground, the only other evidence was to connect the alleged

weapons with the commission of the alleged crime by the

accused. The trial Court has noticed in its judgment that

though the Investigating Officer had collected blood stained

brick and a piece of tripal from the place of occurrence on

20.01.2015, yet said brick was never sent to FSL for

ascertaining whether it contained any blood stains or not. The

piece of tripal was sent to FSL and it was found that it contained

human blood, but the blood group on it did not match with that

of the deceased or accused. Thus, the prosecution has failed to

connect the accused with the crime. Even no blood was found on

the weapon shown to have been recovered from the accused. The

prosecution has failed to prove said weapons had been used in

the commission of the crime. Thus, there is no conclusive

evidence to incriminate the accused with respect to committing

the murder of Satish. Accordingly, the issue is decided in the

negative.

13. While deciding an appeal against acquittal in a

criminal case, the primary task with which the appellate Court

is entrusted is to determine whether the findings in the

impugned judgment are perverse, illegal, irrational, and against

the principles of natural justice. Once the appellate Court comes

to the conclusion that the grounds on which the judgment is

based are not perverse, the scope of appeal against acquittal is

limited, considering the fact that the presumption of innocence,

which is available with an accused, gets further strengthened by

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the finding of a Court. In the case of Mrinal Das Vs. State of

Tripura, (2011) 9 SCC 479, it has been observed by Hon'ble

Supreme Court that:

"13. 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 reappreciate, reconsider and review the evidence and take its own decision. In other words, the law does not prescribe any limitation, restriction, or condition on the exercise of such power, and the appellate Court is free to arrive at its own conclusion keeping in mind that acquittal provides for a presumption in favor 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.

14. 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 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. ... "

In the case of Ghurey Lal Vs. State of Uttar

Pradesh, (2008) 10 SCC 450 in para no. 75, the Hon'ble

Supreme Court re-iterated the said view and observed as follows:

"75. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence,

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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."

14. Thus, an order of acquittal is to be interfered with

only for compelling and substantial reasons. In case the order is

clearly unreasonable, it is a compelling reason for interference.

But where there is no perversity in the finding of the impugned

judgment of acquittal, the appellate Court must not take a

different view only because another view is possible. It is

because 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 compelling grounds.

15. In the opinion of this Court, the trial Court has taken

a plausible view based on the evidence available on the record.

The view taken by the trial Court cannot be held to be bad or